The government carried on as if nothing had occurred. The ammonium nitrate that had not been loaded onto the Grandcamp and High Flyer was sent to another port and loaded onto the Ocean Liberty. After lowering anchor in Brest, France, the Ocean Liberty caught fire and exploded, killing approximately thirty and injuring more than one thousand French civilians and sailors.
TEXAS CITY RESIDENTS APPEAL TO THE COURTS
In the aftermath of the disaster, building inspectors throughout Texas volunteered to inspect surviving houses while volunteer construction workers repaired those fit for occupation. The Salvation Army and other organizations provided emergency relief. Airlines flew medical workers and others to Texas City at no charge.23 The Monsanto Corporation, whose refinery had been destroyed by the blast, kept its employees on the payroll and sent money to the families of those who had died. Informed that the wealthy Busch family wanted to contribute, a local banker formed a relief fund that ultimately distributed more than a million dollars in contributions.24
The federal government, whose negligence had caused the destruction, was less charitable. The surviving 8,485 residents of Texas City had to sue the United States for loss of their loved ones, bodily injury, or destruction of their homes and property. One might have expected the government’s attorneys to be willing to compensate them; after all, the attorneys worked for the United States Department of Justice.
Instead, the government attorneys fought as if they were under personal attack. An attorney for the victims described the Justice attorneys as “fiercely aggressive” and driven by an “extreme feeling that ‘this must be fought out and this must be defeated on any ground we can achieve.’”25 The government attorneys claimed the explosion was due to sabotage, or maybe due to longshoremen smoking in the hold (although the fire started deep in the cargo), that it was an unavoidable accident, and even that the government “had no title or control” over the explosive at the time it detonated; ownership had passed to the French government and its agents. That last claim failed when the government had to disclose the sales contract: under it, the United States owned the ammonium nitrate until it was delivered and paid for—but even so, the government attorneys pressed the argument at trial.26
Federal District Judge T. M. Kennerly, who presided over the trial, had practiced law for thirty-nine years before serving eleven years as a federal judge. He heard Mrs. Dalehite’s suit as a test case, with its findings to govern the remaining cases.
The trial lasted three months and produced twenty thousand pages of transcripts. Judge Kennerly ruled in Mrs. Dalehite’s favor; the beginning of his Findings of Fact summed up his reasoning:
The 80 or more charges against Defendant [the government] of negligence contained in Plaintiff’s pleadings are substantially all supported and sustained by the evidence. This record discloses blunders, mistakes, and acts of negligence, both of commission and of omission, on the part of Defendant, its agents, servants and employees, in deciding to begin the manufacture of this inherently dangerous fertilizer. And from the day of its beginning on down to after the day of the Texas City Disaster, it discloses such disregard of and lack of care for the safety of the public and of persons manufacturing, handling, transporting and using such fertilizer as to shock one.
When all the facts in this record are considered, one is not surprised by the Texas City Disaster (i.e., that men and women, boys and girls, in and around Texas City going about their daily tasks in their homes, on the streets, in their places of employment, were suddenly and without warning killed, maimed, or wounded, and vast property damage done). The surprising thing is that there were not more of such disasters.27
The court found that the ammonium nitrate/petroleum jelly mix was “inherently dangerous” and that prior fires and explosions had put the government on notice of its dangerous qualities. He added that the government had improperly labeled it and failed to inform the shippers that it was explosive.
Judge Kennerly faced one last barrier. The government had argued sovereign immunity vociferously. While Congress had consented to be sued under the Federal Tort Claims Act, Congress had not consented to damage suits that challenged the government’s “discretionary functions.” Any case challenging those functions would be subject to speedy dismissal. But what was a “discretionary function”? The government claimed that the decision to risk blowing up an American city was within the discretion of the agencies and officials involved, and the people who as a result were maimed or lost loved ones were simply out of luck.
Judge Kennerly chose to differ. He took the view that “discretionary function” related to high-level policy decisions. The Cabinet-level decisions to produce fertilizer and to send it to France were thus protected against lawsuit. But those decisions had not made the Texas City disaster inevitable; with reasonable care, those policies could have been carried out safely. What caused the disaster was negligence at much lower levels of government, by individuals who chose to produce a dangerous mixture at too high a temperature, to disregard repeated proof and warnings of its risks, and to avoid warning anyone of the danger to life and limb, and Judge Kennerly found the government to be liable for those acts and omissions.
The prospect of the government being civilly liable for killing its citizens was too much for the Department of Justice. The federal government appealed the ruling to the Fifth Circuit Court of Appeals, and then to the Supreme Court. The core issue became whether Judge Kennerly was right in deciding that the discretionary function exception immunized only high-level policy choices, or whether it broadly protected governmental negligence at almost every level, down to the government employee who decided what label to put on a bag of “fertilizer.”
The choice between the two approaches was likely affected by a human factor. Courts and judges tend to be very conservative, not in a political sense, but in the sense of regarding change with worry and suspicion. This feeling is particularly strong when Congress, rather than the courts, changes court-created legal doctrines. The courts had created and extended the defense of sovereign immunity. The Supreme Court had proclaimed that allowing suits against the government would shackle its operations and endanger the public good. Then Congress allowed such suits anyway! What could it have been thinking?
