In the quiet of the Friday before Christmas, President Trump signed the National Defense Authorization Act (NDAA) into law. Of the many provisions in this whopping $738 billion bill, Trump is most proud of the creation of his Space Force. In his remarks at the signing ceremony, he crowned it a “landmark achievement.”
This jubilation ignores a big problem. Even if the Space Force results in Trump’s desired “American superiority in space,” the NDAA leaves service members on Earth behind.
As Trump touted in his remarks, the Space Force is the first new military branch in over 70 years. The most recently created branch — the Air Force — was formed in 1947. What Trump didn’t mention, though, is that it’s also been 70 years since service members had the right to sue the Defense Department for serious injuries. The NDAA doesn’t fix that.
Since 1950, a widely criticized Supreme Court decision known as “Feres” has prohibited tort suits by service members against the Defense Department. The Supreme Court issued this ban tentatively, admitting it had “few guiding materials.” It assured itself that if its opinion is wrong, “at least Congress possesses a ready remedy.”
Congress, however, has sat silent for the 70 years since Feres. This has left victims of military medical malpractice, sexual assault, and other grievous harms with little recourse. It also left the Defense Department with little accountability.
A bill that would have removed the Feres bar for medical malpractice cases was initially included in this year’s NDAA. But despite the dogged advocacy of the bill’s author — Rep. Jackie Speier — and the bill’s namesake — Sgt. First Class Richard Stayskal, a Green Beret with cancer stemming from medical negligence — this provision was ultimately tossed.
The bill passed the House only for Sen. Lindsey Graham to kill it in the Senate. He objected that exposing the Defense Department to liability would “open Pandora’s box.” He had little to say to defend Feres as a legal matter, though. Or about Defense Department accountability.
This missed opportunity to restore service members’ access to justice makes the 2020 NDAA a disappointment.
To give credit where credit is due, the NDAA does contain some provisions that will benefit service members. For instance, for the first time service members will be able to file administrative claims with the Defense Department for compensation for medical malpractice. No doubt, military families hurt by medical negligence deserve these awards. The NDAA also includes important military sexual assault reforms. Under the new law, special victims’ counsel will be available to domestic violence victims and will receive training on civilian criminal law.
The problem is these reforms only kick in once the damage has already been done. Medical malpractice compensation softens the blow of lost earnings. It doesn’t stop the injury from happening in the first place. Indeed, with some limits on awards the military might not feel the pinch strongly enough for there to be deterrence of future harms. Likewise, increased availability and training of special victims’ counsel helps assault survivors navigate the military justice system. But it doesn’t prevent rape or abuse.
For there to be a real sea change, service members need the right to sue. To hold the Defense Department accountable for medical negligence and its sexual assault epidemic, we need independent adjudicators. In reviewing service members’ medical malpractice claims, as the NDAA allows, the Defense Department is susceptible to motives of self-preservation. The courts, in contrast, have no skin in the game. And they aren’t afraid to demand the big structural changes that are sometimes necessary to protect individuals’ rights.
If Trump can take the military to the moon, we should be able to get service members through the courthouse doors. Congress should stop politicking, to face the Feres Doctrine’s harms and heed the Supreme Court’s plea for intervention. At 70 years and counting, a congressional fix is way overdue.
Rose Carmen Goldberg is a lecturer at UC Berkeley School of Law who represented veterans at Swords to Plowshares, a veterans rights organization.
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