Who You Gonna Call?

Stuart P. Slotnick does not look like a rebellious lawyer. Photos of him alongside prominent Republicans including Rudy Giuliani and Michael Bloomberg decorate his office on the 35th floor of One Chase Manhattan Plaza, and a World War II-era "Pledge of Allegiance" poster hangs behind his desk. He dresses in a crisp white shirt with bling-gold, lion's head cufflinks, and, as he says on a recent Friday morning, "I enjoy wearing an American flag on my lapel." Meanwhile, his father, Barry Slotnick, an attorney who works down the hall at the law firm Buchanan Ingersoll & Rooney, is known for representing mobster clients such as John Gotti and Joe Colombo. The elder Slotnick sauntered into the lobby that Friday morning with his signature alligator briefcase in tow.

Yet despite the trappings of lawyerly success and conservative politics, the Slotnicks have a radical streak: They are in the vanguard of a legal movement on behalf of soldiers and officers who resist the call of duty after they have been ordered to deploy under "stop-loss" policies. These policies cover tens of thousands of soldiers and have become increasingly controversial as troops are being called up for second and third tours of duty in Iraq. So far, says a U.S. Army spokeswoman, 34,138 soldiers on active duty have been affected by stop-loss policies since December 2003.

The Slotnicks' 2004 case on behalf of one of these soldiers, Army Captain Jay Ferriola, broke legal ground. A federal judge acknowledged jurisdiction over Ferriola's claims and held an emergency hearing. As a result, Ferriola did not have to deploy to Iraq, making him the first soldier to challenge successfully the legality of a stop-loss order. He was eventually granted an honorable discharge from the Army, and the Slotnicks (especially Stuart, who has taken the lead) have been busy ever since.

A framed July 29, 2005, New York Law Journal article on Stuart Slotnick's office wall explains why: "Battling the Pentagon Becomes a ‘Sub-specialty.'" Slotnick has filed lawsuits on behalf of five Army soldiers and officers over the past three years in federal actions against the U.S. Army. And in all five cases, the government capitulated, negotiated, and avoided trial; all of Slotnick's clients received honorable discharges. "We've sued the Army five times," he says. "And we've won five times."

Slotnick has succeeded where lawyers from progressive organizations such as the New York-based Center for Constitutional Rights and the San Francisco-based Military Law Task Force -- both of which have roots in late-1960s civil-rights activism and have also litigated on behalf of soldiers -- have not. But part of the reason for these successes is that Slotnick's goals are modest: His are victories on behalf of beleaguered military men; they do not constitute a challenge to the system as a whole. "We haven't challenged stop-loss," he explains. "That really isn't the big issue." Instead of changing the system, he and his father -- like a veteran mob lawyer, you might say -- are gaming it. Their legal argument is based on a question of individual rights and the Fifth Amendment. "The Army was denying our clients due process -- the right to be free," he explains. "Ultimately, I think the strategy was the military didn't have a legal basis for keeping [Ferriola] in. We did a writ of habeas corpus and said they weren't providing him with due process and were unlawfully exercising control of him."

Part of gaming the system here means choosing clients who have a good chance of winning. Stuart Slotnick says he accepts only cases in which soldiers have fulfilled their "military service obligation," an eight-year period of duty -- in other words, he says, cases in which "the Army is overreaching." He is less interested in soldiers who are raising messy ethical disputes over the Iraq War or who claim to be conscientious objectors.
Slotnick, a 1994 New York University School of Law graduate who says he once considered joining the Army as a Judge Advocate General lawyer, sounds anything but cynical. "Ferriola was a patriot and had served eight years," he says. "The Army said he had to come back, and it just wasn't right." Slotnick says that by helping these five individuals, he has influenced the Army's stop-loss policy. In theory, a legal strategy based on attacking the policy could do more. But the civil-rights lawyers who have used this approach have not prevailed.

On September 14, 2001, President George W. Bush declared a state of national emergency and invoked his right "to suspend certain laws relating to promotion," "involuntary retirement," and other aspects of military service. Stop-loss policies had been around for decades and been used in times of war, but Bush's speech expanded them into the more ambiguous "war on terror." Administration critics say these policies -- like the warrant-less eavesdropping program and the relaxed approach to the Geneva Conventions -- are an attempt to expand the power of the executive branch. More immediately, the critics say, the policies unfairly treat soldiers who have already done their time.

