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Support the troops: renewing angst over Massachusetts v. Laird and endowing service members with effectual First and Fifth Amendment rights.

  I. INTRODUCTION
 II. POLITICAL AUTHORITY AND DERIVATIVE DEBATE
     A. The Authorization to Use Force
     B. Competing Positions
        1. Debates in Congress Over Supporting the Troops
        2. Societal Turbulence Over Defining the Meaning of
           "Support the Troops"
III. LARGE-SCALE HARM FACED BY TROOPS
     A. Well-Known Risks.
     B. Limitations on Liability
     C. Posttraumatic Stress Disorder
     D. Exacerbating Troop Injuries? Depleted Uranium
        Exposure
     E. Meeting Military Need
        1. Recruitment
        2. Sliding Supply After the Iraq War
 IV. RESTRICTIONS ON THE RIGHTS OF U.S. TROOPS
     A. Introduction
     B. Culture, Hierarchy, and Mandatory Directives
     C. The Context of Conscientious Objection
  V. CONCLUSION


I. INTRODUCTION

In May 2014, scandal raged in Congress over delays in treatment and medical malpractice that may have led to over one hundred deaths of patients in Veteran Administration (VA) facilities, and over the possible existence of "secret lists" and the shredding of documents that sought to hide these failures. (1) Republican John McCain called for a criminal investigation and Speaker of the House John Boehner stated that "[t]he real issue here is that, the president is the one who should be held accountable." (2) McCain and Boehner advance credible positions. The shameful and lamentable events unfolded due to a VA system that confronts a several-month-long scheduling backlog for medical treatment, (3) and the backlog was a byproduct of recent battle injuries. (4)

Over 1.7 million U.S. troops were deployed to Afghanistan and Iraq during the recent wars. (5) The war in Afghanistan was not so contentious, but the Iraq War was notably controversial because Congress granted an authorization for the use of military force (AUMF-Iraq) to purge Iraq of an alleged arsenal of prohibited weapons that the Bush Administration avowed existed inside Iraq. (6) It was later verified that no such arsenal existed. (7) Professors

Ackerman and Hathaway befittingly punctuate that the AUMF-Iraq was a limited authorization to use force conditioned on there being an actual imminent threat, which means that when the Bush White House began offering additional rationalizations after the invasion, particularly of humanitarian intervention, "such talk was blatantly inconsistent with the plain language of the 2002 resolution." (8) The humanitarian exigency characterization was baseless and after the Senate Select Committee on Intelligence (SSCI) completed its five-year investigation of the false allegations that led to the Iraq War, the SSCI chair remarked, "the Bush Administration led the nation to war under false pretenses." (9)

The international community condemned the attack and several years of regularly conducted polls confirmed that approximately 80% of Iraqis opposed continuing occupation. (10) In 2007, ABC News surveyed the congresspersons who had voted for the AUMF-Iraq in October 2002 and discovered that a substantial percentage reversed their positions in hindsight, and therefore, the resolution would have been rejected had there been more accurate information about the alleged threat. (11) The war and occupation resulted in over 32,000 U.S. military injuries, 4488 U.S. military deaths, 134,000 Iraqi civilian deaths, and a $2.2 trillion dollar cost to American taxpayers. (12) President Obama understood the American and international backlash, (13) and in the January 2010 State of the Union Address he promised to withdraw all combat troops within eight months. (14) U.S. troops were withdrawn by the end of 2011. (15)

This article is devoted to the advocacy of former U.S. troops and their families who faced hardships due to the war and dissented based on their discernment of potentially faulty constitutional war powers. Jurisprudence indicates that U.S. troops lack firm constitutional rights even when there may be defects in the exercise of constitutional powers. (16) This article revisits questions that were raised over the constitutionality of the Vietnam War, (17) with new facts, and asks whether possible constitutional flaws should endow American troops with entrenched rights to voice their opinions under the First Amendment and to not "be deprived of life, liberty, or property, without due process of law" under the Fifth Amendment. (18) Based on the facts of the Iraq War, this article queries whether the majority's denial of Massachusetts' challenge (on behalf of conscripts) to the constitutionality of the Vietnam War in Massachusetts v. Laird (19) is less compelling on principle than Justice Douglas' dissent, which emphasized the illogic of valuing property rights in the Fifth Amendment more than the right to "life and liberty" of American troops. (20)

