Mr. Guy has come to America to seek justice.
“The chemical companies,” he says, “must be forced to pay compensation to me and my children.”
Soon after he returns to Vietnam, Mr. Nguyen Van Guy will die from his wartime exposure to Agent Orange.
Nguyen Thi Hong is also in the courtroom. Exposed to Agent Orange during the war, and afterward while living near Bien Hoa, a dioxin “hot spot,” Ms. Hong suffers from multiple cancers, liver problems, and other illnesses. She is sixty years old. One month after returning home to Vietnam, she too dies.
Vo Thanh Hai did not participate in the war, but soon after the fighting ended he moved his family to Nam Dong province, where they helped replant trees in defoliated areas.
“My mission,” says Mr. Hai, “was to rebuild the country after so many years of war. That is why my family did not hesitate to move in a region we knew was a hot spot for Agent Orange.”1
These plaintiffs are aware that they may not live to see the wartime manufacturers of Agent Orange accept responsibility for their actions. Nevertheless, they are here to represent impoverished Vietnamese victims of Agent Orange, their children, and all of those who have died and who will die in Vietnam and other parts of the world from exposure to dioxin.
Court adjourns for lunch and a crowd gathers in Foley Square for an impromptu rally. At one end of the plaza, about fifty angry demonstrators wave the Republic of South Vietnam flag—three red stripes over a yellow background. They hold banners scrawled with anti-communist slogans, and shout at people they appear to consider traitors—including American veterans who are here to express their support for the Vietnamese people.
It isn’t clear why these demonstrators are here, or what is making them so angry. A woman approaches the demonstrators. She shouts in Vietnamese; they shout back and strike at her with a flagpole. It seems that the enraged group thinks Agent Orange is a communist conspiracy. The press ignores the enraged demonstrators, and the police take no action when a man tries to smash a pole over a woman’s head.
We return to the courtroom.
When the chemical companies’ lawyers are speaking, the judges are convivial, friendly, and prepared to laugh; when lawyers representing the Vietnamese address the court, the panel seems irritable, confrontational, and impatient. But why wouldn’t these judges be irascible? Day after day, week after week, year after year, this drama unfolds with morose predictability. If feels like a drama in which everyone—audience, actors, directors—knows the script by heart, and yet, motivated by hope that one day there will be something new, they keep on coming. Years pass, then decades. Players come and go. Now and again, someone might try to improvise, giving the drama new energy, creating the possibility of a surprising outcome. But the producers and directors of this theater adhere to an absolute and inflexible set of rules. The script cannot be revised, even when, exhausted, the audience gives up and goes home.
The three appellate judges do not ask the Vietnamese plaintiffs who’ve traveled 10,000 miles to this hearing if they’d like to address the court. They do not ask them why they might be willing to spend their last days making up stories about the effects of Agent Orange on their children, their friends and neighbors, themselves. Would the panel like to see photographs of Mr. Guy’s children, examine doctors’ reports on Ms. Hong’s illnesses, or invite Vietnam veterans in the courtroom to talk about their experiences with Agent Orange? Spectators are not allowed to suggest ways to energize this dull drama. The afternoon drones on.
At lunch, the veteran sitting next to me talked about humping through dark triple-canopy jungles screaming with life; then suddenly the ground was carpeted with dead birds and monkeys and all he could hear was the sound of frightened men hoping to survive another search and destroy mission.
“This is bullshit,” he grumbles, getting to his feet. “I was there. They”—he points to the judges—“weren’t.”
Federal marshals watch him move slowly down the aisle and out the door. The man from Dow shuffles papers, clears his throat, and speaks. “According to Sosa,” he says. The panel nods.
Spectators retrieve their cell phones and other belongings. Elevator doors open and close, and reporters talk to exhausted Vietnamese who’ve spent the entire day in the courtroom.
In Manhattan federal court, dying Vietnamese plaintiffs and their supporters stood up to the chemical companies and the US government. No one expects the court to rule in favor of the Vietnamese. Twenty years ago, the chemical companies prevailed over a team of prominent lawyers representing Vietnam veterans and their families. The stakes are higher now. If the chemical companies lose, they might have to pay billions in compensation, rather than the $180 million they agreed to award US veterans. If the chemical companies win, they will most likely declare the long-standing conflict over Agent Orange to be finally over.
On the subway later that day, the train stops every two minutes, but that’s okay because it gives me time to ponder the realm of law. Entering this world is a walk through Alice’s Wonderland, where one hears all sorts of strange, contradictory, and confusing conversation. But ordinary people, not rabbits and caterpillars, argue cases before judges in quite ordinary courtrooms. Human beings, not Cheshire cats, listen to arguments, rule on the case before them, and write legal briefs explaining why they chose to decide the case one way or the other. Still, it can be disconcerting when erudite people speak and write in a language that feels the way a stone might sound if it could talk.
It’s easy to get confused, bewildered, and even lost inside of the Realm of Law. Translating circumlocution into readable prose might help, but that would require lots of time and patience.
