About that Washington Post article on the Federal worker flag bill….
It is almost passé to say that an article in the media is misleading or inaccurate. It happens so often it’s almost like pointing out that water is wet, that gravity exists, and that the Pats are the Super Bowl favorites. This Washington Post article by Joe Davidson (despite my attempts to correct and explain the various deficiencies of the piece) is a perfect example of that.
A seemingly innocuous piece of bipartisan legislation that would provide an inexpensive flag-draped patriotic gesture is drawing right-wing opposition because the honor would go to federal civilian employees.
Fair enough, I suppose it is, but since he links only to RedState and Erick Erickson, I don’t really know how widespread it is. Either way, our opposition predated anything Erick wrote, so the relationship he is making here by innuendo simply doesn’t exist.
The Legion opposed the bill for several reasons, one of which is misleading.
“Civil service workers do not sign a pledge to defend America with their lives,” said Fang Wong, the Legion’s national commander, in a news release.
The truth is that the oath civilians and members of the military swear says they will “support and defend the Constitution of the United States against all enemies, foreign and domestic.”
Um, really? What is misleading about that? Do civil service workers sign a pledge to defend America with their lives? They take the same Oath to defend the Constitution, as he points out, but how is it misleading to note that your average Postal Worker isn’t instructed in, nor required to engage in, hand to hand fighting to protect the country? Misleading? The only thing misleading is if one leaves out the "defend America WITH THEIR LIVES" part.
That’s included in a point-by-point reply to the Legion penned by Terry Newell, who was an originator of the flag idea. Newell, by the way, is an Air Force veteran and spent 32 years as a civilian federal worker.
Here are some other points made by the Legion and Newell’s responses, which were sent to supporters and a few congressional offices.
Might have been nice for Mr. Newell to share with us, certainly more appropriate for Davidson to bring up some of those points in his discussion with our Legislative Director, and allow us to point out the fallacious logic of some of them. I endeavored to find this point-by-point refutation, and all I found was an article on a Syracuse blog wherein Mr Newell compares the deaths of Marine Cpl. Jamie R. Lowe (KIA Afghanistan) and Victoria DeLong (U.S. Cultural Affairs Office killed in Haitian Earthquake.) Mr. Newell laments:
No government policy or program ensured an escort or provided a flag for her as a civilian worker. No government appropriation paid for a burial plot.
And yet, the picture accompanying this blog posting has a picture of Ms. DeLong’s casket covered with an American Flag. This bill that he is advocating would neither provide an escort, nor a burial plot, and she already has the third element he is complaining about her not getting.
So, let’s look at the actual laws, as currently enforced.
NOTHING in the US Code precludes any Department Secretary from supplying a flag for the coffin of any employee. Further, the various hypothetical deaths used by Washington Post commenters to accuse the legion of being “Heartless and cruel” are erroneous as a matter of law. Take for instance the comment of VTAVGJOE:
I can understand delineating between a headquarters-working fed that electrocuted themselves at the coffeemaker versus a foreign service officer that was kidnapped by the same government that our troops are fighting….
How about RonJeske’s comment:
Mr. Fang Wong is "wong" when he says that civilian deaths in war do not equate to military deaths and do not deserve the same recognition. Were it not for the civilian who took one for the cause, he would be comforting another military family in their time of loss. Death in war for one's country is as noble out of uniform as in uniform.
U.S. federal employees in Afghanistan to help the country came under attack by the Taliban yesterday. A flag for those killed doing their job in a combat zone is nice. Civilians have to pay for the funeral. Military KIA get a taxpayer paid burial.
Notice anything in common about these comments? They are all wrong, all of those decedents are already authorized a flag under US Law:
Sec. 1482a. Expenses incident to death: civilian employees serving with an armed force
(a) Payment of Expenses.—
The Secretary concerned may pay the expenses incident to the death of a civilian employee who dies of injuries incurred in connection with the employee’s service with an armed force in a contingency operation, or who dies of injuries incurred in connection with a terrorist incident occurring during the employee’s service with an armed force, as follows:
(1) Round-trip transportation and prescribed allowances for one person to escort the remains of the employee to the place authorized under section 5742 (b)(1) of title 5.
(2) Presentation of a flag of the United States to the next of kin of the employee.