From this standpoint, it made sense to interpret the discretionary function exception broadly, to protect virtually any government decision, great or small, whether the decision came from a Senate-confirmed Cabinet officer or a midlevel worker in a field office. On the other hand, a government “by the people and for the people” is not supposed to maim and kill the people.
When Dalehite v. United States28 reached the Supreme Court, the majority of Justices ruled against Mrs. Dalehite and scrapped her and the other survivors’ lawsuits. To their mind, the discretionary function exception covered decisions made at every level of government. The decision to use bomb-grade ammonium nitrate mixed with wax and petroleum jelly was discretionary, since “the considerations that dictated the decisions were crucial ones, involving the feasibility of the program itself, balanced against present knowledge of the effect of such a coating and the general custom of similar private industries.” The decision to bag at dangerously high temperatures was discretionary, since cooling the ammonium nitrate to a safe temperature would have increased production costs: “This kind of decision is not one which the courts, under the Act, are empowered to cite as ‘negligence.’” Even the decision to label the bags as fertilizer was protected, since it violated no regulation and thus was left to government employees’ discretion.
The Dalehite v. United States ruling remains law to this day. In the six decades since Dalehite, the Supreme Court handed down three major decisions interpreting that ruling. The judicial pendulum swung back and forth, but overall tended toward expanding the protection given to government officials. The first, a 1955 decision in Indian Towing v. United States,29 allowed the Coast Guard to be sued over a lighthouse whose light malfunctioned. The Court distin
guished between planning decisions, which were immune from suit, and operational ones, which were not. Creating the lighthouse was a planning decision, repairing its light was operational.
Then came United States v. Varig Airlines,30 a 1984 decision that involved FAA inspectors who failed to give a passenger airplane a safety inspection. We might think that would be subject to suit as an “operational” decision, but the Varig Court ruled against liability. Dalehite, it held, immunized all decisions based on “social, economic, or political policy,” no matter how low the decision maker’s rank.
Four years later, Berkovitz v. United States31 pushed the Varig legal immunity still farther. Now, the government decision did not have to actually be based on social, economic, or political policy to be protected. It was enough that the decision “was susceptible to” such policy considerations. If the decision merely could have been made in light of such policy, it was legally protected. So if a government land manager allowed public use of a dangerous road, his decision would be legally protected if government attorneys could, in retrospect, think up a policy reason (such as allocation of government funds, or difficulty of enforcement, or perhaps an official could have worried that putting up “keep out” signs would attract more attention and lead to more use) that could have justified leaving a dangerous road open. That the bureaucrat responsible hadn’t worried about any of this would not matter.
By the end of the Supreme Court rulings, there were only two classes of government negligence where a lawsuit was allowed: (1) decisions for which no one could conjure up a possible policy reason (e.g., bad driving, medical malpractice, or occasionally failure to warn of dangers), or (2) situations where the government decision maker had no discretion to act: his or her choice violated law, regulation, or direct orders from their superiors. Only in rare cases could a person who had been injured, or who had lost a loved one to official negligence, win compensation.
A citizen can sue if a government employee is negligent and their negligence violates a superior’s orders. But courts require the orders to be very specific. In 1997, the Sixth Circuit ruled that the Forest Service Manual’s directives to inspect sites annually, to “give health and safety related items highest priority,” and “to the extent practicable, eliminate safety hazards from recreation sites” were not specific enough to allow suit when those orders were violated and dangerous fire pits were allowed to exist even after accidents occurred. The Manual’s commands “did not mandate that the Forest Service maintain its campsites and fire pits in any specific manner.”32
The Court’s reading of the Federal Tort Claims Act moreover created a perverse incentive. In private industry, the risk of liability gives reason to operate safely, to have safety policies, and to make sure that all employees avoid unreasonable risk to the public. In 2010, a British Petroleum (BP) oil rig explosion killed eleven workers and resulted in an enormous oil spill in the Gulf of Mexico. BP was convicted of eleven counts of manslaughter, and paid a $4.5 billion fine with billions more set aside to pay damages.33 The rulings remain a powerful incentive for BP and other drillers to avoid cutting safety corners.
But in government, the best protection against being sued consists of having no safety policies and giving no orders on safety! If there are no agency orders, no agency employee can violate them, so whatever is done is within an employee’s discretion. The United States can never be sued. The more incompetent or negligent the agency, the more likely it will be insulated against legal liability.
Under the 1946 Federal Tort Claims Act, a federal employee has a license to kill, unless a superior ordered him not to kill—and the superior has an incentive not to give such an order. “I was only following orders” is indeed an excuse. But if you are in the government, so is “nobody gave me orders, I did it on my own.”
