LEE HOCHBERG: With nowhere else to turn, Sgt. Emiliano Santiago was in church on the Thursday night before his deployment, praying for a miracle.
Two days earlier, on Dec. 28, Santiago had challenged in court the U.S. Army's orders that he be sent to Afghanistan. He was confounded by the orders. He had already completed in June the eight years he promised to serve in the Oregon National Guard. But the Army told him in October it would reactivate him under its stop-loss rule, sending him for the first time overseas, away from his wife and family. He sued Secretary of Defense Donald Rumsfeld, claiming he wasn't eligible to be sent, but a federal judge in Portland ruled with the government.
LEE HOCHBERG: I'm going to Oklahoma for training and then Afghanistan, he told the church. The words brought tears from his mother and father, and prayers from the tiny rural Oregon congregation.
Santiago is one of more than a dozen U.S. soldiers challenging in court the way the administration is using the stop-loss rule. Under federal law, the Pentagon can involuntarily extend the deployment of any reserve officer who's on active duty, if the president believes it's essential to national security.
PRESIDENT BUSH: Today, we're talking about the mobilization of Reserve and Guard troops.
LEE HOCHBERG: President Bush opened the way to stop-loss when he declared a national emergency after the 2001 terrorist attacks. In 2002, the Army implemented stop-loss, extending the hitches of National Guards in Afghanistan and then Iraq. It says more than 42,000 active duty, reserve, and National Guard soldiers have been forced to serve beyond the end of their contracts.
The policy has been controversial. Republican Sen. John McCain has called it a "backdoor draft" as have many Democrats. "Stop-loss" had been used before during the first Gulf War to rapidly build troop strength, but it never has been utilized for an extended occupation.
Some military families have said it places an unfair burden of sacrifice on volunteer soldiers, especially as several soldiers who'd already served their required time have been killed while being extended.
Santiago, an electrical engineer and a member of the Pendleton, Oregon, National Guard unit, says he's proud to have served his eight years, but his service is complete.
SGT. EMILIANO SANTIAGO: I did my contract, you know. I did what I was supposed to do, I did my obligation, and I wanted to get out.
LEE HOCHBERG: He signed with the Guard as a junior in high school at age 18, lured by the uniform of the recruiter. Eight years later, his mother angrily remembers the promise of that recruiter. Santiago's wife, Maria, translated for her.
MARIA SANTIAGO: So this guy, it was a Hispanic sergeant or whatever. He told her that once he was done with his contract, he will be out.
STEVEN GOLDBERG, Santiago's Lawyer: A contract is not a contract if you sign it with the military.
LEE HOCHBERG: Santiago's lawyer, Steven Goldberg of Portland, has appealed Santiago's case to the Ninth Circuit Court in San Francisco. He argues the stop-loss statute doesn't apply to Santiago. It allows a soldier to be extended only while on active duty, not after he's completed an eight-year contract.
STEVEN GOLDBERG: There's no way you can read his contract to not say that it ends after eight years, and if he's not ordered to active duty, the contract is over. He should be allowed to leave.
LEE HOCHBERG: In court, Army lawyers argued national security needs, the need to keep fighting units together, trump the terms of individual enlistment contracts. If a unit needs to be extended, every member is then extended.
Army personnel director Brig. Gen. Sean Byrne:
BRIG. GEN. SEAN BYRNE: We're in a war on terror right now, and our goal is to make sure that we have the most combat ready, effective units that we have. And the way we do that is we train as a unit; we deploy as a unit. We want to keep them together throughout their entire deployment.
LEE HOCHBERG: Lawyer Goldberg doubts jobs like Santiago's, refueling cargo helicopters, are so specialized that new personnel can't be rotated in. He calls the cohesion argument a smokescreen for the Army's real goal: To cover troop shortages.
