with whom
SLOVITER, Circuit Judge, joins, dissenting:I
This case is before us on an appeal from an order dated March 20, 1979, entered as a *1248partial final judgment pursuant to Fed.R. Civ.P. 54(b), dismissing plaintiffs’ claims for money damages from the individual defendants on the ground that those defendants all enjoy absolute immunity from such suits. The plaintiffs are Stanley Jaffee, who was drafted into the United States Army in 1952 and served as an enlisted soldier until April of 1954, and Sharon Blynn Jaffee, his wife. Both are now civilians, Mrs. Jaffee never having been a military person. The district court dismissed on the pleadings, and thus for our review we must take as true the allegations of the complaint.
The Jaffees charge that in the spring of 1953, while Mr. Jaffee was serving on active duty at Camp Desert Rock, Nevada, he and other soldiers were ordered to stand in an open field near the site of an explosion of a nuclear device without any protection against radiation; that the explosion exposed Jaffee and others to massive doses of radiation; that the defendants, civilians and military, responsible for ordering the attendance of the soldiers at the explosion site knew they were exposing the soldiers to grave risk of injury and death from the resultant exposure to radiation, but in disregard of this knowledge compelled Jaffee and others to be so exposed; that the defendants acted in excess of their authority; that there did not exist any sufficient legitimate purpose, military or otherwise, to justify exposing the soldiers to the dangers of radiation; and that the defendants knowingly, deliberately and recklessly conducted dangerous experiments on the bodies of the soldiers without their knowledge, permission and consent. Jaffee alleges that as a result of the exposure: he developed cancer which has required surgery, he has inoperable lymphatic cancer, he has been permanently injured, his life has been materially shortened, and he continues to suffer substantial pain, disability, emotional and mental anguish, and loss of enjoyment of life’s pleasures. He alleges as well that he has incurred, and will incur in the future, medical and other expenses. Reading the complaint, as we must, in the manner most favorable to Jaffee, we must assume that he could at trial prove medical and other expenses beyond those, if any, provided by the United States. Mrs. Jaffee alleges that she has been and will continue to be deprived of Jaffee’s services, society, consortium and companionship, and has been and will continue to be liable for his medical expenses. As with Jaffee’s claim, we must assume at this stage that she could prove that she incurred liability for medical expenses beyond any provided by the United States. The complaint charges that the acts of the defendants violated the rights of plaintiff, Stanley Jaffee, and other similarly situated soldiers under the First, Fourth, Fifth, Eighth and Ninth Amendments to the United States Constitution and were tortious under the laws of the various states.
These allegations charge a violation of human rights on a massive scale. The plaintiffs seek to prove, and we must at this stage assume that they can, that civilian and military officials of the government, acting without legal authority and with no sufficient legitimate military or other purpose, conducted a human experiment upon soldiers subject to their control, without their knowledge, permission or consent, by exposing them to radiation which those officials knew to be dangerous.
In Jaffee v. United States, 592 F.2d 712 (3d Cir.), cert. denied, 441 U.S. 1961, 99 S.Ct. 2406, 60 L.Ed.2d 1066 (1979), we considered a separate count which named only the United States as a defendant. That count sought notification to and medical treatment for all soldiers who were exposed to radiation at the Camp Desert Rock exercise. In our prior opinion we noted that in the class action plaintiffs did not rely upon the Federal Tort Claims Act of 1946, 28 U.S.C. §§ 1346(b), 2671-80 (1976). Although the government vigorously resisted any relief, we held that the 1976 amendments to section 702 of the Administrative Procedure Act, 5 U.S.C. § 702 (1976), waived sovereign immunity with respect to the claim for a mandatory injunction to compel notice to a class of potential victims. 592 F.2d at 718-20. We also held that *1249absent a waiver of sovereign immunity by Congress no court could order compensatory relief from the Treasury of the United States. 592 F.2d at 718. See U.S.Const. art I, § 9, cl. 7. The claims which are before us on this appeal do not seek monetary relief from the Treasury of the United States, and were not before the court on the prior appeal.
The sole ground relied on by the district court in dismissing the claims now before us was that the defendants, both military and civilian, enjoyed absolute immunity from suit, even when charged with intentional, unauthorized tortious conduct. On appeal a panel of this court unanimously reversed the district court’s March 20, 1979 order holding that there is no such absolute immunity.1 Thereafter the Department of Justice, which has from the outset appeared in the action on behalf of the individual defendants, filed a petition for rehearing en banc which was granted on April 11, 1980. The petition for rehearing addressed the question “whether the Feres doctrine provides an absolute intra-military immunity for tort suits.” Since the district court’s immunity holding would apply equally to claims based on federal or state law, there was no occasion for the appellants to address the applicability of state law either before the panel or before the court en banc. Defendants’ only contention before the district court with respect to plaintiffs’ state law claims was that they should not be considered because there is no independent basis for federal jurisdiction.2 That contention is meritless in light of the holding in our prior appeal, and the defendants did not brief the state law issues except for the claim of absolute immunity.
The present opinion of the court, authored by a judge who joined in the panel judgment reversing the dismissal of the claims against individual defendants, purports not to decide the appeal on immunity grounds. Instead, without briefing from either party in the district court or here, the court irresponsibly affirms the dismissal on what it claims is a different theory: that under federal or under state law a charge by a serviceman that he was subjected to the intentional tort of involuntary human experimentation, without legal authority and without military justification, fails to state a claim upon which relief can be granted in any court.
The Twentieth Century has witnessed time and again, in this country and elsewhere, the fragility of those protections which the legal order affords against human rights violations. One of those fragile protections is the admonitory law of intentional torts, designed to require public accountability for individual conduct, official or private, going beyond the bounds of social acceptability. Certainly the conduct charged in the complaint, if proved, transgressed those bounds. . Indeed the complaint alleges conduct which would violate the Universal Declaration of Human Rights,3 the International Covenant on Civil and Political Rights,4 the Geneva Convention,5 the Declaration on the Protection of all Persons from Being Subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment,6 and the Nuremberg Code.7 The international consensus against involuntary human experimentation is clear. A fortiori the conduct charged, if it occurred, was in violation of *1250the Constitution and laws of the United States and of the state where it occurred or where its effects were felt. That any judicial tribunal in the world, in the last fifth of this dismal century, would choose to place a class of persons outside the protection against human rights violations provided by the admonitory law of intentional torts is surprising. That it should be an American court will dismay persons the world over concerned with human rights and will embarrass our Government. That this court, which once had a deserved reputation for sensitivity to human rights issues, should undertake to do so is a saddening demonstration of the extent to which it has lost the spirit which once animated our deliberations.
The opinion of the court is couched in. terms of unwillingness to create a “new” cause of action. This cloak of deference to the legislative branch is disingenuous, for what the majority has done, by radical judicial legislation with totalitarian effects, is to wipe out causes of action designed to require official accountability. These causes of action have been a part of the common law for centuries and were recently reapproved by the Supreme Court. Moreover, while the opinion of the court purports not to reach the issue of defendants’ immunity, the very cases it relies upon expose the plain fact that this is an immunity decision masked as something else.8 But whether the majority’s result is couched in terms of the absence of a claim on which relief can be granted or in immunity terms, its radical totalitarianism cannot be denied, for it removes a large class of heretofore protected citizens from the law’s shield against willful torts.
One justification advanced for removing that protection is that military necessity demands it. The military necessity justification, according to the majority, has two aspects: the need for encouraging unquestioned obedience by inferiors (the serviceman as automaton principle), and the need for aggressiveness in decision making by military superiors (the macho principle). Of these justifications, only the macho principle applies to Mrs. Jaffee, who never was a member of the armed forces, since the presumed need for unfettered discretion is no less applicable to suits by civilian victims of intentional military conduct. Her claim has been dismissed without discussion. Thus the logic of the majority’s decision will bar actions by civilians for intentional torts committed by the military. That result is a prospect which should send chills up the spine of anyone interested in personal liberties, for there is no way to distinguish between the intentional tort of involuntary human experimentation and intentional torts directed at areas of privacy or expression. The other justification advanced by the majority is that Congress, in enacting veterans benefit legislation, intended the result. The rationale of the opinion of the court is not limited, however, to cases in which veterans benefits are available. It applies to all intentional torts, even those which do not produce permanent physical disability. Moreover, the majority’s assumption that Congress intended veterans benefits as a substitute for common law remedies for intentional torts is supported by no evidence in the veterans benefit statutes or their legislative history. Thus none of the grounds advanced as support for the majority’s result will withstand scrutiny. The real but unarticulated reason for the result is that the availability of a private remedy for intentional torts will encourage public accountability of the military, while foreclosing such a remedy will encourage concealment (the coverup principle).
