In strong dissent, Thomas rejects soldiers' lawsuits

July 17, 1991|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- Supreme Court nominee Clarence Thomas argued yesterday that U.S. courts have no power, now that the Persian Gulf war is over, to hear American soldiers' legal complaints that their rights were violated during the war.

Judge Thomas, of the U.S. Circuit Court of Appeals here, filed a vigorous dissent as two other circuit judges ruled on a challenge to a Pentagon decision to try out on soldiers, involuntarily, new drugs that might offset nerve gas or chemical warfare attacks by the Iraqis.

By a 2-1 vote, the Circuit Court rejected that challenge and upheld the government's authority to use drugs that had not been approved officially for human use, even when the soldiers to be given the drugs had not consented -- a usual requirement for drug tests on humans.

Judge Thomas' nomination to be a Supreme Court justice, to succeed retiring Justice Thurgood Marshall, has drawn attention to his work on the appeals court, particularly when he writes opinions that reflect his views on court handling of issues of individual rights.

He said in his six-page dissenting opinion that he was taking no position on the basic legal questions over wartime drug experiments because the end of the gulf war and the uncertainty over future such tests meant there was no longer an active legal controversy to decide. Without such a controversy, he said, federal courts have no jurisdiction to rule.

His opinion appeared to be a fairly standard application of the view, held by many conservative judges, that the courts should be less willing to use their power when a good argument can be made for staying out of a legal dispute.

The case was one of a variety of legal challenges filed in federal court by U.S. soldiers before or just after the gulf war broke out, arguing against U.S. military action, their duty to serve abroad or aspects of the war's management.

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