Agent Orange Toxic Injustice Part II: What Must Be Done

* Read Part I


The devastating effects of Agent Orange are a blemish on the US national record and an obstacle impeding true reconciliation between the US government and both Vietnamese and American victims of the toxic herbicide For this reason, issues of international law, justice, and corporate and governmental responsibility must be addressed clearly and directly. Those who are currently suffering from the poisonous effects of Agent Orange, though, have found that the struggle for justice can be as toxic.

"I died in Vietnam, but I didn't even know it," announced veteran helicopter crew chief Paul Reutershan when he appeared on the Today show in the spring of 1978, according to Fred Wilcox in Waiting for an Army to Die. Reutershan, a helicopter crew chief and self-described "health nut" who did not smoke or drink, died at the age of 28 of virulent abdominal cancer. However, before he died, he contacted a personal injury lawyer and launched the first lawsuit against the chemical manufacturers that produced Agent Orange, a lawsuit that would grow into some of the largest and most important litigation of the time. Awareness of Agent Orange spread rapidly due to this lawsuit and the data collected by Maude DeVictor, an employee in the Benefits Division of the VA's Chicago office. DeVictor began keeping track of chemical-related complaints, despite the orders of her supervisor to stop, and the data she collected became the source for the 1978 CBS documentary, Agent Orange, the Deadly Fog. By May of 1979, a class action suit filed by the lawyer Victor Yannacone against seven chemical manufacturers included 4,000 claims and continued to grow.

The case would drag on for six tumultuous and costly years, concluding in 1984 with what was the largest tort settlement in history. According to Peter Schuck in Agent Orange on Trial, Dow Chemical, Monsanto, and five other chemical manufacturers paid $180 million to over 50,000 veterans, but still denied liability. Few of the plaintiffs ever received more than $5,000. While this was an important case with an impressive cash settlement, it did little to satisfy the afflicted veterans or to address the politics of responsibility. The corporations were never found guilty nor did they admit wrongdoing. Further, due to the Federal Tort Claims Act and the Feres/Stencel immunity doctrine, the veterans were unable to file a lawsuit against the federal government or the military. To this day, the political issues of Agent Orange have been mishandled, evaded, and ignored.

While achieving a modicum of justice took many years for American veterans, Vietnamese victims of Agent Orange have less hope of seeing any form of justice in the near future. In 2004, several of these victims, led by the Vietnam Association for Victims of Agent Orange (VAVA), filed a federal lawsuit against 37 US defoliant producers that created and distributed Agent Orange. The case was dismissed on March 10th of 2005 because of a variety of factors that led the Judge to conclude in his 233-page decision that no domestic or international law had been violated. The lawsuit sought "billions of dollars in damages and environmental cleanup, on behalf of . . . four million Vietnamese victims." The ruling was met with great disappointment from Vietnamese citizens, the Vietnamese government, and American veterans who helped the Vietnamese victims, some of whom were formerly Vietcong, file the lawsuit.

Of the ruling, Nguyen Trong Nhan, the Vice-President of VAVA, says, "We are disappointed . . . [Judge] Weinstein has turned a blind eye before the obvious truth . . . We just want justice, nothing more." One problem that plagued the plaintiffs is that of causation -- of proving that Agent Orange directly led to their health problems -- an obstacle exacerbated by the lack of funding with which research could be conducted among other scientific factors. Perhaps even more crucial to the outcome of the case was the fact that "the court had come under heavy lobbying from the US Justice Department to rule against the plaintiffs, because of Washington's fears of the legal precedent it would set in other countries ravaged by US military interventions." John McAuliff of the Fund for Reconciliation and Development (FRD), which supported the lawsuit, echoed this unpleasant reality when he said, "Judge Weinstein has made it easier for our country to continue to evade moral responsibility for the consequences of its actions . . . We constantly hold other countries responsible, but never ourselves." Though this ruling is a setback for the Agent Orange victims, it is not an unexpected one. The magnitude of this unprecedented situation and its international scope make it incompatible with the technicalities and minutiae of the American justice system. No court has the precedent or the jurisdiction to adequately seek justice on such a large and multi-dimensional scale. The call for accountability must be made to the government that launched the war in Vietnam and left a deadly, toxic legacy.

