No. 05-35005
UNITED STATES COURT OF APPEAL
FOR THE NINTH CIRCUIT
EMILIANO SANTIAGO,
Petitioner-Appellant
v.
DONALD RUMSFELD, Secretary of Defense; LES BROWNLEE, Secretary of the United States Department of the Army (Acting); RAYMOND BYRNE, Acting Adjutant General of the Oregon National Guard; and DAVID DORAN, Captain, Detachment One, Company D, 113 Aviation Unit Commander,
Respondents-Appellees.
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On Appeal from the United States District Court
for the District of Oregon, Case No. 
CV 04-1747-PA
The Honorable OWEN. M. PANNER, Judge
BRIEF AMICUS CURIAE
In Support of Appellant Emiliano Santiago and
Reversal of the Order of the District Court
Michael S. Sorgen (State Bar No. 43107)
Joshua N. Sondheimer (State Bar No. 152000)
Law Offices of Michael S. Sorgen
240 Stockton St., 9th Floor
San Francisco, CA 94108
Telephone: (415) 956-1360
Attorneys for Amicus Curiae
TABLE OF CONTENTS
TABLE OF AUTHORITIES
IDENTITY AND INTEREST OF AMICUS
SUMMARY
ARGUMENT
I. Santiago Cannot be Kept under Federal Mobilization Orders Beyond the End of his National Guard Enlistment
II. Santiago’s Enlistment May Only be Extended Involuntarily When Congress Has Declared War or a National Emergency
III. Section 12305 is Unconstitutional Because it Authorizes Infringement of Santiago’s Liberty Without Intelligible Guidelines
CONCLUSION
TABLE OF AUTHORITIES
FEDERAL CASES
American Power & Light Co. v. Sec. & Exch. Comm’n, 329 U.S. 90 (1946)
Foucha v. Louisiana, 504 U.S. 71 (1992)
Hamdi v. Rumsfeld, 124 S.Ct. 2633 (2004)
Itek Corp. v. First Nat’l Bank of Boston, 704 F.2d 1 (1st Cir. 1983)
Korematsu v. United States, 323 U.S. 214 (1944)
Lee v. Madigan, 358 U.S. 228 (1958)
Poe v. Ullman, 367 U.S. 497 (1967)
Scaggs v. Larsen, 396 U.S. 1206 (1969)
Taylor v. United States, 711 F.2d 1199 (3d Cir. 1983)
United States v. Castillo, 34 M.J. 1160 (1992)
United States v. Robel, 389 U.S. 258 (1967)
United States v. Trident Seafoods, Corp., 92 F.3d 855 (9th Cir. 1996)
United States v. Yoshida, 526 F.2d 560 (Ct. Customs App. 1975)
Zinermon v. Burch, 494 U.S. 113 (1990)
FEDERAL STATUTES
10 U.S.C. § 506
10 U.S.C. § 10101
10 U.S. C. § 12103(a)
10 U.S.C. § 12301
10 U.S.C. § 12302
10 U.S.C. § 12304
10 U.S.C. § 12305
10 U.S.C. § 12401
10 U.S.C. § 12403
10 U.S.C. § 12406
10 U.S.C. § 12407(a)
32 U.S.C. § 302
32 U.S.C. § 303
50 App. U.S.C. § 454(d)(2)
50 App. U.S.C. § 454(d)(1)
U.S. Const., Art. I, sec. 8, cl. 12
OTHER AUTHORITIES
66 Fed. Reg. 48201 (2001)
67 Fed. Reg. 44751 (2002)
Executive Order No. 13223
Executive Order No. 13268
4 Letters and Other Writings of James Madison 491 (Philip R. Fendall, ed.) (1865)
IDENTITY AND INTEREST OF AMICUS
Amicus John Doe is a soldier in the California Army National Guard who, like Petitioner-Appellant Santiago, has been ordered under the Army's "stop loss" policy to remain in the National Guard on active duty beyond the expiration of his contractual enlistment. Doe filed an action challenging the legality of the involuntary extension of his National Guard enlistment in the United States District Court for the Eastern District of California. His case, Doe v. Rumsfeld, No. CIV-S-04-2080 FCD, is pending for decision on the merits. The Court's decision in this matter will bind that Court with respect to many of Doe's claims. Accordingly, Doe is directly and vitally interested in the outcome of this proceeding and in ensuring that this Court has considered legal arguments not raised by appellant herein that demonstrate the unlawfulness of the stop loss program.
