HIGH COURT BARS SUITS BY THOSE IN THE MILITARY

HIGH COURT BARS SUITS BY THOSE IN THE MILITARY

By STUART TAYLOR JR., SPECIAL TO THE NEW YORK TIMES
Published: June 26, 1987
LEAD: The Supreme Court ruled today that military personnel cannot sue the Government or superior officers for damages even for gross and deliberate violations of their constitutional rights. It also held that military personnel may be court-martialed for crimes unrelated to their service.

The Supreme Court ruled today that military personnel cannot sue the Government or superior officers for damages even for gross and deliberate violations of their constitutional rights. It also held that military personnel may be court-martialed for crimes unrelated to their service.

The two 5-to-4 decisions extended the broad deference the Court has accorded in recent years to the military's power over its personnel.

The first, written by Justice Antonin Scalia, appeared to shield the Government and responsible officials completely from liability for their role in secret experiments in the 1950's in which hundreds of unsuspecting soldiers were given the mind-altering drug LSD to see how they would react. Case Involved LSD

The Court threw out a suit by a former Army sergeant who said he was an unwitting subject of the LSD experiments in 1958, and that he experienced hallucinations, memory loss and violent behavior that wrecked his marriage. The Court ruled that he had no right to compensation even if his allegations were true.

The second decision, by Chief Justice William H. Rehnquist, overruled a precedent set in 1969 when the liberal majority under Chief Justice Earl Warren had held that service members accused of crimes unrelated to their military duties have a constitutional right to be tried by civilian juries rather than by military courts-martial.

Solicitor General Charles Fried applauded both decisions as triumphs for ''justice according to law.''

The Court also ruled in favor of the Justice Department in two other cases, and decided that the United States Olympic Committee can bar a homosexual rights group from calling the athletic competition it sponsors the Gay Olympics. [ Page A14. ] A dissenting opinion by Justice William J. Brennan Jr., said the ruling on the LSD experiments violated both the Constitution and the Nuremberg Code that the United States developed after World War II to prosecute Nazi officials for medical experimentation on humans.

Justice Scalia's majority opinion did not challenge this. But he held that Court precedents going back to a 1950 ruling in the case of Feres v. United States protecting the military and its officials from liability for illegally injuring military personnel, barred the former sergeant's damage claim against the Government officials responsible for the LSD experiments.

The decision, joined by Chief Justice Rehnquist and Justices Byron R. White, Harry A. Blackmun and Lewis F. Powell Jr., reversed a ruling by the Federal appeals court in Atlanta that the general ban on service-related lawsuits did not apply in this case. Discipline Held Paramount

The Court has held that broad immunity for both the Government and military and civilian officials who injure military personnel or violate their constitutional rights is necessary to preserve military discipline and to prevent Federal courts from second-guessing command decisions.

Justice Scalia said that the allegations by former Sgt. James B. Stanley that the Army's LSD experiments had caused him to ''awake from sleep at night and, without reason, violently beat his wife and children,'' would entitle him to no compensation even if proved, because his injuries ''arise out of or are in the course of activity incident to service.''

In his dissent, Justice Brennan said: ''The Government of the United States treated thousands of its citizens as though they were laboratory animals, dosing them with this dangerous drug without their consent.''

He added that ''the Court disregards the commands of our Constitution, and bows instead to the purported requirements of a different master, 'Military Discipline.' '' If this were a correct reading of the Constitution, he concluded, ''soldiers ought not to be asked to defend a Constitution indifferent to their essential human dignity.''

His dissent was joined by Justice Thurgood Marshall and in part by Justice John Paul Stevens.

Justice Sandra Day O'Connor, in a separate dissent, said that the Government and its officials should be protected from lawsuits by military personnel, but said that ''conduct of the type alleged in this case is so far beyond the bounds of human decency'' that ''it simply cannot be considered a part of military discipline.''

Mr. Stanley's suit grew out of secret Army experiments at the Aberdeen Proving Grounds in Maryland, using enlisted men who had volunteered for what they had been told would be chemical warfare tests with gas masks and protective clothing.

The Army's human experimentation with LSD, or lysergic acid diethylamide, was part of a broader Government program in which the Central Intelligence Agency also participated.

Mr. Stanley did not know that he had actually been given LSD until 1975, when the Army solicited his participation in a follow-up study. He filed his suit, which has had a tortuous procedural history but has not yet gone to trial, in 1979. Now 53 years old, he has a desk job in the County Sheriff's office in Palm Beach, Fla. No Statutory Remedy

The case, United States v. Stanley, No. 86-393, involved claims for damages from the Government under the Federal Tort Claims Act, which generally authorizes suits seeking damages from the Government for injuries caused by its wrongdoing. And he asserted that individual officials involved in the secret LSD experiments violated various constitutional rights.

The Court was unanimous in throwing out Mr. Stanley's Federal Tort Claims Act claim against the Government because of a technical error in the lower court. The 5-to-4 majority dismissed his constitutional claims.

In his majority opinion, Justice Scalia said the dismissal of the constitutional claim was a logical application of a broad ruling by the Court in 1983 that ''enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations.''

Noting that Congress has not specifically created a damage remedy for violations of constitutional rights by Federal or military officials, he wrote, ''Congressionally uninvited intrusion into military affairs by the judiciary is inappropriate.''

Justice Brennan, on the other hand, said many rulings by the Court in other contexts have embraced the principle ''that no official is above the law.'' Military Jurisdiction Widened

He added, ''I cannot comprehend a policy judgment that frees all Federal officials from any doubt that they may intentionally and in bad faith violate the constitutional rights of those serving in the Armed Forces.''

In the second decision, Solorio v. United States, No. 85-1581, Chief Justice Rehnquist ruled that the Constitution authorized court-martial jurisdiction, under rules set by Congress, over any ''serviceman who was a member of the armed forces at the time of the offense charged,'' regardless of whether the offense had any connection to military service.

He held that the rule limiting court-martial jurisdiction to ''service-connected'' crimes, established by the 1969 Warren Court decision, O'Callahan v. Parker, was based on an incorrect reading of the Constitution and legal history.

In the 1969 decision the Court had held that the constitutional rights to indictment by a grand jury and trial by jury could be denied to military personnel only for ''service-related'' crimes. Sexual Abuse Is Charged

Chief Justice Rehnquist said history was ''too ambiguous to justify'' restricting Congress's broad power to regulate the armed forces. He also said the ''service-connection'' test ''has proved confusing and difficult for the military courts to apply.''

The decision rejected an appeal by Richard Solorio, who disputed the Coast Guard's jurisdiction to court-martial him for sexually abusing two young daughters of fellow Coast Guardsmen at his home, which was not on a military base, in Juneau, Alaska.

Mr. Solorio argued, and a court-martial judge initially ruled, that the offenses were not service-connected. Two military appellate courts disagreed, stressing that the victims were military dependents.

Chief Justice Rehnquist said court-martial jurisdiction was proper in either event.

Justice Marshall, in a dissent joined by Justice Brennan and in part by Justice Blackmun, assailed the majority's ''single-minded determination to subject members of our armed forces to the unrestrained control of the military in the area of criminal justice'' and its ''blatant disregard'' for the Court's precedents.

Correction: June 27, 1987, Saturday, Late City Final Edition

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as you notice this newspaper article is over 21 years old, Congress has yet to help the other veterans used in the program that MSG Stanley was used in, why? Where is the public outrage over this, is it acceptable in America to use soldiers as lab rats and not tell them the truth and then to ignore them decades later when they find themselves disabled and in need of medical care and financial compensation?

Is this really how America wants to treat it's military veterans?

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