Part II imparts a synopsis of the public and congressional debate prior to and during the Iraq War to emphasize the intensifying controversy over the invasion. Part III tenders a few justifications for elevating the constitutional rights of troops above a decumbent status, including the prospect of exposure to life-threatening injury, the tension lodged on the military disability system, the prevalence of posttraumatic stress syndrome, the controversy surrounding ill-health effects from depleted uranium, and the misfortune that emerged with military recruitment and stop-loss orders. Part IV concerns how dissent to a war premised on controvertible legality and a war that inflicted an enervating toll on American troops can be mired by military rules of general applicability. Part V concludes by questioning whether denying genuine First and Fifth Amendment rights to American troops when they are dictated to endure costs in a war driven by political artifice is immoral and un-American.

II. POLITICAL AUTHORITY AND DERIVATIVE DEBATE

A. The Authorization to Use Force

The public agenda setting for war with Iraq began with media announcements of war plans and discussions of troop deployments in mid-2002, (21) but the pressure on Congress and the United Nations fully reared during an American President and British Prime Minister news conference on September 7, 2002, and the aggressive rhetoric continued on the next day with Defense Secretary Rumsfeld, Vice President Cheney, National Security Advisor Rice, and Secretary of State Powell circulating the Sunday political talk shows and offering new security threat claims about Iraq. (22) The President addressed the United Nations General Assembly on September 12, 2002, with the allegations about Iraq, such that emotions of indignation and peril over memories and discourse involving September 11 converged with Iraqi weapons claims. (23) At the same time, the President released a national security strategy, which proclaimed a right to preemptively attack other countries, (24) and lobbied Congress for an authorization to use force against Iraq. (25) Republicans proved more willing to back military action and some were not overly concerned about having evidence of wrongdoing or weapons of mass destruction (WMDs) to justify the use of force, (26) while Democrats were somewhat more reluctant to commit to an American military action against Iraq. (27) Democrats wanted the Security Council to act first, but instead, as a New York Times editorial explained, "[t]he haste" in pressing for an authorization to use force was "clearly motivated by campaign politics" because "Republicans [were] already running attack ads against Democrats on Iraq." (28)

The intensity of agenda setting was later summarized in a study produced by the Center for Public Integrity, which found that during September 2002, top Bush administration officials made approximately 300% more false statements about threats from Iraq than in the previous month. (29) Observing how the Bush Administration's threat claims intensified and were being exploited to spur congressional action, SSCI member Dick Durbin addressed a letter to CIA Director George Tenet on September 9, 2002, to "direct the production" of a national intelligence estimate (NIE) for Congress. (30) An NIE had never been produced that was devoted to Iraqi weapons of mass destruction programs, (31) and the most recent official determinations had been produced by United Nations weapons inspectors who departed Iraq in 1998 and acknowledged that they lacked evidence of Iraq possessing prohibited weapon programs. (32) The SSCI later indicated that the U.S. Intelligence Community (IC) was devoid of intelligence sources on Iraqi weapons systems after inspections ceased in 1998. (33)

On September 19, 2002, President Bush submitted his draft resolution to Congress to authorize the use of military force, and Congress held hearings on the alleged threat. (34) On October 1, 2002, the IC finished an NIE that took three weeks to complete, when experts presumed that the NIE production process could have required six months to produce such complex estimates. (35) Because NIEs normally remain classified and are only available to select government officials and politicians, the CIA produced a white paper, Iraq's Weapons of Mass Destruction Programs, for Congress. (36) The SSCI's later investigation determined that the White Paper was "substantively similar to" the NIE, (37) but because caveats, dissenting opinions, and equivocal language were eliminated, the "White Paper misrepresented [IC] judgments to the public which did not have access to the classified National Intelligence Estimate...." (38) The problem paralleled what led Senator Durbin to request the NIE--top administration officials are provided with classified intelligence information in Presidential Daily Briefs (PDBs) (39) and could selectively release classified information while keeping controversial and weak foundations of the claims secret, (40) placing Congress at an informational disadvantage. (41) Meanwhile, the Bush administration's high-profile agenda setting preceded the production of the NIE, which could bias the IC, Congress, and the public with mischaracterized intelligence. (42)

