Saturday, February 28, 2015

Partial Overturning of the Feres Doctrine by the US Supreme Court

Since 1950 US military personnel have been unable to sue the Department of Defence for injury or death caused by negligence under the Feres Doctrine.  The Feres Doctrine is a Supreme Court ruling which prohibits any U.S. military personnel (serving, or retired) and their families or estates (if they are deceased) from suing the U.S. Department of Defence (DOD) even in the case of gross negligence.  The Feres Doctrine has previously also been used to prevent court action against contractors who provide goods and services for the DOD, as they were also effectively covered under the Feres Doctrine through the appeal to the need to maintain national security. However, in January 2015 that immunity from prosecution for contractors was overturned by a ruling from the Supreme Court.  The ruling was given without comment or explanation from the Supreme Court, however effectively removes the immunity from prosecution previously granted to private military contracting companies acting on behalf of the Department of Defence.

Just as the Feres Doctrine was a ruling on three separate cases together, the ruling from the Supreme Court on the accountability of contractors towards military personnel, was also a ruling on three separate cases.  The KBR ruling was in regards to the following three cases

- Harris v KBR  - In 2008 Green Beret Staff Sgt. Ryan Maseth died in Iraq due to faulty electrical work, leading to him being electrocuted in the shower.  The faulty electrical work was done by the private military contract company (PMC) Kellogg, Brown and Root Inc (KBR).  Ryan’s family (in particular his mother Cheryl Harris) were unable to sue the DOD for negligence, so they instead sued  KBR who were responsible for the maintenance on the electrical work which subsequently led to his death.  Sadly evidence given to the House Oversight Committee in 2008 highlight the fact that both KBR and the Pentagon were aware of the problems with the electrical work in Iraq, and that Staff Sgt.  Maseth was not the only electrocution victim, and that the Pentagon and KBR did nothing to rectify these systemic problems, which resulted in several unnecessary deaths
- Metzgar et al v. KBR  - This case is a collection of 58 class action and individual suits against KBR and former parent company Halliburton, where it is alleged that KBR and Halliburton acted negligently whilst operating burn pits in Iraq and Afghanistan, resulting in military personnel developing respiratory illnesses, neurological disorders, cancer and skin diseases from living and working near open-air burn pits.  PBS has a photo essay on the burn pits which shows in quite stark visual terms the operational activities of the burn pits.  

- McManaway et al v. KBR - this case regards the exposure of British and American military personnel to the hazardous chemical sodium dichromate at the Qarmat Ali Water Treatment Plant.  The interesting thing about this case is that it was a part of the Restore Iraqi Oil (RIO) Contract, which specifically contains provisions that require the government to indemnify KBR for any property damage, injury, or death occurring on the contract and all related legal expenses.  This contract has had numerous other concerns raised regarding the dubious nature of its creation and approval.   

The January 2015 Supreme Court ruling means that KBR (and other PMCs) can now be sued for injury or death as a result of negligence, and are no longer covered under the government indemnity of the Feres Doctrine, or the limits of the  Federal Tort Claims Act (FTCA) regarding activities during a time of war by combatants.  The Supreme Court ruling is a landmark decision, and a huge step forward in keeping PMCs accountable for their actions.  Whilst these rulings specifically only relate to PMCs and not the government itself, given that PMCs now contribute so much in terms of goods and services to US military operations, it effectively means that military personnel injured or killed due to negligence can now sue, if a PMC was involved in that negligence.  This ruling is in effect a partial overturning of the Feres Doctrine.  It is not hard to imagine that at some time in the future, when enough precedent has been given against PMCs, that similar cases against the government may stand a better chance of challenging the Feres Doctrine.  

Finally PMCs will now be held accountable for deaths that were directly due to their negligence, and were completely avoidable.  If we as a society are going to lose military men and women fighting to maintain our freedom, it should be because of their bravery and courage on the battlefield, not because of the shoddy work practices of a PMC attempting to cut corners in order to make a larger profit.  

Background to the Feres Doctrine ….

In 1946, Congress adopted the Federal Tort Claims Act (FTCA) (Federal Tort Claims Act, 28 U.S.C. §§ 1346(b), 2401(b), 2671-2680), which allowed individuals to sue the government for  damages for injury to property, loss of property, personal injury, or wrongful death, if it could be proved that there was negligence on part of a government employee, acting within the scope of their job.  This Act was ground breaking at the time, as up to this point, the government had been previously immune from prosecution, as an extension of the concept of sovereign immunity, granted to heads of state - the ruling, whilst giving very limited scope to sue the government, never the less removed sovereign immunity for the government from prosecution as a blanket policy.  Under the Federal Tort Claims Act there are numerous exceptions regarding what can be sued for - this indludes the fact that combatant activities of military or naval forces (including the Coast Guard), in a time of war, exclude a person from suing the government, even when negligence could be proved.

In 1950, the Supreme Court ruled that the government was exempt from prosecution, not only during a time of war, or for combatant activities, but also during the entire service period of a military member - this ruling, known as the Feres Doctrine effectively barred all military personnel and their estates from suing the Department of Defence for any injury or death as a result of negligence.  You can read more about the Feres Doctrine here