Opinion

JUSTICE O'CONNOR, concurring in part and dissenting in part.

I agree with both the Court and JUSTICE BRENNAN that James Stanley's cause of action under the Federal Tort Claims Act (FTCA), 28 U.S.C. § 2671 et seq., should not have been reinstated by the Court of Appeals. I therefore join Part I of the Court's opinion. I further agree with the Court that, under Chappell v. Wallace, 462 U. S. 296 (1983), there is generally no remedy available under Bivens v. Six Unknown Fed. Narcotics Agents, 403 U. S. 388 (1971), for injuries that arise out of the course of activity incident to military service. Ante at 483 U. S. 683 -684. In Chappell v. Wallace, supra, this Court unanimously held that enlisted military personnel may not maintain a suit to recover damages from a superior officer for alleged constitutional violations. The "special factors" that we found relevant to the propriety of a Bivens action by enlisted personnel against their military superiors "also formed the basis" of this Court's decision in Feres v. United States, 340 U. S. 135 (1950), that the FTCA does not extend to injuries arising out of military service. Chappell, supra, at 462 U. S. 298. In my view, therefore, Chappell and Feres must be read together; both cases unmistakably stand for the proposition that the special circumstances of the military mandate that civilian courts avoid entertaining a suit involving harm caused as a result of military service. Thus, no amount of negligence, recklessness, or perhaps even deliberate indifference on the part of the military would justify the entertainment of a Bivens action involving actions incident to military service.

Nonetheless, the Chappell exception to the availability of a Bivens action applies only to "injuries that arise out of or are in the course of activity incident to service.'" Ante at 483 U. S. 684 (quoting Feres v. United States, supra, at 340 U. S. 146 ). In my view, conduct of the type alleged in this case is so far beyond the bounds of human decency that, as a matter of law, it simply cannot be considered a part of the military mission. The bar created by Chappell -a judicial exception to an implied remedy for the violation of constitutional rights -surely cannot insulate defendants from liability for deliberate and calculated exposure of otherwise healthy military personnel to medical experimentation without their consent, outside of any combat, combat training, or military exigency, and for no other reason than to gather information on the effect of lysergic acid diethylamide on human beings.

No judicially crafted rule should insulate from liability the involuntary and unknowing human experimentation alleged to have occurred in this case. Indeed, as JUSTICE BRENNAN observes, the United States military played an instrumental role in the criminal prosecution of Nazi officials who experimented with human subjects during the Second World War, ante at 483 U. S. 687, and the standards that the Nuremberg Military Tribunals developed to judge the behavior of the defendants stated that the "voluntary consent of the human subject is absolutely essential... to satisfy moral, ethical and legal concepts." United States v. Brandt (The Medical Case), 2 Trials of War Criminals Before the Nuremberg Military Tribunals Under Control Council Law No. 10, p. 181 (1949). If this principle is violated, the very least that society can do is to see that the victims are compensated, as best they can be, by the perpetrators. I am prepared to say that our Constitution's promise of due process of law guarantees this much. Accordingly, I would permit James Stanley's Bivens action to go forward, and I therefore dissent.