The ‘Stop Loss’ Scam

by , December 09, 2004

"I believe I served my country honorably," says Specialist E-4 David W. Qualls:

"Even though I did not expect to be rotated to Iraq, I did my time and served to the best of my ability. And I was proud to serve. But the Army made an agreement with me and I expected them to honor it. Iraq is a very dangerous place and I have a family to support. I did what I said I would; it’s only fair that the Army do the same."

Qualls and seven unidentified plaintiffs have filed a class action suit: they are suing the U.S. government for breach of contract. The target of their ire is the Pentagon’s "stop loss" edict that permits the military to keep them far beyond the stretch they signed up for – in effect, indefinitely.

Involuntary servitude was supposedly abolished with the thirteenth amendment: will we need another one that covers members of our supposedly volunteer military? Apparently so.

The legal basis of the "stop loss" scam is contained in an executive order issued by George W. Bush invoking "the authority vested in me as president by the Constitution" – yes, but of what country? Venezuela?

Surely he cannot mean the U.S. Constitution, which nowhere gives the president the authority to declare a national emergency, never mind unilaterally declare specific emergency measures without the consent of the people’s representatives. These brazen blasphemers invoke the Constitution, even as they violate it. But the lies don’t end there.

The executive order also refers to the president’s authority according to

"The laws of the United States of America, including the National Emergencies Act (50 U.S.C. 1601 et seq.) and section 301 of title 3, United States Code, and in furtherance of the proclamation of September 14, 2001, Declaration of National Emergency by Reason of Certain Terrorist Attacks, which declared a national emergency by reason of the terrorist attacks on the World Trade Center, New York, New York, and the Pentagon, and the continuing and immediate threat of further attacks on the United States."

U.S. law, however, does not, give the president a blank check when it comes to declaring "national emergencies." As a check on presidential power, the U.S. code provides that:

"Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated."

If such a momentous act as the declaration of a national emergency has been passed by Congress – twice a year since 2001 – then certainly we would have heard about it. The news media, ever-vigilant for new causes of panic (especially during the holiday season) would surely have trumpeted the news. But we haven’t heard a word. What’s up with that?

The legal mystery is not clarified by consulting Title 3, section 301 of the U.S. Code, which simply allows the president to delegate his duties – but not to expand his powers beyond those granted by the Constitution, or the law of the land.

While Specialist Qualls fully supports the Iraq war, and argues simply that he did his duty, and now it’s time to move on, this class-action suit brought by the Center for Constitutional Rights strikes at the very heart of the president’s rationale for the conquest and occupation of Iraq. The argument of the War Party has been, from the beginning, that Iraq posed a direct threat to the United States – that the war was and still is the central front in a more generalized "war on terrorism." This administration labored mightily to convince itself, and then the rest of the country, that Saddam Hussein was somehow connected to the 9/11 attacks – but only Laurie Mylroie believes that, now, along with a few die-hard delusional neocons over at the Weekly Standard.

If this administration is concerned about the imminence of another terrorist attack, similar to the events of 9/11/01, then why doesn’t our commander-in-chief bring U.S. troops home from Iraq to guard our porous borders? There have been several cases in which suspicious individuals with possible links to al-Qaeda-affiliated groups have attempted to cross into the U.S. from Mexico; and Canada, not exactly friendly territory these days, has notoriously lax immigration laws. In short: forget Fallujah. There is more danger of another 9/11 emanating from south of the Rio Grande and north of Niagara Falls, than there ever will be in the Sunni triangle.

In terms of Bush’s post-9/11 declaration, and according to the law, the president’s authority to call up the military reserves under the colors of a "national emergency" is limited in scope and duration – unless, that is, the administration follows its typical post-9/11 pattern of arguing that the new doctrine of presidential supremacy is derived from Dubya’s role as supreme commander of the armed forces.