II
In concluding that there is no federal common law cause of action for alleged conduct which all would concede would violate the standards for official conduct specified in the Constitution, the opinion of the *1251court attempts to identify “special factors counselling hesitation.” But as Judge Adams demonstrates in Part I of his opinion, the “special factors counselling hesitation” on which the opinion of the court relies are the very same factors which have been advanced in support of absolute federal common law military immunity derived from Feres v. United States, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). Indeed the chief source for the “special factors counsel-ling hesitation” is the Feres opinion. If in fact that opinion lends no support to the defendants’ absolute immunity contention, then the main premise for the court’s rejection of a Bivens remedy disappears. Thus in any real sense the opinion of the court is a federal common law immunity holding. The starting point for analysis of the justification for dismissing the complaint should therefore be the federal common law cases on official immunity. For sound analysis these cases must be distinguished for two reasons from cases involving the construction of statutes waiving sovereign immunity for suits to recover money from the United States Treasury. First, federal sovereign immunity has constitutional underpinnings. U.S.Const. art. I, § 9, cl. 7. Unlike official immunity it is not a creature of judge-made law. Second, in construing a statute waiving federal sovereign immunity, the intention of Congress, expressed not only in the waiver statute but in other statutes bearing on the question, should be controlling because only Congress can waive the Treasury Department’s immunity. By contrast, official immunity involves not the extent to which a constitutionally based sovereign immunity has been waived, but rather the extent to which a judge-made federal common law grant of special privilege should be enlarged. In suits for money from the Treasury, immunity is the rule and waiver the exception. In suits against individuals, accountability is the rule, and an immunity which prevents accountability is the exception. With these distinctions in mind, it is appropriate to examine the lines of authority on which the defendants and the opinion of the court rely. Those lines of authority, which foreshadowed the legal problem presented in this appeal, stem from two cases which were before the Court of Appeals for the Second Circuit in October 1949. One was Feres v. United States, 177 F.2d 535 (2d Cir. 1949), aff'd, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950). The other was Gregoire v. Biddle, 177 F.2d 579 (2d Cir. 1949), cert. denied, 339 U.S. 949, 70 S.Ct. 803, 94 L.Ed. 1363 (1950).
In the Feres case, the executrix of a deceased soldier sought recovery under the Federal Tort Claims Act against the United States for the death of her husband, who had died by fire in military barracks. Negligence was alleged in quartering him in barracks known to be unsafe. Judge A. Hand refused to construe the three-year-old Federal Tort Claims Act to cover injuries suffered while on military duty and distinguished the recently decided Brooks v. United States,9 on the ground that Brooks involved an injury to an off-duty soldier. As to injuries suffered while on duty, Judge A. Hand found the military pension system to be an exclusive remedy. In the same month, Judge Murrah, writing for the Tenth Circuit in Griggs v. United States, 178 F.2d 1 (10th Cir. 1949), rev’d, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), reached the opposite conclusion. The Supreme Court resolved the conflict in favor of the Second Circuit view.10 However, what Justice Jackson’s opinion in Feres stands for is a matter of some dispute and confusion — confusion which the opinion of the court in this case compounds.
In Gregoire, a Frenchman filed a complaint charging that two successive Attor*1252neys-General, two successive directors of the Enemy Alien Control Unit of the Department of Justice, and the District Director of Immigration at Ellis Island had conspired to arrest him on the pretense that he was a German enemy alien and had kept him in custody from January 5, 1942 until September 18, 1946, when he was released on a writ of habeas corpus. Gregoire sought money damages from the alleged conspirators. Judge L. Hand, for the court, affirmed a Rule 12(b)(6) dismissal of the complaint on the ground that each defendant, as a high executive branch official, enjoyed absolute immunity even if he acted out of evil motives.11 Judge L. Hand relied on Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), which recognized official immunity of the Postmaster General, a cabinet officer, from a suit arising out of an official communication. Gregoire was not reviewed by the Supreme Court.
In Feres, Judge A. Hand construed a recently enacted statute authorizing the imposition of tort liability for personal injury against the United States, and attempted to reconcile it with another statutory scheme for the payment of federal benefits. In Gregoire, Judge L. Hand did something quite different. He considerably extended a judicially created personal immunity doctrine to civil actions against high executive officials. As noted above, the two tasks are not coextensive, and the reasons that might favor narrow constructions of the federal government’s consent to suit are not the same as those which may favor the broadening of judge-made rules conferring individual personal immunity. Moreover, as will be seen hereafter, the doctrinal development of the two issues since 1949 has diverged completely. The post-1949 statutory interpretation of the Federal Tort Claims Act is found in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), and Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). These cases essentially preserve the reading of the Act made in Brooks and Feres. The law of individual personal immunity of federal officers has undergone an entirely separate development in a series of cases beginning in 1959 with Barr v. Matteo, 360 U.S. 564, 79 S.Ct. 1335, 3 L.Ed.2d 1434 (1959), and Howard v. Lyons, 360 U.S. 593, 79 S.Ct. 1331, 3 L.Ed.2d 1454 (1959), and culminating with the Court’s most recent discussion in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978). We should look for the solution to the present problem in the personal immunity holdings and not in the interpretations of the Federal Tort Claims Act.
In 1949, when Judge L. Hand wrote the Gregoire opinion, the notion of absolute official immunity for federal officers probably seemed a politically attractive idea. We had recently fought a war in which many things had been done which were thought necessary for victory, but which with the benefit of hindsight, probably would seem quite inconsistent with our concept of democracy and its traditions of personal integrity and individual freedoms.12 It was perhaps a fortunate fortuity that the Gregoire issue did not reach the Supreme Court for some time. When it did, in Barr v. Matteo and Howard v. Lyons, only four Justices — Harlan, Frankfurter, Clark and Whittaker — were ready to embrace absolute immunity. Justice Harlan’s plurality opinion in Barr quoted extensively from Judge L. Hand’s Gregoire opinion.13 Chief Justice Warren, and Justices Douglas, Brennan and Stewart dissented. The critical fifth vote in Barr v. Matteo was that of Justice Black, who on the authority of Spalding v. Vilas, 161 U.S. 483, 16 S.Ct. 631, 40 L.Ed. 780 (1896), was willing to recognize an immunity from liability for libel with regard to communications related to matters committed by law to the defendants’ control, and which were neither unauthorized nor plainly beyond the scope of his *1253official business.14 Thus Barr v. Matteo neither accepted nor definitively rejected Judge L. Hand’s position that federal officials were absolutely immune from liability even for intentional torts. There is a majority opinion in Howard v. Lyons, because Justice Stewart, who dissented in Barr v. Matteo, joined a majority in sustaining a plea of absolute privilege as a defense to a defamation action brought against the Commander of the Boston Naval Shipyard for a report he sent to the Massachusetts Congressional delegation, at the direction of the Secretary of the Navy. Obviously, since Justice Stewart joined in the decision, Howard v. Lyons cannot be read as recognizing an immunity as absolute as that proposed in Gregoire. With respect to the instant appeal, however, the significant point is that the defendant in Howard v. Lyons was a military officer, and he was treated for purposes of immunity the same as the civilian defendants in Barr v. Matteo. The plaintiffs in Howard v. Lyons were civilian employees of the Boston Naval Shipyard, and thus the case does not necessarily dispose of immunity from liability to members of the armed forces. But it does suggest that the military status of the defendant, at least, is not determinative.
With other wars and other times intervening, the Gregoire rule, which seemed so attractive to four Justices in 1959, began to lose its luster. The war against narcotics traffickers provided the Supreme Court with the next opportunity to speak on the rule. In Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), the Court held that a complaint seeking only damages from federal officers for injuries resulting from a violation of the fourth amendment stated a cause of action within the subject matter jurisdiction of the district court. Although the district court had held the defendants were absolutely immune, the majority declined to consider the defense of immunity because the Court of Appeals for the Second Circuit had declined to pass upon that question. 403 U.S. at 397-98, 91 S.Ct. at 2005. Justice Harlan, who twelve years earlier had written for a plurality in Barr v. Matteo, now saw the wisdom of recognizing uniform federal standards of liability of federal officers for certain types of official wrongdoing. Citing his opinion in Barr v. Matteo, he observed:
But, while I express no view on the immunity defense offered in the instant case, I deem it proper to venture the thought that at the very least such a remedy would be available for the most flagrant and patently unjustified sorts of police misconduct. Although litigants may not often choose to seek relief, it is important, in a civilized society, that the judicial branch of the Nation’s government stand ready to afford a remedy in these circumstances.
