Scorched Earth

by Fred A. Wilcox

  In one section of his Memorandum, Judge Weinstein deconstructs the international agreements that plaintiffs submit as a basis for their argument that the use of toxic herbicides in Vietnam constituted a war crime.

  In response to clause (a) of the 1907 Hague Convention IV, which forbids nations to employ poison or poisoned weapons:

  The poisons referenced in clause (a) encompass those applied to specific instruments of warfare such as bullets or bayonets…. Even if the terms “Poison” or “poisoned weapons” could be construed more broadly to encompass poisonous gases, this broader definition still would not reach herbicides, regardless of whether they have collateral harmful consequences for humans.27

  On the subject of war crimes:

  Whoever, whether inside or outside the United States, commits a war crime, in any of the circumstances described in subsection (b) shall be fined under this title or imprisoned for life or any term of years, or both, and if death results to victim, shall also be subject to the penalty of death.

  Judge Weinstein writes that:

  Herbicide spraying by the United States did not constitute “Willful killing” or “willfully causing great suffering or serious injury in body or health” since the United States lacked the requisite criminal intent.28

  The spraying did not constitute “torture” or “inhuman treatment,” that is, the defoliation campaign in Vietnam did not injure the Vietnamese people’s human dignity. “As for property damage, any such damage was justified by military necessity and was carried out lawfully.”29

  On the subject of genocide:

  Genocide: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.

  Judge Weinstein concludes that:

  The United States did not use herbicides in Vietnam with the specific intent to destroy any group. Nor were those herbicides designed to harm individuals or to starve a whole population into submission or death. The herbicides were primarily applied to plants in order to protect troops against ambush, not to destroy people.30

  And, in discussing the 1925 Geneva Protocol, which:

  Prohibits the use in war of Asphyxiating Poisonous or Other Gases, and of Bacteriological Method of Warfare, June 17, 1925.

  Judge Weinstein argues that:

  The United States had not signed onto this agreement. Did sign in 1975. Included a caveat that if an “enemy state” or its “allies” fails to respect the Protocol, then the US will no longer be bound by its rules. Scholars disagree on what the Geneva Protocol means, or does not mean. Unlike the poisonous gases outlawed in the Geneva Protocol, herbicides were not designed to disable or kill human beings.”31

  Judge Weinstein, a brilliant legal scholar and an honorable man, ruled against US veterans and Vietnamese victims of Agent Orange on the basis of what he believed to be objective interpretations of national and international law. The appellate courts agreed with his decisions, and on February 27, 2009, the Supreme Court refused—without comment—to hear arguments on behalf of Vietnamese victims of Agent Orange.

  In Vietnam, community workers say they need at least 1,000 new community organizations, known as “Peace Villages”—currently, they have twelve—to accommodate children who are suffering from the effects of chemical warfare. Throughout Vietnam, poverty-stricken parents struggle to take care of handicapped and seriously deformed children. They do not express anger, hatred, or blame. Holding boys and girls who cannot sit up on their own, mothers massage their children’s arms and legs, brush their hair, and welcome visitors who are there to offer their support and to witness the effects of toxic chemicals on human beings.

  According to lawyers for the chemical companies: “the United States owes no duty in tort to enemy combatants, or even to noncombatants in a war zone. Imposing such a duty on the Government’s contractors would undermine the principle, obligating the United States to heed rules of civil conduct that can have no application in the theater of war…. Entertaining Plaintiffs’ challenge to those decisions [military decisions made by the president as commander-in-chief of the armed forces] would risk a stark lack of respect for the Executive Branch and risk multifarious and inconsistent pronouncements by various departments of government.”32

  Furthermore, say the chemical companies, the courts have no right to interfere with the commander-in-chief’s decisions during wartime.

  No one knows, or will ever know, exactly how many American and Vietnamese citizens have died from exposure to dioxin since Victor Yannacone filed the Agent Orange product liability class action lawsuit in 1978. There is no count of the number of miscarriages and stillbirths Vietnamese and American women married to veterans have experienced in the past thirty-five years. The United States has no idea how many American children born with serious birth defects have fathers or mothers who served in Vietnam. No one will ever know how many American, Korean, Australian, New Zealand, and Vietnamese veterans have died from cancer and other Agent Orange related diseases since the war ended.

  The Agent Orange tragedy has become a rather elaborate game of “you get your lawyer, I’ll get mine,” and “You get your scientist, I’ll get mine.” I’m not suggesting that all of the actors in this decades-long drama are nefarious characters or indifferent to human suffering. But I have to wonder what Thomas Jefferson and other founding fathers might have to say about the chemical companies’ arguments that the United States of America does not have to “heed the rules of civil conduct that can have no application in the theater of war.”

  That the United States “owes no duty in tort to enemy combatants or even to noncombatants in a war zone.”

  That the plaintiffs in the Vietnamese class action suit must not be allowed to question military decisions “made by the President as commander-in-chief of the armed forces.”

  And that the courts have no right to interfere with decisions the commander-in-chief makes in wartime.