According to our putative Attorney General, Alberto Gonzales, Bush is empowered to violate laws against torture and immunize his underlings from prosecution for war crimes on account of the military aspect of the presidential persona, which comes into special prominence in wartime. Having long since wrested away from Congress the power to make war, American presidents since Truman have used their "emergency" wartime powers to slowly build up the grand legal edifice of an imperial presidency. Until, today, we have the towering achievement of the Bush II White House – a political theory and self-conception explicitly rooted in the principle of militarism.

The CCR suit is an obstacle in the path of this Trojan horse as it barges through the gates, trampling the Constitution and the rights of those pledged to fight – and die – for our swiftly vanishing republic. It is a direct challenge not only to the imperial presidency, but to the entire rationale for this war: that we’re fighting "the enemy" over in Iraq so that we don’t have to fight them over here. But how does extending Specialist Quall’s tour of duty beyond what he contracted for, and sending him over to Iraq, defend the country from another 9/11? The answer is: it doesn’t.

Leave it to a foreigner, and this one hardly a constitutionalist, to point out the obvious. Asked by CNN’s Wolf Blitzer whether the world was safer, or more dangerous, after the invasion of Iraq, General Pervez Musharraf of Pakistan, our most steadfast (and effective) ally in the Middle East, replied:

"’I think it’s less safe.’ …Asked whether he considered the invasion a mistake, the Pakistani leader said: ‘With hindsight, yes. We have landed ourselves in more trouble, yes.’"

While warning against an immediate withdrawal, Musharraf declared that the U.S. should accelerate its "exit strategy," step up training of the nascent Iraqi military and police forces, and let other nations – including Pakistan – bear some of the burden. With an elected government in place after January, the creation of an Iraqi security force capable of maintaining order could be "outsourced," Musharraf suggested, to Pakistan, which might “like to look into how much we can contribute." With 80 percent of Pakistan’s predominantly Muslim population belonging to the Sunni branch of Islam, their co-religionists in the Sunni triangle may have reason to feel less vulnerable – and more invested in the political process. Sunni clerics would be very reluctant to incite their congregations against Pakistani peacekeepers.

The U.S. ought to take Musharraf up on his offer: we could be out of there in less than a year. But Secretary of Defense Donald Rumsfeld doesn’t see it that way: he says we won’t get out until 2008, at the earliest – by which time we should be marching on Tehran. Or maybe Moscow.

The great problem for this administration is that four more years of this war against a burgeoning insurgency can only succeed in spreading the conflict beyond the borders of Iraq. The unspoken implication of Rumsfeld’s prognosis is escalation into a regional war, pulling in Syria, Iran, Saudi Arabia, and eventually inciting an Islamist insurrection throughout the Middle East.

Certainly Musharraf could not survive such a powerful upsurge. Nuclear-armed Pakistan could even be the first to fall; he speaks out of a sense of self-preservation, but perhaps for that very reason his view is clear-eyed and realistic.

The election of a Shi’ite-dominated government, conditional on the victory of an official slate of candidates approved by the Grand Ayatollah Sistani, is a dagger pointed at the heart of the Sunni community in Iraq, or at least that is how they view the matter. With elections slated to occur in a month, the insurgency is fast turning into an incipient civil war.

As the guerrilla conflict morphs into a battle between minority Sunnis and the Shi’ite majority, a single spark could set off a regional conflagration, a religious jihad that could make the Thirty Years War between Catholics and Protestants in 17th century Europe seem like a Sunday School picnic.

U.S. troops don’t have to be caught in the crossfire of a Sunni-Shi’ite conflict: we could allow the Pakistanis to intercede and give the minority Sunnis the protection guaranteed to them under the Geneva Conventions.

Why tear thousands of patriotic Americans away from their families, their careers, their very lives, and fraudulently insist on a fake "national emergency" that never had anything to do with Iraq? Let the Pakistani National Guard keep order in Fallujah. That way we can stop the "stop loss" fraud, and avoid catastrophe in the Middle East all at the same time.

Read more by Justin Raimondo