LAND OF OPPORTUNITY? THE AMERICAN DREAM BECOMES A NIGHTMARE FOR DEPORTED MILITARY VETERANS

By Spring 2018 M-VETS Student-Advisor

1U.S. military veterans who have been deported to Mexico are seen honoring fallen soldiers on Memorial Day in Juarez, Mexico. (Herika Martinez/AFP/Getty Images)

[1]The United States of America, a country formed by immigrants, is referred to as the “Land of Opportunity” where dreams of success can come true with hard work and perseverance. The U.S. military is one such opportunity for immigrants. Certain noncitizens are eligible to enlist in the military and are then able to pursue an expedited path to citizenship.  However, the potential consequences for veterans who have honorably served but have not been naturalized as citizens can be severe, with countless veterans deported each year. For these individuals, the Land of Opportunity ignores their contributions and service to the United States and forces them to leave the country they swore to defend.

Opportunities for Noncitizens to Join the Military

Section 504 of Title 10 of the United States Code (“U.S.C.”) establishes the citizenship and residency requirements for serving in all branches of the U.S. armed forces. Under 10 U.S.C. § 504(b)(1), a person may join the military if he is a citizen of the United States or a “lawfully admitted permanent resident,”[2] which is also referred to as a permanent resident alien, resident alien permit holder, or Green Card holder.

In addition to lawful permanent residents being eligible to join the U.S. military, in 2008, the Department of Defense (“DoD”) established the Military Accessions Vital to National Interest (“MAVNI”) program. This pilot program authorizes a limited number of “legally present” noncitizens, including refugees, asylees, and those in certain other non-immigrant categories, to join the military if they possess skills deemed critical, including health care skills and expertise in specified foreign languages.[3]

Under the statute and through programs like MAVNI, noncitizens can and do join the U.S. military. In fact, noncitizens have served in the U.S. military dating as far back as the Revolutionary War.  About 8,000 noncitizens join each year, and approximately 35,000 noncitizens are currently serving in an active duty status in the U.S. armed forces.[4]

Naturalization Opportunities for Noncitizens in the Military

Joining the military provides several benefits for noncitizens, including a fast-track to citizenship. The Immigration and Nationality Act (“INA”) includes special provisions that permit lawful permanent residents who have served in the U.S. armed forces to be naturalized as U.S. citizens through an expedited process.  Under the INA, most naturalization applicants must have continuously resided in the United States as a permanent resident for at least five years.  This requirement is waived for those who have served in the military.[5]  Further, the INA also waives the requirement that an applicant reside in the state in which the application for naturalization is filed for a minimum of three months.[6]  The naturalization process can be further expedited if the individual served honorably during a designated period of hostility,[7] including during the War on Terrorism from September 11, 2001, to the present.[8]

Additionally, the MAVNI program, described above, “allows certain non-citizens legally present in the United States to join the U.S. armed forces in exchange for immediate eligibility for U.S. citizenship.”[9] Individuals who join the military through MAVNI are eligible to apply for U.S. citizenship without first becoming lawful permanent residents.  “An individual who joins the armed forces through this program is able to move from nonimmigrant, asylee, refugee, or [Temporary Protected Status] directly to U.S. citizenship.”[10]

Prior to Fiscal Year 2018, one day of service in the military during a designated period of hostility was sufficient for a noncitizen to be eligible for expedited citizenship. However, on October 13, 2017, the DoD issued new policy that requires noncitizen applicants to first obtain a favorable background and security suitability determination, complete basic training, and serve for 180 consecutive days, or one year in a reserve component, and acquire an honorable characterization of service determination.[11]  While this is more burdensome than prior to the policy change, it still reflects a more expedited process for noncitizens with military service compared to other noncitizens.

Deportation of Veterans Who Have Not Been Naturalized

Under existing laws and policies, noncitizen veterans risk being permanently expelled from the United States if convicted of a crime. Immigration laws provide for deportation and permanent exile of a noncitizen who is convicted of an “aggravated felony.”  While this sounds like it only applies to the most serious of offenses, “an ‘aggravated felony’ does not require the crime to be ‘aggravated’ or a ‘felony’ to apply.”[12] Rather, under the INA, “aggravated felony” covers over 30 crimes – with the list regularly growing – and includes minor drug crimes and many non-violent misdemeanors such as tax evasion and failing to appear in court.[13]  Further, if Congress adds a new crime to the list of aggravated felonies, noncitizens who previously have been convicted of such crime become immediately deportable.[14]

The Supreme Court recently weighed in on the aggravated felony provision of the INA in Sessions v. Dimaya.  In a 5-4 decision, the Court determined that a “crime of violence” under the aggravated felony provision was unconstitutionally vague.[15]  Given the Court’s ruling, noncitizens can no longer be deported for being convicted of a “crime of violence,” defined as a felony that, “by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”[16]  The decision seems like a win for noncitizens by limiting the types of crimes that may justify deportation, but it is not likely to have a significant impact on the number of noncitizens removed for committing violent offenses as there are several other violent crimes listed as aggravated felonies.  While the case has brought attention to the types of crimes that result in automatic deportation, the Court did not specifically address the less serious, non-violent offenses that are considered aggravated felonies under the INA, so those provisions remain valid.

In addition to being subject to deportation, an aggravated felony conviction also results in the individual becoming ineligible for most forms of relief from deportation, such as cancellation of removal and asylum.[17]  Further, noncitizens convicted of aggravated felonies become permanently ineligible from being readmitted into the United States in the future.[18]  And there is currently no exemption in the immigration laws and policies related to military service.  Therefore, it is possible for a misdemeanor conviction to result in permanent exile from the United States, even for an individual who has demonstrated loyalty to the nation through honorable service in the military.

Ironically, veterans who are deported after being convicted of an aggravated felony can only return to the United States upon their death.[19]  The Department of Veterans Affairs (“VA”) provides that all veterans, without regard to citizenship status or deportation, are entitled to burial at a national cemetery with a Government headstone or marker and full military honors.  The VA will even contribute up to $300 to return the deportee’s remains to the United States for burial.[20]  “Every deported veteran…may be welcomed back and honored as Americans in death, despite being banished from the United States in life.”[21]

While expedited citizenship is an option for noncitizens in the military, many are unaware of this option or commonly have the misconception that their military service automatically confers citizenship.[22]  “[T]he federal government failed to ensure that noncitizens in the military received accurate information about military naturalization.”[23]  The United States does not track how many noncitizen veterans are deported each year, but it is estimated that hundreds – if not thousands – of veterans have been deported over the course of the last several years.[24]  Perhaps if more effort was expended explaining to noncitizens in the military how they may be naturalized and helping those individuals navigate the labyrinth that is the immigration process, deportation of military veterans could be avoided.

The Debate: Which is More Important – Veteran Status or Immigrant Status?

As part of their military service, veterans swore to honor and defend the U.S. Constitution; they risked losing their lives to protect the rest of the nation. Given this commitment and service, should noncitizen veterans be treated as U.S. citizens with respect to criminal sanctions (e.g., charged, convicted, and punished for their crimes, but not deported)?  Alternatively, is deportation and ineligibility for readmission to the United States appropriate given the individual’s immigrant status and criminal conviction?

As mentioned, immigration laws related to deportation do not currently provide any kind of waiver or exemption for those with military service. Members of Congress may be unwilling to fight for modification of these laws to protect veterans facing deportation as it could be perceived as advocating for convicted criminals.[25]  Similarly, some veterans and veterans’ groups argue that although veterans should be held in high regard, they should also follow the law.[26]  Immigrant veterans should not receive sympathy if they have committed a crime, and an honorable discharge should not serve as a “free pass” to prevent deportation.[27]

On the opposite side, this is considered a veterans’ issue, not an immigration issue, and veterans who have honorably defended the United States should be entitled to special treatment for the purpose of immigration law. For instance, Representative Thompson has introduced legislation to amend the INA to protect noncitizen veterans by prohibiting deportation of any noncitizen veteran who has honorably served but has been convicted of an aggravated felony.[28]  As Representative Thompson stated, “[i]f someone is willing to put on the uniform of the United States military, the last thing they should have to worry about is their immigration status…we shouldn’t be deporting them.”[29]  Similarly, Representative Grijalva proposed to amend the INA to prevent the deportation of veterans who commit non-serious crimes.[30]  Under this bill, veterans who commit felonies and serious misdemeanors (including misdemeanors related to domestic violence, sexual assault, and illegal firearms possession, or resulting in a prison term of more than 90 days) would still be subject to deportation.[31]  Despite apparent congressional support for modifying the INA to provide greater leniency for noncitizen veterans,[32] these bills have not advanced within Congress.

Rather than tackling complex immigration laws, another perspective emphasizes addressing the factors that may lead a noncitizen veteran to commit a criminal act resulting in deportation. After separating from the military, many noncitizen veterans return to low-income and/or high-crime neighborhoods and struggle with the transition to civilian life.[33]  These veterans face obstacles ranging from challenges as basic as finding employment to more complicated matters of dealing with physical and mental injuries related to their military service.[34]  The crimes for which deported veterans are convicted may be indicative of the struggles they face with returning to civilian life.  For instance, in 2012, over three-quarters of incarcerated veterans had been discharged honorably or under honorable conditions.[35]  However, these individuals were more likely than non-veterans to have been convicted of violent offenses.[36]  Because there is a requirement that all military enlistees – both citizens and noncitizens – not have a felony criminal conviction before joining the military, some have suggested that this post-military violent criminal behavior indicates a need to provide greater or more effective resources to support veterans separating from the military to prevent this criminal conduct.[37]

As these competing viewpoints may indicate, the future of this debate remains unclear. The current Presidential administration appears focused on tightening immigration laws and policies, but there is some Congressional support for modifying immigration laws to address the deportation rules as they relate to our military veterans.  Regardless of the outcome of this debate on the legislative side, there is evidence that greater attention may be warranted in developing more effective policies and programs to support veterans with the unique struggles they face upon transitioning to civilian life to prevent criminal behavior that could lead to deportation.  Further, improved assistance with navigating the naturalization process could be provided to noncitizens with military service to avoid the deportation debate entirely.

[1] Kristine Phillips, The Story Behind This Powerful Photo of Deported Military Veterans Saluting the U.S. Flag, Wash. Post (Nov. 16, 2017), https://www.washingtonpost.com/news/checkpoint/wp/2017/11/16/the-story-behind-this-powerful-photo-of-deported-military-veterans-saluting-the-american-flag/?noredirect=on&utm_term=.f46944a82810.

