AMY GOODMAN: On Sunday in New York, I went down to an emergency hearing at the federal courthouse, held on Ferriola’s lawsuit with federal judge Robert Sweet, determining whether Jay Ferriola would have to go to Iraq. After the hearing, one of his lawyers, Barry Slotnick, addressed the reporters outside the court house.

BARRY SLOTNICK: We are pleased that my client will not have to report tomorrow morning at 7:00 to go to Iraq. The government has asked for an adjournment. We have consented to it, the court has agreed. We will be hearing what the army’s final determination with regards to our petition on or before next Monday. This is a major issue for all sides. The army is going to examine it. We are certainly preparing our assault, if in fact they refuse to accept his resignation. He has served his country well. He has served over eight years, and he fulfilled his contract and at this point, he now desires to go into civilian life.

AMY GOODMAN: Attorney Barry Slotnick outside the federal court where an emergency hearing was held yesterday in the case of Jay Ferriola who was an army captain and said he resigned from the military in June and that he does not want to go to Iraq. He was scheduled to go — report for duty today, and on I believe it’s Wednesday, was expected to report to Fort Dix and head out to Iraq. We’re joined by his other attorney, Stuart Slotnick, welcome to Democracy Now!

STUART SLOTNICK: Thank you.

AMY GOODMAN: Can you talk further about this case, the grounds on which you are saying that he should not report?

STUART SLOTNICK: It’s very simple. Jay Ferriola is not a part of the army anymore. His commission expired in February of 2004, and he submitted his resignation after pondering whether he was going to continue or pursue a career with the military. And when he submitted his resignation, he gave it to his commanding officer, who signed off on the papers, and then submitted them. He turned in his gear. He stopped reporting to drill. He stopped being paid by the army, and he had not heard from the army. No one said where are you? He’s no longer part of the army. He entered into private life as a civilian.

AMY GOODMAN: Did he have something in paper that acknowledged his resignation?

STUART SLOTNICK: The army never responded in writing acknowledging his resignation, however, army regulations clearly state that a properly submitted resignation must be accepted.

AMY GOODMAN: Is he a part of the individual ready reserve?

STUART SLOTNICK: No, he’s not.

AMY GOODMAN: How do you end up being a part of, that and others don’t and up being a part of that?

STUART SLOTNICK: I think that you are assigned to the individual ready reserve. He was not part of the individual ready reserve.

AMY GOODMAN: Now, what about the whole issue of stop loss orders that are — while the Bush administration is making a very big deal about saying there is not a draft right now, and even going after those who dare to talk about draft like the group rock the vote, Ed Gillespie, head of the republican national committee sent them a legal cease and desist order saying that you cannot raise the issue of draft, because the president says there is no draft. How does it work? I mean, stop-loss, they’re saying they’re calling people back.

STUART SLOTNICK: Well, I think that stop-loss essentially prohibits people from resigning from the military. And this is a very different case. It’s important to look at the specific facts of each case. In this case, his term had expired, and months later, he submitted his resignation. We don’t believe that stop-loss applies to Jay Ferriola.

AMY GOODMAN: His immediate superior signed off on it, accepted the resignation?

STUART SLOTNICK: Accepted the resignation the same day Jay Ferriola put in his written resignation, he filled out a form that was signed in writing by his commanding officer, which was then submitted. It’s important to know that now the government had asked for — has asked for an adjournment of these proceedings, and they’re going to review his resignation. We believe that the army should accept his resignation. It’s the proper thing, and under the army regulations that’s what they should do.

AMY GOODMAN: Reading through the court papers yesterday, reading the rationale, one of the reasons that you have given in your lawsuit is — for him — Jay Ferriola not having to go to Iraq, you talk about involuntary servitude. Why?

STUART SLOTNICK: That’s one possible legal ground. We’ll pursue any and all legal remedies to protect our client’s rights?

AMY GOODMAN: What is involuntary servitude mean?

STUART SLOTNICK: It’s from the 13th amendment. It’s essentially saying that they cannot take custody and control over him. And deprive him of due process and deprive him of his liberty.

AMY GOODMAN: We’re talking to Stuart Slotnick, the attorney for Jay Ferriola. The army captain served eight years in the military, says he resigned in June and he should not have to report for duty now, serving 18 months in Iraq. Yesterday in the hearing before federal judge Robert Sweet, the — a letter was presented, though we didn’t get to see it, reporters did not get to see it, of an agreement between the military and you, the lawyers, and Jay Ferriola. You can explain what that agreement is, what has the army, the date November 1, which is very close to November 2, election day, was — it was said that’s when the agreement — you will review it.

STUART SLOTNICK: The letter, which was summarized by Judge Sweet, essentially said three things. It said that Jay Ferriola does not have to report this week as stated in the order that he received last week on Tuesday telling him, appear on Monday. The letter also said that the government was going to review this case, and come up with a decision, and that the hearings would be adjourned to November 1 which is coincidently or not the day before the election. This is very important to Jay Ferriola, and I think it is an important issue that the army has to look at. The most important thing that came out of yesterday’s hearing, which was an emergency hearing in federal court, on a Sunday, was that Judge Sweet said that he had jurisdiction over this case.

AMY GOODMAN: Last month, and this is an important news date today, a judge ruled that an army reservist from North Carolina must report for active duty. The reservist, Todd Parrish, had argued that he had fulfilled his military resignation, sent the army a letter giving up his commission, but the judge agreed with the army that he could be recalled to duty because he failed to sign a resignation line on a letter asking for an update on his personal information.

STUART SLOTNICK: That’s a case, and I’m not sure if Parrish had actually submitted his resignation, but that’s the case where a temporary restraining order was initially granted to the soldier and — that it went to a preliminary injunction hearing which was then denied, now it’s being appealed.

AMY GOODMAN: So, November 1 is the day we will find out what the army is going to do, but it’s been put off for a week.

STUART SLOTNICK: We may hear before then what the army is going to do. Certainly Jay Ferriola needs notice. If the army grants his resignation, then this case goes away, if not, some precedent may be established, legal precedent, which could have far-reaching national consequences to the army, and this government’s policies.

AMY GOODMAN: Stuart Slotnick, thank you for joining us, attorney for Jay Ferriola.