Politicians Love to Praise the Troops. But US Law Actually Treats Them as Tools.

This book excerpt is part of Cafe, TPM’s home for opinion and news analysis. It was adapted from Saira Mohamed’s What a Country Owes Its Soldiers.

Despite Donald Trump’s promises that he would be the peace president, the United States continues to be very much at war, from the forcible abduction of the Venezuelan president to the devastating conflict in Iran. As ever, the country professes its support for the troops, but we hear little about the military personnel in these operations — a day or two of stories on the horrendous conditions on board the USS Lincoln or the losses of American service members in the war in Iran. Typically, the deaths and the injuries are accepted as inevitable, perhaps as tragedies. War is necessarily life-threatening for those who fight it — theirs but to do and die, in Tennyson’s words. Such is the nature of military service, right? And so we thank soldiers for their service and call what they endure a profound sacrifice.

But this is not the only way to think about the military. In some countries, there’s a limit on what military personnel are expected to endure, and governments have a duty to take care of their service members — not just as veterans, but during the course of their service. There’s a basic understanding that even though war is necessarily life-threatening, not all threats to the lives of soldiers are necessary.

Here in the United States, by contrast, there is no such understanding. During these last two decades of war, hundreds of U.S. service members have died in accidents outside of combat, from rollovers of armored vehicles to collisions of ships to crashes of deteriorating aircraft. Untold numbers suffer traumatic brain injuries when they fire their own weapons because commanders won’t implement safety protocols. They develop deadly cancers because of toxic gases their leaders knew were spewing from the burn pits on bases. These are injuries and deaths that even the military admits are preventable. And this is to say nothing of those who have lost their lives in the Iran war (the number of which the Pentagon refuses to disclose), an avoidable conflict for which the administration cannot articulate a coherent rationale). In a country that claims to honor its service members, these kinds of harms should be staggering. But instead, they’re hardly noticed.

My new book, What a Country Owes Its Soldiers, takes on the question of how the government should protect military personnel: properly training them, adequately equipping them in combat and outside of it, and using them only for lawful operations. It finds that although the law allows our leaders to treat soldiers as instruments that can be used however the government pleases, there are pockets of the law — mostly ignored or hidden — that properly recognize soldiers as rights holders. And there is good reason to think change is on the horizon. Ultimately, for the sake of service members, and for the good of the country, we must start to see military personnel as real people, human beings who are owed a duty of protection by the state.

In the excerpt that follows, I explore a rule of U.S. law, known as the Feres doctrine, that exemplifies the treatment of American service members as mere instruments. This rule prohibits lawsuits against the government for injuries sustained “incident to service.” Over time, the interpretation of that phrase has grown to mean essentially anything that military personnel experience while serving, from death because of deteriorating equipment to medical malpractice to sexual assault. The doctrine is more than just a rule that shields the government from accountability. It’s one of many ways in which U.S. law ensures that the government can do anything it wants to soldiers. This free pass has become part of the fabric of how we understand service members: as otherworldly heroes, different from average Americans, who choose to accept whatever horrors may come. Some people — including even those who oppose the Feres doctrine — refer to rules such as this one as a “sacrifice” that those heroes make, as if allowing the government impunity when it comes to its treatment of military personnel is somehow sacrosanct. But there is nothing holy about it. It’s just a raw deal.

I bring to this topic a background in human rights law — something we rarely think about applying to service members. But we should. The Feres doctrine is totally at odds with international human rights law, a body of law that is binding on the United States. In human rights law, a government is expected to reasonably protect every person under its control—even a soldier, whether in wartime or peacetime. That doesn’t mean the government is always liable if a soldier is injured or killed in the course of duty. But it does mean a country should expose its soldiers only to dangers that are reasonable and necessary. In this vision, the negligence that produces tank rollovers and helicopter crashes, traumatic brain injuries and PTSD, are not inevitable tragedies: they’re human rights violations.

When soldiers in a war zone are denied armored vehicles, when a piece of equipment falls apart and a helicopter crashes, when the mission eclipses the training and a ship crashes, what does the law have to say? Under a peculiar rule known as the Feres doctrine, it says the government cannot be held to account.