[2] 10 U.S.C. § 504(b)(1)(A)-(B) (2006). Additionally, under various international agreements, citizens of Micronesia, the Republic of the Marshall Islands, and Palau may also join the U.S. military. See 10 U.S.C. § 504(b)(1)(C) (2006)

[3] Dep’t of Def., Military Accessions Vital to National Interest (MAVNI) Recruitment Pilot Program 1 (2016). In Fiscal Year 2017, the DoD suspended the MAVNI program and is not currently accepting new applicants. What is MAVNI? Information for Designated School Officials, Dep’t of Homeland Sec., https://studyinthestates.dhs.gov/what-is-mavni-information-for-designated-school-officials (last visited May 11, 2018).

[4] Greg McLawsen, Can Immigrants Serve in the US Military? 8 Q&As About Non-Citizen Service, Avvo Stories (Sep. 6, 2017), http://stories.avvo.com/rights/immigration/can-immigrants-serve-us-military-8-rules-non-citizen-service.html; The U.S. Military Helps Naturalize Non-Citizens, Military.com, https://www.military.com/join-armed-forces/eligibility-requirements/the-us-military-helps-naturlize-non-citizens.html (last visited Apr. 14, 2018).

[5] 8 U.S.C. § 1439(a) (2008).

[6] Id.

[7] 8 U.S.C. § 1440(a) (2003).

[8] Exec. Order No. 13,269, 67 Fed. Reg. 45,287 (July 8, 2002).

[9] U.S. Immigration and Customs Enf’t, F and M Nonimmigrants and MAVNI: A Guide for Designated School Officials 1 (May 2016).

[10] Id.

[11] Jim Caramone, DoD Announces Policies Affecting Foreign Nationals Entering Military, Dep’t of Def. (Oct. 13, 2017), https://www.defense.gov/News/Article/Article/1342430/dod-announces-policies-affecting-foreign-nationals-entering-military.

[12] Am. Immigration Council, Aggravated Felonies: An Overview 1 (Dec. 2016).

[13] See 8 U.S.C. § 1101(a)(43).

[14] See id.

[15] Sessions v. Dimaya, No. 15-1498, slip op. at 1 (U.S. Apr. 17, 2018).

[16] 8 U.S.C. § 1101(a)(43)(F); 18 U.S.C. § 16(b).

[17] Am. Immigration Council, supra note 12, at 1-2.

[18] Id. at 3.

[19] See, e.g., Carmen George, Deported Marine Veteran Came Home the Only Way He Could – in a Casket, Military.com (Apr. 23, 2018), https://www.military.com/daily-news/2018/04/23/deported-marine-veteran-came-home-only-way-he-could-casket.html.

[20] See Burial Benefits, Dep’t of Veterans Affairs, https://www.benefits.va.gov/compensation/claims-special-burial.asp, (last visited May 11, 2018).

[21] Bardis Vakili, et al., ACLU of California, Discharged, then Discarded: How U.S. Veterans are Banished by the Country They Swore to Protect 23 (July 2016).

[22] See, e.g., Andy Romey, From Service to Citizenship, The Am. Legion (Oct. 1, 2015), https://www.legion.org/citizenship/230107/service-citizenship.

[23] Vakili, supra note 21, at 19.

[24] See, e.g., Kevin Sullivan, Deported Veterans: Banished for Committing Crimes after Serving in the U.S. Military, Wash. Post (Aug. 12, 2013), https://www.washingtonpost.com/politics/deported-veterans-banished-for-committing-crimes-after-serving-in-us-military/2013/08/12/44f81098-ffa9-11e2-9a3e-916de805f65d_story.html?utm_term=.2911cac34ac2.

[25] See id.

[26] Id.

[27] Id.; Roxana Popsecu, They Served in the U.S. Military and Hoped for Citizenship. They Got Deported, Chicago Tribune (June 4, 2017, 5:04 PM), http://www.chicagotribune.com/news/nationworld/ct-deported-vets-20170604-story.html.

[28] H.R. 2346, 115th Cong. (2017).

[29] See Sullivan, supra note 24.

[30] H.R. 1470, 115th Cong. (2017).

[31] Id.

[32] See Popsecu, supra note 27.

[33] Vakili, supra note 21, at 16.

[34] Id.

[35] Jennifer Bronson, et al., U.S. Dep’t of Justice, Office of Justice Programs, Bureau of Justice Statistics, Veterans in Prison and Jail, 2011-2012 1 (Dec. 2015).

[36] Id. Sixty-four percent of veterans had been convicted of violent offenses, compared to 48 percent of non-veterans.

[37] Vakili, supra note 21, at 14.

Mandatory Arbitration Contract Provisions: Beware the Fine Print

By Spring 2018 M-VETS Student-Advisor Nebye Kahssai

Contracts between companies and consumers are ubiquitous these days. Companies like Google and Apple with online and other electronic applications bombard us with dialog boxes that open up on our computer screens or phones that require us to “check the box” indicating that we have read the company’s “Terms of Agreement.”  If you’re like most people, you simply agree so that you can continue checking your email or using any of the dozens of things you need to do with your phone.  A problem is that almost all contracts that consumers enter into these days are what are referred to as “adhesion contracts” which are defined as the following:

“a standardized contract prepared entirely by one party to the transaction for the acceptance of the other; such a contract, due to the disparity in bargaining power between the draftsman and the second party, must be accepted or rejected by the second party on a ‘take it or leave it’ basis, without opportunity for bargaining and under such conditions that the [consumer] cannot obtain the desired product or service [except] by acquiescing in the form agreement.”[i]

So when consumers enter into contractual agreements with large companies like Apple, Google, or practically any other large company, consumers do not have the power to renegotiate the terms of agreement for use of the product or service. The inability for consumers to renegotiate the terms of these agreements can have adverse consequences for consumers when problems arise with the particular product or service. Many of the adhesion contracts that consumers enter into with large companies contain provisions to settle problems related to the product or service through arbitration.  Arbitration is “the out-of-court resolution of a dispute between parties to a contract, decided by an impartial third party (the arbitrator).”[ii]  Here is an example of an arbitration clause that a consumer can find in the fine print of their contract or terms of services agreement:

“Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial [or other] Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.”[iii]

These arbitration clauses are often inserted into the fine print and buried in “take it or leave it” agreements between consumers and companies, sometimes with very negative consequences. Arbitration procedures prevent consumers from having their issues related to the purchased products or services adjudicated by the courts.  This hurts consumers because while courtrooms are public forums for parties to “air out dirty laundry,” arbitration proceedings are often held behind closed doors:

“Once a relatively obscure legal issue, mandatory arbitration agreements are now under scrutiny by activists who say they force victims of harassment and discrimination into silence. Opponents of mandatory arbitration say that the closed hearings, which include non-disclosure clauses and are often performed by a third-party arbitrator paid by the company itself, prevent victims from taking further action. . .”[iv]

In addition to courtrooms acting as public forums, courtroom procedures allow parties to engage in “discovery” which is the exchange of information between opposing parties so that each party can learn more about the details of the claims or defenses being made. “The [Federal Rules of Civil Procedure] permit broad discovery, which can involve documents that are not directly relevant to a claim or defense, but which have the potential to lead a party to other documents that do contain such information.”[v]  In arbitration, however, the discovery process, and the exchange of information between the parties, is often much more selective, and “fully within the control of the arbitrator.”[vi]  The American Arbitration Association’s discovery rule, R-22, “frames the process of discovery in a way where the ‘arbitrator shall manage’ whatever exchange of information takes place with a view towards economic efficiency, and equality of treatment.”  Given arbitration’s “dictator-like” discovery rules, a consumer with limited resources challenging a large company is at risk of potentially arbitrary behavior on the part of the arbitrator.

In an example of the adverse consequences of arbitration provisions, Wigdor LLP, a New York law firm, recently filed a class action lawsuit against Uber on behalf of women who claimed they were assaulted or raped by Uber drivers.[vii]  The women blamed Uber’s background check procedures and sought through litigation to understand if Uber’s policies put them in danger.[viii]  Rather than being able to “have their day in court,” however, the women discovered that their agreement with Uber required that they address their issues in arbitration.  A group of fourteen of the women “sent an open letter to the company’s board, asking to be released from the mandatory arbitration clause in the Uber app’s terms of service.”[ix]  The group’s letter reads, in part:

“Secret arbitration is the opposite of transparency. Forcing female riders, as a condition of using Uber’s app, to pursue claims of sexual assault and rape in secret arbitration proceedings does not ‘make streets safer.’  Silencing our stories deprives customers and potential investors from the knowledge that our horrific experiences are part of a widespread problem at Uber.”[x]

The experience of these women demonstrates that companies are dictating the terms of how consumers are able to bring grievances forward. As a result of the widespread use of mandatory arbitration provisions in contracts between consumers and companies, if consumers are harmed by a company’s goods or services, consumers can no longer rely on the right to their “day in court” to obtain appropriate redress.  Companies lock consumers into forced arbitration procedures, reinforced with non-disclosure clauses, to keep cases out of the public view of judges and juries.  Given the lack of transparency, we cannot tell whether an arbitrator’s decisions and procedures are arbitrary or whether they are compatible with a fair and reasonable view of the law and the facts.  What we know for certain, however, is that those important decisions are not made by judges and juries who remain at least somewhat publicly accountable for their actions.

So, what are consumers to do you might ask? One answer comes from what has transpired from the work of that brave group of women who decided to fight Uber’s mandatory arbitration policies.   As a result of those women’s actions, Uber announced that it is “ending mandatory arbitration for individual claims of sexual assault or sexual harassment by Uber drivers, riders or employees.”[xi]  Uber also announced that it “is also ending the requirement that victims sign a confidentiality provision preventing them from speaking out about the sexual assault or sexual harassment they suffered – saying survivors will now have the option to settle their claims with Uber without having to agree to being publicly silenced in order to do so.”[xii]

Public action by consumers can sometimes lead to a change a company’s practices. Such action might even lead to a cascading effect whereby other large companies are forced to rethink their own adhesion contracts.  Unfortunately for most consumers, however, adhesion contracts do not appear to be disappearing from our legal environment any time soon.  The most that consumers can probably do is to scrutinize the contracts that they do have some control over; contracts that aren’t “take it or leave it.”  A consumer agreeing to a mandatory arbitration provision has to consider whether they really want to give up the right to their “day in court.”  In addition to a mandatory arbitration provision, if a consumer has the power or the ability to determine the terms of their contract, they should look at each term of agreement carefully.  At bottom, the consumer must beware the fine print.

