The bar created by Chappell – a judicial exception to an implied remedy for the violation of constitutional rights – surely cannot insulate defendants from liability for deliberate and calculated exposure of otherwise healthy military personnel to medical experimentation without their consent, outside of any combat, combat training, or military exigency, and for no other reason than to gather information on the effect of lysergic acid diethylamide [LSD] on human beings.
No judicially crafted rule should insulate from liability the involuntary and unknowing human experimentation alleged to have occurred in this case. Indeed, as Justice Brennan observes, the United States military played an instrumental role in the criminal prosecution of Nazi officials who experimented with human subjects during the Second World War, and the standards that the Nuremberg Military Tribunals developed to judge the behavior of the defendants stated that the ‘voluntary consent of the human subject is absolutely essential … to satisfy moral, ethical and legal concepts.’ If this principle is violated the very least that society can do is to see that the victims are compensated, as best they can be, by the perpetrators. I am prepared to say that our Constitution’s promise of due process of law guarantees this much.[i]
There are both moral and legal arguments to be made for the proposition that the actions detailed in Chapters 1 and 2 should be allowed. To be explicit, I am speaking of the idea that the Government – the State – has (1) a right to the compelled obedience of its citizens, and (2) the right to the lives of its citizenry in defense of the State. This has been the default state of affairs for most of human history. From Africa to Asia to Europe to South and North America, the general organization of human beings has almost always involved a leader, chosen usually by some combination of martial prowess and/or political savvy, with rule enforced upon the rest of the tribe/culture/society through several mechanisms, including cultural/social pressure and force. People were always deemed to owe allegiance to the ruler and the larger culture. They could be conscripted to fight in the King’s/Pharoah’s/Queen’s/Caesar’s/Czar’s/Napoleon’s/Comrade Stalin’s Armies against any enemy of the homeland, forced to march to their certain death. The unthinkable, but unassailable, logic follows that if the State can order you to your likely death, or maybe just a group of you, for the benefit of others, why can’t it make the same calculus by doing some experiments on you? If you can be ordered into battle as a soldier where you could die, or even be subjected to the enemy’s chemical weapons, then why can’t the military hierarchy sacrifice some of you good chaps for the sake of others, eh? Isn’t this what military commanders do in battles all of the time?
The political systems under which this is still the case – today – are too numerous to mention.
Fortunately for United States citizens, that entire idea was explicitly rejected in the American Revolution; that is the great moment of “American Exceptionalism.” The Declaration of Independence’s most trenchant historical observation is coupled with its boldest claim: “that governments are instituted among men, [and] deriving their just powers from the consent of the governed.” Governments are not extensions of the Divine Will; political power does not derive through familial claim, inheritance of religious authority, or other ‘farcical aquatic ceremonies.’ At the time, it was the most radically egalitarian idea that had ever been proposed, on a par with Martin Luther’s heresy to the Catholic Church’s authority. It stripped all of the mysticism and power away from government agents of every kind; all of the King’s Men declaimed as equal to even the lowest yeoman farmer, dock worker, deckhand, or wheelwright.
That is also what seems to have gone missing in our culture, and why even in the United States there are still people in respectable circles who feel that soldiers give up their rights when they join the military and therefore, have no grounds to complain of their treatment. This is not confined to those outside of the military, either; it is a common misperception, even among active servicemembers. If servicemembers enjoy less than the full rights that other U.S. citizens enjoy: diminished First Amendment protections, for example, because they can’t protest their Commander’s decisions, or lower “expectations of privacy” in the Fourth Amendment context (see mandatory drug testing), then the logic somewhat follows that perhaps servicemembers can be experimented upon without having any grounds for relief.