403 U.S. at 411, 91 S.Ct. at 2012. On remand, it was obvious to the Second Circuit that the Supreme Court’s tentative flirtation with its Gregoire rule of absolute immunity was at an end: charges of intentional misconduct could not be dismissed at the pleading stage on the basis of absolute immunity.15
Personal immunity from liability for governmental officials engaging in intentional misconduct next came under pressure with respect to state officials in the context of public resistance to the Vietnam War. By the time Scheuer v. Rhodes, 416 U.S. 232, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), was decided it had become apparent to the Court that a Gregoire type absolute immunity could become a powerful instrument in the suppression of dissent, and was inconsistent with the prevailing consensus about the limits of executive action. Thus a unanimous Court held that even the highest military officer of a state, the governor himself, as commander of the State National Guard, *1254was not absolutely immune from a suit for damages under 42 U.S.C. § 1983 for military steps taken in the alleged suppression of student dissent over the Vietnam War. Neither were subordinate officers nor enlisted soldiers found immune. Qualified rather than absolute immunity became the general rule with respect to state non-judicial officials in Wood v. Strickland, 420 U.S. 308, 95 S.Ct. 992, 43 L.Ed.2d 214 (1975).16 Once it was recognized that a Gregoire rule simply was too dangerous for general application to state military officials, it became evident that this concern was equally valid with respect to federal officials.
By the time Scheuer v. Rhodes and Wood v. Strickland had been decided, a major obstacle to holding federal officials accountable for damages caused by their intentional wrongdoing had been eliminated. That obstacle arose from the misplaced belief in the years following Erie R. Co. v. Tompkins,17 that state law was the only source for common law tort remedies. If that belief were so, federal officials, responsible to a national rather than a local constituency, might nevertheless be subjected to various standards of liability for their conduct from state to state. Therefore, it was urged, their conduct should be immune. The Court in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), perhaps influenced by Judge Friendly,18 effectively disposed of that red herring by recognizing that federal judges were as capable of developing uniform federal common law standards as were their state court counterparts. With the myth of non-uniformity removed from the discussion, it was probably inevitable that the Court would, first in Doe v. McMillan, 412 U.S. 306, 93 S.Ct. 2018, 36 L.Ed.2d 912 (1973), with respect to lower level federal officials, and then in Butz v. Economou, 438 U.S. 478, 98 S.Ct. 2894, 57 L.Ed.2d 895 (1978), with respect to cabinet officers, finally and unequivocally reject the Gregoire rule of absolute immunity for intentional torts. And, as Justice White noted in Butz, although the Bivens opinion put aside the immunity question, the Court, “could not have contemplated that immunity would be absolute.” 438 U.S. at 505, 98 S.Ct. at 2910. Thus Gregoire was implicitly rejected. Justice White went on to announce political truths which should have been truisms, even in 1949, in a democratic society based on principles of individual integrity and freedom:
The extension of absolute immunity from damages liability to all federal executive officials would seriously erode the protection provided by basic constitutional guarantees. The broad authority possessed by these officials enables them to direct their subordinates to undertake a wide range of projects — including some which may infringe such important personal interests as liberty, property, and free speech. It makes little sense to hold that a Government agent is liable for warrantless and forcible entry into a citizen’s house in pursuit of evidence, but that an official of higher rank who actually orders such a burglary is immune simply because of his greater authority. Indeed, the greater power of such officials affords a greater potential for a regime of lawless conduct. Extensive Government operations offer opportunities for unconstitutional action on a massive scale. In situations of abuse, an action for damages against the responsible'official can be an important means of vindicating constitutional guarantees.
Our system of jurisprudence rests on the assumption that all individuals, whatever their position in government, are subject to federal law:
*1255“No man in this country is so high that he is above the law. No officer of the law may set that law at defiance with impunity. All the officers of the government, from the highest to the lowest, are creatures of the law, and are bound to obey it.” United States v. Lee, 106 U.S. [196], at 220 [1 S.Ct. 240 at 261, 27 L.Ed. 171].
See also Marbury v. Madison, 5 U.S. (1 Cranch) 137 [2 L.Ed. 60] (1803); Scheuer v. Rhodes, 416 U.S., at 239-240 [94 S.Ct., at 1687-1688]. In light of this principle, federal officials who seek absolute exemption from personal liability for unconstitutional conduct must bear the burden of showing that public policy requires an exemption of that scope.
438 U.S. at 505-06, 98 S.Ct. at 2910.
If the charges in the complaint are true, the defendant officials responsible for the activity complained of clearly fit within the description of officials who have directed their subordinates to undertake infringements of liberty. These officials are charged with having directed, without legal authority, a massive experiment in subjecting soldiers to radiation. Certainly the generally applicable federal law of official immunity announced in Butz v. Economou would not provide absolute immunity for these defendants.
The revolution in official immunity doctrine from Barr v. Matteo through Butz v. Economou was a return to first principles of the common law tradition of accountability. There was never a time, except during the fortunately short influence of Gregoire v. Biddle, in which government officials were exempt from the obligation to account for their conduct in a court of law. The military was never an exception. As early as 1804 in Little v. Barreme, 6 U.S. (2 Cranch) 170, 2 L.Ed. 243 (1804), the Court held the Commander of a United States warship liable for damages for an unlawful seizure of a neutral vessel even though he acted upon instructions of the President of the United States. Chief Justice Marshall’s words in that case suggest the proper relationship between the rule of law and the necessity for a military establishment in a democracy:
I confess, the first bias of my mind was very strong in favor of the opinion, that though the instructions of the executive could not give a right, they might yet excuse from damages. I was much inclined to think, that a distinction ought to be taken between acts of civil and those of military officers; and between proceedings within the body of the country and those on the high seas. That implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system, appeared to me strongly to imply the principle, that those orders, if not to perform a prohibited act, ought to justify the person whose general duty it is to obey them, and who is placed by the laws of his country in a situation which, in general, requires that he should obey them. I was strongly inclined to think, that where, in consequence of orders from the legitimate authority, a vessel is seized, with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is, that the instructions cannot change the nature of the transaction, nor legalize an act which, without those instructions, would have been a plain trespass.
6 U.S. at 179. Thus from the beginning our law refused to recognize the macho principle of which the opinion of the court makes so much. The question was presented again in Bates v. Clark, 95 U.S. 204, 24 L.Ed. 471 (1877), in which the Supreme Court held an army captain liable in damages for confiscating plaintiffs’ liquor, despite a plea of official immunity for action taken in enforcing the ban on alcohol in Indian Territory. Justice Miller wrote:
It is a sufficient answer to the plea, that the defendants were subordinate officers acting under orders of a superior, *1256to say that whatever may be the rule in time of war and in the presence of actual hostilities, military officers can no more protect themselves than civilians in time of peace by orders emanating from a source which is itself without authority. The authority of the commandant of the post in the case was precisely the same as the Indian agent or sub-agent, or superintendent; and it will hardly be maintained that if either of them, wholly mistaking their powers, had seized the goods, he would have incurred no liability.
So the plea that they had good reason to believe that this was Indian country, and that they acted in good faith, while it might excuse these officers from punitory damages, is no defence to the action. If it had been Indian country, and it had turned out that the plaintiffs had a license, or did not intend to sell or introduce the goods, the fact that defendants acted on reasonable ground would have exempted them from liability.
But the objection fatal to all this class of defences is that in that locality they were utterly without any authority in the premises; and their honest belief that they had is no defence in their case more than in any other, where a party mistaking his rights commits a trespass by forcibly seizing and taking away another man’s property.
95 U.S. at 209. Little v. Barreme, Bates v. Clark and Howard v. Lyons establish unequivocally that the military status of the defendants or the military nature of their duties confers on them no immunity different in kind from that of other government officials. The macho principle has never been a feature of our law. Thus to the extent that the majority opinion relies on the necessity for aggressive exercise of military decisionmaking as a reason for its holding, it has strayed far outside the limits of traditional American thinking about the appropriate role of the military in our government. If the weak infant republic could in the interest of accountability reject the macho principle when faced with the perils of the Napoleonic wars, the reason for adopting it in a mature and powerful republic escapes me.
It remains to explore whether the fact that the alleged victims were members of the armed forces would significantly alter the federal law on immunity otherwise applicable. That question involves reliance, in the majority opinion, on the serviceman as automaton principle. For our exploration we may return once again to our November 1949 starting place in the Second Circuit. In Feres, Judge A. Hand treated the Federal Tort Claims Act issue as a matter of statutory interpretation, and grounded his interpretation primarily on the fact that other federal statutes provided compensation to some extent without regard to fault.19 Since Mrs. Feres had not sued the allegedly negligent officers individually, Judge A. Hand had no occasion to and did not discuss whether they could be sued.20 Feres should be contrasted with Gregoire, where the complaint charged an intentional tort of false arrest to which by definition the Federal Tort Claims Act in 1949 did not apply.21 Judge L. Hand was dealing with the entirely separate and nonstatutory issue of whether federal officials, sued individually, were absolutely immune from civil liability under either state or federal law as a consequence of a judicially created rule of federal common law. When Feres arrived in the Supreme Court, however, Justice Jackson’s opinion included language which has since tended to becloud the distinction between the Feres and Gregoire issues. He noted that the Federal Tort Claims Act imposed liability on the “United States . . . in the same manner and to the same extent as a private individual under like eircum*1257stances. ...” 340 U.S. at 141, 71 S.Ct. at 157 (quoting 28 U.S.C. § 2674). This was, of course, a reference to the application of state tort laws, and it precluded the approach, later adopted by the Court in Bivens, of a uniform federal rule applicable to plaintiffs and defendants regardless of the situs of the accident. Justice Jackson assumed that Congress would not desire the imposition of such potentially diverse legal standards in the distinctly federal relationship of the government and members of its armed forces. 340 U.S. at 143, 71 S.Ct. at 158. That reason for construing the Federal Torts Claims Act as inapplicable to soldiers, whatever its weight, still applies, since the statute by its terms adopts state law standards of liability. But since the decision in Bivens, that reason is wholly inapplicable to suits against individual federal officers since the federal courts are free to fashion a uniform federal common law. Thus the problem of nonuniformity to which the opinion refers is not present in the case before us, at least insofar as the majority discussion of a federal common law remedy is involved.