While all calls for governmental accountability or reparations entail at least a degree of symbolic justice, the situation in Vietnam is unique in that it also demands relatively clear-cut and practical action. The lawsuit brings at least some attention to the fact that there are still heavily contaminated "hot-spots" in Vietnam afflicting new victims.

The spraying of Agent Orange covered a vast amount of space and cleaning up only three of the most contaminated "hotspots" will cost as much as $60 million. Only recently has the US pledged to contribute to this cause, in the amount of just $300,000. Pledges from the US to aid these efforts with scientific research have been common, but actual results have been few. In the past several years, Congress has charged the National Academy of Sciences with studying the health effects of Agent Orange on the Vietnamese population, but this underfinanced research is a low priority and "at least two joint research efforts have fallen through," one as recently as February of 2005. Almost all of the decontamination efforts have come from non-profit organizations like the Ford Foundation and international bodies like the United Nations Development Programme.

The suffering that continues because of American policy in Vietnam and the lack of assistance from the US or admission of responsibility emphasizes the federal government's preference of global power and hegemony over international law, reconciliation, and moral concerns. The lawsuit on behalf of Vietnamese victims transcends mere legal matters; as VAVA President Dang Vu Hiep says, "The suit is not only for the life of Vietnamese Agent Orange victims, but also for the legitimate rights of all victims in many other countries, including the United States . . . We believe that conscience and justice are still respected in this earth." The American people tend to agree with him.

According to a Zogby Poll from 2004, 79.1 percent of Americans agree that the chemical companies should have had to pay compensation to American veterans who were exposed to Agent Orange and 51.3 percent agree that Vietnamese victims should receive US compensation. From a moral standpoint, 64.4 percent agree that the US government "has a moral responsibility to compensate US servicemen and Vietnamese civilians who were affected by Agent Orange." People 18 to 29 years old were the demographic most likely to endorse compensation for the victims, demonstrating a commitment of the younger generations to reconciliation and foreign policy conducted within a framework of morality.

While the Justice Department heavily supported the chemical companies in court against the Vietnamese victims, claiming that a ruling against the firms "could cripple the president's power to direct the military," many American Vietnam War veterans see reparations as indispensable to achieving reconciliation, both on a personal level and an international one. American veteran Chuck Searcy has been in Vietnam for ten years cleaning up "unexploded ordnance" from what was the demilitarized zone as part of Project Renew. Searcy says, "It wasn't so much about undoing what had been done. That was impossible. But we could build on the ashes and the bones of the war -- build on the hopes for the future, better understanding and reconciliation." Despite the US government's occasional rhetoric about human rights and reconciliation, these wounds are likely to remain open, as most paths to healing diverge in some way with American might and dominance.

The Vietnam War, in conjunction with US military aggression elsewhere in the world in the Cold War and post-Cold War era, demonstrates that American interests and priorities are more aligned with military power and economic dominance than they are with international law or human rights. In response to the use of Agent Orange, resolutions were introduced in the United Nations as early as 1966 "charging the United States with violations of the 1925 Geneva Protocol limiting the use of chemical and biological weapons," according to Schuck. Perhaps more than any other nation, the United States is rigidly averse to having its course of military action influenced by international norms. It is for this reason that the US did not sign the 1980 Convention on Conventional Weapons, which bans the use of incendiary weapons against civilians, and that the US is "in near total isolation in [opposing] the global effort to ban [land] mines," according to Human Rights Watch. The unwillingness of the US to sincerely endorse international law or embrace an international justice system is well conveyed by former Ambassador-at-Large for War Crimes Issues David Scheffer, who says, "There is a reality, and the reality is that the United States is a global military power and presence. Other countries are not. We are."

