SPEAKERS CONTENTS INSERTS
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58–272
1999
EQUITABLE TREATMENT FOR THE FAMILIES OF AMERICAN PERSONNEL KILLED IN THE APRIL 14, 1994 BLACKHAWK SHOOTDOWN
HEARING
BEFORE THE
SUBCOMMITTEE ON
IMMIGRATION AND CLAIMS
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED FIFTH CONGRESS
SECOND SESSION
ON
H.R. 2986 and H.R. 3022
JUNE 18, 1998
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Serial No. 111
Printed for the use of the Committee on the Judiciary
For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office, Washington, DC 20402
COMMITTEE ON THE JUDICIARY
HENRY J. HYDE, Illinois, Chairman
F. JAMES SENSENBRENNER, Jr., Wisconsin
BILL McCOLLUM, Florida
GEORGE W. GEKAS, Pennsylvania
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB INGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYER, Indiana
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
BOB BARR, Georgia
WILLIAM L. JENKINS, Tennessee
ASA HUTCHINSON, Arkansas
EDWARD A. PEASE, Indiana
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CHRIS CANNON, Utah
JAMES E. ROGAN, California
LINDSEY O. GRAHAM, South Carolina
MARY BONO, California
JOHN CONYERS, Jr., Michigan
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
STEVEN R. ROTHMAN, New Jersey
THOMAS E. MOONEY, Chief of Staff-General Counsel
JULIAN EPSTEIN, Minority Staff Director
Subcommittee on Immigration and Claims
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LAMAR S. SMITH, Texas, Chairman
ELTON GALLEGLY, California
WILLIAM L. JENKINS, Tennessee
EDWARD A. PEASE, Indiana
CHRIS CANNON, Utah
ED BRYANT, Tennessee
JAMES E. ROGAN, California
MELVIN L. WATT, North Carolina
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
ZOE LOFGREN, California
ROBERT WEXLER, Florida
CORDIA A. STROM, Chief Counsel
EDWARD R. GRANT, Counsel
GEORGE FISHMAN, Counsel
MARTINA HONE, Minority Counsel
C O N T E N T S
HEARING DATE
June 18, 1998
OPENING STATEMENT
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Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims
WITNESSES
Bass, Cornelia
Bergmann, Georgia
Bloxom, Elliott L., Director of Compensation, Military Personnel Policy, Office of Under Secretary of Defense (Personnel and Readiness), Department of Defense
Bowron, Eljay B., Assistant Comptroller General for Special Investigations, Office of Special Investigations, U.S. General
Accounting Office
Collins, Hon. Mac, a Representative in Congress from the State of Georgia
McKenna, Lieutenant Colonel (Ret.) Robert
Remy, Donald M., Deputy Assistant Attorney General, Civil Division, Department of Justice
LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING
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Bass, Cornelia: Prepared statement
Bergmann, Georgia: Prepared statement
Bloxom, Elliott L., Director of Compensation, Military Personnel Policy, Office of Under Secretary of Defense (Personnel and Readiness), Department of Defense: Prepared statement
Bowron, Eljay B., Assistant Comptroller General for Special Investigations, Office of Special Investigations, U.S. General
Accounting Office: Prepared statement
Collins, Hon. Mac, a Representative in Congress from the State of Georgia: Prepared statement
McKenna, Lieutenant Colonel (Ret.) Robert: Prepared statement
Letter from Jeffrey H. Smith, Arnold & Porter
Remy, Donald M., Deputy Assistant Attorney General, Civil Division, Department of Justice: Prepared statement
Smith, Hon. Lamar, a Representative in Congress from the State of Texas, and chairman, Subcommittee on Immigration and Claims: Prepared statement
Letter to Hon. Willliam S. Cohen, Secretary, Department of Defense
Letter from John J. Hamre, Department of Defense
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EQUITABLE TREATMENT FOR THE FAMILIES OF AMERICAN PERSONNEL KILLED IN THE APRIL 14, 1994 BLACKHAWK SHOOTDOWN
THURSDAY, JUNE 18, 1998
House of Representatives,
Subcommittee on Immigration
and Claims,
Committee on the Judiciary,
Washington, DC.
The subcommittee met, pursuant to call, at 9:35 a.m., in Room 2237, Rayburn House Office Building, Hon. Lamar Smith [chairman of the subcommittee] presiding.
Present: Representatives Lamar Smith, William L. Jenkins, Chris Cannon, Ed Bryant, James E. Rogan, Melvin L. Watt and Zoe Lofgren.
Staff Present: Cindy Blackston, Clerk; George Fishman, Counsel; Judy Knott, Staff Assistant; and Martina Hone, Minority Counsel.
OPENING STATEMENT OF CHAIRMAN SMITH
Mr. SMITH. The Subcommittee on Immigration and Claims will come to order.
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Today the subcommittee is conducting a hearing on two bills, H.R. 3022, introduced by our Ranking Member Melvin Watt, and H.R. 2986, introduced by our colleague Mac Collins.
These two bills, which take different approaches, seek to provide compensation to the American families of the victims of the tragic shootdown of two U.S. Black Hawk helicopters in the northern Iraq no-fly zone. This compensation would be comparable to the payments provided by the Secretary of Defense to families of foreign nationals who were also on board those helicopters.
On April 14, 1994, two American Black Hawk helicopters on a humanitarian mission in the no-fly zone of Iraq were shot down by two American F–15 fighter planes when the helicopters were mistakenly identified as Iraqi helicopters. There were 15 Americans and 11 foreign nationals aboard the helicopters. There were no survivors.
After extensive investigation, the Department of Defense found that the deaths of these 26 individuals were attributable to a series of avoidable errors and to the failure of safeguards in place at the time of the shootdown. Some of the foreign nationals killed in the shootdown were employed by the United States. Their families received compensation under the Federal Employees Compensation Act.
A decision was made by the Secretary of Defense, under authority provided in 10 U.S.C. 127, to provide compensation that, when combined with their FECA benefits, would total $100,000. The foreign military families received a payment in fact of $100,000 from the Secretary of Defense, with no offset for any other benefits. No such payments were made to the families of the Americans killed in the shootdown.
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We will hear testimony from the sponsors of the bills, the General Accounting Office, the Defense Department, the Justice Department, and three survivors of the Americans killed in the shootdown.
All of us acknowledge the tragedy that has struck the families of those lost in the incident. Today we will not only look at what happened, but will also address whether the current system in place to compensate American survivor families is adequate and appropriate in these situations.
[The information referred to follows:]
PREPARED STATEMENT OF HON. LAMAR SMITH, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF TEXAS, AND CHAIRMAN, SUBCOMMITTEE ON IMMIGRATION AND CLAIMS
Today the Subcommittee is conducting a hearing on two bills, H.R. 3022, introduced by our ranking member, Mel Watt, and H.R. 2986, introduced by our colleague, Mac Collins.
These two bills, which take different approaches, seek to provide compensation to the American families of victims of the tragic shootdown of two U.S. Blackhawk helicopters in the Northern Iraq no-fly zone. This compensation would be comparable to the payments provided by the Secretary of Defense to families of foreign nationals who were also on board those helicopters.
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On April 14, 1994, two American Blackhawk helicopters on a humanitarian mission in the no-fly zone of Iraq were shot down by two American F–15 fighter planes when the helicopters were mistakenly identified as Iraqi helicopters. There were 15 Americans and 11 foreign nationals aboard the helicopters. There were no survivors.
After extensive investigation, the Department of Defense found that the deaths of these 26 individuals were attributable to a series of avoidable errors and to the failure of safeguards in place at the time of the shootdown.
The Kurd foreign nationals killed in the shootdown were employed by the United States. Their families received compensation under the Federal Employees Compensation Act. A decision was made by the Secretary of Defense, under authority provided in 10 U.S.C. 127, to provide compensation beyond those benefits that when combined with their FECA benefits would total $100,000. The foreign military families received a payment of $100,000 from the Secretary of Defense with no offset for any other benefits. No such payments were made to the families of the Americans killed in the shootdown.
We will hear testimony from the sponsors of the bills, the General Accounting Office, the Defense Department, the Department of Justice, and three survivors of the Americans killed in the shootdown.
All of us acknowledge the tragedy that has struck the families of those lost in this incident. Today, we will not only look at what happened, but will also address whether the current system in place to compensate American survivor families is adequate and appropriate in these situations.
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Mr. SMITH. I will recognize the gentleman from North Carolina for his opening statement and comments on his bill.
Mr. WATT. Thank you, Mr. Chairman.
I want to at the outset thank the Chairman for holding this hearing. I would also like to acknowledge my colleague, Representative Mac Collins of Georgia, who has also worked tirelessly to ensure the fair and equitable treatment of the families of the victims of the Black Hawk helicopter shootdown over northern Iraq.
Representative Collins and I may have taken different approaches to ensuring that these families are fairly and equitably treated, but let me assure you, there is no difference in our level of commitment to ensuring that justice is done for these families.
Although H.R. 3022 was drafted to respond to the tragic Black Hawk helicopter shootdown, the relief outlined in it would not be limited to that tragedy. Instead, my bill would make certain that when the U.S. Government deems it appropriate to pay money in settlement of claims to foreign nationals, that it make comparable payments to Americans who were injured or killed in the same event. If the loss was enough to justify compensation to foreign nationals, surely we should be justified in compensating our own people.
Operation Provide Comfort was a noble effort by the world community to protect Iraqi Kurds from Saddam Hussein. Many of the Kurds had supported the U.S. and its allies against Saddam Hussein during Operation Desert Storm. As part of Operation Provide Comfort, the United Nations adopted a resolution creating a no-fly zone, to be patrolled by air forces from the U.S., Great Britain, France and Turkey.
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On April 14, 1994, two U.S. Omni Black Hawk helicopters and their crews were transporting U.S., British, French and Turkish military officers, Kurdish representatives, and a State Department political adviser who had been observing the work of Operation Provide Comfort. U.S. pilots flying two F–15 fighter patrolling the area misidentified the Black Hawks as Iraqi helicopters and shot them down using heat-seeking missiles, instantly killing all 26 people on board.
To his credit, Secretary of Defense William Perry immediately ordered an investigation. On May 27, 1994, a report was issued which concluded that a tragic chain of events caused the shootdown. Sources involved in the investigation stated that over 130 separate mistakes contributed to the shootdown.
In August, 1995, the House Committee on National Security held a hearing to examine the causes of the tragedy and the steps taken by the military afterwards. The GAO has conducted a follow-up inquiry and found that government reactions after the accident were appropriate. Literally hundreds of corrective steps were taken to avoid another tragedy in the future.
We are not here today to reopen or revisit the substance of that investigation. However, I believe it is important to remind ourselves of the sheer volume and magnitude of the errors which led to the shootdown. If the chain of command had been followed, and if the fighter pilots weren't so eager for a kill, this tragedy would have never happened.
In apparent recognition of the magnitude of the tragedy, the Secretary of Defense exercised his statutory discretion to authorize the payment of $100,000 to the families of foreign nationals killed in the shootdown. In authorizing the payments, the Department of Defense issued the following statement:
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''The United States had no obligation under either domestic or international law to provide compensation to the families of the foreign nationals. However, in recognition of the unique circumstances related to the aircraft accident that resulted in the death of 26 persons, Secretary Perry concluded that a single payment of $100,000 to the families of the foreign nationals killed in the accident would be an appropriate sum to convey the United States' regret over this unfortunate tragedy.
''This decision was made solely within the discretion of the Secretary of Defense, as authorized by 10 U.S. Code section 127.''
I fully support the decision of the Secretary of Defense to make these humanitarian payments. The families represented here today never objected to those payments, but we have some questions. For example, why doesn't the U.S. Government believe it necessary to make comparable payments to the families of Americans killed in the shootdown, in order to reassure them that we care for the lives of our own citizens who are working to protect our national security interests? Doesn't the U.S. Government need to make a humanitarian gesture to its own people to retain trust, good will, and support? If $100,000 is an appropriate sum to convey our regrets to the families of foreign nationals over this unfortunate tragedy, wouldn't the same sum be appropriate to convey the government's regret to our own citizens? These bills would make certain that the U.S. Government shows as much respect for its own citizens as it has appropriately shown to the citizens of other countries.
I recognize that the Department of Justice and the Department of Defense may have some objections to my bill because it would only provide for payments to the families of U.S. military personnel in cases where foreign nationals have been injured or killed, too.
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Let me be clear. I would prefer to eliminate the Feres doctrine altogether and allow any member of the U.S. military to recover whenever they are harmed because of the gross negligence of the U.S. Government or its employees. But let us be frank, the Justice Department and Defense Department would object to that bill, too. By limiting this bill to cases where foreign nationals have also been injured or killed and subsequently compensated, I had hoped to tailor this legislation more narrowly and at least get some equity into the process.
Twenty-six people died in this unfortunate incident. They died taking part in a noble endeavor. Their families should be proud of the service they gave to this country and to the world community. Now it is time for us to provide comfort to them. Nothing will compensate these families for the loss of their loved ones, but we can provide them with the comfort of knowing our government will treat them fairly and equitably, as we have tried to deal with foreign nationals.
I yield back the balance of my time.
Mr. SMITH. Thank you, Mr. Watt.
Mr. SMITH. Are there any other opening statements? The gentleman from Tennessee, Mr. Bryant, is recognized.
Mr. BRYANT. Mr. Chairman, I don't have a formal opening statement. I would just simply join in the remarks, as I understand them, made by our colleague, Mr. Watt from North Carolina. Thank you.
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Mr. SMITH. Thank you, Mr. Bryant.
Mr. SMITH. We will go to our first witness today, our friend and colleague, Mac Collins. Mac, if you will come forward, we will look forward to your statement. Please proceed.
STATEMENT OF HON. MAC COLLINS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA
Mr. COLLINS. Thank you, Mr. Chairman. I want to thank you, Chairman Smith, for the interest and concern that you have demonstrated in scheduling today's hearing on legislation providing relief to the victims of one of the most tragic events subsequent to the Persian Gulf War, and also I want to thank Mr. Watt for his concern and his efforts also in this same endeavor.
I appreciate the opportunity to testify here today on legislation I have introduced to assist families whose lives have been shattered by the events of April 14, 1994, and I ask that my full statement be included in the record.
Mr. SMITH. Without objection.
Mr. COLLINS. I particularly appreciate the Chairman's extending an invitation to Mr. and Mrs. Robert McKenna of Columbus, Georgia, to testify here this morning. Mr. McKenna and his wife Maureen lost their son, Captain Patrick McKenna, in this tragic incident and have been very active in seeking equity for the families of American victims.
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I am here today in support of the families of 15 Americans who made the ultimate sacrifice serving their country. As we all know, on April 14, 1994, two U.S. Army Black Hawk helicopters transporting foreign and U.S. personnel over Iraq were shot down by two U.S. Air Force F–15s.
Many disturbing factors contributed to this incident, and many questions remain regarding the Department of Defense's handling of the Black Hawk incident and the investigation. I commend the families of the American victims, many of whom are here today, for their tireless efforts to bring an open, honest, and just closure to this incident. I only regret that the Federal Government has not been more diligent and responsive in addressing their concerns.
The families of foreign victims of this disaster received not only great attention and responsiveness from our government, but also received payments of some $100,000 from the U.S. Treasury, while the American families received no such compensation.
In defending its determination not to make payments to American families, the Department of Defense argues that, and I quote, ''The laws of the United States do not contemplate recompensing for damage, injury, or death caused during armed conflict. For these hazards of war, military personnel and their families generally look to the system of benefits and compensation provided to them by their governments.''
The legal foundation for this policy is found in the 1950 case of Feres v. United States, in which the Supreme Court ruled that there is no legal basis for a member of the Armed Forces to receive Federal compensation for death or injury that is, and I quote, ''incident to service.''
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However, in a brief prepared by the DOD on this issue, the DOD acknowledges that payment to foreign military personnel for losses incident to the military service would also be ''contrary'' to the Feres doctrine, even if such losses were determined not to be combat-related.
Notwithstanding the Feres doctrine implications of such payments, Secretary of Defense William Perry made payments in the amount of $100,000 to the family of foreign personnel killed in the incident as a humanitarian gesture. Unfortunately, the same gesture was not provided to our own American families.
I have introduced H.R. 4061, and had previously introduced H.R. 2986, to ensure that the American families who were victims of the Black Hawk shootdown would also receive the same benefits already provided to foreign families. This legislation would make $100,000 payments to the survivors of the 14 members of the United States Armed Forces and the one U.S. civilian Federal employee who perished in the friendly fire incident. I urge your support of the bill.
The Department of Defense continues to maintain its contention that payments such as these are in violation of the Feres doctrine, setting a dangerous precedent for future claims. It is clear in this case, however, that any damage to the Feres doctrine has already been done. By the DOD's own account, Feres applies to both foreign and domestic personnel equally in this situation. Therefore, in terms of precedent, paying all of the victims' families should have no more impact than paying only some of the families.
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In hopes of preventing situations such as this from occurring in the future, I also support legislation introduced by the gentleman from North Carolina, Mr. Watt, which would specifically prohibit inconsistencies in the application of Feres to foreign and domestic personnel.
While I understand and strongly support the underlying justifications for the Feres doctrine, I also believe that the American families who suffer the ultimate sacrifice in the name of freedom should know that their Federal Government will give them and their needs and concerns priority over those of foreign nationals.
I hope that the Department of Defense will not violate Feres with respect to foreign nationals in the future, but if it does, H.R. 3022 will ensure that Americans are treated equitably.
In closing, I believe it is unconscionable that the American Government, our American Government, particularly the Department of Defense, would provide benefits to foreign nationals that are not even offered to our own U.S. servicemembers who have made the ultimate sacrifice for our country. It is time for us to set our priorities straight. Your support of H.R. 4061 and H.R. 3022 would ensure that the families who you see before you today will be treated equitably.