[i] Steven v. Fidelity & Casualty Co. of New York, 377 P.2d 284, 297 (Cal. 1962)

[ii] https://www.adr.org/Arbitration, accessed 5/14/2018.

[iii] https://www.adr.org/Clauses, accessed 5/15/2018.

[iv] https://techcrunch.com/2018/04/26/women-alleging-sexual-assault-by-uber-drivers-asked-to-be-freed-from-forced-arbitration/, accessed 5/15/2018.

[v] Paul B. Radvany, Recent Trends In Discovery In Arbitration and In the Federal Rules of Civil Procedure, 34 Rev. Litig. 705, 736 (2015).

[vi] Id.

[vii] https://techcrunch.com/2018/04/26/women-alleging-sexual-assault-by-uber-drivers-asked-to-be-freed-from-forced-arbitration/.

[viii] Id.

[ix] Id.

[x] Id.

[xi] https://techcrunch.com/2018/05/15/uber-ends-policy-of-forced-arbitration-for-individual-sexual-assault-clams/, accessed 5/15/2018.

[xii] Id.

Agent Orange: Then and Now

By Fall 2017 M-VETS Student-Advisor Lindsey Kimmitt

Agent Orange as a War Tactic

Chemical defoliants were first used as a war tactic in the 1950s, when British planes sprayed Malayan jungles during the Malayan Emergency, stripping trees bare, depriving communist guerrillas of cover, and destroying crops that insurgents relied on for food.[1]  A decade later, then-South Vietnam President Ngo Dihn Diem asked the United States to conduct aerial herbicide spraying to aid in their long struggle against Viet Cong and North Vietnamese fighters.[2]  Citing the use of herbicides by the British during the Malayan Emergency as precedent, then-President John F. Kennedy authorized the start of the U.S. Air Force’s herbicide program in Vietnam.[3]

During the Vietnam War, United States military planes sprayed approximately 20 million gallons of herbicides in Vietnam and surrounding areas.[4]  Code-named Ranch Hand, this operation reached its peak from 1967 to 1969.[5]  Of all the chemical defoliants—referred to as “rainbow herbicides”[6]—used during the Vietnam War, Agent Orange, which contained the deadly chemical dioxin, was the most widely used.[7]  “It was available in slightly different mixtures, sometimes referred to as Agent Orange I, Agent Orange II, Agent Orange III, and ‘Super Orange.’”[8]  Agent Orange and its variations accounted for almost two-thirds of the chemical defoliants used during the entire Vietnam War.[9]

Initial Harms from Direct Exposure

As with all the herbicides, the primary purpose of the chemical mixtures was to cause plants to lose their leaves.[10]  Dioxin—the super harmful component of Agent Orange—was not intentionally added to Agent Orange; its existence in Agent Orange was an unintended byproduct produced during the manufacturing process.[11]  The specific dioxin found in Agent orange—2,3,7,8-tetrachlorodibenzo-p-dioxin, or TCDD—had immediate and long-term effects.[12]  Among the many recognized consequences of Agent Orange use and exposure, the health effects of veterans who were directly exposed to the chemical during their time in service is particularly noteworthy.

While in Vietnam, the U.S. government communicated to servicemembers that the chemicals were harmless—telling them not to worry about any potential health consequences.[13]  However, when the veterans returned home they began to experience ill health, reporting a range of conditions: rashes and other skin irritations; psychological symptoms; type 2 diabetes; cancers such as Hodgkin’s disease, prostate cancer and leukemia; and many other afflictions.[14]  Further, many veterans reported instances of their wives having miscarriages or children born with birth defects.[15]  The increase and volume of these unfortunate events led veterans to suspect that the direct exposure to the chemical defoliants was to blame.[16]

Legislative Action to Correct for the Harms

In 1977, veterans began to file disability claims with the Department of Veterans Affairs (VA) for conditions they attributed to the Agent Orange exposure; however, the policy was that unless they could prove the condition began either when they were in service or within one year of their discharge, their claims were denied.[17]  A major victory came for veterans around 1984, when seven large chemical companies that manufactured Agent Orange settled a class action suit filed on behalf of 2.4 million veterans exposed to the herbicide, agreeing to pay $180 million in compensation to veterans or their next of kin.[18]  Another victory for veterans followed shortly thereafter.  In 1991, then-President George H. W. Bush signed into law the Agent Orange Act.[19]  This law “accepted a presumed link to illnesses like non-Hodgkin’s lymphoma, soft tissue sarcoma, and chloracne.”[20]  This legislation stated that veterans diagnosed with those aforementioned ailments were declared eligible for medical and monetary benefits; the presumed link removing any additional requirement for the veteran to have to prove they were exposed to the chemical defoliants.[21]  In other words, if the veteran “set foot” in Vietnam during a certain time-period, the law presumes the veteran was exposed to the defoliant.[22]

Since returning from war, Vietnam veterans have suspected that exposure to Agent Orange harmed their children.[23]  While the government recognizes and compensates for the adverse health effects of veterans exposed to Agent Orange, they have been far less willing to tie the indirect effects of exposure to conditions suffered by veterans’ after born children; even though there is much support that dioxin is a highly persistent chemical compound that lasts for many years in the body due to accumulating in fatty tissue.[24]

The Lingering Issues

Over the past few decades, the VA medical staff has physically examined more than 668,000 Vietnam veterans possible exposed to Agent Orange, documenting health conditions and also asking questions about their children’s birth defects, before and after the war.[25]  Sadly, this data showed that a veteran’s odds of having a child born with birth defects were over one-third higher after Agent Orange exposure than those who were not exposed.[26]  Even when presented with this all this evidence, the VA’s position on compensating offspring of those exposed to Agent Orange is quite narrow.  Essentially, there are three criteria that must all be met in order for an affected child to receive benefits or compensation: the child must (1) have been conceived after the date on which the veteran first entered the Republic of Vietnam; (2) have a covered birth defect not otherwise resulting from a familial disorder, a birth-related injury, or a fetal or neonatal infirmity with well-established causes; and (3) be a biological child of a woman Vietnam Veteran who served in Vietnam during the period beginning February 28, 1961 and ending May 7, 1975.[27]

Although there is currently a large portion of this affected community that is not being served, there is a strong movement to persuade the government that these children need and deserve just compensation for the injuries likely caused by their parent’s military service to the United States. On a promising note, “after repeated recommendations by federal scientific advisory panels, Congress passed a bill that requires the VA to pay for an analysis of all research done thus far on the descendants of veterans with toxic exposure.”[28]  Additionally, the bill requires the VA “to determine the feasibility of future research and, if such studies are possible, to pursue them.”[29]  Until such a time when the government broadens the conditions that are covered by the affected children of Vietnam veterans, groups advocating for compensating individuals suffering health problems linked to Agent Orange encourages the children of veterans to file claims with the VA for benefits related to Agent Orange even though the department currently doesn’t cover most defects.[30]

[1] See Clyde Haberman, Agent Orange’s Long Legacy, for Vietnam and Veterans, N.Y. Times, May 11, 2014, https://www.nytimes.com/2014/05/12/us/agent-oranges-long-legacy-for-vietnam-and-veterans.html.

[2] See id.; William A. Buckingham Jr., Operation Ranch Hand: The Air Force and Herbicides in Southeast Asia, 1961-1971 11-12 (CreateSpace Independent Publishing Platform, 1982).

[3] See Peter Hough, The Global Politics of Pesticides: Forging Consensus from Conflicting Interests 61 (Earthscan LLC, 1998); https://en.wikipedia.org/wiki/Agent_Orange.

[4] See Haberman, supra note 1.

[5] See Haberman, supra note 1.

[6] Rainbow Herbicides, https://en.wikipedia.org/wiki/Rainbow_Herbicides (last visited January 11, 2018).

[7] See Agent Orange, History.com, 2001, http://www.history.com/topics/vietnam-war/agent-orange.

[8] Id.

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See Kenneth J. Hermann; Killing Me Softly: How Agent Orange Murders Vietnam’s Children, Political Affairs, April 25, 2006.

[14] See Agent Orange, History.com, 2001, http://www.history.com/topics/vietnam-war/agent-orange; Agent Orange, https://en.wikipedia.org/wiki/Agent_Orange (last visited January 11, 2018).

[15] Agent Orange, https://en.wikipedia.org/wiki/Agent_Orange (last visited January 11, 2018).

[16] Id.

[17] Agent Orange, https://en.wikipedia.org/wiki/Agent_Orange (last visited January 11, 2018).

[18] See Agent Orange, History.com, 2001, http://www.history.com/topics/vietnam-war/agent-orange.

[19] See Charles Ornstein, Agent Orange Act Was Supposed to Help Vietnam Veterans – But May Still Don’t Qualify, ProPublica, July 17, 2015, https://www.propublica.org/article/agent-orange-act-was-supposed-to-help-vietnam-veterans-but-many-still-dont-.

[20] Haberman, supra note 1.

[21] See Haberman, supra note 1.

[22] See Ornstein, supra note 19.

[23] See Charles Ornstein, Hannah Fresques, and Mike Hixenbaugh, The Children of Agent Orange, ProPublica, December 16, 2016, https://www.propublica.org/article/the-children-of-agent-orange.

[24] See Agent Orange, History.com, 2001, http://www.history.com/topics/vietnam-war/agent-orange; Agent Orange, https://en.wikipedia.org/wiki/Agent_Orange (last visited January 11, 2018).

[25] See Charles Ornstein, Mike Hixenbaugh, and Hannah Fresques, Agent Orange Curse: Vietnam Vets Can Pass Birth Defects to Their Kids, New Data Suggests, The Virginia-Pilot, December 16, 2016, https://pilotonline.com/news/military/veterans/vietnam/agent-orange-curse-vietnam-vets-can-pass-birth-defects-to/article_1c284628-2dbe-510d-98a2-40b639759943.html.

[26] See Ornstein, supra note 23.

[27] 38 U.S.C. § 1812 (2000); see Birth Defects in Children of Women Vietnam Veterans, https://www.publichealth.va.gov/exposures/agentorange/birth-defects/children-women-vietnam-vets.asp, (last visited January 5, 2018).

[28] Ornstein, supra note 23.

[29] Ornstein, supra note 23.

[30] See Ornstein, supra note 23.

M-VETS Finalizes Seven-Year Litigation to Assist Servicemember in Securing Return of Security Deposit After Battling Through Federal and State Court

(Pictured: Historic Fairfax County Courthouse)

The Mason Veterans and Servicemembers Legal Clinic (M-VETS) closed one of its oldest and most unique cases in December 2017, securing ordinary relief through unorthodox means. M-VETS represented an active-duty Servicemember and his wife in seeking the return of their security deposit in 2010.  M-VETS finalized the matter last month, resulting in the recovery of the entire security deposit, plus seven years of interest.

