Senator SPECTER. Admiral Weaver, you talk about not affecting military effectiveness, and I note your reference to the case of O'Neill v. United States. We have with us today Ms. Bonnie O'Neill, whose daughter, Ensign Kerryn O'Neill, was the victim in that case.

The essential facts were that Kerryn O'Neill was murdered by her former fiance, George Smith, a Naval ensign. The two of them had met at the Academy and had become engaged, and then Kerryn O'Neill broke off the engagement. She was then stalked by Mr. Smith. One night, while she was sitting in her on-base apartment watching a movie with a friend, Smith came to her building, killed her, her friend, and then himself.

As you know, after the murders, Kerryn O'Neill's family learned that Mr. Smith had scored in the 99.99th percentile for aggressive, destructive behavior in a Navy psychological test. Under Naval procedures, those results should have been forwarded to the department of psychiatry at the Naval hospital for a full psychological evaluation. Now, that, of course, is a case which isn't battlefield, isn't combat, isn't military duty.

Why should that kind of a case be barred, and do the rationales, the three reasons you say, have any applicability at all to that kind of a case?

Admiral WEAVER. Well, sir, in my judgment, it is a matter of equity. This was a terrible and tragic case, but to focus on this and use this as an element to create a new standard, which I would submit to you, sir, with respect, would create inequities in other parts of the system-I don't believe that that is the way to address it.

Senator SPECTER. What inequities, Admiral?

Admiral WEAVER. I am sorry, sir?

Senator SPECTER. What inequities?

Admiral WEAVER. The ability to afford, for instance, redress on the part of the O'Neill family as opposed to providing a similar circumstance under the Federal Tort Claims Act against an overseas incident of that kind. In other words, how would we provide the same type of treatment, regardless of the circumstances?

Senator SPECTER. If the incident had occurred overseas, you would apply the same law. It does not involve order and discipline. It is not a matter which involves the combat items which you mentioned in your opening statement.

Can you give me a factual situation where there would be an unfairness in allowing a lawsuit, if you could, as to Kerryn O'Neill? Why not as to others?

Admiral WEAVER. Sir, I cannot provide an answer to that at this moment. I will provide that to you, if I could.

Senator SPECTER. Well, I would appreciate it if you would do so. I don't see that the analogy is apt.

Mr. Harris, when you articulate the rationales and you talk about order and discipline, and Admiral Weaver makes a reference to combat, I can certainly see the need for order and discipline in combat. The comment was made about one sailor suing another, apparently, in the course of duty, but how would that affect a case like Kerryn O'Neill's horrendous murder?

Mr. HARRIS. Well, to begin with, I would like to also echo the Department's sympathies for the O'Neill family.

I would remind the committee that the Constitution provides the basis for the Congress having a special relationship with the military and establishing the rules and regulations that govern the military.

Within that rubric, under Article I, section 8, the Congress has deferred to the military a certain amount of authoritarian power that would be intolerable in civilian life. One of those powers in this case is the power and the authority of the military to govern its housing for military personnel.

Ensign O'Neill in this incident, as the Senator recognizes, was in military-provided housing when this took place. This is inescapably an area that is within the discretion of the military to provide for order and discipline the regulations governing military housing are quite specific.

Senator SPECTER. Mr. Harris, what has the housing got to do with it? If it had been off-base, would you say that Kerryn O'Neill's parents would have been able to sue?

Mr. HARRIS. Well, of course, if it was off-base, the military still does provide for housing even off-base by providing a housing allowance to military members, for example.

Senator SPECTER. Is either relevant

Mr. HARRIS. Very relevant, because these decisions are

Senator SPECTER [continuing]. Whether you are on-base or an allowance is being provided?

Mr. HARRIS. I am sorry, Senator?

Senator SPECTER. Is either relevant to the underlying rationale? You talk about order and discipline, and I can see that, but order and discipline has nothing to do with the Kerryn O'Neill case. And whether she is on-base or off-base, housing allowance or not, or in an apartment which is more expensive than the housing allowance-what has that got to do with the facts of the case with respect to the underlying rationale of order and discipline?

