[House Report 106-270]
[From the U.S. Government Publishing Office]



106th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 1st Session                                                    106-270

======================================================================



 
PAYMENTS FOR CERTAIN SURVIVORS OF ARMED FORCES MEMBERS AND FEDERAL 
  CIVILIAN EMPLOYEES KILLED WHEN 2 UNITED STATES HELICOPTERS WERE SHOT 
  DOWN OVER IRAQ IN APRIL 1994

                                _______


 July 29, 1999.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 456]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 456) for the relief of the survivors of the 14 
members of the Armed Forces and the one United States civilian 
Federal employee who were killed on April 14, 1994, when United 
States fighter aircraft mistakenly shot down 2 United States 
helicopters over Iraq, having considered the same, reports 
favorably thereon with amendments and recommends that the bill 
as amended do pass.

                           TABLE OF CONTENTS

                                                                  

                                                                 Page
The Amendment..............................................           2
Purpose and Summary........................................           2
Background and Need for the Legislation....................           2
Hearings...................................................           4
Committee Consideration....................................           5
Committee Oversight Findings...............................           5
Committee on Government Reform Findings....................           5
New Budget Authority and Tax Expenditures..................           5
Congressional Budget Office Cost Estimate..................           5
Constitutional Authority Statement.........................           6
Section-by-Section Analysis................................           6
Agency Views...............................................           7

    The amendments are as follows:
    Strike out all after the enacting clause and insert in lieu 
thereof the following:

SECTION 1. PAYMENT.

    (a) Payment Authorization.--The Secretary of the Treasury shall 
pay, out of funds not otherwise appropriated, $100,000 to the survivor, 
or collectively the survivors, of each of the 14 members of the Armed 
Forces and the one United States civilian Federal employee who were 
killed on April 14, 1994, when United States F-15 fighter aircraft 
mistakenly shot down two UH-60 Black Hawk helicopters over Iraq.
    (b) Survivor Status.--
            (1) Members of the armed forces insured by sgli.--In the 
        case of a member of the Armed Forces described in subsection 
        (a) who was insured by a Servicemembers' Group Life Insurance 
        policy (issued under chapter 19 of title 38, United States 
        Code), a survivor of such member for the purposes of subsection 
        (a) shall be any person designated as a beneficiary on the 
        individual's policy.
            (2) Individuals not insured by sgli.--In the case of a 
        member of the Armed Forces described in subsection (a) who was 
        not insured by a Servicemembers' Group Life Insurance policy 
        (issued under chapter 19 of title 38, United States Code) or 
        the civilian Federal employee described in subsection (a), a 
        survivor of such member or employee for the purposes of 
        subsection (a) shall be any person determined to be a survivor 
        by the Secretary of the Treasury using the provisions of 
        section 5582(b) of title 5, United States Code.

SEC. 2. LIMITATION ON TOTAL AMOUNT OF PAYMENT.

    Not more than a total of $1,500,000 may be paid to survivors under 
section 1.

SEC. 3. LIMITATION ON ATTORNEY FEES.

    Notwithstanding any contract, no representative of a survivor may 
receive more than 10 percent of a payment made under section 1 for 
services rendered in connection with the survivor's claim for such 
payment. Any person who violates this section shall be guilty of an 
infraction and shall be subject to a fine in the amount provided in 
title 18, United States Code.

SEC. 4. REPORT.

    Not later than 6 months after the date of the enactment of this 
Act, the Secretary of the Treasury shall transmit to the Congress a 
report describing the payments made under section 1.

    Amend the title so as to read:

      A bill for the relief of the survivors of the 14 members 
of the United States Armed Forces and the one United States 
civilian Federal employee who were killed on April 14, 1994, 
when two United States helicopters were shot down over Iraq, so 
as to provide those survivors with payments similar to the 
payments already made by the Department of Defense to the 
survivors of foreign nationals killed in the same incident.

                          Purpose and Summary

    H.R. 456 would make $100,000 payments to each of the 
survivors of the Americans who were killed on April 14, 1994, 
when two United States helicopters were shot down over Iraq, so 
as to provide those survivors with payments similar to the 
payments already made by the Department of Defense to the 
survivors of foreign nationals killed in the same incident.