Thank you, Mr. Chairman. Thank you, Mr. Watt.
Mr. SMITH. Thank you, Mr. Collins.
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[The prepared statement of Mr. Collins follows:]
PREPARED STATEMENT OF HON. MAC COLLINS, A REPRESENTATIVE IN CONGRESS FROM THE STATE OF GEORGIA
H.R. 2986: JUSTICE FOR U.S. VICTIMS OF THE BLACK HAWK SHOOTDOWN
JUNE 18, 1998
On April 14, 1994, two U.S. Army Black Hawk helicopters transporting foreign and U.S. personnel to Irbil, Iraq, were shot down by two U.S. Air Force F–15s. Many disturbing factors contributed to this incident, and many questions remain regarding the Department of Defense's handling of the Black Hawk incident and investigation. I commend the families of the American victims for their tireless efforts to bring an open, honest, and just closure to the incident. I only regret that the Federal government has not been more diligent and responsive in addressing their concerns.
The concerns expressed by the families of the victims of this incident fall generally into two categories—(1) inadequacies of the DOD investigation and assignment of responsibility regarding the incident and (2) inequities in the DOD's treatment of foreign and U.S. personnel. While addressing the second category of concerns is the focus of legislation that I have introduced (H.R. 2986 and H.R. 4061), I believe that the first category of concerns provides additional insight into the attitudes of the parties involved and into the overall context in which the need for a legislative response has arisen.
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Following the friendly-fire shootdown on April 14th, the Combined Task Force Commander appointed the former Combined Forces Air Component (CFAC) Commander to conduct a Safety Board Investigation. The Secretary of Defense subsequently ordered that the incident be investigated by an Aircraft Accident Investigation Board, ostensibly to make more information available to the public. The board was charged with investigating the incident and preparing an accident report outlining, if possible, the causes of the incident.
The contents of the Aircraft Investigation Board Report have been subject to criticism by both the GAO (GAO/OSI–98–4) and the families of accident victims. The Board President's opinion concludes that the shootdown resulted from a ''chain of events that began with the lack of a clear understanding among the Operation Provide Comfort organizations about their respective responsibilities and culminated with the F–15 pilot's misidentification of the Black Hawks as Iraqi Hinds and the F–15 wingman's failure to notify the lead pilot that he had not positively identified the helicopters.'' (GAO/OSI–98–4, p. 23)
The first criticism of the report identified by the GAO involves the report's omission of F–15 pilots' requirement to report to the Airborne Command Element who had the authority to stop the encounter. Under the Airspace Command Order, fighter aircraft were required to report to the Airborne Command Element whenever encountering or engaging unknown aircraft. The F–15 pilots almost certainly would have been ordered to stop the engagement had they followed the Airspace Command Order, which had been reiterated to pilots as a result of an incident that occurred one week prior to the shootdown. (GAO/OSI–98–4, p. 27) This criticism is related to discipline problems discussed later.
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Secondly, GAO cites the ''Board President's erroneous conclusion that Black Hawk's use of a wrong [friend or foe] code prevented F–15 pilots from receiving a response.'' Both the Board report and its President's opinion make this erroneous conclusion in spite of tests and an Sir Force analysis which concluded otherwise. (GAO/OSI–98–4, p. 29–32)
Finally, the GAO cites F–15 mission discipline problems as another critical area the Board's report fails to address. The CFAC Director of Operations' statement to the GAO concludes that the shootdown occurred ''because of a lack of training and aircrew discipline in following established guidelines on the part of the two F–15 pilots involved in the incident.'' (GAO/OSI–98–4, p. 33) Furthermore, according to the F–15 Squadron Operations Officer for Operation Provide Comfort at that time has noted that there was little reason for the F–15s to rush to engage the slow-moving helicopters. He concluded that the pilots acted too hastily and demonstrated an ''unnecessarily aggressive attitude toward the intercept and shootdown.'' (GAO/OSI–98–4, p. 34)
While it is unlikely that the inclusion of these criticisms in the Board report would have changed the Board President's conclusion regarding the cause of the incident, it may well have raised important questions which could have influenced subsequent disciplinary actions. The F–15 pilots' violation of standing orders and their general lack of discipline seem to be obvious contributing factors to the shootdown. The failure to include these facts in the Board report virtually insured that the pilots would not be held fully accountable for their actions.
It is also of note that in spite of the fact that the victims of the shootdown clearly met the criteria for the awarding of the Purple Heart, it required significant action by both family members of the victims and Members of Congress in order to accomplish this. It should come as no surprise that family members still feel betrayed by a DOD that refused to assign blame to those responsible for this tragedy while attempting to deny the victims an honor they earned and deserved.
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The second general area of critique involves the DOD's ex gratia payments to the foreign victims of the shootdown. The families of foreign victims of this disaster received not only great attention and responsiveness from our government, but also received payments of $100,000 from the U.S. Treasury, while the American families received no such attention, respect, or compensation.
In defending its determination not to make payments to American families, the Department of Defense argues that ''the laws of the United States (as well as many other countries) do not contemplate recompensing for damage, injury or death caused during armed conflict. For these hazards of war, military personnel and their families generally look to the system of benefits and compensation provided to them by their governments.'' The legal foundation for this policy is found in the 1950 case of Feres v. United States in which the Supreme Court ruled that there is no legal basis for a member of the Armed Forces to receive federal compensation for death or injury that is ''incident to service.''
However, in a brief prepared by the DOD on this issue, the DOD acknowledges that payment to foreign military personnel for losses incident to military service would also be ''contrary'' to the Feres doctrine, even if such losses were determined not to be ''combat-related.'' Notwithstanding the lack of legal authorization for such payments, Secretary of Defense William Perry made payments in the amount of $100,000 to the families of the foreign personnel killed in the incident as a ''humanitarian gesture.'' Unfortunately, the same gesture was not provided to our own American families.
I have introduced H.R. 2986 to insure that the American families who were victims of the Black Hawk shoot down receive the same benefits already provided to the foreign families. This legislation would make $100,000 payments to the survivors of the 14 members of the U.S. Armed Forces and the one U.S. civilian Federal employee who perished in the friendly-fire incident. I urge your support of the bill.
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The Department of Defense continues to maintain its contention that payments such as these are in violation of the Feres doctrine, setting a dangerous precedent for future claims. It is clear in this case, however, that any damage to the Feres doctrine has already been done. By the DOD's own account, Feres applies to both foreign and domestic personnel equally in this situation. Therefore, in terms of precedent, paying all of the victims' families should have no more impact than paying only some of the families.
In hopes of preventing situations such as this from occurring in the future, I also support legislation introduced by the gentleman from North Carolina, Mr. Watt, which would specifically prohibit inconsistencies in the application of Feres to foreign and domestic personnel. While I understand and strongly support the underlying justifications for the Feres doctrine, I also believe that American families that suffer the ultimate sacrifice in the name of freedom should know that their Federal government will give their needs and concerns priority over those of foreign nationals. I hope that the Department of Defense will not violate Feres with respect to foreign nationals in the future; but if it does, H.R. 3022 would insure that Americans are treated equitably.
In closing, I believe it is unconscionable that our American government, particularly the Department of Defense, would provide benefits to foreign nationals that are not even offered to our own U.S. service members who have made the ultimate sacrifice for our country. It is time for us to set our priorities straight. Your support of H.R. 2986 and H.R. 3022 will insure that the families you see before you today will be treated equitably.
Mr. SMITH. I just have a couple of quick questions that I would like to ask you.
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The first is that it seems to me that you are arguing, as I know Mr. Watt has argued as well, for basic fairness and equity, which is to say that our own military personnel should be treated at least as well as we treat individuals who are not in our military. I think that that is a good rationale.
Another question I have goes to the specifics of your bill, just to make sure that I understand it. You do provide $100,000 to the survivors of the 15 individuals who were killed. You restrict the total amount to $1,500,000. Tell me, if you would, where you get that amount and how that would work.
Mr. COLLINS. How we get the $100,000 amount?
Mr. SMITH. No. The total amount that can be paid is $1,500,000. Where did that figure come from?
Mr. COLLINS. Fifteen at $100,000.
Mr. SMITH. The total number of people?
Mr. COLLINS. Yes.
Mr. SMITH. Pardon me. I had to multiply quick. Then you have a 10 percent restriction on the payments of attorneys' fees, which no one is going to disagree with either. It seems to me all those figures are just. Thank you for your contribution today.
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The gentleman from North Carolina is recognized.
Mr. WATT. I just wanted to thank Representative Collins for his efforts related to this matter. I think he obviously is dealing with the specific incident, and I admire his approach to that, and I fully support that approach. But I also would like to have a policy in place that gives the Department of Defense the discretion in these kinds of cases—not the obligation, but the discretion, to be equitable with our own citizens when they are being equitable with other citizens. So I hope these two approaches complement each other. They are not in conflict with each other. I think Representative Collins is trying to deal with this specific incident.
I would like to see this specific incident dealt with, but I would also like to see, going forward, a policy in place that does not require us to come back and revisit these incidents on a case-by-case basis, but allows the Federal Government and the Department of Defense to be equitable. In these cases when they see that some foreign nationals are due equity, surely they could see that U.S. citizens would be due the same equity.
I don't think I have any questions of Mr. Collins. I fully support his bill. I think we are striving for the same purpose. I yield back the balance of my time.
Mr. SMITH. Thank you, Mr. Watt.
The gentleman from Tennessee, Mr. Jenkins, is recognized.
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Mr. JENKINS. Representative Collins, I am sorry I missed your statement. I am certainly sympathetic. We had a son in the Marine Corps in Operation Comfort and talked with him last night. I read the material that was provided to us, and it seems like there was plenty of blame to go around in connection with this incident.
But are we not—and I am new to this business, as you well know. But are we starting a precedent here that we are going to have to deal with on a continual basis? You have probably already spoken to that.
Mr. COLLINS. I addressed that in my comments. The precedent has already been set by the Department of Defense when they chose to make the $100,000 payment to the foreign nationals contrary to the Feres doctrine. They set the precedent. All we are doing here is requesting that the U.S. military and civilian personnel who were on the aircraft be treated equitably.
Mr. JENKINS. I suppose you could make a distinction between the Americans and the foreigners, that they did not receive the benefits that went with anybody in military service.
Mr. COLLINS. There is quite a bit of difference in the benefits granted to foreign nationals and those that were received by American families. There is quite a bit of difference. The Feres doctrine precedent has been set. I want to emphasize that again. The precedent has been set by the Department of Defense.
Mr. JENKINS. In this instance?
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Mr. COLLINS. In this instance, yes.
Mr. JENKINS. All right, sir.
Mr. COLLINS. Thank you.
Mr. SMITH. Thank you, Mr. Jenkins.
The gentlewoman from California, Ms. Lofgren, is recognized.
Ms. LOFGREN. I will just say that I look forward to the rest of the hearing. Obviously, none of us can feel very good about what happened during the incident. I really appreciate the effort and thought that you have put into coming up with a just solution. I think all we need to do is find out and assure ourselves that justice in this case does not create problems in other cases. You have obviously given that a great deal of thought.
Mr. COLLINS. I appreciate that. I can't reiterate enough that a precedent has been set by DOD. Mr. Watt has a bill that I think will help us deal in the future with these types of incidents. I fully support his efforts.
This was a very tragic incident, one that many feel could have been avoided. When I was in Germany a couple of years ago with the MILCON committee—we were having lunch one day, and I happened to sit by a General Pickerton, I believe it was. I can't remember exactly. I brought up the incident and told him that I had a constituent, Captain McKenna, who was one of the pilots on one of the helicopters.
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He mentioned to me the fact that there were some recommendations made that possibly could have avoided this incident. However, those recommendations were declined. One such recommendation that stuck with me was he himself requested that these helicopters be painted white, so they would be very easy to identify. The Department of the Army refused to repaint them.
Had we just taken some type of precautions that were requested, this incident may never have occurred. But when the Secretary of Defense, William Perry, made the decision to grant $100,000 payment to foreign nationals, he should have made that same decision to grant the same compensation to the families of the victims who were United States citizens employed by the United States Armed Forces and our civil service system.
Ms. LOFGREN. Just one question. It is not before us today, and it is not the exact set of circumstances, clearly. I have had a chance to contact the Chairman about this issue; but there was an incident that also, I think, involved at least negligence, which was the crash of the plane carrying Commerce Secretary Brown.
There were a number of other people on that plane, some of whom live in California and have been in touch with me, and others who were civilians or military people. Would that fact situation, where really reckless behavior, flying the plane in that weather, was involved, and young people—in fact, some of the constituents in the district next to mine had a child who was in, I think, her early twenties, I think it was a daughter, who was there providing a service, and obviously she lost her life through the negligence of the pilots.
Would this set of circumstances provide a precedent for doing something in that case, do you think?
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Mr. COLLINS. Although I have not been involved in any type of investigation or inquiry into that incident, which also was a very tragic incident for our country and our fellow citizens, I do see quite a difference in the two incidents, a difference in the operations. The whole situation is as different as left and right, to me, in taking a look at them.
Ms. LOFGREN. Thank you, sir.
Mr. SMITH. Thank you, Ms. Lofgren.
Are there other Members who wish to be recognized? If not, Mac, thank you for your testimony today. Thank you for introducing the bill. We will follow up on it shortly.
Mr. COLLINS. Thank you and the committee. Thank you, sir.
Mr. SMITH. Would the next panel please come forward, and let me introduce you as you do.
From the U.S. General Accounting Office, Eljay Bowron, Assistant Comptroller General for Special Investigations, Office of Special Investigations, accompanied by Don Fulwider and Don Wheeler, Deputy Directors of Investigations; from the Department of Defense, Captain Elliott L. Bloxom, Director of Compensation, Military Personnel Policy, Office of Under Secretary of Defense, accompanied by Frances Adams, Chief, International Torts Branch, Air Force Legal Services Agency; and from the Department of Justice, Donald M. Remy, Deputy Assistant Attorney General, Civil Division.
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We welcome you all, and I don't know if Mr. Collins is still in the room or not. See if we can catch him. We will proceed. We look forward to your testimony today.
Mr. SMITH. We will begin with Mr. Bowron.
STATEMENT OF ELJAY B. BOWRON, ASSISTANT COMPTROLLER GENERAL FOR SPECIAL INVESTIGATIONS, OFFICE OF SPECIAL INVESTIGATIONS, U.S. GENERAL ACCOUNTING OFFICE
Mr. BOWRON. Mr. Chairman and members of the subcommittee, thank you for the opportunity to testify today on our review of the military investigations of what has become known as the Black Hawk fratricide incident.
My testimony this morning will be a brief summary of the work that we reported on in November 1997. I would ask the subcommittee to insert that report and our full testimony into the record.
As you know, our work did not address victim compensation issues. Before I begin the summary, though, I would just introduce again Mr. Fulwider, our Deputy Director for Investigations, and Mr. Wheeler, who also is a Deputy Director for Investigations. They directed and supervised the work on this particular issue.
On April 14, 1994, Mr. Chairman, as you have already noted, two U.S. F–15 fighter pilots misidentified two U.S. Black Hawk helicopters as Iraqi Hind attack helicopters and shot them down, killing all 26 individuals aboard. Later that day the U.S. Secretary of Defense ordered an investigation that resulted in the convening of an aircraft accident investigation board.
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In the opinion section of the Board's report, the Board president identified ''a chain of events'' as the accident's cause, beginning with the Combined Task Force's failure to provide clear guidance to its component organizations, the components' misunderstanding of their responsibilities, Operation Provide Comfort's failure to integrate Army helicopter and Air Force operations, the AWACS crew mistakes, and ending with the F–15 lead pilot's misidentification of the helicopters and the wingman's failure to notify the lead pilot of his inability to positively identify the helicopters.
On the basis of that report, the Secretary of Defense directed applicable military commands to determine if Uniform Code of Military Justice violations had occurred. As a result, 14 officers were subsequently investigated.
In our work, we found that the Board report focused on, among other matters, command and control problems, including individuals' lack of knowledge of specific procedures. The report, however, did not discuss the F–15 pilots' responsibility to report to the Airborne Command Element when encountering an unknown aircraft in the tactical area of responsibility. The report also inaccurately portrayed the Airborne Command Element as not having the authority to stop the incident. However, evidence that the Airborne Command Element had that authority was available to the Board.
Further, the Board President erroneously concluded that the Black Hawks' use of an incorrect electronic identification code in the tactical area of responsibility resulted in the F–15 pilots not receiving an electronic response when they attempted to interrogate the helicopters.
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Additionally, the Board report and opinion did not discuss either a perceived general lack of discipline in the F–15 pilot community in Operation Provide Comfort or a perceived urgency by the F–15 pilots to engage the helicopters during the shootdown.
While examination of these issues wasn't required under Air Force Regulation 110–14, the regulation also did not preclude such an examination. These issues would not have affected the Board president's conclusion regarding the chain of events that led to the misidentification and shootdown of the Black Hawks. Including them in the report, however, may have raised additional questions about the actions and inactions of the F–15 pilots and the Airborne Command Element that could have been useful in subsequent administrative and disciplinary actions.
Also, in response to the original congressional request, we examined whether military officials had improperly or unlawfully influenced the military investigation. We found no evidence of improper or unlawful command influence in the Aircraft Accident Investigation Board process or in the Uniform Code of Military Justice process.
Finally, immediately following the accident, and as a result of additional reviews and analysis, the Department of Defense and the Air Force took hundreds of corrective actions. Further, the Air Force Chief of Staff took additional personnel actions, including issuing letters of evaluation to personnel involved in the fratricide incident. He took these actions due to the individuals' failure to meet Air Force standards in connection with the shootdown.