Justice Jackson, however, advanced another reason for placing the military outside the coverage of the Act. Noting the reference to state law, he observed:
One obvious shortcoming in these claims is that plaintiffs can point to no liability of a “private individual” even remotely analogous to that which they are asserting against the United States. We know of no American law which ever has permitted a soldier to recover for negligence, against either his superior officers or the Government he is serving.10 Nor is there any liability “under like circumstances,” for no private individual has power to conscript or mobilize a private army with such authorities over persons as the Government vests in echelons of command.
340 U.S. at 141-42, 71 S.Ct. at 157 (emphasis added). The quoted passage is the source for the later confusion as to the existence of a separate doctrine of absolute immunity of military officers from suits by members of the armed forces. It is quite clear, however, that there never was such absolute immunity, and that Justice Jackson never intended to suggest that there was. Indeed, such a suggestion coming from a Justice recently returned from acting as prosecutor in the Nuremberg Trials, where he had seen ample evidence of the need to make the military responsive to basic principles of personal integrity, would have been quite surprising. Jackson stated only that he knew of no intra-military state law of negligence.22 Moreover, in the *1258same sentence, he makes a footnote reference to cases recognizing the liability of military officers for intentional torts. Dinsman v. Wilkes, 53 U.S. (12 How.) 389, 13 L.Ed. 1036 (1851), to which Justice Jackson refers in Feres, is important in two respects. First, it is closely analogous, factually, to the dispute before us. Second, it was relied upon by Justice White in the opinion of the Court in Butz v. Economou, 438 U.S. at 492, 98 S.Ct. at 2903.23
In 1836 Congress directed the Navy to undertake what was for that age an enormous and important scientific enterprise: a surveying and exploring expedition of the Pacific Ocean and the South Seas.24 At the time of the expedition involved in Dinsman, the law provided that if the term of enlistment of a navy seaman expired while the vessel on which he served was in foreign service, the commanding officer was obliged to send him to the United States in some public or other vessel unless his detention was essential to the public interest.25 Dinsman, a marine serving in the exploring expedition on board the vessel Vincennes, contended in 1840 that his enlistment was over and that he should be put on board a returning vessel. Captain Wilkes, the commanding officer, declined. He contended that the enlistment had been lawfully extended, and when Dinsman refused to render service, Wilkes ordered him flogged. Dinsman continued to demand that he be returned, and was flogged and locked in the brig on more than one occasion. When the vessel called at Oahu, Hawaii, for repairs, he was lodged in a local and allegedly dismal lock-up. Upon his return to the United States, Dinsman sued Wilkes in trespass vi et armis for assault and battery and false imprisonment, alleging, among other things, that he had been subjected to cruel and unusual punishment in violation of the eighth amendment and that his detention and punishment on Wilkes’ orders were without legal justification.26 A jury in the circuit court in the District of Columbia returned a verdict in Dinsman’s favor. The Supreme Court reversed on a writ of error because the trial court’s charge was too favorable to the plaintiff. Wilkes v. Dinsman, 48 U.S. (7 How.) 88, 12 L.Ed. 618 (1849). Justice Woodbury noted, however, that while there was a presumption of regularity with respect to the imposition of military discipline, there was no absolute immunity from liability' for intentional torts. He observed:
It is not to be lost sight of . . . that, while the chief agent of the government, in so important a trust, when conducting with skill, fidelity and energy, is to be protected under mere errors of judgment in the discharge of his duties, yet he is not to be shielded from responsibility if he acts out of his authority or jurisdiction, or inflicts private injury either from malice, cruelty, or any species of oppression, founded on considerations independent of public ends.
The humblest seaman or marine is to be sheltered under the aegis of the law from any real wrong, as well as the highest in office.
48 U.S. at 122. A new trial followed. This time the jury verdict favored Wilkes, but on writ of error the Supreme Court again reversed and ordered a third trial because of errors in the admission and exclusion of evidence. Dinsman v. Wilkes, 53 U.S. (12 How.) 389, 13 L.Ed. 1036 (1851). The reasons for reversal in each case are not particularly relevant for our purposes. What is *1259relevant is that both cases make it abundantly clear that a member of the armed service is not absolutely immune from suit by another member for a willful tort,27 although he may be entitled to a charge suggesting some degree of qualified immunity, which must be determined at trial.
Justice Jackson very carefully distinguished in Feres between the action on the case for negligence28 and an intentional tort.29 His Feres opinion simply cannot be read, as the district court and others read it, to suggest absolute intra-military immunity from liability for intentional torts.30 Moreover, no post-Feres opinion of the Supreme Court suggests the existence of any separate category of absolute intra-military immunity. And in Butz v. Economou, Justice White states explicitly and unequivocally that Wilkes v. Dinsman was not overruled by Spalding v. Vilas.31 The immunity of military superiors is the same as, but no more than, the qualified immunity afforded to other members of the executive branch. That conclusion has been clear from Little v. Barreme in 1804 through Wilkes v. Dins-man in 1849 and Bates v. Clark in 1877 and Howard v. Lyons in 1959 to Butz v. Economou in 1978. In that line of authorities, Wilkes v. Dinsman also negates use of the serviceman as automaton principle relied on in the opinion of the court.
There is, moreover, statutory authority plainly undercutting the majority’s serviceman as automaton rationale for its decision. The policy of American military law is not to encourage blind obedience by discouraging complaints of official misconduct. It is just the opposite. It is embodied, moreover, not in the statutes dealing with veterans benefits, which by no stretch of the most fevered imagination can be construed to have anything to do with military discipline, but in the statute in which Congress dealt directly with that subject. The Uniform Code of Military Justice and its predecessors — the Articles of War and the Articles for the Government of the Navy — far from discouraging complaints of wrongs committed by military superiors, affirmatively encourage them. 10 U.S.C. §§ 938, 939.32 *1260That policy has been part of our military law since at least 1806.33 Moreover, lest it be thought that such complaints are a matter for intra-military concern only, it is settled that results of such complaints are judicially re viewable. E. g., Colson v. Bradley, 477 F.2d 639 (8th Cir. 1973); Cortright v. Resor, 447 F.2d 245 (2d Cir.), cert. denied, 405 U.S. 965, 92 S.Ct. 1172, 31 L.Ed.2d 240 (1972). Since throughout our military history a policy of encouraging complaints of wrongs by military superiors has been codified in those statutes enacted by Congress pursuant to its constitutional authority to “make Rules for the Government and Regulation of the land and naval forces,”34 it requires a considerable judicial impudence to announce that permitting complaints in a court of law would be injurious to the discipline of the armed forces. Our armed services have served the republic reasonably well under a policy which encourages complaints and requires redress of wrongs.
Scheuer v. Rhodes is the complete answer to the majority’s reliance on the macho principle as a justification for absolute immunity, for that principle is equally applicable to suits by civilians, which that case permits. The ancient complaint procedures embodied in the Uniform Code of Military Justice afford a complete answer to the majority’s reliance on the serviceman as automaton principle, since our statutory military policy encourages complaints about and redress of intra-military wrongs. The two policy reasons advanced in support of a military necessity rationale have been rejected by the policymakers whose policy judgments should be accepted by this court.
Thus when the majority announces an intra-military immunity so broad as to deprive every court in the land of jurisdiction to hear a claim for relief for the commission of a willful tort, it explores new. territory and invents new doctrines unwarranted by our historical experience. Nonetheless the defendants urge, and the majority judges apparently believe, that sound policy compels such invention. It is contended by defendants that if military superiors could be sued for the intentional infliction of harm, the result would be that federal judges would exercise judicial review over their decisions. This is urged as an unthinkable proposition. It was not unthinkable to the Supreme Court in the Dinsman case. The opinions in that case disclose that Captain Wilkes was tried by a navy court martial for his conduct during the Exploring Expedition and found not guilty. He urged throughout that the favorable outcome of the court martial precluded the imposition of personal liability. The Court held to the contrary; the outcome was not even admissible into evidence. Dinsman v. Wilkes, 53 U.S. at 405. Even the existence of a separate system of military justice did not preclude accountability in a civil action in a court of law.