Amicus seeks leave to file this brief pursuant to Rule 29 of the Federal Rules of Appellate Procedure.
SUMMARY OF ARGUMENT
In addition to the reasons set out by Santiago in his Opening Brief, the Army’s “backdoor draft” of soldiers who have fulfilled their service obligations contravenes several United States statutes that specifically prohibit the National Guard from keeping Guard members on active duty beyond their enlistment terms, and from involuntarily extending an enlistment absent a declaration by Congress of war or national emergency. The statute on which the Government relies, 10 U.S.C. § 12305(a), also violates Santiago’s rights to due process of law by unconstitutionally delegating to the Executive Branch authority to infringe Santiago’s liberty without guidelines or constraint. For these reasons, the District Court’s rejection of Santiago’s claims must be reversed.
ARGUMENT
I . Santiago Cannot be Kept under Federal Mobilization Orders Beyond the End of his National Guard Enlistment
In the plainest possible terms, Congress has prohibited the involuntary extension of National Guard soldiers when they have been mobilized for federal service. 10 U.S.C. § 12407(a), which specifically governs activation of the National Guard, unambiguously states that:
[N]o member of the National Guard may be kept in Federal service beyond the term of his commission or enlistment.
The effect of this provision could not be clearer. The orders mobilizing Santiago and his National Guard unit for active duty place Santiago in federal service. Pursuant to the plain language of 10 U.S.C. § 12407(a), Santiago may not be kept under those activation orders beyond the expiration of his enlistment term.
The Government has contended in amicus Doe’s case that the bar on extensions of federal service in the Guard pertains only to when the National Guard has been called into federal service under 10 U.S.C. § 12406 in its capacity as the National Guard of a state. The Government’s constrained technical argument is contrary to the plain terms of the statute and illogical.
The quoted language from section 12407(a) is stated without limitation or qualification: It prohibits “any member of the National Guard” from being kept in federal service after their contractual enlistment expires, and makes no distinction between members who have been called to federal service through a mobilization of the National Guard of a state as opposed to the National Guard of the United States.
Even members of the Guard in their capacity as members of the National Guard of the United States are not considered to be in federal service until called to active duty. See 10 U.S.C. § 12401. Thus, regardless of whether a Guard member has been called into federal service through a mobilization of the National Guard of a state or the National Guard of the United States, the relevant provision prohibits keeping such member in federal service beyond the term of his enlistment.
The Government’s narrow interpretation also makes no sense. Under the Government’s view, a member of the Guard could not be kept on active duty beyond the end of his enlistment when called to duty under 10 U.S.C. § 12406 to help defend the United States from the gravest of domestic threats, including an actual or threatened “invasion by a foreign nation,” or a “rebellion against the United States government.” 10 U.S.C. § 12406. Yet, the Guard member could be kept on duty beyond his enlistment to support the United States’ military presence in Iraq or Afghanistan, or indeed to support “any operational mission.” 10 U.S.C. § 12304. Congress cannot have intended such an illogical and unsupportable result.
Section 12407(a)’s prohibition on extending Guard enlistments for federal service also remains unaffected by the Army’s invocation of authority under 10 U.S.C. § 12305(a) to suspend laws relating to “separation” from the military. The prohibition does not relate to or even mention separation of Guard members from military service. Rather, it prohibits keeping a member of the Guard in federal service beyond the date of his or her enlistment. The provision does not address when or under what circumstances a member of the Guard is entitled to separate from the Guard.