With the biased White Paper, members of Congress debated the alleged danger from prohibited weapons and potential Iraqi connections to al Qaeda. (43) From historical investigations, Congress tends to be more supportive of the President's political initiatives when the executive's public opinion polls are high. (44) CNN analyzed how the executive's advocacy elevated political stakes: "He has Democrats in a box.... It's very hard for them to oppose the president, especially just weeks before the November election." (45) Professor Jide Nzelibe commented, "Democrats tried to propose postponing the request [for a vote] until after the November 2002 election, but ultimately they relented when Republican members of Congress started accusing them of playing politics with the country's national security." (46) Louis Fisher wrote: "[L]eading Democrats folded, one by one, looking less to constitutional requirements than to their own political calculations." (47)

The President can escalate conflict and contour public opinion. (48) The public was already primed on the issue of peril from Iraq, and those perceptions likely goaded members of Congress to vote in accordance with constituent perceptions on this highly publicized agenda because a politician's foremost self-interest is to be reelected. (49) The President also promoted the issue of threats from Iraq while campaigning for Republican candidates. In late September 2002, CNN noted that President Bush had been campaigning for fellow Republicans in an aptly titled article, "Bush Talks Iraq, Stumps for GOP in N.J." (50) Members of Congress will support the President's agenda (51) to take advantage of the coattail effect (52) and cohesion exists inside the parties, such that members exhibit ideological allegiance and often vote along party lines to bestow reciprocal support. (53)

Democrat Senator Byrd, the longest-serving Senator in U.S. history, was vocal, but that may have been because he was not in danger of losing his position. (54) Byrd remarked, "I will not give the benefit of the doubt to the President. I will give the benefit of the doubt to the Constitution." (55) Byrd observed the evidentiary foundation and expounded: "Before we put this great nation on the track to war, I want to see more evidence, hard evidence, not more presidential rhetoric." (56) Byrd opined that the White Paper was unconvincing, believed that Congress should not "yield to this absurd pressure to act" one month before an election, (57) and sought to precisely confine the authorization. (58) Senator Mark Dayton accentuated that "there appears to be no imminent threat to the United States from Iraq" and opined that the timing was intended for a "political advantage in the upcoming election." (59) Emphasizing that the White Paper was not convincing and did not present evidence, Senator Patrick Leahy said during the debates on the vote:
      Many respected and knowledgeable people--former senior military
   officers and diplomats among them--have expressed strong
   reservations about this resolution.... But they have not seen that
   evidence, and neither have I.

      We have heard a lot of bellicose rhetoric, but what are the
   facts?
   I am not asking for 100 percent proof, but the administration is
   asking Congress to make a decision to go to war based on
   conflicting statements, angry assertions, and assumption based on
   speculation. (60)


The White House extensively lobbied to pass the resolution. (61) Almost all Republican members of Congress voted in favor of the authorization. In the House of Representatives, 215 Republicans and eighty-one Democrats voted in favor. (62) In the Senate, forty-eight Republicans and twenty-nine Democrats voted for it. (63) Professor Mermin wrote: "Democratic support for a Republican military intervention is not compelling evidence that the policy advances American interests, or even that a broad spectrum of elected officials believe that it does," but may mean "that reelection-seeking Democrats have made a strategic decision not to criticize an American war." (64) After the invasion, the SSCI inspected the intelligence reports and concluded that estimates were not supported by the existing intelligence. (65) Congress voted based on an unclassified version of a hastily produced NIE with substantively false allegations. (66)

One month after the war began, ABC News provided an apropos representation of the transformed rationale for war when it reported, "some [Bush Administration] officials now privately acknowledge the White House had another reason for war--a global show of American power and democracy." (67) "[A] global show of American power and democracy" is not a legal basis for action, and it was not what Americans, Congress, the United Nations Security Council, or foreigners were told. (68) ABC News also conveyed that White House officials insisted that they did not lie, but that "the administration emphasized the danger of Saddam's weapons to gain the legal justification for war from the United Nations and to stress the danger at home to Americans." (69)