Mr. HARRIS. Well, here, I think it is important to remember that the order and discipline fits within a broader context of a command structure in the military. The military has got to function in a manner in peacetime; that is, it operates on the command structure in peacetime so that it can effectively work in wartime.

Senator SPECTER. Tell me how the command structure is implicated in the O'Neill case.

Mr. HARRIS. If a commander, for example, had the choice of providing additional security at the barracks that a service member is living in and at which a service member is injured in a particular case, versus taking that amount of money and providing it to buy additional aircraft or providing additional security at some other place on the base, this decision that is made within the command structure of the military is one that should function independent of judicial intrusion. The Congress has recognized that for a long time and has deferred generally to the military to make these kinds of decisions.

But beyond that, in this case where we have the case of Smith, who had a psychological examination that allegedly revealed that there were perhaps some psychological problems associated with

the serviceman, clearly the military should not be in the position where commanders are hauled into court to justify why a command decision was made in this case to assign Smith to a submarine and that the assignment of Smith to a submarine had caused him to be distraught.

If we get into this kind of second-guessing of command decisions in the military, we will slowly grind down the efficiency and effectiveness of our military within the command structure.

Moreover, even if Feres didn't apply in this case, there are a number of exceptions articulated within the text of the FTCA that would bar a recovery, specifically the assault and battery exception and the discretionary function exception.

Senator SPECTER. Well, I am listening to you, but I don't see anything that has to do with the command structure.

One final question, Mr. Harris. You did not mention cost. I infer from that that it is not a relevant factor in the Government's position.

Mr. HARRIS. Cost?

Senator SPECTER. Cost, payment of damages.

Admiral WEAVER. If I may take that question, sir, if you don't mind.

Senator SPECTER. You may, after Mr. Harris does.

Mr. HARRIS. I think cost is always a concern.

Senator SPECTER. Well, never mind whether it is always a concern. You didn't mention it. Is it a concern in your opposition to a change in the Feres doctrine?

Mr. HARRIS. Well, the question that I answered was related to the command structure and that has nothing to do with the cost issue.

Senator SPECTER. I am aware of that.

Mr. HARRIS. As I would re-articulate, the Government, of course the Department of Justice would be concerned about cost, which would be one other reason, the protection of the Federal public fisc, for not opening up the military to all sorts of lawsuits that are controlled by plaintiffs.

The FTCA does attempt to control cost by limiting attorney's fees, but we think that the overall compensation system that the military has in place, which is a very generous compensation system, is one that for the most part compensates those who are injured or killed in the line of duty in a fair and consistent manner. Senator SPECTER. You testified to that, but this question is very different. This question is whether the Government contends that it would be very expensive if these lawsuits could be brought if the Government had to pay damages.

Mr. HARRIS. There is no question that it would be expensive, but the payment of damages is not our primary concern.

Senator SPECTER. Admiral Weaver, why don't you go ahead? Do you have an answer to it?

Admiral WEAVER. Sir, I can't address the specific impact of judgments. My intervention was simply to say that regardless of the financial cost, I think the greater risk is, again, on the good order and discipline and the relations that exist in a military organization one to another.

Senator SPECTER. OK, I think your positions are understood. Thank you very much, gentlemen.

Now, I would like to call the second panel: Major General Sklute, retired; Major General Altenburg, also retired; Mr. Sprague; Mr. Fidell; Mr. Joseph; and Ms. O'Neill.

Our first witness on panel two is listed as Major General Nolan Sklute, Former Judge Advocate General, United States Air Force. He received his bachelor's degree from Union College in 1962, his law degree from Cornell, and was the Judge Advocate General of the Air Force from 1993 to 1996.

I think you can see the timer there which has five on it, and the minutes go down and the red light comes on when time is up.

Thank you for joining us, General Sklute, and the floor is yours.