Faced with the decision in Wilkes v. Dinsman, Congress has had over one hundred thirty years to react to it legislatively in the exercise of its power “[t]o make Rules for the Government and Regulation of the land and naval Forces.” U.S. Const, art. I, § 8, cl. 14. It has never chosen to confer absolute immunity. Instead, in keeping with a *1261long historical tradition,35 it has done no more than provide for removal of such suits to a federal forum. The presently applicable statute is 28 U.S.C. § 1442a (1976), which is derived from Section 9 of the Uniform Code of Military Justice.36 Section 9 in turn was based on the Articles of War.37 Certainly, Congress is in a better position than we are to judge whether protection other than removal to a federal forum is necessary for the government of the armed forces.38
It is now settled, I had hoped beyond dispute, that even the very decisions of that separate system of military justice are sub-some f°rm judicial review in the Article III courts.39 The issue is not availa*1262bility of judicial review over actions by the military departments of the executive branch, but the appropriate limits of such review. Those limits are found in the holdings in Butz v. Economou, Scheuer v. Rhodes, and Wood v. Strickland, which requires that a charge be given which recognizes a qualified rather than an absolute immunity.
The only viable policy ground supporting the opinion of the court is the cover up principle. Denying servicemen access to the courts of law for wrongs committed by their superiors will have the inevitable effect, in a closed society like the military, of encouraging concealment, while the availability of such access even when infrequently used will tend to encourage disclosure and accountability. It is unfortunately the case that even democratic governments must have military establishments in order to maintain effective sovereignty. There are, however, numerous examples of governments democratic in form but totalitarian in fact, because, unlike the United States, their military establishments have become the embodiment of the national sovereignty rather than the controlled means whereby democratically chosen civilians may rule. We have been spared that unhappy state in large part because we have always insisted that the military cannot conceal its activities from review by civil authority. The courts have played a significant role in maintaining civil control. A decision which eliminates an important means of access to the courts — a means which in some cases may be the last resort in face of efforts at concealment — is a major assault upon an important citadel of American democracy: military accountability to civil government. The decision embodies a public policy that is affirmatively evil. Rather than a “special factor counselling hesitation”, the military status of the victims and the perpetrators is a special factor calling for vigilance.
III
In Part I of his opinion Judge Adams disassociates himself from the holding in the opinion of the court that the Supreme Court’s immunity decisions supply “special factors counselling hesitation” in recognizing a federal common law cause of action for involuntary human experimentation on servicemen. For the reasons set forth in Part II of this opinion, his disassociation is sound. Nevertheless he, too, joins the majority’s foregone conclusion that government officials, military and civilian, charged with conducting that experimentation will not be held accountable in a federal court of law. His route to that result, unfortunately, is no more candid in its treatment of the materials relied upon than the opinion of the court. He acknowledges that the governing standard for recognizing a cause of action against federal officials under the federal common law for constitutional violations, in the absence of a statute conferring it, is that announced in Carlson v. Green, 446 U.S. 14, 100 S.Ct. 1468, 64 L.Ed.2d 15 (1980). That case holds that such a federal common law cause of action is presumptively available except in two situations:
The first is when defendants demonstrate “special factors counselling hesitation in the absence of affirmative action by Congress.” 403 U.S. at 396 [91 S.Ct. at 2004] [Bivens]; Davis v. Passman, 442 U.S. 228, 245 [99 S.Ct. 2264, 2276, 60 L.Ed.2d 846] (1979). The second is when defendants show that Congress has provided an alternative remedy which is explicitly declared to be a substitute for recovery directly under the Constitution and viewed as equally effective. Bivens, supra, at 397 [91 S.Ct. at 2005]; Davis v. Passman, 442 U.S. at 245-47, [99 S.Ct. at 2276-77].
446 U.S. at 18-19, 100 S.Ct. at 1471-1472. Judge Adams concedes that the case does *1263not fall within the first exception despite the labored effort of the opinion of the court. He then undertakes a search for a statute in which Congress has provided an alternative remedy as a substitute for recovery for intra-military intentional torts. He cannot find one in Title 10 of the United States Code, in which Congress has exercised its power to make rules for the governance of the military, and turns in desperation to the veterans benefit legislation — 38 U.S.C. Nowhere in the latter can he find a place in which Congress “explicitly declared” that the benefits provided be viewed as equally effective as an action for money damages. Thus he is compelled, in order to reach the agreed upon foregone conclusion, to rewrite both Carlson v. Green and Title 38 of the United States Code.
To remove from the Carlson v. Green standard the requirement of an explicit declaration preempting suits for money damages he reasons that Congress could not have made such an explicit declaration because the last Veterans Benefit Act was passed in 1958, thirteen years before the Supreme Court decided Bivens. This reasoning is disingenuous. In the first place, money damages could be recovered under state tort law for intentional and negligent torts' in 1958. Thus despite the confusion about federal common law which reigned between 1938 when Erie v. Tompkins, was announced and 1971, when Bivens restored a semblance of rationality, Congress had to be well aware in 1958 of the possibility of actions for money damages in the state courts. An intention by Congress to foreclose a federal eommon law remedy for money damages while leaving open the possibility of suits in state courts would be irrational. If it wanted to cut off state remedies, it could in 1958 have made the explicit declaration which Carlson v. Green requires. Thus the time of enactment of the veterans benefit legislation can be no basis for this intermediate court to find that requirement satisfied. Moreover, Judge Adams’ reasoning ignores the patent reality that in every Congress since 1971 the level of veterans benefit legislation has been considered, either in the appropriation process or otherwise. Indeed the speciousness of his reasoning is demonstrated internally in the concurring opinion, which relies, in finding a Congressional intention to eliminate third party money damage claims, upon a snippet of the legislative history of the Veterans and Survivors Pension Adjustment of 1976.40 That legislation, surely, presented Congress with a post-Bivens opportunity to make the explicit declaration which Carlson v. Green requires.
Judge Adams cannot find in Title 38 any indication whatever that Congress dealt with the subject matter of tort actions against third parties by veterans or their families. He turns to the extensive legislative history of that title. The first veterans benefit statute was enacted on September 29, 1789,41 and at no time since have we been without such legislation. Searching 182 years of legislative history for the slightest hint of an expression which can be tortured into a Congressional intention arguably satisfying Carlson v. Green, the opinion relies on a 1976 statement, and lifts it completely out of context. Plainly, the statement relied upon — “[t]he [Congress] periodically reviews the service-connected disability compensation program to ensure that authorized benefits provided reasonable and adequate compensation for disabled veterans” — Concurring Opinion, at 1245, deals with the problem of inflation, not the problem of third party actions.42 A brief *1264writer would be criticized for taking similar liberties with legislative materials.
Further evidence of the illogic of the separate opinion is the effort to bolster the unfair use of legislative history with a citation to Stencel Aero Engineering Corp. v. United States, 431 U.S. 666, 97 S.Ct. 2054, 52 L.Ed.2d 665 (1977). Relying on a reference to Stencel Aero in Hatzlachh Supply Co., Inc. v. United States, 444 U.S. 460, 100 S.Ct. 647, 62 L.Ed .2d 614 (1980), the opinion, again out of context, uses the quotation: “In Stencel, Congress had provided a remedy, which we thought to be exclusive.” 444 U.S. at 464, 100 S.Ct. at 650. The quoted language cannot refer to any “exclusive remedy” except that against the United States. Stencel Aero was a case in which an injured serviceman was pursuing a tort action against a third party, whose claim for indemnity by the United States was rejected. The opinion in that case clearly assumes that third party actions are available to servicemen despite service and veteran benefit programs. The question was not specifically addressed because there was no need to. Both in Brooks v. United States, 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949), and in United States v. Brown, 348 U.S. 110, 75 S.Ct. 141, 99 L.Ed. 139 (1954), in service and veterans benefits were available to the plaintiffs, but the Court held that plaintiffs could recover under the Federal Tort Claims Act because third party actions would lie despite that availability. Rather than supporting Judge Adams’ attribution of Congressional intention to limit recovery from third parties then, Stencel Aero points in a 180 degree different direction. In light of the Brooks and Brown holdings, the construction of Hatzlachh and of the holding in Stencel Aero set out in the concurring opinion are utterly unsupportable.