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Mr. Chairman, that concludes the summary. I would like to submit my full statement for the Record, and we will stay for any questions you or members of the subcommittee may have.
Mr. SMITH. Thank you, Mr. Bowron. We will, without objection, have your full statement made part of the record.
[The prepared statement of Mr. Bowron follows:]
PREPARED STATEMENT OF ELJAY B. BOWRON, ASSISTANT COMPTROLLER GENERAL FOR SPECIAL INVESTIGATIONS, OFFICE OF SPECIAL INVESTIGATIONS, U.S. GENERAL
ACCOUNTING OFFICE
Mr. Chairman and Members of the Subcommittee:
Thank you for the opportunity to testify before you today on our review of the military investigations of what has become known as the Black Hawk fratricide incident. My testimony this morning is a brief summary of the work we reported on in November 1997, and I would ask that that report(see footnote 1) be inserted into the record. As you know, our work did not address victim compensation issues. The Subcommittee on Military Personnel, House Committee on National Security asked us to determine if the Air Force's Aircraft Accident Investigation Board investigation of the fratricide had met its objectives and if the resulting Uniform Code of Military Justice (UCMJ) investigations had followed established guidelines. We were also asked to determine whether military officials had improperly or unlawfully influenced these investigations.
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Mr. Chairman, this morning I will briefly discuss some background information on the incident and the subsequent military investigations and then discuss the results of our review.
BACKGROUND
On April 14, 1994, two U.S. Army Black Hawk helicopters and their crews assigned to Operation Provide Comfort were transporting U.S., United Kingdom, French, and Turkish military officers; Kurdish representatives; and a U.S. political advisor in northern Iraq. Concurrently, a U.S. Air Force Airborne Warning and Control Systems (AWACS) aircraft was flying over Turkey to provide airborne threat warning and control for Operation Provide Comfort aircraft, including the Black Hawk helicopters. The pilots of two U.S. F–15 fighters patrolling the area misidentified the Black Hawks as Iraqi Hind helicopters and shot them down, killing all 26 individuals aboard.
Later that day, the U.S. Secretary of Defense ordered an investigation that resulted in the convening of an Aircraft Accident Investigation Board,(see footnote 2) which made information more readily available to the public than would a Safety Board Investigation.(see footnote 3) The Aircraft Accident Investigation Board report and the required Board President's opinion, issued May 27, 1994, identified ''a chain of events'' as the incident's cause: beginning with the Combined Task Force's failure to provide clear guidance to its component organizations, the components' misunderstanding of their responsibilities, Operation Provide Comfort's failure to integrate Army helicopter and Air Force operations, AWACS crew mistakes, and ending with the F–15 lead pilot's misidentification of the helicopters and the wingman's failure to notify the lead pilot of his inability to positively identify the helicopters.
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On the basis of the Board report, the Secretary of Defense directed applicable military commands to determine if UCMJ(see footnote 4) violations had occurred. Subsequently, the commands appointed Inquiry Officers and Investigating Officers to investigate 14 officers. The UCMJ process resulted in the following: one officer was tried by court-martial, resulting in an acquittal; one officer received nonjudicial punishment under Article 15,(see footnote 5) consisting of a letter of reprimand; and nine others received administrative letters of either reprimand, admonition, or counseling. No adverse action was taken against the remaining three officers.
RESULTS OF GAO REVIEW OF THE AIR FORCE INVESTIGATION
The Aircraft Accident Investigation Board was properly convened and met the objective as set forth in Air Force Regulation 110–14 of conducting an extensive investigation that preserved evidence of the facts surrounding the incident. We found that the Board report focused on, among other matters, command and control problems, including individuals' lack of knowledge of specific procedures. The report, however, (1) did not discuss the F–15 pilots' responsibility, under the Airspace Control Order,(see footnote 6) to report to the Airborne Command Element(see footnote 7) when encountering an unknown aircraft in the tactical area of responsibility (TAOR),(see footnote 8) which the pilots did not do, and (2) cited a Combined Forces Air Component Commander's statement that inaccurately portrayed the Airborne Command Element as not having authority to stop the incident, even though evidence that the Airborne Command Element had the authority was available to the Board. Further, the Board President erroneously concluded that the Black Hawks' use of an incorrect electronic identification code in the TAOR resulted in the F–15 pilots not receiving an electronic response when they attempted to interrogate the helicopters.
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Additionally, the Board report and opinion did not discuss a perceived general lack of discipline in the F–15 pilot community in Operation Provide Comfort and a perceived urgency by the F–15 pilots to engage during the shootdown, both of which had been raised by family members and others. While an examination of these issues was not required under Air Force Regulation 110–14, the regulation did not preclude it; and we found the issues relevant to our review.
In response to our inquiries, Operation Provide Comfort officials stated that the pilots' failure on April 14, 1994, to contact the Airborne Command Element was the result of a lack of F–15 mission discipline in Operation Provide Comfort at the time of the incident. In addition, Operation Provide Comfort officials stated that, in their view, there was no reason for the F–15 pilots' urgency to engage. These issues are not inconsistent with the Board President's conclusion regarding the chain of events that led to the misidentification and shootdown of the Black Hawks. Including them in the Board's report, however, may have raised additional questions about the actions and inactions of the F–15 pilots and the Airborne Command Element that could have been useful in subsequent administrative and disciplinary actions.
During our review of the Aircraft Accident Investigation Board process, we found no evidence of improper or unlawful command influence. That review included access to, among others, Board members, technical advisers, and investigative staff as well as investigative documents.
Regarding the questions concerning the subsequent UCMJ process and improper or unlawful command influence during that process, we determined the following. UCMJ investigations complied with provisions of the UCMJ and the Manual for Courts-Martial. Based on a review of the summary reports of investigation, a statement by the AWACS Investigating Officer, and stipulations by several of the officials involved in UCMJ investigations, we found no evidence of improper or unlawful command influence.
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However, we were unable to obtain confirmation from applicable UCMJ Convening Authorities, Inquiry Officers, and Investigating Officers about whether the consideration and disposition of suspected offenses under the UCMJ were the result of improper or unlawful command influence. This occurred because the Department of Defense, concerned about any congressional intrusion into the deliberative process, denied our request to interview these officials.
Finally, immediately following the accident and as the result of additional reviews and analyses, the Department of Defense and the Air Force took hundreds of corrective actions, including insertion of Black Hawk flight times on the daily Air Tasking Order,(see footnote 9) to help prevent a similar shootdown. The Air Force Chief of Staff also took additional personnel actions, including issuing letters of evaluation. He took these actions after finding that a number of individuals' performance evaluations had not reflected previous administrative actions taken as a result of the individuals' failure to meet Air Force standards.
Mr. Chairman, this concludes my prepared statement. I would be pleased to respond to any questions that you and other members of the Subcommittee may have.
Mr. SMITH. Captain Bloxom.
STATEMENT OF CAPTAIN ELLIOTT L. BLOXOM, DIRECTOR OF COMPENSATION, MILITARY PERSONNEL POLICY, OFFICE OF UNDER SECRETARY OF DEFENSE (PERSONNEL AND READINESS), DEPARTMENT OF DEFENSE
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Captain BLOXOM. Thank you. I am pleased to appear before the subcommittee today to present the views of the Department of Defense on H.R. 2986 and H.R. 3022. With me today is Ms. Frances Adams, the Department of Defense claims expert. Ms. Adams is the Chief of the International Torts Branch on the Air Force staff.
I have a prepared statement which I would ask be submitted for the record, and that I be allowed to make brief oral remarks, sir.
Mr. SMITH. Without objection.
Captain BLOXOM. In any tragedy we would always like to do as much as possible for the survivors. However, these bills would provide increased benefits to only a small number, while many other survivors would not be entitled to similar benefits, despite facing other tragic circumstances. Accordingly, the Department of Defense cannot support enactment of either bill.
Members of the military and their civilian counterparts join the Armed Forces and Department of Defense voluntarily, knowing that military operations are inherently dangerous, and that they could be exposed to situations which might result in serious injury or even death. Injury to or death of a servicemember or civilian employee is always tragic.
The deaths of the 14 military members and one civilian employee on the two Black Hawk helicopters in Iraq on April 14, 1994, was especially distressing, as it resulted from a series of unfortunate events. While the death of anyone is a tragic occurrence, the Department of Defense believes that the current system of benefits is the appropriate means of compensating the survivors of all accidents occurring in the line of duty.
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These benefits are tailored to the person who would rely on the member's income for economic security, and in some cases can endure for the lifetime of the survivor. Benefits provided by the Congress in Federal law include a death gratuity and burial allowances, Department-sponsored life insurance, survivor benefit plans, Social Security and Department of Veterans Affairs benefits, and continued use of many military facilities.
It has always been the Department's policy, and we believe the will of Congress, to provide these benefits uniformly for all military members and civilian employees. We believe providing extra benefits based on unique circumstances would create inequities.
When Congress has considered modifying the benefits available for either military or civilian personnel, it has done so uniformly on behalf of all. The proposed legislation would be a significant deviation from the current swift, uniform, and comprehensive system provided for all military personnel and civilian employees injured or killed incident to their service.
H.R. 2986 would prevent payments to the survivors of the April 14th, 1994, tragedy above and beyond that provided to survivors of other tragic incidents. H.R. 3322 selectively benefits only a small category of active duty military members and civilian employees, and then only when incident to a situation in which an inhabitant of a foreign nation is paid under the Foreign Claims Act for his or her own death or injury.
In summary, the Department of Defense opposes both bills, not because the underlying circumstances are not regrettable and tragic, but because they cause inequities to our people. Passage would place the Department in the awkward position of explaining to the survivors of those not covered by these bills that their loved ones are somehow less worthy of recovering the additional benefits available to the few who would be covered.
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If Congress believes the current system of compensation for military and civilian employees is inadequate, then such deficiencies should be addressed by revising benefits for all military members and for all civilian employees, no matter where they might perish or be injured during their service to our Nation.
The sacrifice of a soldier, sailor, airman, marine, or civilian employee is tragic. However, for the reasons I have discussed, the Department of Defense does not support passage of these bills. Again, I appreciate the opportunity to be here today, and I would be happy to respond to the subcommittee's questions.
Mr. SMITH. Thank you, Captain Bloxom.
[The prepared statement of Captain Bloxom follows:]
PREPARED STATEMENT OF ELLIOTT L. BLOXOM, DIRECTOR OF COMPENSATION, MILITARY PERSONNEL POLICY, OFFICE OF UNDER SECRETARY OF DEFENSE (PERSONNEL AND READINESS), DEPARTMENT OF DEFENSE
Chairman Smith and Members of the Subcommittee
I am pleased to appear before the subcommittee today to present the views of the Department of Defense on H.R. 2986 and H.R. 3022. H.R. 2986 is intended to authorize payment of survivors of each of the 14 members of the Armed Forces and one Department of Defense civilian employee who were killed on April 14, 1994, when United States fighter aircraft mistakenly shot down two helicopters in Iraq. H.R. 3022 would authorize the settlement of claims against the United States from members of the Armed Forces and civilian employees of the Department of Defense for personal injury or death whenever a foreign citizen is compensated under the Foreign Claims Act for personal injury or death arising from the same incident.
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Military operations are inherently dangerous, whether they occur in peacetime training, in combat, or in operations other than war. Members of the military and civilian employees of the Department of Defense serve voluntarily, knowing that they may be exposed to dangerous situations, which could cause them serious injury or even death.
Unexpected deaths caused by accidents or errors that sometime occur when performing service for the national defense are tragic. The deaths of 14 service members and one Department of Defense civilian employee on board two Blackhawk helicopters in Iraq on April 14, 1994, were especially distressing, as they resulted from a series of unfortunate events. Their service to their nation is greatly appreciated. We regret the loss of these dedicated service members and employees and extend our deepest sympathy to their families.
The death of any service member or civilian employee while in service to this nation is tragic. The nation's laws, however, do not differentiate between service-related deaths of this type. The Department of Defense believes that the current benefit system is the appropriate means of compensating the survivors of all accidents and opposes providing increased benefits to a small number. Accordingly, the Department of Defense does not support enactment of either bill.
The nation provides a comprehensive system of benefits to service members as well as its civilian employees. While there are differences between the military and civilian programs, both are primarily based on the continuing need of the survivors, not on the circumstances of death. These benefits are extended to the persons who would have relied on the member's or employee's income for their economic security. Some of these benefits can endure for the lifetime of the survivor and total in the hundreds of thousands of dollars.
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The following is a list of compensation and benefits provided survivors of service members under U.S. law:
Death Gratuity—A $6,000 death gratuity (10 U.S.C. 1477–1478) is intended to provide immediate cash to meet the needs of survivors.
Government Housing or Allowances and Relocation Assistance—Survivors are provided rent-free Government housing for 180 days or the tax-free allowances for housing appropriate to the member's grade for any portion of the 180 day period while not in quarters (37 U.S.C. 403(l)). Survivors are also entitled to transportation, per diem, and shipment of household goods and baggage (37 U.S.C. 406(f)).
Burial Costs—The Government will reimburse up to $4,850 of expenses for the member's burial, depending on the type of arrangements and will provide travel for next-of-kin under invitational travel orders (10 U.S.C. 1482, ASD(FM&P) memorandum dated March 21, 1991, and 38 U.S.C. 2301–2308). Additional benefits may be provided by the Department of Veterans Affairs (DVA) and may depend on whether the death was service-connected. DVA benefits include eligibility for burial in national cemeteries, headstones and markers, flags, and limited reimbursement of burial expenses for service-connected deaths.
Unused Leave—Payment of accrued leave is made to the survivor for all the member's unused accrued leave (37 U.S.C. 501).
Servicemembers' Group Life Insurance (SGLI)—Service members are automatically insured for $200,000 through the SGLI program, but may reduce or decline coverage as desired (38 U.S.C. 1965–1979).
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Dependency and Indemnity Compensation (DIC)—The Department of Veterans Affairs (DVA) pays a tax-free monthly amount to an unremarried surviving spouse of a service member who dies from a service-connected disability (38 U.S.C. 1310–1318). The basic spouse DIC is a flat-rate annuity of $850 per month (Public Law 103–418). An additional $215 is paid for each dependent child until age 18. The law provides special additional amounts to meet specific needs. A surviving 30-year-old spouse with a life expectancy of 80 years may receive DIC benefits of more than $500,000 based on current rates.
Uniformed Services Survivor Benefit Plan (SBP)—Eligible spouses and children of service members who were retirement eligible at the time of death are entitled to monthly payments under the SBP (10 U.S.C. 1447–1460b). The annuity amount for a spouse under age 62 is equal to 55 percent of the retired pay that would be payable if the member retired on the date of death. When the spouse is age 62, the benefit is reduced to 35 percent. By law, a spouse's DIC entitlement is offset from SBP.
Social Security—Death benefits are provided for a spouse caring for the member's dependent children under age 16, a surviving spouse during old age, and for eligible minor children of an insured service member (26 U.S.C. 3101, 3111, 3121). Benefits depend on the family status of the deceased member and are the same as for the family of any deceased civilian worker insured under the same circumstances. Monthly entitlement is a percentage of the deceased member's ''Primary Insurance Amount (PIA)''. The full PIA is paid to a surviving spouse who begins payments at age 65. Reduced amounts are payable as early as age 60. The mother's/father's and children's benefit is 75 percent of the PIA, subject to a family maximum.
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Health Care—A surviving spouse and minor dependents of the member are normally eligible for space-available medical care at military medical facilities or are covered by TRICARE (MEDICARE after age 65). Dental insurance coverage and TRICARE benefit levels for dependent survivors of active duty members are extended for one year after the member's death. (10 U.S.C. chapter 55)
Commissary and Exchange Privileges—The unmarried surviving spouse and qualified dependents are eligible to shop at military commissaries and exchanges, normally providing a savings over similar goods sold in private commercial establishments (DoD Directive 1330.17, ''Armed Services Commissary Regulations'' and DoD Directive 1330.9, ''Armed Services Exchange Regulations'').
Tax Benefits—The next-of-kin of a service member whose death occurs overseas in a terrorist or military action is exempt from paying the decedent's income tax for at least the year in which the death occurred (26 U.S.C. 692). SBP payments are taxable as income. Payments made by the VA are tax exempt (38 U.S.C. 5301). SGLI payments are not taxable.
A similarly robust and comprehensive system of benefits is available to civilian employees under U.S. law:
Federal Employees Group Life Insurance (FEGLI)—Life insurance proceeds are payable under FEGLI if death occurs while an employee is insured no matter how death is caused. An increased accidental death benefit is payable, unless the cause of death falls under one of the expressed exceptions. Unless the employee designates a specific beneficiary, the FEGLI benefit is paid according to the order of precedence mandated by law (5 U.S.C. Chapter 87).
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Civil Service Retirement System (CSRS)—A monthly survivor annuity is payable to an eligible spouse if an employee had completed at least 18 months of creditable civilian service and died while subject to CSRS deductions. The guaranteed minimum amount of survivor annuity is 55% of the lesser of 40% of the employee's high-3 average salary at date of death or the amount the annuity would have been had the employee worked until 60 years old at the same high-3. When the widow's or widower's annuity based on the employee's actual service would be more than the amount under the guaranteed minimum provision, the spouse receives 55% of the annuity that would have been earned by the employee at date of death (5 U.S.C. Chapter 83).
Federal Employees' Retirement System (FERS)—The basic employee death benefit is payable if the employee had completed at least 18 months of creditable civilian service and died while subject to FERS deductions. If the deceased employee had more than 18 months but less than 10 years of service, the basic death benefit amount is a lump sum payment (currently $21,783.34) plus a lump sum equal to the higher of half of the annual basic pay at the time of death or half of the employee's high-3 average salary. If the deceased employee had 10 or more years of service, the surviving spouse is entitled to a survivor annuity equal to one-half of the employee's earned annuity (5 U.S.C. Chapter 84).