Moreover, section 12407 was enacted in 1993, some 10 years after section 12305, and is the more specific of the two statutes. Section 12407 pertains specifically to federal activation of the National Guard, while Section 12305 relates broadly to circumstances under which certain laws relating to the separation of “any member” of the armed forces may be suspended.
Even if somehow considered a statute relating to “separation” from military service, section 12407 would control. As this Court recognized in United States v. Trident Seafoods, Corp., 92 F.3d 855, 862 (9th Cir. 1996), in cases where two statutes are inconsistent and cannot be reconciled, “the later and more specific statute usually controls the earlier and more general one; . . . Congress must be presumed to have known of its former legislation and to have passed new laws in view of the provisions of the legislation already enacted.”
II. Santiago’s Enlistment May Only be Extended Involuntarily When Congress Has Declared War or a National Emergency
In several statutory enactments, Congress has unambiguously provided that reservists and members of the National Guard may have their enlistments extended only during periods when Congress has declared war or a national emergency.
Section 12103(a) of Title 10, pertaining to “Reserve components,” provides that:
[E]nlistments as Reserves are for terms prescribed by the Secretary concerned. However, an enlistment that is in effect at the beginning of a war or of a national emergency declared by Congress, or entered into during such a war or emergency, and that would otherwise expire, continues in effect until the expiration of six months after the end of that war or emergency.
10 U.S.C. § 12103(a). This provision bars the involuntary extension of an enlistment absent a declaration of war or emergency by Congress.
Sections 302 of Title 32, pertaining to the National Guard, authorizes an involuntary extension of Santiago’s Guard service only when Congress has declared an emergency. That section provides:
Enlistments or reenlistments in the National Guard may be extended -
(1) [Voluntarily, for six months or more]
(2) by proclamation of the President, if Congress declares an emergency, until six months after termination of that emergency.
32 U.S.C. § 302.
Section 303(c) of Title 32 bars Santiago’s involuntary extension absent a Congressional declaration of war. That section provides:
In time of peace, no enlisted member may be required to serve for a period longer than that for which he enlisted in the active or inactive National Guard.
32 U.S.C. § 303(c). The phrase “In time of peace” is properly construed to mean any time when war has not been declared, or after hostilities have ceased while a declaration of war remains in effect. Lee v. Madigan, 358 U.S. 228, 233-36 (1958) (construing statute barring court-martial for murder or rape committed within the United States “in time of peace” to bar court-martial for offense committed in 1949, even though the President did not proclaim the termination of the war with Japan until April 28, 1952, the effective date of the Japanese Peace Treaty; Japan and Germany had surrendered and President Truman had declared the end of hostilities). As the Court stated in Lee, “Statutory language is construed to conform as near as may be to traditional guarantees that protect the rights of the citizen.” Id. at 235.
In parallel provisions, Congress also has barred involuntary extensions of enlistments of members of the regular Army except during periods when Congress has declared war or a national emergency. See 10 U.S.C. § 506; 50 App. U.S.C. §§ 454(c)(1), (d)(1) and (d)(2). 10 U.S.C. § 506 provides:
An enlistment in the Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Coast Guard in effect at the beginning of a war, or entered into during a war, unless sooner terminated by the President, continues in effect until six months after the termination of that war.
Congress enacted section 506 in 1967 during the Vietnam war specifically to limit the authority of the armed services to unilaterally extend enlistments to those periods in which Congress had declared war or emergency.
S. Rep. No. 931, 9th Cong., 1st Sess. 1967, reprinted in 1967 U.S.C.C.A.N. 2635, 2636; Taylor v. United States, 711 F.2d 1199, 1203 (3d Cir. 1983). Congress was responding to abuses by the Navy and Marine Corps of authority these services had at that time to involuntarily extend enlistments “in time of war or national emergency.” S. Rep. No. 931, 1967 U.S.C.C.A.N. at 2636. Neither the Navy nor Marine Corps asserted that the extensions were based on the de facto state of war at that time. Rather – apparently on the understanding that their authority to impose extensions during a “war” required a declared war – they justified the extensions on the unrelated declaration of national emergency issued by President Truman in 1950 concerning the Korean peninsula. Id.
