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.

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.

 

PTSD and the Link to Obesity

By Fall 2017 M-VETS Student-Advisor Bonnie Kelly

Seventy percent of American adults are overweight or obese.[1]  Within the military about 7.8% of personnel are now considered overweight up from 1.6% in 2001.[2]  Being overweight is unhealthy for anyone, but it causes specific problems for service members, including the possibility of administrative separation for weight control failure.  There may be a number of reasons why military personnel are becoming overweight, just like reasons among the civilian population vary.  However, service members and veterans may be more likely to face an additional cause of weight gain than civilians: PTSD.

Recent studies show a link between PTSD and weight gain. Because more than half of Iraq and Afghanistan veterans enrolled in VA healthcare have received mental health diagnoses, with PTSD being the most common,[3] the link is extremely important to investigate. The military has recognized this link as evidenced by the Millennium Cohort Study, which began in 2001 and involves more than 77,000 military service members representing all branches of service.  The goal of the study is to “follow the participants through and beyond their service, for up to 21 years” to evaluate the longitudinal sequence of PTSD, new onset binge disordered eating, and subsequent weight gain.”[4]  Thus far the study has shown “that PTSD was both directly and indirectly (through the use of compensatory behaviors) associated with weight change in a nationally representative sample of male and female service members.”[5]  PTSD causes a chronic stress reaction in response to trauma and is a condition identified as a possible risk factor for obesity.

For women, the link between PTSD and weight gain is especially troubling. In the civilian population, one in nine women will experience PTSD in their life, about twice the rate of men.[6] Several studies have shown this link for women, once more confirming PTSD as more than a mental health issue.  A longitudinal study of female nurses begun in 1989 with follow up through 2005 showed that even after controlling for depression, also a factor in weight gain, PTSD symptoms were associated with faster weight gain and increased risk of obesity in women.[7]  Normal-weight women who developed PTSD during the study had a 36% increased risk of becoming overweight or obese compared to women who experienced trauma but had no PTSD symptoms.[8]  For women who developed PTSD during the study, the study pinpointed when Body Mass Index (BMI)[9] trajectories changed, and this change corresponded with the trauma event.[10]

The way in which PTSD causes weight gain isn’t fully understood; however, scientists point to the over-production of stress hormones as a potential factor. Cortisol, known as the stress hormone, is released in higher amounts during periods of physical or psychological stress.[11]  “Cortisol stimulates fat and carbohydrate metabolism for fast energy, and stimulates insulin release and maintenance of blood sugar levels.  The end result of these actions can be an increase in appetite and can cause cravings for sweet, high-fat, and salty foods.”[12]

So, what does this mean for service members? “High rates of excessive weight and body fat have implications for national security if our Armed Forces are unable to recruit and maintain fitness throughout military service.  In addition, the Department of Defense, as the largest public healthcare provider in the United States, must address challenges that obesity poses to the military healthcare system, which not only provides care to service members but also to beneficiaries and retirees.”[13]  The rate of obesity has implications for long-term healthcare for members but also for healthcare costs.  Individuals with obesity are significantly more likely to have hypertension, diabetes, and sleep apnea than individuals at normal weight.[14]

These health issues also mean it is vitally important to correctly diagnose and treat PTSD, an underlying cause of weight gain. For service members and veterans who have symptoms of PTSD it is important to seek help.  While earlier treatment is better, it is never too late to receive PTSD treatment.  Studies now show that treatment can be imperative for both mental and physical health.  Talk to your family physician, a therapist or local VA facility. For clinicians working with service members and veterans diagnosed with PTSD this requires “integrated efforts from primary care and mental health to treat underlying mental health causes and assist with engagement in weight loss programs.”[15]

Even though a majority of the population is now obese or overweight, there remains a stigma surrounding weight gain, often attributed to lifestyle or laziness. For service members or veterans who struggle to maintain a healthy weight, it is important to know if PTSD may be a contributor so that weight can be managed more effectively and prevent other health conditions related to obesity.  There is no stigma to having suffered a trauma.