STATEMENT OF NOLAN SKLUTE, MAJOR GENERAL (RETIRED), FORMER JUDGE ADVOCATE GENERAL, U.S. AIR FORCE, BETHESDA, MARYLAND

Mr. SKLUTE. Thank you, Senator Specter. At the outset, I would like to ask that my complete written statement be entered into the record.

Senator SPECTER. Your statement will be made a part of the record in full, and everyone's written statement will be made a part of the record in full.

Mr. SKLUTE. First, let me apologize for my voice today. I seemed to have picked up a football cold over the weekend.

I do appreciate, sir, very much the opportunity to be here today and to share my thoughts with you and the committee concerning the proposed legislation to amend the Federal Tort Claims Act eliminating the effects of the Feres doctrine.

As indicated in my written statement, I submitted there and I submit here that the proposed legislation poses significant risks to the effectiveness of our Nation's armed forces, and I would like to take a few moments to explain why I and many others have reached this conclusion.

I don't intend to reiterate all of that have been discussed by the courts in formulating, applying, affirming, and expanding on the incident to service exception which has become known as the Feres doctrine. You already have sufficient information in this regard before you, both written and verbal.

What I would like to do is address the adverse impact the proposed legislation will have on those elements that are critical to the unit cohesiveness so very critical to the combat effectiveness of our armed forces.

The elements that make up unit cohesiveness-and they have been set out by the Congress in statute in many respects-these elements are integral to the unique and special relationship that exists within military organizations and that exists among and between its members, and these elements are absolutes; they can't be compromised.

They include such things as strict obedience to orders; total loyalty to one's organization, one's service, and our Nation; total loyalty up and down the chain of command; complete trust among and between members of the organization; and, finally, discipline.

The proposed legislation would attack the requirement for unit cohesion in certain respects. First of all, it will create a certain degree of divisiveness within an organization. It will create discord. it will create perceived and real unfairness, and it will create the not insignificant turmoil associated with civil lawsuits.

Such activities are far removed from the various internal accountability measures undertaken by the services within the structure of various departmental regulations and directives. There is no end to the type of decisions, actions, and activities which would become litigation targets with the abandonment of Feres.

One just has to visualize the impact on an organization from the following two examples which really just barely scratch the surface. A solider or airman injured during a training exercise seeks monetary damages, alleging his injuries resulted from the negligence of his commander and others within his organization during the planning and execution of the training event.

A maintenance crew chief bails out of an F-16 when it flames out during an incentive flight or a training flight and files a claim for his resulting injuries, alleging negligence on the part of the pilot, the maintenance crew that maintained that aircraft with whom he works, and the military air traffic controllers.

The services are already subject to lawsuits in a wide variety of circumstances. Superimposing the process of civil litigation in the manner proposed by abandoning Feres will impose an even greater disruptive influence upon military operations. The courts have recognized this and acknowledged their reluctance to intervene in military affairs.

The adverse impact upon unit cohesiveness inherent in these two examples and a million others that could be discussed must not be overlooked. Abandonment of Feres as proposed would pave the way for lack of uniformity, inconsistency, and unfairness in fact and in appearance. It promotes disparate treatment based on geographic location of the incident giving rise to the injury; i.e. stateside or overseas, since the FTCA doesn't apply overseas.

It promotes disparate treatment based upon the combat exclusion during wartime. A soldier alleging negligent medical treatment at a stateside military hospital will be allowed to proceed under the Federal Tort Claims Act. Yet, his buddy, a solider receiving medical treatment in combat, would not.

I share fully the concerns of the families of those whose lives are lost while serving their country. I remember very well accompanying my wing commander and advising various spouses that their husbands were killed in aircraft accidents. The loss is no less severe, regardless of how the injury or death is sustained.

The bottom line is the Feres doctrine has stood for over 50 years without legislative change and there should be tremendous hesitation to work a change at this point.

[The prepared statement of Mr. Sklute appears as a submission for the record.]

Senator SPECTER. Thank you very much, General.

We now turn to Major General John Altenburg (Retired), former Assistant Judge Advocate General, United States Army, currently with the Office of Ethics and Business Conduct, the World Bank Group. General Altenburg received his bachelor's degree from