Social Security Benefits—Social Security benefits are payable to survivors if the deceased employee had earned sufficient credit.
Leave, Final Pay & Thrift Savings Plan—A DoD civilian employee's beneficiary receives a lump-sum payment for unpaid compensation and all unused annual leave accrued (5 U.S.C. 6303). The sick leave balance is applied in the calculation of a survivor annuity if the employee was under CSRS. The employee's designated beneficiary receives any amount in the employee's Thrift Savings Plan account (5 U.S.C. 8433).
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Federal Employees' Compensation Act (FECA)—If death occurs from injury sustained in the performance of duty, survivors of DoD civilian employees are entitled to tax-exempt compensation payments. The surviving spouse is compensated at a rate of 50% of the deceased employee's salary. If children are eligible in addition to the spouse, compensation is 45% plus an additional 15% for each child, to a maximum of 75% of the employee's regular pay. FECA benefits are not available if the survivor elects to receive an annuity under CSRS/FERS. Also, under FECA, the government pays up to $800 funeral and burial expenses. If an employee dies away from the area of residence, the cost of transporting the body to a place of burial is also paid. In addition, a $200 allowance is paid in consideration of terminating the deceased's status as a Federal employee (5 U.S.C. 8133–8137).
Death Gratuity Payment—A death gratuity of $10,000 is paid when a civilian employee dies from an injury sustained in the line of duty. The amount payable under the Federal Employees' Compensation Act (which normally equates to $1,000) is subtracted from the $10,000 payment (Section 651 of P.L. 104–208).
Federal Employees Health Benefits Program (FEHBP)—A survivor may continue enrollment in the FEHBP if the deceased employee was enrolled for self and family at the time of death and at least one family member is entitled to a monthly annuity as the survivor of the deceased employee. If the surviving spouse of a deceased FERS employee is not eligible for monthly survivor annuity benefits (because the employee had less than 10 years of creditable service), he or she may, nonetheless, elect to continue coverage provided the surviving spouse is eligible for the basic death benefit (5 U.S.C. Chapter 89).
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Tax Benefits—Proceeds of FEGLI policies that are paid as a death benefit to a designated beneficiary are not taxable as income to the beneficiary. Survivor benefit payments under CSRS and FERS are taxable as income.
We object to H.R. 2986 and H.R. 3022 because we are convinced that survivors of similarly situated individuals should receive the same level of compensation. The existing uniform system of benefits provided when a service member or civilian employee is killed in government service supports unit cohesion and high morale.
When Congress has considered modifying the benefits available for either military or civilian personnel, it has done so uniformly, on behalf of all. For example, in 1994, Congress improved the medical, dental, and housing entitlements for dependents of all service members who die while on active duty. Last year, Congress authorized the payment of a death gratuity for the beneficiaries of all Federal civilian employees for deaths resulting from injuries sustained in the line of duty. In both cases, Congress applied these increased benefits retroactively.
H.R. 3022 would amend the Foreign Claims Act, Title 10, United States Code, Section 2734. This Act is intended to promote and to maintain friendly relations with foreign nations through the prompt settlement of meritorious claims. This purpose is accomplished by settling and paying meritorious claims of inhabitants of foreign nations using the law of the nation in which the claim arose. The Act does not authorize the payment of claims by American service members and Department of Defense civilians, injured incident to their service.
H.R. 3022 would selectively benefit only a small category of active duty military members and Department of Defense civilian personnel. Increased benefits would be payable only when a death or injury arises from an incident in which an inhabitant or the survivor of an inhabitant of a foreign nation is paid under the Foreign Claims Act for his or her own death or injury.
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H.R. 3022 would provide disparate treatment even for similar incidents. Assume that two helicopters containing American military members crash only a few miles apart due to mechanical failure over the same foreign nation. Debris from helicopter A hits a foreign national on the ground, but no foreign nationals are injured as a result of the crash of helicopter B. H.R. 3022 would allow survivors of occupants of helicopter A to file claims, while survivors of the occupants of helicopter B could not. We believe that such a distinction in treatment is unwarranted.
Additional inequities may also arise because the proposed statute would not apply when an international agreement applies, or when the United States does not reach settlement with a claimant under the Foreign Claims Act. Further, payment under the statute may vary according to foreign law.
In summary, the Department of Defense opposes both bills because they would be a significant deviation from the current swift, uniform, and comprehensive system of compensation provided for all military members and civilian employees injured or killed incident to their service. These systems treat similarly situated individuals fairly and equitably. The proposed bills supplement the benefits available to a select few, but not all, military members and civilian employees and contradict the express intent of Congress in the Military Claims Act to bar claims by service members for injury or death occurring incident to service.
I appreciate the opportunity to present the Department's views on these bills and would be happy to respond to your questions.
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Mr. SMITH. Mr. Remy.
STATEMENT OF DONALD M. REMY, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE
Mr. REMY. Mr. Chairman and distinguished members of the subcommittee, I am pleased to appear before the subcommittee today to present the views of the Department of Justice on H.R. 2986 and H.R. 3022. I ask that my full statement be entered in the record.
Mr. SMITH. Without objection, it will be.
Mr. REMY. I will discuss briefly each of these bills separately.
H.R. 2986, if enacted, would single out for special treatment 15 families whose loved ones died in one very unfortunate but highly publicized incident. We extend our sympathy to our servicemembers and employees' relatives and friends on their loss in this accident. Indeed, we are saddened when any of our public servants lose their lives in the line of duty. We are constrained to oppose this bill, however, because it unfairly discriminates between these survivors and all other Americans suffering similar losses.
Each of the 15 individuals who died in the April 14, 1994, incident had considerable death benefits available, described by Captain Bloxom, which are established by Federal law. The survivors of the 14 servicemembers are entitled to death gratuity benefits and burial costs established by Congress for the families of members of the Armed Forces who die while on active duty, as well as benefits from the unique subsidized insurance or insurance-type plans created for servicemembers.
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Likewise, the survivors of the civilian employee are entitled to death gratuity payment benefits under the Federal Employees Compensation Act, the Federal Employees Group Life Insurance, and one of the retirement systems. The benefits provided by these statutes are certain and not fault-based. They are not subject to chance or disparate treatment. They provide uniform remedies for servicemembers or Federal employees who are injured or killed while serving our country.
In its seminal decision in Feres v. United States, the Supreme Court in 1950 recognized that Congress had created a system, and I quote, ''of simple, certain, and uniform compensation for injuries or death of those individuals in the armed services.'' In United States v. Johnson in 1987, the Supreme Court noted that these benefits compare extremely favorably with those provided by most workmen's compensation statutes.
Under this system of compensation, compensation is awarded uniformly to all servicemembers who are similarly situated, without regard to whether their injuries were incurred in training or in combat, in isolation or in large groups, in highly publicized incidents or in little-known but equally tragic circumstances. The same holds true for civilian employees of the government, who are provided uniform compensation under the Federal Employees Compensation Act.
The proposed bill would establish an unwarranted precedent of preferential treatment for favored individuals. Singling out the survivors of individuals who died in the April 14, 1994, incident would undermine the well-established principle of American jurisprudence which requires the uniform application of the law to all Americans.
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When servicemembers or Federal civilian employees give their lives while serving our country, they are provided with a specific, uniform remedy established by statute. To provide an extra payment to servicemembers and civilian employees who die in highly publicized incidents would break faith with the families of others who have died in this Nation's service.
If legislation such as H.R. 2986 is enacted, it can fairly be anticipated that the survivors of future high-profile tragedies will seek similar legislation, thereby further undermining the basic principle that all families should be treated in the same fashion. Furthermore, families of previous, less visible tragedies will no doubt ask this government why their loved ones' lives were worth less. For these reasons, the Department of Justice opposes the enactment of H.R. 2986.
The other bill we are discussing today is H.R. 3022. It would amend the Foreign Claims Act to authorize settlement of claims for the injury or death of members of the Armed Forces and civilian employees of the Department of Defense arising from incidents in which claims are settled for death or injury of foreign nationals. If enacted, this proposal, like H.R. 2986, would undermine the basic principle that requires uniform application of the law for all public servants.
This bill would create two special exceptions to the uniform compensation systems established for members of the military and for the Federal civilian employees. Although we are sympathetic to the families who have lost loved ones in this accident, the Department of Justice must oppose this bill as well, and urges that it not be enacted.
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The bill would draw a distinction between servicemembers and employees injured in accidents that include foreigners, and servicemembers and employees who are injured in similar accidents in which no foreigners are involved.
As explained in my discussion of H.R. 2986, both the military compensation system and the Federal Employees Compensation Act treats similarly situated individuals in identical fashion through the uniform application of no-fault compensation systems. There is no valid basis for such a distinction as is applied in H.R. 2986. It can be expected to undermine morale and cause dissension. It will likely lead to demands for extra payments to other groups of servicemembers and employees who believe they are equally deserving of special treatment.
I want to make one other point about H.R. 3022. It would draw a distinction between, and I quote the bill, ''members of the Armed Forces or civilian officers or employees of the Department of Defense,'' on the one hand, and all other officers and employees of the United States on the other hand. The former would be able to obtain extra payments under the Foreign Claims Act, and the latter would be limited to the no-fault compensation scheme established by Congress. There is no valid basis to distinguish the employees of the Department of Defense with the employees in other agencies in this government.
Finally, the bill obscures the apparent intent of the Foreign Claims Act, which is to promote and maintain friendly foreign relations.
For these reasons, the Department of Justice opposes enactment of these bills. I appreciate the opportunity to present the Department of Justice's views on H.R. 2986 and 3022, and I will answer any questions from the Chairman or the members of the subcommittee.
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Mr. SMITH. Thank you, Mr. Remy.
[The prepared statement of Mr. Remy follows:]
PREPARED STATEMENT OF DONALD M. REMY, DEPUTY ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION, DEPARTMENT OF JUSTICE
My name is Donald M. Remy. I am the Deputy Assistant Attorney General for the Torts Branch of the Justice Department's Civil Division. I am pleased to appear before the Subcommittee today to present the views of the Department of Justice on H.R. 2986 and H.R. 3022. H.R. 2986 would provide payments to the survivors of the fourteen members of the Armed Forces and one United States civilian who were killed on April 14, 1994, when a United States fighter aircraft mistakenly shot down two helicopters in Iraq. H.R. 3022 proposes to amend the Foreign Claims Act to authorize the settlement and payment of claims against the United States for injury to and death of members of the Armed Forces and Department of Defense civilian employees arising from incidents in which claims are settled for death or injury of foreign nationals. I will discuss each of these bills separately.
H.R. 2986
H.R. 2986 would authorize the Secretary of the Treasury to pay $100,000 to the survivor, or collectively the survivors, of each of the fourteen members of the Armed Forces and the one civilian who were tragically killed on April 14, 1994, when United States fighter aircraft mistakenly shot down two helicopters in Iraq. If enacted, this bill would single out for special treatment fifteen families whose loved ones died in one highly publicized, unfortunate incident. We extend our sympathy to our soldiers' and employees' relatives and friends on their loss in this accident. We are constrained to oppose this bill, however, because it unfairly discriminates between these survivors and all other individuals suffering similar losses.
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Each of the fifteen individuals who died in the April 14, 1994, incident had considerable death benefits which are established by Federal law. Indeed, the survivors of the fourteen service members are entitled to death gratuity benefits established by Congress for the families of members of the armed forces who die while on active duty (10 U.S.C. 1475–1482), as well as benefits from the unique, subsidized insurance or insurance-type plans created for service members. 10 U.S.C. 1447, et seq.; 38 U.S.C. 1965. Likewise, the survivors of the civilian employee are entitled to benefits under the Federal Employees' Compensation Act, 5 U.S.C. 8102, 8133. The benefits provided by these statutes are certain and not fault based: they are not subject to chance or disparate treatment. They provide uniform remedies for service members or Federal employees who are injured or killed while serving our country.
In its seminal decision in Feres v. United States, 340 U.S. 135, 144 (1950), the Supreme Court recognized that Congress had created a system of ''simple, certain, and uniform compensation for injuries or death of those in armed services.'' In United States v. Johnson, 481 U.S. 681, 690 (1987), the Supreme Court noted that these ''benefits . . . 'compare extremely favorably with those provided by most workmen's compensation statutes'. . . . '' Under this system compensation is awarded uniformly to all service members who are similarly situated, without regard to whether their injuries were incurred in training or in combat, in isolation or in large groups, in highly publicized incidents such as presented by this bill or in little known, but equally tragic circumstances.
The same holds true for civilian employees of the government who are provided uniform compensation under the Federal Employees' Compensation Act. Survivors of similarly situated individuals receive the same level of compensation when their loved ones are killed in government service. This is so whether the death occurred in a traffic accident, in a plane crash, at a shooting in a postal facility, or in a battlefield accident.
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The bill would establish an unwarranted precedent of preferential treatment for favored individuals. Singling out the survivors of individuals who died in the April 14, 1994, incident would undermine the well-established principle of American jurisprudence which requires the uniform application of the law to all persons. When service members or Federal civilian employees give their lives while serving the United States they are provided with a specific, uniform remedy established by statute. To provide an extra payment to service members and civilian employees who die in highly publicized incidents would break faith with the families of others who have died in the nation's service. Moreover, if legislation such as H.R. 2986 is enacted it can be fairly anticipated that survivors of future high-profile tragedies will seek similar legislation, thereby further undermining the basic principle that all families should be treated in the same fashion. Furthermore, families of previous, less visible tragedies will no doubt ask this government why their loved ones' lives were worth less. For these reasons, the Department of Justice opposes enactment of H.R. 2986.
H.R. 3022
H.R. 3022 would amend the Foreign Claims Act to authorize the settlement and payment of claims for the injury or death of members of the Armed Forces and civilian employees of the Department of Defense arising from incidents in which claims are settled for death or injury of foreign nationals. If enacted, this proposal, like H.R. 2986, would undermine the basic principle that requires uniform application of the law to all persons. This bill would create two anomalous exceptions to the uniform compensation systems established for members of the military and for Federal civilian employees. The Department of Justice opposes this bill, and urges that it not be enacted.
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First, the bill would draw a distinction between service members and employees injured in incidents which also injure foreigners and service members and employees who are injured in incidents which do not injure foreigners. As I explained in my discussion of H.R. 2986, both the military compensation system and the Federal Employees' Compensation Act treat similarly situated individuals in identical fashion through the uniform application of no-fault compensation systems. H.R. 2986 would create an exception to that uniform system whenever inhabitants of foreign countries are injured or killed in the same incident and the United States settles that foreigner's claim under the Military Claims Act. Thus, the families of service members who are injured or killed in auto accidents involving only Americans would be limited to the regular compensation system, but the families of service members injured or killed in auto accidents which injure foreigners would be able to seek extra payments. There is no valid basis for such a distinction: it can be expected to undermine morale and cause dissension. Enactment of H.R. 3022 will likely lead to demands for extra payments to other groups of service members and employees who believe they are equally deserving of special treatment.
Second, H.R. 3022 would draw a distinction between ''member[s] of the armed forces or civilian officer[s] or employee[s] of the Department of Defense'' (Sec. 1(a)) on the one hand, and all other officers and employees of the Federal government on the other. The former would be able to obtain extra payments under the Foreign Claims Act, the latter would be limited to the no-fault compensation scheme Congress established in the Federal Employees' Compensation Act. There is no valid basis for singling out Department of Defense personnel for special treatment.
For these reasons the Department of Justice opposes enactment of H.R. 3022.
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I appreciate the opportunity to present the Department's views on H.R. 2986 and H.R. 3022, and would be happy to answer any questions.
Mr. SMITH. Captain Bloxom, let me direct my initial questions to you.
Are you aware of any similar incidents prior to this April 14, 1994, shootdown where the Secretary of Department of Defense has voluntarily given payments to foreign nationals and not to active military personnel? In effect, I am asking, is there any precedent for this? Has it ever happened before?
Captain BLOXOM. These payments that the Secretary of Defense made to the foreign nationals incident to the April 14 incident were paid under section 127 of title 10. I am not aware of any other payments that have been made under that provision.
Mr. SMITH. Okay. That being the case, and this being an extraordinary situation, why is it that the Secretary of Defense chose to make payments to the foreign nationals in this case when, in fact, there was no precedent for it?
Captain BLOXOM. Yes, sir. As has been stated earlier during various statements, the Secretary of Defense made the decision to provide those ex gratia payments of $100,000 to each of the foreign survivors as a humanitarian gesture, in recognition of the tragic circumstances of the event, and also to foster good will and continuing relations with the countries involved.
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Mr. SMITH. If part of the rationale was to foster good relations with the countries involved, it seems to me that it would have occurred before and would occur again, in which case why not have a policy that treats active military personnel the same way as we would treat foreign national personnel?
I am just trying to see if there is any rationale for providing these payments to foreign nationals but not to American military personnel, if the only motive is to make other countries feel better. It seems to me that we ought to be at least as interested in providing some fairness and equity to our own American military personnel and their families as well.
Captain BLOXOM. Mr. Chairman, I agree that equity is the prime consideration. We believe that the system that we have in place now does provide that equity. It provides across the total Active Force or Reserves, for anybody who possibly suffers injury or death incident to their service, that they will all be compensated equally. To hinge a system upon the payment of foreign inhabitants could cause great inequities in our ability to ensure that every servicemember can serve knowing that he will receive the same benefits as every other troop next to him.