In a bizarre case that began and ended in the Historic Fairfax County Courthouse, the original judgment in favor of the Servicemember was appealed to the Circuit Court, where M-VETS prevailed on summary judgment. The Landlord subsequently filed an appeal to the Virginia Court of Appeals—though unbeknownst to M-VETS or its clients, the landlord had also filed bankruptcy during the pendency of both appeals.  The bankruptcy triggered the automatic stay with respect to all litigation at the State court level.

Because the Servicemember was not listed as a creditor in the Landlord’s bankruptcy, M-VETS filed an Adversary Proceeding in the United States Bankruptcy Court for the Eastern District of Virginia to lift the stay and have the debt deemed non-dischargeable in the Landlord’s bankruptcy. M-VETS obtained a final order from the bankruptcy court in the fall of 2016, which ordered the relief sought to move forward at the State court level.

With the automatic stay lifted, the Virginia Court of Appeals, which lacked subject matter jurisdiction, transferred the Landlord’s appeal to the Supreme Court of Virginia where the landlord sought to amend her notice of appeal and sought an extension of time to file her petition for appeal. M-VETS drafted and filed an opposition brief to the Landlord’s motion and prevailed in having both motions denied.

In May of 2017, the Supreme Court of Virginia issued a final order finding no reversible error in the Landlord’s appeal and denying the petition for appeal. Shortly thereafter, M-VETS filed a motion in the Circuit Court for the release of the civil appeal bond in the full amount of the security deposit and filing fees.  Although the motion was granted, the Servicemember was still owed seven years of interest on the judgment.  To collect on that amount, M-VETS filed a wage garnishment in the Circuit Court, which came to a final resolution with the interest amount paid in full to the Servicemember in December of 2017.

The successful resolution required the hard work of M-VETS Attorneys and Student-Advisors drafting motions, briefs, and orders throughout trial, various motions and several appeals before both federal and state courts in the Commonwealth. Over the course of the representation, more than 10 M-VETS Student-Advisors worked tirelessly on the matter, including current Student-Advisor, Lindsey Turok, who brought the case to finality.

“We can’t believe that this 7-year ordeal is [] finished. Thank you [M-VETS] for everything you have done for us.  We wouldn’t have this end result if it wasn’t for all of [M-VETS] work and all of the previous M-VETS lawyers and students on our case,” said the clients.

Regarding the outcome, M-VETS Managing Attorney Leigh Winstead stated: “This case took a very unusual course and required the efforts of many students and M-VETS personnel to reach a successful conclusion for our very deserving clients. Without pro bono assistance on this matter, the attorneys’ fees required to litigate at the federal and State court levels would have far exceeded the amount collected.  We are grateful for the opportunity to be able to secure a just result for an active duty servicemember and his family.”

M-VETS assists veterans, servicemembers, and their dependents in a variety of civil matters, including uncontested divorces, landlord/tenant matters, consumer protection and contract disputes, as well as in military/VA administrative matters, including MEB/PEBs, discharge upgrades, and VA disability compensation appeals.

Is Fake News the Newest National Security Threat?

By Fall 2017 M-VETS Student-Advisor Anna Dryden

In January 2017, United States Intelligence Officials released a statement concluding that Russian operatives had directly and deliberately influenced the 2016 U.S. Presidential election. The report stated that Russian President Vladimir Putin directly ordered an influence campaign for the 2016 Presidential election, to further Russia’s goal of undermining liberal democracy in the United States, and around the world.

Senator John McCain, Chairman of the Senate Armed Services Committee stated in one of the early Senate hearings investigating Russian hacking operations that “…every American should be alarmed by Russia’s attacks on our nation. There is no national security interest more vital to the U.S. than the ability to hold free and fair elections without foreign interference…Congress must devise comprehensive solutions to deter, detect, and defend against, and when necessary respond, to foreign cyber attacks.”

The Russian interference with the 2016 Presidential election is certainly not the first instance of cyber aggression by foreign nations against the U.S.

Recent nontraditional conflicts (fought against Al Qaeda, and ISIS for example) have exposed U.S. weaknesses when it comes to nontraditional warfare, particularly the vulnerability to cyber attacks. In 2014, North Korea conducted a massive cyber attack against the private American business entity Sony Pictures. In 2015, the United States Office of Personnel Management announced the data breach that targeted the personal information of nearly 18 million government employees, likely sponsored by the Chinese government. While much is still unknown about the recent Equifax data breach that compromised the sensitive personal information of nearly 146 million Americans, Federal investigators have acknowledged evidence that the attack was state-sponsored, though they do not have enough evidence to point to one particular state.

Foreign countries are clearly unafraid to attack American institutions through cyber measures. There is little doubt that if foreign operatives conducted a physical attack or otherwise compromised the sovereignty of the United States, the nation would be justified in responding. In the case of the 2016 Presidential elections, rather than launching missiles, deploying troops, or even hacking weapons systems or nuclear reactors, the Russians weaponized the Internet. Why has the United States not taken action to respond to, or actively deter, such bold and aggressive cyber operations?

Perhaps the answer lies in the fact that the world now relies on social media and related technology that has rapidly become an essential fixture in people’s lives. These diffuse social integrations makes it difficult to draw a line between rogue ‘hacktivists’ and a targeted military attack on a sovereign nation. Therefore, policy makers (members of Congress in collaboration with the Executive branch) and military leaders must develop a framework to identify the line at which a cyber attack constitutes a use of force. But it is important to realize, when formulating a response to active measures, that an influence campaign is only one element of a complex, continuing attack, and an effective response will ultimately be targeted at defeating the enemy’s objectives, not just their cyber capabilities.

Politicians and pundits toss around the term “fake news” so often that the term has lost its true meaning, becoming the butt of political jokes, rather than recognized as a means of conducting warfare. However, fake news is exactly what it sounds like—a fake story designed to appear and sound like the reporting of factual events.[1] While fake news has garnered an infamous reputation in the past year, it is not exactly a novel threat. Rather, fake news is a method of waging psychological warfare. Active measures (AM) is a term for semi-covert or covert intelligence operations to shape adversary’s political decisions. Broadly, active measures encompass the manipulation of the media, disinformation, propaganda, the infiltration of social, political, and religious institutions, even assassinations. Generally, active measures conceal or falsify the source, but it can also involve the spread of forged, or partly forged content.[2] Disinformation, or the Russian term dezinformatsia, is one of many active measures undertaken by Russian intelligence operatives particularly relevant to this analysis because it is the act of intentionally spreading false information, such as fake news.[3] Active measures are designed to use an adversary’s existing weaknesses against himself, for the purpose of driving wedges into preexisting cracks.[4] For example, America’s enemies have actively exploited racial, religious, ethnic, class, or political divisions—all cracks that the U.S. has in abundance.

The Russian active measures campaign, in particular the utilization of fake news, relied heavily upon the dissemination of propaganda. Jacque Ellul defines modern propaganda as having the aim of “no longer to modify ideas, but to provoke action. It is no longer to change adherence to a doctrine, but to make the individual cling irrationally to a process of action. It is no longer to transform an opinion but to arouse an active and mythical belief.”[5]

The modern style of propaganda, as recently employed by Russian intelligence operatives is a means of conducting a type of “information warfare (IW)”. The “information war” is not a war in and of itself. It is first and foremost a tactic used to attain a broader objective. In What is Information Warfare, Martin Libdicki argues there are seven forms of IW, including:

(i) Command-and-control warfare which strikes against the enemy’s head and neck, (ii) intelligence-based warfare which consists of the design, protection, and denial of systems that seek sufficient knowledge to dominate the battle space, (iii) electronic warfare radio-electronic cryptographic techniques, (iv) psychological warfare in which information is used to change the minds of friends, neutrals, and foes, (v)”hacker” warfare in which computer systems are attacked, (vi) economic IW blocking information or channeling it to pursue economic dominance, and (vii) cyber warfare a grab bag of futuristic scenarios. (emphasis added)[6]

The Russian influence campaign was not only psychological warfare. The Russian active measures campaign also involved the use of weaponized technology as a means of disseminating the disinformation, in addition to digital espionage and surveillance in order to obtain information. Ergo, it is a unique, hybrid beast of the Digital Age—part propaganda, part psychological warfare, part espionage; wholly, a danger to liberal democracy.

Russia has a long tradition of utilizing disinformation and deception to subjugate populations.[7] Perhaps the original utilization of the disinformation strategy occurred as early as 1783 when the Russian aristocrat Grigory Potyomkin manufactured fake towns and villages in Crimea in order to impress Catherine the Great when she visited the region.[8] In more recent history, active measures became the norm for Russian operatives and have been used to further much more sinister objectives. The Russian intelligence services pioneered (and coined the term) active measures in the early twentieth century.[9] During the Cold War, more than 15,000 KGB agents were actively involved in disinformation operations.

Now Russia is adapting the disinformation techniques to the current state of the art technology through hacking, leaking, and the use of social media propaganda. Moreover, Russia is conducting IW across the globe. Russia has hacked the entire German parliament, meddled in Latin American affairs, and actively influenced African governments.[10] European fears of Russian hacking are reaching a new high. The United Kingdom and Germany (a recent victim of Russian hacking)[11] are wary of Russian influence, and the Netherlands recently hand counted citizen ballots out of fear that Russia had the ability hack and manipulate an electronic voting system.[12]

While Russia has been asserting influence and furthering its agenda through active measures across the globe, the attack on the United States was unprecedented in scale and sophistication. Russian cyber operations against the United States began as early as July 2015, when Russian operatives began collecting information on both Republican and Democratic-affiliated groups associated with U.S. primary campaigns. Targets included campaigns, candidates and staffers, think tanks, lobbying groups, and the party headquarters themselves (Democratic National Headquarters and Republican National Committee networks were compromised by hacking in the past two years). An essential element of the disinformation operation were Russian “troll factories”, located in former Soviet Bloc countries which employed actual human assets to create fictional social media personas which would in turn publish or “post” fabricated news stories hundreds of times a day.[13] Furthermore, the Russian influence campaign relied on sources with direct Russian links, such as Russian Government agencies, state-funded media, third-party intermediaries, intelligence officers, and press placement.[14]  Russia took advantage of social media platforms, such as Facebook and Twitter, where many Americans update themselves on the news to disseminate fictional news stories focused on political messages, financial propaganda, social unrest and global calamity.[15] These four themes were deliberately and strategically designed to create uneasiness, distrust of democratic institutions, and panic among the American public.

