Wayne State and his legal degree from the University of Cincinnati.

Thank you for joining us, Judge Altenburg, and I note in your resume you were born in Philadelphia.

Mr. ALTENBURG. Yes, sir.

Senator SPECTER. We look forward to your testimony.

STATEMENT OF JOHN ALTENBURG, MAJOR GENERAL (RETIRED), FORMER ASSISTANT JUDGE ADVOCATE GENERAL, U.S. ARMY, WASHINGTON, D.C.

Mr. ALTENBURG. Senator Specter, thank you for allowing me to appear before the committee. I understand that my written testimony will be submitted in the record.

Senator SPECTER. Without objection, your full statement will appear in the record.

Mr. ALTENBURG. Yes, sir.

There are several reasons to support the Feres doctrine, as General Sklute just mentioned, and I also am going to confine my remarks to the good order and discipline prong of the Feres doctrine. I am only going to discuss the effect upon military order, discipline, and effectiveness if service members are permitted to sue the Government or each other.

I think there are two aspects to the good order, discipline, and effectiveness argument. One is the uniqueness of the military setting and the military mission that produces the examples that several of us have provided for you, the examples of inherently dangerous equipment and inherently dangerous training and the missions that we have talked about.

But the second is one that we haven't talked about very often and I think it may be very significant, and that is the extraordinary regulation and control that the military exerts on itself directly related to the demands that have no civilian counterparts that we make on our soldiers that are different in kind and degree from the civilian sector. I think this is why the Supreme Court consistently defers to the military.

The words "good order and discipline" sort of flow off our tongue, but we don't look behind those words very often to see, well, what are we really talking about, what is the unique about the military culture and the military society that would justify this kind of treatment.

I think that the Supreme Court mainly works in favor of the military in this regard because of the disruption and the time-consuming nature the litigation would have on our commands.

Now, it is true that our own accountability systems frequently cause disruption and frequently demand time away from duties for our soldiers and our leaders. But the additional reason of civilian courts not having the expertise to address many of the issues inherent in these inquiries is why I believe the Supreme Court has upheld Feres for so long.

Soldiers die in training incidents, even though training is strictly controlled and regulated. Sometimes, training injuries and deaths are the result of negligence. The Congress provides compensation for these cases, and if compensation is the issue, then perhaps we

need to work together to increase the compensation that would be available.

If Feres did not apply to injured soldiers and families of dead soldiers, soon the military would, in my opinion, undermine our ability, No. 1, to maintain our combat readiness and, No. 2, to ensure accountability so that we can continue to conduct realistic training, while minimizing future incidents.

Page 7 of my written testimony refers to an infantry platoon in training that I think illustrates the potential far-reaching effects of allowing civil litigation. An infantry platoon is the essential building block of your and my Army in this country. A ready example of a platoon is the group of statues that comprise the Korean War Memorial here in the District of Columbia.

If a soldier on a platoon exercise were injured or killed in what is a common training event for such a platoon, to rehearse and execute a ground assault on a house or a hilltop or a cave, live fire, potential defendants would include two team leaders probably between the ages of 19 and 22 years old, three squad leaders, and a platoon sergeant, and that is before we even get to officers.

A concern of mine has been that it sounds like we are worried always about the chain of command and superior officers, when, in fact, the real divisiveness would come because of all the junior leaders that could eventually be involved in civil litigation in instances like this.

There are over 650 infantry platoons in this Army, sir, and when you think about how often they conduct this type of training—and that is just one sector of one arm of the service-I think it shows the far-reaching effects that civil litigation could have on our Army. Thank you, sir.

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

Senator SPECTER. Thank you very much, General Altenburg.

We now turn to Mr. Richard A. Sprague. He has a bachelor's degree from Temple in 1949 and a law degree from the University of Pennsylvania in 1953. He served as chief counsel to the House of Representatives Select Committee on the Kennedy Assassination and as first assistant district attorney in Philadelphia.

Welcome, Mr. Sprague, and we look forward to your testimony. STATEMENT OF RICHARD A. SPRAGUE, COUNSEL, SPRAGUE AND SPRAGUE, PHILADELPHIA, PENNSYLVANIA

Mr. SPRAGUE. Thank you, Senator Specter, and I thank the committee for inviting me to speak here. I also ask that my complete statement be made part of the record.