[1] Andrew Tilghman, The U.S. military has a huge problem with obesity and it’s only getting worse, The Military Times, (Sept. 11, 2016), https://www.militarytimes.com/news/your-military/2016/09/11/the-u-s-military-has-a-huge-problem-with-obesity-and-it-s-only-getting-worse/.

[2] Id.

[3] Shira Maguen, Erin Madden, Beth Cohen, et al., The Relationship between Body Mass Index and Mental Health Among Iraq and Afghanistan Veterans, J. Gen. Intern. Med. 28 (Suppl 2), 563 (2013) available at https://doi.org/10.1007/s11606-013-2374-8.

[4] KS Mitchell, B. Porter, EJ Boyko, et al., Longitudinal Associations Among Posttraumatic Stress Disorder, Disordered Eating, and Weight Gain in Military Men and Women, 184 Am. J. Epidemiol. 33 (Jul. 1, 2016).

[5] Id.

[6] Women with PTSD Gain Weight More Rapidly than Women Without the Disorder, Columbia University Medical Center Newsroom (Nov. 26, 2013), http://newsroom.cumc.columbia.edu/blog/2013/11/26/women-ptsd-gain-weight-rapidly-women-without-disorder/.

[7] Laura D. Kubansky, PhD, Paula Bordelois, MPH, Hee Jin Jun, et al., The Weight of Traumatic Stress: A Prospective Study of Posttraumatic Stress Disorder Symptoms and Weight Status in Women, 71 JAMA Psychiatry 44, 44 (Jan. 2014).

[8] Women with PTSD, supra note 6.

[9] BMI is defined as a weight-to-height ration, calculated by dividing one’s weight in kilograms by the square of one’s height in meters and used as an indicator of obesity and underweight.

[10] Kubansky supra note 7.

[11] Melissa Conrad Stoppler, MD, Can Stress Make You Fat? (Sept. 29, 2017), http://www.medicinenet.com/can_stress_make_you_fat/views.htm.

[12] Id.

[13] Implications of Trends in Obesity and Overweight for the Department of Defense, Defense Health Board (Nov. 22, 2013) available at ‪https://health.mil/Reference-Center/Reports/2013/11/22/DHB-Implications-of-Trends-in-Obesity-and-Overweight-for-the-DoD-Fit-to-fight-fit-for-life‪.

[14] Kubansky supra note 7.

[15] Maguen supra note 3.

Can POTUS, in his Capacity as Commander in Chief, Change Military Policy Via Twitter?

By Summer 2017 M-VETS Student-Advisor

On July 26, 2017, President Trump issued a series of three tweets addressing transgender service in the U.S. Military.  He declared:[1]

The President’s “policy pronouncement” directly contradicts implemented DOD policy still actively listed on DoD’s website here. On July 28, 2015, then Secretary of Defense, Ash Carter, issued a Memorandum entitled, “Transgender Service Members” that allowed for open transgender service and stated:

…no Service member shall be involuntarily separated or denied reenlistment or continuation of active or reserve service on the basis of their gender identity, without the personal approval of the Under Secretary of Defense for personnel and Readiness. This approval authority may not be further delegated.[2]

Following Secretary Carter’s July 2015 Memorandum, DoD Instruction 1300.28 was issued and became effective October 1, 2016. It provides guidance for, among other things, how a service member can transition gender while serving.[3] In addition, the DOD issued “Transgender Service in the U.S. Military, An Implementation Handbook” in 2016.[4] The 72 page Handbook is, “designed to assist our transgender Service members in their gender transition, help commanders with their duties and responsibilities, and help all Service members understand new policies enabling the open service of transgender Service members.”

Article II Section 2 of the U.S. Constitution, states that “the President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States.” As Commander in Chief, the President’s powers are quite broad. However, whether the President, in his capacity as Commander in Chief, has the ability to change DoD policy via Twitter is an open question.

