thedrifter
05-04-05, 07:27 AM
05.03.2005
Military Discipline vs. Constitutional Rights
By Michael S. Woodson
As the U.S. military prepares to resume its controversial mandatory anthrax vaccine immunization program for the troops, any personnel who may later allege injury or harm from the vaccine face a nearly impassable barrier to seeking redress through monetary damages by lawsuits in the federal courts. If troops objecting to the vaccine are unable to stop the program by obtaining injunctions against the program, it appears they will have no recourse for unconsented injuries caused by the vaccine unless Congress grants adequate compensation by statute.
Although the federal government has in the past created special compensation programs to help victims, airlines, security firms, insurers and re-insurers cope with 9/11, our troops do not enjoy similar regard when failures in government or corporate judgment regarding terror threats lead to injuries or debilitating illnesses. Here, the controversy is over whether the cost of the anthrax vaccine outweighs its benefits considering the likelihood of anthrax exposure.
And if one previous decision by the Supreme Court were to occur again, the Pentagon may even be free to administer the vaccine to troops surreptitiously and get away with it.
It was, in my opinion, a U.S. Supreme Court decision ranking with the worst of them. The case before the high court in 1987, U.S. v. Stanley, illustrates that the court has already ratified the constitutionality of the elitist abuse of enlisted personnel.
Treating the doctrine judicial restraint as more important than the substance of the Constitution itself, Justice Antonin Scalia opined for the majority of the Supreme Court in Stanley that former U.S. Army Master Sgt. James B. Stanley could not sue the Army or military officers for monetary damages after they treated him like a laboratory rat and tested the military effects of LSD on his body and mind without his consent or knowledge.
The Stanley decision held that where an enlisted person's injury was "incident to" or "arising" out of his military service, he or she could not sue the military for compensation. One wonders how military service or discipline could ever include civilian and/or military leaders fraudulently and secretly introducing LSD into the body of a U.S. Army NCO and concealing the fact. Common sense tells us that such an act would erode trust and discipline in the ranks.
In February 1958, Stanley had volunteered for a program pitched by the Army described as as a chemical-warfare-gear-testing experiment. Instead, project managers all along dosed him with LSD without his knowledge or consent.
Stanley was not told until decades later. His subsequent lawsuit charged that psychiatric symptoms from LSD poisoning caused him to suffer recurring hallucinations that led him to attack his wife. This destroyed his marriage and brought him untold mental suffering as he lived with the uncertainties caused by his symptoms. Who can measure the pain of one's own questioned sanity after the hallucinations came?
After reading a 2001 account in The New York Times magazine of CIA scientist Frank Olson's own death following a similar experience – Olson was given LSD without his knowledge and later died when he fell or was thrown from a hotel room in New York – Stanley's allegations seem almost mundane.
But the implications of the Supreme Court ruling against the NCO cast a dark shadow that falls over every man and women serving in the U.S. military today.
The strategic and constitutional goal of military discipline is to unify men and women to win wars in defense of the United States and to protect the Constitution. Practically, this discipline also exists to forge loyal order in the military chain of command. However, the real glue in the chain of command is earned trust.
In the name of protecting orderly military discipline, the Stanley decision helped to undermine this crucial trust. The worst blow to military morale and discipline in recent history came in the 1970s. It was not only from the damage done to the military from our disastrous experience in Vietnam, but as a result of revelations that the Army and CIA had conducted LSD, radiation, and chemical war experiments on U.S. enlisted personnel without their consent over the years.
The Stanley decision embraced the stock Cold War arguments popular among certain CIA elements that destroying trustworthiness was an acceptable price to pay in the name of "national security." Such was the dubious purpose of the CIA's MKULTRA program in the early 1950s that included the inhuman LSD experiments aimed at making a new and improved truth serum. Is the "war on terror" the new justification for experiments on soldiers?
In Stanley, Scalia excused the court from the red-hot issue by using the mere
existence, not exclusive language, of the power committed to the Congress to regulate the naval and land forces found in Article 1, Section 8 of the U.S. Constitution. A careful reading of Scalia's opinion shows that he relied not on that particular clause's plain language, but rather from the court's own activist reasoning in previous cases that that inferred an exclusion from the "positive power." The result was that Scalia argued away any meaningful judicial relief for the afflicted Army sergeant.
Other citizens have access to monetary damage suits when their remedies elsewhere are inadequate. However, Scalia's premise in Stanley was that enlisted personnel are not worth the large amounts of money that other people can get when they sue their government employers. He covered for that elitist premise by pretending to protect military discipline.
