Thousands of Americans have discovered there is a hollow ring to the nation’s pledge of ” … liberty and justice for all.” An anachronistic “Catch 22” legal system dating back to the Civil War has kept the military above the law and denied justice to our veterans and their families.
In 1911, the Supreme Court pronounced “The courts are not the only instrumentalities of government. They cannot command or regulate the Army.”
In 1946, some thought the military’s judicial autonomy would change with the Federal Tort Claims Act. It allowed citizens, for the first time, to sue the Federal Government for personal injuries caused by the government. However, the courts chose to exclude members of the armed forces from coverage. This broad military exception was established by the Supreme Court in 1950 when it decided Feres v. United States. The court said the Tort Claims Act did not give military personnel the right to sue the government for admittedly negligent acts which occurred on active duty.
For more than 30 years, the courts, following Feres, have denied veterans access to the judicial system. (Prisoners in Federal penitentiaries have a right to sue the government under the same law which veterans are excluded from using.)
Equally disturbing, in a more recent Federal court ruling, which extended the Feres rule, the court barred suits by veterans’ wives and children for their own health problems resulting from alleged military negligence.
By law, the Veterans Administration, the target of many suits, is the only major Federal agency whose decisions cannot be reviewed in court.
Compounding the veterans’ legal access problems is a statutory relic passed after the Civil War which makes it a criminal violation for a lawyer to accept a fee of more than $10 for representing a veteran’s disability claim.
As a result of all this, thousands of American veterans who share a history of involuntary and uninformed participation in dangerous experiments — including those who were ordered to participate in the above-ground nuclear tests in the 1950s and the Vietnam veterans who were exposed to the hazardous Agent Orange defoliant — have virtually no right to sue the Government for health care or compensation even if they can prove their health problems were caused by military negligence.
Progressive, 8/81, “Justice is Not a GI Benefit” by Lewis M. Milford.