"Emphasizing" accusations that are false to "gain the legal justification for war" when possession of prohibited weapons was the only discussed and legal basis for using military force is lying. The AUMF-Iraq stated that the use of military force required that Iraq be a national security threat to the United States or that force be necessary to enforce U.N. Security Council resolutions. (70) When the authorization was adopted, members of Congress expressed that it was intended to leverage resolute diplomacy through the United Nations and was not per se endorsing war. (71) The President understood that the terms were conditions because he reiterated the AUMF-Iraq language verbatim, he stated that the terms were met in a letter to Congress two days before the attack to comply with the 48-hour requirement in section two, and he assuredly was not forthright when he affirmed the conditions were met. (72)

B. Competing Positions

1. Debates in Congress Over Supporting the Troops

To evaluate the discordant political perceptions regarding the rights and obligations of troops, as derived from the constitutional process that conferred war powers authority, assume that there are two opposing sides to the execution of the war and that those two positions justify their opinions from factors such as political inclinations, interpretations of the President's war powers, and the status of troops' interests based on the legitimacy of the conflict. War advocates may punctuate an obligation to unite behind executive discretion in interpreting the AUMF-Iraq, irrespective of the political process leading to war. Alternatively, war opponents would likely underscore defects in the AUMF-Iraq authority, including that Congress required security threats and did not sanction invasion to actualize "a global show of American power and democracy." (73) With respect to the derivative troop status, the first position would ostensibly reckon that patriotism means countenancing the commander in chief's directives so that the U.S. military achieves victory in battle by subjugating the foe with the fewest casualties, while the second opinion would seemingly equate patriotism with protecting the lives of troops by not deploying them into battle without a justified and democratically-endorsed reason.

The first view was ardently championed by the President. Many criticized the President for having a callous disregard for the consequence for war, (74) particularly when his own avoidance of the Vietnam War draft was filled with inconsistencies and discrepancies. (75) Three months after the invasion, Bush remarked, "There are some who feel like that, you know, the conditions are such that they can attack us there. My answer is bring them on. We got the force necessary to deal with the security situation." (76) When the New York Times reported on this quote shortly thereafter it was placed into the context of Bush defending the troops: "[A]nybody who wants to harm American troops will be fought and brought to justice." (77) The second view that began to oppose the war strengthened as U.S. troop deaths mounted and the mission was uncertain.

In an October 2003 Harris poll, taken six months after the invasion, the U.S. public was split on support for the war, but in June 2004 the Harris poll found that 56% of Americans favored "bringing most of our troops home in the next year." (78) Even as the Bush Administration sought to maintain high support for the war, by the end of 2005, opinion polls revealed that a majority of Americans "oppose[d] the decision to attack Iraq" and that "[a] majority also want[ed] troops brought home." (79) In a Washington Posi-ABC poll in November 2005, Bush's approval ratings dropped to 39%, and 58% of Americans had doubts about the President's honesty. (80) A February 2006 Zogby poll found that 72% of U.S. troops favored withdrawal within a year. (81) In March 2006, 68% of Americans believed that troops should be decreased or withdrawn. (82) In the 2006 congressional election exit polls, 74% of Democrats wanted to withdrawal troops from Iraq, while only 24% of Republicans agreed. (83)

Republicans had to choose whether to abandon Bush on Iraq. (84) As experts predicted, Bush's low approval ratings (85) translated into landslide victories for Democrats in the 2006 congressional elections, giving Democrats control of both the House of Representatives and Senate for the first time since 1994. (86) There was a high correlation between district-level losses and legislators who voted for the war, (87) and victories were viewed as partially attributable to voter rejection of the Iraq War. (88) After Democrats acquired control of both Houses of Congress, Congress approved a $124 billion Iraq War funding bill and attached a troop withdrawal timeline, but on May 1, 2007, Bush vetoed the bill (89) and Congress failed to override the veto with a two-thirds supermajority. (90) It may not be in a president's self-interest to withdraw from a war if doing so could mean that he/she loses credibility, experiences negative populace reactions and further erosion of ratings for starting the war in the first place, weakens the commander in chief power, or smirches a legacy for being forced to exit a U.S. initiated war. (91) The President was resolute and won the political showdown and maintained the occupation, (92) perhaps because of the perception management that developed over what it meant to support the troops.