(3) Presentation of a flag of equal size to the flag presented under paragraph (2) to the parents or parent of the employee, if the person to be presented a flag under paragraph (2) is other than the parent of the employee.
Since I don’t have Mr. Newell’s complaints about our position, I can only address what is in Mr. Davidson’s article. Such as:
Legion: “This bill leaves far too much to be determined by a few individuals.”
Newell: “It does allow some discretion in saying that regulations must ‘consider the conditions and circumstances surrounding the death of an employee and the nature of the service of the employee,’ but this language was added specifically to give the head of the agency discretion NOT to provide a flag in instances where it is not warranted.”
Where does it say that in this bill? Where does it discuss this limiting instruction in the Committee report on the bill? Mr. Newell may read it that way, but legislative construction isn’t haphazard, if this is some limiting factor, I would like to see where it says that.
Legion: “It doesn’t clearly identify associated costs.”
Newell: “Since a flag costs about $60 retail, and mailing or delivering it cannot cost much more . . . it is hard to imagine a caisson, 21-gun salute or honor guard, all suggested as possible by the American Legion statement, as being ‘incident’ expenses.. . . There is nothing in the bill or its history that even suggests such honors.”
Does he truly mean to suggest that the phrase “incidental expenses” has never been used by a federal bureaucracy to mean more than it was intended for? If not some form of honor guard, then who is it exactly that delivers the flag to the next of kin? If the flag is to be mailed to the family, where does it say that in the bill?
In fact, look at the original bill that was submitted, it specifically stated that:
A flag shall be furnished and presented under this section in the same manner as a flag is furnished and presented on behalf of a deceased member of the Armed Services who dies while on active duty. [Bold added]
Now, the bill has been changed, but it hasn't clarified this portion, only omitted it. A Court will look back at the original intent, and since there is no discussion on why this was changed, and how the new language differs from this, it makes us somewhat nervous about the interpretation. Wishing to clarify something doesn't make us cruel and heartless, it makes us cautious and cognizant of how legislation can be reinterpreted.
Further, lest anyone think that it is only civil service employees who have sworn an Oath to defend the Constitution who are beneficiaries under this bill, I would draw your attention to section 2 (f)(a) of H.R. 2061 which authorizes it for “individuals who perform volunteer services at the discretion of the head of an executive agency.” I have no idea who this is intended for.
Again, it is not the intent of this bill we are questioning, a point made clear in the point paper written by Mr. Tetz that I am including in full below. If you have a problem with the Legion position on this, email me (MOTHAX[at]LEGION[dot]org) and tell me exactly where our position is incorrect. None of us here want to preclude a border patrol agent killed on the job from getting a flag, our concern is two fold; with the way this bill is written, and the recurring theme to equate military service and civil service as equal. Look no further than the recent suggestion to change military retirement to a 401k for an example of the latter.
No one at the Legion is saying that Federal Employee killed in the line of duty should not be honored by a grateful nation, and to the extent that this Washington Post article improperly suggests that such is the case, we renounce it utterly. Our concerns are based in the nature of that honorarium, and the deficiencies of the bill itself.
ADDED: In attempting to explain to Mr. Davidson where he is wrong, he emailed me that:
The bill does say civilians have to be "killed." The first line of the legislation says its purpose is "To authorize the presentation of a United States flag at the funeral of Federal civilian employees who are killed while performing official duties or because of their status as a Federal employee."
People often misread things, as you apparently did when you read the legislation. Do you blame the authors of the legislation because you thought the legislation did not say civilians had to be "killed"?
I responded that:
The bill TITLE says that, however, if you read the committee report, and look at the controlling language from section 2, it specifically states:
SEC. 2. PRESENTATION OF UNITED STATES FLAG ON BEHALF OF FEDERAL CIVILIAN EMPLOYEES WHO DIE OF INJURIES IN CONNECTION WITH THEIR EMPLOYMENT.
In fact, if you go and look at the bill on Thomas, you will see :
SEC. 2. PRESENTATION OF UNITED STATES FLAG ON BEHALF OF FEDERAL CIVILIAN EMPLOYEES KILLED WHILE PERFORMING OFFICIAL DUTIES OR BECAUSE OF THEIR STATUS AS A FEDERAL EMPLOYEE.[<-Struck out]
So, explain to me again how I misread something that was struck out by the Committee?