Russian tactics may have evolved since the Cold War days, but the purpose of active measures remains the same—to exploit an adversary’s weakness. The U.S. Intelligence community has concluded that Russia launched a sophisticated and multi-faceted attack on the United States by utilizing a vast array of operatives, all surreptitiously supported by high-ranking Russian officials. Russia outwardly says it wants “friendly relations”, but the campaign to subvert one of the most essential elements of liberal democracy—fair and honest elections—demonstrates more sinister intentions. The United States cannot permit such interference to go unchallenged or unpunished.

Nations have been spying on one another, and interfering in one another’s affairs, since the beginning of time. There comes a time when surveillance and interference impede a nation’s sovereignty and that interference becomes a true act of aggression. Ultimately, America must ask itself, “How much is too much?” The U.S. Intelligence community has stated that the Russian involvement in the election is a “significant escalation in directness, level of activity, and scope of effort compared to previous operations.” The full extent of the Russian campaign against the United States has yet to be uncovered and as new information is revealed, this analysis could become irrelevant. However, regardless of the outcome of the Russia investigation, there is a need for the U.S. to remain flexible and adaptable in responding to the sophisticated technological threats of the future. As the world is becoming increasingly more dependent on technology, data, and information sharing, the Russian assault on liberal democracy around the world may become more aggressive and more successful.

When America is divided, the nation is at its most vulnerable. While politicians and the public are consumed with quarreling and finger pointing, enemies of democracy look on with glee as they watch their handiwork come to fruition. It is no longer the time for internal squabbling, but rather united action. Fortifying America’s defenses against IW and foreign influence will require a sophisticated, multi-faceted approach. The nation must work together—the public, the media, private sector businesses, and the government—to combat the growing cyber threat because no one component of society, or political party, can do it alone. Failure to act could ultimately mean the end of liberal democracy.

[1] Robert Schlesinger, Fake News in Reality, (U.S. News and World Report) (Apr. 14, 2017, 2:00PM) https://www.usnews.com/opinion/thomas-jefferson-street/articles/2017-04-14/what-is-fake-news-maybe-not-what-you-think.

[2] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement by Thomas Rid, Professor of Security Studies, King’s College London).

[3] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement by Roy Godson, Professor, Georgetown University).

[4]Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement by Thomas Rid, Professor of Security Studies, King’s College London).

[5] Jacques Ellul, trans. Konrad Kellen and Jean Lerner, Propaganda: The Formation of Men’s Attitudes, 25, (Vintage Books)(1973 ed.)

[6] Martin Libibki, What is Information Warfare?, Center for Advanced Concepts and Technology Institute for National Strategic Studies, 11 (Aug. 1995).

[7] Martin Libibki, What is Information Warfare?, Center for Advanced Concepts and Technology Institute for National Strategic Studies, 11 (Aug. 1995)

[8] Adam Taylor, Before “fake news,” there was Soviet ‘”disinformation”, Washington Post, (Nov. 26, 2016) https://www.washingtonpost.com/news/worldviews/wp/2016/11/26/before-fake-news-there-was-soviet-disinformation

[9] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement by Thomas Rid, Professor of Security Studies, King’s College London).

[10] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement of Clint Watts, Fellow, Foreign Policy Research Institute and Senior Fellow, Center for Cyber and Homeland Security, George Washington University).

[11] Ishaa Tharoor, ‘Fake news’ threatens Germany’s election, too, says Merkel, The Washington Post (Nov. 23, 2016) https://www.washingtonpost.com/news/worldviews/wp/2016/11/23/fake-news-threatens-germanys-election-too-says-merkel/?utm_term=.8a8f8f7c210c

[12] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement by Eugene Rumer, Senior Fellow, Carnegie Endowment for International Peace).

[13] Target USA: Anatomy of a Russian Attack (Sep. 17, 2017) https://www.podcastone.com/episode/83/pt1/anatomy-of-russian-attack.

[14] Office of the Director of National Intelligence, Intelligence Community Assessment: Assessing Russian Activities and Intentions in Recent US Elections (Jan. 6, 2017).

[15] Disinformation: A Primer in Russian Active Measures and Influence Campaign Before the S. Comm. on Intelligence, 115th Cong. (2017)(statement of Clint Watts, Fellow, Foreign Policy Research Institute and Senior Fellow, Center for Cyber and Homeland Security, George Washington University).

The History and Significance of the Navy Jack

[1]

By Fall 2017 M-VETS Student-Advisor Rob Popovitch

The Navy Jack has an interesting but somewhat convoluted history. Throughout many years the flag has symbolized revolution, strength, rebellion and commemoration.

The history of how the modern Navy Jack came to exist is not 100% certain.[2]  However, most believe that the flag originated when the ships of the Continental Navy flew a flag consisting of alternating white and red stripes with the image of a rattlesnake and the motto “Don’t Tread on Me.”[3]  Nevertheless, there is no explicit historical evidence that proves this.[4]

In 1775, Commodore Esek Hopkins of the Continental Navy issued a set of fleet signals to his ships instructing them to fly a striped jack and ensign.[5]  This striped jack is most likely the background of the modern Navy Jack.  A year later, the same Commodore Esek used a “personal standard designed by a Christopher Gadsen of South Carolina.”[6]  This flag is the now famous Gadsen flag which consists of a yellow background and a coiled snake with the motto “Don’t tread on me.”[7]  The Gasden flag was also mentioned in a few letters in the same time period. [8]

[9]

There are also various prints that profess to show Revolutionary era ships with flags flying. Some show a striped flag with a rattlesnake and some do not.  Similar to the other history of the Navy Jack, there are inconsistencies in the depictions.  For example, one print portrays Commodore Hopkins as a young man, but at the time he would have been almost 60 years old.[10]  There is another print where a rattlesnake flag appears, but it appears at the stern and not on the bow of a ship, where a jack would go.[11]

In 1778, Ben Franklin and John Adams described a flag in a letter to the Ambassador of the Kingdom of Sicily, ”… a South Carolina flag with a rattlesnake in the middle of thirteen stripes.[12]  In that same letter, Ben Franklin and John Adams said that “some of the States have vessels of war distinct from those of the United States. For example, the vessels of war… of South Carolina a rattlesnake, in the middle of the thirteen stripes. . . .” [13]

These artifacts evidence that the rattlesnake is significant to the Revolutionary War. The snake’s rattle in many illustrations has thirteen layers, which represents the thirteen original Colonies.[14]  The alternating white and red stripes also symbolize the first thirteen colonies.  The Gadsen Flag was also used by the Continental Marines as an early motto flag.[15]

Since the Navy Jack was such a favored symbol for the Continental Navy during the Revolutionary War, the flag was chosen as an integral part of the War’s bicentennial commemoration.[16]  As part of the commemoration, the Secretary of the Navy released an instruction in 1975 that instructed the use of the Navy Jack in place of the union jack for that year.[17]  A few years later in 1980, the Secretary of the Navy issued another directive that instructed the oldest Navy ship in active duty status to display the rattlesnake jack.[18]

Since 1980, the Navy Jack has been flown on the oldest active duty ship which has included destroyer tenders, repair ships, ammunition ships, aircraft carriers and amphibious transport and command ships. [19]  Since 2014, the Navy Jack has been flying on the USS Blue Ridge, a command ship stationed in Yokosuka Japan.[20]
In 2002 and recognition of the Global War on Terrorism, the Secretary of the Navy directed the use of the Navy Jack in lieu of the Union Jack for all ships.[21]  The instruction emphasized the importance and significance of the Navy Jack by declaring that “The temporary substitution of this Jack represents an historic reminder of the nation’s and Navy’s origin and will to persevere and triumph.”[22]

In September 2001, the fast attack submarine USS Key West, was redirected to the North Arabian Sea and was the first asset on station and within striking distance following the September 11 terrorist attacks. [23]  It is only fitting that the Key West was the first to raise the Navy Jack in September 2002.[24]  Along with being hoisted on Navy ships, the Navy Jack is a sign of strength and heritage that is worn by the Navy special warfare community.[25]

More recently, the Navy Jack has become known for informal memorials, signs of protest or commemoration.[26]  No matter where the Navy jack is flown, its heritage stands for a never give up attitude of resolution and purpose.

[27]

[1] Naval Jack of the United States, Wikipedia (April 6, 2013), https://en.wikipedia.org/wiki/File:Naval_Jack_of_the_United_States.svg.

[2] Even Whitney Smith, the director of the Flag Research Center, agrees that the design of the First Navy Jack is not known. HISTORY OF THE FIRST U.S. NAVY JACK, THE DON’T TREAD ON ME FLAG, United States Flag Store https://www.united-states-flag.com/dont-tread-on-me.html (last visited Jan. 12, 2018).

[3] The U.S. Navy’s First Jack, Naval History and Heritage Command, (July 28 2003), https://www.history.navy.mil/browse-by-topic/heritage/banners/usnavy-first-jack.html#Rattle.

[4] Id.

[5] First Navy Jack, Wikipedia (Oct. 1, 2017), https://en.wikipedia.org/wiki/First_Navy_Jack; The U.S. Navy’s First Jack, supra note 3.

[6] The U.S. Navy’s First Jack, supra note 3.

[7] Id.

[8] John Jay penned a letter in 1776 that remarked, “As to continental Colors, the Congress have made no order as yet respecting them, and I believe the Captains of their armed Vessels have in that particular been directed by their own fancies and Inclinations. I remember to have seen a flag designed for one of them on which was extremely well painted a Rattle Snake rearing his Crest and shaking his Rattles, with this Motto “Dont tread on me”. But whether this Device was generally adopted by the fleet, I am not able to say.” Id.

[9] Gadsden Flag Clip Art, Gadsen.info, http://gadsden.info/clipart.html. (last visited Jan. 14, 2018); see Christopher Gadsden & Esek Hopkins, The Gadsden Flag’s Namesake, http://gadsden.info/Christopher.html. (last visited Jan. 14, 2018).

[10] The U.S. Navy’s First Jack, supra note 3.

[11] Id.

[12] First Navy Jack, supra note 5.

[13] The Revolutionary Diplomatic Correspondence of the United States, Volume 2

Franklin and Adams to the Ambassador of Naples, American Memory, http://memory.loc.gov/cgi-bin/query/r?ammem/hlaw:@field(DOCID+@lit(dc002578)). (last visited Jan. 13, 2018); see The U.S. Navy’s First Jack, supra note 3.