The Postal Service has regulations stating that mailboxes “must” be located so that they do not block a driver’s view when he or she enters an intersection. But when a driver was seriously injured because mailboxes blocked his view, the Eighth Circuit ruled that the regulations were (despite the word “must”) “guidelines and not mandatory” and the lawsuit must be dismissed.34
Ultimately, the victims of the Texas City explosion received some compensation. Nine years after the disaster, and after extensive hearings, Congress passed a private bill appropriating $16.5 million for the victims. The average claim was $12,195, about $128,000 in modern terms—a tenth of what Congress would appropriate for the 9/11 victims.35
The private bill clearly rankled the Department of Justice; during hearings on the bill, Assistant Attorney General Warren Burger testified: “As a lawyer I have made up my mind that this is why they sued the United States, because it was the entity that could be sued for an amount running into millions of dollars.”36 It did not seem to occur to the future Chief Justice of the Supreme Court Burger that the victims may have sued the United States because it had, by gross negligence, blown up their homes and killed their loved ones. Another Justice official testified that his agency would not oppose the bill so long as the bill was viewed as “a bounty, an act of grace.”37 Government negligence, six hundred deaths, thousands homeless—and Justice officials wanted it understood that paying compensation is “a bounty, an act of grace”? Any corporate CEO who spoke with that casual arrogance would have been lynched before he got out of the Capitol.
But this is just one example; there are many others where the government would have been put out of business if it were a giant corporation. We’ll examine a four-decade chain of preventable deaths in chapter 2.
CHAPTER 2
WESTERN UNITED STATES: ATOMIC TESTING POISONS THE LAND AND THE PEOPLE
I feel that we were used more or less as guinea pigs. The forgotten guinea pigs, because with guinea pigs they will come to the cage and check, which they never have.
—Martha Laird, testimony before the House Committee on Oversight, 19801
Just what the hell do you think you’re doing, saying the amount of radiation we’re allowing is causing cancer? I’ve been assured by the Atomic Energy Commission people that a dose of a hundred times what they’re allowing won’t hurt anybody. Listen, there have been others who have tried to cross the AEC before you. We got them and we’ll get you.
—Rep. Chester E. Holifield (D-CA), Chairman, Joint Committee on Atomic Energy, to Dr. John Gofman, after his testimony on the hazards of atomic test fallout, 19702
University-employed scientists complain that industry hire scientists to refute
their findings when the findings might adversely impact the industry. Let me assure you that when the Federal Government is the polluter, it follows exactly the same strategy as any company. But the Federal Government has far greater resources and power than are available to companies.
—Dr. Joseph Lyon, medical epidemiologist, testimony before the Senate Appropriations Committee, 19983
MAY 19, 1953: THEY CALLED IT “DIRTY HARRY”
The electrical signal left the concrete bunker, ran through thousands of feet of wire, and up the three-hundred-foot steel scaffold that towered over the desert. The journey took about ten nanoseconds, and the reaction it would initiate took about the same amount of time.
The signal reached its destination, a control unit connected to ninety-two high explosive charges arranged in a five-foot-diameter ball. Each charge was designed to focus its explosive energy inward toward the small hollow sphere of plutonium at the center.
The control unit sent the firing signal, and the explosive charges detonated in unison. Their enormous force, thousands of tons per square inch, crushed the plutonium into a smaller solid ball and compressed the metal into its denser delta state. The plutonium went supercritical, and in an instant a part of its mass changed into pure energy. E=MC2; in this case, the E translated to the energy of thirty-two thousand tons of TNT, released from a metal ball a few inches in diameter.
In the first millisecond, a blast of light and x-rays vaporized the stee
l tower, even before the shock wave of the explosion could crush it. A few milliseconds later, the fireball, now burning at twenty thousand degrees Fahrenheit, gouged the desert, sucking up its soil, pulling it into the churning nuclear maelstrom, converting it into dozens of radioactive elements and compounds that mixed with the unconsumed plutonium.
Test Shot Harry, the thirtieth such detonation at the Nevada Test Site, was a success. At thirty-two kilotons, Harry was the most powerful atomic bomb exploded to date. Its devastating power would be proven not in a war zone, but in the peaceful western states that grow our grain and raise our cattle.
The fireball rose and formed the now-familiar mushroom cloud, topping out at more than thirty-eight thousand feet. The ninety-mile-per-hour winds at that altitude pushed the cloud eastward, and as it cooled, its vapors condensed back into solids—radioactive cobalt, cesium, strontium, iron, iodine, plutonium, and many other substances. The radioactive material descended to the ground as the cloud swept over ranches, farms, and small towns. The places were inhabited by people who had come to call themselves the “downwinders.”
On the Whipple Ranch, about ten miles from the blast, Keith Whipple noticed what seemed to be bug bites on his arms, small, painful welts. Then he realized they were being caused by the fallout that was descending on the ranch.4 Atomic Energy Commission (AEC) representatives had told him if the fallout got too bad he should go to the nearby town of Alamo, where AEC buses would evacuate people. He set out for Alamo, only to find that the bus drivers had driven away as soon as they realized how much fallout was coming down.5
I'm from the Government and I'm Here to Kill You Page 3