Unfortunately for servicemembers, these arguments get additional fuel because they have more than a slight legal basis. There is a specific exemption in the Fifth Amendment of the U.S. Constitution for “those serving in the land or Naval forces.” There are legal scholars who argue that servicemembers do not enjoy the same Constitutional rights as ordinary citizens because of that specific exception to the Fifth Amendment’s grand jury requirement for an indictment. There is still some debate over whether the founders intended all other protections to apply to servicemembers or if that exemption was a recognition that servicemembers were less than full citizens. The Supreme Court has never issued a definitive ruling on whether the Bill of Rights applies to servicemembers wholesale, either. There are also two Supreme Court decisions that hold that servicemembers have no right to a trial by jury. These decisions are particularly odd because neither of the cases involved servicemembers at all. In one case, at the close of the Civil War, a man living in Indiana was tried and convicted by a military commission and sentenced to be hanged. A local grand jury found no evidence against him and was dismissed without an indictment being handed up. While in jail he petitioned for a writ of habeas corpus that eventually went to the Supreme Court. The opinion, in eloquent language, extols the virtue and necessity of the trial by jury and then in one backhanded sentence mentions that every U.S. citizen, except servicemembers, enjoys that right.[ii]
The second decision, handed down in World War II, involved German saboteurs caught sneaking into the U.S. to commit espionage. Once again, while having nothing to do with the case, the Court manages to mention that only servicemembers have no right to a trial by jury.[iii] Ultimately, Congress fixed this with the comprehensive Uniform Code of Military Justice, which gives servicemembers the right to a trial by jury, albeit a somewhat different method of jury selection than in civilian courts. Nonetheless, these kinds of decisions and the impression they convey is that servicemembers are on a different constitutional footing than other U.S. citizens.
The Court of Appeals for the Armed Forces, the highest military appeals court (subordinate only to the Supreme Court of the United States in military cases), has, in many cases, spoken in broad terms about the protections afforded to military members and has rejected the notion that particular Constitutional rights do not apply per se to military members. The court has instead held that a particular right, such as the Fourth Amendment’s protections, for example, apply ‘differently’ in the unique circumstances of the Armed Forces.[iv] In a 1995 case, the Court of Appeals for the Armed Forces noted that
The administration of military justice is rooted in inherent fair play and justice that prevail under the Anglo-American system of law. ‘In defining the rights of military personnel, Congress was not limited to the minimum requirements established by the Constitution, and in many instances, it has provided safeguards unparalleled in the civilian sector.’ The broad constitutional rights that servicemembers enjoy spring from the fundamental principle that they do not lay aside the citizen when they assume the soldier.[v]
These kinds of statements would tend to indicate that servicemembers may enjoy the same rights as any citizen, perhaps even more, depending upon what Congress has granted… or those statements could simply could be propaganda, legal pablum for judge advocates and the small legal community around the military that even cares about such legal arcana.
The fine legal question for servicemembers, relevant to the issue about the anthrax vaccine program, is whether or not there is a Constitutional right, or other right given by Congress, to be free from forced vaccination with an unlicensed or experimental drug. The more general question of whether or not a service member can be punished if he refuses a mandatory routine vaccination was answered in United States v. Chadwell in 1965. In that case a Marine refused to take the smallpox, typhoid, paratyphoid, and influenza vaccine, on religious grounds. The Court found against him and found the order lawful. For some people, this means that the anthrax vaccine program is perfectly valid, end of story, close the book, and let’s all go home.
Let’s not be done with it so fast, however. First, there are a number of important differences between that order and the current anthrax program. Part of it has to do with the routine nature of that vaccine, meaning that it was already being administered to the entire U.S. population, while the anthrax vaccine had now been so administered. Second, the Marine in that case refused to take the routine shot for religious reasons. Almost none of the servicemembers refusing the anthrax vaccine were relying upon religious reasons. A third important difference was that the smallpox and other vaccines were not being administered as pretreatments against chemical warfare; they were being given for the same reasons as they were being given to the nation at large. Finally, there was – and still is – a massive lesson that was learned as a result of the First Gulf War in 1990-1991 that changed the legal landscape around d this exact issue.
Prior to the Gulf War, there had never been an inoculation offered as a treatment against chemical warfare. The current anthrax vaccine is a part of the new era of chemical-biological defense. In prior instances, noted in Chapter 1, when military members were harmed by the actions of other soldiers, either military doctors or their commanders, if the military would take no action to redress the wrong, private legal action appeared the only way to go. Servicemembers who learned that they had been given experimental drugs sued the government for monetary damages for their health complications as a result of the experiments performed upon them. These types of suits are called tort suits. Tort is the French word for wrong and under Anglo-American law, it is one means of legal redress for harms suffered by a citizen. Juries may award actual damages for the harm suffered and punitive damages as a punishment to the wrongdoer and as a deterrent to others who would do the same.