Tactics paralleled exploits during the Vietnam War. Both the Johnson and Nixon Administrations linked support for the troops with "loyalty to the government and its policy in Southeast Asia, and ... impugned the loyalty of their critics." (93) Members of Congress resented the rhetorical strategy of "do not turn your back on the troops" during the Vietnam War, but the rhetoric still impelled Congress to continue funding. (94) From the executive branch perspective, the assumption was that Americans were mandated to support the war or be viewed as unpatriotic. (95) Ultimately, none of the allotments for operations were "actually intended to promote troop safety, but in reality advanced the same policies of conducting a wider war that the public and Congress had rejected." (96) The court in Mitchell u. Laird stated that "[a] Congressman wholly opposed to the [Vietnam War's] commencement and continuation might vote for the military appropriations and ... [even] draft measures because he was unwilling to abandon without support men already fighting." (97)

Amid Congressional dissent over deploying more troops to Iraq, Vice President Cheney, who was also subject to questions about how he avoided serving in the Vietnam War, (98) asserted:
      When members of Congress pursue an antiwar
   strategy ... they are not supporting the troops, they are
   undermining them ... [a]nyone can say they support the
   troops and we should take them at their word, but the proof
   will come when it's time to provide the money. (99)


To defend the "troop surge" proposal, Bush retorted, "I believe the members of Congress are sincere when they say they support the troops, and now is the time for them to show that support." (100) Bush exerted the same stratagem during the 2004 presidential campaign after Democratic candidate Kerry voted to reject funding: "[Senator Kerry] said the whole matter about the $87 billion is a complicated matter. There's nothing complicated about supporting our troops in combat." (101) In March 2008, at a time when over four thousand American soldiers had been killed and tens of thousands injured, (102) Vice President Cheney stated that President Bush bears "the biggest burden" of the war. (103)

Professors Lobel and Loewenstein explained that the "immediate appeal of the 'support our troops' argument usually outweighs any rational consideration of the merits of voting for or against funding." (104) Massachusetts Institute of Technology Emeritus Linguistics Professor Noam Chomsky identifies this situation as a typical propaganda stratagem that dismisses conditions that occasion war and the previously stated mission by focusing on dialogue that rallies the populace with patriotism. (105) Chomsky emphasizes how critical substantive inquiries can be dismissed by shifting attention:
   Support our troops. Who can be against that?

      ... The issue was, Do you support our policy? But you
   don't want people to think about that issue. That's the whole
   point of good propaganda. You want to create a slogan that
   nobody's going to be against, and everybody's going to be for.
   Nobody knows what it means because it doesn't mean
   anything.... So you have people arguing about support for
   the troops? "Of course I don't not support them." Then
   you've won. (106)


Does "support the troops" mean that Americans should continue to finance a war and leave American troops in dangerous conditions longer? A Zogby poll in February 2006 seemingly connoted that American troops might disagree because the poll found that 72% of U.S. troops in Iraq favored withdrawal within a year. (107) Senator Rockefeller reported that members of Congress would not have "sent so many U.S. troops into harms way" had they known that the intelligence allegations were false. (108) Republican Senator Gordon Smith, on the floor of the Senate, expressed, "I, for one, am at the end of my rope when it comes to supporting a policy that has our soldiers patrolling the same streets in the same way, being blown up by the same bombs day after day---- That is absurd. It may even be criminal." (109) Senator Campbell remarked, "we were leaned on pretty heavily by the administration ... if you didn't support the president you weren't a good soldier ... [s]o we got stampeded into doing something...." (110)

The AUMF-Iraq remained a divisive issue. During the 2008 presidential campaign, Senator John McCain conveyed an absolutely "shameless assertion that Barack Obama would rather win an election than win the War." (111) If Obama was representing a position to end a war that would appease American voters, he was upholding the Constitution by observing American democratic will; whereas, demonstrating pigheaded devotion to "winning" a war with no relation to the underlying conditions specified in the AUMF-Iraq might not. Nonetheless, the agitation abided. After President Obama won his second term, he appointed Republican Senator Chuck Hagel who opposed the 2007 Iraq War "surge" and Senator McCain stated, "I think history has already made a judgment about the surge, sir, and you're on the wrong side of it." (112) Hagel argued that 1200 American troops died in the buildup and that foreign policy decisions made in Washington should calculate the sacrifices of American troops. (113) Indeed, CBS's reflective poll in 2007 affirmed that congresspersons would have voted against the AUMF-Iraq had they known that all of the allegations about prohibited weapons were false, the American people and Congress wanted a withdrawal in 2007, and a 2013 poll found that a majority of Americans still regretted the invasion of Iraq. (114)

