The military judiciary in the US is currently deciding how to deal with Staff Sgt Robert Bales, the soldier suspected of one of the most horrendous incidents to date in its engagement in Afghanistan – that of the shooting dead of 16 civilians, mainly children, in Kandahar.
Sgt Bales was reportedly passed fit for duty after being injured twice, including suffering a ‘concussive brain injury’. The wisdom or otherwise of that decision will no doubt emerge in due course, however his lawyer is reported by the BBC as suggesting Sgt Bales “…was not fit to serve because of injuries he had suffered on previous tours of duty”.
Sgt Bales’ injuries were suffered on active service, but many other military personnel suffer injuries in their daily working lives that are completely analogous to other work-related injuries suffered by civilians. However, US soldiers – unlike their counterparts in the British military – cannot sue the US government for compensation in the courts.
Crown Immunity was withdrawn in this country in 1987. The United States Supreme Court, however, reaffirmed the so-called Feres Doctrine as recently as 19 March. The ruling was in response to a petition by attorneys Fichera & Miller to “preserve the rights” of members and veterans of the armed services.
According to a statement issued by the law firm: “Today, the United States Supreme Court denied a Petition for Certiorari seeking to refine or overturn the Feres doctrine. The Court affirmed that soldiers and sailors are barred from filing suits that civilians can in exactly the same circumstances. Over the last 60 years the Feres doctrine – a judicial interpretation of the Federal Tort Claims Act - has been progressively more broadly interpreted to deprive servicemembers [sic] of their legal rights.”
The statement explained: “Feres bars claims of servicemembers arising from ‘activities incident to service.’ The overly broad interpretation of Feres has dismissed the claims of a service member injured when he fell out of a defective dormitory window, a servicemember who was exposed to toxic chemicals in his base apartment, and a young soldier who died as a result of medical malpractice at a [Virginia] hospital. The Supreme Court refuses to correct this wrong at a time when thousands of soldiers are returning from Iraq and Afghanistan.”
Fichera & Miller were representing the family of a naval rating who, in 2008 at the age of 21, committed suicide at Brunswick Naval Air Station, committed suicide. The Navy’s internal investigation and a subsequent congressional investigation both found the Navy was negligent in responding to Purcell’s suicide attempt.
Fichera & Miller are scathing in their response to the Supreme Court ruling denying their petition.
“Today the United States Supreme Court upheld a judge-made law that treats those who serve as second class citizens. This Court missed its best opportunity to refine the Feres doctrine in a way that is supported by public policy. As a result of this decision many more servicemembers injured in situations completely analogous to civilian life will be unable to achieve justice in the courts. The United States military can continue mistreat soldiers and sailors with almost complete immunity from civil suits,” said the statement.