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Suing leaders could bring harsh consequences

I received questions this week about recent media reports involving active-duty service members using civilian courts to question the validity of whether Barack Obama is legally qualified to be president and whether they must follow his orders until the courts have settled his legal authority.

In America, you can sue anybody for anything. The real question is whether you will win, lose — or lose badly. With rare exceptions, if you are on active duty and you, or someone on your behalf, files a lawsuit against your military superiors and/or the president, you will likely lose, and badly.

It’s important for service members to not allow their good names to be used by others who are seeking media attention or trying to make a point at the expense of discrediting the military or its chain of command. It doesn’t matter whether you are the sole plaintiff suing the president or one of hundreds who has signed onto such a suit — he is your commander in chief, and harsh penalties could be imposed for improper conduct in dealing with the president or any of your military superiors.

Using civilian courts to seek redress for alleged wrongs encourages insubordination and diminishes unit cohesion. If allowed, service members could pick which orders to follow and which to sue over.

The Supreme Court has recognized that the military is “a specialized society” and that “to accomplish its mission the military must foster instinctive obedience, unity, commitment, and esprit de corps.”

That’s why the Supreme Court banned active-duty service members from suing the government or its employees for injuries that occurred while in the military. This is the Feres Doctrine, named after a 1950 Supreme Court decision, and it has very limited exceptions.

When people question me about their right to sue their superiors, they usually say: “I’m an American! Doesn’t the First Amendment protect my free speech? Can’t I say whatever I want?”

Well, no, not always. Like it or not, your rights are curtailed in various ways when you join the military. The federal government may punish speech that obstructs its recruiting or enlistment efforts, causes insubordination in the ranks, encourages resistance to the government in the prosecution of war, or impedes the production of munitions and other essential war materials.

In short, the right to free speech is not an “absolute” right. For more on this issue and on the penalties for disrespecting the president in words or deeds, read my prior column.

Engaging in a civilian lawsuit against a superior is generally not the right way to handle a problem. Depending on the facts of the case, you could be charged under the Uniform Code of Military Justice with offenses involving contempt or disrespect toward officials or superiors, conduct unbecoming an officer, or conduct that adversely impacts good order and discipline or brings discredit upon the military.

While winning in civilian courts is difficult, it is not unheard of. Generally, most of the wins by service members involve allegations that the military has violated its own regulations or challenges to the constitutionality of military statutes, regulations or executive orders.

Service members have won suits to halt a mandatory Defense Department inoculation program, to review the military’s denial of troops’ requests for conscientious objector status, and to prevent the Navy from involuntarily enlisting a midshipman who failed to successfully graduate from the Naval Academy. But these wins were rare exceptions, not the rule.

Active-duty members should get involved in civil litigation only as a last resort. And if you do, you should be sure that the objective is worth the risk, and you should be in it to win at nearly any cost. If you engage in litigation just to try and make some kind of political point, you’ll likely lose.

Badly.

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The information in this column is provided for informational purposes only and is not intended to constitute legal advice. Readers are encouraged to seek the advice of an attorney or other professional when an opinion is needed.

Mathew B. Tully is a field artillery officer in the New York National Guard and a veteran of Operation Iraqi Freedom. He is also the founding partner of Tully, Rinckey and Associates, a law firm in Albany, N.Y. E-mail your legal questions to askthelawyer@militarytimes.com.

Read more of his columns at www.militarytimes.com/community/ask_lawyer.