SAN FRANCISCO - A federal appeals court Monday refused to block a Sacramento-area soldier's deployment to Iraq while he pursues a case against the military's use of laws allowing it to extend enlistments during wars or national emergencies.
The suit is one of at least four working their way through the nation's courts, challenging the "stop loss" program that critics call a back-door draft. Approximately 200,000 members of the armed forces could be affected, including 40,000 headed for Iraq.
The soldier, identified in court papers as John Doe to prevent retaliation, contends the extensions are illegal because Congress hasn't declared war and the military action in Iraq isn't a U.S. emergency. The government argues the program is justified by the post-Sept. 11, 2001, national emergency.
This month U.S. District Judge Frank C. Damrell Jr. in Sacramento refused to issue a preliminary injunction that would have kept the soldier in the country while his case is decided. The soldier filed an emergency appeal.
But in Monday's brief decision a three-judge panel of the 9th U.S. Circuit Court of Appeals said Damrell didn't abuse his discretion. The appellate judges said the soldier could pursue his case from Iraq or, if the 9th Circuit ordered it later, he could be brought back from Iraq.
The soldier signed up to serve until April 30 with the California National Guard. His company recently was sent to Fort Lewis in Washington state for training before deployment to Iraq. Its mobilization order and a second order directed personally to the soldier both extended his service by at least 11 months.
Court papers describe him as a married father of two, a decorated combat veteran who enlisted with the Guard for two one-year terms.
© Sacramento Bee By Claire Cooper Tuesday, November 23, 2004
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