2. Societal Turbulence Over Defining the Meaning of "Support the Troops"

Despite that academics and the general public are customarily hesitant to voice sentiments that will defy predominant heuristics if defiance might expose the protester to disrepute, (115) commentators did tender challenges to defining the "support the troops" theme. For example, in the midst of the recently proposed military action against Syria that was overwhelmingly opposed by the American public and Congress, (116) Virginia Tech Professor Steven Salaita experienced a firestorm after he expressed that he had grown fatigued of the "ubiquitous 'support the troops' meme." (117) Salaita expressed that his meaning was contorted because he does believe that more should be provided to assist injured troops but that the Orwellian exploitation of the phrase "support the troops" functions as a "barrier to questioning American foreign policy," a method of executing belligerent military acts, a vehicle for privileged corporate interests to prosper from war, and a mode of exploiting troops who do not realistically benefit from the military action. (118) In essence, once the dominant patriotic discourse imbues society and merges the executive's military mission with the sincere concern for American service that exist across society, as articulated by Professor Chomsky, (119) an executive could twist the public's loyalty to the troops into belligerence that could endanger the lives of additional American military personnel. To more fully appreciate the reverberations of the persuasive artifice, it behooves to read the terms of the AUMF-Iraq; the President's verbatim iteration of the conditions; (120) and acknowledge the 4488 U.S. military deaths, disabilities to tens of thousands of injured veterans, the 134,000 Iraqi civilian deaths, and the $2.2 trillion dollars that were assessed against American taxpayers. (121)

Many Americans and groups forecasted what might befall very early into the war. One year after the invasion of Iraq, military families and antiwar activists with over half a million supporters sought to censure President Bush over the false allegations that led to the Iraq War. (122) Sue Niederer, a mother of a soldier who was killed in Iraq, stated, "The best way that the United States Congress can honor those brave men and women in uniform who have served in Iraq, and who continue to serve in Iraq, is to honor the truth." (123) Niederer continued by stating that Congress can honor members of the military "by holding accountable those who deceived and manipulated the American people to justify the ... occupation of Iraq, starting with President Bush." (124) Two-time Academy Award winner Actor Sean Penn, who was a vocal critic of the war and was involved in humanitarian work in Iraq, (125) appeared on Real Time with Bill Maher shortly after Bush vetoed the bill to withdrawal troops in May 2007 and received a deafening applause when he expressed umbrage:
   [W]hen you have a precedent set like that and you have
   somebody like George Tenet acknowledging in his book that
   he knew that the administration was deceiving the American
   people into a situation that is murdering young men and
   women from this country and others, that George Tenet and
   Dick Cheney and Condoleezza Rice and George Bush, et ah,
   should be in fucking jail. (126)


Similarly, Tomas Young, an Iraq War veteran who was paralyzed in a battle with insurgents in Sadr City, Iraq, published a letter that he believed would have been his final words if he chose to give up his struggle and refuse his feeding tube: (127)
      I write this letter on behalf of husbands and wives who
   have lost spouses, on behalf of children who have lost a
   parent, on behalf of the fathers and mothers who have lost
   sons and daughters and on behalf of those who care for the
   many thousands of my fellow veterans who have brain
   injuries.... Mr. Bush and Mr. Cheney. I write not because I
   think you grasp the terrible human and moral consequences
   of your lies, manipulation ... I want to make it clear that I,
   and hundreds of thousands of my fellow veterans, along with
   millions of my fellow citizens, along with hundreds of
   millions more in Iraq and the Middle East, know fully who
   you are and what you have done. You may evade justice but
   in our eyes you are each guilty of egregious war crimes, of
   plunder and, finally, of murder, including the murder of
   thousands of young Americans.... (128)