Senator SPECTER. Without objection, it will be.

Mr. SPRAGUE. Dealing with the argument I just heard made to you, Senator Specter, by the military personnel, I notice that they focus on training. I think that in the event the Congress were to recognize the error in the present interpretation of the Feres doctrine, you will find the military using as a basis of an exception the discretionary function when it comes to training, and I think the issue of training is being used as a red herring here.

It is significant to me, Senator, that nobody has spoken about what it is that the Act specifically provides. There is no question

about it that the Federal Tort Claims Act in 1946 for the first time allowed suits against the Government for the negligent acts of governmental employees.

The Feres doctrine which has been applied arises from the words which nobody seems to deal with of precluding claims by servicemen for claims arising out of the combatant activities-the combatant activities, I stress of the military or naval forces or the Coast Guard during time of war.

Notwithstanding that language, under the interpretation that the U.S. Supreme Court gave in Feres, we have these kinds of situations, as you yourself pointed out: A serviceman went into an Army hospital for having abdominal surgery. Eight months later, he has another surgery where a towel 30 inches long by 18 inches wide, marked "Medical Department, United States Army," from the earlier abdominal surgery was discovered within his stomach. No one can question in that situation there was negligence, and had he been a civilian or had it happened in a civilian hospital, appropriate litigation could be brought. Yet, that is the precise fact pattern in the Feres doctrine that was applied by the Supreme Court. Another example-and there are hundreds of them-a Coast Guard rescue pilot is called out on a stormy night to rescue a boater in distress. The weather is so bad that the pilot requests radar guidance from the FAA, a civilian agency of the Federal Government. Following the FAA's direction, the pilot flies into the side of a mountain and is killed. If it were a civilian pilot, no question that his family and wife would be able to maintain a suit. Yet, under the Feres doctrine, no suit allowed. How you get it from the words of that exemption is beyond me.

I do point out, as I think you said earlier, Senator Specter, Judge Scalia in his dissent in the Johnson case, which I believe is very persuasive, states that Feres was wrongfully decided and heartily deserves the widespread, almost universal criticism it has received. As for the local tort law rationale, he pointed out how, in United States v. Muniz, we allow Federal prisoners to sue the Federal authorities, depending on which State they are in and the various laws. We allow Federal prisoners to bring suit against the Government, but not our men in service. And we are not talking about in terms of combat and we are not talking about the kind of situation that they are dredging up in order to try to prevent the Congress from rectifying this wrong.

Feres now has been interpreted to bar all injuries suffered by military personnel that are even remotely connected to his status as a member of the military. Judge Becker's dissent in the O'Neill case, joined by Judges Sloviter and McKee-and you, Senator Specter, and I hope the Congress recognize what an esteemed member of the judiciary Judge Becker is. He received recently the prodigious Devitt Award. In that case, how in the world can anybody say that the killing of this officer by the other officer in some way is harming military discipline?

I notice that the caution light is coming up.

The simple fact, Senator Specter, is the Feres doctrine as it is being applied now, not in the way the Congress originally wrote it-and by the way, if you read the Supreme Court opinions, they are going further and further away from what was even the origi

nal interpretations, being interpreted more broadly than ever, and they use as a basis that the Congress hasn't acted. Judge Higginbotham, a distinguished member of the Third Circuit, while he applied the Feres doctrine, decried it. He said it is unjust, it is not fair.

The simple fact is the Feres doctrine saves the Government some money, but it is money saved at the expense of our servicemen and women who have been injured or killed as a result of acts or omissions of the Federal Government. We spend billions of dollars on military machinery and equipment. We should not be so parsimonious when it comes to providing proper redress to the most important resource of our military, the men and women who serve our country.

Thank you.

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

Senator SPECTER. Thank you very much, Mr. Sprague.

We now turn to Mr. Eugene Fidell, of the law firm of Feldesman, Tucker, Leifer, Fidell and Bank; a bachelor's degree cum laude from Queens College, a law degree from Harvard, active duty in the Coast Guard from 1969 to 1972.