The Stanley case was about deciding the legal question of whether other mistreated former enlisted personnel could bring a suit in civilian courts for damages at all. Here, Stanley, after serving at risk to life and limb, going so far as to volunteer to test chemical warfare suits for the benefit of fellow soldiers, nearly losing his sanity and then losing his family to the after-effects of illegal government actions, was stonewalled with hair-splitting procedural ducking by the nation's highest court.
In February 1953, Secretary of Defense Charles E. Wilson had ordered the Army, Navy and Air Force to follow standards of informed consent set forth in the postwar Nuremberg Tribunal after Nazi medical experiments on human prisoners made the world gag in disgust. However, documents on file at George Washington University's National Security Archive show that some people in the United States missed the point of the Nuremberg trials.
Here is a final question for military minds and jurists to ponder. How do you suppose someone at an Army laboratory could be persuaded to so thoroughly deceive one of his own compatriots and poison him? Those at the Army facility, if not deceived themselves, probably rationalized that Stanley's consent to the dangers inherent in volunteering to test chemical warfare suits covered any danger posed by directly testing LSD on a subject without his knowledge.
Like so many trusting people who are wrongfully abused, Stanley probably believed that the chemical warfare suits would be state-of-the-art American technology that would protect him from whatever chemical agents were involved.
As we know today, it was Stanley's body, not the suit, being tested. It was his faithfulness to military orders that was betrayed. It was his nation's highest court that upheld the betrayal.
What is the continuing relevance of this case to today's troops? The U.S. District Court in Washington, D.C., early last month "modified" a five-month-old injunction that had halted the DoD Anthrax Vaccine Immunization Program (AVIP) on grounds the Food and Drug Administration had not promulgated sufficient public notice about the original program. Some observers expect the modification to result in resumption of mandatory vaccinations sometime this year.
Given the ongoing controversy over adverse effects of the anthrax vaccine, a review of U.S. v. Stanley is not encouraging for today's potential medical guinea pigs wearing their nation's uniform.
Congress must pass a law that requires informed consent whenever any experimental drug or process is to be applied to our troops. The should give the troops and veterans a route to meaningful monetary compensation in courts without a conflict of interest if such experimental actions violate their rights. At risk is our nation's legitimacy as a trustworthy democracy that practices at home what it preaches to the world.
Ellie
Military Discipline vs. Constitutional Rights
By Michael S. Woodson
As the U.S. military prepares to resume its controversial mandatory anthrax vaccine immunization program for the troops, any personnel who may later allege injury or harm from the vaccine face a nearly impassable barrier to seeking redress through monetary damages by lawsuits in the federal courts. If troops objecting to the vaccine are unable to stop the program by obtaining injunctions against the program, it appears they will have no recourse for unconsented injuries caused by the vaccine unless Congress grants adequate compensation by statute.
Although the federal government has in the past created special compensation programs to help victims, airlines, security firms, insurers and re-insurers cope with 9/11, our troops do not enjoy similar regard when failures in government or corporate judgment regarding terror threats lead to injuries or debilitating illnesses. Here, the controversy is over whether the cost of the anthrax vaccine outweighs its benefits considering the likelihood of anthrax exposure.
And if one previous decision by the Supreme Court were to occur again, the Pentagon may even be free to administer the vaccine to troops surreptitiously and get away with it.
It was, in my opinion, a U.S. Supreme Court decision ranking with the worst of them. The case before the high court in 1987, U.S. v. Stanley, illustrates that the court has already ratified the constitutionality of the elitist abuse of enlisted personnel.
Treating the doctrine judicial restraint as more important than the substance of the Constitution itself, Justice Antonin Scalia opined for the majority of the Supreme Court in Stanley that former U.S. Army Master Sgt. James B. Stanley could not sue the Army or military officers for monetary damages after they treated him like a laboratory rat and tested the military effects of LSD on his body and mind without his consent or knowledge.
The Stanley decision held that where an enlisted person's injury was "incident to" or "arising" out of his military service, he or she could not sue the military for compensation. One wonders how military service or discipline could ever include civilian and/or military leaders fraudulently and secretly introducing LSD into the body of a U.S. Army NCO and concealing the fact. Common sense tells us that such an act would erode trust and discipline in the ranks.
In February 1958, Stanley had volunteered for a program pitched by the Army described as as a chemical-warfare-gear-testing experiment. Instead, project managers all along dosed him with LSD without his knowledge or consent.