                Background and Need for the Legislation

    In the Spring of 1991, the United States and 12 other 
countries began Operation Provide Comfort, an emergency relief 
effort to assist Kurds and other ethnic groups in northern 
Iraq. That operation secured an area of Northern Iraq in which 
Iraqi aircraft were prohibited from entering--a no-fly zone, 
and established transit camps within that area for the return 
of people who had fled from the Iraqi army. Air forces from 
several of the participant countries conducted frequent air 
operations within the no-fly zone.
    On April 14, 1994, two American Blackhawk helicopters on a 
humanitarian mission in the no-fly zone of Iraq were shot down 
by two American F-15 fighter planes when the helicopters were 
mistakenly identified as Iraqi helicopters. There were 15 
Americans (14 active military and one State Department 
employee) and 11 foreign nationals aboard the helicopters. 
There were no survivors.
    The Kurd foreign nationals killed in the shootdown were 
employed by the United States. Therefore, their families 
received compensation under the Federal Employees Compensation 
Act. A decision was made by the Secretary of Defense, under 
authority provided in 10 U.S.C. 127, to provide compensation 
beyond those benefits that when combined with their FECA 
benefits would total $100,000. The foreign military families 
received an ex gratia payment of $100,000 from the Secretary of 
Defense with no offset for any other benefits. No such payments 
was made to the families of the Americans killed in the 
shootdown.
    The law does not provide a mechanism for this type of 
payment to the American families of active military personnel. 
The Military Claims Act provides that a claim for personal 
injury or death is not allowed by or on behalf of U.S. active 
duty personnel if that injury or death is incident to service. 
Further, suit by or on behalf of active duty personnel against 
the Government for damages arising from government action or 
inaction is precluded because of the doctrine of Feres v. 
United States, 340 U.S. 135 (1950).
    Some of the policy concerns expressed by the Departments of 
Justice and Defense include the need to avoid the adverse 
effects that tort suits would have on military discipline and 
effectiveness, the need to avoid judicial interference in 
military affairs, and the provision by Congress of an exclusive 
remedy for service members in the form of a comprehensive 
veterans benefits program.
    In regards to the State Department employee, no additional 
payment beyond the benefits program provided under the Foreign 
Service Act for State Department employees was offered by the 
Department of Defense.
    The Defense Department has stated that the ex gratia 
payments were made to ``convey the United States regret over 
this unfortunate tragedy.'' The families of Americans killed 
have indicated that this reasoning shows a lack of regret for 
the loss of the lives of their family members and inequitable 
treatment.
    At a 105th Congress hearing, the Department of Defense was 
asked to provide the Committee with any statutory bar to the 
Secretary using the authority in 10 U.S.C. 127 to pay American 
families of victims in this incident. The response from the 
Department did not indicate that there was any statutory bar to 
payment.
    There has been no other situation where both American 
government employees (military and civilian) and foreign 
nationals were killed in the same incident and the Secretary 
has made ex gratia payments to the families of the foreign 
nationals.
    The Committee thoroughly reviewed the arguments put forth 
by the Department of Defense and Department of Justice 
concerning need for uniformity of benefits for all Americans 
serving their country and the setting of a bad precedent that 
would lead to bills in the future based on friendly fire 
incidents before coming to its conclusion.
    While respecting the need to provide uniform treatment to 
all our military and government employees, the Committee found 
that this standard was compromised by the Secretary of Defense 
when he made those ex gratia payments.
    The conclusion of the Committee is that this case is unique 
because it is the only friendly fire incident where the 
Secretary of the Defense Department chose to make ex gratia 
payments to the families of the foreign nationals killed in the 
same incidents with Americans.
    This legislative remedy is not based on the circumstances 
which led to the friendly fire incident. The Committee is 
providing this remedy based solely on the fact ex gratia 
payments were made from the Secretary of Defense's 
discretionary funds to the foreign nationals' survivors. The 
Committee intends that the only precedent set is that if the 
Secretary provides ex gratia payments to survivors of foreign 
nationals involved in an incident such as this in the future, 
that survivors of the Americans involved in the same incident 
be given similar payments by the U.S. Government.
    The Defense Department could not provide the Subcommittee 
with any legal bar to the Secretary making the same ex gratia 
payments to the American families. However, the Department 
refused to administratively remedy this inequity. Therefore, 
the Committee believes that in order to make clear that this 
Government values its own citizens lives at least as much as 
the lives of foreign nationals, this legislation is an 
appropriate response to the situation the Defense Department 
has created.
Summary of Changes in H.R. 456 as Recommended by the Committee
    During consideration of this legislation in Subcommittee, a 
decision was made to modify the title of the bill to more 
clearly reflect that this relief is being provided because of 
the payments to the foreign nationals' families, not because of 
the friendly fire incident itself.