STEVEN GOLDBERG: What the military needed to do was to think out -- How are we going to get enough people in the military to pursue it? They did not. And for them now to come in and to simply trample on the legal rights and expectations of people who entered into contracts in good faith with the military and served out those contracts completely, is simply unfair, we feel is inconsistent with the law.
LEE HOCHBERG: Eight other U.S. soldiers stop-lossed in Iraq filed suit against the U.S. government on Dec. 6. They argue that the national emergency used to justify stop-loss is over.
PRESIDENT GEORGE W. BUSH: America is grateful for a job well done. (Cheers and applause)
LEE HOCHBERG: They note the president declared major combat operations in Iraq ended almost two years ago. In Afghanistan, elections were held last year. And Mr. Bush declared, in a 2002 executive order on the Taliban: "…given the success of the military campaign in Afghanistan, I hereby…terminate the national emergency…"
Washington attorney Jim Klimaski represents the eight soldiers.
JIM KLIMASKI: Stop-loss requires a declaration of a national emergency or war. There is no war declared against Afghanistan. There is no war declared against Iraq.
LEE HOCHBERG: The Army says the need for stop-loss continues.
BRIG. GEN. SEAN BYRNE: It does inconvenience a certain portion of the population, but we are a nation at war.
LEE HOCHBERG: Three of the soldiers claim they weren't just inconvenienced, but defrauded.
SPC. DAVID QUALLS: What this boils down to, in my opinion, is a question of fairness.
LEE HOCHBERG: On a recent leave from Taji, Iraq, near Baghdad, 35-year-old Spec. David Qualls said he enlisted with the Arkansas Guard in 2003. It was supposed to be a one-year trial through a program called Try One. The Guard promotes Try One one on its Web site.
ADVERTISEMENT ON WEB SITE: Veterans who have served in any branch of the military have additional options available to them, including a try one program. This allows a veteran to serve for only one year on a trial basis before committing to a full enlistment.
JIM KLIMASKI: That's what the contract says, real clear. Try it for one year, see if you like the Reserves or the National Guard, it fits with your schedule. And if you don't like at the end of one year, you are gone. However, all of those people who signed up under that program discovered that it was a fraud.
SPC. DAVID QUALLS: I tried my one, and you know, I completed and served that one year. Actually I've served five months past my one-year obligation, and I feel that it's time to let me go back to my life.
LEE HOCHBERG: The Army says at the time of Qualls' enlistment, it didn't know his unit was going to be extended, but it concedes the name Try One may be misleading.
BRIG. GEN. SEAN BYRNE: Well, I could say that is a possibility. I am not the marketer, but it maybe have to be re-looked.
LEE HOCHBERG: Under his stop-loss order, Qualls has been sent back to Iraq. The Army recently offered him a $15,000 bonus to reenlist. He says, since he was going to have to serve more time anyway and since his deployment has left him in debt, he took the money and committed to six more years.
His lawyer says he'll nonetheless keep pressing all eight court challenges hoping to void all of the original enlistments as fraudulent. Four other soldiers have been released from stop-loss duty, for administrative reasons after they sued. Some military watchers say examination of the Army's use of stop-loss is overdue, but few are expecting a broad court ruling that restricts the Army.
EUGENE FIDELL: Judges historically have said, "Look, it's not for us to run the Army."
LEE HOCHBERG: Eugene Fidell founded the Washington-based National Institute of Military Justice.
EUGENE FIDELL: You're never going to get federal judges to say, "Look there really isn't an emergency. That the president's determination that we really need these people in the interests of national security is unfounded or misguided." I just cannot see federal judges doing that.
LEE HOCHBERG: Lawyers for the soldiers, though, say with more angry soldiers considering legal action, change could come soon.
JIM KLIMASKI: Eventually the matter will build up to the point where the courts will recognize their duty and the law changes.
LEE HOCHBERG: Santiago's appeal in the Ninth Circuit Court has been filed. He's finishing training in Oklahoma, hoping a positive court ruling scuttles his scheduled deployment to Afghanistan at the beginning of March.