On August 1, 2004, San Francisco-based attorney Michael S. Sorgen brought the first legal action against stop-loss policies. Affiliated with the Military Law Task Force, a committee of the National Lawyers Guild, Sorgen decades ago litigated on behalf of soldiers during the Vietnam War. He describes the Iraq-related litigation as "an attack on presidential power." One client, a John Doe, had previously served and signed up again on a one-year enlistment. After Doe found out that his enlistment would be extended and that he would be sent to Iraq, he filed a lawsuit in federal court on October 1, 2004, in Sacramento against the Defense Department. Sorgen argued that the president does not have the "authority for involuntarily extending Doe's enlistment for nation building in Iraq." Doe's motion for a preliminary injunction was denied.

Other cases brought by civil-rights attorneys, including one on behalf of eight soldiers in a 2004 federal lawsuit, have also been defeated. "We understood that it was going to be difficult to win this issue in the courts," says Steve Goldberg, a member of the National Lawyers Guild who served as a counsel for an Oregon National Guardsman in a 2005 federal case (Santiago v. Rumsfeld) challenging stop-loss policies. "It was still close enough to September 11 that people believed there was a national emergency, and the courts historically have always deferred to [the] executive branch in times of national emergency. But we believed there was a strong legal strategy -- and a human element," he says.

The obstacles to these lawsuits are immense. When an individual joins the Army and signs an enlistment contract, a Defense Department document known as Form 4/1, his status changes: He is no longer a citizen; he is a soldier, and the terms of his military contract are subject to change at any time -- at least according to the Defense Department.

Sorgen, Slotnick, and other lawyers have argued that soldiers, like citizens, do in fact have rights that are protected by the Constitution. They argue because, under habeas corpus, individuals cannot be held against their will without a legitimate reason, ordering men and women to serve beyond enlistment periods violates their constitutional rights. "Habeas corpus is used to test the power of the military to keep a person in uniform. It's a classic remedy to test military custody," explains Eugene R. Fidell, president of the Washington, D.C.-based nonprofit organization National Institute of Military Justice and a partner at the Washington law firm Feldesman Tucker Leifer Fidell.

The Slotnicks make the same argument. The difference between the cases they've handled and those Sorgen has litigated seems to lie mainly in the way the lawyers have screened their clients: The Slotnicks chose to represent individuals who had completed their eight-year terms in the military; Sorgen agreed to represent soldiers who had more complex contractual arrangements with the Army.

There is another important difference: Sorgen challenges presidential power in the courtroom, but the Slotnicks have not. Neither has Fidell, who has represented "half a dozen" soldiers. "We don't have an ideological ax to grind," he explains. By fighting small cases on behalf of sympathetic clients, the Slotnicks and Fidell have forced the Army to negotiate. Although legal experts agree that the Army is almost certain to win the cases if they go to court, Army officials are not eager to do so. The court cases can make Army commanders look like bullies and make it hard to meet recruitment goals. "After a while," says Fidel, "we wound up calling the Justice Department, and cases just went away."

In January, Defense Secretary Robert M. Gates tried to stave off criticism of stop-loss by announcing that in the future the military would try to minimize the use of the policies in order to retain soldiers. But so far he has been skimpy on details. Meanwhile, at Fort Stewart, Georgia, soldiers are getting ready for 12- to 18-month deployments -- for a third time.

Fort Stewart is a sprawling, 280,000-acre military installation, and neighboring Hinesville is home to about 30,000 soldiers, officers, and civilians. Together, the fort and the town provide a testimony to the effects of stop-loss policies and a protracted war in Iraq. The communities are characterized by separation, abandonment, and "$149 divorces," as advertised on plate-glass windows of two local law firms. Dogs and cats are left to fend for themselves when owners head off for Iraq, says Monica Benderman, a Hinesville elder-care worker whose husband, Kevin, has served in the war. Cars are stored on cinder blocks or simply deserted -- with stereos and computers in the trunk -- on the side of the street.

"You have to do it for the greater good, and that requires self-sacrifice," says a soldier's wife, Victoria Hicks, fiddling with her cell phone in the kitchen of the Family Readiness Center at Fort Stewart on a February afternoon. "I can also see that person saying, ‘When is my sacrifice going to end?'"
Hicks' husband, an Army mechanic, had just left for Iraq. He will be there for another 12 to 18 months, and, she says, hopes to retire when he returns. She is worried that the Army may keep him from retiring. Stop-loss policies, she explains, are "a very real concern we will be facing when he comes to an end of this tour."

"That will have been 20 years for him," she tells me. "It's time to get out."

Kevin Benderman, 42, felt that way three years ago -- shortly after he was stop-lossed and given orders for a second deployment of 12 months in Iraq. His is among the failed legal efforts to resist the policy.

