Veterans on trial: The coming court battles over PTSD — and the costs of war

By Barry Schaller
Best Defense office of combat-related litigation

I wrote Veterans on Trial to provide an unflinching view of how combat-related PTSD evolved and to assess its current and future impact on American society and, in particular, on the court system. I sought to serve another major purpose as well — to set the stage for a hard look at future policy considerations for U.S. military interventions.

The idea for the book arose while I was participating in a multi-disciplinary bioethics working group on the ramifications of PTSD. The widespread incidence of PTSD in the Iraq and Afghanistan wars convinced me that this was a critically important project. The title refers to the trials and tribulations that veterans must undergo, not only in court, but in their daily lives as they negotiate the transition to civilian life. I refer also to the fact that PTSD will continue to be a source of controversy, not just within the psychiatric profession, but in serious criminal cases in which the stakes are the highest and as a human cost factor in future political and military decision making concerning war.

I begin by focusing on the management of psychiatric casualties by military leaders and psychiatrists during American wars from the Civil War forward. I begin by stripping away the confusion — and obfuscation — that have prevented a clear understanding of the origin and role of combat-related traumatic stress in war-time. Although PTSD has become widely known in popular culture, I believe that the public’s understanding is superficial. The public has only a rudimentary idea of what PTSD is, how it arises in military service, how it affects mental and physical health, and why it is not taken into account in decision making about war. This is so, largely, because so much of what is said about it by the military, as well as by mental health professionals, is overly simplistic, incomplete, and inaccurate.

PTSD finally gained official recognition in the Diagnostic and Statistical Manual (DSM) of the American Psychiatric Association during the post-war cultural upheaval following Vietnam. That came about, not because the Vietnam War produced more PTSD, but because of the post-war cultural turmoil. The social-political alliance supporting veterans would not let go of the issue. PTSD and its predecessor conditions have arisen in each war because of a constellation of old and new factors configured in unique ways. I learned that, paradoxically, all wars are different but, in a sense, all wars are the same.

I examine critically how the disorder has been a moving target, undergoing transformation in the various DSM editions. I also argue that it is far more complex and variable than the experts claim. I explain in detail how PTSD has been used when veterans were on trial in criminal court after Vietnam and, more recently, during and after deployment to Iraq and Afghanistan.

I bring the narrative to its logical application — an analysis of the key problems facing military and political leaders today. The most critical problems that have been inadequately dealt with, in my view, are military sexual trauma (MST) and the escalating military suicide rate. I find particularly blameworthy the chronic failure of political and military leaders to consider — before deploying military force — the human cost of war. They are equally culpable for their lack of accountability for the consequences of the interventions. One measure is to provide a seamless transition from military to VA care.

I am also convinced that, despite the growing role of women in the military, the military has utterly failed to take obvious steps to bring about the cultural change needed to eliminate widespread sexual assault and harassment. The high rate of suicide among active duty soldiers and veterans is a clear signal of dysfunction within military culture. Although I recognize that the leadership has instituted some typical measures in an effort to stem the tide, the military has failed to take the most obvious step to uproot the causes – a painstaking examination of the root causes within its own culture.

It is obvious to me that political leaders must shoulder responsibility for failing to take into account the human cost of war before making decisions to use force. If all costs, including human as well as economic, social, and foreign policy, were taken into account fully, war would become what it should be – a last resort for critical situations to be used only after every possible diplomatic measure.

I confront other controversial subjects, including the widespread creation of veterans treatment courts and the claim that returning veterans are bringing violence into American society. As for the former, I believe that diversion programs for veterans should be available to other defendants based on an equal justice standard. Establishing special courts for any category of citizens, even deserving veterans, is misguided because it is inconsistent with our system of justice and it lets the responsible institutions — the executive and legislative branches – off the hook by cleaning up the problems that they created.

As for societal violence, contrary to familiar claims made after nearly every war, veterans have not been proven to cause a spill-over of violence in civilian society. While isolated episodes do occur, it is painfully true, as shown by recent events, that American society has a long history of episodic violence. Americans suffer from a national amnesia about the violence in civilian society, just as we do about our reliance on force in our foreign policy. For so young a nation, we have a well-developed national mythology to explain away the policies and practices that we do not care to acknowledge.

I cannot urge too strongly that we — political leaders and citizens alike — forego our usual post-war practice of evading a hard look at the mistakes, misjudgments, and lessons of war. Unless we undertake a painstakingly critical examination of these long wars, we are destined to repeat the past – and we will suffer the consequences.

Barry R. Schaller retired from the Connecticut Supreme Court in 2008, but continues his judicial service on the Connecticut Appellate Court. He also is a Clinical Visiting Lecturer at the Yale Law School and the author of Veterans on Trial: The Coming Court Battles Over PTSD, published in 2012 by Potomac Books.