1.

U.S. URGES JUDGE TO DISMISS SUIT ON CHEMICAL USE IN VIETNAM WAR
By William Glaberson

New York Times
February 28, 2005

http://www.informationclearinghouse.info/article8179.htm

The Justice Department is urging a federal judge in Brooklyn to dismiss a lawsuit aimed at forcing a re-examination of one of the most contentious issues of the Vietnam War, the use of the defoliant Agent Orange.

The civil suit, filed last year on behalf of millions of Vietnamese, claimed that American chemical companies committed war crimes by supplying the military with Agent Orange, which contained dioxin, a highly toxic substance.

The suit seeks what could be billions of dollars of damages from the companies and the environmental cleanup of Vietnam.

In preparation for legal arguments scheduled for today in United States District Court in Brooklyn, Justice Department lawyers filed a brief last month that described the suit as a dangerous threat to the president's power to wage war and an effort at a "breathtaking expansion" of the powers of federal courts.

Though the case drew little attention when it was first filed, it has become an important test of the reach of American courts, drawing worldwide interest and setting off a fierce debate among international-law experts.

"The implications of plaintiffs' claims are astounding," the government's filing said, "as they would (if accepted) open the courthouse doors of the American legal system for former enemy nationals and soldiers claiming to have been harmed by the United States Armed Forces" during war.

One of the plaintiffs' lawyers, Constantine P. Kokkoris, said in an interview that the Justice Department's argument was misplaced because the government had not been sued in the case. He said the lawsuit raised questions about the conduct of the corporations that were limited to their supplying what he called contaminated herbicide.

The chemical companies argue that they produced Agent Orange following government specifications and that its use in Vietnam was necessary to protect American soldiers. They have long argued that there is no clear link between exposure to Agent Orange and many of the health problems attributed to it.

The judge, Jack B. Weinstein of Federal District Court in Brooklyn, said last year that the case, a class action on behalf of what could be four million Vietnamese, faced many legal hurdles.

But during a hearing in March he said it raised important issues and "has to go forward seriously," suggesting that it might eventually need to be decided by the United States Supreme Court.

He asked from the bench whether precedents concerning the treatment of makers of Zyklon B, the hydrogen cyanide gas used in Nazi death camps, might be applicable to the claims against the companies that supplied Agent Orange to the military.

After World War II, two manufacturers of Zyklon B were convicted of war crimes and executed.

Agent Orange was widely used in Vietnam, often to clear jungle that American officials said gave the enemy cover. Its use was discontinued in 1971. But it has survived as a confounding legal issue.

In 1984, after years of court battles, seven American chemical companies paid $180 million to settle a class action suit by American Vietnam veterans who claimed that it caused cancer, birth defects and other health problems.

Judge Weinstein, who also presided over those cases, said in a series of controversial rulings at the time that the veterans would have had grave difficulty proving a link between their health problems and Agent Orange. Some scientists say the link would be easier to prove today.

Because of the federal government's legal immunity, it was not part of the 1984 settlement and was not named as a defendant in the new suit on behalf of the Vietnamese.

Thousands of pages of legal arguments have been filed in preparation for today's arguments, including experts' opinions and friend-of-the-court briefs.

International law experts have weighed in on both sides on the central issue, whether Agent Orange should be considered a "poison" that was barred during warfare by international law.

George P. Fletcher, an international law professor at Columbia University, wrote on behalf of the Vietnamese that "in warfare it is permissible 'to stand and deliver' -- to look the enemy squarely in the eye and shoot him -- but not to look the other way and then use dioxin" to poison his food, land and water.

But, writing for the chemical companies, W. Michael Reisman, an international law expert at Yale, concluded that no treaty or principle of international law that was accepted by the United States during the Vietnam era declared herbicides to be poisons barred during warfare.

"There was no prohibition on the use of herbicides as a military instrument," he wrote.

2.

Feature Article

VIETNAMESE VICTIMS OF AGENT ORANGE SUE U.S. CHEMICAL GIANTS
By Cindy Jaquith

Militant
March 14, 2005 (posted Mar. 4)

http://www.themilitant.com/2005/6910/691050.html

BROOKLYN -- Chemical giants Dow and Monsanto argued in federal district court here February 28 for dismissal of a class-action lawsuit against them by some 100 Vietnamese victims of Agent Orange during the U.S. war against their country.