(For those who don't understand legislative language, what it means is that the "killed" language was purged from the bill now before the House.
Waiting on a response, will post as it comes in, but Mr. Tetz further elaborated on this point:
In my meetings with hill staff, we pointed out the killed part.
As I explained to him in an interview yesterday, the language that was added, that which extended it to those who dies of injuries, was added so that if someone is injured in a shooting at Fort Hood but doesn’t die for weeks or months is still eligible even though they may die of complications due to the original violent act.
Our argument remained that if they intended to cover those people, they needed to change the language to say “dies of injuries related to the violent act” or similar. Merely saying “dies of injuries incurred” while a federal employee allows for a host of worst case scenarios including heart attacks, food poisoning, etc.
The Point Paper on this issue:
The American Legion Talking Points on S. 1444 and H.R. 2061
Underlying Bills: S. 1444 Civilian Service Recognition Act
Sponsored by Sen. Akaka (HI) - 1 Co-sponsor
Introduced on 7/28/11 and referred to Committee on Homeland Security and Governmental Affairs
H.R. 2061 Civilian Service Recognition Act of 2011
Sponsored by Rep. Hanna (NY) – 21 Co-sponsors
Introduced on 5/31/11 and reported to floor for consent agenda
Issue: Many believe the family of killed ATF Agent Brian Terry was unfairly treated. This intent expanded when others wanted to show that federal service, whether as a first responder or in any role was cherished. Thus the bill expanded beyond federal civilians in first responder positions to all federal employees.
Approximately 3,000 federal civilian workers have died on the job since 1992. This bill would allow presentation of a United States flag as a way to express sympathy and gratitude. There is no cost to the bill.
Criticism: Why now?
Existing laws do not prohibit such presentation; the flag code allows for a flag to be on coffin/cremains regardless of military service. The bill sponsors have been unable to point to a circumstance where this was thwarted or criticized when it occurred.
Term “shall pay the expenses incident to the presentation” is unnecessarily vague.
As currently written, the agency head shall pay the costs associated with presentation. This could vary depending on the agency and perhaps employee anywhere from mailing costs to the costs of an agency delegation to be present at a funeral. The vague nature and case by case scenario sets up an atmosphere for inequality.
Phrase “dies of injuries incurred in connection” with their status as an employee is expansive
Intended to be vague to allow for someone injured in a catastrophic event who later dies to be eligible. This language would seemingly allow employee who suffered work-related stress, who later dies to also receive this benefit. If the intent was to recognize those victims of violence, the bill should be written to accommodate that.
Definition of employee
The existing bill allows for “volunteers” to be counted as employees. Although volunteers are generally prohibited, they serve a vital role in VA facilities, parks, and during times of emergency. Some of the volunteers may die of natural causes “on the job.” Questionably extends the legal status of “volunteer.”
“Next of Kin” definition muddled
There is no clear definition of “next of kin” and the bill allows for others, other than the next of kin, to receive a flag if the next of kin chooses not to request one.
Non-uniform manner of enactment
The bill allows that the OMB, Sec. of Defense, and Sec. of Homeland Security may prescribe regulations, but beyond notifying employees of eligibility, the manner in which an agency carries out an act may vary greatly within an agency and between agencies. This will guarantee a problem where certain classes of employees are recognized in one way in a particular agency or differently based on employee class within the same agency.
Feedback: What about those civilians serving in Iraq/Afghanistan?
Those who served in the military are already eligible for presentation of a flag. Those who are killed while supporting contingency operations are eligible through approval by the secretary.
What about civilians at Fort Hood, post office, etc.?
Victims of these violent actions, whether military or civilian deserve to be recognized in some manner. The American Legion believes this should be carried out in a manner that is not similar to that of a veteran or military member.
You’re against recognizing those who serve under the same flag?
The American Legion is not against recognizing service to our nation, whether in uniform or as a civilian. We are against equating that service in uniform to civilian service, both in benefits and recognition of sacrifice. The average military member recognizes the likelihood he/she may not return home. The average federal employee is nearly guaranteed to return home every evening.
Until we can reconcile the bill to adequately recognize the loss of a civilian federal employee without diluting the honor of recognition offered a military member or veteran, The American Legion will remain in opposition.