Clicking on banner ads enables JWR to constantly improve
Jewish World Review Nov. 7, 2002 / 2 Kislev, 5763

Jonathan Turley

JWR's Pundits
World Editorial
Cartoon Showcase

Mallard Fillmore

Michael Barone
Mona Charen
Linda Chavez
Ann Coulter
Greg Crosby
Larry Elder
Don Feder
Suzanne Fields
James Glassman
Paul Greenberg
Bob Greene
Betsy Hart
Nat Hentoff
David Horowitz
Marianne Jennings
Michael Kelly
Mort Kondracke
Ch. Krauthammer
Lawrence Kudlow
Dr. Laura
John Leo
Michelle Malkin
Jackie Mason
Chris Matthews
Michael Medved
Kathleen Parker
Wes Pruden
Sam Schulman
Amity Shlaes
Roger Simon
Tony Snow
Thomas Sowell
Cal Thomas
Jonathan S. Tobin
Ben Wattenberg
George Will
Bruce Williams
Walter Williams
Mort Zuckerman

Consumer Reports

OUR second-class soldiers | "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.

Enjoy this writer's work? Why not sign-up for the daily JWR update. It's free. Just click here.

JWR contributor Jonathan Turley, a law professor at George Washington University, recently completed a study of the Feres Doctrine. Comment by clicking here.

10/30/02: 'Quirin' revisited: The dark history of a military tribunal
10/22/02: Un-American Arrests: Mass detainments of the innocent may be the ultimate form of crowd control, but the tactic is unconstitutional
10/16/02: Reverse pawn shops? Broke state officials across the country have been looking for businesses to buy their assets at a fraction of their worth to pay for budget shortfalls
10/08/02: A legal tattoo hullabaloo
10/02/02: Gagged justice sets dangerous precedent
09/25/02: The Great Salmon Rose Caper
09/17/02: Reparations: A Scam Cloaked in Racial Pain
09/12/02: This country's hidden strength
09/04/02: 1st Amendment protects even the ugliest among us
08/28/02: A secret court goes public
08/20/02: I defended Ashcroft during his nomination; he's become a constitutional menace
08/07/02: San Francisco embracing states-rights
07/31/02: Who needs Jenny Craig when you can have Johnnie Cochran?
07/22/02: The meaning of justice and the madness of Zacarias Moussauoi
07/16/02: The President vs. the Presidency
07/08/02: How one woman's whims dictates the rights of millions
07/02/02: Just say 'no' to extracurricular activities
06/24/02: Missing Ted Bundy
06/10/02: A comedy of eros06/14/02: 05/31/02: Beyond the 'reformed FBI' hype
05/23/02: Do we really need a Federal Marriage Amendment?
05/19/02: No "battlefield detainee" should leave home without a U.S. birth certificate
05/10/02: The perfect constitutional storm
04/26/02: 'Slave of Allah' wounds justice
04/12/02: The importance of being nameless
04/05/02: The adjusted value of justice
03/18/02: How Clinton got off: A law professor's take
03/11/02: Profiling and the terrorist lottery
03/05/02: Yes, Sharpton, there was a failure of justice
02/28/02: The Lay of the land
02/14/02: Living in constitutional denial
02/05/02: Legal Lesson for Afghanistan: War's Not a Slip-and-Fall Case
01/25/02: Sever "Jihad Johnny"'s ties to his homeland
01/21/02: "Out of sight, out of mind," but they're still prisoners
01/14/02: Your papers, please!
01/07/02: Prescription for disaster
12/18/01: Madison and the Mujahedeen
12/07/01: In the U.S., espionage crime is easy to understand but difficult to prove
11/19/01: What type of 'creature' would defend bin Laden?
11/19/01: Could bin Laden be acquitted in a trial?
10/28/01: The ultimate sign of the different times in which we are living
10/25/01: Al-Qaida produces killers, not thinkers
09/28/01: The Boxer rebellion and the war against terrorism
08/31/01: Bring back the silent Condit
08/27/01: Working out the body politic

© 2002, Jonathan Turley