Common sense would dictate that, without a formal modification to DoD regulations, an announcement via Twitter would not effectuate a policy change. The President of the National Institute for Military Justice, Dru Brenner-Beck suggested that, “a tweet doesn’t really give you policy.”[5] She further indicated that under normal procedure, the President would issue an executive order instructing the Pentagon to amend its personnel policy that wouldn’t begin without extension coordination between DoD and various parts of the military.[6] Following that, Implementation Guidance, or formal directives would then be expected from the Secretary of Defense according to U.S. Army Chief of Staff Gen. Mark Milley.[7]

Because of the unconventional nature of the President’s “policy pronouncement,” its impact on the DODs implemented policy caused massive confusion. However, at this juncture, the Pentagon does not seem inclined to execute policy based on the President’s tweets. On July 27, a day after President Trump announced his transgender position on Twitter, Chairman of the Joint Chiefs of Staff, Gen. Joseph Dunford, Jr., issued a Memorandum to Service Chiefs, Commanders and Senior Enlisted Leaders stating:

I know there are questions about yesterday’s announcement on the transgender policy by the President. There will be no modifications to the current policy until the President’s direction has been received by the Secretary of Defense and the Secretary has issued implementation guidance.[8]

Following the President’s Tweets, a senior military official stated, “I hope our commander in chief understands that we don’t transmit orders via Twitter, and that he can’t, either.”[9] While it is legally ambiguous as to what the President’s tweets can do – he would be wise to heed this advice. Rash statements of policy on intricate issues serve no one’s interest, and the Pentagon should continue to require more than a tweet to begin the formulation of new policy.

[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] https://www.defense.gov/Portals/1/features/2016/0616_policy/memo-transgender-service-directive-28-July-2015.pdf.

[3] https://www.defense.gov/Portals/1/features/2016/0616_policy/DoD-Instruction-1300.28.pdf.

[4] https://www.defense.gov/Portals/1/features/2016/0616_policy/DoDTGHandbook_093016.pdf.

[5] http://www.politico.com/story/2017/07/26/trump-transgender-troops-ban-240998.

[6] Id.

[7] http://dailycaller.com/2017/07/27/we-dont-execute-policy-based-on-a-tweet-pentagon-yet-to-receive-trumps-transgender-ban-order/.

[8] https://uk.reuters.com/article/uk-usa-military-transgender-exclusive-idUKKBN1AC2FB.

[9] https://www.reuters.com/article/us-usa-military-transgender-exclusive-idUSKBN1AC2FN?il=0.

National Memorial to Honor Legacy of Native American Military Service

By Spring 2017 M-VETS Student-Advisor Monica Martinez

Native Americans have served our nation valiantly and with distinction in times of peace and war, while also fighting for the right to be an equal part of this very nation. To honor their legacy, Patriot Nations: Native Americans in Our Nation’s Armed Forces, an exhibition that tells the history of American Indian and Alaska Native men and women who have served in the United States military, will be available for viewing until January 18, 2018 at the Smithsonian Institution’s National Museum of the American Indian (NMAI) in Washington, D.C.

NMAI will also be the site of the National Native American Veterans Memorial, a project authorized by Congress in December 2013 with an anticipated dedication date of Veterans Day, November 11, 2020. The memorial will highlight the bravery, contributions, and sacrifices of American Indian, Alaska Native, and Native Hawaiian veterans during their military service. The $15 million memorial project, which will receive no federal funds, tasks NMAI and the National Congress of American Indians (NCAI)—an advocacy organization—with accepting contributions for, and paying the expenses of its establishment. To garner support and community input for the memorial, an advisory committee consisting of Native representatives from various tribes and branches of service will conduct a series of consultations this summer. There have been 30 such consultations to date and several more are planned over the next few months.

