“Dow, Monsanto, and Diamond Shamrock were able to make a batch of Agent Orange in about forty-five minutes, but if they’d lowered the temperatures, it would have taken a lot longer—possibly twelve hours—to make the same batch of herbicide. By keeping the autoclave temperatures higher, they made it more quickly and for a lot cheaper. Dow and other manufacturers of Agent Orange ignored the safety precautions because they wanted to make Agent Orange more quickly, and they wanted to make more of it.”
We pause for lunch and more coffee. It is Saturday. Dean might prefer to spend it puttering around the house, going to the beach, or relaxing with a good book in his comfortable living room. Dean has been giving talks on college campuses to students who want to learn about the Vietnam War. He tells them about Agent Orange, how once the defoliation campaign started, it kept expanding, covering more land, killing more trees, more food, and no one knew how to stop it. He understands that students might find it hard to believe that corporations were willing to profit from manufacturing and selling millions of gallons of deadly chemicals. Dean speaks in a soft, deliberate voice. He does not exaggerate or embellish. He doesn’t have to. Like any good horror story, this one tells itself.
According to the defendants’ lawyers, those living in a war-zone, or who just happen to be in one when fighting erupts, have no recourse to the law:
The Supreme Court has recognized for more than a century that no civil liability attaches to personal injuries sustained or property damages arising from combatant activities during war. To the contrary, the Court has made clear that “[t]he destruction or injury of property in battle, or in the bombardment of cities and towns, and in many other ways in the war, ha[s] to be borne by the sufferers alone as one of its consequences….” As the Court of Appeals explained in Koohi, “it simply does not matter for purposes of the ‘time of war’ exception whether the military makes or executes its decisions carefully or negligently, properly or improperly. It is the nature of the act and not the manner of its performance that counts.”6
“There’s no dispute that the chemical companies knew about dioxin and did not tell the government what they knew while they were supplying it,” Dean explains. “But the argument Weinstein patched together is unconvincing. By the way, I took a class from Weinstein when I was in law school, on scientific evidence.
“Judge Weinstein claimed that the government knew just as much as the chemical companies about the dangers of dioxin because, he said, the US was going to build its own herbicide plant at Wellman Springs. Moreover, even before the defoliation campaign began in Vietnam, scientists at chemical weapons labs had adjoining offices with other government agencies that studied the effects of dioxin on cancer.
“Weinstein creates this very broad definition of government. The fact is that the US military knew nothing about the presence of dioxin in Agent Orange. Nor did the procurement people who purchased herbicides from the chemical companies know anything about dioxin. Nevertheless, Weinstein stretches his argument so far as to say that scientists at various regulatory agencies, not really connected with the use of Agent Orange in Vietnam, knew about dioxin.
“He extrapolated from what scientists in individual agencies might have known to what the government, as an entity, had to have known.
“So the latest court of appeals panel had to be much more careful how they approached this case. ‘Okay,’ they told us, ‘you know what? We have evidence here that we did not have before in the last round of appeals. And you guys actually made a very good case for the chemical companies knowing about the dangers of dioxin, and not telling the government about that.’”
The Court realized that the companies clearly knew there were scientific methods for reducing the content of dioxin in Agent Orange that they did not pass on to the government. But that was not enough to sustain the plaintiffs’ appeal. Because, said the Court, even if the defendants had disclosed this information to the government, it wouldn’t have made any difference; the government was going to use defoliants in Vietnam anyway.
“Now, what the court is actually doing here is reading into the intent of the military command and the government procurement people.”
This argument, Dean explains, is disingenuous because the minute Ralph Nader’s raiders leaked the study that Bionectics labs conducted for the National Cancer Institute—the results of this study had been kept under wraps—the military ended the Ranch Hand missions in Vietnam and, soon, issued orders to stop using Agent Orange.
“For the court of appeals to say that the government would have continued defoliation missions, even if it knew the dangers of dioxin, is nonsense.”
