Eight Soldiers Plan to Sue Over Army’s Stop-Loss
By MONICA DAVEY
Published: December 6, 2004
(must register to view original article)
MORRILTON, Ark., Dec. 3 - The eight soldiers come from places scattered
across the country, from this small town an hour northwest of Little
Rock to cities in Arizona, New Jersey and New York. In Iraq and Kuwait,
where they all work now, most of them hold different jobs in different
units, miles apart. Most have never met.
But the eight share a bond of anger: each says he has been prevented
from coming home for good by an Army policy that has barred thousands of
soldiers from leaving Iraq this year even though the terms of enlistment
they signed up for have run out. And each of these eight soldiers has
separately taken the extraordinary step of seeking legal help, through
late-night Internet searches and e-mail inquiries from their camps in
the conflict zone, or through rounds of phone calls by an equally
frustrated wife or mother back home.
With legal support from the Center for Constitutional Rights, a
liberal-leaning public interest group, lawyers for the eight men say
they will file a lawsuit on Monday in federal court in Washington
challenging the Army policy known as stop-loss.
Last spring, the Army instituted the policy for all troops headed to
Iraq and Afghanistan, called it a way to promote continuity within
deployed units and to avoid bringing new soldiers in to fill gaps left
in units by those who would otherwise have gone home when their
enlistments ran out. If a soldier's unit is still in Iraq or
Afghanistan, that soldier cannot leave even when his or her enlistment
time runs out.
Since then, a handful of National Guardsmen who received orders to
report for duty in California and Oregon have taken the policy to court,
but the newest lawsuit is the first such challenge by a group of
soldiers. And these soldiers are already overseas - transporting
supplies, working radio communications and handling military contracts,
somewhere in the desert.
"You should know I'm not against the war," said David W. Qualls, one of
the plaintiffs and a former full-time soldier who signed up in July 2003
for a one-year stint in the Arkansas National Guard but now expects to
be in Iraq until next year.
"This just isn't about that. This is a matter of fairness. My job was to
go over and perform my duties under the contract I signed. But my year
is up and it's been up. Now I believe that they should honor their end
of the contract." Some military experts described the soldiers'
challenge as both surprising and telling, given the tenor of military
life, where soldiers are trained throughout their careers to follow
their commanders' orders.
These soldiers' public objections are only the latest signs of rising
tension within the ranks. In October, members of an Army Reserve unit
refused a mission, saying it was too dangerous. And in recent months,
some members of the Individual Ready Reserve, many of whom say they
thought they had finished their military careers, have objected to being
called back to war and requested exemptions.
Mr. Qualls, 35, who says he sometimes speaks his mind even to his
superiors, is the only one among the eight whose real name will appear
on the lawsuit against the Army's military leaders. The rest, who fear
retribution from the Army - including more dangerous assignments in Iraq
- are described only as John Does 1 through 7.
Aside from the shared expectation that they would have gone home by now,
these soldiers' situations could not be more varied, as interviews with
their families made clear.
One is a member of an Army band, ordered to travel Iraq this year
performing music. Another is an Army reservist in a New Jersey
transportation company with 18 years of service behind him. Another is
an Arizona National Guardsman in his 20's, whose wife says he sounded
subdued, even tearful, when she spoke to him in recent days on a phone
line from Kuwait.
"The whole morale in his unit is on the floor," she said on the
condition that she not be named, to avoid revealing her husband's
Although Army officials said they could not comment on a lawsuit,
particularly one they had not yet seen, they described the stop-loss
policy, which was first instituted during the first Persian Gulf war
more than a decade ago, as a crucial lesson learned in Vietnam, where
troops were rotated out just as they had become acclimated to a
"If someone next to you is new, it can be dangerous," said Lt. Col.
Pamela Hart, an Army spokeswoman. "The bottom line of this is unit
cohesion. This way, the units deploy together, train together, fight
together and come home together."
Some soldiers like Mr. Qualls, though, say they wonder if the rule is
not just another way to keep troop numbers high, particularly at a time
when the military has been stretched thin and the number of troops in
Iraq is expected to rise still more, to 150,000, in the coming weeks.