Mike Luckovich won a Pulitzer Prize for writing the names of American troops who died into the word "Why?" (129) Dan Frazier sold bumper stickers and T-shirts that included the names of thousands of fallen troops in a micro font to form the message "BUSH LIED" and "THEY DIED." (130) In 2007, Linda Harper-Brown, a Texas House of Representatives member, remarked: "It just doesn't seem right to profit on the death of a soldier who put his life on the line for us and our freedom." (131) A compelling argument can be made that every American troop enlisting today symbolically represents American freedom and that American troops serving in the two world wars did make tremendous sacrifices that may have ensured American security, but a phrase such as "put his life on the line for us and our freedom" is an ostensible linguistic contrivance that supplants Frazier's political message by using the memory of those who did perish in the Iraq War. Americans are not free because the United States went to war with Iraq and it is also highly probable that had there been no war, those thousands of American troops would still be alive. That was Frazier's apparent political message. (132) Harper-Brown's suggestion unfortunately has the impact, even if unintended, of paralleling that of the Bush Administration, which is, don't pay any attention to what we guaranteed in hundreds of statements about security threats or the language of the AUMF-Iraq. Just support the war, which is supporting the troops. (133)

Despite the significance of the underlying political debate, five states passed laws to prevent the sale of Frazier's shirts. (134) Frazier challenged the Arizona law and in Frazier u. Boomsma, (135) Judge Wake issued a permanent injunction against the state of Arizona from enforcing the law against Frazier because the law was unconstitutional on application, and wrote that "the names of the individual soldiers are printed on the t-shirts in a font that cannot be read beyond arm's length." (136) Judge Wake continued: "The identity of any particular soldier is not the point of the t-shirts; it is the combined effect of all the names of the 3461 deceased soldiers" that constitutes the political message. (137) The court was placed in an unenviable position because it is important to respect the perspective of parents of fallen soldiers who might favor the application of a law that restricts private entities from profiting by using the name of a deceased troop, (138) but it is also important to honor other parents who lost sons and daughters in the Iraq War and who believed that "support the troops" should mean that troops should only be deployed into war for a justifiable and sanctioned mission, particularly when that position became prominent among veterans' groups.

Veterans formed anti-war groups, such as Iraq Veterans Against the War, Operation Truth, and Military Families Speak Out, and these groups united with World War II, Vietnam War, and Korean War veterans to constitute umbrella organizations, such as Veterans for Peace. (139) Similar to the approach employed during the Vietnam War, protestors used symbolism, speech, and national pride to communicate that the optimal way to support troops is to bring them home, rather than to assume that troop interest is derived from obediently championing the president's supplanted justification for war. (140) Local Veterans Chapters formed to oppose the Iraq War and opined that troops suffer when they are sent to war based on lies and to serve political and corporate profit. (141) Professor Andrew Bacevich, a former Army officer and veteran of the 1991 Gulf War and the Vietnam War, whose son was killed during the Iraq War, vehemently opposed the Iraq War and harshly criticized the neoconservatives who used "American military force as a diplomatic tool and [were] willing to engage in deficit spending to pay for it." (142) Cindy Sheehan, a mother of a soldier killed in Iraq, was arrested for being in the Capitol building and wearing a t-shirt that said "2,245 Dead. How Many More?" (143)

The membership of peace groups expanded rapidly during the Iraq War, but they faced considerable obstacles, were denounced by war supporters, (144) and were not adequately heard by a mainstream media that generally favored the administration's discretion during war. (145) It is not evident that the American media generally paid adequate attention to dissent on issues related to the required conditions of the AUMF-Iraq before or after the war. (146) Referencing the effective restrictions on free speech rights, Professor Elvia Arriola noted: "What is of interest to me is the irony of those who went to war to defend freedom globally at the very moment that efforts were being made domestically to constitutionalize the very opposite of freedom."147 Politics set missions for the American military, and the next part addresses how troops bear the cost.

