***Warning*** - ​Avengers: Endgame spoilers are included in this post - if you have not yet seen the movie, and do not want certain scenes spoiled, please stop reading***





In Captain America: The Winter Soldier, the title character is in the Triskelion - the primary headquarters for SHIELD, an agency dedicated to world security - and is about to check up on Nick Fury when he goes into an elevator.  In one of the more memorable scenes from the movie, Captain America sees a number of apparent SHIELD operatives join the elevator.  Throughout the ride, Captain America becomes increasingly suspicious until it is revealed that all of these so-called friendly agents were deep cover operatives, working for HYDRA, an organization dedicated and devoted to global domination.  A fierce battle in the elevator ensues and our hero emerges beaten, but victorious.

In Endgame, the Avengers return to that place and time, but this time, armed with the knowledge that the operatives in the elevator are HYDRA agents.  As the HYDRA agents filter into the elevator, Captain America says "Hail HYDRA", and the agents, realizing that they are among an apparent deep-cover, sleeper agent Captain America, leave him alone to conduct his mission.

Intricacies of time travel aside, the movie scene raises an interesting question - what can/should be done when the enemy is within?  When American service members are co-opted to serve interests are are ideologically opposed to the mission or purpose of the United States military, is the military equipped to meet those challenges?  In the case of comic books or movies, this may be seen as brainwashing or in the current case, strategy with sleeper agents, but what if the discussion is removed from the silver screen and moved to the domestic and foreign installations that base and train American service members?

Does the idea of a co-opted service member seen farcical?  Imagined?  Make-believe?  Last week, reports came out that an American service member was being investigated for suspected ties to a neo-Nazi organization.  In this case, an Army medic is suspected of having those ties based, in part, on a selfie taken in a mirror where the photographed person is wearing an Army physical training shirt, appears to be giving a Nazi salute, and has an image apparently affiliated with Atomwaffen Division (the suspected Neo-Nazi group).  Three weeks ago, Huffpost published an article discussing the arrest and/or investigation of multiple service members with alleged ties to neo-Nazi groups.

In 2018, Frontline and ProPublica examined Atomwaffen Division, chillingly concluding that the organization doesn't see itself as terrorists, but rather, members "see the United States as the ultimate terrorist."  More dangerous, this organization has drawn from the United States military, establishing "hate camps, which offer military-style training.  There is a clear appeal to service members, who are given top-tier training for their specific vocations, and who all receive general training in combat and counter-insurgency.  Returning to popular culture, we see that ideologically-opposed organizations may go beyond creating separate training facilities, and may infiltrate training.  Quantico had, as one of its major plot points that, trainees in an FBI class may have been/were double agents, and between news and popular culture, the real issue begins to emerge.  

How does the military deal with an internal threat?

Any common understanding of threats to the military include foreign states or asymmetric combat with stateless groups.  Bases/posts have fences and those fences provide physical security to the base, and those fences have entry points that allow guards to discriminate on who enters, generally permitting those with valid military identification to enter, and those not entitled to enter are refused entry.  Trust is paramount in the military, and each warfighter is responsible for the execution of their part of the mission; that is, if your job is to look straight ahead, while you aren't looking to your left or right, you trust that the people who are assigned with those tasks accomplish them, just as you are charged with protecting their blind side.  The very model, however, doesn't account for treason in the ranks.  The group protects each other from external threats, but again, it doesn't account for internal threats.  

Whether the threat is an ideologue with military identification and a firearm or a more covert threat, passing information to hostile forces, or, a uniformed military member rising through the ranks while supporting an extremist position, the threat in each case is internal, eroding the needed trust in your neighbor service member and changing the landscape of who and what is an enemy and where the may be found.

Last week, I started to describe and discuss the Feres Doctrine, a doctrine that, at its heart, precludes service members from suing the Department of Defense - their employer - for a variety of civil issues.

Over the next few weeks, I will walk through the original rationale of that doctrine, beginning with that the relationship between the servicemember and the military is "distinctly federal in nature."  But, what does that mean?  The Supreme Court in United States v. Standard Oil Co. of California, 332 U.S. 301 (1947), in discussing a United States Army Soldier who was injured by a motor truck, where the driver of that motor truck was negligent, said 

"Perhaps no relation between the Government and a citizen is more distinctively federal in character than that between it and members of its armed forces. To whatever extent state law may apply to govern the relations between soldiers or others in the armed forces and persons outside them or nonfederal governmental agencies, the scope, nature, legal incidents and consequences of the relation between persons in service and the Government are fundamentally derived from federal sources and governed by federal authority."  332 U.S. 305-6.

What the Court said is that the nature of a service member to the U.S. Government is different than most other relationships.  Everyday citizens have connections to the federal government; W2 forms and federal income taxes, to name a few, but the service member is different.  The same connections that the citizen has to the federal government, the service member has, as well, but those connections go well beyond that.  The service member's boss is the federal government.  That same W2 that everyone receives has the Department of Defense as the employer for the service member.  Beyond that, federal law controls the service member to a degree hardly imagined by individuals not affiliated with the military.  Being late to work is actually a federal crime for the service member.  What is a warning or a write-up anywhere else could carry a federal conviction and jail time for the service member.

It seems axiomatic that a federal military member is "distinctly federal", but there are important caveats, and especially when considering the Feres Doctrine.  

Any good 1L (first-year law school student) will tell you that tort law is distinctly state in nature.  A tort is a civil wrong - the law of slips and falls, the law of car accidents, and the law of medical malpractice - broadly stated, a person breaches a duty owed to an individual (for e.g., not keeping the sidewalk free of ice after a storm), the the victim suffers harm that is directly caused by that breach.  More importantly for us, tort law is governed by state law.  That is, Alabama can make a decision about whether to set limits on recovery in medical malpractice cases, or Wyoming can set rules that govern how long an injured party has to sue, and all the states alphabetically in between them can set their own rules regarding tort law.  These laws are often times governed by the unique perspectives and culture of those states - states with divergent histories may view the same issue very differently, and states can pass laws that are responsive to those specific beliefs or cultures.  

The Federal Tort Claims Act - the act that service members try to sue the Department of Defense with - requires that people who sue the federal government use the law of the state that they were injured in!  That is, a military doctor who injures a military plaintiff on a military base will be subject to the law of the state that they are in.  The "distinctly federal" nature of the relationship between the service member and the federal government is weakened by the fact that notwithstanding all of the above being true, federal law doesn't govern the law of the case - it is state law, meaning that on the only point that matters, on the law that governs the case and its outcome, it isn't federal law at all.

Two main concerns have come from this.  First, one issue addressed in Feres was that there would be unfairness to the soldier in his/her recovery since two states may have wildly different laws that govern the amount of damages for the same negligent act.  Second, and this developed a bit after Feres, was that different results would affect the military's need for uniformity in its governing standards.  Put another way, if Soldier 2 hears that Soldier 1 received $50,000 for an injury and Soldier 2 received $25,000 for the same injury, Soldier 2 feels cheapened in an important way, reducing the cohesion in the ranks, and, therefore, reducing military readiness.  Justice Scalia, in the dissent of United States v. Johnson, 481 U.S. 681 (1987) makes both of these points, further elaborating that presently, the civilian can recover against Doctor X, but the military member can't, for what might be the same negligent act.

In the coming weeks, I'll walk through the remaining arguments in support of the Feres Doctrine, and assess current discussions in Congress about whether to remove this bar to service member recovery.