[14] First Navy Jack, supra note 5.

[15] Gadsden flag, Wikipedia (Jan. 13, 2018), https://en.wikipedia.org/wiki/Gadsden_flag.

[16] The U.S. Navy’s First Jack, supra note 3.

[17] Id.

[18] Id.

[19] First Navy Jack, supra note 5; see NH 83494-KN “Don’t Tread on Me” Jack, Naval History and Heritage Command, https://www.history.navy.mil/our-collections/photography/numerical-list-of-images/nhhc-series/nh-series/NH-83000/NH-83494-KN.html. (last visited Jan 13, 2018).

[20] USS Blue Ridge, Navy.mil, http://www.public.navy.mil/surfor/LCC19/Pages/Ourship.aspx#.WlwTV9-nE2w. (last visited Jan. 13, 2017).

[21] SECNAV Instruction 10520.6, Wikisource (February 2, 2013), https://en.wikisource.org/wiki/SECNAV_Instruction_10520.6; see The U.S. Navy’s First Jack, supra note 3; Susan Civitillo, All U.S. Navy Ships to Begin Flying First Navy Jack on Patriot Day, Navy.mil (Sept. 9, 2002), http://www.navy.mil/submit/display.asp?story_id=3463.

[22] SECNAV Instruction 10520.6, supra note 21.

[23] Phil Eggman, First Navy Jack Flies Until End of War, Navy.mil (Sept. 13, 2002), http://www.navy.mil/submit/display.asp?story_id=3547.

[24] Id.

[25] See Dan Lamothe, Navy SEALs want more ‘Don’t Tread on Me’ patches, eight months after controversy, The Washington Post (June 16, 2014), https://www.washingtonpost.com/news/checkpoint/wp/2014/06/16/navy-seals-want-more-dont-tread-on-me-patches-eight-months-after-controversy/?utm_term=.fe80548a083d; see also Christian Lowe, Navy announces new patches and insignia for sailors and special operators, We Are the Mighty (Aug. 5 2016), http://www.wearethemighty.com/articles/navy-announces-new-patches-and-insignia-for-sailors-and-special-operators.

[26] Winslow Townson, Photos: Flowers, prayers near the Boston Marathon finish line, The Boston Globe, https://www.bostonglobe.com/2013/04/17/photos-flowers-prayers-near-boston-marathon-finish-line/0kT2re4LgS4qoXflReRibO/story.html?pic=7. (last visited Jan. 14, 2018).

[27] NH 1142 Rattlesnake flag, Naval History and Heritage Command, https://www.history.navy.mil/our-collections/photography/numerical-list-of-images/nhhc-series/nh-series/NH-01000/NH-1142.html. (last visited Jan. 14, 2018).

“Team RWB: Enriching the Lives of Veterans and Civilians Together”

By Fall 2017 M-VETS Student-Advisor Amy Hilton

To be clear, I am not a veteran, nor have I ever served in the United States Military. I am a female, a civilian, and a close friend of many veterans and active-duty members of each of the branches of the U.S. Military.  I did not grow up in a family where the Military loomed a large presence, but rather, only heard my grandfather speak of his service in the Korean War on a handful of occasions.  Usually these stories were relayed in the dusty and tool-ridden workroom in one of his large barns on his cattle farm.  I worked as his “farm hand” during the summers growing up, and, on those long summer days, he talked with me about everything from politics, to how to properly and evenly distribute molasses on homemade biscuits, and, most importantly, how to maintain farm equipment so that it would last for a long time.  I learned much from him, and would not trade that time for anything in the world.

My grandfather was the head of the mechanical engineering department for a heavy industrial machinery company, and was a truly brilliant engineer. He was also an extremely hard worker, and his service in the Korean War reflected those two strengths.  During the War, he was drafted into the U.S. Army, and was stationed at Fort Belvoir in Virginia.  As he described to me, he, and a handful of other engineers from across the U.S., were assigned the task of training tank repairmen on how to maintain and repair the tanks the U.S. Army used in its ground offensives.  He told me he was selected for this task after testing among the top in the country for mechanical engineering on an Army-administered skills test.  Needless to say, he had to adjust his performance expectations for his 14-year old granddaughter who repeatedly got the 1970’s model Cub Cadet lawn mower stuck in ditches and forgot to grease the blade before putting it away for the evening.

Thus, when I began working for the Department of Defense in 2012, I had very little familiarity with the U.S. Military, service member and veteran culture, and the common issues that veterans face after leaving active duty. However, after working in a joint command for the past 5 years, I have become somewhat familiar with the challenges those leaving active duty face.  Many colleagues have described these difficulties on numerous occasions, including knowing what sorts of jobs they are interested in and/or qualified for, how to begin or further their education, and how to manage their finances.

In the fall of 2014, a friend who is now in the Air Force Reserves introduced me to Team Red, White & Blue, or, “Team RWB”, as it is more commonly known. I quickly learned that this group supports veterans and active duty service members by assisting their transition back into the civilian world through physical fitness and social activities[1].  I participated in a few races with Team RWB members, and was extremely impressed by how positive, encouraging, and welcoming everyone was.  I really appreciated how they were constantly organizing and publicizing all sorts of group runs, bike rides, yoga classes, trail hikes, service opportunities, and group dinners so that, wherever you are in the greater D.C./VA/MD area, you can participate in fun and healthy activities.  I joined Team RWB a few months later, and have participated in group activities as frequently as my busy schedule allows.  Through my participation in Team RWB events, I have made close friends who are more like family to me, and I have heard numerous veterans and active duty service members articulate how much they depend on Team RWB to provide a social circle of supportive and active friends who help them stay connected to healthy people and behaviors.  Because I have been so impressed by Team RWB’s steady stream of diverse activities, and the ways I have seen the people and events benefit the lives of Team members and my own life, I have consistently recommended Team RWB to coworkers, new acquaintances, and especially active duty service members and their spouses who are new to the area and are looking to get involved in a healthy and supportive social group.

Over the past 5 years, through conversations with friends, Team RWB members, and through my work at the George Mason University Law School Veterans and Service Members Clinic, I have become familiar with some of the more common issues facing veterans and service members: job security/placement after leaving the military, financial management, furthering or beginning their education, accessing medical treatment, staying physically active while dealing with service-related injuries, accessing  veterans’ social services and benefits, and  staying connected with the military community where they feel a part of a shared culture and experiences.  I have heard Team RWB members discuss many of these things among themselves over dinners, while participating in a relay race, and/or at a picnic or bridal shower.

Recently, I began to wonder if Team RWB is truly making a difference in veterans’ and service members’ lives long-term, and whether it is connected to any larger organizations that assist veterans. I questioned whether all of the physical fitness activities and group meals they organize actually help veterans stay positive, create strong social networks, and decrease the tendency toward depression and suicidal thoughts that are so prevalent among veterans.  I hoped that the group where I have felt so supported and included was making a lasting and substantive difference in the lives of veterans.

After doing a little research, I found that I was not the only one asking those questions. The Institute for Veterans and Military Families[2] at Syracuse University conducted a case study on Team RWB to examine whether this organization was successful in its efforts to “enrich veteran’s lives through physical and social activity”[3].  The study culminated in the report “Enriching Veterans’ Lives Through An Evidence Based Approach: A Case Illustration of Team Red, White & Blue”.[4]  Below, I will highlight some of the report’s key points, which illustrate how Team RWB is positively impacting the lives of its military and civilian members:

  • Because the “transition from active military service to civilian life”[5] is a major change in a veteran’s professional and personal worlds, Team RWB works to smooth this transition by helping to create social structures and supporting relationships “through physical and social activity”.[6]
  • “Team RWB also partners with outside organizations in events and annual races, like the Old Glory Relay in which thousands of veterans, family members, and community supporters carry one American flag on an Olympic torch-style relay across America.”[7]
  • “Team RWB considers civilian membership within each community to be of critical importance for reintegrating veterans back into society and providing them with a support network.”[8]
  • “Team RWB’s surveys have captured the impact of participation on team members’ sense of belonging (2015 data) and social support (2014 data).”[9] The data shows that “veterans build authentic relationships through participating in Team RWB.”[10] “Half of RWB veterans report making lasting, positive relationships, which increases to more than three out of four veterans (86%) for those who are frequently to very actively involved with the Team.”[11] “Even veterans who describe themselves as inactive or rarely active, experience personal relationship growth.”[12]
  • “Veterans also report increased social support since joining the team through access to information (72%), emotional support (57%), and resources (64%).”[13] “Veterans say that, as a Team RWB member, they have supported other veterans, even those not on the team (52%), and provided personal advice (37%) and career advice (25%) to their teammates, including helping them to find jobs (11%).”[14] “Interestingly, those who are frequently to very active are twice as likely to help their teammates in this way.”[15]
  • “Veterans report that participating in Team RWB is reducing the civilian-military divide, (the gap in knowledge and understanding of service members’ skills, experiences, and values between civilians who have never served in the military and active duty military members and veterans).”[16] “Veterans report that being part of Team RWB has given them an opportunity to share their strengths (54%) and challenges (47%) as a veteran with civilians, feel more connected to civilians (32%), and have more trust in civilians (25%).”[17]
  • “The value of life enriched by participating as an RWB team member can translate into profound spillover effects into other areas of life.”[18] “The positive interdependence between different areas of life has been noted in which satisfaction in one area of life has positive effects in other areas, such as life satisfaction and perceived quality of life.”[19] “In the 2015 impact survey, veterans said they felt that being part of Team RWB helped them feel more personally fulfilled (42%) and improved their mood (42%), which resulted in them being a better family member.”[20] “They also reported improved relationships with family and friends (36%), increased work satisfaction (20%) (a strong positive predictor of employee retention), increased productivity (21%), engagement (21%), and reduced stress (24%).”[21] “Team members were able to build a better network of contacts (43%), with a small but meaningful percentage finding a job (5%), earning a promotion (5%), and/or salary increase (6%) as a result of participating on the Team.”[22]

Conclusion

 I was particularly pleased to read the statistics (from the 2015 Team RWB Impact Survey) that, “being part of Team RWB increases veterans’ sense of purpose[23] and has helped veterans feel greater life satisfaction.”[24]  “Veterans involved with Team RWB find more purpose in life (45%), create more meaning (45%), and have a stronger sense of direction (41%).[25]  It is very encouraging to know that Team RWB is making such a positive impact on veterans’ lives.  I appreciate having the opportunity to participate (in a very small way) in an organization that is substantively assisting veterans’ transition back into civilian life and strengthening their personal, professional, and social lives.  These men and women have sacrificed so many personal comforts and conveniences to serve the U.S. Government’s military and political agendas, and I feel that we owe our fellow Americans a debt of gratitude.  I am grateful that Team RWB provides the forum for me to run alongside them in a road race, cheer them on as they carry the flag in the Old Glory Relay, and talk with them over dinner about different professional networking or health services that are available to veterans.  In short, I am thankful that team RWB facilitates friendships and activities that have positive impacts on veterans’ lives.