The doctrine takes its name from the Supreme Court’s 1950 decision in Feres v. United States, which established that tort claims against the United States that “arise out of or are in the course of activity incident to service” cannot be brought under the Federal Tort Claims Act (FTCA), the 1946 law that authorizes private plaintiffs to sue the government in federal court for injuries caused by the federal government or its agents. Feres, which was decided just a few months after the United States entered the Korean War, consolidated three cases, none of which were about war. One suit alleged that a military surgeon had negligently left a towel in the abdomen of Army flight chief Arthur Jefferson during an operation at a government hospital in Virginia. When Jefferson had to have another surgery several months later, by which time he had been honorably discharged from the Army, doctors found the nearly four-square-foot towel. In another case, the widow of Dudley Griggs, an Army officer, alleged that negligent medical treatment had caused his death during surgery and treatment at Scott Field Air Base in Illinois. And finally, there was thirty-one-year-old Rudolph Feres, an Army lieutenant who had parachuted onto the beaches of Normandy on D-Day and fought in the Battle of the Bulge. In 1947, soon after he returned home, Feres died in a fire at a barracks at Pine Camp, New York. He had served twelve years in the military. After his death, his widow brought suit under the FTCA, claiming that the government had negligently caused the death by “quartering him in a barracks known or which should have been known to be unsafe because of a defective heating plant.” Though each case involved disparate facts, they coalesced around a common theory: that the government had breached its duty of care toward the soldiers.

The Supreme Court found that each suit was barred under the FTCA. Based on the language of the statute, that holding came as something of a surprise. The text of the FTCA itself did not exclude military matters broadly; rather, it expressly prohibited suits “arising out of . . . combatant activities . . . during time of war.” The implication of this language, as the Court duly noted, was that “claims arising from noncombat activities in peace” were allowed under the statute. Nonetheless, the Court decided to extend the prohibition beyond that rather narrow exception enumerated in the text, and it held that the FTCA could not be used to sue the government for injuries arising out of military service.

The Feres Court cited two rationales for its expansive decision. First, because the relationship between the government and military personnel is “distinctively federal in character,” it “makes no sense” to permit claims under the FTCA, which allows suits against the government based on state law, for injuries sustained by service members, who have no say in where they are stationed. Second, the Court noted that the government already had established “not negligible” compensation systems for injuries or death of individuals in the armed services. Accordingly, the decision explained, it was reasonable to understand Congress to have barred suits for injuries sustained incident to service under the FTCA. (The Court didn’t explain, however, why Congress had made an exception only for war, and not for all military activities.)

In subsequent decisions, the Court reaffirmed and expanded the Feres doctrine, and it also expanded the rationales for preserving the prohibition against FTCA suits for injuries incident to military service. In United States v. Brown, the Court offered a new explanation for what it saw as the justification for Feres. That 1954 decision allowed the respondent to proceed with his suit against the government, which had been initiated after he sustained permanent leg damage during treatment he received at a Veterans Administration hospital when he was no longer an active-duty service member. But instead of going back to the reasoning of Feres, the Court focused on “the peculiar and special relationship of the soldier to his superiors“ and warned of “the effects of the maintenance of such suits on discipline, and the extreme results that might obtain if suits under the Tort Claims Act were allowed for negligent orders given or negligent acts committed in the course of military duty.”

This was the rationale that would stick. Nearly two decades later, in Stencel Aero Engineering Corporation v. United States, the Court offered further texture to this “third factor” underlying Feres. A trial to determine responsibility for injuries, the Court explained, “would . . . involve second-guessing military orders, and would often require members of the Armed Services to testify in court as to each other’s decisions and actions.” Moreover, as the Court cautioned another ten years later, allowing suits against the government for injuries sustained incident to service might “involve the judiciary in sensitive military affairs at the expense of military discipline and effectiveness.” Over time, the Feres doctrine thus evolved from protecting the government because of the incongruity of applying various state laws to service members’ suits and the availability of a compensation system, to doing so because of the instrumental consideration that suits against the government could fracture the vital system of military obedience and loyalty—with never a peep about how the government’s misconduct itself might be damaging that crucial system of discipline.

