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Our FUBAR legal system

Monday, August 23, 2004

The military loves its acronyms.

And when I was in the Air Force, we had an acronym to describe anything that was irretrievably unsatisfactory: FUBAR, for "Fouled Up Beyond All Recovery." Generally, as I saw it used, it referred to some system on our oldest-in-the-Air-Force F-4s we had on Okinawa in the late 1970s. But the term could apply equally well to what passes for a legal system at every level in our country.

Two cases in point concern -- coincidentally -- the military itself and our state, respectively.

* Back during the last war we fought on global battle fronts, every soldier, sailor, airman and Marine understood they were to serve until the job was done, the war won and peace secured. The common expression was "You're in for the duration plus six months," and those of what we now call The Greatest Generation served without question until either they got killed, wounded or captured or until the war was won.

That rule of thumb applied regardless of whether the individual serviceman was a member of the regular, Reserve or National Guard component of the military. And of the latter two components there were a great many members during World War 2, counting no less than 18 of the Army's infantry divisions.

I guess a lot has apparently changed over the last 60 years.

Seems an individual has decided he has served long enough in the military as what he apparently thought was a part-time soldier, and is suing the Secretary of Defense to get out of the Army National Guard. The issue is the "stop-loss" order issued by Donald Rumsfeld some time ago to keep military members on active service past their scheduled discharge dates.

Apparently the guy is too ashamed to reveal his real name, because the lawsuit filed in the US District Court for Northern California (where else?!) names "John Doe" as the plaintiff.

And no wonder. "The [stop-loss] order violates Doe's right to due process and the terms of his enlistment contract, and is contrary to law," reads the lawsuit, in part.

I cannot imagine anyone having sued the military in wartime to try to get out of defending his country. Even less can I imagine any attorney or court taking serious such a lawsuit. But here it is, as described by My Way News on Aug. 17.

"Now wait a minute, Gary," some well-meaning soul may interject. "You aren't looking at the case on its merits." And frankly, that's absolutely true: that's because this case has no merits. Those who have served in the armed forces since the Korean War will recall the American Fighting Man's Code of Conduct, which describes to each service member how he (or she, since women now serve as well) is to behave under all circumstances.

The first article of the code reads as follows: " I am an American fighting in the forces which guard my country and our way of life. I am prepared to give my life in their defense." So, if the United States of America can reasonably expect this, that or the other individual to lay down his life for it, it can doggone sure expect him to come to work a bit longer than might be convenient for him.

In addition, John Doe's oath of enlistment requires him to "obey the orders of the officers appointed over me." And they include civilians going all the way up to the President of the United States.

For those still not following, the Defense Secretary works for the president, and therefore is in John Doe's chain of command.

Contrary to law? I'm sure that back during World War 2, there was some latrine lawyer who suggested his fellow soldiers sue the government to get out of the service while the war was still going on (funny how latrine lawyers never follow their own advice ). But I doubt anyone really did it.

Yet it speaks volumes about the decay of our legal system that such a suit as John Doe's could even be considered, let alone filed. And I'll bet it will even go to trial.

* But organized juris-imprudence is not limited to the federal court system. We ran a story on our front page Friday about 18 unionized state employees who have sued the state Secretary of State for refusing to publish a rule issued by lame-duck governor Bob Holden that required non-union employees of the state to pay what amounts to dues to the American Federation of State, County and Municipal Employees (AFSCME).

First off, the rule violates a state law that prohibits involuntary deductions from the paychecks of state employees for union dues and certain other purposes. As far as I'm concerned, that says it all. But the whole issue of involuntary contributions by anybody to a union that is likely to turn around and use that extorted/extracted money to politick for candidates the individual may find objectionable strikes me as a violation of free speech.

In effect, since the courts have ruled that money equals speech, the taking of those involuntarily paid dues for such a possible purpose is, in effect, forcing the individual to say something to which he objects. That's what our fighting forces -- apparently excluding the above-mentioned John Doe -- are fighting against in their efforts to defeat Islamic terrorists worldwide.

But we have 18 Americans -- indeed, Missourians -- who think they can use our court system to do the same thing.

What does that say about them? And what does it say about our court system that such a case is not to be laughed out of court -- as it apparently wasn't since Judge Thomas Brown III has given Secretary of State Matt Blunt till the middle of the month to respond?

A single word:


Gary Exelby is the editor of the Daily Statesman. E-mail him at xlb@dailystatesman.com and read his earlier columns at http://exelby.vnovus.com.

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