I was thrilled to find the Institute for Veterans and Military Families report on Team RWB. This report substantiated my positive personal experiences as a civilian member of Team RWB, and revealed that these are not unique experiences, and rather, are in line with Team RWB’s overall mission to provide an inclusive, supportive, and healthy team environment where veterans, service members, and civilians can come together and support one another.  I look forward to seeing future Team RWB annual reports, and hope that they reflect wider and deeper benefits to our veterans, active duty service members, and civilians.

[1] https://www.teamrwb.org/our-approach/mission.

[2] https://ivmf.syracuse.edu/. [Accessed 28 Nov. 2017].

[3] “Enriching Veterans’ Lives Through An Evidence Based Approach: A Case Illustration of Team Red, White & Blue”. (2016). [online] Available at: https://ivmf.syracuse.edu/article/enriching-veterans-lives-through-an-evidence-based-approach-executive-summary/. [Accessed 28 Nov. 2017]. [hereinafter: Case Illustration].

[4] Case Illustration.

[5] Case Illustration at 6.

[6] Id.

[7] Id., at 9.

[8] Id.

[9] Id., at 12.

[10] Id.

[11] Id.

[12] Id.

[13] Id., citing (2014 Impact Survey.

[14] Case Illustration at 12.

[15] Id.

[16] Id., citing “The political science field has a well-established civil-military relations literature that, in essence, describes the civil-military “gap” in terms of attitudes of alienation felt between the military and civil society.” See the journal Armed Forces and Society or key texts such as Feaver & Kohn (2001), Huntington (1957), and Janowitz (1960).

[17] Case Illustration at 18.

[18] Id.

[19] Id., citing Greenhaus & Powell, 2006, p. 73.

[20] Case Illustration at 18.

[21] Id.

[22] Id.

[23] Case Illustration at 14; defined as having more “meaning and direction in life” (Ryff, 1989).

[24] Case Illustration at 14; defined as “a cognitive judgment process of an individual’s quality of life according to his or her own criteria” (Diener et al., 1985; Shin & Johnson, 1978).

[25] Case Illustration at 14.

 

 

 

 

 

President Trump’s Policy Banning Transgender Individuals in the Military

By Fall 2017 M-VETS Student-Advisor

In what was one of his most controversial actions as president thus far, on July 26, 2017 President Donald Trump issued a series of tweets addressing transgender policy in the U.S. Military.[1]  The tweets stated, “[a]fter consultation with my Generals and military experts, please be advised that the United States Government will not accept or allow…Transgender individuals to serve in any capacity in the U.S. Military.  Our military must be focused on decisive and overwhelming…victory and cannot be burdened with the tremendous medical costs and disruption that transgender in the military would entail.  Thank you.”[2]  An official memorandum followed on August 25, 2017, which helped explain the timeline of the policy implementation, indicating that the new policy would begin to take effect on January 1, 2018.[3]  In many ways, this potential policy-change from President Trump is in keeping with the trend of constantly evolving military policy on this important issue over the last decade and discussion surrounding the constitutionality of such a change has been swirling.

In 2011, President Obama repealed “Don’t Ask, Don’t Tell,” allowing lesbian, gay, and bisexual service members to speak honestly about their sexual orientation without fearing repercussions for their military careers.[4]  The repeal did not, however, change policy regarding the right of transgender individuals to serve in the military.[5]  In fact, the Department of Defense guidelines at that time “described transgender people as sexual deviants.”[6]  Years later though, the end of Obama’s administration brought significant changes for the rights of transgender individuals, wanting to or already, currently serving in the military.[7]  In 2016, Defense Secretary Ashton B. Carter announced new Department of Defense policies that both permitted transgender individuals to serve openly, without fear of discharge or separation, and detailed the process “by which a serving transgender Service member may transition gender,” during his or her time in service.[8]  Additionally, the policy stated that, beginning in July 2017 for the first time in history, “the military Services will begin accessing transgender applicants who meet all standards—holding them to the same physical and mental fitness standards as everyone else who wants to join the military.”[9]  This change in particular, was extremely significant, since an individual that had undergone sex reassignment surgery and/or hormone therapy had never previously been considered for acceptance into the military.[10]  These changes were largely based on a research study commissioned by Mr. Carter, a few months earlier, which indicated that, were the military to fund medical transition surgeries, rates of substance abuse and suicide would decrease.[11]  Funding of transitional procedures would cost somewhere from $2.4 to $4 million annually, totaling 0.13% of spending on military healthcare.[12]

Since President Trump’s announcement on the issue this summer, debate surrounding the issue has sparked a seemingly endless onslaught of constitutional, strategic, and moral questions.  Those opposed to President Trump’s new policy argue that it violates the Due Process clause,[13] marginalizes the transgender community, and is unsupported by any defensible rationale.[14]  These arguments were upheld in the recent decision in the D.C. District Court, in which Judge Colleen Kollar-Kotelly issued a preliminary injunction blocking aspects of President Trump’s new policy.[15]  The basis for the injunction simply stated that the policy “does not appear to be supported by any facts.”[16]  It did not address whether or not the military should be responsible for the costs of sex-reassignment surgery, but blocked the aspects the policy concerning enlistment and retention of transgender military members.[17]   In response to the injunction, Carl Tobias, a professor at the University of Richmond School of Law, predicted that “the Trump administration [will] likely have to go all the way to the Supreme Court to have any chance of getting the preliminary injunction nullified.”[18]

This prediction is insightful, particularly since the transgender issue implicates many apparently conflicting constitutional protections.[19]  Courts have traditionally held that many constitutional protections simply do not apply to the military in the same way they apply to the general public, and the analysis for determining whether a military policy is constitutional is necessarily different than for another publically or privately funded policy.[20]  For example, in Katcoff v. Marsh, the court refused to analyze the question of whether the military chaplaincy was constitutional “in a sterile vacuum.”[21]  Rather, the court made clear that because both the Establishment Clause and the chaplaincy must be considered within a historical context from a purposive framework, the current test that was most often used to determine whether an Establishment clause violation exists was not appropriate.[22]  Additionally, the court reiterated Congress’ War Power, stating that when a matter provided for by Congress in the exercise of its war power and implemented by the Army appears reasonably relevant and necessary to furtherance of our national defense it should be treated as presumptively valid and any doubt as to its constitutionality should be resolved as a matter of judicial comity in favor of deference to the military’s exercise of its discretion.[23]  Therefore, when Congress implements a policy “necessary to furtherance of our national defense,” a constitutional inquiry must begin with a presumption in favor of the military, due to the “constitutional power of Congress to raise and support armies and to make all laws necessary and proper to that end” which is “broad and sweeping.”[24] This deference is often referred to as the “doctrine of nonreviewability,” but it does not function as strongly in issues involving due process as it does in other areas of military policy creation.[25] Ultimately, therefore an analysis of the constitutional legitimacy of denying transgender individuals an opportunity to serve in the military must take into account the context of the Due Process clause and the presumption in favor of the military, in keeping with the extensive war powers permitted. [26]

While the Supreme Court has not yet ruled on the issue of whether sexual identity is a protected class under Title VII or the Due Process Clause, several circuit courts and the Equal Employment Opportunity Commission have affirmatively held that discrimination against a person based on transgender status constitutes discrimination “because of sex” under Title VII.[27] If the Supreme Court affirms this ruling in the future, and translates it to Due Process precedent, then President Trump’s policy would likely be reviewed according to intermediate scrutiny standard,[28] requiring the government to prove that the differential treatment “furthers an important government interest in a way that is substantially related to that interest.”[29] And yet, Congress and military leaders are permitted to deny equal protection in the name of “military necessity” all the time, due to the expansive war powers, which would make such a Supreme Court case extremely interesting.[30] For example, the military disqualifies individuals from service for an extensive list of medical reasons, including gluten allergies.[31] Of course it’s impossible to draw a direct comparison between transgender individuals and those with gluten allergies, but the comparison highlights the military’s ability to discriminate in ways that other employers would never be permitted to, for the sake of good order and discipline.

I have witnessed firsthand the tensions that exist between a military commander’s need to enforce physical appearance standards for certain individuals, according to gender, and the individual’s mental health needs to stray from those standards prior to be fully transitioned to the gender that he or she identifies with, since oftentimes in military regulations an individual has to reach a certain point in hormonal therapy before they are officially considered a different gender. Ultimately, all these tensions point to what may be a major Supreme Court case in the near future, in which the Court will hopefully wrestle with these tensions between the Due Process clause and the war powers.[32]

[1] Donald J. Trump (@realDonaldTrump), Twitter (July 26, 2017, 8:55 a.m., 9:04 a.m., 9:08 a.m.), https://twitter.com/realDonaldTrump.

[2] Id.

[3] Military Service by Transgender Individuals, Presidential Memorandum for the Secretary of Defense and the Secretary of Homeland Security (Aug. 25, 2017), https://www.whitehouse.gov/the-press-office/2017/08/25/presidential-memorandum-secretary-defense-and-secretary-homeland.

[4] Kayla Quam, Unfinished Business of Repealing “Don’t Ask, Don’t Tell:” The Military’s Unconstitutional Ban on Transgender Individuals, 2015 Utah L. Rev. 721, 721 (2015).

[5] Id.; see also Jonah E. Bromwich, How U.S. Military Policy on Transgender Personnel Changed Under Obama, N.Y. Times (July 26, 2017), https://www.nytimes.com/2017/07/26/us/politics/trans-military-trump-timeline.html.

[6] Jonah E. Bronwich, supra note 5.

[7] Transgender Service Member Policy Implementation Fact Sheet, U.S. Department of Defense, https://www.defense.gov/Portals/1/features/2016/0616_policy/Transgender-Implementation-Fact-Sheet.pdf (last visited Nov. 4, 2017); see also Jonah E. Bronwich, supra note 5.

[8] Id.

[9] Transgender Service Member Policy Implementation Fact Sheet, supra note 7.

[10] This policy was mandated by DoDI 6130.03, which states that a “[h]istory of major abnormalities or defects of the genitalia[,] including but not limited to change of sex” disqualifies a person from entering the military. Department of Defense Instruction No. 6130.03 (Sept. 13, 2011), available at https://community.apan.org/wg/saf-llm/m/documents/184254.

