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Agent Orange - The Time-Release Poison Pill

By Paul Cox

"It is not impossible that our country has dropped a delayed-action bomb that will reverberate on the affected populations with consequences that will only be possible to evaluate in a distant future."

Senator Gaylord Nelson almost had it right in 1970: Agent Orange (AO) is indeed a delayed-action bomb. But instead of exploding once, it has been exploding continuously in the bodies of more than 3 million Vietnamese and tens of thousands of US and other veterans since it was dropped on nearly 1/8 of the landmass of Vietnam during the American War. It, or more specifically, the dioxin contaminant that was manufactured into it, is a poison that attacks the immune system, organs, cellular genetic code, and fetal development. On February 22, 2008, a three-judge panel of the US Court of Appeals upheld the lower court's dismissal of the lawsuit by the Vietnam Association for Victims of Agent Orange/dioxin (VAVA) against 37 chemical manufacturers that made herbicides for the US military and profited tremendously from their contracts.

The lower court that had originally dismissed the case was presided over by Jack Weinstein, the same judge that rammed through the out-of-court settlement in 1984 of the first Agent Orange/dioxin suit brought by US veterans. That settlement for $180 million was spent within 10 years, leaving tens of thousands of veterans who were not yet sick with dioxin poisoning without access to the settlement. The largest cash payout to any of the individual plaintiffs was a lame $4,000. However, the Veteran's Administration (VA) began recognizing a few illnesses in veterans related to AO, and has gradually expanded the list to a suite of diseases that are presumptively caused by AO if the veteran served in Vietnam. Currently the VA expends about $1.5 billion annually on AO-related illnesses to veterans in direct medical care and disability payments.

So, when those Vietnamese who have been suffering from AO poisoning for 30 years decided in 2004 to file a suit in US Courts against the chemical companies, it was reasonable to think that they would have gotten an honest hearing. Judge Weinstein had, as a part of the 1984 settlement, retained jurisdiction of all subsequent AO-related lawsuits, presumably because he was already familiar with the scientific basis and legal landscape for AO/dioxin issues. However, it was clear from the beginning of the case that he was hostile to the suit. He stated that AO was not a poison and that the original suit had been settled due to political and economical reasons, not because there was any scientific evidence that AO actually hurt anyone. Ultimately, he sided with the chemical companies and the US government and dismissed the Vietnamese suit and two others brought by US veterans.

The dismissal forced the plaintiffs in all three suits to appeal that decision to the Second Circuit Court of Appeals in New York. The entire appeal for all three suits was heard in one day in June 2007 by a three-judge panel and was accompanied by demonstrations of support for plaintiffs in several cities around the country.

In its decision, the Appeals Court bobbed and weaved on matters of domestic and international law, ultimately coming to the conclusion that domestic laws were not violated because claims were barred against government contractors. This may sound familiar as the same argument that has been made to let the phone companies aid the "intelligence community" in widespread and uncontrolled wiretapping of US citizens. The Appeals Court also ruled that VAVA had not proven a "violation of international law because Agent Orange (AO) was used to protect the troops against ambush and not as a weapon of war against human populations."

It apparently does not matter to the courts that – thirty-seven years after spraying stopped in Vietnam – AO contamination is massively devastating to the people of Vietnam, to veterans of that war from the US, Korea, Australia, and New Zealand, and to people in Canada whose communities were contaminated by its testing.

More than three million Vietnamese suffer today from illnesses and birth defects, and hundreds of thousands of war veterans from these other countries are ill from dioxin poisoning. Yet the court accepted the argument that since the US has always maintained that AO was not a chemical weapon, it is not a chemical weapon. Finely-tuned legal language cannot hide the crime. Veterans For Peace (VFP) members may remember the delegation of Agent Orange victims who attended the June 2007 hearing on the appeal. Two of those people – Nguyen Thi Hong and Nguyen Van Quy – have already died due to cancer from Agent Orange exposure. How many others must die before justice is done?

Left unexamined is the smoking gun that the chemical companies knew their products contained dioxin poisons, and yet, chose to forego slower manufacturing methods that would remove the dioxins. After all, the military had an open-ended order to buy all the AO the chemical companies could get, and there were profits to be made.

The appeals court decision has prevented the Vietnamese victims from getting access to company and government files that undoubtedly would yield additional revelations about the collusion between the chemical companies and the government. The court's companion decision also upheld the dismissal of the two suits by US veterans who got sick after the 1984 settlement with the chemical companies.

All is not lost, however. There is a growing awareness in this country of the damage AO/dioxin has done, of the lies and treachery of the US government and the chemical companies, and of citizen's responsibility to take responsible action even if our government won't. Late last year the American Public Health Association passed a strong resolution calling for the government and chemical companies to allocate resources to help the Vietnamese victims and US veterans, and to take action to remedy the damage to the environment in Vietnam.

VAVA will now take their fight to the full Court of Appeals and, if necessary, to the Supreme Court, where, after additional years of delay, they will get additional cracks at justice from our court system. In the meantime, organizations that support justice for Vietnamese victims are beginning the process of pushing Congress to provide compensation for the victims and remediation of the environmental damage and bringing public pressure to bear on the manufacturers of Agent Orange. VVAW, along with other veterans groups, can play an important role in this campaign. When the time comes to push for legislation, we will need to mobilize across the country to lobby our congressional delegations to support it. In the meantime, a hearing on the AO problem has been set for May 15, 2008, in the House. Please call your Representative to urge them to attend. The primary support organization in the US for VAVA's fight for justice is the Vietnam Agent Orange Relief and Responsibility Campaign (VAORRC). Their website is packed with information and documents related to this struggle. The full text of the court decision, VAVA's statement, and VAORRC's press release can be found at the VAORRC website at: www.vn-agentorange.org/index.html