Court Declares Use of “Nonconsenting” Troops in Iraq Unconstitutional

A federal district court in Washington yesterday declared the presence of “nonconsenting American troops” in Iraq unconstitutional and ordered the Bush Administration to cease further deployment of any American soldiers in Iraq, to the extent those soldiers were members of the class action. The case, Sherman v. Rumsfeld, was brought as a class action on behalf of current soldiers who argued that their substantive due process rights had been violated. The decision, which currently is not available online, found that the soldiers had an expectation of privacy and that their deployment in Iraq must give “due regard to the personal autonomy choices of these soldiers in Iraq.” The court found that “[f]reedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and choice regarding the risk to self. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.” The essence of the claimants’ argument was that their choice to continue in the military campaign in Iraq must be a meaningful one and that when they originally enlisted they could not apprehend the full ramifications of that choice. Having not exercised meaningful choice when they enlisted, the government must afford them meaningful choice once that choice is an informed one. The court recognized that the claim was a novel one, but contended that the liberty interest of Americans does not stop at the waters’ edge, nor cease when an American enlists in the military. “The petitioners are entitled to respect for their private choices. The government cannot demean their existence or control their destiny by rendering their private choice without meaning. Their right to liberty under the Due Process Clause gives them the full right to engage in meaningful choice without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not tear asunder.”

If anyone locates the decision online please let me know so I can link to it.