Commitment to Military Service

Native Americans comprise a rapidly growing segment of the U.S. military and veteran population. Yet military service has not been without sacrifice. Native Americans have honorably defended the U.S., despite a tragic history of cultural suppression, broken treaties, and confinement to reservations. At home, Native American veterans are some of the most revered members of their communities, recognized on special occasions through ceremonies and dances performed in their honor. Native Americans’ reasons for serving in the military are complex. While some see military service as an extension of their warrior traditions, or believe in a sacred purpose to protect their land, others join simply to fulfill the patriotic sense of duty felt by every American.

The Department of Defense estimates that some 31,000 American Indian and Alaska Native (AIAN) men and women are on active duty. According to the Census Bureau, more than 140,000 veterans self-identify as AIAN. American Indians have the highest per capita commitment to military service than any other ethnic group in the United States.

Overview of Native American Military Service

Native Americans served in the Army in every war in America’s history, as well as during peacetime, and even when unrecognized as American citizens. Additionally, 25 Native Americans have received the nation’s highest award for valor, the Medal of Honor. Below is a selection of highlights as compiled by the Department of Defense of Native American military service through the years.

 Ira Hayes – Iwo Jima Flag Raiser

On Feb. 23, 1945, to signal the end of Japanese control, Ira Hayes and five other’s raised the U. S. flag atop Mount Suribuchi on the island of Iwo Jima. Three of the six men were killed while raising the flag. The heroic act transformed Hayes’ life forever. Hayes was a full-blood Pima Indian from Arizona, and is buried in Arlington Cemetery. The Ballad of Ira Hayes, a popular folk song performed by Johnny Cash, tells his story.

Early Wars (before World War I)

Many tribes were involved in the War of 1812, having fought for both sides as auxiliary troops in the Civil War. The Indian Scouts were established in 1866 and remained active for the remainder of the nineteenth century and the early twentieth century.

 World War I

Roughly 12,000 Native Americans served in the military during World War I. Four Native Americans serving in the 142nd Infantry of the 36th Texas-Oklahoma National Guard Division received the Croix de Guerre medal from France.

World War II

Over 44,000 Native Americans served between 1941 and 1945, (from a population of less than 350,000). Native American military personnel worked as cryptologists, using their Native languages to encode messages so that enemy code-breakers could not decipher them. Alaska Natives were a significant presence on the Alaska Combat Intelligence Detachment. This outfit was the first ashore on each island occupied by Allied forces in the Aleutian Campaign. Women contributed to war efforts through volunteer emergency service (WAVES), Women’s Army Corps, and Army Nurse Corps.

Marine Corps Women Reservists, Camp Lejeune, North Carolina, Oct. 16, 1943. From left, Minnie Spotted Wolf (Blackfoot), Celia Mix (Potawatomi) and Viola Eastman (Chippewa).

Korean War

Approximately 10,000 Native Americans served in the military during this period. Three were awarded the Medal of Honor.

Vietnam War

More than 42,000 Native Americans served in the military in the Vietnam Era, and over 90 percent of those servicemembers were volunteers.

Post-Vietnam Era

Native American servicemembers continued to serve in high numbers after the Vietnam Era—in Grenada, Panama, Somalia, the Gulf War, and in Operation Enduring Freedom (OEF), Operation Iraqi Freedom (OIF), and Operation New Dawn (OND).

Master Sergeant Joshua Wheeler (Cherokee, 1975–2015) was a member of the army’s elite Delta Force and the recipient of 11 Bronze Stars during his military career. Wheeler died on Oct. 22, 2015, while rescuing prisoners from the Islamic State (ISIS) near Hawijah in northern Iraq. He was the first known U.S. military casualty in the fight against ISIS.

