Holding Watchmen Accountable

Holding the king in check by a pawn

While the Feres doctrine is often defended as necessary to maintain military discipline and prevent courts from reviewing combat decisions, critics argue this shield covers non-combat negligence, such as faulty equipment or medical malpractice. Overturning it would likely not affect direct, lawful combat actions but would create legal consequences for negligence in planning, equipping, and supporting those actions by holding watchmen accountable. A king held in check by pawns.

Financial Accountability and Liability

If the Feres doctrine were overturned, the government could be held liable for damages under the Federal Tort Claims Act.

Cost of Casualties: In scenarios like Operation White Star—which involved clandestine, high-risk, unconventional warfare—negligent command decisions that lead to high injury or death rates could result in massive lawsuits.

Budgetary Impact: The potential for multimillion-dollar lawsuits could force the Department of Defense and executive branch leaders to weigh the financial costs of injuries against the perceived benefits of a conflict, particularly if the military objective is questionable.

Legal Discovery and Transparency

Lawsuits allow for the discovery process, which can expose negligent, reckless, or unethical decisions made by high-ranking officials to the public and Congress.

Exposure of Failures: If a conflict is unpopular, lawsuits could bring to light evidence showing that service members were sent into danger without proper training, equipment, or in violation of rules of engagement.

Political Risk: The public exposure of such failures could trigger political backlash, making it more difficult for leaders to maintain support for “forever wars” or covert operations.

Shift in Decision-Making Paradigm

Currently, Feres shields the government from accountability, which critics argue encourages negligence in training and command.

Calculated Risks: Leaders might be less likely to pursue reckless, high-casualty, or unpopular actions if they know they could be held accountable in court for negligence.

Reduced “Casualty Insensitivity”: Overturning Feres forces the government to treat service members’ safety with the same legal urgency as they do for civilians, curbing impulsive decisions to put troops in harm’s way.

Deterrence of Unnecessary Engagement

If the legal barrier is removed, the threat of legal action acts as a “check” on executive power to deploy troops.

High-Cost Conflicts: For a leader, a war that is unpopular and, in addition, causes severe, preventable injuries that result in successful lawsuits, creates a crisis on two fronts: public opinion and judicial oversight.

Precedent for Accountability: The ability to sue would compel officials to act more cautiously, knowing that “incident to service” is no longer a blank check to avoid liability for negligence in conducting a war.

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