  Does this mean that the president can initiate a campaign to bomb another nation, as Lyndon B aines Johnson did in 1964, based upon fabrications and lies? Can the United States attack another nation, using chemical weapons against its environment and its people for years, without being held responsible for maiming, starving, and killing noncombatants? Would questioning the commander-in-chief’s right to make military decisions that will result in the deaths of millions of innocent civilians indicate a lack of respect for the executive branch?

  Lawyers for the chemical companies seem to be saying that when the president is acting as the commander-in-chief, he turns into a king. Would Jefferson agree?

  CHAPTER 8

  The Last Family

  Occasionally I saw these [genetically deformed] children in contaminated villages in the Mekong Delta; and whenever I asked about them, people pointed to the sky; one man scratched in the dust a good likeness of a bulbous C–130 aircraft, spraying.

  —John Pilger

  On the outskirts of the city of Danang, women in conical hats tend rice paddies, bending in calf-deep water to plant new shoots. Brown cows and steel-gray water buffalo graze this ancient landscape, at peace now after centuries of invasions, uprisings, and war. We cross a narrow bridge, turn into a dirt road, and walk a short distance to a small, remarkably barren house, its walls scarred by monsoon flooding, and only the most rudimentary furniture—a low glass-covered wooden table, small red plastic chairs, no television or family shrine. It is the kind of home that one might find in the most destitute areas of Appalachia or on impoverished Indian reservations.

  Nguyen Thi May sits on the floor, a twelve-year-old boy sprawled on her lap; her sixteen-year-old daughter, Trinh, leans close by her side. Until a recent operation on her legs, paid for by World Vision Vietnam, Trinh could not walk; now, her mother
explains, she can move about “a little.” The girl’s skin is wrinkled and dry, like bark that might just peel away when touched, or catch fire in the Vietnam heat—we would later see a boy with this same condition, called x-linked ichthyosis, at a hospital in Ho Chi Minh City. When her mother bathes her, Trinh’s skin peels off, turns white, and then darkens like red wine. Trinh will never attend school or learn to care for herself, and while she smiles and waves one hand at her visitors, most of the time she stares about the room, expressionless.

  Nguyen Thi May and her children

  Nguyen Thi May’s husband, Pham Xong, confides that his son’s head is growing larger, while the boy’s body remains the same. Twelve-year-old Phan Van Truc suffers from seizures, and his parents say they never know when they might occur. He cannot speak or walk, he requires constant attention, and he will never get any better. His father worries that the boy appears to be getting weaker, a condition that defies explanation.

  The children seem happy to see students from SUNY Brockport’s study abroad program, and when Brendan takes photographs of the boy sitting on his father’s lap, he grins and wiggles his feet. Pham Xong and Nguyen Thi May do not own a motorbike, and they move their children about on a rough-hewn wooden cart. One parent must be at home at all times, making it difficult for the family to earn money. Doctors have examined these children and determined that their birth defects are symptomatic of exposure to dioxin, but there are no funds available to examine the father’s sperm, blood, or fatty tissue. Pham Xong is forty-seven years old; his wife is forty-two, young enough, when their children were conceived, to have given birth to healthy offspring.

  Some years after the last official American spray mission in the Central Highlands, the children’s father served with the army in that region. He recalls once when many men in his unit began choking, and became so ill that they had to be medivaced to a hospital. Pham Xong also served in Cambodia, close to the border of Vietnam, an area that was heavily sprayed with defoliants. Skeptics might argue that most of the dioxin in these regions had probably washed out of the soil; however, this does not take into account the fact that the half-life of dioxin on surface soil fluctuates between nine and twenty-five years, and in deeper levels from twenty-five to one hundred years.

  Father and son

  According to Dr. Alan Schecter, one of the world’s experts on dioxin, “a person may be found with dioxin in his/her blood after 35 years of getting contaminated.”1

  Thirty-five years after the last spray mission in Vietnam, scientists have found astonishing levels—up to 1,000 times the permissible level in the United States—of dioxin at former military bases like Bien Hoa, Danang. There are no reliable studies of how many people living near these bases may have been heavily exposed to dioxin, or what the future consequences for these people and their offspring might be. It is clear that dioxin has entered the food supply of people who live near bases from which the Air Force flew thousands of defoliation missions.

  In 1967, Arthur W. Galston, a renowned professor of Botany at Yale University, tried to warn the US against the continued, unbridled use of herbicides in Vietnam:

  “We are too ignorant of the interplay of forces in ecological problems to know how far-reaching and how lasting will be the changes in ecology brought about by the widespread spraying of herbicides. The changes may include immediate harm to people in sprayed areas.”2

  Galston’s warning turned out to be prophetic. Just two years later, reports of birth defects in the offspring of Vietnamese women began to appear in Saigon newspapers.

