Former Oregon National Guardsman Emiliano Santiago learned earlier this year that the government might seek to extend his service in the Guard past his contract, which was due to expire in June. Now the government says it wants to deploy him to Afghanistan involuntarily. Santiago is suing in Federal Court, arguing that the government is violating its contract with him and imposing a great hardship on himself and his family.
Santiago was represented by Steven Goldberg. Goldberg pointed to specific terms in Santiago's contract which only require him to serve beyond his term if he is in fact called to active duty. Goldberg's main point was that Santiago was not in fact called to active duty but was put on alert. The contract stated that an extension can only be enforced if the guardsman is called to active duty within his term. He also argued that while President Clinton in 1999 declared a state of emergency in Afghanistan and Santiago would be required to participate in a state of emergency, President Bush in 2002 declared that there was no longer a state of emergency in Afghanistan.
Government lawyers argued that the contract stated that it did not include all clauses and therefore additional requirements can be added without notice. They further stated that whether Afghanistan was in a state of emergency or not was a political question and not a legal one. They claimed that documentation from the newspapers showing the high risk to enlistees was not credible as evidence of possible hardship. They also claimed that it would be a "hardship" for the government because each unit is composed of individuals with different completion dates. Therefore it would be necessary to create distinct orders for each enlistee.
Initially, the judge seemed sympathetic to Santiago's case. He interrupted the government lawyer asking him, "So you are stating that the government can extend the enlistee's term of service indefinitely?' This appeared favorable to Santiago in light of the fact that there was no evidence proving that Santiago had been given certain documentation of deployment until October, which was four months after the end of his eight year commitment.
Unfortunately for Santiago, the judge made the ruling that 'there is no credible evidence of certain hardship for Mr. Santiago, while there is credible evidence of hardship for the military.'
Steven Goldberg, Santiago's attorney, said he will now seek an emergency appeal of Santiago's forcible reactivation. The government has ordered Santiago to report for duty and be shipped off to Afghanistan the first week of January.
Some thirty people rallied for Santiago outside the courthouse at 3rd and Salmon while the proceedings were underway. One of the authors was able to get into the courtroom before the hearing began, and found it only three quarters full, with some 50 observers in attendance. By the end of the hearing there were approximately 60 courtroom observers and no less than 3 seats available on the author's bench alone. However, supporters in the group outside the courthouse who tried to enter the building after the proceeding started were turned away at the front doors of the building by federal marshalls who claimed to be acting under orders of the judge. They claimed there was "no room" for further members of the public to attend. Supporters plan to send a letter to the judge in the case seeking clarification on this apparently arbitrary denial of public participation in a public legal proceeding.
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