Scorched Earth

by Fred A. Wilcox

  1991: Congress passes the Agent Orange Act, entitling veterans who served in the country and who are suffering from any Agent Orange-associated diseases to health care and disability compensation. In 2009, the Veterans Administration compensates for a long (and still growing) list of Agent Orange-related illnesses, including soft tissue sarcoma, chloracne, Hodgkins Disease, multiple myeloma, non-Hodgkin’s lymphoma, diabetes, Parkinson’s disease, and prostate cancer.7

  1994: The Institute of Medicine of the National Academy of Sciences (IOM) publishes a comprehensive study of the health effects of exposure to herbicides used in Vietnam, including dioxin. The IOM finds an “association between herbicide exposure and many different types of diseases and defects.”8

  2000: The Environmental Protection Agency states that dioxins, and “in particular the TCDD form contained in Agent Orange are potent and persistent animal toxicants with potential to cause widespread human health effects.”9

  2002: Wayne Dwernychuk of Hatfield Consultants LTD leads a study that finds high levels of dioxin in the soil of the A Luoi Valley and high levels of dioxin in fish, animal fat, human blood, and breast milk.10

  2003: Dr. Arnold Schecter, professor of Environmental Sciences at the University of Texas, finds that the environment and the food chain in Bien Hoa City are contaminated with dioxin. The study concludes that people continue to be poisoned by dioxin when they eat contaminated food.11

  In his book-length ruling, Judge Weinstein refuses to accept arguments (“causation”) that plaintiffs’ injuries—cancer, diabetes, miscarriages, skin rashes, children born with serious birth defects, early deaths—can be traced to their exposure to Agent Orange/dioxin:

  The summary of the harms allegedly caused to plaintiffs or their progeny is set forth by plaintiffs in brief anecdotal form. The fact that diseases were experienced by some people after spraying does not suffice to prove general or specific causation, i.e., that the harm resulted to individuals because of the spraying. Post hoc ergo propter hoc remains a logical fallacy unacceptable in toxic tort law. Proof of causal connection depends primarily upon substantial epidemiological and other scientific data, particularly since some four million Vietnamese are claimed to have been adversely affected. Anecdotal evidence of the kind charged in the complaint and set out below cannot suffice to prove cause and effect.

  Availability of necessary scientific information from Vietnamese studies needed for epidemiological analysis has not been furnished to the court. It is not available with the richness of demographic and other data published in the United States. An agreement between the United States and Vietnam provides for some joint efforts to collect relevant data.12

  Judge Weinstein writes that US scientists have devised an agreement to collect “relevant data” in Vietnam. He seems unaware that even as preparations for this study appeared to be moving forward, one prominent US scientist, colluding with an employee at the US Embassy in Hanoi, was maneuvering to undermine this project.

  At the same time, the US ambassador to Vietnam ridiculed the Vietnamese campaign to help “alleged Agent Orange victims” as “mere propaganda.” According to the ambassador, Vietnamese officials were trying to con money out of the United States government. They were also trying to win a propaganda coup.

  In a cablegram to the secretary of state, dated February 16, 2003, the ambassador wrote that the government of Vietnam (GVN)

  has no intentions of allowing its scientists to engage in genuinely transparent, open, rigorous scientific investigation to determine the true extent of the impact of AO/dioxin on health in Vietnam. Why? Because, we believe, the GVN will never permit research that in any way might discredit the main theme of its two-decade long propaganda campaign, i.e., AO/dioxin is to blame for a huge range of serious health problems—especially birth defects and mental retardation—of residents of central and southern areas and/or northern soldiers who served there…. It would also open a pandors’s [sic] box of questions about why the GVN—and more importantly, the Communist Party—has misled its people and focused on demonizing AO/dioxin and failed to carry out appropriate public health programs that would have mitigated other sources of threats to human health.13