Stanley was not told until decades later. His subsequent lawsuit charged that psychiatric symptoms from LSD poisoning caused him to suffer recurring hallucinations that led him to attack his wife. This destroyed his marriage and brought him untold mental suffering as he lived with the uncertainties caused by his symptoms. Who can measure the pain of one's own questioned sanity after the hallucinations came?
After reading a 2001 account in The New York Times magazine of CIA scientist Frank Olson's own death following a similar experience – Olson was given LSD without his knowledge and later died when he fell or was thrown from a hotel room in New York – Stanley's allegations seem almost mundane.
But the implications of the Supreme Court ruling against the NCO cast a dark shadow that falls over every man and women serving in the U.S. military today.
The strategic and constitutional goal of military discipline is to unify men and women to win wars in defense of the United States and to protect the Constitution. Practically, this discipline also exists to forge loyal order in the military chain of command. However, the real glue in the chain of command is earned trust.
In the name of protecting orderly military discipline, the Stanley decision helped to undermine this crucial trust. The worst blow to military morale and discipline in recent history came in the 1970s. It was not only from the damage done to the military from our disastrous experience in Vietnam, but as a result of revelations that the Army and CIA had conducted LSD, radiation, and chemical war experiments on U.S. enlisted personnel without their consent over the years.
The Stanley decision embraced the stock Cold War arguments popular among certain CIA elements that destroying trustworthiness was an acceptable price to pay in the name of "national security." Such was the dubious purpose of the CIA's MKULTRA program in the early 1950s that included the inhuman LSD experiments aimed at making a new and improved truth serum. Is the "war on terror" the new justification for experiments on soldiers?
In Stanley, Scalia excused the court from the red-hot issue by using the mere
existence, not exclusive language, of the power committed to the Congress to regulate the naval and land forces found in Article 1, Section 8 of the U.S. Constitution. A careful reading of Scalia's opinion shows that he relied not on that particular clause's plain language, but rather from the court's own activist reasoning in previous cases that that inferred an exclusion from the "positive power." The result was that Scalia argued away any meaningful judicial relief for the afflicted Army sergeant.
Other citizens have access to monetary damage suits when their remedies elsewhere are inadequate. However, Scalia's premise in Stanley was that enlisted personnel are not worth the large amounts of money that other people can get when they sue their government employers. He covered for that elitist premise by pretending to protect military discipline.
The Stanley case was about deciding the legal question of whether other mistreated former enlisted personnel could bring a suit in civilian courts for damages at all. Here, Stanley, after serving at risk to life and limb, going so far as to volunteer to test chemical warfare suits for the benefit of fellow soldiers, nearly losing his sanity and then losing his family to the after-effects of illegal government actions, was stonewalled with hair-splitting procedural ducking by the nation's highest court.
In February 1953, Secretary of Defense Charles E. Wilson had ordered the Army, Navy and Air Force to follow standards of informed consent set forth in the postwar Nuremberg Tribunal after Nazi medical experiments on human prisoners made the world gag in disgust. However, documents on file at George Washington University's National Security Archive show that some people in the United States missed the point of the Nuremberg trials.
Here is a final question for military minds and jurists to ponder. How do you suppose someone at an Army laboratory could be persuaded to so thoroughly deceive one of his own compatriots and poison him? Those at the Army facility, if not deceived themselves, probably rationalized that Stanley's consent to the dangers inherent in volunteering to test chemical warfare suits covered any danger posed by directly testing LSD on a subject without his knowledge.
Like so many trusting people who are wrongfully abused, Stanley probably believed that the chemical warfare suits would be state-of-the-art American technology that would protect him from whatever chemical agents were involved.
As we know today, it was Stanley's body, not the suit, being tested. It was his faithfulness to military orders that was betrayed. It was his nation's highest court that upheld the betrayal.
What is the continuing relevance of this case to today's troops? The U.S. District Court in Washington, D.C., early last month "modified" a five-month-old injunction that had halted the DoD Anthrax Vaccine Immunization Program (AVIP) on grounds the Food and Drug Administration had not promulgated sufficient public notice about the original program. Some observers expect the modification to result in resumption of mandatory vaccinations sometime this year.
Given the ongoing controversy over adverse effects of the anthrax vaccine, a review of U.S. v. Stanley is not encouraging for today's potential medical guinea pigs wearing their nation's uniform.
Congress must pass a law that requires informed consent whenever any experimental drug or process is to be applied to our troops. The should give the troops and veterans a route to meaningful monetary compensation in courts without a conflict of interest if such experimental actions violate their rights. At risk is our nation's legitimacy as a trustworthy democracy that practices at home what it preaches to the world.
Ellie