Tribune-Review | Nov 15, 2009

By Walter F. Roche Jr.

Legal experts say families of active-duty military members who were killed during the recent Fort Hood shootings or the military members themselves who were wounded probably will be unable to win court judgments for damages even if they can prove the Army was negligent in not acting to remove the alleged shooter, Maj. Nidal Malik Hasan.

Andrew Adair, a Washington attorney, and others say a 1950 Supreme Court ruling would stand in the way of such damage claims.

The restriction would not apply to the lone civilian, Mike Cahill, 62, who was killed in last week’s attack. Nor would it apply to injured civilians, including police officer Kimberly Munley, who was involved in a shootout with Hasan.

In the 1950 ruling, known as the Feres Doctrine after one of the plaintiffs that brought the case, the high court said active-duty members of the military cannot sue for damages if the death or injury is “incident to military service.”

“Even if the higher-ups in the military have knowledge that someone is a loose cannon and take no action, there is no recourse. That’s where the law is,” Adair said

Hasan was formally charged Thursday with 13 counts of premeditated murder in the attack, which left 29 people wounded. Congressional investigators have begun to question whether Army officials failed to respond to indications that Hasan might be a danger to others. President Obama on Saturday urged Congress to hold off on an investigation of the Fort Hood rampage until federal law enforcement and military authorities have completed their probes into the shootings.

Obama made his comments during an eight-day Asia trip and pleaded for lawmakers to “resist the temptation to turn this tragic event into the political theater.” He said those who died on the nation’s largest Army post deserve justice, not political stagecraft.

“The stakes are far too high,” Obama said in a video and Internet address released by the White House while the president was flying from Tokyo to Singapore, where Pacific Rim countries were meeting.

Obama has ordered a review of how officials handled warning signs that might have pointed to the killing spree. Among the warning signs were e-mail contacts with radical Muslim cleric Anwar al-Awlaki, who was linked in the 9/11 Commission’s report to at least two of the 2001 hijackers.

Dean Swartz, another Washington attorney and former military lawyer, who has experience on both sides of military torts cases, said that even with evidence that Hasan’s superiors were aware of a potential for violence, survivors of the shooting would face a virtually insurmountable hurdle in overcoming the Feres Doctrine.

Swartz said that as a government attorney, he was obligated to oppose such claims, and “it made me sick to do it.”

Justice Department lawyers are defending the Feres Doctrine in several pending lawsuits, arguing that the doctrine is necessary to maintain military discipline and that active-duty members of the military are entitled to death benefits.

Pentagon spokesman Wayne V. Hall confirmed those killed at Fort Hood will be entitled to the benefits provided to all members of the military, including a $100,000 death benefit. Exact individual amounts, including life insurance benefits, will depend on determinations yet to be made by the military and what level of benefits were chosen by the killed or wounded soldiers, Hall said.

With respect to the Fort Hood shootings, Hall said he could not comment since there has been no attempt at litigation.

Barbara Cragnotti, spokeswoman for an advocacy group that has been seeking to have the Feres Doctrine overturned by Congress, said it appeared to her that the ban on legal claims would apply to all of those shot who were on active duty.

“I believe that Feres will bar all suits on the Fort Hood shooting,” she said, referring to active duty members of the military.

Cragnotti’s group, called Veterans Equal Rights Advocacy, has been backing a bill recently approved by the House Judiciary Committee that would lift the ban on lawsuits, but only in cases involving medical malpractice, such as botched surgery in a military hospital.

That bill, which is awaiting House floor action, would not apply to the Fort Hood incident because it involves only medical malpractice cases.

Cragnotti’s group contends the limits imposed by the Feres ruling are unfair and deprive members of the military rights that are provided to all other citizens.