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© Copyright 2004, From The Wilderness Publications, All Rights Reserved. May be reprinted, distributed or posted on an Internet web site for non-profit purposes only.

Stan Goff interviews Luke Hiken of the National Lawyers Guild on the Pentagon's unethical new retention policies and the lawsuit they've triggered.

[The Republican National Convention was about war. As Zell Miller reminded the faithful, "It is the soldier, not the reporter, who has given us the freedom of the press. It is the soldier, not the poet, who has given us freedom of speech." This unacknowledged quotation from Miller's fellow Marine, Father Denis O'Brian, brought a gush of adulation from the Grand Old Party, who love to be assured that all good things come from violence. So long as the Americans are on one side, anybody on the other side is to be regarded as the Gestapo wrapped in the Wehrmacht; once the U.S. starts fighting, the enemy is magically transformed into a mighty horde of well-armed Nazis bent on shutting down the New York Times. Miller made clear that if "this marine" (and the other marines) are on a mission, then by God / by definition, that mission is bound to protect civil liberties rather than mock, curtail, and destroy them at home and abroad.

How did this sort of thing make its way into a political convention? The same way an American president managed to appear on national television in a military uniform. Somewhere along the line, the soldier, the reporter, and the poet all got sold out by a clever little fraternity of sadistic racketeers. The men whom Miller and his colleagues had gathered to venerate have among their personal equipment neither the sword nor the pen; others kill for them, others write for them, others work for them, and others, for some reason, vote for them.

Since "the soldier" is now the fetishized basis for this regime's claim to power and legitimacy, his or her humanity had better be airbrushed out of the picture, and quickly. Mr. Miller's quotation from O'Brian (any resemblance to the O'Brian of Orwell's 1984 is purely coincidental) continued: "It is the soldier, not the agitator, who has given us the freedom to protest. It is the soldier who salutes the flag, serves beneath the flag, whose coffin is draped by the flag, who gives that protester the freedom he abuses [sic] to burn that flag." The part about "abuse" isn't in the original. Trouble is, when the imperial wars of aggression get too flagrant, and the soldiers get paid too little, and the veterans' hospitals get closed, and the decision-makers decide that a little inhaled uranium-238 dust never hurt anybody, the person burning the flag (Miller's bad guy) just might be a soldier (Miller's good guy) irreparably harmed in body and soul while serving under one or another group of bigoted lying ideologues (like Miller). The latest swindle is called "Stop Loss," a means of indefinitely extending the tours of duty for which soldiers are committed to service. As the U.S. accelerates its long transformation from discursive republic to martial empire, a new lawsuit against the DoD's stealth-conscription promises to test the bounds of legal recourse in a way that will soon affect everyone as directly as it now affects some 10,000 to 200,000 military personnel.

FTW's military affairs editor Stan Goff is the author of what many regard as the best book available on these issues, Full Spectrum Disorder: The Military in the New American Century. In this FTW exclusive, Goff interviews Luke Hiken of the National Lawyers Guild on the currently unfolding lawsuit against the United States government over the Department of Defense "Stop Loss" policy. -JAH]

NOTE: The first plaintiff in the Stop Loss lawsuit is filing as John Doe, thereby remaining anonymous. The views expressed in this interview are not those of John Doe, but of the National Lawyers Guild Military Law Task Force.

Stan Goff (to Luke Hiken): You are one of the attorneys with the National Lawyers Guild Military Law Task Force (MLTF) pursuing a lawsuit against the Department of Defense for its Stop Loss policy. This is a policy that involuntarily extends service members on active duty beyond their separation dates. Can you briefly explain how the Guild' Military Law Task Force (MLTF) became involved in this lawsuit?

Luke Hiken: Due to the thousands of calls coming into the Military Law Task Force and GI Rights Hotline dealing specifically with Stop Loss, we asked two San Francisco lawyers, Mike Sorgen and his associate, Joshua Sondheimer, to file a law suit against Stop Loss in the Northern District of California.

We had talked to organizations dealing directly with GIs and their families, including those in the Bring Them Home Now! campaign, Veterans for Peace, Military Families Speak Out, Central Committee for Conscientious Objectors, Iraqi Veterans Against the War, and all felt that the lawsuit was a priority.

I am on the Steering Committee of the MLTF, but in this case I'm only working in an advisory capacity with Michael Sorgen and Josh Sondheimer, who are the lead attorneys in the case.

