An Army National Guardsman is challenging the service’s stop loss program, which keeps thousands soldiers on active duty beyond their obligated period of service.

The lawsuit argues that the Bush administration hasn’t shown a connection between occupying Iraq and addressing a terrorism threat against the United States.

That connection is critical, say lawyers for California guardsman “John Doe,” because current stop loss authority is based on a Sept. 14, 2001, executive order authorizing a reserve call-up to respond to “the continuing and immediate threat of further terrorist attacks on the United States.”

The government hasn’t shown a link between “the occupation in Iraq and preventing future terrorists attacks on the United States,” says Michael Sorgen, one of two San Francisco-based lawyers for the Guardsman who is unidentified in the filing to protect his and his family’s privacy.

The stop-loss order also is invalid, the lawsuit contends, because it violates the soldier’s constitutional due process protection against arbitrary personal restraint, violates terms of his enlistment contract, unlawfully extends his enlistment without proof of need resulting from war or national emergency, and is without proper congressional authorization.

The soldier filing the lawsuit served nine years on active duty in the Marine Corps and Army and participated in the invasion of Iraq. He was kept on active duty in Iraq for several months beyond his Army enlistment contract under his first stop-loss order.

This past December, Doe was discharge from the regular Army but persuaded to join the California National Guard under a Try One program, which encourages soldiers to try a year in the National Guard before committing to a longer contract.

Doe was seven months into his Try One contract when his infantry unit was notified that it had come under a new stop-loss order. The unit deployed in mid-August for six months’ training at Fort Bliss in Texas before deployment to Iraq. Doe stayed behind to pursue his legal challenge.

The decorated veteran, married with two children, decided to file his lawsuit to avoid another tour in Iraq and involuntary extension of his reserve enlistment by at least two years.

“We actually think we can win this case,” says Sorgen.

He says the key issue in Doe v. Rumsfeld, filed with the U.S. district court for the Northern District of California, is whether current stop-loss orders go beyond the executive order’s authority so that, to be lawful now, requires a congressional declaration of war or national emergency.

“There really is a serious question about soldiers being deprived of their liberties without a proper foundation,” says Joshua Sondheimer, a second attorney for the plaintiff.

Since Sept. 11, 2001, the Army has issued stop-loss orders of various types, aimed first at specific skills and later at all soldiers in units deployed or deploying in support Operation Iraqi Freedom and, in Afghanistan, Operation Enduring Freedom.

Army officials say stop loss has two purposes: to respond effectively to mobilization scenarios and to keep on active duty personnel deemed essential to readiness. Stop-loss authority will end when the national emergency ends, or when all reserve component members serving under presidential call-up authority are released from active duty, officials said.

The goal is to avoid personnel losses from separation, retirement or reassignment that can impact training or unit cohesion. The Army says it has ``judiciously used” stop loss.

Service statistics show it has affected more than 81,000 soldiers since Sept. 11, 2001, extending their time in service from a day to more than a year. About 35,000 of those affected so far have been active duty members and 46,000 Army Reserve or National Guard.

Army officials say, so far, its stop-loss orders since Sept. 11 have not affected service retention rates.

“America is at war, and, thankfully, we have soldiers—patriots and volunteers—who…understood when they signed up that they might be called on to fight for their nation,” say Army officials in a statement when asked to respond to criticism that stop loss amounts to a back-door draft.

“It is a management tool that’s helping us to maintain combat effectiveness and readiness: we hold the team together. Stop loss is not about increasing end strength; it is about training, deploying and redeploying cohesive teams. Our soldiers, and America, deserve nothing less.”

Doe’s attorneys say they deserve something more.

“If the war on terror justifies people under stop loss, when does the war on terror end,” asks Sondheimer. `When do these people get to get out?”

The Navy, Air Force, and Marine Corps have used some stop-loss authority since Sept. 11, 2001, but have suspended those programs.

A local U.S. attorney is expected to respond to Guardsman’s lawsuit this fall, perhaps initially with a motion to dismiss.

Tom Philpott is a freelance writer and syndicated news columnist. His column, "Military Update," appears in 48 daily newspapers throughout the United States and overseas. His book, Glory Denied: The Saga of Jim Thompson, America's Longest-Held POW (W.W. Norton & Co., 2001), now is available in paperback (Plume, 2002).