The Army and Air Force at the time, by contrast, had authority to extend enlistments only during periods of “declared war.” Id. The Department of Defense in 1967 “urged Congress to remove” this limitation. Taylor, 711 F.2d at 1203; S. Rep. No. 931, 1967 U.S.C.C.A.N. at 2636. However, Congress clearly was concerned about the potential for mischief inherent in the Navy’s and Marine Corps’ abuses of the Korean emergency to justify extensions of service for Vietnam. Congress refused to follow the Defense Department’s request and instead “chose to restrict the authority of all the Secretaries” by extending to the Navy and Marine Corps the same “declared war” limitation that already applied to the Army and Air Force. Taylor, 711 F.2d at 1203 (emphasis added); S. Rep. No. 931, 1967 U.S.C.C.A.N. at 2652.
Federal law thus bars the involuntary extension of Santiago’s military service unless Congress has declared a war or national emergency. Congress has done neither. Hence, Santiago’s orders to active duty beyond the expiration of his enlistment are contrary to law.
The statutes barring involuntary extensions of Guard and Reserve enlistments absent a Congressional declaration of war or emergency have not been suspended under 10 U.S.C. § 12305(a). Section 12305 provides only that the President “may suspend any provision of law” relating to separation applicable to essential members of the armed forces during any period members of a reserve component are serving on active duty pursuant to 10 U.S.C. § 12302. Thus, section 12305 only provides authority to suspend laws pertaining to separation but does not, by operation of law, automatically effectuate such a suspension. It does not provide that all such laws “are suspended” when the reserves are activated. To the knowledge of amicus, neither the President, the Secretary of Defense, nor other military officials delegated authority under section 12305 have issued any order, directive, or other document suspending 10 U.S.C. § 12301(a) or 32 U.S.C. §§ 302 or 303 which law bar involuntary extensions of reserve and Guard service in the absence of a Congressional declaration of war or national emergency.
III . Section 12305 is Unconstitutional Because it Authorizes Infringement of Santiago’s Liberty Without Intelligible Guidelines
The Army’s unilateral extension of Santiago’s enlistment also must fail because the statute on which the Government relies, 10 U.S.C. § 12305, impermissibly allows the substantial infringement of Santiago’s liberty without guidelines that satisfy constitutional requirements.
Santiago’s involuntary retention in military service is a substantial infringement on his constitutionally-protected liberty. See Scaggs v. Larsen, 396 U.S. 1206, 1209 (1969) (Douglas, Circuit Justice) (holding habeas corpus available to a reservist to challenge call-up order involuntarily extending his enlistment term); Poe v. Ullman, 367 U.S. 497, 543 (1967) (liberty protected by Fourteenth Amendment includes freedom from “all substantial arbitrary impositions”). However, section 12305 purports to allow the President unbridled discretion to conscript veteran soldiers for further military service indefinitely. Congress cannot permissibly delegate its constitutional authority over the raising of armies wholly without standards in this manner.
The Constitution’s grant of power to the Congress to “raise and support Armies” is among the most fundamental features of the Constitutional framework envisioned by the Founding Fathers. U.S. Const., Art. I, sec. 8, cl. 12. The Founders would have found antithetical to the Constitution and to individual liberty any statute that would place citizens under obligation of continued military service at the whim of the Executive. As James Madison wrote in his “Political Observations”:
The Constitution expressly and exclusively vests in the Legislature the power of . . . raising armies. . . . A delegation of such powers [to the President] would have struck, not only at the fabric of our Constitution, but at the foundation of all well organized and well checked governments.
* * *
The separation of the power of raising armies from the power of commanding them, is intended to prevent the raising of armies for the sake of commanding them.
James Madison, “Political Observations,” April 20, 1795, in 4 Letters and Other Writings of James Madison 491 (Philip R. Fendall, ed.) (1865).
