Tuesday, November 21, 2017 20:51

The Fort Hood Attack: Terrorist Act or Tort?

– Wiccapundit

In the aftermath of the Fort Hood attack committed by Muslim Major Nidal Hasan, the question has arisen whether those military personnel who were injured or killed are eligible for the Purple Heart. 

Since 1973, the Purple Heart has been authorized for injuries sustained as the result of a terrorist attack, if it is recognized as such by the Secretary of the Army, or jointly by the Secretaries of the various services if persons from more than one service were injured in the attack.  (Executive Order 11016, sec. 1(f)).  Rep. John Carter of Texas has introduced a bill that would define those military individuals shot by Maj. Hasan as being eligible for the Purple Heart.

I leave aside consideration of: (a) what effect a pre-trial determination that the attack was terrorism would have on the prosecution of Hasan, and (b) the political implications to the Obama administration – as well as the Army – of admitting that a terrorist attack was committed on U.S. soil at a military base by a Muslim member of the armed forces.  The question is, how are the soldiers to be treated?

In 1950, the United States Supreme Court decided the case of Feres v. U.S. Under the Feres Doctrine, the Court determined that the United States government is immune from suit under the Federal Tort Claims Act for injuries sustained by members of the armed forces due to the negligence of others in the armed forces.  The Federal Tort Claims Act provides a limited waiver of sovereign immunity so that private parties can sue the United States government for injuries due to acts committed by persons acting on behalf of the United States.  Service members’ families are also barred from suing for the death or injury of the service member.

There have been exceptions to the Feres doctrine where service members were allowed to sue when civilians could have been harmed in the same manner that the service members’ injuries occurred, under similar circumstances.  There were also civilians injured in the Ft. Hood attack, whose cases would not be covered by Feres.

I do not believe that Feres would operate to bar the service members’ tort claims.  Although a comprehensive discussion of the vagaries of the FTCA’s application to the Ft. Hood shootings is beyond the scope of this post, the issue presents a stark choice in my opinion: either the soldiers are due Purple Hearts, or they (or the surviving family members) can sue the federal government for the wrongful deaths and serious injuries.  Such suits, I believe, would be in the nature of (a) claims of negligence by of the officers who passed Hasan up the chain of promotion without doing anything about his radical views and possible danger to others, and (b) a general claim of “negligent retention” against the Army for not dismissing Hasan before the attack occurred.

The damages flowing from such negligence in this case would be considerable, not to mention the precedent set for allowing such claims to be litigated.

So, Purple Hearts for the soldiers or greenbacks for the families?  I think the Obama administration will never admit that a terrorist attack occurred on their watch.  Since lawsuits just mean paying a bunch of money (and don’t we have plenty of that?), our tax money will be used to paper over the issue, in my opinion.

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