The failure of domestic courts to provide justice or adequate compensation to victims of Agent Orange reinforces the need for political solutions that are grounded in international norms. The often amoral interplay between global "justice" and global "power" makes it necessary for the international community and the citizens of the US to insist on the protection of human rights and fundamental respect for human life. In her book Between Vengeance and Forgiveness, Martha Minow asserts, "Forever after [the Vietnam War era], efforts to create tribunals for war crimes would raise questions from many inside the United States about its own accountability to such tribunals." For nations with power and resources, nationalism and unrestrained decision-making tend to supersede justice.

The best that can emerge from trials like those regarding Agent Orange are revivals of discourse surrounding US actions in Vietnam and empowered movements that call for dedication to human rights and international law. Yet, in situations like this, trials alone have very limited potential for effecting positive and permanent change. It is the US government that must, in addition to compensating victims and helping to detoxify Vietnam, face the past by publicly committing to the prevention of such abuses in the future.

One of the most important ways to do this is to rethink opposition to a standing International Criminal Court, which, if given sufficient powers of prosecution, would enable the punishment of war criminals fairly and efficiently and aid the cause of reconciliation. Though US objections to this court, particularly from the current Bush administration and former Ambassador to the United Nations John Bolton, center around a fear of a new judicial body threatening American sovereignty and eroding the Constitution, these concerns are largely unfounded unless international law is breached. The International Criminal Court operates under the principle of complementarity, meaning that it only functions if a state is charged with an international crime and fails to investigate and, if warranted, prosecute. Even abominations of justice -- like the show trial of William Calley (but not of any senior officers) for ordering the murder of approximately 500 civilians in the hamlet of Song My in 1968, which resulted in a life sentence that soon became three days in prison -- would be considered "investigation" and "prosecution."

Instead of a commitment to justice in Vietnam, the United States has sought "reconciliation" through the gospel of international commerce. After the US and Vietnam entered into a bilateral trade agreement in 2000, President Clinton delivered a speech extolling the act's significance: "This is another historic step in the process of . . . reconciliation and healing between our nations. Improvements in the relationship . . . have depended from the beginning upon progress in determining the fate of American who did not return from the war . . . Since 1993, we have undertaken 39 joint recovery operations in Vietnam, and [40 are] underway as we speak . . . And we, too, have sought to help Vietnam in its own search for answers . . . "

Exactly what answers have been given to the Vietnamese is unclear. During Clinton's visit to Hanoi, Vietnamese President Tran Duc Long asked the US "to acknowledge its responsibility to de-mine, detoxify former military bases and provide assistance to Agent Orange victims." No answer was given. Clearly, settling the American conscience about MIAs in Vietnam outweighs the lingering poison that contaminates swaths of the nation.

Not only are diplomatic and economic relations inadequate in achieving reconciliation, but they have the potential of adding further injustice by distorting the historical record. According to the Asia Times, "The Vietnamese government, which for decades publicly documented the impact of Agent Orange on civilian populations at its War Crimes Museum in Hanoi, recently toned down the exhibition in line with a warming trend in relations with Washington." With no justice, accountability, or compensation over the Agent Orange assaults, truth and historical memory are all the people of Vietnam have. Documentation of Agent Orange's tragic effects, especially on generation after generation of children, must be maintained and made publicly available in order for the gravity and criminality of such foreign policy decisions to be understood.

The use of Agent Orange in Vietnam is undoubtedly one of the most shameful foreign policy disasters in American history and one for which justice is unlikely to be achieved. Agent Orange, though unique in the continuous harm that it causes, was only one aspect of a larger catastrophe. Colonel David Hackworth, a decorated veteran, says "Vietnam was an atrocity from the get-go. There were hundreds of My Lais. You got your card punched by the number of bodies you counted." The United States has failed to repair the damage it caused, hold war criminals accountable, provide compensation to victims, and make a commitment to human rights and international law to prevent the recurrence of the atrocities in Vietnam. As the woeful past is rationalized, distorted, and denied, the victims of Agent Orange become not just casualties of war, but casualties of memory and injustice -- the Vietnam War's most toxic legacy.

Aaron Sussman is the co-founder and Executive Editor of Incite Magazine; he can be contacted at Aaron@InciteMagazine.org. For more of Sussman's work, visit www.ACrowdedFire.com.