All Is Fair in War; in Peace, Go to Court

Jonathan Turley, a law professor at George Washington University, recently completed a study of the Feres Doctrine.

“Nothing is too good for our men and women in uniform.”

It may be the world’s most predictable political applause line. It was a central theme of President Bush’s 2000 presidential campaign. With both war and elections looming, it became a virtual mantra among politicians across the country.

This month, however, the Bush administration is waging a little-known battle to preserve a rule that reduces service members to second-class citizens.

The Feres Doctrine is a legal rule that bars service members and their families from suing the government for even the most horrendous acts of negligence and abuse. Because of this obscure rule, service members have become fodder for medical malpractice and other forms of negligence in the military. In one case, an Army doctor left a 30-by-18-inch towel inside a soldier; it was discovered 18 months after the surgery. The Supreme Court said a suit would threaten military decision making.


Apparently, military decisions include refusals to respond at all. In another case, an Army sergeant’s wife spent a day begging military doctors to admit her husband, who was biting his tongue and having convulsions after he was sent home “to rest.” She finally took him to a civilian hospital, which immediately diagnosed grand mal seizures. The sergeant died; his family’s lawsuit was barred.

In yet another case, a bar on an Army reservation in Kansas did nothing while a soldier was beaten almost to death by a gang. Though a civilian bar would have faced substantial liability, the soldier’s lawsuit against the military was dismissed.

Some cases make the second-class status of service members appallingly clear. There are examples in which an off-duty service member was with a civilian when both were injured by an act of gross military negligence; the civilian could claim damages but the service member could not.

This is not what Congress intended. In 1946, when Congress enacted the Federal Tort Claims Act, it expressly exempted only combat-related military lawsuits. The Supreme Court, however, ignored this language in deciding the Feres case in 1950 and barred lawsuits with no connection to combat areas.

Even intentional acts of brutality have been protected as matters of military discretion. In one case, a service member was subject to “hazing” by being sexually assaulted with a traffic cone while being photographed in public. Despite what the court called the “despicable” nature of this attack and a pattern of such attacks at the base where the incident occurred, the court found it “service-connected” and therefore barred the claim under Feres.

As it stands, John Walker Lindh has more legal protection than the service members who helped capture him in Afghanistan.

Congress can remedy this injustice and return to its original intent of exempting only combat-connected injuries from lawsuit. As our service members prepare for possible war in Iraq, there is no better time to guarantee equality for them and their families.

If there is nothing too good for our men and women in uniform, the Bush administration could start by supporting them in the fight against Feres. It is not campaign rhetoric that they need; it is equal rights.