Moreover, speaking of employee benefit programs generally, inclusion of an express prohibition on third party actions would be a legal anomaly. Workers’ compensation legislation is the civilian analogue to veterans benefits. The federal employee compensation statute limits the liability of the United States. 5 U.S.C. § 8116 (1976). But like compensation statutes generally, the federal law permits third party actions, even against fellow employees.43 Indeed the United States has provided itself by law with a subrogation lien on claims against third parties for injury to servicemen for those expenses it has incurred.44 The statute expressly preserves third party actions, making no exception for fellow servicemen defendants.45 In many cases the claims of the United States and of the serviceman have gone forward in the same action.46 Some of those cases have been against members of the armed forces.47 Here Congress has spoken explicitly to the question whether its benefit programs should determine the level of recovery, and has said otherwise.
The result which Judge Adams would reach by the legerdemain of rewriting Carlson v. Green and Title 38 would produce an even more peculiar set of anomalies. He would apparently permit a Bivens type of action in cases where the tort did not produce the kind of permanent injury which qualifies for veterans benefits, but deny it when the tortfeasor caused such injury. Thus if a serviceman received a painful beating — the rubber hose treatment, for example — but recovered, he could sue in federal court, but if the rubber hose knocked out his eye, he could not. Similarly, since dishonorably discharged servicemen are *1265generally barred from receiving benefits, 38 U.S.C. § 3103(e)(2), Judge Adams would presumably allow recovery by one discharged after a court martial, but deny recovery to one who had been honorably discharged. No rational Congressman would make such distinctions. Moreover, Judge Adams would, in the event of a permanent injury, permit suit in a state court despite the availability of veterans benefits. This would treat veterans benefits as adequate to foreclose recovery under federal law but inadequate to foreclose such recovery in a suit in a state court. As noted earlier, no rational Congressman would design such a system. This is especially true when the standard of conduct relied upon by the plaintiff is a federal constitutional provision to be applied by the state court because of the Supremacy Clause. The plain fact is that Congress has never, directly or indirectly, expressed an intention to make veterans benefits preemptive of federal or state tort actions. A fortiori the availability of such benefits lends no support to the holding of the court that intramilitary actions for money damages for intentional torts of any kind are not permitted.
IV
While Judge Adams would remand for further consideration of the state law claims, the opinion of the court holds that those claims are preempted. It is worth noting, however, that aside from their absolute immunity contention, defendants did not urge state law preemption. To the contrary, they told us:
Plaintiffs’ allegations in this case, if true, would undoubtedly show egregious government misconduct, but for all appearances, their claim arises under traditional tort law, not the Constitution.
Appellees’ Brief at 26. The same concession was made in the district court. There was no occasion for the plaintiffs to argue that if a federal common law cause of action were rejected, the state law claim ought to be considered. In these circumstances the opinion of the court in sua sponte holding state law of intentional torts to be preempted in the military setting is a violation of fundamental principles of appellate due process.
I must concede, however, that since the opinion of the court is in a realistic sense an immunity decision, the result of the preemption discussion is at least logical. If there were absolute intra-military immunity it would apply regardless of the source— federal or state — of the cause of action. But there is no such immunity, and the rationale for rejecting a Bivens -type claim is no more satisfactory when applied to the pendent state law claim. Preemption analysis is appropriate only when two regulatory schemes, state and federal, are in such actual conflict that both cannot stand in the same field, or where Congress has unmistakably preempted the field. Florida Avocado Growers v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 1217, 10 L.Ed.2d 248 (1963). If the majority were correct that there is no federal common law cause of action, then there is no possibility of a conflict between state and federal regulatory schemes. Moreover, it cannot point to any statute by which Congress has unmistakably preempted the state law of intentional torts. The majority’s opinion is thus inconsistent with settled preemption rules. The result is sustainable only on immunity grounds, but as noted in Part II, absolute immunity is foreclosed by any fair reading of the governing caselaw.
I would hold that the cause of action is, absent absolute immunity, one arising under federal law. If, as defendants urge, servicemen’s claims for constitutional violations causing harm arise under traditional state tort law, most such suits would start in state courts in the absence of complete diversity. Federal military official defendants would undoubtedly exercise the right to remove to a federal tribunal. 28 U.S.C. § 1442(a) (1976). But even in a removed case, since the underlying cause of action arose under state law, the federal tribunal would be obliged to apply the law of the state, including its choice of law. That result would, from the point of view of the federal military establishment, be thorough*1266ly undesirable, for it would prevent the recognition of uniform standards of liability and uniform defenses.
On the other hand, the recognition that the claim arises under the Constitution and laws of the United States means that even if the suit is not removed from a state court the applicable law will be uniform. In the military context, in which residents of many states are brought together, and few have any choice as to location, the need for such uniformity is compelling. A stronger case for federal common law can hardly be imagined.
The opinion of the court certainly achieves uniformity by providing that all courthouse doors are shut for all intentional torts. No civil court may redress unlawful searches and seizures, false imprisonments, or beatings. If a military command tolerates the presence of a Ku Klux Klan Klavern on a post and its members assault blacks or steal their property, the victims are deprived of access to a civil tribunal, which might expose a military cover-up. If female service personnel are raped while on duty, they are deprived of the right to insist that the aggressors respond in damages. If a commanding officer places a sadist in charge of the brig, his victims will be dependent for redress solely upon the chain of command which placed the sadist in charge. That kind of uniformity is purchased at too high a price in any society which treasures human rights. “In situations of abuse, an action for damages against the responsible official can be an important means of vindicating constitutional guarantees.” Butz v. Economou, 438 U.S. at 506, 98 S.Ct. at 2910.
V
The majority concludes that the complaint fails to state a claim for relief under either federal or state law, and does not reach other grounds advanced by the defendants. Since I would reverse the district court’s dismissal those grounds should be addressed.
A
The defendants urge that the order appealed from should be dismissed because no defendant is subject to service of process by a New Jersey forum. Service was made pursuant to Fed.R.Civ.P. 4(e) and New Jersey Civil Practice Rule 4:4-4(e), which authorize out of state service on nonresident defendants subject to due process limitations. Thus defendants can succeed in their personal jurisdiction argument only if we were to conclude that the exercise of adjudicatory authority by a New Jersey court over this lawsuit would violate due process.48
The defendants rely on World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), Kulko v. Superior Court of California, 436 U.S. 84, 96 S.Ct. 1690, 56 L.Ed.2d 132 (1978), Shaffer v. Heitner, 433 U.S. 186, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977) and International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945). That reliance is misplaced. Jaffee allegedly resided in New Jersey, he was drafted and transported involuntarily to Nevada, he was there subjected to radiation which eventually produced harm in New Jersey. It is in New Jersey that he is being treated for cancer, in New Jersey that he suffers pain, in New Jersey that his wife is being deprived of his services and companionship. It is an extreme reading of the due process clause to require Jaffee to follow the defendants to the several states in which they now reside. The military circumstances of the case highlight the potential burdens for such plaintiffs and the need for uniform standards.
The district court did not fully develop its jurisdictional analysis and did not have the benefit of the recent Supreme Court decision in World-Wide Volkswagen Corp. v. Woodson, supra, which deals with due process limitations on state long-arm in person-am jurisdiction. The federalism concerns which appear to have motivated the World*1267Wide Volkswagen Corp. majority, 444 U.S. at 293-94, 100 S.Ct. at 595, probably do not apply here since it is unlikely that any state’s law could have controlled defendants’ conduct or that any state would be interested in protecting defendants from liability for constitutional torts. But since the district court did not consider the matter in detail, I would affirm its judgment without prejudice to a reconsideration of the personal jurisdiction issue upon a proper motion. If the district court concludes that there is no personal jurisdiction, that fact alone would not preclude its authority to transfer the case for venue reasons under 28 U.S.C. § 1406(a) (1976). See Goldlawr, Inc. v. Heiman, 369 U.S. 463, 82 S.Ct. 913, 8 L.Ed.2d 39 (1962); Schwilm v. Holbrook, 661 F.2d 12 (3d Cir. 1981).
B
Finally, defendants urge that the dismissal of the complaint should be affirmed because under 28 U.S.C. § 1391(b) (1976) venue did not lie in New Jersey. They contend that for venue purposes the cause of action arose, if at all, only in Nevada. The district court held, I think properly, that the action arose in New Jersey, where the effects of the radiation were first manifested. If plaintiff had not developed cancer he would not be seeking damages. While he was exposed to radiation in Nevada, his cause of action for radiation-induced cancer, which eventually developed when he resided in New Jersey, arose in Nevada only in some metaphysical sense. Clearly there was venue in New Jersey under 28 U.S.C. § 1391(e) for Count IV which we considered in Jaffee I and to which the claims now before us are intimately related. In any event, the defendants’ venue argument is not a reason for affirming the dismissal of the complaint. At most we would have to remand so that the district court could consider a transfer. 28 U.S.C. § 1406(a) (1976). See Brimer v. Levi, 555 F.2d 656 (8th Cir. 1977).