The suit charges that 30 companies that produced the herbicides used in the Vietnam War violated international law and committed war crimes. It seeks damages for injury to and wrongful death of Vietnamese as well as environmental compensation for Vietnam.

Washington sprayed millions of gallons of Agent Orange on Vietnam from 1962 to 1971, arguing it was to destroy vegetation that could feed or hide liberation fighters. The lawsuit charges up to 4 million Vietnamese suffered dioxin poisoning as a result. Dioxin can cause cancer, deformities, mental retardation, and organ dysfunction.

Included in the Vietnamese delegation in the courtroom February 28 was plaintiff Dr. Phan Thi Phi Phi, who had four miscarriages within two years in the early 1970s. She had been working in an area heavily sprayed with Agent Orange.

“We did not know what happened to us, what was the cause of it, so we were very sad because we had so many miscarriages and we could not have children,” she told reporters.

Lawyers for Dow and Monsanto urged Judge Jack Weinstein to throw out the case because they said their clients were simply executing the orders of a U.S. president, John Kennedy. In 1961 Kennedy requested a scientific opinion from advisers on the dangers of Agent Orange and was told it was safe, they said. Speaking to ABC News outside the courtroom, Monsanto representative Glyn Young claimed, “The overwhelming weight of all of the independent scientific evidence on Agent Orange shows that there's no connection between exposure and any serious human illness. Second, the use of Agent Orange was first authorized by President Kennedy, and he did it to save the lives of U.S. and allied servicemen.”

Monsanto was one of seven chemical companies that agreed in the 1980s to pay $180 million in damages to U.S. GIs and their families for Agent Orange poisoning stemming from the war in Vietnam.

The U.S. government has also filed a brief demanding the case be dismissed. Ori Levin presented the government’s argument in court, protesting that it is “extraordinary” for “former enemy soldiers” and others to be able to sue U.S. corporations for what they did in the war. Moreover, he said, it is “inappropriate” for the courts to question a president’s wartime actions. Levin stated that once a U.S. president makes a decision that may run counter to international law, that decision becomes domestic law and stands above international rulings.

“That goes pretty far toward saying the president isn’t bound by law during wartime,” Weinstein replied. “Is a direct violation of a major human right not subject to check by the courts? That’s outrageous!”

Weinstein will rule in several weeks on the dismissal motions.

3.

Socio-Politics

U.S. CHEMICAL COMPANIES MUST BEAR RESPONSIBIILITY FOR VIETNAMESE AO VICTIMS
[Interview with Susan Hammond]

Viet Nam News Agency
March 7, 2005

http://www.vnagency.com.vn/newsA.asp?LANGUAGE_ID=2&CATEGORY_ID=29&NEWS_ID=141654

HANOI -- "The US chemical companies have both a legal and a moral responsibility towards Vietnamese victims of Agent Orange (AO). The companies knew starting in the 1940s that dioxin was a highly toxic chemical and that some of the herbicides they were selling to the U.S. government contained high levels of dioxin. But they kept this knowledge from the U.S. government officials who were responsible for purchasing the herbicides and from the military who ended up using the chemicals."

Susan Hammond, Deputy Director of the Fund for Reconciliation and Development, an NGO based in New York that has been working for the past 20 years to help foster better understanding and reconciliation between the people of the U.S. and the people of Viet Nam, Cambodia, Laos, and Cuba, answered questions from a VNA reporter. Over the past 10 years, she has lived and worked in Viet Nam, Cambodia and Laos. The following is the interview:

What are your comments on the Feb. 28 hearing on the lawsuit filed by Vietnamese AO victims against the U.S. companies that produced AO and Judge Jack B. Weinstein's coming decision?

I believe that the lawyers for the plaintiffs did a good job of stating the reasons why the lawsuit should go forward. This is a groundbreaking case involving complicated issues of international law that go beyond the question of whether or not the chemical companies are responsible for the damages caused by AO and other herbicides used during the war. Judge Weinstein listened intently to the arguments and asked many questions showing that he wanted to be sure he understood their arguments completely before making a decision.

