The Feres Doctrine: Giving our Service Members the Freedom to Sue

Published November 6, 2002

“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.

6 thoughts on “The Feres Doctrine: Giving our Service Members the Freedom to Sue

  1. […] It seems that DeGraaf’s attitudes towards rape and resulting unintended pregnancy also pervade military culture. Along with bodily injury and death, among other things, sexual assault is apparently so incidental to military service that the Feres Doctrine, a case-law ruling protecting the military from tort claims, bars servicemembers from collecting damages for it. According to Jonathan Turley’s “The Feres Doctrine: Giving our Service Members the Freedom to Sue”: […]

  2. My husband is currently serving our military. He is very ill and they are doing nothing but giving him antacids and telling him to wait until they leave Iraq and then they’ll do some testing to see what is going on. Zantac is the treatment for severe abdominal pain (he has rated in a 9 on a scare of 1-10), blood in stools, black tarry stools, other times it’s diahrea, inability to eat or drink, polyps found during a rectal exam, fatigue. Two months later he is finally on his way out of Iraq with his unit. In pain, and waititng to return home to receive “treatment”. My husband is in his middle 30’s and displaying these signs, it should be obvious that something needs to be done other than some Zantac. They did mention over a month ago that when he returns they might want to do testing to see what the polyps are. They told him it could be hemmroids “but they aren’t sure” (he has never had them and has no pain or discomfort at all with them. And if anyone has had them, they know if it is to that point you would mose defintaly know you had them) I hope and pray daily that what they find is not cancer. Because the months of waiting for treatment could cost him his life. This treatment of our service members is unacceptable. The Feres Doctrine NEEDS to be overturned so that lives can be saved! We teach our own children consequences for their actions. I think military medical personel also needs to understand there could be consequences for their actions (or lack of action).

  3. My son Michael Fremer was killed at Fort Polk, La on 2/13/08 because of Army Negligence. The Army can not accountable because of the Feres Doctrine. This law needs to be changed. How come the Army is not liable for Negligence? Our young men and woman are risking their lives. This is how our country treats them and the families? The Feres Doctrine needs to be overturned!

  4. I am a Navy veteran, i got hurt on board USS Harry S. Truman, I broke my ankle which they diagnosed as a sprain. Two months ago I had a 1 inch section of my bone in my ankle taken out because I have been walking on it for 4 years! ABOLISH THE FERES DOCTRINE! We signed on the dotted line to serve our country and our government, what do we get in return?? What is this country coming to if us service members cant even trust out medical department??

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