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VA policy constitutes “cruel and unusual” punishment of Vietnam combat veterans

In 1981, many veterans were subject to physical and economic restraints which precluded their leaving Veterans Administration facilities and many more veterans, because of soaring medical costs, were, and still are, constrained by lack of finances from seeking competent medical care elsewhere. Protest of any mistreatment by the VA was futile because the Administrator the sole and ultimate arbiter and is liable to no one for his excesses.

VA lawyers tried to liken the claims of the Vietnam combat veterans to a case in which the Supreme Court dismissed the claim that paddling students from one to five times as a means of maintaining school discipline did not constitute cruel and unusual punishment because they had little need for the protection of the 8th Amendment because they were not physically restrained from leaving school; are rarely apart from teachers and other pupils who may witness and protest any instances of mistreatment; and even while at school is buoyed by the support of family and friends, and ultimately protected by safeguards reinforced by the legal constraints of the common law. However, that was hardly the case for the Vietnam combat veterans who returned to a society which for many years has responded to any reminder of the Vietnam conflict with an almost reflexive “turning away.”

Unlike the public schools, the Veterans Administration was not characterized by openness nor supervised by the community.

The Vietnam combat veterans as “prisoners” of the VA

The Supreme Court had already determined that deliberate indifference to the serious medical needs of prisoners constitutes the “unnecessary and wanton infliction of pain” proscribed by the 8th Amendment. Although the Vietnam combat veterans had not been incarcerated for committing a crime, they were just as dependent upon the VA for medical care and treatment as the convicted criminal was dependent upon the Department of Corrections. Like the prison inmates for which the Supreme Court showed so much concern, most Vietnam combat veterans were forced rely on the VA to meet their medical needs if they were to be met at all. Like the prison inmate, the Vietnam combat veterans may suffer “physical torture,” “lingering death,” or “pain and suffering” if their medical needs are not met by the Veterans Administration.

The Veterans Administration lawyers argued that what distinguishes the veteran from the convicted criminal and deprives the veteran of the right to humane treatment is that the veteran has comitted no crime other than answering his country’s call to arms which caused Chief Judge Feinberg of the United States Court of Appeals for the Second Circuit to observe that “it would certainly be anomalous for this court to hold, on the one hand, that the federal government’s interest in the treatment of its prisoners exceeds its interest in the treatment of its soldiers.”

Civil Rights Issues

One of the most important features of the VA litigation was Yannacone’s offer to prove through the testimony of Veterans Administration officials that Vietnam combat veterans were treated in a manner different from other veterans claiming compensation and benefits within the Veterans Administration system; that such treatment was invidiously discriminatory; and, to the extent that any mindless, soulless bureaucracy can be considered sentient, a malevolent “invidiously discriminatory animus” was present.

The lawyers for the VA argued that civil rights actions could be brought only to protect the rights of “negros” since that was the intent of Congress when the original Civil Rights Act was enacted. Yannacone argued that real issue before the Court was, “Why shouldn’t Vietnam combat veterans have the same rights today as negroes after the Civil War?” Rhetorically, he said the question was, “How much more injury can the Grand Dragon of the Ku Klux Klan do to the plaintiff Johnny Wood and his sons, Johnny, Jr. and Jeffrey [named plaintiffs in the Agent Orange litigation who happened to be black], than the VA Administrator, his attorney, and their minions have already done?”

What kind of action did the Vietnam combat veterans bring to Court?

The lives of some Vietnam combat veterans and the constitutional rights of all the Vietnam combat veterans were being callously disregarded by the Veterans Administration when they were denied “timely and complete” medical care for any disabilities that could reasonably be considered to be service related. A veterans’ right to such medical care was recognized by the Supreme Court and as basis for denying combat veterans the right to sue the United States injuries arising out of active military service. However, the Veterans Administration lawyers turned the cloak of immunity into a badge of shame.

Whether it was called a Fifth Amendment “due process” complaint or an Eighth Amendment “cruel and unusual punishment” claim, or a “Civil Rights” action, denying competent medical care to the Vietnam combat veterans suffering illness, disease, and disability attributable to service in Southeast Asia and now bound to the Veterans Administration system by physical disability or economic necessity was incompatible with the “evolving standards of decency that mark the progress of a maturing society.”

VA claims sovereign immunity against the Vietnam combat veterans

The United States Attorney, representing the Veterans Administration attempted to shroud the V A and its bureaucrats with the sovereign immunity that was once claimed only by Royalty, but Yannacone reminded the Court that the federal government continues to exist at all only because American families consent to offer up their young men as warriors to protect that government and they have done so, secure in their expectation that the Veterans Administration would continue to answer in a meaningful way Abraham Lincoln’s call in his Second Inaugural Address for a veterans’ administration “…to care for him who shall have borne the battle and for his widow and his orphan.”

Their expectation is not frivolous. It is based on a compact between the sovereign people of the United States and their federal government which was first recorded in 1636 when the Pilgrims at Plymouth followed the established precedent of their English homeland and enacted a law providing that “if any man shall be sent forth as a soldier and shall return maimed, he shall be maintained competently by the colony during his life.”

Yannacone contended that the federal government waived any immunity it might have had with regard to veterans’ claims when it contracted with the American people to draft their sons. “The United States Attorney cannot seriously contend that American parents would consent to offer up their sons as fodder for war on the understanding that one man in Washington—appointed, not elected—may unilaterally and arbitrarily refuse to consider the valid claims of their sons for the benefits they earned in jungles, swamps and paddies on the other side of the world.”

In their reluctant action against the Veterans Administration, the Vietnam combat veterans were not raising abstract questions as to the extent of a bureaucrat’s ability to define the limits of his own administrative powers. The Vietnam combat veterans were not seeking money damages for omission of some health care frill. The grievances of the Vietnam combat veterans were literally matters of life and death. Their lives and their deaths.