[11] Jonah E. Bronwich, supra note 5.

[12] Sabrina Siqqiqui, Transgender Troops Can Stay in the Military for Now, James Mattis Says, the guardian (Aug. 29, 2017), https://www.theguardian.com/us-news/2017/aug/29/transgender-troops-can-stay-now-james-mattis-trump-ban.

[13] Kayla Quam, supra note 4; see also U.S. Const. amend. V.; Ariane de Vogue, Judge Blocks Enforcement of Trump’s Transgender Military Ban, CNN Supreme Court Reporter (Oct. 30, 2017), http://www.cnn.com/2017/10/30/politics/judge-blocks-trump-transgender-military-ban/index.html.

[14] Brief for Massachusetts, et al. as Amici Curiae Supporting Plaintiffs, Jane Doe v. Donald J. Trump, (2017) (No. 17-cv-1597), available at https://ag.ny.gov/sites/default/files/doe_v_trump_-_state_amicus_brief.pdf.

[15] Justin Jouvenal, Federal Judge in D.C. Blocks Part of Trump’s Transgender Military Ban, The Washington Post (Oct. 30, 2017); see also Ariane de Vogue, supra note 13.

[16] Id.

[17] Id.

[18] Id.

[19] Namely Due Process protections in conflict with Congress’ War Powers.

[20] U.S. Const. amend. V., see also Katcoff v. Marsh, 755 F.2d 223, 236 (2nd Cir., 2008)(holding that the Chaplaincy did not violate the Establishment Clause, because it promotes free exercise of religion and is within Congress’ War Powers).

[21] Katcoff v. Marsh, supra note 18 at 232-33.

[22] Id.

[23] Id. at 234 (citing Rostker v. Goldberg, 453 U.S. 57, 64-68 (1981).

[24] Id.; United States v. O’Brien, 391 U.S. 367, 377 (1968).

[25] Heather S. Ingrum Gipson, “The Fight for the Right to Fight”: Equal Protection & the United States Military, 74 U.M.K.C. L. Rev. 383, 385 (2005-2006).

[26] This is similar to the analysis of the chaplaincy in Katcoff v. Marsh. Katcoff v. Marsh, supra note 18. Of course, however, this would more likely be true if Congress backs President Trump’s policy, since Congress holds greater war powers than the Executive.

[27] 42 U.S.C.A. § 200e-2(a); Roberts v. Clark County School District, 215 F.Supp. 3d 1001, 1014 (D. Nev. 2016).

[28] This was the standard the Eleventh Circuit used in the analysis for Glenn v. Brumby. Glenn v. Brumby, 724 F.Supp.2d 1284,1997 (N.D.Ga. 2010).

[29] David S. Kemp, Sex Discrimination Claims Under Title VII and the Equal Protection Clause: The Eleventh Circuit Bridges the Gap, Verdict: Legal Analysis and Commentary from Justia (Mar. 19, 2012), https://verdict.justia.com/2012/03/19/sex-discrimination-claims-under-title-vii-and-the-equal-protection-clause.

[30] Heather S. Ingrum Gipson, supra note 23.

[31] Rod Powers, Military Medical Standards for Enlistment & Commission, US Military Careers (Sept. 8, 2016), https://www.thebalance.com/military-medical-standards-for-enlistment-and-commission-3353967; Patricia Kime, Medical Mix-Up Sidelines Army Sergeant’s Career, Military Times (Jan. 14, 2016), https://www.militarytimes.com/2016/01/14/medical-mix-up-sidelines-army-sergeant-s-career/.

[32] As mentioned previously, however, such a case would only likely be viable if Congress and his senior military advisors back President Trump’s policy, since Congress holds more war powers than the Executive.

Why Veterans Cannot Sue the Government

By Fall 2017 M-VETS Student-Advisor Emma Devaney

Signing up for military service requires making some personal sacrifices. Sacrifices that result in injury, disability or disease have been addressed by our government since the country’s founding.  Since 1930 the Veterans Administration (“VA”) has been tasked with the responsibility of providing disability compensation and medical services to approved Veterans.  It is widely agreed that the country has a responsibility to assist disabled Veterans injured in service to their country.  However, the importance of VA compensation can be further appreciated when reminded that Veterans are not able to “sue” the United States in a traditional sense.  Most often, their only road to recovery for an injury or disability is through the VA.  This makes it extraordinarily important to have a VA compensation structure that evolves with the needs of our Veterans, and our medical understanding.

Tort suits against the government are traditionally barred by sovereign immunity. Sovereign immunity is a concept derived through common law from England, based on the concept that the King cannot be sued because the King can do no wrong.[1]  However, the Federal Tort Claims Act (“FTCA”) waives this immunity under certain circumstances, stating that the “United States shall be liable, respecting…tort claims, in the same manner and to the same extent as a private individual under like circumstances.”[2]

Some Veterans sought to recover against the government in civil suits, arguing that the FTCA permitted a cause of action. However, the Supreme Court of the United States precluded a claim under the FTCA for negligence in a 1950 decision.[3]  In Feres v. United States, the United States Supreme Court held that FTCA did not extend to military personnel who sustained injury incident to service.[4] Feres consolidated three cases, involving negligence actions brought by active duty personnel, which caused death or injury by other military personnel.[5]  The Court reasoned that the relationship between the government and a member of the military had no equivalent in the private sector, where recovery would be allowed.[6]  The opinion discussed how the FTCA should be interpreted to be read in harmony with the statutory scheme.[7]  Among other rationale, the Court reasoned that the military was “distinctly federal” and the FTCA did not intend to allow local law to dictate recovery in applicable cases.[8]  In Addition, federal statutes already provided for remedies through a comprehensive statutory regime, and therefore, the legislature did not intend to permit additional recover through the FTCA to military personnel.[9]

In Lombard v. United States, the D.C. Circuit Court applied the Feres Doctrine and denied an Army Veteran recovery for injuries sustained by him and his family while he worked on the Manhattan Project.[10]  The soldier alleged that his exposure to the radiation, and the failure of the government to warn him about the dangers, resulted in physical and genetic damage.[11]  This damage also affected his children, who were born after his exposure.[12]  The court dismissed all claims due to lack of jurisdiction.[13]  The court reasoned that it was bound by Feres even in regard to the Lombard children’s claims.[14]  The contemporary statutory scheme did not provide for the children to recover, leaving them without remedy.[15]  Despite this the court denied the children’s claims along with Lombard’s and called for additional legislative action in the opinion.  The courts have thereby established that recovery by military servicemembers for injury caused by exposure to radiation, is for the legislature to decide and not an issue for the courts to address.

The legislature has responded with a comprehensive statutory scheme, outlining the requirements a Veteran must meet before obtaining VA compensation. This requires constant legislative attention as the needs of our Veterans and the injuries they suffer continues to evolve.

Exposures to radiation in the 1950s and 60s and exposure to Agent Orange in Vietnam spurred slow but certain evolution in the VA approach to evaluating claims. Although many of these Veterans were denied compensation, their plight eventually spurred change in VA compensation to account for injuries related to exposure.  For example, the legislature created a list of “presumptive diseases” which make it easier for an effected Veteran to receive VA compensation by making his or her burden of proof easier.  Room for evolution in scientific and medical understanding was eventually built into the statutory structure by providing for medical research and additions to the list of presumptive diseases without further Congressional action required.

Legislative action is only achieved through political pressure applied by individual citizens and Veteran interest groups. Although far from perfect, political pressure has led to changes which enable VA policy to react more quickly to evolving medical understandings.  Further legislative attention will only lead to better service for our injured Veterans.

[1] Feres v. United States, 340 U.S. 135, 139 (1950).

[2] 28 U.S.C. § 2674

[3] Feres v. United States, 340 U.S. 135 (1950).

[4] Id.

[5] Id. at 136.

[6] Id. at 143-144.

[7] Id. at 139.

[8] Id. at 142-144.

[9] Id. at 139.

[10] Lombard v. United States, 690 F.2d 215 (D.C. Cir. 1982).

[11] Id. at 216-217.

[12] Id. at 217.

[13] Id. 227.

[14] Id.

[15] Id.

 

M-VETS Prevails at Trial in Landlord-Tenant Dispute

The Mason Veterans and Servicemembers Clinic (M-VETS) won a favorable verdict for a client, a Coast Guard and Marine Corps Veteran, in Stafford County Circuit Court last month. The client sought and recovered the return of his security deposit from his former landlord, who withheld the entire deposit, in part, to pay for damages the tenant reported to the landlord during his tenancy.  The Circuit Court Judge found that the damages were the responsibility of the Landlord pursuant to the terms of the Lease and that the Landlord’s failure to conduct a proper move-out inspection warranted the return of the entire security deposit to the tenant.

This verdict was achieved after the opposing party appealed the General District Court’s decision, where the lower court also held in favor of the M-VETS client in the spring of 2017. An appeal from District Court to Circuit Court constitutes a trial “de novo” where a new trial is conducted without deferring to the lower court’s rulings on law or fact.  M-VETS successfully prevailed at both trials, concluding the legal issue in the client’s favor.

M-VETS had been assisting the client with this matter since the fall of 2016. During that period, three M-VETS Student Advisors assisted on the case, including current Student Advisor Emma Devaney.  M-VETS Managing Attorney Leigh Winstead provided representation at trial in addition to her supervisory role.

The client expressed his gratitude to M-VETS for their representation. “[F]rom the start, [M-VETS] made me feel like I had an ally . . . [their personnel’s] friendly manner and obvious professional expertise gave me hope that I could put the facts in front of a judge on an equal footing with any company or person with more resources than me,” the client said.

Regarding the outcome, M-VETS Director, Tim MacArthur, stated: “The core missions for M-VETS are to provide pro-bono legal representation for veterans, Servicemembers and their dependents while providing the opportunity for Scalia Law students to gain valuable practical experience assisting our target population.  It is always satisfying to correct an injustice for our clients especially when the expense of litigation would have made it practically impossible to favorably resolve the matter.  Ms. Winstead, Ms. Devaney and the other Student Advisors did an outstanding job with this case and I always like to hear from our clients that the services we provided were appreciated, but more importantly, that our services were provided in a professional and compassionate manner.”

M-VETS assists veterans, servicemembers, and their dependents in a variety of civil matters, including uncontested divorces, landlord/tenant matters, consumer protection and contract disputes, as well as in military/VA administrative matters, including MEB/PEBs, discharge upgrades, and VA disability compensation appeals.