I am optimistic that the Judge will rule in favor of the plaintiffs. If he does so, however, the chemical companies will appeal the decision to a higher court, and this may take a very long time. If the judge rules in favor of the chemical companies, the lawyers for the Vietnamese will also have a chance to appeal, so the case is a long way from being completed.

In the meantime, we are urging people in the United States not to wait for the decision of the court but to act now to help those in Viet Nam who are in need of assistance. The families who are caring for ill or severely handicapped loved ones can not wait for the court to act but need assistance now. These families and communities also need moral support from people around the world to let them know that there are people who care about them, who are listening to their stories and want to help. We also want to let people know that there are some very concrete things they can do by contributing funds to any of the wonderful groups that have been working to assist those suffering from the effects of Agent Orange, such as the Viet Nam Red Cross, VAVA and the various Friendship Villages throughout Viet Nam.

Could you speak of the activities of the Fund for Reconciliation and Development (FRD) in support of Vietnamese AO victims?

The Fund for Reconciliation and Development has worked for the past 20 years to foster reconciliation and understanding between the people of the USA and the people of Vietnam. We also work to address the legacies of the American war in Vietnam including Agent Orange and landmines. In the United States we educate people about the long term health and environmental impacts of Agent Orange and other chemicals used during the war by holding seminars, film screenings, and lectures, including the ones that Dr. Phi Phi has been giving in the U.S. this past week.

We coordinate our efforts and raise funds for other organizations who are working to meet the needs of people affected by Agent Orange, such as VAVA and the Vietnam Red Cross Agent Orange Victims Fund. In Vietnam, FRD is also the coordinator of the NGO Agent Orange Working Group. We are currently working with Diane Fox, an anthropologist who has done research on the impacts of Agent Orange in Vietnam, to develop a comprehensive website that will help Americans and others around the world know about the long-term consequences of the use of Agent Orange and other chemical weapons during the war in Vietnam, Laos and Cambodia. We are also currently planning an exhibit of works by Vietnamese and American artists that portray the effects of Agent Orange. This exhibit will travel to college campuses and cities throughout the U.S. beginning in the fall 2005.

What legal and ethical responsibilities should the American chemical makers have towards Vietnamese AO victims?

I believe that the chemical companies have both a legal and a moral responsibility towards Vietnamese victims of Agent Orange. The companies knew starting in the 1940s that dioxin was a highly toxic chemical and that some of the herbicides they were selling to the U.S. government contained high levels of dioxin. But they kept this knowledge from the U.S. government officials who were responsible for purchasing the herbicides and from the military who ended up using the chemicals. The chemical companies also knew about lower-temperature production techniques that would have greatly reduced the level of dioxin in the herbicides. Instead, they raised the temperature of production in order to make batches of herbicides in as short a time as 45 minutes instead of the usual 13 hours. This increased the level of dioxin that ended up poisoning Vietnam as well as Laos and Cambodia.

In my view, the chemical companies should not be able to hide behind their argument that they were ordered to produce these herbicides by the U.S. government. They were ordered to produce Agent Orange, Agent Blue, Agent Pink and so on, not to produce dioxin. Since they were aware of the dangers of dioxin and did nothing to stop its production or use, they should be considered negligent.

I also believe that the U.S. government is morally responsible for poisoning the land and the people of Vietnam with dioxin. The U.S. government should treat the legacy of Agent Orange as a humanitarian issue, just as it does with landmines and unexploded ordnance. If the U.S. can provide assistance to clean up bombs and mines and assist survivors, why can't it do the same for people affected by Agent Orange?

What are your comments on the fact that in 1984, Dow Chemical, Monsanto and other American chemical companies paid $180 million in compensation for U.S. veterans who took part in the war in Viet Nam, but they have yet to compensate Vietnamese AO victims?

I believe that Vietnamese who are affected by Agent Orange have as much right as U.S. veterans for compensation from the chemical companies. However, the decision to rule in favor of the veterans was very much a political decision to force the case to settle out of court. It took a great deal of public pressure to make sure that the case was settled within a reasonable amount of time. Opinion polls show that the majority of Americans support the Vietnamese in this lawsuit, but we will have to work to put pressure on the chemical companies to settle the case. In particular, Americans need to know that this is not just a historical issue but one that it is still affecting people today, 30 years after the end of the war and more than 40 years since the first herbicides were sprayed in Viet Nam.