A U.S. citizen can also file for damages for a Constitutional violation, pursuant to a Supreme Court case named Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1967). In that case, Bivens alleged that FBI agents came into his apartment without a warrant or probable cause, searched his house from one end to the other, arrested him and ultimately charged him with narcotics violations. He sued in district court for damages for the violation of his constitutional rights. The courts below dismissed his suit on the grounds that he had no cause of action, but the U.S. Supreme Court ultimately held that he could sue government agents for the violation of his civil rights. Today, there is a specific statute that allows citizens to sue government agents who commit violations of their constitutional rights. See 42 U.S.C. §1983.
There would at least appear to be a number of legal remedies available to citizens, including servicemembers, if they can prove some legal harm, either in a regular civil suit with injunctive relief or damages, or if there is a Constitutional violation under Bivens or §1983. This would be true, but for a legal concept known as sovereign immunity and the Feres doctrine.
The Feres doctrine is named for a famous Supreme Court case[vi] and relies upon a concept in British law known as sovereign immunity. The syllabus at the beginning of Feres explains the concept this way:
While the political theory that the King could do no wrong was repudiated in America, a legal doctrine derived from it that the Crown is immune from any suit to which it has not consented was invoked on behalf of the Republic and applied by our courts as vigorously as it had been on behalf of the Crown. As the Federal Government expanded its activities, its agents caused a multiplying number of remediless wrongs – wrongs which would have been actionable if inflicted by an individual or a corporation but remediless solely because their perpetrator was an officer or employee of the Government. Relief was often sought and sometimes granted through private bills in Congress, the number of which steadily increased as Government activity increased.[vii]
In short, the general principle was that no one could sue the Crown because the government creates or grants the rights of its citizens. Despite our Revolution to be free of British rule, in the earliest years of our republic, our courts took their cue from decisions in the British courts. A simple way of explaining this is that if an ordinary citizen ran over a child due to his own negligence, he would be liable in tort law, and perhaps criminally. Contrariwise, if a government agent driving a government truck did the same thing, there would be no relief for the parents if they sued in court. The only way to get relief in the early years was for a citizen to get his or her representative to put a private bill before either the state or federal legislature and for that body to consent to be sued. Eventually, the United States Congress passed the Federal Tort Claims Act as a comprehensive response to some of the arbitrary and unfair results produced when government agents caused serious harm to citizens. The Federal Tort Claims Act sought to relieve some of these inequities. It spells out who can sue the federal government and under what circumstances. In some cases, it even delineates what the maximum amount is that can be received for certain harms.
The Feres decision actually involved three distinct cases, but the Supreme Court combined them for one decision, named after the lead case. In one of the other cases, a soldier in the army had abdominal surgery. Eight months later, an additional surgery removed a thirty by eighteen-inch towel labeled “Medical Department U.S. Army” from his stomach. His suit against the Army doctor for negligence was denied by the Supreme Court, whereas it would have been what lawyers affectionately call a “slam dunk” if it had been in the civilian context of medical malpractice. The Feres case held that military members were not within the class of persons covered by the Federal Tort Claims Act. This means, in short, that military members cannot sue the government for harms suffered while on active duty by the tortious conduct of other servicemembers, no matter how egregious the wrongdoing.[viii]
There have been many subsequent cases, law review articles, and much philosophical debate, questioning both the logic and the viability of the Feres doctrine. In fact, there have been a number of bills introduced in Congress to overturn the Feres doctrine.[ix] The case quoted at the opening to Chapter 2, United States v. Stanley, is worth reconsidering as it addresses both the Feres doctrine and the ability of servicemembers to sue for civil rights violations (a Bivens claim in the military context, first announced by in a case called Chappel v. Wallace).