Mr. SMITH. Captain Bloxom, is there anything in the Secretary of Defense's discretionary authority that would prevent the Secretary of Defense from making similar payments to the families of the American military personnel who were killed?
Captain BLOXOM. I would ask permission to have Frances Adams answer that question.
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Ms. ADAM. Basically——
Mr. SMITH. You are Ms. Adams?
Ms. ADAM. Yes, sir, I am.
Basically, we use 127 funds when no other funds are available, and it is not otherwise addressed by law. That issue has come up in general counsel's office, and the Secretary of Defense has taken that under advisement. We would ask to put that on the record later.
Mr. SMITH. In other words, you cannot answer the question whether the Secretary of Defense would have the authority to make these same types of payments to the families of the American military personnel?
Ms. ADAM. I believe that that is a question of first impression, and they are looking at that issue, sir.
Mr. SMITH. It seems to me that by now you must have an answer to that question. Would you want to at least hazard a reasonable guess as to how you think the statute should be interpreted?
Ms. ADAM. I wouldn't want to hazard a guess, no, sir.
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Mr. SMITH. Let me retract that word ''guess.''
On the basis of your reading of the statute and your understanding of the law as you know it, how would you read the statute?
Ms. ADAM. It is not an area that I am familiar with. It is just not my area of law.
Mr. SMITH. What about you, Captain Bloxom? Are you familiar with this statute? Has this question never come up before in any discussion of this incident, whether the Secretary could give the same payments to the American military families?
Captain BLOXOM. The Secretary, Mr. Chairman, would have wide latitude under section 127 of title 10 to make payments. As Ms. Adams said, there are several provisos where he may make those payments. As to whether the Secretary would have the intent to pay others under that section of the law, I would not venture to say.
Mr. SMITH. My question was not whether he had the intent, it was whether he had the wide latitude. It sounds to me like he would have that wide latitude. Is that at least a possible reading?
Captain BLOXOM. I am not an expert in this area, sir. I would not want to make a statement that would lead the committee astray.
Mr. SMITH. I am a little surprised and disappointed that that question cannot be answered. It seems to me that that would have been the first question that would have been discussed by the Defense Department and others after this incident.
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The fact that it cannot be answered today, as I say, greatly disappoints me. I suspect that the Secretary does have the same latitude, and if that is the case, I would appreciate having an answer to the question that would respond definitely as soon as possible.
Captain BLOXOM. We will provide that.
Mr. SMITH. Thank you, Captain Bloxom.
The gentleman from North Carolina, Mr. Watt, is recognized.
Mr. WATT. Thank you, Mr. Chairman. Let me say, I don't have any questions of Mr. Bowron. The focus of my bill and inquiry does not have anything to do with looking backwards, so I am completely satisfied that an investigation has taken place. We don't have any jurisdiction over that, so I won't ask you any questions.
Let me say to Captain Bloxom and Mr. Remy that I fully support and understand what the Defense Department has done up to this point. The law—I take the Feres doctrine to mean what the Court has said it means, so I am not questioning what you have done or failed to do up to this point. Again, the focus of my inquiry is looking forward, whether there is some way to bring more equity to this situation and future situations of this kind.
I would take some issue with you, that this is an effort to single out somebody for special treatment. By definition, the Secretary of Defense has already singled out some people. We are trying to do for U.S. citizens, what he has already done for foreign nationals.
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Based on Captain Bloxom's response to the Chairman's question, he has done this when there is no prior historical precedent for it. It hasn't been done in other situations because of the very thing that you are testifying about, because this is a special situation. We are not trying to create any kind of general special treatment category, except where it is absolutely clear that special treatment should be allowed, and the Department of Defense has already found in this case that special treatment should be allowed. It just didn't allow special treatment for U.S. citizens, that was allowed for foreign nationals.
I take issue with Mr. Remy's characterization in his testimony that this would lead to compensation in ''highly publicized or high-profile cases.'' There is nothing that is driving this bill, neither of these bills, has anything to do with whether they are highly publicized or high-profile cases. If I were aware of the same set of circumstances where no publicity had been given, I would feel the same way about the policy that underlies this.
So this idea that we are doing this only because it is highly publicized, I am certainly not doing anything because it is highly publicized or because this is a high-profile case. I don't even have a constituent from my congressional district that would be a beneficiary under Mr. Collins' bill, or, for that matter, as far as I know, under my bill, unless something special occurs in the future.
So I don't have any of the reservations that you have expressed about this bill except the possible exception—reservation that Mr. Remy expressed that this is not broad enough, and I am perfectly willing to broaden this bill to cover nonmilitary people, if that is going to make you feel better about it.
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So I guess the question I would have is if your objection is that this bill is too narrow, if we broadened it, would your opinion about the bill change? If we covered people who are not military people, just like we are covering people who are military people, would you have a different opinion about it, or would the Department of Defense or the Attorney General's office have a different opinion about it? Do either of you gentlemen care to respond to that?
Mr. REMY. Yes, Congressman Watt. First, let me say I did not intend to ascribe any ill motives to you in your presenting this legislation. I simply was attempting to illuminate that there are many tragic incidents which have occurred in the history of this Nation in which our servicemembers and our civilian employees have lost their lives. In those incidents, those individuals were not accorded any different treatment than they would have received under the uniform compensation systems that are available.
Mr. WATT. But Captain Bloxom has indicated that there is only one instance that he is aware of under this statute, and that is this instance, where we have awarded foreign nationals compensation. So what are the other precedents we are talking about here? What are the other instances?
Mr. REMY. I was not specifically referring to compensation under section 127 of title 10. I was referring to, generally, the inability to provide additional compensation to servicemembers or to Federal employees whenever they are injured, or to their family members whenever they lose their lives.
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I did not mean to suggest that there were circumstances under which section 127 would come into play. There are circumstances where individuals in different departments within the government lose their lives in service under which section 127 of title 10 has no applicability. That statute is designed to allow the Secretary of Defense and the Defense Department to exercise is discretion in determining when payments need to be made under its provisions. That ordinarily wouldn't apply outside of the Department of Defense.
Mr. WATT. Why wouldn't the Department want that discretion to do equity in other cases? I don't understand that.
Mr. REMY. It is inappropriate for the Department of Justice to speak to the exercise of discretion by the——
Mr. WATT. Let me address that question to Captain Bloxom then. You have the discretion to do equity, to do justice. Would you suggest we take that discretion away? You apparently do not feel comfortable exercising any discretion. Would you suggest we repeal section 127?
Captain BLOXOM. I would not suggest that you repeal 127, sir. As to——
Mr. WATT. Then why wouldn't you want it to be broad enough to cover equity for U.S. citizens?
Captain BLOXOM. Mr. Watt, I believe that we may be dealing with equity of U.S. citizens in two senses; one, equity of survivors versus the treatment of foreign inhabitants. The greater concern is equity among all servicemembers, regardless of incident; that we have a system of compensation and benefits that every member knows that he will be treated—he or she will be treated the same regardless of incident.
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This incident is a different issue. There are two different equity issues that I believe we may be talking about here.
Mr. WATT. Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Watt.
The gentleman from Tennessee, Mr. Jenkins, is recognized.
Mr. JENKINS. I don't have any questions.
Mr. SMITH. The other gentleman from Tennessee, Mr. Bryant, is recognized.
Mr. BRYANT. Thank you, Mr. Chairman.
Let me thank the panel for appearing. Certainly this is a difficult situation that the families testifying today have had to endure and continue to endure. Unfortunately, it is a fact of life, as has been expressed by this panel, and one of the assumptions of risk that people take when they enter into the military.
The issue of friendly fire only compounds the tragedy involved. But this Congress has to be concerned not only with the emotion involved in this, and the compassion for the people who suffered the losses, but also on the other side, the precedent that we may well be setting in the interest of pursuing fairness and equity to all concerned.
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I think obviously several mistakes were made, as the investigation pointed out, in terms of what caused this incident. But subsequent to that, the handling, perhaps, I think—there were major mistakes made in terms of the settlement of claims of the foreign nationals and those types of payments, at least in my view, because you have now set us up in a position of having to, in effect, defend the payment of a lump sum payment to the foreign nationals where the families of our own service people received much less.
But I understand the rationale of the lump sum payment versus the extended benefits that are available to the beneficiaries of our service people who are killed in the line of duty. That has been alluded to: veteran' benefits, I assume; Social Security; access to military facilities; those kinds of things, I guess, more toward a surviving spouse and children versus a mother and father situation, which I think is prevalent, at least in the panel today, and I think the questions have been asked.
But it seems to me, and my colleague from California mentioned something to me during the questioning, it seems to me we ought to, in fairness to our own people who are killed in these circumstances—perhaps the settlement with foreign nationals, and I understand there are legitimate claims out there. I was a JAG officer in the Army, and I know there are claims that are made any time we go overseas; but somehow if we could tie what the foreign nationals are paid, to what our people are paid, because, again, I believe our system is a uniform, fair one, basically a no-fault system. I think it has served us well.
Again, what raises this case to the surface so visibly is the fact that we overpaid, in my view, the settlement of the foreign nationals' claims. It does. It is an emotional thing, to think that our soldiers and sailors and airmen are not going to be treated in the same way.
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Perhaps if there were a way to reverse the situation and not talk about, in everyday cases, of bringing our folks up to the level of foreign nationals, but yet settling their cases at the prescribed limits of what we pay everybody else, because I think, again, we are getting into the proverbial slippery slope, here, in this case, very easily.
But, as Mr. Watt said, given the fact that this has been already done, I am not sure we have any other way out but to treat this case in the way that is being proposed. But then we set ourselves up, again, I believe, unfairly to everybody else, that, well, this is the precedent, and that everyone else will now come in and say, you have done it there, you will have to do it here.
I didn't really intend for this to be a lecture here for you, but I do commend you. I would just suggest that, and give all credit to Mr. Rogan in terms of attribution, that perhaps we can be more mindful, and maybe Mr. Watt's bill is the approach that we need to take in tying the settlement of the claims to—not what the settlement of the foreign nationals' claims would be, but rather limiting the settlement of claims, particularly in death cases, to something along the lines of what would be the standard procedure for our military service.
With that said, I will yield back the balance of my time.
Mr. SMITH. Thank you, Mr. Bryant.
The gentleman from California, Mr. Rogan, is recognized.
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Mr. ROGAN. Mr. Chairman, thank you. I apologize to the Chairman, my colleagues, and to the witnesses for my late arrival at the committee today. I have multiple hearings going on at the same time, which is sometimes the fortunes of war, at least in Congress.
I am especially apologetic for my tardiness because, having had an opportunity to review some of the opening statements and listening to the testimony which has come since my arrival, I must confess I am very deeply disturbed, to the point of anger, that a situation like this has been allowed to develop. I am trying not to demonstrate that in my questioning, because I certainly don't want to jump the gun if something has been addressed that I have missed that otherwise would assuage my feelings.
Let me just make sure I understand the basic facts. Now, Captain Bloxom, were you director of compensation back in 1994, when this incident occurred?
Captain BLOXOM. No, sir, I was not.
Mr. ROGAN. Is anybody here on the panel today who was involved in the decision by Secretary Perry to make that payment of $100,000 to foreign nationals?
I see no response, so I assume the answer is no.
Captain Bloxom, I just want to make sure I understand the basic facts. First, the foreign nationals that were killed were United States Government employees, correct?
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Captain BLOXOM. In the case of the Kurds, the five Kurds who perished in that accident, they were government employees. They received compensation under the Federal Employees Compensation Act. The $100,000 payment was offset by the amount of benefits provided under FECA.
Mr. ROGAN. The $100,000 payment was offset?
Captain BLOXOM. In the case of the Kurds, yes, sir. In addition, the other foreign officers, the three Turkish officers, the one French officer, and two British officers——
Mr. ROGAN. Let me interrupt for a second.
Captain BLOXOM. Yes, sir.
Mr. ROGAN. Looking at the committee analysis which has been provided to the members of this panel, it said that the foreign military families received an ex gratia payment of $100,000 from the Secretary of Defense, with no offset for any other benefit.
Captain BLOXOM. I may have misled you on that in addressing the Kurds first. The way you have read it, sir, is correct for the foreign military officers. They did receive the $100,000 payment without offset.
Mr. ROGAN. Mr. Chairman, may I have unanimous consent for 2 additional minutes?
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Mr. SMITH. Mr. Rogan, you may. I think we shortchanged you anyway.
Mr. ROGAN. Thank you.
What was the policy reason for Secretary Perry awarding the extraordinary payment?
Captain BLOXOM. The reason for the extraordinary payment was in recognition—as a humanitarian gesture in recognition of the tragic occurrence.
Mr. ROGAN. But we had American service personnel over there on a humanitarian mission for the Kurds, didn't we?
Captain BLOXOM. Yes, sir, we did.
Mr. ROGAN. And on that humanitarian mission, American service personnel lost their lives. And on top of that mission and the loss of life, Secretary Perry apparently felt that it was also appropriate to, for the first time, award an extraordinary cash payment to foreign nationals that would not be provided to American service personnel who lost their lives on a humanitarian mission for this region of the world.
I am trying to understand the justification for that, beyond the idea that it is just easy to be compassionate with other people's money.
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Captain BLOXOM. Sir, it would be inappropriate for me to try to opine what the Secretary's justification was at the time of payment.
Mr. ROGAN. I certainly understand and appreciate the sensitivity that your position has with respect to that question.
The Chairman asked the question about whether the law should grant the same compensation to U.S. military personnel that is given to foreign nationals? When he asked that question, I couldn't help but think of it in the reverse: Why should foreign nationals be treated better than American service personnel?
It just stuns me that 4 years ago the Department of Defense acted in this fashion, and now we are all in the position of trying to figure out how we correct this. If it was a mistake to give that cash payment, do we accentuate the mistake to the tune of $1.35 million, and go above and beyond what has, as far as I know, always been the Department of Defense policy that war is a hazard that American service personnel risk, and that families and next of kin are compensated by typical survivor benefits?
The question that was raised earlier by one of my colleagues or a panel member is a very haunting one: If we act in the manner that is being suggested today, what does that do to morale for troops in the future who have to wonder whether a bill is being introduced by a friendly Member of Congress that is going to overcompensate one loss of life within the ranks as opposed to some other loss of life; that Congress would then be making a determination, or your Board would be making a determination that one life is not as valuable as another.
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This is a very disturbing situation. I am not asking for any comment from anyone today in uniform. This has been exacerbated by the conduct of a Secretary of Defense in needless fashion, by using taxpayer funds to overcompensate those for whom a great humanitarian mission had already been given on their behalf.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Rogan.
Let me thank all the Members for their particularly trenchant questions today. They have been all exactly on point, and I think were very much needed.
Before we go to the next panel, though, I am going to ask Captain Bloxom and Ms. Adams if they would provide me, before the hearing ends today, with the answer to my question a few minutes ago. Should we decide to go forward, as you all know, it takes time for legislation to pass, and we are getting close to the August recess, and the adjournment for the year is not long after that.
What I would like to know, again, is whether or not the Secretary has the discretionary authority to make similar payments to the American military personnel or their families who were killed in the same way that he made payments to the foreign nationals.
We have a phone in the corner of this room back to my left, and there is a public phone out in the hall. We will likely be here for another 30 minutes, and I am hoping that would be ample time to answer a very simple and straightforward question before we adjourn.
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With that, we thank all the panelists for their statements and for their answers to the questions that we had, and appreciate their being here.
Our last panel consists of those family members of several of the individuals who were involved in this tragedy.
Would they come forward and take their seats at the table: Mrs. Cornelia Bass, Mrs. Georgia Bergmann, and Lieutenant Colonel Retired Robert McKenna.
Let me say to you all, I know this isn't easy. It sometimes can even be emotional. But your testimony is very much needed and necessary, and we look forward to it.
Mr. SMITH. Mrs. Bass, before you begin, I hope you won't mind my adding to your introduction by saying that I am happy to have a constituent here. You and I have talked about this subject for a long, long time, and we appreciate your efforts in being here.
Also the members of the panel might be interested in knowing, and I'm sure Mrs. Bass wouldn't mind my saying here publicly, that she is a relative of the Ranking Member of the full Committee on the Judiciary, Mr. Conyers, as well. If you will begin, we will look forward to hearing you.
Mr. WATT. We won't hold that against her.
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STATEMENT OF CORNELIA BASS
Ms. BASS. Thank you very much, sir.
Good morning to everyone. As you know, I am Cornelia Bass. My son was Sergeant Cornelius Bass.
Mr. Chairman and members of the subcommittee, before I begin my testimony, I would like to thank the late Congressman Frank Tejeda, Congressman Ciro Rodriguez, and Congressman Henry Bonilla, Senator Phil Gramm, Congressman Charles Gonzalez for their support of my family and other survivors of the Black Hawk victims.
I would also like to extend a special thanks especially to Congressman and Chairman Lamar Smith, who has been outstanding and has integrity and honor, and thank you from my heart.
Mr. SMITH. Thank you.
Ms. BASS. Thank you for holding this hearing today to provide the opportunity for myself and other family members to comment on the bill, H.R. 2986, and H.R. 3022.
Also, special thanks to Congressmen Collins and Watt for their courageous and tireless effort to obtain justice for our loved ones.
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As you know, this is a painful subject for me, but one that I feel very strongly about. I come here as part of a long and difficult road that began April 14, 1994. On that day 15 Americans and 11 foreign nationals were killed when two Black Hawk helicopters participating in Operation Provide Comfort were shot down by the Air Force F–15s enforcing the no-fly zone over northern Iraq. My son, Sergeant Cornelius Bass, was also killed that fatal day.
I don't know if any of you have lost a child. It is a horrible experience that I pray none of you will ever go through. As a mother, when your child is born, a feeling comes within you that you really can't describe. You count all the fingers, all their toes, make sure the right parts are where they are supposed to be. And you always look forward to see your child grow into adulthood, marry, start a family.
