A U.S. District Court in New York City today heard the opening arguments in a class-action lawsuit filed on behalf of 27 Vietnamese victims of one category of chemical weapons stemming from the American war over their country four decades ago: Operation Ranch Hand, the massive spraying of herbicides and, in particular, the “agent orange” defoliant that the American military used over South Vietnam.
(Quick aside. I’ve just written South Vietnam with good reason: Because it was against the area to the south of the 17th parallel—the partition between a South and a North agreed to in the 1954 Geneva Accords—that not only the American use of herbicides and other chemical weapons was directed, but in fact the great bulk of American firepower known as the “Vietnam War.” True, the Americans eventually spread their war north of the 17th parallel (officially from February, 1965 onward), as well as into Laos and Cambodia. But though they also went on to use agent orange in Laos and Cambodia, it was South Vietnam that bore the brunt of this chemical warfare.)
“It is the first Agent Orange suit filed by Vietnamese,” Sunday’s Boston Globe reported—one of only two mass circulation dailies to have reported the lawsuit by the day it started. “They want the manufacturers to pay for medical care and dioxin cleanup, and to pay victims a sum equivalent to their profits from producing the herbicides, plus interest.”
Between 1961 and 1971, the Americans sprayed 20 million gallons of the chemicals over anywhere from 10 to 14 percent of the South Vietnamese countryside, covering as many as 6 million acres in all. In one of its major studies of the long-term effects of the chemical dioxin that was common to all of the herbicides used during the war, Hatfield Consultants of Canada reported that “The ultimate receptacle for dioxin moving through the local environment…is human beings.” In the geographic area studied, near the border with Laos, “both the older and younger generation [had] significant levels of dioxin in their blood relative to data from northern Viet Nam where Agent Orange was not applied. Deformities, early cancers, and other medical conditions have been noted in the valley. Vietnamese health studies have indicated that birth defects are an order of magnitude higher in the…area than similar areas of unsprayed northern Viet Nam.” Multiple studies by the Institute of Medicine of the National Academies of Science—here bucking stiff political resistance from successive regimes in Washington—have gradually acknowledged that some of the diseases reported by American military personnel also exposed to agent orange while serving in Vietnam are linked causally to the dioxin it contained. (Though the IOM does not escape American politics entirely. It classifies its study of agent-orange-type exposure (i.e., what the U.S. Government does) as “herbicides,” while it reserves the phrase “chemical warfare agents” for its study of something that other states do.)
“We have 27 people, all from the areas affected by the chemical during the war and representing the 13 diseases caused by Dioxin as acknowledged by the U.S. Academy of Sciences,” the General Secretary of Vietnam’s Agent Orange Victims Association Tran Xuan Thu told Deutsche Presse-Agentur (“Vietnam confident of winning Agent Orange case,” Feb. 28). “We have sufficient test results of these people’s illnesses. Some of them have even been found to be carrying dioxin in their blood now. Is that not convincing enough?”
Well. It depends on whom you ask. Thus according to this morning’s New York Times (“U.S. urges Judge to Dismiss Suit On Agent Orange Use in Vietnam,” William Glaberson, Feb. 28):
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.
Because of the federal government’s sovereign 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.
The federal government’s opposition may be the biggest legal hurdle for the Vietnamese plaintiffs, lawyers say. In language that could set the stage for years of appeals, the Justice Department brief argued in sweeping terms that the court could not second-guess the government’s decisions about the conduct of the Vietnam War.
The last paragraph especially merits some attention, as it unambiguously affirms the prerogatives of the Imperial Presidency, and its supra-Constitutional powers. The Times goes on to quote from the Justice Department’s brief (as yet not available to the public):
”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.
Let me repeat the Justice Department’s objection here, as it was immediately seized upon by the wire services (AP, Press Association, UPI) as proof that Washington is prepared to play hard-ball with the Vietnamese plaintiffs, and send them packing.
Thus, to paraphrase: If the cross-generational victims of America’s chemical warfare in the 1960s win recognition and compensation from Judge Jack B. Weinstein’s New York City courtroom, the doors of the U.S. legal system will be thrown open for other enemies to undertake similar lawsuits.