On a Sunday afternoon in February, Benderman was hosing down the engine of a four-wheel-drive Ford pickup in his front yard in Hinesville. He and his wife, Monica, live in a comfortably cluttered house with an upright piano, quilted wall hangings, and a menagerie (two goldfish, three dogs, and two cats -- including one whose mother was left behind by an Iraq-bound soldier). Benderman applied for conscientious-objector status on December 28, 2004. He felt strongly about not wanting to be part of the Iraq War, but he found the application process odd. "They don't ask for a mental-health evaluation when you join the Army," he explains. "But the minute you say you don't want to kill people, they send you for one. They say you're crazy."

But Benderman, whose family has served in the military since the Revolutionary War, says it's the war, this war in particular, that's crazy. "It's standing beside a mass grave and seeing a dog run away with a hand or a foot or whatever they can find. It's standing there, seeing that and smelling that. It's what you have to become to survive in war."

Benderman joined the Army in 1987. He was 22. He left the military in 1991, started his own company, Benderman Floor Covering Installation Service, and watched it go under. At age 35, he found himself working as a manager trainee in a cafeteria when two female employees got into a knife fight. Professionally speaking, Benderman was floundering. And he still felt a pull toward the Army. In June 2000, he headed for a recruiter's office in nearby Columbia, Tennessee, and reenlisted.

Nearly three years later, he recalls, he was heading to Tikrit in an Army convoy, manning a machine gun, when he saw a little girl standing on the side of the road. An older woman was trying to wave them over. "The little girl's arm was burned -- charred, crispy. She must have been about 9 years old," he says. "We just drove on by. When we stopped later, I asked the lieutenant why we didn't help her. He said, ‘That's not our job.' I said, ‘That's what they're telling us we're here for -- to help these people out.' He said, ‘We don't have enough medical supplies.' I told him to take my share."

Benderman folds his beefy arms across his chest. He says he understands why they couldn't stop the convoy, which could have endangered the lives of U.S. troops. But he couldn't get the image of the girl out of his head. "There was no satisfactory answer to the situation," he says, finally.

Ultimately, his conscientious-objector application was denied. [See related "Diary of a Conscientious Objector," The American Prospect Online.] Benderman contacted the Military Law Task Force, but he and his wife could not come up with the funds needed to mount an aggressive legal defense. He was represented by a military lawyer and an Augusta, Georgia, civilian lawyer who was, as Benderman puts it, "la-di-da." On July 27, 2005, Benderman was sentenced to prison and served 13 and a half months in a Fort Lewis brig.

The brig was a wretched place, Benderman says, with "sewage dripping down on your head." Decades earlier, in the late '60s, Benderman's teenaged brother had been thrown in jail for joyriding a stolen vehicle, and their father, a decorated World War II veteran, left him there rather than fight for his release. "He said he'd rather have him in jail than be in Vietnam," Benderman recalls. For Benderman, as his older brother had discovered, jail was a sanctuary from a combat zone. "Well, they weren't trying to kill me in jail," says Benderman. "It's better than Iraq, I guess."

Stuart Slotnick says he has received calls from "dozens" of lawyers across the country who are interested in representing soldiers and officers fighting stop-loss policies. Meanwhile, the civil-rights attorneys directly challenging stop-loss have largely dropped the fight. Slotnick suggests that those lawyers "were doing constitutional challenges that were much broader, and that is why ultimately they didn't prevail." It may be that their efforts, which since have ceased, were simply premature. "I guess I was ahead of my time," says Sorgen. "I think the courts felt they didn't want to get involved in an attack on presidential power in a national-security situation." By contrast, "The Vietnam War was already pretty unpopular in 1968," he says, recalling that it had been possible to win cases at that time. "The level of public discontent with the Iraq War hadn't yet risen to the point where courts would be receptive."

Slotnick's victories do seem to have had some impact on military thinking. Sitting in his office, Slotnick calls up on his computer a document titled "Department of Defense Directive Number 1235.13," issued July 16, 2005. It creates new guidelines for how soldiers may leave the military, clarifying some legal issues, and appears to be the Defense Department's response to Slotnick's efforts on behalf of soldiers. "They did not want to fight so many lawsuits," Slotnick explains. "I think our lawsuit was the first, and then we had several more, and we consulted with lawyers across the country so the Army knows they can be entrenched in litigation."

While Army lawyers have backed off on individual cases, the overarching question about the legitimacy of stop-loss policies is unlikely to be decided by a judge, especially during a time of heightened national security. "The courts have shown themselves to be unsympathetic," Jules Lobel, vice president at the Center for Constitutional Rights, tells me on the phone. "They want to defer to the military."

In the end, the issue of presidential power during wartime, according to many legal experts, is best tackled elsewhere. "The proper forum is not the courtroom," writes Evan W. Wooten, in a December 2005 William & Mary Law Review article, but "the floor of Congress."

Tara McKelvey is a Prospect senior editor. She received research support from the Nation Institute Investigative Fund in writing this article.