Stop Loss=You Lost

So much for one weekend a month, two weeks a year:

Emiliano Santiago was a high-school junior in Stanfield, Ore., when a National Guard recruiter came to his school. The recruiter impressed Santiago, the child of farm workers and a Mexican immigrant who had been in this country for five years. "I was really excited to see the uniform," says Santiago, now 26. "I wanted to wear the same uniform, to be a part of that."

From a series of meetings with the recruiter, Santiago understood that serving in the National Guard was "a little off-side thing that you could do," almost guaranteed not to result in deployment. "The only reason the National Guard would get deployed is if there was, like, a World War III," Santiago remembers the recruiter telling him. Eighteen years old, he signed up for eight years and became a helicopter refueler for a unit based in Pendleton, Ore. He also got married, moved to Pasco, Wash., and became an electronics technician at a laboratory run by Battelle Memorial Institute for the U.S. Department of Energy.

On June 11, 2004, two weeks before Santiago's National Guard contract was due to expire, his platoon sergeant informed him that he was subject to the Pentagon's controversial "stop-loss" policy and would not be allowed to leave the Guard. Last October, months after his contract was supposed to have ended, the Guard ordered Santiago to report to Fort Sill, Okla., for training in preparation for deployment to Afghanistan. Santiago balked. Although he reported to Fort Sill as ordered and is there still, he's fighting the government in court...

Making it all the stranger is that the Army presented him with a new contract that extended his service until 2031. Army spokesperson Hart says the date was arbitrary, meant to allow for "wiggle room." Says Santiago, looking at another 27 years in the Army over and above the eight he signed up for: "It's crazy."

His legal case revolves to a large extent around the contract he signed with the Guard. While Santiago says the recruiter never raised the possibility that his contract might be involuntarily extended, it was in the contract's fine print. The contract, however, enumerated "a limited number of specific circumstances," according to Santiago's legal brief. One was a "time of war or national emergency declared by Congress." The president has declared a national emergency, but Congress has not.

It's a somewhat technical point but not an insignificant one, contends David Ettinger, one of Santiago's lawyers. He notes that a formal congressional declaration of a national emergency is a rare event.

The government nonetheless argues that an enlistment contract is not the be-all and end-all, as if it were just any contract. "Enlistment in the armed forces does not constitute merely a bargain between two parties, but effects a change of status by which 'the citizen becomes a soldier,'" reads its brief. And, the Army notes, soldiers are governed by a number of federal laws. One such law says that "during any period members of a reserve component are serving on active duty . . . the President may suspend any provision of law relating to promotion, retirement, or separation applicable to any member of the armed forces. . . . "

Santiago's lawyers claim the language of the law means that the Army can only forcibly extend a soldier's contract if he or she is already serving on active duty, which was not the case with Santiago. The government counters that it is empowered to exercise its stop-loss policy as long as any members of the National Guard are serving on active duty.

A federal District Court judge in Oregon who heard the case, Owen Panner, agreed and ruled in favor of the government. Now it's up to the 9th Circuit.

Three weeks ago, Santiago's unit left for Afghanistan without him. Because of the case, the Army moved his date of deployment to two days after the hearing. Since the court rarely makes decisions that quickly, his lawyers are fighting that date by seeking a preliminary injunction.

Santiago says fellow soldiers have not given him grief about his refusal to go with them. In fact, he says, "everyone agrees with me." He provides them with regular updates about his case.