  To the dismay of US and Vietnamese scientists, critics of the cooperative research project managed first to reduce the timeline for the proposed study from five to three years; then, they demanded that the project “be performed only as the US officials required.” And finally, they ended all funding for the research, blaming the Vietnamese government for the entire debacle and vowing never to approve a project for US scientists to perform research in Vietnam.14

  In one section of his memorandum, “The Harms Allegedly Suffered by Plaintiffs,”

  Judge Weinstein writes:

  From April 1972 until the end of the Vietnam War in 1975, plaintiff Nguyen Van Guy served in the DRVN [Democratic Republic of Vietnam] army repairing communication lines at various southern Vietnam locations. He ingested food and water from areas that had been sprayed with herbicides. He periodically suffered from headaches, exhaustion and skin irritation while he was stationed in southern Vietnam; the skin irritation disappeared after he left Quang Ngai province in 1973 but the headaches and exhaustion continued, worsening over time. In 1983 his first wife’s pregnancy ended in stillbirth. They divorced. His spells of weakness and exhaustion worsened. His second wife, Plaintiff Vu Thi Loan, gave birth to two children, plaintiffs Nguyen Quang Trung and Nguyen Thi Thuy Nga, who were born developmentally disabled. In October 2003, Nguyen Van Guy was diagnosed with stomach cancer and liver damage and found to have fluid in the lung. It is alleged that these diseases conditions and birth defects were caused by his exposure to defendants’ [Dow, Monsanto, et al.] herbicides during the Vietnam War.15

  And:

  From 1964 to 1968, plaintiff Dr. Duong Quynh Hoa often traveled to the cities of Bien Hoa and Song Be, which became heavily contaminated with herbicides manufactured by the defendants. From 1968 to 1976, she resided in Tay Ninh province, where she was told several times to cover her head with plastic bags because US aircraft were spraying chemicals. In 1970, she gave birth to a son, Huynh Trug Son. He was born developmentally disabled and suffered from epileptic convulsions; he died from a convulsion at the age of eight months. She had two miscarriages, in July 1971 and January 1972. She was diagnosed with diabetes in 1985 and breast cancer, for which she underwent a mastectomy, in 1998. In 1999, a test revealed relatively high levels of dioxin in her blood. She attributes all these problems to exposure to herbicides manufactured by defendants.16

  There is page after page detailing miscarriages, skin rashes, cancers, babies living only a few days, babies born with spina bifida, physically and mentally handicapped children, and high levels of dioxin in the blood of fathers and mothers who’d been exposed to Agent Orange/dioxin during and after the war.

  One typical plaintiff, Ho Xuan Bat, was

  active with the NLF in the Aluoi Valley and observed the spraying of herbicides on several occasions. Herbicides were stored, transferred and spilled at several military bases in the Aluoi Valley Region. In 1978, he married plaintiff Ho Thi Le and they continued to live in Aluoi Valley. They cultivated rice and vegetables for their own consumption and to sell in the local market, and consumed wild vegetables, fish and poultry. In 1980, Ho Thi Li gave birth to their first child, who died from a nose infection in 1982. In 1982, she gave birth to their second child, who died for unknown reasons after 16 days. Ho Xuan Bat’s health began to deteriorate: he experienced fatigue, headaches, coughing with blood, chest pain, loss of appetite and weight, fever, and other symptoms. In 2003, he was diagnosed with lung cancer and died from it a year later. Ho Thi Le [sic] attributes her miscarriage, the deaths of her two children and her husband’s death from lung cancer to their ingestion of food and water contaminated by herbicides by the defendants.17

  The memorandum does not include reference to Dr. Wilbur McNulty’s research in 1982 at the Oregon Regional Primate Research Cent
er in Portland, Oregon. Dr. McNulty’s research subjects were rhesus monkeys, human beings’ nearest relative (with the exception of chimpanzees) on the evolutionary scale. In the beginning, Dr. McNulty put what he thought were small quantities of dioxin in the monkeys’ food. “As fools rush in,” he confided, “the doses, in retrospect, were astronomical. They were in parts per billion instead of parts per trillion range, which is more relevant when it comes to food. I think the first level I used was twenty parts per billion in the diet, and that killed a young male rhesus monkey in twelve days…. A level of 2 parts per billion was lethal in seventy-six days. I discovered that monkeys are several times more sensitive to TCDD than mice, rats, rabbits, and dogs.”18

  Dioxin turned out to be so toxic to his laboratory animals that McNulty decided to suspend all research with TCDD until the primate center could construct a special building with carefully controlled access, assigning the care of his monkeys to only one or two well-trained people in an effort to minimize the risk of contaminating other areas of the center.