Dow and other companies did have superior information, and they did not pass it on to the government. Dow found out about dioxin when employees developed chloracne, an indisputable symptom of dioxin exposure, after workplace accidents. Dow even stopped production in one of its facilities, contacted this German company that had experience with dioxin, and called a meeting in March 1965 in Midland, Michigan.
“They called in representatives of all of the companies—Monsanto was not present, but did correspond with Dow about this—that were supplying Agent Orange at that time. And they said: ‘Look, we’ve discovered this stuff called dioxin in our product. It’s not intentional, but it’s there.’ And Dow said it knew about some of the effects of this chemical. The company knew that dioxin causes chloracne, and that dioxin is conceivably a potent carcinogen. There was already evidence that dioxin causes liver damage, and porphyria cutanea tarda. It’s systemic and toxic to the system. Dow knew all this, and the company was worried that if the government found out, it would step in and regulate the manufacturers. They’d lose a lot of money. So, said Dow, ‘Let’s just keep this to ourselves.’”
“Agent Orange was twenty-five times more concentrated than domestic 2,4,5-T.
No doubt that Dow made a deliberate attempt not to communicate all it knew about dioxin to other manufacturers.”
Dean points to a meeting at the Army’s Edgewood Arsenal to evaluate the safety of Agent Orange and its effects on humans and animals, a meeting at which the chemical companies failed to report their own workplace incidents. Agent Orange, they said, was harmless to humans and animals. Later, commanders in the field, not knowing any better, assured soldiers that defoliants were safe.
“Clearly, those companies were not forthcoming with what they knew about dioxin. And it’s important to note that chemical companies do not assert in court that they told the government what they knew about Agent Orange.
“Their argument is simply that the government knew about dioxin. And they argue that what they knew is insignificant because it doesn’t approach the level of proving causation. Companies continue to argue that there is no proof that dioxin causes illness, even cancer. They argue that if you can’t prove causation now, forty years after the war, how could you expect us to have known about it, or to have told anyone about it, back then?
“The chemical companies concede that there might have been a few minor complaints about Agent Orange, and a few insignificant incidents in the workplace over the years, but it’s nothing to worry about. After all, there’s no sound medical proof that dioxin harms human beings, which is why they say they didn’t report these minor problems.
“At the meeting in 1965, Dow announced that the company has a gas chromatography machine. The lowest amount of dioxin this machine can detect in 2,4,5-T is 1 part per million (ppm). Since that was the lowest level their scientists could detect, Dow concluded that this must be a safe level. During the war, none of the manufacturers kept dioxin down to that level. There were measures of dioxin up to 40 to 50 ppm, even 140 ppm. Dr. Jean Stellman, a researcher at Columbia University, estimated the average amount of dioxin in Agent Orange to be 13 ppm, while Jack Weinstein, for purposes of his ruling, decided that the average was 10 ppm. Dow and Hercules produced the ‘cleanest’ Agent Orange, while Monsanto and Diamond Alkalide made the ‘dirtiest.’
“
So, according to Weinstein, you have a substance that is 999, 990 parts harmless herbicide, and ten parts poison. He didn’t like it when we characterized dioxin as a ‘poison.’ And he said that (I’m quoting him here) ‘international conventions prohibit the use of chemical weapons, and if the chemical companies used dioxin, a poison, that would have been a violation of international law.’
“According to the companies, herbicides landed on the trees in Vietnam, and when it rained, the defoliants washed away. Unfortunately, we dumped over twenty million gallons over ten years.
“Scientists don’t completely understand the causes of cancer—could be genetics, substance abuse, living near toxic waste dumps—but they have developed the ability to study an individual’s genetic system, and some people seem to be genetically immune to dioxin, while others appear to be susceptible. So if you perform a study on exposure to dioxin in which you consider a person’s genetic system, you may get a very good idea of an individual’s susceptibility to toxic chemicals. Since no such studies have been performed in Vietnam, for now we have to rely on other forms of proof.
“Carcinogens and teratogens increase one’s chances of giving birth to deformed children or developing cancer. If exposure to a toxin makes it twice as likely that you’re going to develop an illness, then it’s obvious that the drug increases the incidences of developing that illness, and it probably caused the illness.
