The Canadian poet Robert W. Service wrote in his The Cremation of Sam McGee, "A promise made is a debt unpaid." To that I would add: A debt unpaid is an ongoing moral obligation. All the more so when it is the government that breached a promise to its veterans.
From the early days of World War II and all through the Korean War, our government desperately needed men who were committed to military service. To get them, the services sent out the word to their worldwide recruiters: Offer a deal to every eligible civilian, and to every soldier, sailor, airman and marine: Serve 20 years honorably, and when you retire, the government will provide free lifetime medical care for you and your dependents Serve your country, and it will care for you and yours.
No fine print, no equivocations, no catches, no lawyer-like parsing of words.
Thousands upon thousands of American men accepted the government’s offer and performed their end of the bargain. One was William Schism, a 36-year veteran of World War II, Korea, and Vietnam. Another was Robert Reinlie (now 81 years old), a 25-year vet, who survived more than thirty bombing missions over Europe and later served in Korea and Vietnam. Today, Schism, Reinlie, and countless other veterans of World War II and Korea, are fighting another battle – not against the Axis Powers but, ironically, against their own government.
For years, the government lived up to its promise to our World War II and Korean veterans. Until Bill Clinton. As George Washington Law School professor Jonathan Turley has written recently, "[I]n 1995 the Clinton Administration was looking for things to cut out of a budget to fund greater priorities, like politically popular subsidies and transportation projects." So, to help tobacco farmers, to build even more bridges in Robert Byrd’s West Virginia, and to fund similar boondoggles, the Clintonistas reneged on our Nation’s solemn promise of free lifetime medical benefits to the men who served and fought for their country in time of war. Henceforth, all World War II and Korean vets over age 65 (virtually all of them) would have to rely on Medicare – which, because of the premiums, deductibles, and co-pay requirements, is not "free." Many of the veterans, now in their 80s and 90s, cannot afford these payments. Nor was it economically feasible for any of them to sue the government in an effort to enforce their rights.
Not until a champion appeared in the person of retired Air Force Colonel George E. ("Bud") Day. A veteran of World War II, Korea, and Vietnam, Col. Day is the only American to have escaped from North Vietnam into South Vietnam. Recaptured after ten horrific days on the run, Bud Day would spend 67 months as a POW in the infamous Hanoi Hilton, and would return to the United States to become the most decorated living American. Col. Day wears the highest medal our country can award: the Medal of Honor. (His exploits are recounted in his forthcoming autobiography, Duty, Honor, Country).
Bud is also a lawyer. In the late 1990s, on behalf of Schism, Reinlie, and the uncountable veterans who had fulfilled their part of the bargain with the US government, Col. Day commenced a class action under a federal statute called the Little Tucker Act. Bud’s theory was straightforward. Military recruiters had offered free lifetime medical care in return for 20 years’ service. The veterans had accepted that offer by serving a minimum of 20 years. The government, by forcing the vets into Medicare, had breached its contract. Thus, the veterans were entitled to the promised medical care, and to damages.
The government’s first line of defense was to deny that their military recruiters had made any such promises. But in the face of incontrovertible evidence to the contrary, the Department of Justice lawyers backed off, resorting to a fall-back position: Sure, okay, the promises were made, but our recruiters had no legal authority to make them.
This argument was patent nonsense. It defies common sense that thousands of recruiters, worldwide, wholly on their own and with no directives from the top, came up with a "free lifetime medical care" ploy in order to lure men into a 20-year hitch.
The trial judge bought the argument and threw the veterans out of court. Col. Day appealed, and a three-judge panel of the United States Court of Appeals for the Federal Circuit reversed the lower court, holding that the promises were authorized; that the government had breached its contract. Now on the defensive, the Department of Justice asked all the court’s active judges to rehear the case in an en banc review. Because of the importance of the issue, the court agreed.
By then, I was acquainted with Col. Day, who had just contributed the introduction to "Aid and Comfort": Jane Fonda in North Vietnam, a book I co-wrote with my wife, Erika Holzer. When I learned about Bud’s class action lawsuit, I volunteered to help – being a veteran myself, and having specialized for over forty years in appellate law.
Col. Day forcefully argued the case in early March of this year to a packed courtroom – veterans from all over the country had made the pilgrimage to Washington, DC. Two weeks ago, the Federal Circuit rendered its decision. The veterans lost. The 9-4 majority ruled that, yes, the recruiters had indeed made the promises "in good faith," and yes, the veterans – those who had managed to live through World War II and Korea – had fulfilled their part of the bargain by serving their country for at least 20 years. But because nowhere in our vast government hierarchy – neither in the Executive Branch nor in the Congress – could any statute, regulation, or other power be found that allowed military recruiters to fill their quotas by promising medical benefits, there was no contract to breach.
The Court of Appeals was wrong. There was authority – in the President of the United States in his capacity as Commander-in-Chief, as well as under at least one federal statute. Accordingly, Col. Day and I will seek review in the Supreme Court of the United States.
But review, being discretionary, is difficult to obtain. And even were we to succeed in invoking the Supreme Court’s jurisdiction, the case would not be decided until sometime in 2004 – at least two years from now. By then, according to the Department of Veterans Affairs estimate, nearly one million veterans of the Greatest Generation will have died; they are dying at the rate of 1,200 men a day.
Even if we were to prevail in the Supreme Court two years hence, too many veterans will have already gone to their graves bearing a tragic sense of betrayal, believing that their last battle had been a lost cause.