  At the New York Temporary Commission on Dioxin Exposure hearings in 1981, a Vietnam veteran testified that “before my son was ten and a half months old, he had to have two operations because he had bilateral inguinal hernia, which means his scrotum didn’t close, and his intestine was where his scrotum was, and his scrotum was the size of a grapefruit. He also has deformed feet… My oldest daughter has a heart murmur and a bad heart. Once she becomes active, you can see her heart beat through her chest as though the chest cavity is not even there, as though you were looking at the heart.”3

  At the same hearings, a Vietnam veteran’s wife testified that she was married to a Vietnam veteran who was in combat in 1967 and 1968.

  “We have two sons,” she said, “a four-year-old and one who is four months. Our first son was born with his bladder on the outside of the body, a sprung pelvis, a double hernia, a split penis, and perforated anus.

  “We have met other veterans,” she continued, “and their families. We have met their children. We have seen and heard about the deformities, limb and bone deformities, heart defects, dwarfism, and other diseases for which there is no diagnosis…. There are hundreds of children with basically the same problem, but in groups; so many bifidas, so many bone deformities, urological, neurological. But it is in groups of hundreds, not ones or twos.”4

  In a study, “Genetic Damage In New Zealand Vietnam War Veterans,” Louise Edwards writes:

  Tuyet and Johansson (2001) conducted a study on Vietnamese women and their husbands who were exposed to Agent Orange during the Vietnam War. The authors found that 66 percent of all children had some type of major health problem. Thirty-seven percent of these children were born with some visible malformation or disability while 27 percent had developed a disability during the first year of life. Of the 60 children suffering from health problems, 40 were unable to attend school but were able to help with agricultural work and domestic chores. Twenty children were disabled very severely physically and mentally, and required 24-hour care needing to be attended to by their parents for every need. There were no cases of congenital malformation nor other disabilities among unexposed siblings of the husbands and wives, nor among the children of their siblings.5

  Addressing the concerns of New Zealand veterans who worried about the effects of Agent Orange/dioxin on their own children and future generations, the report stated:

  The results from the SCE study show a highly significant difference between the mean of the experimental group and the mean of the control group (p < 0.001.) This result suggests, within the strictures of interpreting the SCE assay, that this particular group of New Zealand Vietnam War veterans has been exposed to a harmful substance(s) which can cause genetic damage. Comparison with a matched control group would suggest that this can be attributed to their service in Vietnam. The result is strong and indicates that further scientific research on New Zealand Vietnam veterans is required.6

  Pham Xong and his wife realized early on that their daughter was suffering from serious birth defects; however, they hoped to have at least one child who could live a normal life and help them in their old age. Instead, their son could neither walk nor talk, had seizures, and would never outgrow his handicaps. That’s when they decided not to have any more children. They are aware that there is no cure for dioxin exposure, yet they do not blame anyone for their plight.

  Preparing to leave, I hesitate, trying to think of something we might do to ease this family’s burden. It’s difficult to say goodbye to families like this one. We walk into their barren little houses, produce a tape recorder, and ask painful questions. Then, we take photographs, and we leave an envelope containing 100,000 Dong, the equivalent of about $12, for which the recipients are genuinely grateful.

  I could apologize for our government’s indifference to the plight of Agent Orange victims, but that feels rather self-indulgent, and might embarrass this gentle family. I could promise to return with a shaman who will give their son the power of speech and their daughter the ability to walk, but I don’t know anyone who possesses powers like that. The families we visit will never sit in an air-conditioned theater, munching buttered popcorn while beautiful actors make them feel happy and frightened and safe and wonderfully sad. They won’t join friends in a cheerful restaurant, drinking wine and eating until they’re pleasantly stuffed. Their children will not spend hours talking on a cell phone, planning weekend parties, being young and stro
ng and full of optimism.

  All we can do is promise that we will tell people about the extraordinary families we meet, the beautiful children, the determination, the courage, and the terrible suffering we encounter in Vietnam. We must hope, as the Vietnamese do, that this will be the last generation of children to suffer from the effects of chemical warfare.

  Pham Xong and his wife pose with their children for photographs as a loving family, which they most certainly are.

  During the monsoon rains last year, water poured into this tiny house, climbing so high (water marks on their green walls) that the family was in peril of drowning. A charitable organization will build the family a balcony, so that when the rains flood their living room this year, they won’t die.

  CHAPTER 9

  The Realm

  A myth has been created by the chemical companies that the US government somehow designed Agent Orange and that this was a special, unique chemical. IS NOT TRUE.

  —Gerson Smoger, J.D, PhD

  JUNE 2007, MANHATTAN FEDERAL COURT

  An attorney representing Dow Chemical Company is speaking before a panel of three appellate court judges, trying to convince them that the Vietnamese class action lawsuit charging Dow and three dozen wartime manufacturers of Agent Orange with war crimes is without merit, and that the court should dismiss plaintiffs’ appeal post haste.

  Among spectators in the packed courtroom is fifty-one-year old Nguyen Van Guy, who is suffering from terminal cancer, and has two children with birth defects. Speaking outside of the courtroom, he tells spectators and the press: “I am here as living evidence to tell the people in the court that dioxin really has a negative impact on human beings as well as the environment.”