I have been robbed of these memories, which we all cherish. Instead, I am left with pain created by the loss of my son. I feel this pain every day, and know that it will never, ever go away. However, it has given me the courage and the strength to continue seeking justice on his behalf.
The Department of Defense has repeatedly emphasized the exceptional nature of this tragedy to justify the $100,000 ex gratia payments. We do not question the appropriateness of Defense Secretary Perry's decision to authorize these payments. That was a policy decision for the Defense Department to make. We do question the inherent inequity of treating the families of the foreign nationals better than the families of Americans killed on the Black Hawks.
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We understand the ex gratia payment represents a gesture of respect and good will on the part of the United States toward these foreign nationals and their country. However, the fact is that the people we loved and cherished were also victims of this exceptional tragedy. Our loved ones were serving side by side with those foreign personnel. The Pentagon's unequal treatment of families of the Black Hawk victims sends a definite message to all Americans that the lives of our loved ones are somehow less valuable and their loss less sorrowful than the lives of the foreign nationals with whom they served.
There is no way that we can ever be compensated for the loss we have suffered. No amount of money will make the pain of losing my son go away. But we can and should receive fair and equitable treatment. I have spoken with and cried with the parents of foreign nationals. I understand the depth of their pain, and the loss was equally horrible. We are not before you today seeking preferiental treatment. It is just equitable treatment.
When my son joined the United States Army, he possessed integrity, honor, and faith in his country. He also understood the same integrity and honor would be reciprocated by the country he served. In short, he believed the government would protect him and do right by him. Unfortunately, our government did not protect him 4 years ago in northern Iraq. After the accident, they did not do right by him.
My son's death and the other deaths on board the Black Hawk helicopters were tragic—a unique and exceptional tragedy, no more or less for anyone on board, whether they were American, Kurdish, French, Turkish, or British. As far as we know, nothing like this has happened before, and our military has assured us that it will not happen again.
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A quote from Theodore Roosevelt provides the answer. ''A man who is good enough to shed his blood for his country is good enough to be given a square deal afterwards.'' We are here to request your assistance on behalf of all the families of those on board the Black Hawk helicopters. Each of us has been forever changed by this tragedy, and we will never be made whole again. However, you have the power to correct the inequity created by the Defense Department and give us and our loved ones a square deal. In doing so, you can prove that my son's faith in his country was not misplaced. Please do right by him. Thank you.
Mr. SMITH. Thank you, Mrs. Bass.
[The prepared statement of Mrs. Bass follows:]
PREPARED STATEMENT OF CORNELIA BASS
Mr. Chairman and members of the Subcommittee—before I begin my testimony, I would like to thank the late Congressman Frank Tejeda, Congressmen Ciro Rodriguez and Henry Bonilla, Senator Phil Gramm, and Mr. Charles Gonzalez for their support of my family and the other survivors of the Black Hawk victims. I would like to extend a special thank you to Congressmen Collins and Watt for their courageous and tireless efforts to obtain justice for our loved ones. Finally, I would like to thank Chairman Smith—who has also supported us since day one—for holding this hearing and providing this opportunity for me to comment on H.R. 2986 and H.R. 3022.
As you know, this is a painful subject for me, but one that I feel very strongly about. I have come here as part of a long and difficult road that began on April 14, 1994. On that day, 15 Americans and 11 foreign nationals were killed when two Army Black Hawk helicopters participating in Operation Provide Comfort were shot down by two Air Force F–15's enforcing the No-Fly Zone over Iraq. My son, Specialist Cornelius Anthony Bass, was one of the Americans killed on board the Black Hawks.
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I don't know if any of you have lost a child; it is a horrible experience that I pray none of you ever have to go through. As a mother, when your first child is born, a feeling comes within your soul that you can't describe. You count every finger and toe and check to be sure that the right parts are where they're supposed to be. I always took for granted that I would see my child grow into adulthood, marry, and start a family. I have been robbed of these memories which we all cherish. Instead I am left with the pain created by the loss of my son. I feel this pain every day and know that it will never go away; however, it has given me the courage and strength to continue seeking justice on his behalf.
In the wake of the Black Hawk disaster, the Department of Defense made ex gratia payments of $100,000 to the family of each of the foreign nationals killed on board the Black Hawks. These payments were made in addition to any benefits received by these families from their respective governments. In contrast, the families of the American victims received the standard military death benefits, in some cases, as little as $10,000.
The Defense Department has repeatedly emphasized the exceptional nature of this tragedy to justify the $100,000 ex gratia payments. We do not question the appropriateness of Defense Secretary Perry's decision to authorize these payments. That was a policy decision for the Defense Department to make. What we do question is the inherent inequity of treating the families of the foreign nationals better than the families of the Americans killed on board the Black Hawks. We understand that the ex gratia payments represented a gesture of respect and good will on the part of the United States toward these foreign nationals and their countries. However, the fact is that our children, our spouses, our family members, the people we loved and cherished, were also victims of this exceptional tragedy. Our loved ones were serving side by side with those foreign personnel. The Pentagon's unequal treatment of the families of the Black Hawk victims sends a message to all Americans that the lives of our loved ones are somehow less valuable, and their loss less sorrowful, than the lives of the foreign nationals with whom they serve.
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There is no way that we can ever be compensated for the loss that we have suffered. No amount of money will make the pain of losing my son go away. But we can and should receive fair and equitable treatment. I cannot describe my anger when I discovered that the foreign families had been treated better than us by our own government. It shows nothing short of a complete lack of respect for the men and women who devoted their lives to serving this country. Is this good policy?
I have spoken with and cried with the parents and families of the foreign nationals. I understand the depth of their pain as their loss was equally horrible. We are not before you today seeking preferable treatment, just equitable treatment. The Pentagon says this sets a bad precedent—that if you pass these bills we will need to begin compensating too many families of American soldiers killed while serving their country.
That is not what we are saying, nor would it be a consequence of your decision to pass these bills. The only consequence would be equitable treatment. If fairness for Americans would somehow set a new precedent, then it is good precedent.
When my son joined the United States Army, he possessed integrity, honor, and faith in his country. He also understood that this same integrity and honor would be reciprocated by the country he served. In short, he believed that our government would protect him and do right by him. Unfortunately, our government did not protect him four years ago in Iraq, and, after the accident, did not do right by him.
The death of my son and the others on board the Black Hawk helicopters was a tragedy—a unique and exceptional tragedy—no more or less for anyone on board whether they were American, Kurdish, French, Turkish, or British. As far as we know, nothing like this has ever happened before and our military has assured us that it will not happen again.
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The nationality of those on board the Black Hawks counted for nothing when the F–15 pilots fired their missiles—everyone on board those helicopters suffered the same horrible death. Now the Defense Department would have us believe that the nationality of the victims does in fact matter in determining the treatment received by the victims and their families. Is this fair?
A quote from Theodore Roosevelt provides the answer. ''A man who is good enough to shed his blood for his country is good enough to be given a square deal afterwards.'' We are here to request your assistance on behalf of all the families of those on board the Black Hawk helicopters. Each of us has been forever changed by this tragedy and we will never be made whole again. However, you have the power to correct the inequity created by the Defense Department and give us and our loved ones a square deal. In so doing you can prove that my son's faith in his country was not misplaced. Please do right by him, please don't let this injustice go uncorrected.
Mr. SMITH. Mrs. Bergmann.
Mrs. BERGMANN. I would like to go last, please.
Mr. SMITH. Okay.
Colonel McKenna.
STATEMENT OF LIEUTENANT COLONEL (RET.) ROBERT McKENNA
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Colonel MCKENNA. Chairman Smith, distinguished subcommittee members, thank you for allowing me to speak before you today. I would like to begin my testimony by thanking my Representative, Mac Collins, who I realize is not here, but Congressman Collins has exhibited great courage, support, and dedication in helping us deal with this incident. Every American should be so fortunate as to have someone like Mac Collins to fight for them in Congress.
I support H.R. 2986, the private relief bill introduced by Congressman Collins. Perhaps more importantly, I support H.R. 3022 which will amend title 10 to give the Secretary of Defense the authority to make ex gratia payments to American citizens, and I strongly request your support.
As the law currently stands, the Secretary possesses the discretionary authority to compensate only foreign nationals, regardless of the fact that Americans may also deserve ex gratia compensation. H.R. 3022 will remove this dilemma by extending the Secretary's authority to make ex gratia payments to both foreign nationals and American citizens.
My son, Captain Patrick M. McKenna, was in the prime of his life when his fellow Americans killed him 4 years ago. My wife and I feel the loss of our son every day in a multitude of ways. Patrick was our youngest child. He was an outstanding individual, a good citizen, student, and soldier. Hallmarks of Patrick's character were honesty and integrity, dedication and hard work.
In remembrance of Patrick and in recognition of these attributes, his former high school classmates initiated an award in his name that is given each year to a graduating student who best exemplifies Patrick's extraordinary qualities.
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For 44 years I served my country, both on active duty in the military and later as a civilian at the United States Army Infantry School. Until 1994, I looked upon the country I was serving with immeasurable pride. However the egregious conduct of the Defense Department in the wake of Patrick's death caused me mental, emotional and psychological distress to the point where I could no longer serve my country effectively, and therefore retired.
There are those who say that time heals all wounds, but as of today the wounds my wife, my children and I feel are still as fresh and hurtful as they were on 14 April, 1994.
I am here before you now seeking equitable treatment for my wife, for myself, and for the survivors of loved ones who sacrificed their lives for this country in northern Iraq. Everyone admits that this tragedy was preventable and, in fact, should never have happened. The number and degree of human and technical errors which resulted in the needless deaths were described by the Chairman of Joint Chiefs John Shalikashvili as shocking. In November 1997, in an investigative report issued by the General Accounting Office, they found 130 separate mistakes which led to the deaths of my son and 25 others.
On July 14, 1994, 3 months after our family members were killed, the Secretary of Defense William Perry held a press conference to discuss the ongoing investigation into the causes of the friendly fire incident. The first question asked concerned compensation for the victims of the incident, given its unique and preventable nature. Secretary Perry responded that very rigid and precise legal restrictions limited the Department of Defense's ability to compensate the victims. Adding insult to injury, what Secretary Perry failed to say was that the Defense Department would apply these rigid guidelines only when compensating the families of the American victims.
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This gross inequity in the treatment, based on the meaningless distinction of nationality, is what we seek your aid in correcting. The American Government has, in exceptional circumstances, compensated families of servicemembers killed in combat situations. Allowing just compensation to the families of the Black Hawk victims would in no way be an adverse precedent or an unusual payment.
No one disputes the exceptional circumstances surrounding the Black Hawk shootdown, circumstances which would arguably allow compensation beyond the statute requirements, regardless of the ex gratia foreign national payments. However, these ex gratia payments present an even more compelling justification for payment in this case; namely, the equitable treatment by the United States Government of its own citizens.
The Defense Department complains that the equitable treatment in this situation would set a bad precedent. This argument ignores the narrow scope of these bills. The private relief bill introduced by Mac Collins will not open the floodgate for others claiming they, too, are entitled to relief. The Black Hawk incident was, to use the Defense Department's own words, a unique and exceptional event.
The precedent established by the passage of this bill will simply be the fact that Congress will not allow the Defense Department to treat American citizens in an inequitable manner. If this is precedent, then it is good precedent.
The government asserts that this legislation is contrary to the Feres doctrine. In response, we have asked and requested that our attorneys, Arnold and Porter, investigate this allegation, and when we receive a response from our attorneys, I respectfully request that it be entered into the record of this hearing.
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[The information referred to follows:]
| Arnold & Porter, |
| Washington, DC, June 25, 1998. |
Lt. Col. (Ret.) ROBERT MCKENNA,
Columbus, GA.
DEAR MR. MCKENNA: I am writing in response to your request that we examine the issue of whether the ''Feres Doctrine'' is relevant to the consideration by Congress of H.R. 4061 (formerly H.R. 2086) and H.R. 3022. After researching the issue, we conclude that the Feres Doctrine is not relevant to the consideration of these measures.
The Federal Tort Claims Act (''FTCA'') 28 U.S.C. 1346, 2671–2680, confers jurisdiction in the federal courts generally over tort claims against the United States for money damages. In Feres v. United States, 340 U.S. 135 (1950), the Supreme Court held that the FTCA does not extend to claims ''for injuries to servicemen where the injuries arise out of or are in the course of activity incidental to service.'' Id. at 146. Feres is, at heart, a jurisdictional decision concerning only the FTCA. The Court did not purport to base any of its findings on constitutional grounds. Indeed, the Court was very clear that it was interpreting Congressional actions and Congressional intent. There is nothing in the Feres decision, or in subsequent decisions developing the Feres Doctrine, that can reasonably be said to limit the ability of Congress to enact legislation similar to H.R. 4061 and H.R. 3022.
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Simply put, the Feres Doctrine arises only when an individual is attempting to sue the United States government under the FTCA for activities incident to military service. That is not your situation. Rather, you are seeking the enactment of legislation that will provide all the families of the Black Hawk victims with equitable treatment from the United States government. You are not seeking authority to sue the government. Thus, reliance on the Feres doctrine by the Department of Defense or the Department of Justice to argue against this legislation is misplaced.
The decision in Feres and subsequent cases are mere interpretations and applications of a federal statute. The government may contend that the enactment of H.R. 4061 and H.R. 3022 would be bad policy, but they cannot argue that the Feres Doctrine precludes Congressional action or bars changes in the system of compensation for victims of negligence by the Armed Services. That system was established by Congress in statute and Congress is free to change it in any manner it sees fit.
Both H.R. 4061 and H.R. 3022 raise the issue of whether American citizens and foreign nationals who are similarly situated will be compensated equally—an issue that Congress will doubtless give careful consideration. However, in making these policy decisions, Congress could not labor under the misconception that the Feres Doctrine dictates, or even suggests, a particular outcome in this manner.
Sincerely,
Colonel MCKENNA. Patrick's death has created a lasting ripple of grief and sorrow in our lives. This feeling of loss is compounded by the refusal of the Defense Department to treat our loss with the same humanitarian concerns displayed for the families of foreign nationals. Our request for your support is not about money, it is about equity. If the Department of Defense had not seen fit to place a value on human lives by allowing unequal compensation, we would not be here today. However, the military chose this course of action, and we come to you seeking equality for our loved ones on board the Black Hawks.
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You have the power to secure equal treatment for our loved ones and to show us that the government does care. Please help us. Thank you.
Mr. SMITH. Thank you, Colonel McKenna.
[The prepared statement of Colonel McKenna follows:]
PREPARED STATEMENT OF LIEUTENANT COLONEL (RET.) ROBERT MCKENNA
Chairman Smith and distinguished subcommittee members, thank you for allowing me to speak before you today. I would like to begin my testimony by thanking my representative, Mac Collins. Congressman Collins has exhibited great courage, support and dedication in helping us to deal with this incident. Every American should be so fortunate as to have someone like Mac Collins to fight for them in Congress.
I support H.R. 2986, the private relief bill introduced by Congressman Collins. Perhaps more importantly, I support H.R. 3022 which will amend Title 10 to extend the authority of the Secretary of Defense to make ex gratia payments. As the law currently stands, the true Secretary possesses the discretionary authority to compensate only foreign nationals regardless of the fact that Americans may also deserve ex gratia compensation. H.R. 3022 will remove this dilemma by extending the Secretary's authority to make ex gratia payments to American citizens.
My son, Captain Patrick M. McKenna, was in the prime of his life when his fellow Americans killed him four years ago. My wife and I feel the loss of our son every day in a multitude of ways. Patrick was our youngest child. He was an outstanding individual—a good citizen, student and soldier. The hallmarks of Patrick's character were honesty, integrity, dedication and hard work. In remembrance of Patrick and in recognition of these attributes, his former high school classmates initiated an award in his name that is given each year to a graduating student who best exemplifies Patrick's extraordinary qualities.
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For 44 years I served my country both on active duty in the Army and later as a civilian in the United States Army infantry school. Until 1994, I looked upon the country I was serving with immeasurable pride. However, due to the egregious conduct of the Defense Department in the wake of Patrick's death, and the mental, emotional, and psychological effect it had on me, I could no longer serve my country effectively and I retired. This mental, emotional, and psychological stress has not diminished over the past four years. There are those who say that time heals all wounds. But as of today, the wounds my wife, my children, and I feel are still as fresh and hurtful as they were on April 14, 1994.
Now I am here before you seeking equitable treatment for my wife, for myself, and for the other survivors of loved ones who sacrificed their lives for this country in northern Iraq. Everyone admits that this tragedy was preventable and, in fact, should never have happened. The number and degree of human and technical errors which resulted in these needless deaths were described by the Chairman of the Joint Chiefs of Staff, John Shalikashvili, as ''shocking.'' The electronic identification system, which should have alerted the F–15's that the Black Hawks were friendly helicopters inexplicably failed. The crew of the Advance Warning and Control System plane, which had responsibility for monitoring the area of the encounter, knew of the presence of the Black Hawks in the vicinity of the F–15's and yet failed to inform the F–15 pilots that they might be encountering friendly aircraft. Finally, the F–15 pilots made a pass over the Black Hawks in an attempt to visually identify the helicopters. However, the distance between the F–15's and the Black Hawks and the speed at which the F–15's were travelling made an accurate identification virtually impossible. In November of 1997, an investigative report issued by the General Accounting Office found 130 separate mistakes which led to the deaths of my son and 25 others.