VI
It is appropriate to note my complete agreement with Judge Hunter’s strong objection to the Courts of Appeals basing their decisions upon prophecies of how the Supreme Court would decide the same case. To his objection I add this observation: what in the opinion of the court apparently is intended as an anticipatory genuflection to our superiors may instead be perceived, on the evidence of Scheuer v. Rhodes, as a gratuitous libel. I remind my brethren that in the Sixth Circuit Court of Appeals the majority accepted the same military necessity arguments which they now predict the Supreme Court will accept. Judge Celebrezze, the member of the Sixth Circuit Court of Appeals with actual experience as the Commander-in-Chief of the Ohio National Guard, recognized those arguments as the nonsense they are. Krause v. Rhodes, 471 F.2d 430, 447-68 (6th Cir. 1972). It is his view which was adopted by a unanimous Supreme Court. The Court recognized, what Judge Celebrezze knew from his experience in government, that in a democracy we have far more to fear from the lack of military accountability than from the lack of military discipline or aggressiveness. There is no evidence that the Supreme Court has changed its mind.
VII
Years ago, Chief Justice Cockburn, rejecting the contention that military discipline required absolute intra-military immunity from suit, cogently and eloquently observed:
In substance [the argument] comes to this. It is essential to the efficiency of an army that discipline should be upheld; that obedience to orders however desperate and peremptory should be enforced; that the energy of commanding officers in giving such orders, in cases of trying emergency, and enforcing obedience of orders and observance of discipline . . . should not be crippled by the apprehension of vexatious actions; more especially as juries by whom such actions would have to be decided are incompetent to form a judgment on matters of a military or naval character. . . .
*1268... I must say that this reasoning fails to bring conviction to my mind. I cannot bring myself to believe that officers in command would hesitate to give orders which a sense of duty required, or to enforce obedience and discipline in the due exercise of authority, from any idle apprehension of being harassed by vexatious actions. Men worthy to command would do their duty, as Eyre, B., expresses it, “fearless of consequences,” and would trust to the firmness of judges, and the honesty and good sense of juries to protect them in respect of acts honestly, though possibly erroneously, done under a sense of duty. On the other hand, while no man would more strenuously uphold military authority when legitimately exercised, or would more earnestly urge upon juries the propriety of presuming everything in favor of its legitimate exercise, and of requiring the most cogent and conclusive evidence in favor of its abuse to entitle an inferior officer to recover in an action against a superior, I cannot bring myself to think that it is essential to the well-being of our military or naval force, that where authority is intentionally abused for the purpose of injustice or oppression . . . the party injured ... is to be told that the Queen’s Courts, in a country whose boast it is that there is no wrong without redress, are shut to his just complaint. . . . Neither can I believe that a jury, under the guidance of a judge, may not safely be intrusted with the decision of such questions.
Dawkins v. Lord Paulet, [1869] 5 QB 94, 107-09. I think as highly of the devotion to duty of American military men in 1981 as Lord Cockburn did of British military men in 1869, and I am as confident in our legal system as he was in the British.
I would reverse the order dismissing the complaint.
. The panel opinion is discussed in Note, Government Immunity And Liability-Armed Forces-Government Officials Charged with Violating Servicemen’s Fiñh Amendment Rights Not Entitled to Absolute Immunity, 11 Seton Hall L.Rev. 275 (1980).
. Memorandum of Points and Authorities in Support of Defendant’s Motion to Dismiss, Point V.
. G.A.Res. 217A, U.N. Doc. A/810, at 71 (1947).
. G.A.Res. 2200A, 21 U.N. GAOR, Supp. (No. 16) 49, 52, U.N. Doc. A/6316 (1966).
. 6 U.S.T. 3316, T.I.A.S. 3364, 75 U.N.T.S. 135, Aug. 12, 1949.
. G.A.Res. 3452, Annex Art. 1 (Agenda Item 74), 30 U.N. GAOR, Supp. (No. 34) 91, U.N. Doc. A/10408 (1975).
. G.A.Res. 161, U.N. Doc. A/PV55, at 2244 (1946).
. Part I of Judge Adams’ opinion makes plain that the opinion of the court rests on its misinterpretation of official immunity caselaw.
. 337 U.S. 49, 69 S.Ct. 918, 93 L.Ed. 1200 (1949) (holding that a member of armed forces may recover under FTCA for injuries not incident to his service resulting from the negligence of government employee).
. 340 U.S. at 146, 71 S.Ct. at 159. In the Feres opinion the Court also considered the case of Jefferson v. United States, 178 F.2d 518 (4th Cir. 1949), aff’d, 340 U.S. 135, 71 S.Ct. 153, 95 L.Ed. 152 (1950), in which the Fourth Circuit agreed with the Second Circuit Feres holding.
. 177 F.2d at 581.
. See, e. g., Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193, 89 L.Ed. 194 (1944) (legitimizing wholesale internments of Japanese).
. 360 U.S. at 571-72, 79 S.Ct. at 1339-40.
. 360 U.S. at 576-78, 79 S.Ct. at 1342.
. See Bivens v. Six Unknown Named Agents of the Fed. Bur. of Narc., 456 F.2d 1339 (2d Cir. 1972) (federal agents were not immune from suit because although arrest was within outer perimeters of duty, agents were not performing discretionary function).
. Cf. Stump v. Sparkman, 435 U.S. 349, 98 S.Ct. 1099, 55 L.Ed.2d 331 (1978) (judicial officer acting within his jurisdiction is immune from damage suit); Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128 (1976) (state prosecutor, as quasi-judicial officer, is immune from civil damage suit).
. 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938).
. Friendly, In Praise of Erie-And of the New Federal Common Law, 39 N.Y.U. L. Rev. 383 (1964).
. 177 F.2d at 537-38.
. See id.
. Compare Tort Claims Procedure Act, ch. 646, § 2680(h), 62 Stat. 982, 985 (1948) (exempting intentional torts from FTCA) with 28 U.S.C. § 2680(h) (1976) (making exceptions to the exception for intentional torts). See generally Gitenstein & Verkuil, The Federal Tort Claims Act Intentional Torts Amendment: An Interpretative Analysis, 54 N.C.L. Rev. 497 (1976).
. According to the leading commentator on military law, Justice Jackson was poorly informed even about intra-military negligence actions:
Where in the performance of duty, an officer or soldier, unintentionally but through negligence, does any considerable injury to another officer or soldier, or to his property, the latter has his action for damages against the former in the same manner as would a civilian. Thus where a soldier, on skirmish drill, so negligently discharged his musket as to wound another soldier, he was adjudged liable for damages in a suit instituted on account of the injury.36
Weaver v. Ward, Hobart 134.
W. Winthrop, Military Law and Precedents 885 (2d ed. 1920). This treatise, recognized throughout the English-speaking world as authoritative, also collects over 30 decisions in which servicemen sued their superiors for the intentional torts of libel, malicious prosecution, false imprisonment, and other service related injuries. Id. at 880-85. The cases cited establish that at best military officers may have a defense of lack of malice respecting actions within the scope of their actual authority, analogous to the so-called qualified immunity of federal officials. An American case on intentional torts which Justice Jackson might have added to his footnote reference to Dinsman v. Wilkes is Maurice v. Worden, 54 Md. 233 (1880), in which a professor at the United States Naval Academy sued his superior officers for libel in state court and which rejected the defense of absolute immunity. Except for those lower federal court cases which hold, in mistaken reliance on what in Feres is not even dicta, that there is absolute intra-military immunity for willful torts, see note 29 infra, no American authority has to my knowledge ever reached that result. Moreover, Justice Jackson cites no *1258authority in Feres for absolute immunity even from negligence actions, but merely disclaims knowledge of them. The briefs for the defendants cite no pre-Feres authority recognizing absolute immunity even in negligence cases, and my independent research has not discovered any. Since the parties to lawsuits are not ordinarily identified by occupation there is no feasible method for determining how often intra-military lawsuits of any kind have been entertained.
Cf. Dinsman v. Wilkes, 12 How. 390 [13 L.Ed. 1036], and Weaver v. Ward, Hobart 135, 80 Eng.Rep. 284 (1616), as to intentional torts.
. See Wilkes v. Dinsman, 48 U.S. (7 How.) 88, 12 L.Ed. 618 (1849) (earlier appeal of same case).
. Act of May 14, 1836, ch. 61, 5 Stat. 27.
. Act of March 2, 1837, ch. 21, § 2, 5 Stat. 153.
. See Wilkes v. Dinsman, 48 U.S. (7 How.) at 114.
. See Weaver v. Ward, 80 Eng.Rep. 284 (1616); Fraser v. Balfour, 87 L.J.K.B. 1116 (H.L.1918).
. The Feres doctrine has been applied to cases alleging state law negligence. See, e. g., Martinez v. Schrock, 537 F.2d 765 (3d Cir. 1976) (en banc), cert, denied, 430 U.S. 920, 97 S.Ct. 1339, 51 L.Ed.2d 600 (1977) (applying FTCA); Bailey v. DeQuevedo, 375 F.2d 72 (3d Cir.), cert. denied, 389 U.S. 923, 88 S.Ct. 247, 19 L.Ed.2d 274 (1967). We need not here repeat the reasons why those cases were erroneously decided.
