Thursday, January 19, 2006

Doe v. Rumsfeld (9th Cir. - Jan. 12, 2006)

A dude ("John Doe") enlists in the National Guard under its "Try One" program, in which the Guard says that you can sign up for a year and, if you don't like it, get out. But the fine print of the enlistment contract says that a declaration of national emergency could, if issued, potentially extend the term of enlistment. This is very fine print, mind you, and utterly contradicts the central "Try One" theme to which Doe thought he was signing up.

So Doe's fine with Trying One, but -- as you might expect -- is not too psyched when he's told that he's being shipped off to Iraq. So he says: "Thanks for the Try. I'm out of here." No you're not, responds the Guard. We're increasing your enlistment for another 11 months. "What about 'Try One'?", Doe asks? "Well, in your case, 'One' is 'Two'. Enjoy Iraq."

I previously commented on this policy when the Ninth Circuit issued Santiago -- which upheld this program against contract claims -- back in May 2005. Now, in this opinion, Judge Trott upholds this policy of -- well, just to get people riled up, let's call it "involuntary servitude" -- against various statutory and constitutional claims as well. (The panel was Judges Trott, Wallace, and Rymer. Just think how depressed Doe was when he learned the composition of the panel the week before oral argument. Amazing that counsel even bothered to show up.)

What's particularly interesting about this one is when you recognize that Doe signed up for the Guard in May 2003; e.g., well after September 11. In other words, the Guard was actively promoting its "Try One" program even after Bush declared a national emergency (on September 14,2001) and enacted the "Stop Loss" program in November 2002 that involuntarily extended everyone committment. To put it another way, the whole time that the Guard was promoting the "Try One" program, they knew that the "One" was really "Forever". Which doesn't seem very cool, does it? I guess they thought that the more accurate title -- "Join the Guard for a Year. Did I say a Year? Well, I actually mean whenever we feel like letting you go. Or when you die in Iraq. Whichever comes first." -- wasn't exactly the message, albeit accurate, that was likely to get many people to sign up. So let's go with the deceptive one instead.

I'm sure that stuff like this definitely makes people trust military recruiters and, for this reason, is in the long term best interest of the military.