Toxic War by Peter Sills

Author:Peter Sills [Sills, Peter]
Language: eng
Format: epub
Tags: HIS027010 HISTORY / Military / Biological & Chemical Warfare
ISBN: 9780826519641
Publisher: Vanderbilt University Press
Published: 2014-02-05T20:42:30+00:00

The veterans who brought this lawsuit actually agreed, for the most part, with Spey. They decided not to name the federal government as a defendant. They didn’t want to sue the military and never took seriously the possibility that their leaders had intentionally poisoned them.

Their lawyers also saw a tactical benefit in leaving the government out of the litigation. First of all, any claim would have been on shaky legal ground. Feres v. The United States, a 1950 Supreme Court decision, held that soldiers hurt or killed in active duty couldn’t sue the government for negligence. The logic behind Feres is obvious; war would be impossible if soldiers could file a legal claim for the harm they suffered in combat.

But there are limits to Feres. The government can’t intentionally harm its soldiers, and it certainly can’t use them as guinea pigs. Military personnel who were deliberately and secretly exposed to atomic radiation hadn’t lost their right to sue. Still, this exception probably wouldn’t work for Vietnam veterans, assuming that the military didn’t know about Orange’s toxicity.

On the other hand, claims involving miscarriages and birth defects might still be valid. The government certainly had no right to place the children of exposed veterans at risk. But according to Peter Schuck, the veterans’ attorneys weren’t interested in pursuing this or any other exception to Feres. They wanted to keep the government out of the litigation. Their clients weren’t emotionally invested in suing the military, their resources were limited, and they wanted to narrow the scope of the case as much as possible. Going after the corporate defendants was going to be difficult enough. By giving the government a break, the plaintiffs also gained its cooperation, making it easier to gain access to necessary documents and witnesses.15

But the herbicide companies had no intention of letting the government off the hook. In fact, they meant to transfer any and all blame back onto the military.

First, they named the government as a third-party defendant, ultimately responsible for any damages, on the grounds that it had ordered, bought, and used the herbicides. Judge Pratt dismissed that claim because of Feres. Then the defendants asserted the “government contractor defense,” which frees manufacturers from liability for supplying a faulty product to the government, as long as it was produced according to the government’s specifications. Feres would still apply, but the manufacturers wouldn’t be held responsible for how Orange was made and used.

The veterans’ attorneys intended to prove that the manufacturers knew Orange contained a virtually undetectable poison and had kept that information secret. If so, the government contract defense would fail. As long as the military had no way of knowing it was purchasing a toxic product, any specifications it had developed for that product were beside the point.

The manufacturers argued that the military really did know that 2,4,5-T was dangerous and had known it since the 1950s, long before T became an ingredient in Agent Orange. Any finding that the manufacturers failed to disclose the herbicide’s toxicity would be irrelevant, since the government already possessed that information.

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