THE COURT: This case involves international human rights issues of great significance to the country, the plaintiffs and to others in the international field and it has got to be decided… I want to make it clear to everybody that at the end of six months, I want to have a decision by this court that can go to the Court of Appeals on all the issues that can be decided preliminarily, except the issue of whether the Agent Orange, in fact, causes the diseases and other problems alleged…. I do not want discovery on allegations of poisoning of Vietnamese land or poisoning water and so on as a fact.2
What you assumed the speaker or writer might be saying requires new interpretations, new translations. Words thump across the room or page, stand upon their head, perform cartwheels and somersaults. It’s time for coffee, a walk with the dog, a little poetry.
After a nice break, you return to the task at hand, refreshed, prepared to unravel double negatives, murky phrasing, and sentences that move forward, only to switch back again and again, like perilous mountain roads:
MR. BROCK [lawyer for a defendant company]: We are making a fine distinction because Your Honor has asked us not to go into the question of causation, and yet, to respond to a claim that we knew that the spraying was going to cause harm. I think there is a distinction as to the historical fact and to what would have been known at the time, but I think, you know, the fact that it remains uncertain at best and in fact, it seems unsupported 40 years later after intensive scientific investigation is a pretty important consideration, and realizing people cannot have possibly known that the contrary was the case 40 years ago.
THE COURT: Well, that is a subtle point. It is an accurate point, I will take it into account.3
The plaintiffs cannot establish that a binding international norm “prohibited private corporations from manufacturing and selling herbicides for military use”:
Even if forgoing instruments had created a binding prohibition on the use of herbicides during war prior to 1975—and they manifestly did not—they created no universally recognized prohibition on the manufacture and sale by private parties of herbicides intended for such use. Indeed, the general rule is that international legal norms impose duties or confer rights directly upon an individual human being.4
We sit outside on a small terrace behind the kitchen. Trinh Kokkoris serves
coffee and there’s a pastry from a local shop. It is a hot day in July. Planes lifting off from JFK International swallow our words. We wait until the noise fades, then continue our conversation.
Dean Kokkoris has been working on the Vietnamese class action lawsuit for many years, and he’s invited me to his home to talk about this case.
Dean grew up in Bayside, Queens, where his father owned a series of Greek restaurants. He attended Baruch College, City University of New York, intending to major in business, but, he laughs, “I changed [my father’s] mind after the very first class. Switched to psychology, and met Trinh. We were in Guys and Dolls together, she as a Hot Box Girl, and I played Rusty Charlie in a fedora hat and a pinstriped double-breasted suit.”
After graduation, Dean found a job as a paralegal at a big law firm, took the test to become a New York City police officer, and passed in the top ten percent of applicants. His parents and wife encouraged him to take the law school exam; he did, then turned down a scholarship offer from Brooklyn Law School.
“I was scheduled to take the police department’s psychological exam. Might not have passed that one. Why not go ahead and be a policeman? Retire after twenty years at half salary. But I decided to attend law school, was re-offered the scholarship, earned my degree, and kind of drifted, working as a summer associate at a midsize firm that represented a lot of companies like Amtrak, some municipalities. They liked me and extended an offer, but I wanted to work in the District Attorney’s office. Applied to all five boroughs, even to people I knew, but didn’t have any political connections.”
Dean opened a “kind of blue collar law firm with a friend,” and got involved with lawyers who practice labor law—wage and hour law, minimum wage, overtime, prevailing wage. “Workers who aren’t getting paid enough for what they do.”
Trinh fills the pastry dish and pours more coffee. Born in Saigon at the height of the defoliation campaign, she was seven years old when her family immigrated to the United States in 1975. She suffers from a lot of allergies, unusual in her family, and Dean wonders if her ailments have anything to do with Agent Orange. He knows that the US military sprayed Agent Orange close to Saigon, but thinks that Saigon might have been spared, even though the Rach Son stream in Cu Chi district feeds into the Saigon River, and food supplies coming into the city were probably contaminated with dioxin.
At one point in his career, Dean became quite interested in cases that the Center for Constitutional Rights was pursuing, using the Alien Torts Claims Act (ATCA).
“They’d brought a case against a military commander in Peru who was torturing people. In the 1990s, the Center also brought a series of cases against corporations using the ATCA, which allows individuals to sue corporations or persons for violations of international law. For example, grievous violations of international law, like the Center’s case against UNICAL on behalf of people living in Myanmar, or Burma. UNICAL entered into a joint venture with the Burmese military to build a gas pipeline, and they were using forced labor to construct this pipeline. They were drafting people from local villages that the pipeline was passing through and forcing them to work on this project, which is a violation of international law.”
Dean followed the case against Royal Dutch Shell, when the Center was trying to get that company to stop drilling in sacred Oragoni land in Nigeria. Royal Dutch Shell was accused of collaborating with the Nigerian military in the murder of Oragoni people.
“Then I saw a notice in the National Lawyers Guild asking if anyone was interested in bringing a case on behalf of Vietnamese who’d been exposed to dioxin, and when I saw that, I jumped.”
Dean had been on the Law Review at Brooklyn Law School, researching and writing about Bendictin, a pill that was developed for morning sickness. The FDA had approved Bendictin, and women who were taking it claimed that it caused birth defects. Dean was familiar with statistical techniques for determining cause, which is difficult to do, he realized, because the government and corporations do not test chemicals on human beings.