  “Dioxin,” said McNulty, “is the most toxic small man-made molecule we know of. It is less toxic on a per-gram basis than some biological toxins like botulin, but that’s a very large molecule. So molecule for molecule dioxin is probably the leader of the pack.”19

  After consuming food containing minute amounts of TCDD, McNulty’s primates became very quiet, began losing weight, lost their appetite, grew progressively thinner and weaker, and then “just laid down and died.” Sometimes they would have episodes of retching and vomiting, but at much lower doses of dioxin a certain fraction of animals remained well for one to three or four months, and then suffered from an ailment characterized by failure of the elements of the bone marrow.

  “They would have low white blood cell counts, very low platelet counts, so they suffered from hemorrhages and infections and were essentially carried away by bone marrow failure.”20

  McNulty’s monkeys did not live in the jungles, mangrove forests, and rice paddies of Southeast Asia for years on end. They didn’t eat large quantities of food or drink from rivers and streams contaminated with TCDD-dioxin. They died painful deaths from the toxic effects of a poison that scientists have found to be teratogenic, fetotoxic, carcinogenic, and possibly mutagenic in laboratory animals.

  Dioxin is a poison, says Harvard researcher Matthew Meselson, that works on laboratory animals by stopping cell division.

  “Spermatogenesis stops, the replacement of red blood cells stops, the regeneration of the epithelial lining of the gut stops. After a few days or weeks without cell division the animals simply fall apart.”21

  Weinstein writes,

  It is contended that the acts of defendants adversely affecting plaintiffs constitute violations of the laws and customs of war, also known as war crimes, which prohibit: the employment of poison or poison weapons or other weapons calculated to cause superfluous injury or unnecessary suffering, the wanton destruction of cities, towns, villages or the natural environment, or devastation not justified by military necessity; the use of biological or chemical agents of warfare, whether gaseous, liquid or solid, employed because of their direct toxic effects on people, animals or plants; and the poisoning of food and water supplies in the course of war….

  It is alleged that defendants’ actions have violated, and plaintiffs’ causes of action arise from, the following laws, treaties, conventions and resolutions, which constitute specific examples of the applicable law of nations or customary international law, as well as from domestic national and state laws. [See appendix 1.]

  Judge Weinstein concludes:

  Detailed analysis of international law claims of the Vietnamese plaintiffs establishes that use of herbicides by or on behalf of the United States in Vietnam before 1975 was not in violation of international law.22

  The United States Senate did not agree to ratify the 1925 Geneva Accords prohibiting the use of poison gases and other forms of biological and chemical warfare until 1975; however, according to Weinstein, even if our government had ratified that treaty, this would not have barred the use of Agent Orange in Vietnam.

  The 1925 Geneva Protocol provision was designed to outlaw poison gases such as mustard gas used in World War I. It cannot be interpreted to encompass the use of herbicides which were not then known weapons and were far different in their purpose and effect. The gases outlawed in 1925 had an almost immediate disabling effect on those exposed and were intended to disable or kill human beings. In contrast, herbicides were designed to strip plants of leaves or kill them.”23

  Weinstein argues that if large numbers of people happen to have been poisoned, as a side effect of defoliation in a war zone, that does not constitute a crime against humanity or a violation of any treaty to which the US was a signatory at the time the poisoning occurred. He rejects the Vietnamese plaintiffs’ argument that the use of Agent Orange during the war was a violation of international laws prohibiting genocide, enslavement, deportation or forcible transfer of population, torture, or forced pregnancy. Agent Orange and other defoliants were used, he says, to kill trees, not to harm human beings, in Vietnam.