The Feres case, like most cases, is subject to either a broad or a narrow interpretation and can be differentiated on a factual basis or on the basis of its legal holding, that is, the legal principle which applies to the given set of facts. The Feres court held that “the Government is not liable under the Federal Tort Claims Act for injuries to servicemen where the injuries arise out of or are in the course of activity incident to service.”[x] The legal justification for this was that servicemembers were not within the class of persons allowed to sue under the Federal Tort Claims Act. In U.S. v. Stanley, though, Master Sergeant Stanley was experimented upon, given LSD without his knowledge or consent, and these experiments were subsequently covered up by those in the Army who had administered the drug to him. Being slipped a mickey, as the old saying goes, doesn’t seem to quite fall within ‘arise out of’ or ‘in the course of’ activities of the military. Notwithstanding the 1977 hearings, during which members of the Senate noted that “the Justice Department and the Courts have their proper role to play”, a bare (5-4) majority of the Supreme Court found that MSgt Stanley had no grounds for relief, either under the Federal Tort Claims Act or under a Bivens claim for violations of his Constitutional (civil) rights. The Court held that
the reasoning . . . that the special factors counseling hesitation – the unique disciplinary structure of the Military Establishment and Congress’ activity in the field – extend beyond the situation in which an officer-subordinate relationship exists, and require abstention in the inferring of Bivens actions as extensive as the exception to the FTCA established by Feres and United States v. Johnson. We hold that no Bivens remedy is available for injuries that ‘arise out of or are in the course of activity incident to service.’[xi]
And yet, there it is, stated as if it were a fact, that being unknowingly experimented upon is now an activity ‘aris[ing] out of or… in the course of’ one’s service; the Feres doctrine barred MSgt Stanley’s tort action and his claim for the violation of his civil rights.
The fact that the Court found against MSgt Stanley on the tort claim is perhaps not surprising given previous cases involving the Feres doctrine. What is especially shocking is that Chappel v. Wallace involved fairly clear racial discrimination and the Supreme Court had no trouble finding that racial discrimination was so terrible that the Court would intervene and allow intervention and relief from the courts, but being experimented upon without one’s consent, like a lab animal, like the Nazis did to the Jews? No problem at all!
The fact that the Supreme Court found that MSgt Stanley had no (military) Bivens’ claim is tragic, because it means that servicemembers’ most fundamental rights may be violated wantonly and they have no redress in the civil courts of this country. This holding does have one further point to it. The Court, in finding that there were special factors counseling hesitation, apparently believed that the right of informed consent is of a Constitutional stature. Logically speaking, this is a necessary prerequisite for a Bivens’ claim: that there had to have been the violation of a Constitutional right. If not, there would have been no Bivens’ claim at all and MSgt Stanley’s claim would have been summarily dismissed, which is not what the Court did. Instead, the Court found that the Bivens’ claim could not go forward because of the ‘special factors’ that give the Court pause – namely military discipline – but not that there was no Bivens’ claim stated.
Justice Sandra Day O’Connor, in her dissent in Stanley, took a different approach and found, quite simply, that “conduct of the type alleged in this case is so far beyond the bounds of human decency that as a matter of law it simply cannot be considered a part of the military mission.”[xii] Unfortunately, what Justice O’Connor and the American doctors at Nuremberg recognized as “conduct beyond the bounds of human decency” now had a new get-out-of-jail fee card in the majority’s lens: as long as it can be tied to the military mission. Less than three years later, on the eve of the Gulf War, it was to be repeated on a larger scale, this time not only with the aid of doctors, but with lawyers, replete with waivers, lobbying, and in the Nineties, public affairs officers! With decisions such as Feres and Stanley in hand, servicemembers would again be prevented from turning to the courts for relief and the law of unintended consequences would again rear its ugly head.
 In an interesting aside, the Supreme Court has found that the state can compel ordinary citizens to take a vaccine in a case called Jacobsen v. Massachusetts, 197 U.S. 11 (1905).
 I treat this more fully in Chapter 6 on 10 U.S.C. §1107.
 The Supreme Court left open the very slight possibility of injunctive relief or declarative judgments for servicemembers. An important point in current military-legal affairs
[i] United States v. Stanley, 483 U.S. 669, 709-10 (1987)(O’Connor, J., dissenting)(some citations omitted).
[ii] See Ex parte Milligan, 71 U.S. 2 (1866)
[iii] Ex parte Quirin, 317 U.S. 1 (1942)
[iv] Both the Supreme Court and the Court of Appeals for the Armed Forces have mentioned this “different” application of Constitutional rights. See, e.g., Greer v. Spock, 424 U.S. 828 (1976); U.S. v. McCarthy, 38 M.J. 398 (C.M.A. 1993).
[v] U.S. v. Manuel, 43 M.J. 282, 286 (C.A.A.F. 1995).
[vi] Feres v. United States, 340 U.S. 135, 139-40 (1950).
[viii] Id. The soldier’s name was Jefferson.
[ix] Deborah Funk, Bill Would Let Service Members Sue Over Medical Malpractice, Marine Corps Times, Aug. 27, 2001, p. 20.
[x] Feres, at 136.
[xi] Stanley, at 688-89 (internal citations omitted).
[xii] Stanley, at 709.