In recent months, at any given moment, the stop-loss policy has affected
about 7,000 soldiers who had been planning to retire, leave the military
or move to a different military job. The rule affects soldiers whose
enlistments are scheduled to end within 90 days before their unit is
deployed, those already deployed, and those whose term would end up to
90 days after their unit returns. On Friday, Army officials said they
did not know the total number who had been affected so far. No date has
been announced to end the policy.
Jules Lobel, a lawyer for one of the eight soldiers, described the
central complaint this way: They were fraudulently induced to sign up,
Mr. Lobel said, because nothing in their enlistment contract mentioned
that they might be involuntarily kept on.
But experts not involved in the case say the government has generally
been granted broad legal authority when it comes to the obligations of
soldiers in matters of national security and times of conflict.
"The courts have traditionally ceded to the military," said Gary D.
Solis, who teaches law at the United States Military Academy at West
Point. "Even if the gents win at the trial level, the government is not
going to quit. They cannot afford to. There is a potential cascade
Phillip Carter, a former Army captain and an expert in military and
legal issues, said: "Rarely have we seen people win such cases. At best,
this is symbolic protest."
The soldiers and their families, however, say they do not see it that
way. Their hopes are far more practical. They want to go home.
Mr. Qualls was one of the first soldiers to find Mr. Lobel and Staughton
Lynd, another lawyer now working with the Center for Constitutional
Rights on the case and whose antiwar activities date to the Vietnam era.
As Mr. Qualls wandered the Internet one day in Iraq, he said, he came
across news reports of a National Guardsman in California who this
summer had become the first to challenge stop-loss in court.
Mr. Qualls said he immediately began sending e-mail messages that
guardsman's lawyer, Michael S. Sorgen, and was eventually referred to
Mr. Lynd and Mr. Lobel, who were separately beginning to hear from other
soldiers who had found them in recent weeks in a variety of ways.
Some of the soldiers e-mailed or called the National Lawyers Guild
Military Law Task Force or the G. I. Rights hot line and were referred
to the lawyers, Mr. Lynd said. The wife of one soldier said she handled
all the research for his case herself, studying his enlistment contract
and newspaper clippings and finally coming across Mr. Lynd's name. And a
54-year-old mother from Long Island said she began making calls on her
son's behalf, first to her representatives in Congress and later to
anyone she could find.
"My son," she said, "is not someone afraid to follow orders and fulfill
his obligation. He's a very compliant soldier, but he feels like he's
being stabbed in the back."
One soldier's wife, from New York City, said she received an e-mail
message from Military Families Speak Out, an antiwar group, about the
possibility of a lawsuit, and urged her husband to be part of it.
Asked whether antiwar forces were instigating this lawsuit, Mr. Lobel,
who like his co-counsel describes himself as openly opposed to the war
in Iraq, laughed and said no. The soldiers and their families came on
their own, he said.
"They were desperately looking for some way to solve their situations,
and it looks like most of the people they found who were trying to
counsel or represent people in their situation were antiwar people," Mr.
Lobel said. "But to me, the most interesting aspect of this whole thing
is that it's not a question of antiwar or pro-war. It's not a question
of red states or blue states. This stop-loss question is just about
As part of a rest-and-relaxation leave allowed some soldiers, Mr. Qualls
arrived at his modest Morrilton home just in time for Thanksgiving
supper with his wife, Cheryl, and their daughter, Kelly.
Seated at his computer on Friday, he fiddled with a pen as he pondered
whether he might face retribution for taking legal action, something he
says he told his unit commanders nothing about before he left. He said
his family had struggled financially and emotionally with him gone, and
he has to put them first now.
"The other thing," Mr. Qualls said, "is you've got thousands of people
over there in the same situation as me and somebody's got to do
something. Why not have it be me? I can't worry about what people will
Mr. Qualls is due back at his radio post on a base north of Baghdad this
coming weekend. He said he hoped a judge would issue a temporary
restraining order and allow him to stay home. But if he loses, he said,
he will get on that plane.