“If you can prove that there’s a doubling of birth defects or cancer after you’ve been exposed to a chemical, then for the purposes of our legal system, you’ve proven that there’s a greater than fifty percent chance of correlation. It doubles your chance of getting an illness. And what’s important here is that if you have 1,000 Vietnam veterans, you’re not to going to see all of them come down with cancer. All of their children are not going to be born with birth defects. What you’re going to find out is that maybe five of these veterans will die young from cancer, but what you are going to see is that out of those exposed to Agent Orange, maybe twelve or thirteen are going to die young from cancer.
“To a lay person, that might not be a big difference, but to a scientist that’s a huge difference. If you can isolate that, and make sure that those twelve are not dying from something else, then that could be a statistically significant result. If you researched even this small sample, and you have twelve instead of five veterans dying young, then you may have proven your case.”
The subway squeaks, rattles, and shakes its way through Manhattan, dips under the East River and rolls into the vast stretches of Brooklyn.
In 1000 BC, Chinese armies used arsenic smoke in battle; 600 BC, Assyrians poisoned enemy water supplies with rye ergot; 429–424 BC, Spartans used flames and toxic smoke created by burning wax and sulfur against Athens and its allies; 82–72 BC, Romans used “toxic smoke” against the Charakitanes in Spain, causing pulmonary problems and blindness; in 1763, the British gave smallpox-infected blankets to Indians at Fort Pitt, Pennsylvania; 1915–1916, the Germans used chlorine gas against Allied forces at Ypres; British forces retaliated with chlorine gas, to which the Germans responded with mustard gas; from 1937–1945, Japan used gas and bacteriological weapons in China; 1939–1945, Germans, Austrians, and Japanese poisoned, burned, starved, shot, and conducted experiments on human beings; 1987–1989, Iraq used chemical weapons against its Kurdish minority population.7
The Hague Convention IV and the 1925 Geneva Protocol were designed to prevent nation-states from using biological and chemical weapons against their adversaries in warfare. Unfortunately, those responsible for the manufacture of Agent Orange and the use of this herbicide in Vietnam treat these treaties like linguistic pawns in a game of high-stakes legal and financial chess. I wonder what the stockholders in highly profitable corporations like Dow and Monsanto feel about this game.
It appears that the chemical companies have outsmarted Vietnam veterans, the Vietnamese, hard-working, dedicated, brilliant lawyers, and powerful law firms. They played by the rules, and they won. But think again. Better yet, spend an afternoon watching lawyers who work for these companies knock about in the Realm. It won’t take you long to discover that they appear to cast spells over the courtroom, forcing learned judges to follow the bouncing Orwellian ball. You might laugh, but not too loud or the marshals will toss you out. You might cry, but make sure you don’t do anything to interfere with the magic show.
On the way home, you might stop for a drink with friends. You will try to tell them about the Realm. They will ask a lot of questions, and you will do your best to be clear and precise and honest. The Realm, you will say, is a very strange, exotic, confusing, contradictory place. Impossible to believe, even when you see it.
CHAPTER 10
Free Fire Zone
It will take a long time to clarify the exact consequences of Agent Orange.