                                Hearings

    The Committee's Subcommittee on Immigration and Claims held 
a hearing on this legislation in both the 105th Congress and 
the 106th Congress. In the 105th Congress the Subcommittee held 
a hearing on June 18, 1998. Testimony was received from the 
Honorable Mac Collins; Eljay B. Bowron, Assistant Comptroller 
General for Special Investigations, Office of Special 
Investigations, U.S. General Accounting Office, accompanied by 
Don Fulwider and Don Wheeler, Deputy Directors, Investigations; 
Captain Elliott L. Bloxom, Director of Compensation, Military 
Personnel Policy, Office of Under Secretary of Defense 
(Personnel and Readiness), Department of Defense, accompanied 
by Frances Adams, Chief, International Torts Branch, Tort 
Claims and Litigation Division, Air Force Legal Services 
Agency; Donald M. Remy, Deputy Assistant Attorney General, 
Civil Division, Department of Justice; Mrs. Cornelia Bass; Mrs. 
Georgia Bergmann; and Lt. Col. (Ret.) Robert McKenna.
    In the 106th Congress, the Subcommittee held a hearing on 
May 18, 1999. Testimony was received from the Honorable Mac 
Collins; the Honorable Mark Udall; Captain Elliott L. Bloxom, 
Director of Compensation, Military Personnel Policy, Office of 
Under Secretary of Defense (Personnel and Readiness), 
Department of Defense; Donald M. Remy, Deputy Assistant 
Attorney General, Civil Division, Department of Justice; and 
Mrs. Georgia Bergmann.

                        Committee Consideration

    On June 17, 1999, the Subcommittee on Immigration and 
Claims met in open session and ordered favorably reported the 
bill H.R. 456 with an amendment by voice vote, a quorum being 
present.
    On July 20, 1999, the Committee on the Judiciary met in 
open session and ordered reported favorably the bill H.R. 456, 
as amended by voice vote, a quorum being present.

                      Committee Oversight Findings

    In compliance with clause 2(l)(3)(A) of rule XI of the 
Rules of the House of Representatives, the Committee reports 
that the findings and recommendations of the Committee, based 
on oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

                Committee on Government Reform Findings

    No findings or recommendations of the Committee on 
Government Reform Findings were received as referred to in 
clause 2(l)(3)(D) of rule XI of the Rules of the House of 
Representatives.

               New Budget Authority and Tax Expenditures

    Clause 2(l)(3)(B) of House Rule XI is inapplicable because 
this legislation does not provide new budgetary authority or 
increased tax expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 2(l)(3)(C) of rule XI of the 
Rules of the House of Representatives, the Committee sets 
forth, with respect to the bill, H.R. 456, the following 
estimate and comparison prepared by the Director of the 
Congressional Budget Office under section 403 of the 
Congressional Budget Act of 1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                     Washington, DC, July 23, 1999.
Hon. Henry J. Hyde, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 456, a bill for 
the relief of the survivors of the 14 members of the United 
States Armed Forces and the one United States civilian federal 
employee who were killed on April 14, 1994, when two United 
States helicopters were shot down over Iraq, so as to provide 
those survivors with payments similar to the payments already 
made by the Department of Defense to survivors of foreign 
nationals killed in the same incident.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is John R. 
Righter, who can be reached at 226-2860.
            Sincerely,
                                  Dan L. Crippen, Director.
H.R. 456--For the relief of the survivors of the 14 members of the 
        United States Armed Forces and the one United States civilian 
        federal employee who were killed on April 14, 1994, when two 
        United States helicopters were shot down over Iraq, so as to 
        provide those survivors with payments similar to the payments 
        already made by the Department of Defense to survivors of 
        foreign nationals killed in the same incident.
    H.R. 456 would direct the Secretary of the Treasury to pay 
$100,000 to each of the families of the 14 members of the 
United States Armed Forces and one federal civilian employee 
who were killed on April 14, 1994, when a United States fighter 
aircraft mistakenly shot down two U.S. helicopters over Iraq. 
CBO estimates that enacting the bill would increase direct 
spending by $1.5 million. Assuming enactment late this fiscal 
year, CBO expects these outlays would occur in fiscal year 
2000. (If the bill is enacted by early August, the outlays 
could occur in fiscal year 1999.) Because the bill would 
increase direct spending, pay-as-you-go procedures would apply.
    H.R. 456 also would require the Secretary of the Treasury 
to transmit to the Congress within six months of the bill's 
enactment a report detailing the payments made to the 15 
families. Subject to available amounts, CBO estimates the cost 
of implementing this provision would be negligible.
    The CBO staff contact is John R. Righter, who can be 
reached at 226-2860. This estimate was approved by Paul N. Van 
de Water, Assistant Director for Budget Analysis.