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On July 14, 1994, three months after our family members were killed, the Secretary of Defense, William Perry, held a press conference to discuss the ongoing investigation into the causes of the friendly fire incident. The first question asked concerned compensation for the victims of the incident given its unique and preventable nature. Secretary Perry responded that very rigid and precise legal restrictions limited the Defense Department's ability to compensate the victims.
Adding insult to injury, what Secretary Perry failed to say was that the Defense Department would apply these rigid guidelines only when compensating the families of the American victims. It is this gross inequity in the treatment—based on the meaningless distinction of nationality—which we seek your aid in correcting.
The American government has, in exceptional circumstances, compensated the families of victims harmed or killed in combat or quasi-combat situations. Allowing just compensation to the families of the Black Hawk victims would in no way be an adverse precedent or an unusual payment. Two years ago, the United States government paid $300,000 as a humanitarian gesture to each of the families of four Cuban-American civilians whose planes were shot down by the Castro regime. This payment, from frozen Cuban funds, was authorized by Congress due to the flagrant nature of the attack which cried out for redress. The United States can hardly do less than it compelled the Cuban government to do.
Likewise, Congress authorized the Secretary of Defense to make payment to those persons captured and incarcerated by the Democratic Republic of Vietnam during the Vietnam War. Here, Congress recognized that the particularly harsh conditions to which many prisoners of war in Vietnam were subjected deserved compensation above and beyond that provided by existing statutes and regulations.
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No one disputes the exceptional circumstances surrounding the Black Hawk shootdown—circumstances which would arguably allow compensation beyond the statutory requirements regardless of the ex gratia foreign national payments. However, these ex gratia payments present an even more compelling justification for payment in this case—namely, the equitable treatment by the United States government of its own citizens. The Defense Department claims that equitable treatment in this situation would set a bad precedent. This argument ignores the narrow scope of these bills. The private relief bill introduced by Mac Collins will not open the floodgates for others claiming that they too are entitled to relief. The Black Hawk incident was, to use the Defense Department's own words, a unique and exceptional event. The precedent established by the passage of this bill will simply be the fact that Congress will not allow the Defense Department to treat American citizens in an inequitable manner. If this is precedent then it is good precedent.
Congress recognized this inequitable treatment in the House Appropriations Committee report on the Fiscal Year 1996 Defense Appropriations Act. The Committee was worried that the treatment afforded the American families was inferior to that given to the foreign nationals. The report stated, and I quote, ''the Committee is concerned that current Department of Defense policy in these cases gives preferential treatment to foreign over U.S. victims.'' In its response, the Defense Department did not address the Committee's concerns. Rather, the Department simply summarized the current benefits and refused to directly address the issue of inequitable payments to foreigners over American service personnel.
Patrick's death has created a lasting ripple of grief and sorrow in our lives. This feeling of loss is compounded by the refusal of the Defense Department to treat our loss with the same humanitarian concern displayed for the families of the foreign nationals.
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Our request for your support is not about money, it is about equity. Thomas Jefferson wrote that, ''the foundation on which all our constitutions are built is the natural equality of man.'' This equality extends not only between citizens of the United States but also among our citizens in relation to those from other countries. If the Defense Department had not seen fit to place a value on human lives by allowing unequal compensation, we would not be here today. However, the military chose this course of action and we come to you seeking equality for our loved ones on board the Black Hawks. You have the power to secure equal treatment for our loved ones and to show us that our government does care. Please help us.
Mr. SMITH. Mrs. Bergmann.
STATEMENT OF GEORGIA BERGMANN
Mrs. BERGMANN. Chairman Smith and distinguished subcommittee members, thank you for allowing me to testify on these important bills. I also wish to thank my Congressman, David Skaggs, for his support in this matter over the past 4 years.
My name is Georgia Bergmann. I am the mother of Specialist Mark Anthony Ellner. At home we called him Tony.
Tony had a difficult childhood. His father is an alcoholic. Late one night while my ex-husband was out drinking, the kids and I fled the house. We spent 30 days in a battered woman's shelter. While I was in the safe house, I filed for divorce. My ex-husband did not provide the court-ordered financial support, and I raised my three children on my own. Money was always tight, and at one point I had to take a second job in order to have enough money to buy groceries.
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I agree with the experts when they discuss how hard it is for children to grow up in a single-parent household, especially with the problems we faced. However, Tony overcame these early adversities to becomes an exceptional individual. He was well-mannered, obedient, courteous, respectful, and overgenerous. He loved photography, writing, music, and art. He ran cross country and track. He helped our elderly neighbors mow their lawns and paint their houses, and he would sit and listen to their stories over and over again, because he was too polite to tell them he had already heard it. He was a son anyone could be proud to call their own. Was he perfect? Far from it. But my parents, his sisters and I loved him as though he were. I am honored to have the privilege of being his mom.
Tony was sworn into the Army on April 21, 1993, and left his home in Colorado for basic training at Fort Jackson, South Carolina. He reported for his first assignment in Germany in October 1993. In January 1994 Tony was promoted to E3 and was sent to Turkey for his first 2-month tour of duty as a member of the Black Hawk helicopter flight crew.
He was scheduled to return to Germany in the middle of March; however, he volunteered for a second consecutive tour. He was serving that second tour when Lieutenant Colonel Randy May destroyed his helicopter with a heat-seeking missile. My son was in the Army 11 months and 3 weeks when he was killed, just 1 week shy of his first service anniversary date.
After the fratricide I wrote to the pathology department for Tony's autopsy report. It sat for several weeks unopened on my desk. One night I finally opened it and read the words describing my son. Amputation, four-inch laceration to the heart, lacerations to the liver and spleen, fourth degree burns covering 100 percent of his body. I called my mother in hysterics. She tried to comfort me and said that was just his body, he was already gone.
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Mr. SMITH. Mrs. Bergmann, you are doing great.
Mrs. BERGMANN. I nurtured and protected him with my own body, carrying him close to my heart for 9 months. I said to my mother, yes, but I delivered, I gave birth to that body. I explain to people that Tony's death has left a hole in the fabric of my life that is 6 feet tall and weighs 150 pounds. It is a hole that cannot be covered up or sewn shut.
As parents, we pour everything we are and have into our children, passing on values and benefits of life's lessons we learn, both bad and good, and we always encourage them in hopes that they will realize their dreams for the future. You sit by their beds when they are ill, and you pace the floor when they learn how to drive and it is getting late at night, and you pray for their safe return. You do your best to teach them the importance of responsibility, and that trust and faith are hard to earn and easy to lose.
Our loved ones placed their trust and faith in their government, and they died serving their country. That trust has been forsaken by the military, which values their lives below those of others. With the exception of testimony from Kaye Mounsey and Cleon Bass at the preliminary congressional hearing in 1995, we have not had the opportunity to testify about how the loss of our loved ones have impacted our lives.
I would like to take a moment to mention just a few of the other Black Hawk families.
Today is June 18. It would have been Kaye and Erik Mounsey's 10th wedding anniversary. Erik Mounsey was the second child lost by his parents. Their first son was killed at the age of 4 by a drunk driver.
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In a conversation with Joan Piper, she told me once that she couldn't look out on a clear, starry night without thinking about the recovery team in Iraq trying to gather the remains of our loved ones.
Maureen McKenna has told me when she looks up at the sky, she always thinks of Patrick. They live near Fort Benning Georgia, and Black Hawk helicopters fly over their houses every day.
Connie Bass's birthday is May 30, Memorial Day. Her son Anthony's birthday falls on the 25th, and like this year, it fell on the observed holiday.
Tangela and Michael Robinson were newlyweds, as were Melissa and Paul Barclay.
Two years after John Garrett, Junior, was killed in Iraq, his father John, Senior, was killed by a heart attack.
John Garrett, Jr., Paul Barclay, and Tony Ellner were the only sons of their respective families. Barbara Schell and Laura Piper were the only daughters.
In the fall Jeff Colbert and his stepmother, Cindy, used to wrap themselves in blankets on the deck of his father's house and talk for hours and watch the sunset. Now in the autumn Cindy sits and watches the sunset alone and cries. The Colberts say the light of their lives went out when Jeff died.
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Two weeks after the anniversary date of the shootdown, Laura Colbert watched as her youngest child Beth was airlifted by a helicopter to Baltimore after being diagnosed with acute leukemia. Her military benefits had just changed from active duty to retiree status. Just the first 3 weeks of critical hospital care costs $98,000, and then by the time they were able to come home the hospital bills were close to $200,000.
At this point I would like to give a special thank you to Congressmen Bartlett and Buyer for their support.
After the shootdown the Defense Department refused to award our loved ones the Purple Heart. It was only by public outcry and the efforts of every one of our Congressmen that the Defense Department was forced to honor Tony and the other Americans with this much-deserved medal.
Now we struggle with the inequitable treatment of the Americans in this incident. We have asked the Defense Department about the ex gratia payments. We have been told, ''Due to the exceptional circumstances of this accident, the Secretary of Defense determined that this payment was appropriate to convey the United States' regret over this unfortunate loss of life. In addition, this humanitarian gesture is important in enabling the United States to retain the trust, good will, and support of our allies.''
I ask you, then, how much does the Defense Department regret the loss of life of those who volunteered to serve their country? What can possibly be more important to our government than the trust, good will, and support of its own citizens? The ex gratia payments to the families of foreign nationals send a clear message that the Defense Department values the lives of the foreign nationals more than its own soldiers.
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This incident has shaken my belief in our military. I have lost faith in the system. Since the shootdown, when I talk to people whose children are considering joining the military, my response is unwavering. I tell them, do not let your child become a part of an establishment which does not treat its service personnel with the same honor and integrity that it expects them to possess.
Your support of this legislation will send a clear message to us and to the Americans who volunteer to serve their country that their government values its own. Thank you.
Mr. SMITH. Thank you, Mrs. Bergmann.
[The prepared statement of Mrs. Bergmann follows:]
PREPARED STATEMENT OF GEORGIA BERGMANN
Chairman Smith and distinguished subcommittee members, my name is Georgia Bergmann. Thank you for allowing me to testify on these important bills. I would especially like to thank my Representative, David Skaggs, for the support he has given us in our search for justice.
I would like to tell you about my son, Specialist Mark Anthony Ellner. At home we called him Tony. Tony had a difficult childhood. His father is an alcoholic. Late one night, while my ex-husband was out drinking, the children and I fled the house. Tony, his two sisters and I lived in a battered women's shelter for 30 days. While I was in the safe-house, I filed for divorce. My ex-husband did not provide the court-ordered financial support and I raised my three children on my own. Money was always tight and at one point I had to take a second job in order to have enough money to buy groceries. I agree with the experts when they discuss how hard it is for children to grow up in a single-parent household—especially with the problems we faced. However, Tony overcame these early adversities to become an exceptional individual. He was well-mannered, obedient, courteous, respectful and over generous. He was a son anyone could be proud to call their own. Was he perfect? Far from it—but my parents, his sisters and I loved him as though he were. I'm honored to have the privilege of being his mom.
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Tony loved photography, writing, music and art. He ran cross-country and track. He helped our elderly neighbors mow their laws and paint their houses. He would sit and listen to their stories being too polite to tell them he had already heard it before.
In his senior year, Tony was president of the National Honor Society chapter at his high school. He graduated with over a 4.0 grade point average.
Tony was sworn into the Army on April 21, 1993. I remember that day because he had a head cold.
About two weeks into basic training, Tony called me. He was crying. He said that he didn't think he could take any more yelling. I told him not to take the yelling personally but to listen carefully and do what he was told. He would make it and the rest of the recruits would need his strength later. I hung up the phone after the ten minute time limit and tearfully called my mom. She talked me through my tears like I had just done for my son. I was so proud of Tony and knew he could conquer this obstacle as he had worked through adversity in the past.
On Tony's 21st birthday, he graduated from basic training as Soldier of Cycle and was promoted to E2. He went from St. Jackson, South Carolina to Ft. Eustis, Virginia for his advanced individual training as a Black Hawk helicopter mechanic. One week before his advanced training graduation, Tony called me from the base hospital. His head cold had turned into pneumonia. He was admitted to the hospital for four days but was released in time to receive the Distinguished Graduate honor for finishing at the top of his class.
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Tony returned home for ten days before leaving for his first assignment in Germany. That was the last time I saw my son alive.
In Germany, Tony discovered that there was a helicopter flight crew opening available. Since it was his ambition to become a pilot, he applied for the job and spent every free moment upgrading his rifle marksmanship to expert and studying for his appearance before the board. Later, I was told that there were men from eight different units applying for one position. However, the board selected Tony and in December, 1993 he passed his flight physical.
In January, 1994, Tony was promoted to E3 and was sent to Turkey for his first two month tour of duty. He was scheduled to return to Germany in the middle of March; however, he volunteered for a second consecutive tour. He was serving that second tour when Lieutenant Colonel Randy May destroyed his helicopter with a heat-seeking missile. My son was in the Army 11 months and 3 weeks when he was killed—just one week shy of his first service anniversary date.
After the fratricide, I wrote to the pathology department for Tony's autopsy report. It sat for several weeks unopened. One night I finally opened it and read the words describing my son: '' . . . amputation, 4 inch laceration to the heart, lacerations to the liver and spleen, 4th degree burns covering 100 percent of his body . . . '' I called my mom in hysterics. She tried to comfort me by telling me it was only his body, that he was already gone. I nurtured, protected him with my own body—close to my heart for nine months. ''Yes,'' I said, ''but I gave birth to that body.''
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My mom hugged me one time and with tears in her eyes she said to me, ''I've lost my first grandchild, but what hurts me most is seeing the pain you're in and knowing there is nothing I can do to make it better.''
I explain to people that Tony's death has left a hole in the fabric of my life that is six feet tall and weights 150 pounds. It's a hole that cannot be patched over or sewn shut. As parents, we pour everything we are and have into our children—passing on values and benefits of life lessons learned, both good and bad—always encouraging them in hopes they will realize their dreams for the future. You sit by their beds when they're ill. When they learn to drive, you pace the floor and pray for their safe return when the night is getting late. You do your best to teach them the importance of responsibility and that trust and faith are hard to earn and easy to lose. Our loved ones placed their trust and faith in their government and they died serving their country. That trust has been forsaken by the military which values their lives below those of others.
Shortly after the shootdown, I started searching for a bereavement group that could help me understand and cope with my loss. I quickly learned there were few people who could relate to the complexities and frustrations of such a widely publicized, international incident. So, I turned to the Black Hawk families for mutual support.
With the exception of testimony from Kaye Mounsey and Cleon Bass at the preliminary Congressional hearing in 1995, we have not had the opportunity to testify about how the loss of our loved ones have impacted our lives. I would like to take a moment to mentioned just a few of the other Black Hawk families.
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Today, June 18, would have been Kaye and Erik Mounsey's 10th wedding anniversary. Erik Mounsey was the second child lost by his parents, Ray and Sarah. Their first son was killed at the age of four by a drunk driver.
In a conversation with Joan Piper, she told me once that she couldn't look out on a clear starry night without thinking about the recovery team in Iraq trying to gather the remains of our loved ones.
Maureen McKenna has told me she can't look up at the sky without thinking of Patrick. They live near Ft. Benning, Georgia. Black Hawk helicopters fly over their house every day.
Connie Bass's birthday is May 30th—Memorial Day. Her son, Anthony's birthday is on the 25th of May and, like this year , it sometimes falls on the observed holiday.
Tangela and Michael Robinson were newlyweds, as were Melissa and Paul Barclay.
Two years after John Garrett Jr. was killed in Iraq, his father John Sr., died of a heart attack.
John Garrett Jr., Paul Barclay, Jeff Colbert, and Tony Ellner were the only sons of their respective families. Barbara Schell and Laura Piper were the only daughters.
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In the fall, Jeff Colbert and his step-mother, Cindy, used to wrap themselves in blankets and sit on that back deck of his father's house watching the sun set and talking for hours. Now in the autumn, Cindy sits and watches the sunset alone and cries. The Colberts say that the light went out of the lives when Jeff died.
Two weeks after the first anniversary date of the shootdown, Laura Colbert watched as her youngest child, Beth, was airlifted by helicopter to Boston, after being diagnosed with acute leukemia. Her military benefits had just changed from active duty to retiree status. I would like to take this opportunity now to give a special thank you to Congressmen Bartlett and Buyer for their support and assistance to Laura Colbert. The first three weeks alone of critical hospital care cost $98,000. By the time Beth was able to return come, the bills amounted to almost $200,000.
I take solace in the fact that my son was where he wanted to be and doing what he wanted to do. Not many of us ever realize that level of satisfaction in the work we find ourselves performing. But, these feelings are outweighed by the treatment which we have received at the hands of the Defense Department following the shootdown. First the Department refused to award our loved ones the Purple Heart. It was only a public outcry and the efforts of every one of our representatives in Congress which forced the Defense Department to honor Tony and the other Americans with this much deserved medal. Now we struggle with the inequitable treatment of the Americans in this incident.
When we have asked the Defense Department about the ex gratia payments we've been told, and I quote, ''Due to the exceptional circumstances of this accident, the Secretary of Defense determined that this payment was appropriate to convey the United States' regret over this unfortunate loss of life. In addition, this humanitarian gesture is important in enabling the United States to retain the trust, goodwill and support of our allies.'' I ask you then, how much does the Defense Department regret the loss of life of those who volunteered to serve their country? What can possibly be more important to our government than the trust, goodwill and support of its own citizens?
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The ex gratia payments to the families of foreign nationals send a clear message that the Defense Department values the lives of the foreign national more than its own soldiers. This incident has shaken by belief in our military . . . I have lost faith in the system. Since the shootdown, when I speak to people whose children are considering joining the military, my response in unequivocal. I tell them, ''Do not let your child become a part of an establishment which does not treat its service personnel with the same honor and integrity that it expects them to possess.'' Without public faith, a system which relies entirely on volunteers cannot survive.
