Bitter Fruit

By Kathy Kattenburg

The Vietnam War ended in 1975, but for veterans of that war who were exposed to Agent Orange, and their families, the conflict still rages – only the combat zones are their bodies.

Agent Orange (so-called because of the orange stripe on the drums in which it was stored) is one of 15 herbicides that were used to defoliate the Vietnamese jungles, so North Vietnamese fighters could not use them as cover. It was developed in the late 1950s after Army scientists found that the combination of two chemical ingredients, 2,4-D and 2,4,5-T, created a powerful leaf-killer. Listen here:

2,4,5-T contains dioxin – one of the most toxic substances in existence. Dioxins are highly carcinogenic, and have been linked to birth defects and to a host of serious medical problems affecting every system in the human body. Diabetes, infertility, prostate and breast cancer, skin disorders, learning disabilities, neurological and developmental problems, and genetic anomalies in affected veterans’ children are just some of the abnormalities traceable to dioxin.

The U.S. military tested Agent Orange extensively throughout the 1960s, and knew the health risks both to American troops and to Vietnamese civilians. Nevertheless, the government collaborated with the product’s manufacturers (Dow and Monsanto, among others) to deny that Agent Orange posed any significant danger to humans, and consistently misled both the American and the Vietnamese people about the growing evidence that the spraying program was actually causing monstrous and lasting harm to human life and the environment.

A few statistics might be helpful here. Between 2.4 and 2.6 million veterans are potentially affected, and birth defects linked to Agent Orange exposure can be passed down to the next generation, and up to two generations past that. Between 1961 and 1971, over 20 million gallons of herbicides were sprayed over the Vietnamese countryside, about half of which were Agent Orange. Thousands of acres of forest were turned into dust bowls. Agriculture was devastated (part of the purpose of spraying was to destroy crops that could feed the enemy). Many Vietnamese consider the spraying a war crime, and say it goes a long way toward explaining why Vietnam is even today such an impoverished country.

Justice for those who fought in Vietnam and those who live there has been hard to come by. Both the U.S. government and the chemical companies that provided Agent Orange to the military have ferociously resisted taking responsibility for the continuing health problems, horrendous birth defects and environmental devastation that resulted from its use.

Out of those 2.4 million or more veterans who were exposed to Agent Orange, only 50,000 received any compensation at all, as the result of a class action suit filed in 1979 and settled in 1985. The manufacturers of Agent Orange agreed to set up a $180 million fund to compensate disabled veterans. The catch was that veterans could only claim for health problems that resulted in total disability for the years 1971 through 1994. Veterans received small cash settlements for each year within that range that they could prove that total disability. Given that symptoms of Agent Orange exposure can take up to three decades to manifest, this left the vast majority of veterans out in the cold. Also, many veterans did not even know about the 1979 lawsuit, and the $180 million was depleted in 1994.

In June, 2003, the Supreme Court deadlocked on the question of a new class action suit (Justice Stevens had recused himself from the case, so there were only eight justices). The effect of the tie was to allow veterans to file individual claims against the chemical companies.

However, earlier this year, a federal appeals court ruled that veterans could not sue the manufacturers, “because the law protects government contractors in certain circumstances who provide defective products.”

That ruling joined a separate opinion by the same court, issued the same day, in a class action suit brought by Vietnamese victims of Agent Orange, which had been wending its way through the legal system since January 2004. The official complaint, as amended in September 2004, sought compensatory damages against the chemical companies for:

“aiding and abetting violations of international law and war crimes, […] personal injuries, wrongful death and birth defects and […] for environmental contamination and disgorgement of profits […] aris[ing] out of the defendants’ manufacture and supply of herbicides which were sprayed, stored and spilled in Vietnam from 1961-1975 and which have caused death and injury to the plaintiffs and the class they represent, and have contaminated many regions of that country.”

That claim was dismissed in March 2005 in Brooklyn Federal Court. The attorneys for the plaintiffs appealed to the Second Circuit Court of Appeals, also in Brooklyn. It was that appeal that was rejected – along with the separate appeal filed by U.S. veterans — by the three-judge panel in February, 2008.

At this point, the last hope for Vietnam veterans and the Vietnamese people is the U.S. Supreme Court. Lawyers in both cases have stated they will file appeals with SCOTUS.