Challenges Facing Native American Veterans

Native American communities are committed to creating paths to education, active citizenship, career development, and improved health outcomes for returning servicemembers and veterans in order to ease the transition home, but challenges remain. American Indian and Alaska Native (AIAN) veterans, for example, are less likely to have an advanced degree compared to veterans of other ethnic groups. AIAN populations also have lower personal incomes than veterans of other ethnic groups and, though the unemployment rate for all veterans has risen since the economic downturn, the unemployment rate for those living on tribal lands has been higher. Further, AIAN veterans are more likely to lack health insurance and to have a disability, service-connected or otherwise, than veterans of other ethnic groups. In the area of mental health, increasing evidence shows that Native American veterans have the highest rate of PTSD of any ethnic group. Significant barriers to identifying and treating these conditions include lack of sufficient health literacy and confusion regarding eligibility for veterans services or the types of services available. However, geography poses the greatest challenge to receiving care, since reservations in rural and remote areas are at great distances from medical facilities. For veterans within or near rural communities, it can be also be difficult to receive representation for benefit claims because they cannot reach existing veterans service organizations (VSOs) or may not use them due to cultural barriers.

Federal Benefits for Native American Populations

The U.S. Department of Veterans (VA) affairs works through tribal governments to provide benefits and services to Native American veterans. VA has tried to address the lack of benefits representation in Native communities through a rule change in the Code of Federal Regulations (38 CFR 14.628). The change will allow eligible tribal organizations to become accredited by the VA to provide assistance on benefit claims. Other resources include the VA Veterans Benefit Administration (VBA), which administers a Native American Direct Home Loan (NADL) program with assistance from the Office of Tribal Government Relations (OTGR); and the VA Veterans Health Administration (VHA) Office of Rural Health, which administers telemental health clinics that provide mental health services remotely to rural veterans. Also, a new program through the Tribal HUD-VA Supportive Housing (Tribal HUD-VASH) program will provide rental assistance and supportive services to homeless Native American veterans or those at risk of homelessness. (This list provides only a brief overview of federal benefits available to Native American veterans.)

I. Veterans Service Organizations

 

The VA issued a final rule on January 19, 2017, to amend its regulations concerning recognition of certain national, state, and regional or local organizations for purposes of VA claims representation. Specifically, the rulemaking allows the Secretary to recognize tribal organizations in a similar manner as the Secretary recognizes state organizations. The final rule allows a tribal organization that is established and funded by one or more tribal governments to be recognized for the purpose of providing assistance on VA benefit claims. It also allows an employee of a tribal government to become accredited through a recognized state organization, similar to County Veterans’ Service Officer (CVSO) accreditation. Accredited tribal organizations will provide veterans with better, more culturally competent services through stringent requirements meant to secure long-term, quality representation.

II.  VA Direct Home Loan Program

VA provides direct home loans to eligible Native American veterans to finance the purchase, construction, or improvement of homes on Federal Trust Land, or to refinance a prior NADL to reduce the interest rate. To obtain a NADL, the law requires that the tribal government must have signed a Memorandum of Understanding (MOU) with the Secretary of Veterans Affairs. The MOU spells out the conditions under which the program will operate on its trust lands. The NADL will allow Native American veterans to reintegrate more easily into civilian working life and to secure a brighter future for their families.

III. HUD Supportive Housing Program

Tribal HUD VASH, a new program, is estimated to benefit 500 Native American veterans through the form of housing and supportive services. The program will combine $5.9 million in rental assistance from HUD with case management and clinical services provided by VA. Veterans who are homeless or at risk of homelessness and who are living on or near a reservation or other Indian areas are eligible for assistance. Through this innovative program, HUD hopes to help tribes move one step closer to ending veteran homelessness once and for all.

As the foregoing demonstrates, partnerships between Native American communities and federal government agencies have the potential to enhance the health, social, and economic outcomes not only for the returning Native servicemember, but for his entire family.

Patriot Nations

Just as the NMAI exhibition introduces many museum patrons to the historical sacrifices of Native Americans in the armed forces, the National Memorial will stand as a stunning tribute in the nation’s capital to allow us to reflect on that legacy of service. At the same time, we must continue to recognize and address the challenges inherent in serving Native American veterans. Cultural barriers, lack of information, and geography are a few factors that prevent Native American veterans from receiving excellent service-connected care and benefits. Through continued partnerships with national advocacy organizations like NCAI, and federal government agencies, these and other critical issues can be addressed in a forthright, effective manner and eventually overcome.