In a letter following the tragedy, then Secretary of the Joint Chiefs of Staff, John Shalikashvili wrote: ''The loss of these men and women touches the very fabric of our institution, whose code and passion is to take care of each other and protect one another from danger.'' The words sound good, but the actions taken by the Defense Department tells me this simply is not true. For it is impossible to reconcile this statement with the fact that our military has shown more concern with preserving foreign relations than the loss of its own soldiers.
It was John F. Kennedy who said the ''the basis of effective government is public confidence.'' I have lost faith and confidence in our military due to the inequitable treatment we have received at their hands. Faith lost is not easily restored. This tragedy cannot be made right. However, your support of these bills will begin restoring my belief that my government is capable of treating its citizens with the same good faith and integrity which it expects of them. Thank you.
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Mr. SMITH. Let me just comment and state the obvious. I don't think there are any parents anywhere who could have given the statements that you have and given those statements so well. You cannot help but be touched and moved by what you said today and what we heard today. As I say, they were just excellent. They were thoughtful. They were informative. They were heartfelt. They were sincere. We all appreciate your statements, your presence, and the efforts you made.
In every one of your statements you used words like ''inequitable, unfair, unequal.'' I think that probably best describes how you feel about the treatment that you have received. It is up to us as Members of Congress and as your Representatives to see if we can't bring some equity and some fairness and some equal treatment to the situation at hand. I know all of us are committed to doing just that.
In addition to that, let me say to you all that we will try to get some of the answers to the questions that we have asked and to which we have not received answers, in case that can be of help to you.
Quite frankly, the question that I asked Capt. Bloxom a few minutes ago, as to whether or not the Secretary of Defense could take it upon himself to initiate equal payments immediately without having to wait who knows how long, for legislation to pass, is a question that I am going to stay here until we get an answer to—even after the hearing is over. So I hope that that answer will be forthcoming. I hope it will be an answer that will give you all some hope, as well.
But I really don't have any questions that you have not answered. I just wanted to thank you from my heart for your testimony.
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Mrs. BERGMANN. Thank you.
Mr. SMITH. Mr. Watt.
Mr. WATT. Thank you, Mr. Chairman. I want to thank these three witnesses for having the courage and composure. Despite the fact that each one of you paused during your statements, you displayed incredible courage and composure in being able to get through these statements, which I know had to be very emotional.
As I indicated to Mr. Remy on the prior panel, I didn't come to this with the benefit of a constituent, and I, until today, had never met any of the families who were directly involved in this. My involvement with this until today was strictly as a policy matter, and I can only say to you that you have brought to that policy perspective the desire to have a consistent policy—a fair and just policy in place. Having a personal perspective to it only strengthens the resolve that I will have to try to push this bill forward and try to get to an equitable result. I hope that we are able to do that.
I was struck by one line in Mrs. Bergmann's statement that I hope that I can respond to. That was her statement that ''this incident has shaken my belief in our military. I have lost faith in the system.'' I hope you won't do that. The military is following what it understands to be the law, and I am not sure that I don't agree with them, that that is the current law. I mean, the Court has spoken on that issue.
But the system is more than the military. It is Congressman Smith and Congressman Mac Collins, and John Conyers, and my wonderful, dear friend that I am going to miss so much at the end of this term that all of us just think is the Congressman's Congressman, and that is David Skaggs, your Congressperson.
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The system is trying to respond, and I hope you all will not give up on the system. Do not give up on the system. We are trying to make the system responsive and workable to address what is an apparent inequity. So I hope that all of you will retain your confidence and faith in our system. I hope our system can justify that confidence at the end of the day.
Thank you, Mr. Chairman.
Mr. SMITH. Thank you, Mr. Watt.
Mr. Jenkins.
Mr. JENKINS. Thank you, Mr. Chairman. I don't have any questions of any of these witnesses. I want them to know that we can never fully understand how they feel, but as a parent, as I pointed out, who had a son in the Marine Corps, part of Operation Comfort, I can fully understand that there are many others who could have been on your side of the table here today.
We certainly appreciate you coming here, and I know this has been difficult for all of you, but you have provided this committee with information that is needed. Hopefully this will result in equity being done, ultimately. There are going to be, I am sure, a lot of questions asked before this reaches the end of the road, but you have provided us with what we need to know to begin this process. I am certainly thankful.
Mr. SMITH. Thank you, Mr. Jenkins.
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We thank you all again for being here. I encourage you to wait just a minute, because Captain Bloxom has come back into the room, and perhaps he will have an answer to that question as well. Thank you all again for being with us.
Ms. BASS. Thank you.
Mrs. BERGMANN. Thank you.
Colonel MCKENNA. Thank you, sir.
Mr. SMITH. Captain Bloxom, would you like to come forward? I appreciate your making an effort. I have to say and admit it is a response to a very unusual request on my part. I just appreciate your cooperation.
Captain BLOXOM. Mr. Chairman, it is a complex legal issue regarding the Secretary's discretionary authority to make these payments. I have talked to the Deputy General Counsel within DOD and I do not have an answer for you at this time. We promise that we will get you one as fast as we possibly can, understanding your need for it, sir.
Mr. SMITH. Maybe I thanked you too soon. I didn't see this as a complex legal issue myself. I thought it was very clear. There were just two or three words that needed to be interpreted. It seemed to me that the interpretation is fairly clear. But I appreciate your returning, and I do look forward to a speedy answer to my question.
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Capt. BLOXOM. Yes, sir.
[The information referred to follows:]
| Department of Defense, |
| Washington, DC, August 4, 1998. |
Hon. LAMAR S. SMITH, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR MR. CHAIRMAN: On June 18, 1998, your Subcommittee held a hearing on H.R 2986 and H.R. 3022. The first bill would authorize the payment of $100,000 to the next of kin of U.S. personnel killed on the Black Hawk helicopters shot down in Iraq in 1994. The second bill would authorize the settlement and payment of claims against the United States for the injury or death of U.S. service members or civilian employees of the Department of Defense (DoD) arising from incidents in which claims are settled for death or injury of foreign nationals. During the course of the hearing on these bills, an issue arose regarding the authority of the Secretary of Defense to make ex gratia payments to the survivors of the U.S. personnel killed in the Black Hawk tragedy, in light of the fact that payments were made to the families of the foreign military officers and the Kurdish guards who were killed. You asked that the Department provide the Subcommittee with its views on that issue.
Section 127 of title 10, United States Code, authorizes the Secretary of Defense, as well as the Secretaries of the Military Departments and the DoD Inspector General, within the limitations of appropriations made for the purpose, to provide for emergency or extraordinary expenses which cannot be anticipated and for extraordinary classified activities. That section also provides that, when it is so provided in such an appropriation, the funds may be spent on the authority of the Secretary concerned or the DoD Inspector General for any purpose he or she determines to be proper, and that such a determination is final and conclusive upon the accounting officers of the United States.
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Consistent with 10 U.S.C. 127, the DoD Appropriations Act makes specified amounts available for emergency and extraordinary expenses, to be expended on the approval or authority of the cognizant Secretary or the DoD Inspector General. A report on the expenditure of all emergency and extraordinary expense funds is submitted to the Congress on a quarterly basis in accordance with 10 U.S.C. 127(d).
While the authority granted to the Secretary under 10 U.S.C. 127 is broad, there are some important limitations that have historically been applied to the use of this authority. Because the authorizing language provides that the funds are to be used for emergency and extraordinary expenses ''which cannot be anticipated or classified,'' we have consistently taken the position that such funds are not available to cover expenses that may properly be paid from other appropriations available to the Department. Additionally, we have consistently held that this authority may not be used for the purpose of avoiding specific statutory prohibitions on the use of appropriated funds.
Thus, while the kinds of ex gratia payments at issue here would arguably be permissible under the broad authority provided by 10 U.S.C. 127, we believe there are compelling reasons against making such payments. To do so would result in payments exceeding the amounts statutorily prescribed by Congress to be paid to survivors of U.S. personnel killed in government service. This would be at odds with the rationale underlying the longstanding bar, embodied in the Supreme Court decision in Feres v. United States, 340 U.S. 135 (1950), against monetary recovery for death or injury of U.S. service members incident to service over and above the existing statutory compensation levels. We believe that making such payments in this case would directly violate the principle of uniform application of the law to all of our personnel. Indeed, it is because we are opposed to disparate treatment of U.S. personnel that we are opposed to the two bills which were the subject of your hearing.
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As Captain Bloxom testified in his written statement before your Subcommittee, injury to, or death of, a service member or civilian employee is always tragic. Particularly tragic are unexpected deaths caused by accidents or errors that sometimes occur during military service, whether the death occurs in routine training or during the course of a combat operation. However, our nation provides a comprehensive system of benefits to the surviving dependents of our military and civilian personnel who are killed in government service. We believe that, if Congress determines that the current system is inadequate or otherwise inequitable, those deficiencies should be addressed by statutorily revising benefits for all our personnel, without regard to where or how they may be killed or injured. For all of the above reasons, we believe it would be inappropriate to make ex gratia payments to the survivors of the U.S. personnel killed in the Black Hawk tragedy which would be different from the kinds of payments made to the survivors of other service members killed in the line of duty.
Sincerely,
| John J. Hamre, Deputy Secretary of Defense. |
Mr. SMITH. Thank you all for being here.
If there are no more comments by the Members, we stand adjourned, and once again, special thanks to all the panelists who have appeared before us.
Before we adjourn, Mr. Watt is recognized.
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Mr. WATT. I ask unanimous consent to leave the record open for some reasonable period of time to allow others to insert statements in the record. I heard Mr. McKenna request to put a legal opinion, when that comes, in the record. I would ask unanimous consent for that.
Mr. SMITH. Without objection, we will leave the record open. We will certainly include Colonel McKenna's request and any additional materials as well in the record. The record will stay open for a couple of days for those purposes.
[The information referred to follows:]
| 105th Congress of the United States, |
| Committee on the Judiciary, |
| House of Representatives, |
| Washington, DC, September 16, 1998. |
Hon. WILLIAM S. COHEN, Secretary,
Department of Defense,
The Pentagon, Washington, DC.
DEAR SECRETARY COHEN: On June 18, 1998, the Subcommittee on Immigration and Claims held a hearing on H.R. 2986 and H.R 3022. These two bills address the S100,000 payment made to foreign nationals families, but not American families, after the friendly fire incident when two Black Hawk helicopters were shot down in Iraq in 1994.
During that hearing, the Subcommittee asked the Department of Defense witness why the American families could not be paid as well under the wide discretionary authority provided to the Secretary of Defense in 10 U.S.C. 127. When the witness indicated he was not prepared to answer that question without consulting your General Counsel, he was asked to do so and return with an answer before the conclusion of the hearing. At the conclusion of the hearing, he did return, indicated he still did not have answer to the question, but would be providing one to the Subcommittee as quickly as possible. That response was finally received over a month and a half later.
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The Subcommittee is compelled to report its extreme displeasure at the manner in which the Department has dealt with the Congress on this issue. The responsiveness of the Department can only be described as unacceptable. Due to the continual stalling tactics employed by the Department in responding to what was a simple request for a Department interpretation of a statute, the Subcommittee can only interpret the Department's actions to be based on a lack of good faith in working with the Congress.
These type of tactics are inappropriate to good Government and hinder the ability of the Congress to respond to the concerns of the American people. In the future, we will expect the Department of Defense to honor the promises made by Department personnel testifying before Congress.
Furthermore, the Department's response does not answer the direct question posed. Rather than providing a statutory bar to payment under Section 127 of Title 10, the Department's response discusses ''limitations that have historically been applied'' and ''compelling reasons against making such payments''. It would appear to the Subcommittee that historical applications and the compelling reasons were compromised when the Department chose to make ex gratia payments to the families of foreign nationals killed in the same incident with Americans. By doing so, the Department has placed the Government in the position of appearing to value foreign nationals lives more than American lives.
The Subcommittee will be addressing this situation in the near future. It is clear that some remedy must be affected to rectify the inequities created by the actions taken by the Department in this incident.
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Sincerely,
| Lamar Smith, Chairman, |
| Subcommittee on Immigration and Claims. |
| John Gallup Laylin, Jr., |
| France, June 13, 1998. |
Hon. LAMAR SMITH, Chairman,
Subcommittee on Immigration and Claims,
Committee on the Judiciary,
House of Representatives, Washington, DC.
DEAR CONGRESSMAN SMITH: This is to thank you and the other members of the House Judiciary Committee for scheduling a hearing on H.R. 2986–3022 before the Subcommittee on Immigration and Claims on Thursday June 18. Living abroad, I shall not be able to attend; but I did wish to add to the oral testimony to be presented at this hearing by Ms. Cornelia Bass, Mr. Robert MacKenna and Ms. Georgia Bergmann.
My wife, Barbara Lynn Schell, a veteran Foreign Service Officer, was killed in the 'shootdown' of the two Blackhawk helicopters over northern Iraq on 14 April 1994. She was serving as the political advisor (POLAD) to GEN Pilkington USAF, commander of the allied effort to protect the Kurdish population in that country. Barbara was a civilian federal employee and, for purposes of this letter, she was entitled to FECA compensation but not to the subsidized SIGLI insurance available to members of the American military.
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As stated by others, this was an extra-ordinary accident that was 'completely avoidable' (GEN Shalikashvili), 'involving over 130 different individual errors' (1997 GAO Report) and the breakdown of the area system of command and control. This much was admitted at the time. Then Secretary of Defense William Perry also called it an extra-ordinary event and followed it up by an extra-ordinary measure; the awarding of 'ex gratia' compensation to the families of the foreigners killed in this accident from public funds.
The surviving family members continue to be troubled by still unexplained causes of this accident, and failure by the USAF to mete out appropriate punishment for what amounts to negligent homicide, and, for purposes of the June 18th hearing, an honest explanation by the legal department of the Department of Defense (DoD Legal) of why, in the matter of compensation, foreign military and civilian personnel killed in the above mentioned accident, should be favored over the American casualties. Several of us have written to Secretary Perry regarding his failure to give the American family members equal consideration, or at least an honest explanation of why the American family members were not equally favored. In each instance that I am aware of these letters were responded by blandishments from DoD Legal and disingenuous references to a host of benefits available to the surviving American families—with the implication that same was not available to the families of the foreigners killed.
These allegations by DoD Legal are false and at a minimum misleading, as anybody who has examined the US FECA benefits and the compensation packages available to the foreign military can attest. Those surviving American families that need the benefits most, the young service wives, receive the least and lose even that if they re-marry before the age of 55. The family of 2nd LT Laurie Piper who unexplicably did not sign up for the SIGLI insurance benefits was compensated for the cost of burial—no more!
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A year ago, amidst our efforts to seek backing from the US Senate for equal compensation, it was 'discovered' that neither the Secretary of Defense nor the Department of Defense have the statutory authority to award compensation to the surviving families of American military above or beyond the FECA benefits. Thus H.R. 2986–3022, which would rectify this situation should, in the future, the Department of Defense feel it must offer settlement to the families of foreign nationals.
I am told that DoD Legal is adamant against the proposed legislation which they say would be setting an expensive precedent. I would point out that it was DoD itself that set the precedent of settling with foreigners whilst withholding compensation to American nationals. This is a problem of their own making lacking even an honest explanation to the American families as to why their hands are tied. Needless to say, unequal compensation from US taxpayers contributions that discriminates against American nationals, the loss of tort remedies under the Feres Doctrine and the determination of DoD Legal to protect potential damaging testimony from members of the military are all relics of the Cold War mind set. We now live in an age where mixed military and civilians of many nationalities serve in NATO and UN operations around the world. Surely the families of any casualties should be able to expect fair and equal treatment.
Thank you, Congressman, for your assistance.
Sincerely,
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Mr. SMITH. I thank everyone again for their participation and for their interest.
[Whereupon, at 11:24 a.m., the subcommittee was adjourned.]
(Footnote 1 return)
See Operation Provide Comfort: Review of U.S. Air Force Investigation of Black Hawk Fratricide Incident (GAO/OSI–98–4, Nov. 5, 1997).
(Footnote 2 return)
A primary purpose of an Aircraft Accident Investigation Board, in accordance with Air Force Regulation 110–14 (since replaced by Air Force Instruction 51–503), is to gather and preserve evidence for claims, litigations, and disciplinary and administrative needs.
(Footnote 3 return)
Under a Safety Board Investigation, a promise of confidentiality is given to all witnesses; and privileged information is protected from disclosure outside the Air Force Safety Board Investigation community. Therefore, restrictions are placed on the dissemination of the information obtained and the resulting report.
(Footnote 4 return)
UCMJ, 10 USC 801 et seq., governs the conduct of military personnel. It contains both substantive and procedural law applicable to the military justice process and administration. It also describes the system of military courts, defines offenses, authorizes punishment, and provides statutory due-process safeguards.
(Footnote 5 return)
Nonjudicial punishment under Article 15 is generally appropriate when administrative corrective actions are inadequate and a trial by court-martial is not necessary.
(Footnote 6 return)
The Airspace Control Order provided rules and procedures for all aircrews.
(Footnote 7 return)
The Airborne Command Element on board the AWACS acted as the eyes and ears of the Combined Forces Air Component Director of Operations and operated in a reactive mode.
(Footnote 8 return)
The TAOR was the air space north of 36 degrees north latitude in Iraq from which Iraqi aircraft were prohibited.
(Footnote 9 return)
The Combined Task Force flying operations for all aircraft were scheduled on a daily Air Tasking Order, which listed information pertinent to each day's flight operations, or ''mission package,'' such as flying times. In the case of the Black Hawk helicopters, the notation ''as required'' was included rather than specific flying times due to the uncertainty of their schedules.