Welcome, Mr. Fidell. We look forward to your testimony.

STATEMENT OF EUGENE R. FIDELL, COUNSEL, FELDESMAN, TUCKER, LEIFER, FIDELL AND BANK, LLP, WASHINGTON, D.C. Mr. FIDELL. Thank you, Senator.

First, one of the points that was made a few moments ago had to do with the notion of unit cohesion. The reference, of course, is to the legislation that was passed some years ago, a few years ago, for the "don't ask, don't tell" policy. Without developing the point more broadly because of time constraints, I would only say that I sincerely doubt that the Congress had in mind the Feres doctrine when it enacted its comments concerning unit cohesion.

Now, is unit cohesion a potent factor? Obviously, it is. You don't want to do anything that will unduly generate friction within a military unit. Notwithstanding that, Čongress obviously has to do some balancing and decide whether the game is worth the candle, and I think history teaches and experience teaches that the kinds of issues that may come up in Feres or Federal Tort Claims Act litigation are not the kind that really erode military discipline.

Let me be very specific. It is certainly the case that already, under current law in a variety of contexts, GIs have a right to go to court, they have a right to make allegations, and they have a right to a judicial determination, rather than have the courthouse door slammed in their face, which is what the Feres doctrine does, obviously. You never get into court with the Feres doctrine, or you are out as soon as you are in.

Let me give some illustrations. A GI can sue under the Tucker Act. A GI can sue to have his record corrected, for Administrative Procedure Act review of the decision of the boards for correction of military or naval records. These are the kinds of issues that may well bring into play command decisions of one kind or another.

Yet, our society has sufficient flex in it that we recognize that larger public interests are served by giving GIs resort to the same

kinds of judicial forums that other Americans have as well. I think civilian court proceedings arising out of those kinds of contexts may well be a nuisance to commanders, but without them civilian control of the military would be no more effective here than in a nondemocratic society.

Issues of malpractice, for example, to take the one that is so potent today and that many lawyers in private practice regularly get inquiries about, have nothing whatever to do with military discipline or any notions of command or unit cohesion.

If the simple duty to respond to legal process or produce documents, such as agency records, and in some cases even be subjected to the normal discovery process contemplated by the Federal Rules of Civil Procedure, or even a trial from time to time, is too much of an intrusion, then the result would be to bar actions by military personnel under a raft of other statutes where their right to sue has never been questioned.

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

Senator SPECTER. Thank you very much, Mr. Fidell.

Our next witness is Mr. Daniel Joseph from the firm of Akin, Gump, Strauss, Hauer and Feld; a bachelor's degree from Columbia in 1963, Harvard Law School, 1966, law clerk to Fifth Circuit Judge Irving Goldberg. He was with the Department of Justice from 1967 to 1971.

Thank you for joining us, Mr. Joseph, and we look forward to your testimony.

STATEMENT OF DANIEL JOSEPH, COUNSEL, AKIN, GUMP,

STRAUSS, HAUER, AND FELD, LLP, WASHINGTON, D.C.

Mr. JOSEPH. Thank you, Senator Specter. On behalf of Bonnie O'Neill and my firm and myself, we really do appreciate this opportunity to appear before the committee. I would like to thank you for organizing and chairing this hearing and looking into this old Supreme Court decision that we think is having an unfair and an unnecessary impact.

I also would like to say that we represented, of course, Bonnie O'Neill all the way through her litigation. I want to stress that we did that without the payment of any fee, and this is the only Federal Tort Claims Act case in which I have represented a plaintiff. I represented the United States a little bit when I was at Justice. And I don't expect to be handling other such cases.

Although the Supreme Court originally claimed in the Feres decision that its holding was based on the language of the Act, it later altered that rationale and now it doesn't hold, and the United States doesn't argue either here or in court, that there is any language in the Act that supports the doctrine.

The Feres doctrine is therefore not a statutory, but a court-imposed restriction on a right that Congress gave to sue. The Court has taken back part of the right to sue that Congress intended to give members of the military. For three reasons, I think the Supreme Court had no power under the Constitution to impose the Feres doctrine.

First, as I said, the doctrine has no foundation in the text and it is a judicially imposed limitation on the right to sue. But the Su