DOD Refuses to Say If It Would Stop Priest from Giving Last Rites to Dying Serviceman—‘We Are Currently Litigating’ Matter

October 16, 2013 - 1:22 PM
President Barack Obama and former Sen. Chuck Hagel (R.-Neb.) in the White House on Jan. 7, 2013, when Obama announced he was nomination Hagel as Defense secretary. (AP Photo/Carolyn Kaster)

President Barack Obaman and former Sen. Chuck Hagel (R.-Neb.) in the White House on Jan. 7, 2013, when Obama announced he was nominating Hagel as Defense secretary. (AP Photo/Carolyn Kaster)

(CNSNews.com) - Lt. Col. Todd Breasseale, a spokesman in the Office of Secretary of Defense Chuck Hagel, is refusing to say whether the Department of Defense would attempt to stop a civilian Catholic priest, who had been a contract chaplain for the military, from administering the last rites to a serviceman on a U.S. military base.

“I feel no particular compulsion to answer outlandish, hypothetical questions in a yes/no fashion nor does the Department, generally, answer hypotheticals at all,” Breasseale said in an email.

“Further, it is a matter of long standing Department policy to not address matters that are currently under active litigation,” Breasseale continued.

Prior to Breasseale sending this email declining to say whether DOD would try to stop a priest from administering the last rites to a serviceman, a spokesman for the National Security Staff at the White House, had responded to the question, by saying: “We'd refer you to our colleagues at DOD for comment.”

“I'm sorry that the NSS sent you to us, but I suspect they might not have known that we are currently litigating,” said Breasseale. “The Department of Justice handles the litigation for all agencies of the Executive, so my recommendation is that you contact them.”

The issue is relevant because since the government shutdown began on Oct. 1, Defense Secretary Hagel has declined to allow civilian Catholic priests, who were working under contract as military chaplains, to return to their religious work even on a voluntary basis.

On Monday, Father Ray Leonard, the civilian Catholic chaplain at Naval Submarine Base Kings Bay in Georgia, sued Hagel and the Department of Defense, arguing that Hagel was violating his and his congregation’s First Amendment right to the free exercise of religion.

“Father Leonard wishes to continue practicing his faith and ministering to his faith community free of charge on the Naval Submarine Base Kings Bay during the government shut-down, but has been told that he is subject to arrest if he does so,” said the priest’s lawsuit filed by the Thomas More Law Center.

“The doors to the Kings Bay Chapel were locked on October 4, 2013, with the Holy Eucharist, Holy water, Catholic hymn books, and vessels all locked inside,” said the lawsuit. “Father Leonard and his parishioners … were prohibited from entering.

“Father Leonard is not permitted to perform Confraternity of Christian Doctrine (CCD) classes, meetings, and preparations on the Naval Base,” says the suit. “Therefore, all preparation of Catholic Sacraments, such as confirmation and marriage are cancelled.”

“On October 7, 2013,” says the suit, “Father Leonard was informed that he was not permitted to even visit the chapel or his office on the Naval Base.”

“With no end in sight to the federal government shutdown, dozens of Catholic priests under contract with the United States military remain on furlough, denied access to the bases and military populations they serve,” the Catholic Archdiocese for the Military Services said in a statement issued Friday.

“Additionally, unless the issue is resolved, Confessions, Baptisms and any other sacraments celebrated by furloughed priests will be denied for the second week in a row,” said the archdiocese. “As many as 50 U.S. military installations around the world are affected.”

Hagel decided to prevent civilian Catholic priests working under contract as chaplains from resuming their duties even though on Sept. 30 Congress passed and President Barack Obama signed the Pay Our Military Act. That act authorized DOD to pay and return to work active-duty military personnel, civilian DOD employees, and contractors whom the Secretary of Defense “determines are providing support to members of the Armed Forces.”

On Oct. 5, Hagel issued a memorandum stating that he had determined that the contractors who were qualified to return to work under the Pay Our Military Act’s “providing support” standard included those “whose responsibilities contribute to the morale” and “well-being” and other factors effecting service members.

"The Department of Defense consulted closely with the Department of Justice, which expressed its view that the law does not permit a blanket recall of all civilians," Hagel said in the memorandum. "Under our current reading of the law, the standard of 'support to members of the Armed Forces' requires a focus on those employees whose responsibilities contribute to the morale, well-being, capabilities, and readiness of covered military members during the lapse of appropriations."

It turned out that Secretary Hagel determined that “family support” and “behavioral health” contractors did meet the standard, but that civilian Catholic priests serving as chaplains did not.

Thus, while Catholic priests who were active-duty military or civilian DOD employees were allowed to resume their chaplain duties last week, civilian Catholic priests who served as chaplains on a contract basis were not.