III. LARGE-SCALE HARM FACED BY TROOPS

A. Well-Known Risks

When a decision is made to deploy American forces into war, politicians should appreciate that military operations will intrinsically entail life-threatening risks to troops and continued funding from taxpayers, which should encourage policymakers to confirm that the underlying reasons for hostilities are verified, that the use of force is acceptable to the domestic democratic polity, and is justified to the international community. (148) While the ultimate sacrifice of American servicepersons was inherent in the political debates already discussed, this part addresses four additional harms to American troops that politicians should have appreciated prior to committing Americans to intense combat and prolonged occupation operations: (1) the burden placed on troops and taxpayers when the military disability system is overwhelmed, (2) the high probability that servicepersons could suffer from posttraumatic stress syndrome, (3) the possibility that U.S. troops could experience health risks from exposure to depleted uranium, and (4) the strain placed on troop supply as the military seeks to meet enlistment and reenlistment quotas, uses private military contractors (PMCs), and issues stop-loss orders.

B. Limitations on Liability

Any injured troop confronts impediments to remedial relief. Under the Federal Tort Claims Act (FTCA), members of the U.S. military cannot sue the U.S. government for "[a]ny claim arising out of the combatant activities of the military or naval forces, or the Coast Guard, during time of war," or for claims "arising in a foreign country." (149) Military troops dispatched into war and combat by political branch decisions also have no right to bring civil actions for damages against the government for violations of their constitutional rights. (150) Likewise, for noncombat injuries, the Feres-Stencel doctrine represents that U.S. military service personnel cannot hold the government responsible for activities "incident to service," (151) which is such an encompassing bar to liability that a serviceman was denied a cause of action when he suffered psychologically as a result of being involuntarily subjected to the military's LSD testing. (152) Federal courts adopted similar reasoning to preclude service member claims against government contractors for negligence (153) and for government contractor indemnity actions against the U.S. government. (154) In denying claims, courts often emphasize that imposing liability on the government could set precedent that would undermine military discipline (155) and would be unessential because U.S. troops have standardized, but capped, compensation awards via federal statutes and the Veteran's system, which are remedies that are awarded irrespective of the location of military operations and cause of injury. (156) For example, the standardized award for the 4488 troops who were killed in Iraq is the $100,000 that is paid to each decedent's family. (157)

With over sixty-thousand American troops seriously wounded in Iraq and Afghanistan, (158) VA facilities were stretched to the limit (159) and stymied from providing legally required services. (160) Protracted hospital stays with individuals with severed arms and legs and permanent injuries pushed facilities beyond capacity. (161) Scandal erupted when Army Surgeon General Lieutenant General Kevin Kiley was forced to retire after congressional criticism about the poor treatment of wounded American troops. (162) Congressional hearings revealed that Pentagon officials were returning medically unfit and wounded soldiers to Iraq. (163) Americans have traditionally insisted on ensuring that veterans injured in combat zones receive exceptional care and it is one social service that generally has not been cut when fiscal challenges arise. (164) In this case, Nobel Laureate Joseph Stigliz and Harvard Professor Linda Bilmes forewarned of dire economic consequences in their book, The Three Trillion Dollar War, (165) Economic crises manifested and injured veterans have confronted hardship.

On Veterans Day 2012, 45% of 1.6 million veterans of the wars in Afghanistan and Iraq were seeking disability compensation, which provides a compensation payment ranging from $127 a month for a 10% disability to $2769 per month for a 100% disability. (166) To receive compensation through the Department of Veterans Affairs, the injured military member must have a present disability caused by an injury or disease that manifested or was aggravated during military service. (167) The claimant process is required to be nonadversarial, with doubts resolved in the veteran's favor, (168) but only a fraction of those requesting disability payments realize benefits. (169) In recent years, the Veterans Board accepted 24% of the claims, remanded 37%, and denied 36%. (170) Decisions take an average of (183) days and those who pursue claims through appeals and to a final decision could wait for five years. (171) Among the hurdles that service members must navigate are that veterans' programs are poorly administrated and inadequately funded, (172) the military disability compensation system can be complicated (173) and beget inconsistent and inequitable results, (174) and there have historically been significant limitations to attaining legal assistance. (175)
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Title Annotation:Introduction through III. Large-Scale Harm Faced by Troops B. Limitations on Liability, p 447-479
Author:Bejesky, Robert
Publication:Albany Law Review
Date:Dec 22, 2014
Words:6425
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