Coping with Combat Claims: An Analysis of the Foreign Claims Act's Combat Exclusion
![handle is hein.journals/cardcore11 and id is 321 raw text is: COPING WITH COMBAT CLAIMS: AN
ANALYSIS OF THE FOREIGN CLAIMS
ACT'S COMBAT EXCLUSION*
Jordan Walersteint
I. INTRODUCTION
Modern military operations depend upon effective legal coun-
sel. As a publication of the U.S. Joint Chiefs of Staff1 expounds,
Legal counsel participation is paramount in all processes associ-
ated with planning and executing military operations. Nearly every
decision and action has potential legal considerations and implica-
tions.2 One of the most pressing legal issues facing troops on
overseas deployments is the adjudication of claims by civilians
against U.S. military forces for damages to real and personal prop-
erty or for physical injury and death.
The Foreign Claims Act (FCA) governs the resolution of
most claims made by foreign nationals harmed by U.S. military op-
erations abroad.' The FCA authorizes the Secretary of Defense to
appoint commissions, known as Foreign Claims Commissions
* This Note received honorable mention by the National Institute of Military Justice for the
Rear Admiral John S. Jenkins Writing Award for Student Excellence in Military Legal Studies.
f Editor-in-Chief, Cardozo Journal of Conflict Resolution. A.B. Japanese, Washington Uni-
versity in St. Louis, 2007; J.D. Candidate, Benjamin N. Cardozo School of Law, Yeshiva Univer-
sity, 2010; First Lieutenant, U.S. Army Reserve. The author would like to thank Professor Julie
A. Interdonato, Benjamin N. Cardozo School of Law, for her guidance and support throughout
the writing process. He would also like to thank the indefatigable Editors and Staffers of the
Cardozo Journal of Conflict Resolution for their not insignificant contributions.
1 The Joint Chiefs of Staff Home Page, http://www.jcs.mil (last visited Nov. 20, 2009).
2 JOINT CHIEFS OF STAFF, JOINT PUBLICATION 3-0, JOINT OPERATIONS 111-35 (2006).
3 Foreign Claims Act, 10 U.S.C. § 2734 (2006):
To promote and to maintain friendly relations through the prompt settlement of meri-
torious claims, the Secretary [of Defense] ... may appoint . . . one or more claims
commissions . . . to settle and pay in an amount not more than $100,000 a claim
against the United States for - (1) damage to, or loss of, real property of any foreign
country or of any political subdivision or inhabitant of a foreign country, including
damage or loss incident to use and occupancy; (2) damage to, or loss of, personal
property of any foreign country or of any political subdivision or inhabitant of a
foreign country, including property bailed to the United States; or (3) personal injury
to, or death of, any inhabitant of a foreign country; if the damage, loss, personal
injury, or death occurs outside the United States, or the Commonwealths or posses-
sions, and is caused by, or is otherwise incident to noncombat activities of, the armed
forces under his jurisdiction ....
Id. (emphasis added).
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Coping with Combat Claims: An Analysis of the Foreign Claims Act's Combat Exclusion
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