“So the thing is with these drugs or chemicals that may cause birth defects, miscarriages, cancer, is that the scientific causes are not known in the same way that scientists understand, say, infections.
“We test chemicals on animals, but you cannot necessarily extrapolate from animals to humans. Ideally what you’d want to do—you really wouldn’t want to do this—is conduct experimental studies with human beings. You’d have two groups: A control group and an experimental group. Give the drug to an experimental group and a placebo to the control group and see what happens.
“Of course we don’t do that. We wait until someone is exposed to a chemical or takes a pill, and then we find a similar group of people who have not taken this pill, or who haven’t been exposed to this chemical. We take into consideration other environmental factors in their lives—smoking, drinking, and exposure to toxic chemicals. And then we run statistical tests. The larger the group, the more power your study will have, and the more accurate your study will be, with a chance for a statistically significant difference between the group that was exposed and the one that was not.
“In the case of dioxin, with many people in different circumstances, you can see a ‘spike.’ Think about it. Veterans came back from the war in Vietnam, not knowing where guys in their unit might live. In many cases, they lost contact altogether with their fellow soldiers, but later these veterans from all over the country and the world begin to have similar problems—cancers, birth defects, and other illnesses. A veteran living in Montana could not have known about the problems a vet in New York or California is experiencing. Yet their stories are remarkably similar.”
Dean talks about the difficulties of conducting scientific tests that might prove causation. It’s really not possible to create ideal conditions, studies take many years, and like the tobacco companies who claimed for so many years that there was no real proof that smoking harms human beings, the chemical companies use similar arguments when they insist there’s no evidence that dioxin harms human beings.
“I had a better understanding than most people of what it means when a scientist advocating for the chemical companies says, ‘Well, Dean, you can’t prove that dioxin causes anything.’ All that means is that no one has spent the time and money to do the requisite studies in Vietnam that are required to prove causation. Why haven’t the chemical companies or the US government done these kinds of studies? Certainly the American government doesn’t have the incentive. And the companies that manufactured Agent Orange don’t have the incentive.
“So the only place where you have the kind of mass exposure to dioxin that you could do a meaningful study with enough people, where you could do a high-powered study, would be in Vietnam.”
The Vietnamese have conducted scientific studies; however, some American scientists refuse to accept this research.
“In those scientists’ minds, the Vietnamese standards don’t rise to the ‘acceptable level of Western standards.’ And I put that in quotes.”
“Scientific research,” says Dean, “leaves little doubt that dioxin harms animals and human beings. Dioxin is a known carcinogen, and in terms of the other things—birth defects, miscarriages, and other illnesses—it is well established that dioxin causes these things in animals.
“I mean, you start to examine what effect this substance, dioxin, has on the human cell. And then you move on by feeding it to animals, and scientists have learned that dioxin interferes with the reproductive system, it causes birth defects, and it causes miscarriages and all kinds of cancers and tumors. So there’s a lot of evidence there.
“The chemical companies benefit from not doing the studies. That way, they can say that there is no evidence that dioxin harms human beings. After all, if they did the kind of studies I’m talking about, they might actually prove that what American, Korean, Australian veterans, New Zealand, the Vietnamese, and others are saying about dioxin is true.”
Dr. Wayne Dwernychuk, a senior C
anadian scientist who worked the with Hatfield Consultants to locate the most contaminated areas in Vietnam, thinks there’s no need for more studies to prove that Vietnamese exposed to Agent Orange are in danger.
“My point has always been,” says Dwernychuk, “that the toxicity and potential health issues related to dioxin are not really disputed…. With this as a firm background, removing the exposure potential for hundreds of thousands of Vietnamese to dioxin contaminated lands/food/sediments should be the primary goal…. If there are enough funds, which I can almost guarantee there won’t be, health studies on the Vietnamese population could proceed.”5
The humidity is rising and the noise from JFK International makes it difficult to hear. We have to stop mid-sentence and wait for aircraft to gain altitude. Trinh suggests we move inside where it’s cool and quiet.
“It’s important,” Dean continues, “to remember that the wartime manufacturers of herbicides for use in Vietnam never intended to manufacture dioxin. They would not have wanted to do that. But at some point they did realize that dioxin is a byproduct of baking trichlorophenol, which is a component of 2,4,5-T, one half of Agent Orange. The chemical reaction to make trichlorophenol happens in an autoclave, which is something like an oven. It’s a machine that heats up this stuff. I guess you could say it cooks it. A couple of German researchers working for C. H. Boehringer Sohn Company back in the fifties published an article in a scientific journal identifying dioxin as being responsible for chloracne, a serious skin rash from which people who’ve been exposed to this chemical often suffer.
“C.H. Boehringer Sohn discovered a way to minimize the dioxin content in a substance by keeping down the temperature in the autoclave. Dow purchased this information from Boehringer Sohn, and the company knew how to reduce levels of dioxin when it started making Agent Orange in the early sixties.
Scorched Earth Page 10