We got together to discuss ways in which to challenge the Bush administration's illegal war against the people of Iraq. There were so many different abuses involved in this war (for example, the lies and deception about WMD's; the reasons for being there in the first place; the multiple international law violations taking place there every day, etc.), that we hardly knew where to start. We recognized that no single lawsuit could prevent the horrendous loss of life to both the Iraqis and the Americans taking place there. But considering its impact on the average GI, we felt that the most despicable abuse of authority by the President was his implementation of the so called "Stop Loss" policy announced at the beginning of the war.

Under Stop Loss, soldiers who had already served their complete term of duty could be held over in the combat zones for a period of months or even years beyond their normal separation date. Not only were the soldiers never warned of this possibility at the time they enlisted, but it was being imposed on those who had already risked their lives in this unjustified war for at least one tour of duty.

SG: Would you describe how this lawsuit was developed? Who is currently involved? How did you initiate the search for a plaintiff, and will there be more plaintiffs?

LH: The history of Stop Loss is set forth in the pleadings filed in the John Doe case, and I won't go into it here. (Those pleadings can be viewed at the following website: As we started researching the history of Stop Loss, we realized that it was nothing short of a back-door draft. Instead of being up front with GIs at the time they enlisted, and pointing out that the enlistment contract had a clause suggesting that the government could change the conditions of their service whenever the President decided he wanted them to stay in, the government allowed GIs to enlist with the expectation that they could leave the service when their estimated date of separation arrived. Needless to say, the thousands of servicemen and women who have been subjected to Stop Loss orders, were shocked and angry at having been tricked into endless military servitude by an unappreciative and arrogant government. While the numbers are hard to determine at this time due to government lies and obfuscation, the MLTF estimates the numbers of GIs affected by Stop Loss to be in the tens of thousands. Government, military, and media estimates have ranged from 10,000 to 200,000.

We, and the GI Rights Hotline [800 394-9544] were receiving so many calls each week from GIs and family members who were outraged at the impact that Stop Loss was having on their families that choosing a plaintiff was just a matter of waiting for someone eligible and willing to take the government on in such an important action. GIs who have attempted to speak out about this war know the pressures that can be brought to bear on them for complaining publicly. It took a courageous individual to actually come forward and publicly take a stand against this abuse.

SG: What are the key legal issues involved in this lawsuit, and do they have important statutory and precedential implications?

LH: The implications of the lawsuit are profound. The suit challenges the right of the President to initiate Stop Loss in the absence of a Congressional declaration of war. Since all of our recent wars have been fought as a result of Presidential fiat, and none has been fought as a result of a Congressional Declaration, this is an important point.

Secondly, the lawsuit alleges that the recruiters are lying to those signing up for the military by pretending that they are only serving for a limited period of time, as set forth in the enlistment contract. They don't point out the fine print that suggests that under certain circumstances (national emergency, etc.) the president can unilaterally extend their terms of service. Thus, we argue, they have been virtually tricked into signing on a dotted line, with no real knowledge of what rights they have given up.

Thirdly, the suit argues that the President can't merely apply Stop Loss to any war he feels like fighting, but can only do so in the case of national emergency, or threat to national security. Of the 19 individuals responsible for 9/11, 15 were Saudis, and none were Iraqis. There were no weapons of mass destruction in Iraq, and no threat whatsoever to this country from the Iraqi people. More importantly, once we had deposed Hussein, and set up our own puppet government, there was certainly no threat to our national security from that country. Therefore, what possible excuse could the President have to execute Stop Loss orders on GIs fighting in Iraq? Since the foundational basis for Stop Loss orders didn't exist, the President could not simply conjure them up because he felt like it.

The lawsuit also has some technical constitutional challenges based upon executive power and the unlawful delegation of authority, but I'll leave those esoteric arguments for those who want to sift through the pleadings.

SG: It seems you and fellow attorneys in the Guild see this as part of a larger strategy against the deepening militarization of US foreign policy. If so, how does the Stop Loss suit fit in with the other dimensions of that strategy?

LH: There is no question but that Stop Loss is just one of many abuses being imposed upon the American people, and the people of the world. The Pentagon reports that the U.S. owns or rents military bases in 130 countries and that there are more than 6,000 military installations in the United States alone. (This is a gross underestimate of U.S. bases overseas because it fails to include installations in such places as Kosovo, Bosnia, Iraq and Afghanistan, and secret installations in Israel, Australia and England, among others.) In short, we have taken upon ourselves the mantle of empire. It is up to the American people to elect someone who will at least give lip service to principles of international law and the protection of human rights at home and abroad.

