He deserves a Purple Heart — the Supreme Court should ensure he gets it

On Nov. 5, 2009, Nidal Hasan entered the Soldier Readiness Center at the sprawling U.S. Army base at Fort Hood, Texas and opened fire. Hasan killed 13 people and injured more than 30. Staff Sgt. Joshua Berry was in an adjacent building and helped to prevent Hasan’s entry. Hasan fired his weapon at Berry, causing him to dive for cover and seriously injure himself in the process.

For his courage under fire, the Army resolved to award Berry the Purple Heart. Tragically, after the Foot Hood massacre, Berry was never the same. He took his own life on Feb. 13, 2013.

Later, and inexplicably, the Deputy Secretary of the Army denied a Purple Heart to Berry, an American hero. His family members have been forced to fight for years in court for the honor that he deserves. Their last hope lies with the U.S. Supreme Court.

As veterans who have dedicated our professional lives to serving current and former service members, rarely have we encountered a case more disturbing — or a cause more just — than the quest by Berry’s family for his Purple Heart. That is why the America First Policy Institute and First Liberty jointly filed a brief in the U.S. Supreme Court, asking the court to correct this miscarriage of justice.

President Obama famously declared Hasan’s murderous rampage an act of “workplace violence.” But two years after Berry’s death, Congress rectified Obama’s grievous category error by designating Hasan’s actions an “international terrorist attack.” This important change allowed those injured and killed in the attack to be awarded the Purple Heart.

Berry’s family members began the painful process of applying for him to receive the award posthumously, so they could present it to his daughter to commemorate her father’s honorable service and sacrifice. The Army initially recommended that Berry receive the Purple Heart posthumously. But, stunningly, the Deputy Secretary of the Army reversed that decision. The Berry family sued in federal court.

At each stage of litigation, the court ruled against the family. Earlier this summer, the family appealed the case to the Supreme Court, presenting the justices with one final opportunity to deliver justice and bring closure to this sad chapter.

This case is significant not only because of its underlying tragedy, but because of its legal implications. In ruling against the family, the lower courts stated the Army is entitled to “unusual deference” on its procedural decisions because, according to those courts, “judges are not given to the task of running the Army.”

While it is certainly true that America’s judges are ill-equipped to run its Army, the same cannot be said of their ability to apply and uphold the law. Judges have a constitutional duty to ensure that all government officials — including military officials — follow the law, including congressional statutes.

Under the Constitution, the military takes orders not only from the president, as commander in chief, but also from Congress. When the president and Congress are at odds, courts step in. That is a structural feature of our constitutional order. Courts should not reflexively approve the internal decisions of unelected military officials when service members’ constitutional and statutory rights are at stake. As Chief Justice John Roberts observed during his 2005 confirmation hearing, judges are to “call balls and strikes,” not pick winners and losers.

In this case, Congress clearly directed the military to view the Fort Hood attack as an “international terrorist attack,” making those injured and killed in the attack eligible for the Purple Heart. Had Congress remained silent on the matter, then perhaps the Deputy Secretary of the Army would be entitled to an enhanced degree of deference in his determination of Staff Sgt. Berry’s eligibility. But Congress was crystal clear: Berry and the dozens of other Fort Hood victims are entitled to the Purple Heart.

When Congress has spoken, the courts must uphold the law as written. In Berry’s case, however, courts have abdicated their Article III responsibility by granting the military “unusual deference,” even though a statutory right is at stake and the issue in question is procedural, and not one requiring military expertise. 

The problems caused by courts’ “unusual deference” to the military on procedural questions are not limited to the distribution of awards. Far too often, judges have failed to protect the religious liberty and due process rights of service members because of blind deference to military officials. Unsurprisingly, this constitutional injury results in a demoralized force, reduced recruitment, and diminished national security.

The “unusual deference” standard must be fixed. This case gives the Supreme Court a perfect opportunity to do so as they honor the sacrifice of a hero.

We will never know how many lives Staff Sgt. Joshua Berry saved that tragic day in 2009. Ultimately, the Berry family simply wants to ensure that Berry’s daughter may have her late father’s Purple Heart — a medal that represents great pain and loss. The award also would be a great solace for those who remain and those whom he saved.

The Army’s denial of this honor is as wrong as it is heartless. It is not too much to ask that courts fulfill their duty to apply the law as written and ensure that Berry’s sacrifice is honored. We hope the Supreme Court will do just that and let a military hero finally rest in peace. 

Robert Wilkie served as Secretary of Veterans Affairs and Under Secretary of Defense for Personnel and Readiness. He is a Distinguished Fellow at America First Policy Institute’s Center for American Security.

Mike Berry served as a Marine Corps Judge Advocate General (JAG) for seven years and is vice president of external affairs and director of military affairs for First Liberty Institute. He is not related to Staff Sgt. Joshua Berry.