Further, once Hagel determined that civilian Catholic priests were not among those contractors he deemed were “providing support to members of the Armed Forces,” DOD determined that under the Anti-Deficiency Act it would be illegal for such priests to even volunteer their priestly services--as Father Leonard was seeking to do.

Hagel and DOD have persisted in this position even though both houses of Congress have passed resolutions stating that they believe the contract chaplains should have been allowed to go back to work under the terms of the Pay Our Military Act.

The House passed its resolution on Oct. 5, the day before the first Sunday of the shutdown, and the Senate passed its resolution on Oct. 10, the Thursday before the second Sunday. The House voted 400 to 1 for its resolution, and the Senate adopted it version unanimously.

That unanimous resolution approved by the Democrat-controlled Senate made it unambiguously clear that Congress intended that contract clergy be able to resume their chaplain duties--even under the terms of Hagel's memorandum that had cited troop "morale" and "well-being."

The Senate resolution said that the Senate “finds that the provision and availability of religious services and clergy is important to the morale and well-being of many members of the Armed Forces and their families; and hopes the Secretary of Defense is able to determine that contractor clergy provide necessary support to military personnel, and would therefore be covered under the appropriations made available under the Pay Our Military Act.” [Emphasis added.]

However, the House and Senate resolutions were not passed as binding law--to be sent to the president for his signature--but rather as sense of Congress resolutions meant to advise Secretary Hagel about what Congress thought it was doing when it passed the Pay Our Military Act only two weeks before.

Also, because the House and Senate resolutions were not identical in wording, the two would need to be reconciled--possibly by the House voting to adopt the later Senate version. But such a vote had not been taken place as of Tuesday.

In any event, Secretary Hagel did not pick up on the bipartisan bicameral suggestion of Congress that the law allowed the civilian Catholic chaplains to resume administering sacraments.

The remotely situated Naval Submarine Base Kings Bay, where Father Leonard served, was one of the military facilities impacted by DOD’s decision to prohibit civilian priests from administering sacraments even on a voluntary basis.

“The submarine base is remotely located,” says Father Leonard’s suit. “The closest Catholic Church is off base in the town of St. Mary’s. This is roughly eight miles away from the Naval Base."

“Many of Father Leonard’s parishioners live and work on the Naval Base and do not own a car or have access to other transportation,” it says. “This makes a sixteen mile journey to and from church impossible for many of Fr. Leonard’s parishioners, particularly sailors who are not given enough break time to walk sixteen miles and attend the Mass service.

“Catholics are required by the dictates of their faith to attend Mass and to receive Communion on the Sabbath each week,” says the suit.

On Tuesday afternoon, considering that Father Leonard’s lawsuit said he “was told that if he practiced his Catholic faith on the Naval Base, even on a volunteer basis, he would be subject to arrest,” CNSNews.com sent a written inquiry via email to Lt. Col. Breasseale, to officials in the Office of the Chief Chaplain of DOD, and to spokespersons at the National Security Staff at the White House.

This inquiry said:

“If Father Ray Leonard, who has been the civilian priest serving on contract as the Catholic chaplain at Naval Submarine Base Kings Bay, were to attempt to perform the sacrament of extreme unction on a service member or the family of a service member during the government shutdown would the Department of Defense deem that to be a legal or illegal act?

“Would the Department of Defense attempt to stop him from doing so?

“During the shutdown, would DOD try to stop any other civilian Catholic priest, who had been serving as a contract chaplain, from administering extreme unction to any service member at any U.S. military base any where in the world?

“Would Father Ray Leonard, or any other civilian Catholic priest serving on contract as a chaplain, be permitted to bring the sacrament of the Holy Eucharist to a service member or the family of a service member who was dying on a military based during the shutdown?

“As you can see, I have phrased these as yes-no questions, so I would like you to give me a yes-no answer. But I would also be happy to hear any explanation you would like to offer for the yes-no answers you do provide.”

Jonathan P. Lalley, the assistant press secretary for the National Security Council at the White House, responded swiftly. “We would refer you to our colleagues at DOD for comment,” he said in a return email.

On Wednesday morning, when DOD had not responded, CNSNews.com forwarded its original inquiry along with Lalley’s referral of it to DOD, to the spokespersons and officials at DOD to which the inquiry had been initially sent on Tuesday.

This time, Lt. Col. Breasseale sent an email in reply. It said:

“Good morning, Mr. Jeffrey. It's been a while since we've spoken.

“I understand that you are attempting to limit the kind of response you hope to receive. However, I feel no particular compulsion to answer outlandish, hypothetical questions in a yes/no fashion nor does the Department, generally, answer hypotheticals at all.

“Further, it is a matter of long standing Department policy to not address matters that are currently under active litigation. I'm sorry that the NSS sent you to us, but I suspect they might not have known that we are currently litigating. The Department of Justice handles the litigation for all agencies of the Executive, so my recommendation is that you contact them.”

So the question remains.