Disabled … Tran Huyen Trang, 20, at home in Hanoi (Photo: Reuters)
Scroll down to read Aaron Sussman's "Toxic Injustice", a two part compelling and scholarly account of the Agent Orange crime against humanity
MAJOR US chemical companies are directly accountable for supplying the US military with Agent Orange during the Vietnam War and causing widespread dioxin poisoning, a lawyer for Vietnamese plaintiffs told a federal appeals court on Monday.
Thirty companies, including Dow Chemical and Monsanto, are named in the lawsuit that seeks class-action status for 3 million Vietnamese.
US warplanes dumped 70 million litres of the defoliant on Vietnamese forests between 1962 and 1971. The plaintiffs are seeking damages from dioxin poisoning, which they say caused cancer, deformities and organ dysfunction.
Jonathan Moore, a lawyer for the plaintiffs, said the companies knew the herbicide containing dioxin was harmful but did nothing. "We are now seeing, years later, the fruit of that terrible poisonous product," he said.
The judges were unmoved by cases dating from World War II, in which the makers of Zyklon B, used in Nazi death camps, were convicted of crimes. "It's a different circumstance here, is it not?" said Judge Robert Sack. "Is poison designed to kill or hurt?"
Seth Waxman, arguing for the chemical companies, said there was a lack of legal precedent for punishing those who used poisons during warfare and said US battlefield decisions could be harmed. "This does affect our ongoing diplomacy," he said, citing the use of depleted uranium shells by US forces in Iraq.
Before the hearing, Vietnamese supporters held a rally. Among them was Nguyen Van Quy, a former soldier who is at the end stage of multiple cancers and has two children who suffer from birth defects.
“…This is the crime of which I accuse my country…and for which neither I nor time nor history will ever forgive them, that they have destroyed and are destroying hundreds of thousands of lives and do not know it and do not want to know it…But it is not permissible that the authors of devastation should also be innocent. It is the innocence which constitutes the crime.” -- James Baldwin, Letter to my Nephew on the 100th Anniversary of the Emancipation
War is Hell, but, for many, so is the aftermath, the ensuing “peace” that emerges out of war’s dust and ashes. Long after the last bullet tears through the flesh of the last soldier, the Hell of pain, suffering, and trauma remains. Though military operations in the Vietnam War have been over for decades, the war continues to rage each day in the form of children born with severe deformities, desiccated land that was once rich and arable, and veterans on both sides of the conflict who frequently develop new symptoms and are constantly plagued by old ones. The devastating effects of Agent Orange, a defoliant used to thin out the Vietnam jungle and destroy enemy crops, are a blemish on the U.S. national record and a glaring reminder of American foreign policy that has little respect for life and law. Decades later, the lethal effects linger, but there has been no justice.
In late 1961, despite strident objections from the State Department over the potential effects on civilians, the use of “burn down” herbicides in Vietnam was authorized by President Kennedy as part of “Operation Hades,” which would soon become “Operation Ranch Hand.” These defoliation and crop destruction efforts continued at a moderate pace until the war escalated in the mid-1960s. By early 1965, a new herbicide called “Agent Orange” was introduced.
Agent Orange is a combination of two chemicals that undergo a chlorinated chemical process, creating the by-product 2,3,7,8-TCDD, “ the most toxic member of the family of chemicals known as dioxin.” This form of dioxin, in fact, has been described as “ perhaps the most toxic molecule ever synthesized by man.” Peter Schuck writes in Agent Orange on Trial, “As early as 1952, Army officials had been informed by the Monsanto Chemical Company…that 2,4,5-T was contaminated by a toxic substance.”
As American casualties in Vietnam mounted, it became increasingly clear that superior fire power had little consequence in a dense, guerilla-friendly jungle and that open-field combat would be to the Americans’ advantage. For this reason, the U.S. military scorched up to “25 percent of the country’s forests with the deadly chemicals Agent Orange, and also Agent White, Blue, Pink and Purple,” totaling approximately 20 million gallons of herbicides. In April of 1970, the military ceased all operations involving Agent Orange. The lasting damage, though, would be devastating and irreversible.
