Leadership Focus
Obviously this led to unfairness and inequity for people who had been actually harmed or injured by agents or actions of the government, and so the Federal Tort Claims Act of 1946 (FTCA) was a Congressional effort to reduce the adverse impact of Sovereign Immunity. In the act, the Federal government gave its consent to be sued in certain civil tort actions in Federal court for injury, death, or loss of property caused by the negligent or wrongful act or omission of any employee of the government while acting within the scope of his office or employment under circumstances where the United States, if a private person, would be liable to the claim.
In Santiago, Bonifaz is using the FTCA to contest the Pentagon's Stop-Loss program. Under the Stop-Loss program, the military has prevented tens of thousands of soldiers from retiring or leaving the military upon completing their enlistment terms so that they may be deployed to or kept in Iraq and Afghanistan. Stop-Loss has been widely criticized as a "backdoor draft", however, such actions have become more common as the United States has needed to maintain a large presence in Iraq under the current "surge."
Santiago is a 26-year-old Oregon National Guardsman who signed up as an 18-year-old high-school junior and was scheduled to be finished with his eight-year commitment in June, 2007. Two weeks before that date, his unit was notified of "possible mobilization", and Santiago was told that he couldn't be discharged—in fact, he was presented with a new contract with a discharge date of 2031, a potential lifetime of involuntary servitude. In October, his unit received notification of mobilization and began training for a mission to Afghanistan.
Santiago is joined
by a dozen other soldiers who have each served out their
full contracts but are being forced to extend their service.
One of these is Specialist Qualls, whose military training
is in communications, and who enlisted in hopes of becoming
a commissioned officer. According to Quall's contract, his term
of service should have been one year, and he signed it with
that expectation. Indeed, the staff sergeant who recruited
him stated that Specialist Qualls would serve for 12 months;
nothing was mentioned about “stop loss” or about a possible
rotation in Iraq.
Nonetheless, Specialist Qualls quickly found himself in Taji,
Iraq, where he has been stationed ever since. Despite the
fact that he lacked any “military occupation specialty"
(MOS), Qualls found himself performing duties including sand
bag detail and guard duty. Located 15 miles north of
Baghdad, Camp Taji has sustained numerous suicide bombing
attacks as well as conventional attacks from mortars and
rockets. It is the destination to which 18 members of a
South Carolina-based company refused to drive in October,
claiming that to do so would be suicide.
“I believe I served my country honorably,” said
Specialist Qualls, who describes himself as a supporter of
the war. “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 alleges that his family has suffered greatly from his absence. Since
his deployment to Iraq, his take home pay has been reduced
by approximately 80 percent. His wife cannot make payments
on their home or family vehicles. Both his wife and daughter
have experienced stress since his extended service in Iraq
and are taking medication as a result. Mrs. Qualls
unsuccessfully applied for a hardship discharge for her
husband.
Bonifaz' petition on behalf of Santiago, Qualls and the other soldiers asserts that the Stop-Loss program is unfair, unconstitutional, unauthorized by law, and in breach of the military's standard enlistment contract. Bonifaz argues that involuntary extensions violate soldiers' due process rights and that without the backing of Congress, President Bush (with Rumsfeld acting as his agent) does not have the authority to unilaterally abrogate the terms of a soldier's contract. Bonifaz also contends that if in fact the government is guilty of breach of contract, then it must also be held liable for personal injuries suffered in combat due to negligence and fraud under the FTCA. To add further drama to the hearing, Bonifaz also wanted an emergency injunction because, barring court action, Santiago was scheduled to ship out to Afghanistan two days before he could testify in court on his own behalf.
Bonifaz' attempts to seek remedy for personal injury incident to military service is complicated by Feres v. US (1950). In Feres, Lt. Rudolph Feres died in a barracks fire, and his widow sought to recover damages from the government. She was denied in a landmark case in which the Supreme Court concluded that, while the FTCA contains no express provision barring claims of military personnel during peacetime, the government was immune from lawsuits by soldiers injured in an "activity incident to service" while on active duty in time of war.
In response, Bonifaz brings up a law enacted by Congress in 1951 which broadly states that “notwithstanding the provisions of this or any other Act, any person voluntarily enlisting shall not have his enlistment extended without his consent until after a declaration of war or national emergency by the Congress."
Bonifaz also brings up Pierce v US (1987) in which the Supreme Court affirmed a ruling that the Feres doctrine does not bar a member of the armed forces from filing a lawsuit against the United States for injuries suffered due to the negligence of a branch of the armed forces in peacetime even where the member of the armed forces is on active duty. Under Pierce, injured service personnel may sue the United States for injuries arising from the negligent conduct of other military personnel based on the duty status of the service personnel, the site of the injury, and the activity the service personnel were engaged in at the time of the injury provided the soldier has shown both a violation of a recognized Constitutional right, a federal statute, or military regulations, and exhaustion of available military remedies.
Jules Lobel, Vice-President of the Center for Constitutional Rights and co-counsel to the plaintiffs called the Army’s Stop-Loss policy “a fraud perpetrated on men and women who have sacrificed their normal lives to serve our country. Our Government has not been honest with Mr. Qualls and the other 7 plaintiffs in this action. In fact, it has fraudulently and misleadingly induced Qualls and others to join the Guard and then subjected them to a classic bait and switch operation. Neither the Courts, nor the American people should tolerate such dishonesty.
"This issue should unite people who support the war and people who oppose it, Red States and Blue States. Whatever we may think about the war, it is wrong to recruit young people to take part in it without telling them what they are getting into.”