Even if Congress were to delegate the power to conscript soldiers for extended involuntary service, to pass Constitutional muster, such delegation must “delineate[] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.” American Power & Light Co. v. Sec. & Exch. Comm’n, 329 U.S. 90, 105 (1946). Congress must delegate with still greater specificity where the law affects individual liberties. See United States v. Robel, 389 U.S. 258, 275 (1967) (Brennan, J., concurring) (“The area of impermissible indefiniteness narrows . . . when the regulation . . . potentially affects fundamental rights.”).
As Justice Brennan wrote in Robel, “the numerous deficiencies connected with vague legislative directives . . . are far more serious when liberty and the exercise of fundamental rights are at stake.” 389 U.S. at 275. Vague legislative directives fail to ensure that an infringement on protected rights is “warranted and necessary.” Id. at 276. Thus, the need for legislative guidance “is especially acute . . . when liberty and the exercise of fundamental freedoms are involved.” Id.
Section 12305 provides no guidance and places no boundaries on the authority to impose involuntary extensions of service. Under section 12305, the authority to extend a soldier’s enlistment is triggered by the activation of reservists under 10 U.S.C. § 12301, 12302, or 12304. Yet, the President has unfettered discretion to call reservists to active duty. Under section 12302, he may do so based on any existing national emergency or by declaring one; and under section 12304, he may activate the reserves simply to support “any operational mission.” Thus, section 12305 as read by the Government allows the President or his delegates in the military to extend a soldier’s enlistment involuntarily at any time, and for any length of time and whatever purpose, whether or not related to the emergency on which the order to active duty is based. Thus, the statute provides no meaningful notice to civilians considering enlisting in the armed forces as to when they could be subjected to stop loss. “At minimum, due process requires 'some kind of notice'” before a constitutional deprivation takes place. See, e.g., Zinermon v. Burch, 494 U.S. 113, 127 (1990) (citation and omitted).
Only months ago, the Supreme Court made clear that “a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens.” Hamdi v. Rumsfeld, 124 S.Ct. 2633, 2650 (2004). Supporting its view, the Hamdi Court quoted approvingly Justice Murphy’s dissent from the now-discredited majority opinion in Korematsu v. United States, 323 U.S. 214 (1944):
“[L]ike other claims conflicting with the asserted constitutional rights of the individual, the military claim must subject itself to the judicial process of having its reasonableness determined and its conflicts with other interests reconciled.”
Hamdi, 124 S.Ct. at 2650 (citing Korematsu, 323 U.S. at 233-34). Section 12305 must be reconciled with Doe’s constitutional and statutory rights.
Congress in enacting 10 U.S.C. § 12103 and 32 U.S.C. §§ 302 and 303 acted to protect enlistees from the arbitrary infringement of their liberty. These laws ensure that enlistments may be involuntarily extended only when Congress, charged with the power of conscription under the Constitution, has determined that the circumstances warrant such a grave imposition on soldiers who have completed their voluntary enlistment terms. The statutes also appropriately limit the duration of such extensions to six months beyond the war or emergency. The district court’s rejection of Santiago’s claims must be reversed because American soldiers cannot constitutionally be required to serve involuntarily and indefinitely at the whim of the President or military authorities.
CONCLUSION
For the foregoing reasons, amicus respectfully request that the Court reverse the district court’s denial of Santiago’s claims.
Dated: February 18, 2005 Respectfully submitted,
Michael S. Sorgen
Attorney for Amicus Curiae
CERTIFICATE OF COMPLIANCE WITH TYPE-VOLUME LIMITATION [FED. R. APP. 32(a)(7)(C)]
This brief complies with the type-volume limitation of Fed. R. App. P. 32(a)(7)(B) because this brief has been prepared in a proportionally-spaced font and contains 3444 words, excluding the parts of the brief exempted by Fed. R. App. P. 32(a)(7)(B)(iii), as counted by the Corel WordPerfect 11 word processing program on which the document was created.
Dated: February 18, 2005
Michael S. Sorgen
Attorney for Amicus Curiae