4.

Current Affairs

North America

VIETNAMESE VICTIMS PREPARE FOR AGENT ORANGE COURT CASE
By Robert Chesal

Radio Netherlands
March 1, 2005

http://www2.rnw.nl/rnw/en/currentaffairs/region/northamerica/usa050301?view=Standard

For the first time since the Vietnam War ended in 1975, a group of Vietnamese people who say they are victims of Agent Orange are suing for compensation.

The civil case -- which, if successful, could be worth billions of dollars in payouts -- has been filed on behalf of millions of Vietnamese, who accuse U.S. chemical manufacturers of crimes against humanity. Children raised in areas contaminated by the substance -- which contains highly poisonous dioxin -- have a wide range of birth defects and chromosome damage.

HEALTH PROBLEMS NOT RELATED

Agent Orange was a defoliant used to flush out Vietnamese soldiers during the 1954-1975 war. Companies which manufactured the chemical say they did so in accordance with government specifications, and that use of the agent was necessary to protect U.S. troops. They also say that the health problems suffered by the complainants and exposure to the chemical are unrelated.

The U.S. Justice department has asked the judge to throw the case out, claiming that it is a threat to a president’s power to wage war, and that it will open the floodgates for compensation claims.

WHAT TOOK VICTIMS SO LONG?

Ken Herrmann is director of the Da Nang/Quang Nam Fund, an organization that provides aid to children affected by exposure to Agent Orange. Radio Netherlands asked him what took the victims so long -- 30 years after the war ended -- to sue the makers of Agent Orange. He said: “It’s taken so long because the American Government has denied any connection between physical or emotional disabilities and the spraying of 20 million gallons of dioxin on that country during the war. American war veterans spent time in a class action suit in the early 1980s, attempting to receive redress from the U.S. government in support. That case was settled out of court, so there was no precedent."

> VICTIMS ARE COMING FORWARD

Mr. Herrmann says: "The Agent Orange victims in Vietnam, represented by their government, have been thoroughly researched by a variety of international research projects that have concluded there is a direct connection between the disabilities two million Vietnamese suffer now, and the use of chemical warfare by America during the Vietnam war. But America has denied any connection whatsoever [. . .] Finally the victims themselves have come forward asking for help.”

NOT JUST FINANCIAL COMPENSATION

He believes that the victims are not just seeking financial recompense for exposure to the chemicals: “They’re asking for environmental clean-up; they’re asking for medical care; they’re asking merely for justice. Now, whether that will involve billions of dollars or whether it will involve a variety of corporations assisting in renumerating the harm that was done, I don’t know that. But I do know that it is a matter of mere social justice.”

Mr. Herrman says that, although some war veterans have been compensated in the past for exposure to Agent Orange, this case is unprecedented in legal history: “American war veterans have been awarded millions of dollars by the courts in America. The U.S. government has spent over one billion dollars in aid, in the form of medical care and financial compensation to American war veterans and their families, who suffered because of brief exposure to Agent Orange. [The current] lawsuit addresses not brief exposure, but 30 years of exposure to this chemical.”

TURNING A DEAF EAR

And, although former U.S. soldiers who have been affected by Agent Orange have received publicity in the USA, Ken Herrman believes the U.S. public hasn’t really been exposed to Vietnamese victims' stories: “A variety of us have been laboring for a number of years to try to bring this to the attention of the American public. And the American public has turned a deaf ear. And I think part of it is that they’d like to forget Vietnam. Nations like to forget wars that they lose.”

5.

AGENT ORANGE, THE NEXT GENERATION
By William Glaberson

New York Times
August 8, 2004

http://www.informationclearinghouse.info/article6656.htm

In 1984, after years of battles over science and damage tabulations, seven American chemical companies settled a huge class-action suit by Vietnam veterans who claimed that the defoliant Agent Orange caused cancer, birth defects and a nightmarish brew of other health problems.

The companies paid out $180 million. By 1997, after the last payments had been made, 291,000 people had received benefits. The settlement was reached after a federal judge persuaded the companies to buy themselves out of protracted litigation. It was called a landmark legal peace on a brutally contentious issue, and it was supposed to be the final word from the courts on Agent Orange, a defoliant containing the deadly substance dioxin.

