Pentagon's "stop-loss" policy on trial here

Emiliano Santiago, an Oregon National Guardsman, finished his eight-year enlistment last June.

But four months later the Army wanted to ship the Pasco resident to Afghanistan and reset his military termination date to Christmas Eve 2031.

Santiago, 27, decided to take it to court.

His lawsuit, Santiago v. Secretary of Defense Donald Rumsfeld, will be heard today in a special sitting of the 9th Circuit Court of Appeals in Seattle.

It will be the highest court review of the Army's "stop-loss" policy, which affects about 14,000 soldiers nationwide.

Of the 4,200 citizen soldiers in the state's 81st Brigade Combat Team, the deployments of 412 were extended through stop-loss, according to National Guard officials.

Santiago's legal battle has attracted national attention but is most loudly trumpeted by groups opposing the war, adding a political dimension to what his lawyer says is ultimately a case about fairness.

In November 2002, the Army implemented stop-loss to ensure reserve units ordered to active duty would not lose key personnel.

Army attorneys say the law gives President Bush the ability to "suspend any provision of the law relating to promotion, retirement or separation" of any soldier who is deemed essential to national security in times of crisis.

Santiago, whose unit refuels helicopters, learned the Army had added 26 years to his enlistment. The date was selected for "administrative convenience," according to court papers. Most guardsmen extend their commitment from three to six years.

Pentagon policy blasted

In legal briefs, Santiago's legal team blasted the Pentagon's policy.

"Conscription for decades or life is the work of despots. ... It has no place in a free and democratic society," the team wrote.

"If the government can break its promises to young men and women like Santiago, then the bedrock of our all-volunteer army — trust in the government's promises — will crumble."

Although the National Guard has failed to hit recruitment targets recently, an Army spokesman said stop-loss was not designed to buttress thinning ranks.

"Bottom line is that stop-loss has nothing to do with increasing the number of people in the Army and everything to do with effective units," said Lt. Col. Bryan Hilferty, an Army spokesman.

In December, District Court Judge Owen Panner ruled in favor of the Pentagon, saying the Army's mobilization alert in April 2004 was tantamount to an order to active duty two months before Santiago's discharge.

What's more, Panner determined that since other members of the Army National Guard had been serving on active duty since October 2001, the stop-loss policy extends to Santiago and every other citizen soldier.

Santiago appealed, and the three-judge panel is expected to rule in several months.

The case could go before the entire 9th Circuit or end up in the U.S. Supreme Court.

Unless the appeals court grants an injunction, Santiago, an electrical engineer, is scheduled to be shipped to Afghanistan within a week.

Santiago's lawyers initially tried to challenge the president's emergency mobilization to deploy troops in Afghanistan on the grounds that the country now has a democratically elected government.

Politics still part of case

Panner rejected that argument as political, and Santiago's attorneys dropped it. But politics are still part of the case.

Military Families Speak Out, formed in November 2002 to oppose the war in Iraq, is expected to demonstrate outside the courtroom.

The National Lawyers Guild, which called Bush's 2000 victory a "betrayal of democracy," has been involved in several stop-loss cases.

"We win if enlistment numbers go down," said Marti Hiken, co-chair of the guild's Military Law Task Force in San Francisco. "Military people won't go in if they can't get out."

Santiago's attorney, Steven Goldberg, a member of the National Lawyers Guild, said his client steered away from politics.

Santiago was traveling yesterday and could not be reached.

"I've not spoken about the politics with him," Goldberg said. "It's really about fairness."

Alex Fryer: 206-464-8124 or afryer@seattletimes.com