U.S. Urges Judge to Dismiss Suit on Chemical Use in Vietnam War
By WILLIAM GLABERSON
The New York Times, February 28, 2005
The Justice Department is urging a federal judge in Brooklyn to dismiss a
lawsuit aimed at forcing a re-examination of one of the most contentious
issues of the Vietnam War, the use of the defoliant Agent Orange.
The civil suit, filed last year on behalf of millions of Vietnamese, claimed
that American chemical companies committed war crimes by supplying the
military with Agent Orange, which contained dioxin, a highly toxic
The suit seeks what could be billions of dollars of damages from the
companies and the environmental cleanup of Vietnam.
In preparation for legal arguments scheduled for today in United States
District Court in Brooklyn, Justice Department lawyers filed a brief last
month that described the suit as a dangerous threat to the president's power
to wage war and an effort at a "breathtaking expansion" of the powers of
Though the case drew little attention when it was first filed, it has become
an important test of the reach of American courts, drawing worldwide
interest and setting off a fierce debate among international-law experts.
"The implications of plaintiffs' claims are astounding," the government's
filing 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.
One of the plaintiffs' lawyers, Constantine P. Kokkoris, said in an
interview 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.
The chemical companies argue that they produced Agent Orange following
government specifications and that its use in Vietnam was necessary to
protect American soldiers. They have long argued that there is no clear link
between exposure to Agent Orange and many of the health problems attributed
The judge, Jack B. Weinstein of Federal District Court in Brooklyn,
said last year that the case, a class action on behalf of what could be four
million Vietnamese, faced many legal hurdles.
But during a hearing in March he said it raised important issues and
"has to go forward seriously," suggesting that it might eventually need to
be decided by the United States Supreme Court.
He asked from the bench whether precedents concerning the treatment of
makers of Zyklon B, the hydrogen cyanide gas used in Nazi death camps, might
be applicable to the claims against the companies that supplied Agent Orange
to the military.
After World War II, two manufacturers of Zyklon B were convicted of war
crimes and executed.
Agent Orange was widely used in Vietnam, often to clear jungle that American
officials said gave the enemy cover. Its use was discontinued in 1971. But
it has survived as a confounding legal issue.
In 1984, after years of court battles, seven American chemical companies
paid $180 million to settle a class action suit by American Vietnam veterans
who claimed that it caused cancer, birth defects and other health problems.
Judge Weinstein, who also presided over those cases, said in a series of
controversial rulings at the time that the veterans would have had grave
difficulty proving a link between their health problems and Agent Orange.
Some scientists say the link would be easier to prove today.
Because of the federal government's legal immunity, it was not part of the
1984 settlement and was not named as a defendant in the new suit on behalf
of the Vietnamese.
Thousands of pages of legal arguments have been filed in preparation for
today's arguments, including experts' opinions and friend-of-the-court
International law experts have weighed in on both sides on the central
issue, whether Agent Orange should be considered a "poison" that was barred
during warfare by international law.
George P. Fletcher, an international law professor at Columbia University,
wrote on behalf of the Vietnamese that "in warfare it is permissible 'to
stand and deliver'- to look the enemy squarely in the eye and shoot him -
but not to look the other way and then use dioxin" to poison his food, land
But, writing for the chemical companies, W. Michael Reisman, an
international law expert at Yale, concluded that no treaty or principle of
international law that was accepted by the United States during the Vietnam
era declared herbicides to be poisons barred during warfare.
"There was no prohibition on the use of herbicides as a military
instrument," he wrote.
Copyright 2005 The New York Times Company