A generation born after the last U.S. jet returned from Vietnam would become the most affected victims, as up to 150,000 “deformed children have been born to parents who were directly sprayed with Agent Orange or exposed through contaminated food and water.”
In Vietnam, BBC News journalist Tom Fawthrop met what the “local villagers refer to as an Agent Orange baby” in the town of Cu Chi. As Fawthrop testifies, Tran Anh Kiet is 21 years old; “his feet, hands and limbs are twisted and deformed. He writhes in evident frustration, and his attempts at speech are confined to plaintive and pitiful grunts….He is an adult stuck inside the stunted body of a 15-year-old, with a mental age around six.” Many journalist who visits Vietnam has similar encounters. Jill Schensul of New Jersey’s The Record reports on her meeting with Nguyen Thi Lan and her five year old son, Minh. Nguyen lifts up Minh’s T-shirt to show the American journalist the effects of U.S. foreign policy: “Instead of the chubby belly of childhood, this torso is twisted, the skin taut over a gnarled rib cage that juts grotesquely from the right side of the chest…. He cannot see, hear, or speak.” Others write about children who are not allowed in school because their appearance frightens the other students, or babies whose life span only reaches a few hours, or adults who were children during the war and still randomly bleed from the ears and nose. There are countless horror stories like these in Vietnam, with new ones constantly emerging.
One public health study at Columbia University found that “ up to 4.8 million Vietnamese were living in 3,181 villages that were directly showered with Agent Orange” and that dioxin levels are four times higher today than what was previously predicted. The most discouraging studies, though, are those that prove how toxic the environment still is in parts of Vietnam. In 2003, “Dr. Arnold Schecter, a leading expert in dioxin contamination in the US, sampled the soil [in the former military base Bien Hoa]…and found it contained TCCD levels that were 180 million times above the safe level set by the US Environmental Protection Agency.” Today, as many as three million Vietnamese suffer from the effects of toxic herbicides, as do tens of thousands of American veterans.
While a variety of justifications and official doctrines have been employed by state officials to explain violent foreign policies, the injury inflicted by the U.S. military on American soldiers in Vietnam stands as a unique source of shame. In Fred Wilcox’s book Waiting for an Army to Die, he writes that, in addition to soldiers’ own Agent Orange related ailments, at least 2,000 children with a range of deformities and birth defects have been born to Vietnam War veterans. Wilcox interviewed many veterans, including John Green, Ray Clark, and Jerry Strait. John Green, a medic in the war, says, “I really didn’t know what they were spraying….Some of our food was undoubtedly sprayed with Agent Orange. But how were we to know? The army told us the stuff was harmless.”
The government and the military denied the effects of Agent Orange on soldiers from the beginning and would deny adequate treatment for years. The Veterans Administration (VA), the second largest government bureaucracy with an annual budget of approximately $24 billion, was responsible for letting veterans’ conditions worsen while their doctors withheld treatment. When veteran Ray Clark began urinating blood, the doctors at the VA “insisted [he] was putting ketchup and water in the specimen jars” so that he could receive disability and they told him the problem was “all in the mind,” a refrain echoed to countless other ailing veterans. When former infantryman Jerry Strait, whose daughter was born with half a brain missing, visited the VA hospital to complain about severe headaches, he was told that it was “obviously due to war-related stress.” He was never informed that “he spent more than three hundred days in the most heavily sprayed region of Vietnam or that the food he ate and water he drank may have been contaminated with dioxin.” Jerry Strait and thousands more were poisoned by their own government. There was no accountability, no responsibility taken, and nowhere to turn.
It took almost two decades after the end of the war and years worth of litigation for the federal government to finally offer assistance to American victims of Agent Orange. Congress authorized financial assistance for veterans in 1991, but the government was careful in calling the link between Agent Orange and the veterans’ health problems “presumptive,” allowing the government to “ effectively sidestep a de facto admission of guilt in Vietnam and avoid offering compensation to Vietnamese victims.” The U.S. government still maintains that “ there are no conclusive links between Agent Orange and the severe health problems and birth defects that the Vietnamese attribute to dioxin.”