. Several courts have without reference to the distinction made by Justice Jackson extended Feres to intentional torts brought under the FTCA. See Citizens Nat’l Bank of Waukegan v. United States, 594 F.2d 1154 (7th Cir. 1979); Rotko v. Abrams, 338 F.Supp. 46 (D.Conn. 1971), aff’d on district court opinion, 455 F.2d 992 (2d Cir. 1972).
. But cf. Thornwell v. United States, 471 F.Supp. 344 (D.D.C.1979) (intra-military immunity for intentional tort while on active duty, but no such immunity for post-discharge negligence or damage action under fifth amendment).
. Butz v. Economou, 438 U.S. at 493-94, 98 S.Ct. at 2904.
. § 938. Art. 138. Complaints of Wrongs
Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall forward the complaint to the officer exercising general court-martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and. take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings had thereon. § 939. Art. 139. Redress of injuries to property
(a) Whenever complaint is made to any commanding officer that willful damage has been done to the property of any person or that his property has been wrongfully taken by members of the armed forces, he may, under such regulations as the Secretary concerned may prescribe, convene a board to investigate the complaint. The board shall consist of from one to three commissioned officers and, for the purpose of that investigation, it has power to summon witnesses and examine them upon oath, to receive depositions or other documentary evidence, and to assess the damages sustained against the *1260responsible parties. The assessment of damages made by the board is subject to the approval of the commanding officer, and in the amount approved by him shall be charged against the pay of the offenders. The order of the commanding officer directing charges herein authorized is conclusive on any disbursing officer for the payment by him to the injured parties of the damages so assessed and approved.
(b) If the offenders cannot be ascertained, but the organization or detachment to which they belong is known, charges totaling the amount of damages assessed and approved may be made in such proportion as may be considered just upon the individual members thereof who are shown to have been present at the scene at the time of damages complained of were inflicted, as determined by the approved findings of the board.
. Articles of War of 1806, ch. 20, §§ 34, 35, 2 Stat. 359, 364 (1806). See Letter of C. A. Rodney, Attorney General, to Hon. P. Hamilton, 1 Op.Att’y.Gen. 166(1811).
. U.S.Const. art. I, § 8, cl. 14.
. The long historical tradition of balancing the needs of federal supremacy against the democratic value of executive branch accountability, by legislating not for immunity but for removal and trial in a federal forum, commenced in 1815 when Congress, prompted by New England’s resistance to the War of 1812, provided for removal to federal courts of suits over customs duties. Act of February 4, 1815, § 8, 3 Stat. 195, 198-99. It thus preserved the common law remedy of assumpsit against the collectors of customs for overassessments, see, e. g., Elliott v. Swartwout, 35 U.S. (10 Pet.) 137, 9 L.Ed. 373 (1836), rather than clothing executive officers with absolute immunity. When South Carolina responded to the Tariff Act of July 14, 1832, by passing the South Carolina Ordinance of Nullification, 1 Stat. (S.C.) 329 (Nov. 24, 1832), which directed the courts of that state to resist enforcement of the federal act, Congress again reacted not by conferring absolute immunity but by providing for removal to a federal forum. Act of March 2, 1833, 4 Stat. 632, 633-34 (current version at 28 U.S.C. § 1442a (1976)). When nullification evolved to secession, the issue of liability of military officers became acute. Congress again chose removal rather than immunity. Act of March 3, 1863, ch. 81, § 5, 12 Stat. 756-57, as amended. Act of May 11, 1866, ch. 80, §§ 3-4, 14 Stat. 46. The removal protection was extended to members of the armed forces when sued “on account of any act done under color of his office or status, or in respect to which he claims any right, title, or authority under any law of the United States respecting military forces thereof, or under the law of war.” Act of Aug. 29, 1916, § 3, Art. 117, 39 Stat. 619, 669. The underlying assumption was, of course, that the officers were subject to suit. It was only during the Civil War that officers were provided with a defense —not an immunity — where their actions were pursuant to an order issued by the President or the Secretary of War.
[A]ny order of the President, or under his authority, made at any time during the existence of the present rebellion, shall be a defense in all courts to any action or prosecution, civil or criminal, pending or to be commenced, for any search, seizure, arrest, or imprisonment, made, done, or committed, or acts omitted to be done, under and by virtue of such order, or under color of any law of Congress, and such defense may be made by special plea, or under the general issue. Act of March 3, 1863, ch. 81, § 4, 12 Stat. 755, 756 (1863). This was the first and last time that this defense was provided to military personnel. The defense “expired by its own limitation.” The Mayor v. Cooper, 73 U.S. (Wall) 247, 254, 18 L.Ed. 851 (1867). As noted in the text, the removal protection found its way into the Articles of War. There has been no instance since the expiration of the Civil War that has prompted Congress to pass a similar statute which would provide for a defense based on obedience to orders. Only the removal protection remains.
. Act of May 5, 1950, ch. 169, § 9, 64 Stat. 107, 146 (1950).
. Act of June 4, 1920, ch. 227, art. 117, 41 Stat. 759, 811, as amended, June 24, 1948, ch. 625, § 242, 62 Stat. 604, 642; see also Act of March 3, 1911, ch. 231, § 31, 36 Stat. 1087, 1096.
. Judicial immunity presents an entirely different issue. In that case a judge-made rule on a subject — presumably within the area of expertise of the judiciary — has been acquiesced to by Congress, possibly because of separation of powers considerations in the sensitive area of judicial independence.
. See, e. g., Parker v. Levy, 417 U.S. 733, 94 S.Ct. 2547, 41 L.Ed.2d 439 (1974) (habeas corpus review of court martial); Parisi v. Davidson, 405 U.S. 34, 92 S.Ct. 815, 31 L.Ed.2d 17 (1972); O’Callahan v. Parker, 395 U.S. 258, 89 S.Ct. 1683, 23 L.Ed.2d 291 (1969); Fowler v. Wilkinson, 353 U.S. 583, 77 S.Ct. 1035, 1 L.Ed.2d 1054 (1957); Burns v. Wilson, 346 U.S. 137, 73 S.Ct. 1045, 97 L.Ed. 1508 (1953). Cf. Schlesinger v. Councilman, 420 U.S. 738, 95 S.Ct. 1300, 43 L.Ed.2d 591 (1975) (servicemen must exhaust military remedies before resorting to remedies available in an Article III court).
A United States Army Colonel, JAGC, commented:
With its decisions in the 1970’s, however, it appears the Court has finally removed any doubt that it will entertain the full range of constitutional challenges to military administrative activities. As the Levy case demonstrates, some accommodation to the special *1262characteristics and requirements of the military may still be made on the merits of the case, so the ultimate disposition of a particular case may not be the same as in a purely civilian case. But at least there is no longer any restrictions on the nature of the constitutional challenges which are eligible for review.
Peck, The Justices and Generals: The Supreme Court and Judicial Review of Military Activities, 70 Mil.L.Rev. 1, 65 (1975).
. S.Rep.No. 94-1226, 94th Cong., 2d Sess. 10 (1976) reprinted in [1976] U.S.Code Cong. & Ad.News 2537, 2541.
. An Act providing for the Payment of Invalid Pensioners of the United States. 1 Stat. 95.
. In context, the statement reads:
The Committee periodically reviews the service-connected disability compensation program to ensure that authorized benefits provide reasonable and adequate compensation for disabled veterans.
Traditionally, this review of disability compensation and dependency and indemnity compensation (DIC) program has occurred biennially. But continuing inflation in recent years has led to review on an annual basis. The rates were adjusted 2 years ago by the Veterans Disability Compensation and Sur*1264vivors Benefits Act of 1974 (Public Law 93-295).
. See, e. g., Bates v. Harp, 573 F.2d 930, 934-36 (6th Cir. 1978); Marion v. United States, 214 F.Supp. 320 (D.Md.1963). See also Annotation, 21 A.L.R.3d 845, 850-52 and references noted therein.
. 42 U.S.C. § 2651(a) (1976).
. 42 U.S.C. § 2652(c) (1976).
. E. g., United States v. Haynes, 445 F.2d 907 (5th Cir. 1971) (Government and military dependent who received government benefits sue serviceman who caused injury).
. United States v. Neal, 443 F.Supp. 1307 (D.Neb.1978) (suit by government against soldier for negligence in injuring fellow soldier).
. Cf. Grove Press, Inc. v. CIA, 483 F.Supp. 132 (S.D.N.Y.1980) (mem. order) (New York long-arm statute, which reaches nonresidents who commit tortious acts within state, confers personal jurisdiction over CIA officials sued in individual capacity).