                   Constitutional Authority Statement

    Pursuant to Rule XI, clause 2(1)(4) of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in the First Amendment of the Constitution.

                      Section-by-Section Analysis

Section 1. Payment
    Section 1(a) directs that the Secretary of Treasury will 
pay, out of funds not otherwise appropriated, $100,000 to the 
survivor or survivors of each of the Americans killed in this 
incident.
    Section 1(b) defines who will be considered the survivors 
of the American killed for purpose of payment under this 
legislation.
Section 2. Limitation on Total Amount of Payment.
    This section states that no more than a total $1,500,000 
made be paid out to the survivors covered by this legislation.
Section 3. Limitation on Attorney Fees.
    This section directs that no more than 10 percent of monies 
received by each survivor may be paid for service rendered by a 
representative of the survivor. Any individual who violates of 
this section will be subject to a fine.
Section 4. Report.
    This section directs the Secretary of the Treasury to 
submit a report to Congress within six months after enactment 
describing the payments made under Section 1.

                              Agency Views

    The comments of the Department of Defense on H.R. 456 are 
as follows:

              General Counsel of the Department of Defense,
                                     Washington, DC, July 15, 1999.
Hon. Henry J. Hyde,
Chairman, Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: This is to express the views of the 
Department of Defense on H.R. 456, 106th Congress, a bill, 
``For the relief of the survivors of the 14 members of the 
Armed Forces and the one United States civilian Federal 
employee who were killed on April 14, 1994, when United States 
fighter aircraft mistakenly shot down 2 United States 
helicopters over Iraq.''
    The Department of Defense opposes H.R. 456.
    We are concerned that enactment of this bill would create 
inequities in the treatment of survivors of service members 
dying on active duty. The downing of the Blackhawk helicopters 
was a tragic accident. However, we would do a grave injustice 
to the survivors of other service members who have died in 
equally tragic circumstances if we establish a precedent 
whereby survivors of some service members receive extraordinary 
compensation from the U.S. government simply because the United 
States provided ex gratia compensation to foreign survivors of 
the accident. In this case, the ex gratia payments to the 
foreign survivors were made due to the unique circumstances of 
this incident and to convey the United States' regret. It was a 
humanitarian gesture to retain the trust, good will, and 
support of our allies who provide their citizens to work with 
the United States to protect mutual national security 
interests. The ex gratia payments served an entirely different 
purpose than the survivor benefit package established by law to 
compensate the families of service members who die on active 
duty.
    The United States provides a comprehensive system of 
benefits for survivors of military members who die in service. 
These benefits are extended to the persons who would have 
relied on the member's income of their economic security. Some 
of these benefits, such as Dependency and Indemnity 
Compensation and the Survivor's Benefit Plan, can endure for 
the lifetime of the survivor and may total in the hundreds of 
thousands of dollars.
    The Office of Management and Budget advises that, from the 
standpoint of the Administration's program, there is no 
objection to the presentation of these views for your 
consideration and that of the Committee. A similar letter is 
being sent to the Chairman of the Committee on Armed Services.
            Sincerely,
                                          Judith A. Miller.

                                  
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