  Regarding the government contractor defense—that the chemical companies were only following orders and, therefore can not be sued—Judge Weinstein gives a detailed account of the genocidal use of Zyklon B during World War II. After the war, Bruno Tesch, Joachim Drosihn, and Karl Weinbacher were charged with committing war crimes by supplying poison gas to concentration camps, knowing full well that the gas would be used to kill human beings. Tesch and his partner Stabernow owned a firm that provided technicians—Drosihn was the senior technician—to help carry out gassing operations, and to train the Wehrmacht and S.S. in how to use Zyklon B.

  The prosecution in the Zyklon B case argued that the Third Reich had given direct orders to Tesch’s firm to supply poisonous gas, and that, fully aware that this product was being used to exterminate vast numbers of people in concentration camps, Tesch and associates followed this order.

  The prisoners were charged with violating Article 46 of the Hague Regulations of 1907, which Germany and Great Britain had signed. Tesch claimed that he’d not heard, nor did he know, anything about using Zyklon B to exterminate people in camps like Auschwitz. Tesch’s defense team argued that it was one thing to provide a supply of a product meant only to kill human beings, and quite another to sell a product (Zyklon B had been used in small quantities to delouse people) that had other “legitimate” uses.

  The prosecution questioned how Tesch and associates could not have known exactly how their product was being used, and that therefore they were guilty of accessories before the fact to murder. Tesch and one associate were found guilty and sentenced to die for their crimes.

  In the 1984 class action lawsuit filed on behalf of Vietnam veterans and their families, Weinstein allowed the defendant chemical companies’ “government contractor” defense. The companies argued that they told the government what they knew about dioxin, and that they were just trying to help the United States win the war.

  Gerson H. Smoger, an attorney who has represented Agent Orange victims for many years, questions the chemical companies’ claim that they told the government everything they knew about dioxin.

  “I have reviewed literally millions of pages of documents,” Smoger told a Vietnamese reporter. “It seems that the manufacturers conspired to hide the dangers from the US government and the rest of the world. The chemical companies knew about the dangers and held secret meetings with the purpose of conspiring to keep the knowledge of the dangers from the US government.”24

  This time, Weinstein denies the government contractor defense, and refuses to accept the argument that the defendants were acting out of necessity when they supplied Agent Orange to the government.

  In order to use the Necessity Defense, a defendant must establish:

  • That the criminal conduct of which the defendants stand accused was taken to prevent a greater harm to themselves or o
thers, which was imminent.

  • That there was no effective legal alternative method or course of action available to them that could be taken to avert this so-called harm, and

  • That there was a direct causal relationship between the criminal conduct taken and the avoidance of the alleged harm.25

  The most serious harm that could have come to defendants if they had refused to supply Agent Orange would have been loss of their manufacturing establishments and other assets through expropriation. Such possible economic harm would not have been more evil than violating international law (if it existed), leading to the alleged death and disease of many persons and destruction of much land (if there was causation).

  We are a nation of free men and women habituated to standing up to government when it exceeds its authority…. Under the circumstances of the present case, necessity is no defense. If defendants were ordered to do an act illegal under international law they could have refused to do so, if necessary by abandoning their businesses.26

  Yet Judge Weinstein denied that lawyers for the plaintiffs demonstrated “causation,” and argued that there is no scientific evidence to support the plaintiffs’ claims that Vietnamese people are sick and dying as a result of their exposure to toxic herbicides.

  Lawyers for the Vietnamese plaintiffs and the chemical company defendants packed their bags, knowing that this was not the last act in the Agent Orange saga. They will meet again in appellate courts, where they will argue before judges who, like Judge Weinstein, will profess compassion and empathy for victims of Agent Orange, but conclude that they can find no way to hold the chemical companies or the government accountable for the legacies of a decade-long campaign of chemical warfare in Southeast Asia.