If This Is What We Are Doing To Our Own Soldiers, I Have ?'s

Baker said he had put on the jumpsuit and squeezed under a prison bunk after being told by a lieutenant that he would be portraying an unruly detainee. He said he was assured that MPs conducting the "extraction drill" knew it was a training exercise and that Baker was an American soldier.

Pummeled MP sues Pentagon. Soldier was impersonating unruly Guantanamo detainee in training
David Zucchino, Los Angeles Times

Saturday, June 18, 2005


A U.S. military policeman who was beaten by fellow MPs during a botched training drill at the Guantanamo Bay, Cuba, prison for detainees has sued the Pentagon for $15 million, alleging that the incident violated his constitutional rights. . . .

The initial inquiry is whether a constitutional right would have been violated on the facts alleged, for if no right would have been violated, there is no need for further inquiry into immunity. However, if a violation could be made out on a favorable view of the parties' submissions, the next, sequential step is whether the right was clearly established. This inquiry must be undertaken in light of the case's specific context, not as a broad general proposition. The relevant, dispositive inquiry is whether it would be clear to a reasonable officer that the conduct was unlawful in the situation he confronted. . . . If the law did not put the officer on notice that his conduct would be clearly unlawful (unconstitutional), summary judgment based on qualified immunity is appropriate.

Georgetown (AP) A former Kentucky soldier injured in a military training exercise at Guantanamo Bay, Cuba, is suing to be reinstated into the Army.

The lawsuit, filed by Sean D. Baker in U.S. District Court in Lexington, also asks that he receive compensation for a traumatic brain injury, which has caused seizures.

...

Simpson has asked that Secretary of Defense Donald Rumsfeld and Secretary of the Army Francis J. Harbey, who are both named in the suit, expedite a criminal investigation to determine culpability for those responsible for the January 24, 2003, beating.

"He really identified with being a soldier, it provided him a lot of self worth," Simpson said Friday. "That was stripped away from him. Sean Baker does not have a whole lot to look forward to." He said Baker is taking nine medications each day.

.......

Simpson acknowledged that the lawsuit by Baker faces a potential legal hurdle _ the Feres doctrine, which prohibits military personnel injured in the course of duty to sue the government.

But Simpson said with the right kind of facts and evidence, that could be overcome.

According to court documents, Simpson alleged that members of the 303rd Military Police Unit were not told that they were participating in a drill.

Lt. Shaw T. Locke convinced Baker to wear an orange jumpsuit for the drill, even though Baker said he was uncomfortable with that. The lawsuit said Locke told him "everything's going to be fine." Baker said the team stormed into the cell and twisted his legs and attempted to shackle him. His head was slammed to the floor and he was choked. The team stopped only after Baker shouted more than once, "I'm a U.S. soldier!" and a code word.

Baker, bleeding and vomiting, was taken to the Guantanamo Hospital, where he was visited by military officials who assured him that there would be a complete and thorough investigation, the lawsuit said.

The U.S. Army's Criminal Investigation Command launched an investigation into the matter last June. Simpson said that investigation was completed earlier this month and he was told it is currently under review by the Judge Advocate's office.
Information from: Lexington Herald-Leader

The "law of the place" provides the substantive rules to be used in deciding FTCA actions. 28 U.S.C. § 1346(b)(1). The phrase "law of the place" refers to the law of the state in which the allegedly tortious acts or omissions occurred. See Meyer, 510 U.S. at 478; Castro v. United States, 775 F.2d 399, 405 (1st Cir. 1985) (per curiam). Federal constitutional or statutory law cannot function as the source of FTCA liability. See Meyer, 510 U.S. at 478 (holding that "the United States simply has not rendered itself liable under § 1346(b) for constitutional tort claims"); Sea Air Shuttle Corp. v. United States, 112 F.3d 532, 536-37 (1st Cir. 1997) (explaining that there can be no FTCA jurisdiction where the challenged government conduct has no parallel in the private sector and the asserted liability arises from a federal statutory or regulatory obligation with no comparable common law principle under which private persons would be held liable); Zabala Clemente v. United States, 567 F.2d 1140, 1149 (1st Cir. 1978) (establishing that "even where specific behavior of federal employees is required by federal statute, liability to the beneficiaries of that statute may not be founded on the Federal Tort Claims Act if state law recognizes no comparable private liability"). It follows that the appellants cannot premise jurisdiction on the rule of Brady v. Maryland, 373 U.S. 83 (1963), (6) but, rather, must look to Wisconsin law and must identify in that body of jurisprudence a basis for holding a private person liable in tort for acts and omissions comparable to those committed (or, at least, allegedly committed) by Agent Craft. See Davric Me. Corp. v. U.S. Postal Serv., 238 F.3d 58, 64 (1st Cir. 2001).

Lt. Shaw T. Locke convinced Baker to wear an orange jumpsuit for the drill, even though Baker said he was uncomfortable with that. The lawsuit said Locke told him "everything's going to be fine." Baker said the team stormed into the cell and twisted his legs and attempted to shackle him. His head was slammed to the floor and he was choked. The team stopped only after Baker shouted more than once, "I'm a U.S. soldier!" and a code word.