But, as the Boston Globe reported Sunday, “Last month, the US government filed a statement supporting the chemical companies. It argued that the court has no authority to judge ‘the validity of the president’s decisions regarding combat tactics and weaponry’, including Agent Orange.” The American President—here reaching all the way back to Kennedy, Johnson, and Nixon, for Christ’s sake—being above such petty nuisances.
Indeed. In the very last paragraph of Sunday’s Globe report, we read that “The scientific questions will not be at issue [Monday]. The relevant legal questions are whether the defendants are indemnified as government contractors, and whether the statute of limitations has expired.” Indemnified being the key concept here. Because if the American President says “Boo!”—then “Boo!” it most assuredly and categorically is.
Monday’s Times reiterated the exact same point: “The chemical companies argue that they produced Agent Orange following government specifications and that its use in Vietnam was necessary to protect American soldiers.”—
That is to say, that these 30-odd American chemical manufacturers to have found themselves defendants in the lawsuit were just fulfilling their contracts with their Government. When all is said and done, they were just doing their jobs.
On behalf of an American Sovereign which, when it comes to questions of war and peace and killing on command—or spraying chemical weapons—the same thing—enjoys supra-Constitutional powers.
Rendering It untouchable by the American courts. Untouchable by international law. Untouchable by treaties. Conventions. And their assorted protocols.
Impunity. Impunity. Impunity. The Imperial Presidency enjoys absolute impunity. And so does everyone who acts at Its behest.
I hope we all recognize the nature of the argument the defendants have adopted in the case of Vietnam Association for Victims of Agent Orange/Dioxin et al v. The Dow Chemical Company et al.
And where in history we have heard arguments like it before.
Postscript. As of Tuesday morning, March 1, this class-action lawsuit remains nearly subliminal as far as the captive American mind is concerned. A single article in Newsday (“Judge questions validity of Agent Orange suit,” Anthony M. Destefano) is the only report in the mainstream American dailies that I’ve been able to locate that deals with the opening day of arguments in the New York District Court.
Postscript II. A comment posted to this particular blog by “ubermensch” (March 01 at 05:58 PM) calls to everyone’s attention a transcript of Adolph Eichmann’s final “plea” from his glass booth in the Jerusalem courtroom:
“Eichmann’s Final Plea” (May 31, 1962)
In it, Eichmann speaks after the Court had given him the chance to make a statement prior to sentencing—death by hanging, as it turned out.
To excerpt what strikes me as a particularly revealing passage:
[A]nyone who has to give orders and has to obey orders knows what one can demand of people. I did not persecute Jews with avidity and passion. That is what the government did. Nor could the persecution be carried out other than by a government….
I accuse the leaders of abusing my obedience. At that time obedience was demanded, just as in the future it will also be demanded of the subordinate. Obedience is commended as a virtue.
May I therefore ask that consideration be given to the fact that I obeyed, and not whom I obeyed.
Agent Orange Project, Fund for Reconciliation and Development (Great resource. Includes links to material drawn from the class-action lawsuit presently before the U.S. District Court in New York City.)
Agent Orange Lawsuit Filed by Vietnamese Victims
Justice for Victims of Agent Orange (Petition)
Operation Ranch Hand: The Air Force and Herbicides in Southeast Asia, 1961-1971, William Buckingham, Jr. (U.S. Air Force, 1982)
Preliminary Assessment of Environmental Impacts Related to Spraying of Agent Orange Herbicide During the Viet Nam War, Hatfield Consultants, Ltd. (Canada, October 1998)
“Agent Orange Victims Sue Monsanto,” Tom Fawthrop, CorpWatch, November 4th, 2004
“Vietnamese seeking redress from US in Agent Orange suit,” Matt Steinglass, Boston Globe, February 27, 2005
“U.S. urges Judge to Dismiss Suit On Agent Orange Use in Vietnam,” William Glaberson, New York Times, February 28, 2005