High Court Bars Military From Suing U.S.

WASHINGTON —  The Supreme Court sent a strong message to the 2.1 million members of the armed forces Thursday, ruling in two separate cases that they are barred from suing the government when their rights are violated and that they may be court-martialed for offenses that have no connection to the military.

The justices, on a 5-4 vote in the first case, said that even an unwitting victim of Army drug experiments in the 1950s had no right to bring legal action.

The two rulings, combined with two earlier decisions, slammed shut a door that had been opened slightly by lower court opinions. In several appeals, lower courts have maintained that a soldier may sue for damages if his rights were violated in an incident that had nothing to do with the military command structure.

Widow’s Suit Rejected

Earlier this year, the Supreme Court threw out a suit brought by the widow of a Coast Guard pilot who was killed in an accident caused by alleged negligence of civilian air controllers. In addition, the justices dismissed the case of a Marine who was driven out of the service because, as a member of base advisory panel, he had criticized a superior.

The “unique disciplinary structure of the military establishment” demands that courts not second-guess the military, Justice Antonin Scalia said Thursday in dismissing a suit by a former soldier who charged that his health and marriage had been ruined by the hallucinogenic drug LSD.

The dissenters, led by Justice William J. Brennan Jr., said that the Army’s actions are reminiscent of Nazi experiments on human subjects.

“The government of the United States has treated thousands of its citizens as though they were laboratory animals, dosing them with this dangerous drug without their consent,” Brennan said, but the court has given those responsible “an absolute immunity from liability.”

“Soldiers ought not be asked to defend a Constitution indifferent to their essential human dignity,” he added.

1969 Decision Overturned

In the second opinion, the justices said that a serviceman may be tried in military courts even if his offense occurred off base and had nothing do with the service. This ruling, on a 6-3 v1869899052defense lawyers say, gives military commanders tremendously expanded control over their personnel.

“What you are seeing is an extraordinary deference to the military,” said Eugene Fidell, a Washington lawyer who has defended military personnel in federal court. “The majority of the court has concluded that they have no business intruding into military affairs.

“So, if the courts can’t enforce constitutional rights, who can? Where’s the accountability?” Fidell asked.

The key question in this case was whether a serviceman accused of a violation off base may seek a civilian trial, rather than a court-martial, in which his commander would pick the judges. The justices revoked a 1969 high court decision that an offense must have a “service connection” to be tried in military courts.

‘Unrestrained Control’

Chief Justice William H. Rehnquist said that military commanders should decide whether a serviceman is tried in a military or civilian court. Thurgood Marshall, joined by Brennan and Justice Harry A. Blackmun, said in dissent that the ruling (Solorio vs. U.S., 85-1581) “subjects members of our armed forces to the unrestrained control of the military in the area of criminal justice.”

The LSD case (U.S. vs. Stanley, 86-393) began in 1958, when Master Sgt. James B. Stanley volunteered to test gas masks and protective clothing. Instead, he was secretly administered lysergic acid diethylamide (LSD).

Afterward, he had hallucinations, violently beat his wife and suffered a loss of memory. He was discharged from the service and his marriage dissolved.

Only 18 years later did Stanley learn that he had been given LSD. In response, he filed a damage suit against the government. A federal District Court dismissed it, but an appeals court concluded that, although a serviceman may not sue his direct superiors, he may sue for abuses that had nothing to do with military command.

Ruling Reaffirmed

The high court’s conservative majority disagreed. It strongly reaffirmed a 1950 ruling that bars all suits for “injuries to servicemen . . . (which) are incident to service.”

“It is irrelevant,” Scalia said, “whether the laws currently in the books afford Stanley, or any other particular serviceman, an adequate federal remedy for his injuries.” It is up to Congress to create such a remedy, he said.

Brennan, joined by Justices Marshall and John Paul Stevens, said that the ruling leaves the 2.1 million members of the military without the protection of the U.S. Constitution. In a separate dissent, Justice Sandra Day O’Connor said that the drug experiment was “so far beyond the bounds of human decency that, as a matter of law, it simply cannot be considered as part of the military mission.”