But today, a new cast of plaintiffs, this time Vietnamese as well as American, has returned to the same American court seeking justice and dollars. One suit filed on behalf of as many as four million Vietnamese says their land and people were so poisoned by Agent Orange that supplying it to the military amounted to war crimes by the chemical companies.

In other suits, American veterans say they have only now come to learn of their devastating health problems, with the money gone.

The claims are more than empty reminders of an old fight. Judge Jack B. Weinstein, whose aggressive handling of the Agent Orange case in Federal District Court in Brooklyn in the 1980's brought him wide attention and considerable anger, has said that the Vietnamese suit raises serious issues. The United States Supreme Court has said that the new cases by American veterans cannot be automatically barred.

The chemical companies say fairness dictates that the time for the legal battle they thought they had ended a generation ago has come and gone. They claim the science still does not prove that Agent Orange was responsible for any of the medical horrors its name has long brought to mind.

Whatever the fate of the suits, the revival of the Agent Orange battle means that these days, there are ghosts in the Brooklyn federal courthouse -- of a divisive war, of modern battle tools, of hard feelings by people in two countries who were caught up in combat long ago.

"Doesn't it ever end? When will Agent Orange become history?" said Kenneth R. Feinberg, a Washington lawyer who was a special master in the Agent Orange case 20 years ago and recently ran the 9/11 Victim Compensation Fund.

Lawyers for Dow Chemical, Monsanto, Hercules and more than a dozen other chemical companies named in the legal battle say that the claims of war crimes by the companies are unsupportable. They note that the companies were ordered by the Pentagon to make Agent Orange and say that if there is to be any compensation to Vietnam, it should be a result of negotiations between the two governments.

The lawyers also say that the new suits are as baseless as the old. A lawyer for Dow, Andrew L. Frey, said in an interview that people suffering life's random hardships sued because "it's human nature to look for something to blame."

But in recent interviews in Vietnam and the United States, people who say they are victims of Agent Orange echoed one another in the strength of their conviction that a wrong is yet to be fully righted.

In a sparsely furnished Hanoi apartment, one of the Vietnamese plaintiffs, a doctor, described working since the war with people she believed were victims of Agent Orange. Many were spurned for years, said the doctor, Phan Thi Phi Phi, because of a belief in Vietnam that people who had malformed children were paying the price of their ancestors' immoral lives.

Dr. Phi Phi, a small woman who spoke softly, said she was a victim herself. During the war she worked in a mobile hospital in an area of South Vietnam that was a target of American spraying. She had four miscarriages, she said, and nearly died. Agent Orange, she said, "destroys human life for many generations." Joe Isaacson, a school administrator and Vietnam veteran from Toms River, N.J., has been fighting cancer since the 1990s. His simmering anger about Agent Orange sounded much like Dr. Phi Phi's. "We didn't know," he said, "that it was more dangerous than the enemy."

In a modest house on a quiet street in Haiphong, east of Hanoi, a frail former soldier for North Vietnam, Nguyen Van Quy, remembered the acrid odor when it rained along the Ho Chi Minh trail. That smell, he said, was a sign that Agent Orange had killed all life, down to the roots of plants that hungry soldiers ate in the wide, dead areas along the trail.

Mr. Quy, 49, has cancer and two children born with birth defects. Someone, he said, should be held accountable. "Somehow," he said, "our misery, our hardship can be lessened."

By telephone from Cape Coral, Fla., not long after Mr. Quy had spoken in Haiphong, Daniel R. Stephenson remembered the foul smell too, and the black hillsides. He is a Vietnam veteran who struggles with the pain of multiple myeloma that he believes came from exposure to Agent Orange. "It'll kill vegetables, but it'll also kill other things, too," he said.

Judge Weinstein, now 82, has said over many years that he does not believe lawyers can prove that Agent Orange causes specific diseases, other than a minor skin irritation. He repeated that recently in a tentative ruling on the claims of Mr. Isaacson and Mr. Stephenson.

But lawyers for the plaintiffs argue that there is new scientific evidence about the dangers of Agent Orange that was not available in the 1980's. Gerson H. Smoger, a lawyer for Mr. Stephenson and Mr. Isaacson, said Judge Weinstein's understanding of the scientific information was outdated.