In the meantime, challenges such as our lawsuit against Stop Loss; defending GIs who speak out against the murder of civilians or prisoners of war; and international efforts to find peaceful solutions to the world's problems, are all goals pursued by progressive organizations. The warlike stance of our government is a reflection of its control by corporate interests who benefit (i.e. profit) from our seizure of foreign lands and assets worldwide. Very few Americans at the lower end of the economic spectrum actually benefit from the riches and wealth we steal throughout the world, yet the Bush-controlled media has persuaded significant numbers of Americans that these wars are in their interest. The deceptions and fear campaigns perpetrated by this government are so transparent that many Americans are left speechless and frozen. It's crucial that at a time like this people of integrity and heart step forward to fight power with truth.

SG: You referred earlier to Stop Loss as a backdoor draft. Do you think either the Bush administration or the Kerry group will resume direct conscription? Why or why not?

LH: The U.S. can't continue to act as the world's police department without conscripting more bodies. Where are they going to find their cannon fodder - from prisons? From domestic police departments? You know that the George Bushes and Dick Cheneys of the world will never set foot in a battle zone. It will be the honest, sincere, young working class and minority youth who will face the enemies of our empire on battlefields abroad.

Rumsfeld's theories about the RMA (Revolution in Military Affairs) [are] a gross miscalculation. How can retired General Tommy Franks possibly answer, as he did in an interview on national television about his book, American Soldier, when asked why the U.S. military wasn't prepared for a guerilla resistance and war in Iraq, "[We] didn't know what was going to happen"? Having an overall plan is the cornerstone of all military strategy since Sun Tzu wrote about its importance in the Art of War over 2000 years ago.

Rumsfeld's "smart" bombs and missiles have turned out to be no smarter than the fools who built them (80% of the "smart" bombs dropped on Baghdad missed their targets). His "shock and awe" tactics were about as effective at cowering the Iraqi people into submission as Nixon's "Vietnamization" theory was at defeating Ho Chi Minh. And, the theoretical savings in tax dollars to the American people by fighting this highly mobile and technological netwar has resulted in the greatest tax deficit ever facing the American people.

As those who've served in the military know, especially if they did so during wartime, you can't control another country while you are hiding in the basement of the White House. Likewise, the U.S. will not be able to subjugate 25 million Iraqis and prevent them from realizing their own sovereignty and dignity with 160,000 troops. That is the same ratio of citizens to police in New York City.

The current establishment in Washington doesn't yet seem to understand the desirability of joining the world's nations in seeking mutually acceptable solutions to conflict, and instead see themselves as messengers of God in a crusade to obtain everybody else's national resources. The outcome of this aggressive policy is obvious if Bush wants to "win" this war. Since the U.S. cannot win a guerilla war by saturation bombing or an unacceptable full-fledged nuclear war, more American troops will be required.

SG: Has the National Lawyers Guild Military Law Task Force become involved in other issues related to recruitment and retention in the military? Specifically, I'm thinking about access afforded military recruiters to student contact information in any school receiving monies under the Elementary and Secondary Education Act of 1965 (ESEA).

LH: The MLTF and other committees of the NLG have been working for years with other groups and organizations trying to limit the Pentagon's impact upon our lives and educational systems. The COMD, AFSC, CCCO, CCW and a host of other groups have consistently opposed the military's attempts to militarize civilian institutions and educational facilities. The Solomon Amendments and current threats to withhold federal funding from institutions that don't cooperate with military recruiters are just two examples of coercive tactics undertaken by the government to persuade young, poor, and predominantly disadvantaged youth to enter "voluntarily" into the military. By destroying the economy and de-funding educational institutions, the government virtually assures itself that many young people will have few if any alternatives to military service, if they want to have a decent income and livelihood. We all have to work together to turn this "poverty draft" around, by ensuring meaningful jobs and opportunities to those graduating from our high schools.

SG: How do you anticipate the Stop Loss suit will unfold? What are the steps we can expect, what are the big outstanding questions, what are the potential show-stoppers, and what do the judges look like that are likely to hear this?

LH: The suit is clearly not going to end in the lower courts. The government has been using and abusing Stop Loss for a long time, and until some principled court steps up and insists upon constitutional limitations for its implementation, these problems will continue to exist. This case is just the first shot in what we anticipate to be similar challenges throughout the nation. So many civilian families have been "militarized" by this policy that there are literally thousands who are ready to step up and speak out against it. If our suit doesn't resolve the question favorably, it will be up to the next plaintiffs to find a more creative and effective means of opposing this abuse. One thing is certain, though, and that is that we will eventually strip the emperor of his unilateral powers, and steer this nation into the sort of democracy we deserve and expect.


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