—Douglas Peterson, US Ambassador to Vietnam
Blind soldier
Cu Chi district, a short drive from our hotel in downtown Ho Chi Minh City, was the scene of fierce fighting during the war. It was here that men from the 25th Infantry stumbled upon a labyrinth of tunnels stretching all the way from the outskirts of Saigon to the Cambodian border. Two hundred miles of tunnels (soldiers dubbed them the “IRT,” after one of New York City’s subway lines) dug by men and women using small shovels and even spoons. Inside of these tunnels, the people General William Westmoreland called “human moles” constructed sleeping quarters, storage facilities, hospitals, and factories for building facsimiles of American weapons. Year after year, “tunnel rats” crawled into dark, fetid, dangerous holes, trying to find and kill these “moles.” The military pumped CS gas into Cu Chi’s tunnels, planted explosives inside of them, and tried to flood them, hoping to destroy the enemy’s ability to pop out of the ground, to wound and kill unsuspecting Americans, and then to vanish without a trace.1
In the late 1950s, Ngo Dinh Diem, the anticommunist aristocrat the Eisenhower administration had installed as “President” of “South Vietnam,” launched a reign of terror in Cu Chi district, arresting, torturing, jailing, and killing perceived opponents of his tyrannical regime, including thousands of Vietminh who’d fought against the French colonialists. In December 1958, Diem’s jailers fed poisoned bread to several hundred prisoners at a camp in Phu Loi, just a few miles from Cu Chi. At the village of Phuoc Hiep, north of Cu Chi town, Diem’s troops fired into crowds of peaceful marchers. Diem’s brother, Ngo Dinh Nhu, rounded up suspected communists and guillotined them in the public squares of small villages.2
Returning from a visit to Vietnam in May 1961, Vice-President Lyndon Johnson called Diem the “Winston Churchill of the decade… in the vanguard of those leaders who stand for freedom.” South Vietnam, said President John F. Kennedy, was a “proving ground for democracy.”3
In 1961, Ngo Dinh Nhu supervised the opening of the first “strategic hamlet” camps (the Vietnamese called these places concentration camps) in Cu Chi district. The strategy was to separate Vietnamese civilians from communist insurgents. The South Vietnamese Army and later the US military destroyed entire communities, killing farm animals, ruining crops, and herding peasants into crowded camps that lacked food, water, and sanitation facilities. Peasants in Cu Chi district simply walked out of these “hamlets” and went back to whatever might be left of their homes.
On November 2, 1963, Ngo Din Diem and his brother were murdered in a coup supported by the American ambassador to South Vietnam, Henry Cabot Lodge, Jr. In August 1964, Congress passed the “Gulf of Tonkin Resolution,” giving President Johnson powers to expand the war in Vietnam.
Forty years later, the mangrove forests and jungles that once covered the Cu Chi district are gone, leaving a landscape that resembles the fields of Iowa rather than the wilds of Southeast Asia. We pass small houses, with brown hump-neck cows standing by the front door, as though waiting to be invited inside for a glass of green tea. Rice fields, water buffalo, chickens, ducks, tiny stores and cafés tucked into flowe
ring shrubbery, children playing beside the roads: little evidence that Cu Chi district was bombed, burned, gassed, defoliated, and bulldozed every single day for a decade.
The old soldier wears a long-sleeved shirt and shorts. His feet are bare and when he talks he appears to be listening carefully to his own words. Once, he says, this area of Cu Chi was covered with mangrove forests and jungles. Then, the spray planes appeared, moving slowly and quite low over the trees, back and forth until everything shriveled up and died.
I watch the man’s face, trying to guess what he must be thinking or feeling. Does the sound of my voice trigger visions of ambushes, firefights, and death? He pulls at his right sleeve, touches his chest, and explains that two bullets are lodged in his body, one in his right arm, and the other a few inches from his heart. After fighting for fifteen years in the forests and rice paddies, swamps and tunnels, he was blinded during a battle at Saigon’s Ton Son Hut airport. His wife serves glasses of green tea and returns to the next room to attend to their son.
Le Van Can fought first in the Cu Chi region, but moved on to other places after the forests were defoliated. In 1969, he says, the United States sprayed Agent Orange everywhere. Day after day, the planes appeared, showering the land with dioxin. He and the men in his unit tried to use their raincoats to protect them from defoliants, but the chemicals ate holes in their coats. Le Van Can’s unit moved from place to place, but it was impossible to escape the spraying; there wasn’t anywhere to hide.
He recalls that his skin got red and that it was difficult to sleep, but no one died or—so far as he knew at the time—got seriously ill from the spraying. It was only after the war that soldiers began to develop health problems. One man he knew came from Quang Tri, and when he returned home he fathered six children. Five of these children died. Many men he’d served with got sick and died after the war. He does not really know what caused their deaths, but he does recall a soldier who fathered one child, a daughter, who was born with a “big head.” She did not live very long.
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