New York Times
March 10, 2005
In an effort to close a controversial Vietnam-era chapter of American history, a federal judge in Brooklyn today dismissed a damage suit filed on behalf of millions of Vietnamese that claimed American chemical companies committed war crimes by supplying the military with the defoliant Agent Orange.
The civil suit, filed last year, had sought what could have been billions of dollars in damages and the environmental cleanup of Vietnam.
It claimed that the defoliant, which contained the highly toxic substance dioxin, left a legacy of poison that caused birth defects, cancer and other health problems and amounted to a violation of international law.
But the judge, Jack B. Weinstein of the United States District Court, sided with the chemical companies and the Justice Department, which had argued that supplying the defoliant did not amount to a war crime.
"No treaty or agreement, express or implied, of the United States," Judge Weinstein wrote, "operated to make use of herbicides in Vietnam a violation of the laws of war or any other form of international law until at the earliest April of 1975."
The military stopped using Agent Orange in Vietnam in 1971. In 1975, President Gerald R. Ford adopted a policy renouncing the first use of herbicides in warfare. Also in 1975, the Senate ratified an international agreement dating from 1925, which outlawed the use of poisonous gases during war.
The suit claims that because of the dioxin in Agent Orange its use amounted to the use of poison during war.
William H. Goodman, a lawyer for an association of Vietnamese that filed the suit as a class action, said an appeal would be filed. He said the issue could eventually be decided by the United States Supreme Court.
"The judge missed the point," Mr. Goodman said. "He ruled as a matter of law that what these defendants manufactured was not a poison, whereas even the these manufacturers recognized that it was at the time."
The companies have long said that dioxin was an unwanted byproduct of the manufacture of Agent Orange but claimed that there was no conclusive link to the many serious health problems blamed on Agent Orange.
Over many decades, American veterans of the Vietnam War filed suits making health claims similar to those now being pressed by the Vietnamese. Judge Weinstein also handled those cases, ruling that it might be difficult for the veterans to prove the link between their health problems and Agent Orange.
Seven American chemical companies settled the veterans' cases for $180 million in 1984.
The same chemical companies, including Dow, Monsanto and Hercules, which made Agent Orange under orders from the Defense Department, were sued in the Vietnamese case.
Spokesmen for some of the companies applauded Judge Weinstein's decision today.
"We believe the defoliant saved lives by protecting allied forces from enemy ambush and did not create adverse health affects," said Scot Wheeler, a spokesman for the Dow Chemical Company.
Glynn Young, a spokesman for Monsanto, said Judge Weinstein's decision was a careful analysis of the claims. "The judge said they didn't make the case," Mr. Young said. "That's a very difficult message for a lot of people to understand because there's so much emotion wrapped up in cases like this one."
Justice Department lawyers filed a brief in the case in January calling the suit a threat to the president's power to wage war and an effort at a "breathtaking expansion" of the powers of federal courts.
"The implications of plaintiffs' claims are astounding," the brief said, "as they would (if accepted) open the courthouse doors of the American legal system for former enemy nationals and soldiers claiming to have been harmed by the United States Armed Forces" during war.
Constantine P. Kokkoris, another of the plaintiffs' lawyers, said in an interview last month that the Justice Department's argument was misplaced because the government had not been sued in the case. He said the lawsuit raised questions about the conduct of the corporations that were limited to their supplying what he called contaminated herbicide.