William H. Goodman, a New York lawyer handling the suit for the Vietnamese, said his clients deserved to present their case against Agent Orange. "We have generation after generation suffering from its consequences," he said.

The scientific issue remains one of the most debated over Agent Orange. In recent years, the Institute of Medicine of the National Academy of Sciences has said there is an "association" between exposure to Agent Orange and some diseases, including soft-tissue sarcoma and non-Hodgkin's lymphoma.

Guided partly by the institute's list of diseases, the Department of Veterans Affairs gives Vietnam veterans compensation for many illnesses that it presumes were caused by exposure to Agent Orange. But the chemical companies say the "association" finding provides nothing like the clear proof required to establish in court that Agent Orange is the cause of any serious disease.

The Institute of Medicine also says there is inadequate evidence to determine an Agent Orange association with many of the diseases cited by veterans, including many types of cancer and most birth defects.

But some public health experts say it would be wrong for the courts to assume that the level of scientific knowledge has remained static. Since the 1984 settlement, said Jeanne Mager Stellman, a Columbia University public health professor, "There is much more evidence about dioxin-contaminated herbicides."

Dr. Stellman, who was a consultant to the special master in the Agent Orange case years ago, added that most experts agree that Agent Orange is one of the planet's most deadly substances. As they did in the 1980's, the chemical companies argue that the courts need not decide the issue of what the health effects of Agent Orange may be. They say the companies cannot be held liable because they were ordered by the Pentagon to make Agent Orange. Under sovereign immunity, the American government cannot be sued; government contractors are often shielded from suits as well.

In February, Judge Weinstein said he planned to rule for the companies. He said his decision would take effect in October unless he was persuaded to change his mind. He said the companies were contractors who were ordered to supply herbicide that met specifications set by the military. Plaintiffs' lawyers have long said the chemical companies knew more than the government about the dangers of Agent Orange and should not qualify for protection.

Judge Weinstein said he planned to rule that the veterans could not proceed with their case against the chemical companies because of the government-contractor shield. He added that he thought it doubtful that the Supreme Court, which permitted the veterans' case to go forward by a 4-to-4 vote, "has fully considered the significance of reopening these Vietnam War issues."

But Judge Weinstein also said from the bench this spring that he was not sure whether, when considering the war-crime claim, the "I was told to do it" argument could protect the chemical companies.

The companies' lawyers answered that chemical executives could not possibly have intended to commit war crimes when they supplied Agent Orange in the 1960's since, even now, there is debate about whether it is as harmful as the suits claim.

Judge Weinstein said he expected to make his final rulings in October and they would likely set the stage for appeals in both the veterans' and the Vietnamese cases.

The veterans' suits before Judge Weinstein involve only Mr. Stephenson and Mr. Isaacson. But there are at least nine other cases in Federal District Court in Brooklyn filed by other veterans who say they became ill after the settlement fund was depleted. Judge Weinstein said hundreds of other cases could follow.

The companies say that reopening the case will reduce the chances of settlements in other cases. Businesses offer settlements in mass injury cases, they say, to ensure total peace -- and the end of litigation. "If future claimants are not bound by settlements, companies will be more likely to litigate than settle," said William A. Krohley, a lawyer for Hercules. In the Brooklyn courthouse, the cases are moving at the slow pace of the law. In other places, people who say Agent Orange devastated their lives are trying to make sense of the legal battle that is a remnant of a long-ago war.

Mr. Isaacson, 56, the New Jersey school administrator, has non-Hodgkin's lymphoma. He was grateful, he said, that his 17-year-old daughter was healthy. He was an Air Force crew chief who worked on the planes that sprayed Agent Orange to clear away the jungle. "I am sure," he said, "there could have been other methods that wouldn't have hurt the veterans."

In Haiphong, Mr. Quy, the former North Vietnamese soldier, seemed weak as he mentioned the acrid spray from the American planes.

Listening as he spoke was his teenage son, whose face moved in spasms, and his daughter, who could not speak. His wife, Vu Thi Loan, cried quietly. "We were unlucky," she said. "We have to endure our hardship and there is no other way."

--Doan Bao Chau contributed reporting from Vietnam for this article.