The decisions of the Court clearly demonstrate its position that “military discipline” should be interpreted “in the broadest sense of the word.”43 Indeed, discipline is so broadly interpreted that it seems to be equated with simply being subjected to the power of another person. Even when the alleged injury was perpetrated by civilian actors who were not exercising control over the military personnel at issue, the Court has found that Feres bars suit, because the activity overall was the product of orders.

The Feres doctrine has barred suits even when the responsible actors involved were violating their own policies, or the law. The Court’s decision in United States v. Stanley prevented a veteran from suing the government for injuries he sustained during his Army service when he was administered LSD without his knowledge, as part of a secret program run by military intelligence and the CIA to “determine the potential effects of chemical or biological agents when used operationally against individuals unaware that they had received a drug.” The illicit nature of the LSD program was clear at the time and was confirmed years later in the Church Committee’s massive investigation of abuses committed by the intelligence community. The experiments also violated the Nuremberg Code, the ethical standards established by US judges to assess the Nazis’ programs of experimentation on unknowing, nonconsenting human subjects. And yet, with Feres controlling the reasoning, the determination that the experimentation was “incident to service” trumped all. Being unwittingly experimented on was deemed just another day in the Army.

This is where the Court’s decisions add insult to injury. Not only does the Feres doctrine prevent the government from being held accountable for its abuses; it also tells military personnel that these abuses are unremarkable, mundane, normal parts of their service. In another perverse decision, a West Point cadet sought to sue Lieutenant General Franklin Lee Hagenbeck and Brigadier General William E. Rapp, the school’s superintendent and commandant of cadets, respectively, on the ground that they failed their obligations when she was raped by a fellow cadet and subjected to a pattern of discrimination and harassment. In dismissing the suit, the Second Circuit Court of Appeals reasoned that “adjudicating such a money damages claim would require a civilian court to engage in searching fact-finding about Lieutenant General Hagenbeck and Brigadier General Rapp’s basic choices about the discipline, supervision, and control of the cadets that they were responsible for training,” which in its view simply couldn’t happen. Meanwhile, Judge Chin, in dissent, questioned how “the concern identified in Feres and its progeny that courts not interfere with military discipline and structure” could justify barring the lawsuit “when the military is violating its own rules and regulations.”

The Doe decision prompted another round in the long tradition of criticism of Feres by scholars, practitioners, legislators, and judges. It is a bizarre reading of statutory text, one that looks more like invention than like interpretation. And it is decried widely by observers.

Why, then, has the doctrine persisted? Some might ask whether significant reform of Feres has been blocked simply by routine congressional dysfunction. Perhaps. But Congress manages to enact laws in other areas, and it even passed legislation in 2019 creating a new Defense Department–run claims process for service members to file complaints against the government for medical malpractice, and in 2022 allowing suits for injuries caused by water contamination at Camp Lejeune in North Carolina. Today, a bill is pending to amend Feres—but only for sexual assault. The doctrine’s durability thus cannot be explained exclusively as a casualty of legislative impasses.

Feres is no accident. These cases and the doctrine’s survival demonstrate the country’s broader acceptance of treating members of the military in ways that would not be tolerated outside the military. Inability to seek government accountability under US law for service members’ injuries forms a part of the fabric of sacrifice that undergirds expectations about the nature of military service. This is so within the military itself. When Vietnam veterans began to see a connection between Agent Orange, the herbicide that the United States had spewed over Vietnam, Laos, and Cambodia to destroy crops and defoliate jungles, and the diseases and impairments they were suffering after they returned home, they sued manufacturers—not the United States—in part because they knew a civil action against the government would hit the Feres dead end. But it was not only their knowledge of the limits of the FTCA that shaped their choices. As Peter Schuck explained in his book on the lawsuits, veterans’ sense of patriotism also made them reluctant to accuse the government of wrongdoing. In their minds, refusing to make claims on the government was a component of service to their country. And by continuing to allow the Feres doctrine to prevent the government from being held to account for its failures to protect service members, the legal system sustains this idea, too, as if a person signing up for military service is a blank check for the government to treat them like nothing but a tool.

Adapted excerpt from Saira Mohamed’s WHAT A COUNTRY OWES ITS SOLDIERS (Belknap Press/Harvard University Press; November 10, 2026)