The United States government has used every method of denial, stonewalling, and manipulation to hide the truth about the effects of Agent Orange. Even the paltry research that has been conducted has been riddled with problems. Despite investing $140 million into an Air Force Health Study on Agent Orange, “a design flaw…has resulted in a quarter-century of inaccurate findings,” according to two scientists who were involved in the study. There was criticism of this research from the very beginning, as the journal Science expressed concern in 1979 that “there may be a conflict of interest in having the Air Force study itself….”
Many Vietnamese citizens and government officials have called upon the United States to admit wrongdoing, take responsibility, express contrition, and aid the process of reconciliation (for more on this, see “ Part 2: What Must Be Done”). Yet, American foreign policy is far too complex and riddled with human rights abuses for such an admittance or apology to be made without jeopardizing legal standing and ability to continue current practices. The United States could not apologize to Vietnam, for instance, while ignoring the fact that, in the same year that troops withdrew, the CIA and the Nixon administration helped orchestrate the military overthrow of democratically-elected President Salvador Allende in Chile to install Augusto Pinochet, one of the most brutal and murderous dictators of the 20th century. Nor would it be satisfactory for the U.S. to apologize for Agent Orange, but not mention the terror-spreading Phoenix Program that resulted in the killing of up to 70,000 Vietnamese, many of whom were civilians and family of Vietcong, or the elite U.S. Army unit, “Tiger Force,” which, in the Central Highlands in 1967, committed the “longest series of atrocities in the Vietnam War,” killing hundreds of unarmed civilians, as reported by the Toledo Blade. It is unclear what the U.S. could specifically apologize for in a war in which “every returning combat soldier can tell of similar incidents [to My Lai], if on a somewhat smaller scale," according to Robert Jay Lifton, a psychologist who extensively interviewed Vietnam veterans. Even more importantly for the U.S., apologizing for or openly acknowledging the damage caused by Agent Orange could adversely affect current practices in Iraq, most notably the use of white phosphorus as a weapon in Fallujah.
The use of Agent Orange was a tragedy and a crime that is recommitted everyday as Vietnamese citizens and U.S. veterans suffer from the effects and pass them on to their children. One of the many unheeded “lessons” of Vietnam is that atrocities do not end with the war, but linger and fester. By not admitting the truth about what was done, the U.S. allows the trauma of Vietnam to remain an open wound. By not taking steps towards justice and acknowledging what must now be done, the U.S. allows Agent Orange to remain an open atrocity. ^^^^^^^^^^^^^^^
Toxic Injustice, Part 2: What Must Be Done
Of the many atrocities and crimes committed by the United States in Southeast Asia during the Vietnam War, the military’s use of Agent Orange has left the most destructive legacy, resulting in the ongoing suffering of both Vietnamese citizens and U.S. veterans, for whom there has been little justice or reconciliation. This is what must be done. By: Aaron Sussman
The devastating effects of Agent Orange are a blemish on the U.S. national record and an obstacle impeding true reconciliation between the U.S. government and both Vietnamese and American victims of the toxic herbicide (for information about Agent Orange and its effects, see Part 1, "What Was Done”). 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 U.S. 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 U.S. pledged to contribute to this cause, in the amount of just $300,000. Pledges from the U.S. 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 U.S. 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 U.S. compensation. From a moral standpoint, 64.4 percent agree that the U.S. government “has a moral responsibility to compensate U.S. 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 U.S. 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 U.S. 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 U.S. did not sign the 1980 Convention on Conventional Weapons, which bans the use of incendiary weapons against civilians, and that the U.S. is “in near total isolation in [opposing] the global effort to ban [land] mines,” according to Human Rights Watch. The unwillingness of the U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. 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 U.S. “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 an Executive Editor at Incite Magazine and a contributor to several other publications, which you can see in his bio. For more of his work, visit www.ACrowdedFire.com. Aaron can be contacted at
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