Testimony of Jeanne Mirer, Secretary General of the

International Association of Democratic Lawyers

before the House Foreign Affairs’ Subcommittee

on Asia the Pacific and the Global Environment,

for the Hearing Entitled:

“Our Forgotten Responsibility:

What Can We Do To Help Victims of Agent Orange”

May 15, 2008

Congressman Faleomavaega, members of the Subcommittee, thank you for the opportunity to testify before you on the important issue of our forgotten responsibility to the victims of Agent Orange. This issue has been with us for a long time without a comprehensive solution. We know that after the spraying, exposed Vietnamese farmers became sick and died. They produced children with horrific birth defects. We know that US and other allied veterans also got sick and sought compensation. Today untold numbers of US, Korean, Australian, and New Zealanders who fought with the US are sick and dying from dioxin related disease. More pointedly though, the millions of intended victims of the spraying, the Vietnamese citizens, are still suffering exposure to the dioxin in many places, in particular hot spots around former US military installations. The Vietnamese government does not have the resources to clean up these hot spots and provide the kind of medical and other services or financial assistance to the victims in Vietnam. Today’s hearing we hope will explore possible remedies which can be developed to right a colossal wrong.

In my testimony I will try to discuss what is known about the scope of the damage and the needs of those affected for relief and assistance, but as a lawyer involved in the case filed by the Vietnamese victims against the chemical companies my emphasis is on the Vietnamese victims and an understanding of the legal issues which would support legislation to make sure these victims are not forgotten any longer. That is, my testimony will focus on the reasons why the government has more than a moral obligation to ensure the victims of Agent Orange are provided help.

Agent Orange and the dioxin it contained continues to impact the people and environment of Vietnam. It has been called the “Last Ghost of War”¹ and represents the last impediment to full reconciliation between the United States and Vietnam.

Legal Analysis

The first question, therefore, is did the United States violate the law in deciding to use these agents in Vietnam?

The answer to this question is most certainly, yes.

In deciding to use defoliants in Vietnam the United States Government failed to consider its obligations under the Hague Convention of 1907 on the Laws and Customs of War, which categorically prohibits the use of poison or poisoned weapons in war. The United States Government also failed to abide by customary international law which also bans poison or poisoned weapons in war.²

What do I mean by this statement?

The record evidence which was produced in the cases filed by the United States veterans and the Vietnamese victims shows both that (1) the government was given legal advice that it could not use herbicides or defoliating agents which were harmful to man, animals or soil, or if they poisoned people directly or indirectly through ingestion, (2) that the government ignored this legal advice in using untested chemicals which they knew or should have known had some toxic effects, and (3) they suppressed the report which showed the toxic effects of these chemicals for several years before banning their use both internationally and domestically.

More specifically, in late 1961, President Kennedy approved a joint recommendation of the Departments of State and Defense to initiate, on a limited scale, defoliant operations in Vietnam. Initially, the aerial spraying was to take place near Saigon; its purpose was to clear the thick jungle canopy from around roads, power lines and other lines of communications in order to lessen the potential of ambush. There was also to be some hand spraying from the ground around gun emplacements and the like to reduce surprise attacks and maintain open lines of fire.

The use of defoliants for any other purposes other than clearing for roads or lines of communication was opposed by the State Department, in particular, Secretary of State, Dean Rusk on the ground that use of such chemicals would alienate those Vietnamese that the USG wanted to remain friendly to its ally in South Vietnam. Others in the Department of Defense sought to use these defoliants against crops available to the Viet Cong, then considered a small insurgency.

Kennedy requested a legal opinion as to the legality of the use of defoliants as weapons. The opinion provided by Rusk related to the very narrow initial proposal for use in clearing communication and transportation routes. The opinion provided by Rusk relied almost exclusively on the 1945 opinion authored by Major General Myron Cramer, the Judge Advocate General who wrote a similar opinion regarding a proposal by the military to use defoliating agents/herbicides against the Japanese in the Pacific theatre during World War II. This use had been proposed to both deprive cover and food to the Japanese on the Pacific Islands.

While defoliating agents were not used against the Japanese, Cramer evaluated, inter alia, whether the use of such weapons violated the ban on poison or poisoned weapons outlawed by Article 23 of Hague Conventions of 1907 which the United States had ratified.³ Cramer’s opinion made the very important point that because the chemicals destroyed plants they could be considered a poison, outlawed under Hague. But he did not think the Japanese would be able to use this argument effectively against the United States because the Japanese used strychnine to kill Russian Military dogs during the Russo Japanese war.⁴ In other words, the use of herbicides could be considered outlawed by the prohibition against the use of poison in war, but the US would not be called to account by an equally offending adversary. In the end, Cramer opined that absent considering poisons which destroyed plants a poison which violated the laws of war he did condition the legality of their use on whether such chemicals produced poisonous effects upon enemy personnel, either from direct contact or from ingestion of plants and vegetables which have been exposed thereto. If they poison directly or indirectly they are not permitted under international law.

Cramer further based his opinion on the assumption that the contemplated agents were not toxic. He noted, “whether [the] agents used as contemplated are toxic to such a degree as to poison an individual’s system, it is a question of fact which should definitely be ascertained. Should further experimentation show they are toxic to human beings, I will be pleased to express my opinion on the facts which may be presented for consideration.”

Rusk gave the legal opinion to President Kennedy which allowed for the limited use of herbicides, but it was based on the understanding that the herbicides which were going to be used are not harmful to humans, animals or the soil, that is, are harmless to personnel or animals, and are the same kind that are used by farmers against weeds.⁵

We know from history that the admonition from both Cramer and Rusk as to the safety of these herbicides proposed for use was totally ignored. While there is significant information that the US military wanted a completely safe defoliant, their actions belied that desire. At the Defense Department’s First Defoliation Conference to review Vietnam spraying operations, “Brigadier General Fred J. Delmore alerted the company representatives, including those from Dow and Montsanto, that there was a need for the defoliants to work in a quicker fashion and that the material used in the defoliants must be both ‘perfectly innocuous to man or animals but able to do its job.” Additionally, Albert Hayworth, chief of the Fort Dietrich program coordination office told those attending the conference: ‘It goes without saying that the materials must be applicable by ground and air spray, that they must be logically feasible, and that they must be nontoxic to humans and livestock in the affected areas.’” See Doyle, Jack, “Trespass Against Us: Dow Chemical and the Toxic Century,” Common Courage Press, 2004 p. 56.

Dow officials, in response, and extrapolating from its experience with agricultural herbicides told General Delmore in 1963: “We have been manufacturing 2,4,D and 2,4,5,T for over ten years. To the best of our knowledge none of the workmen in these factories have shown any ill effects of working with these chemicals. Id at 56. When Dow workers began suffering from chloracne after a 1964 industrial accident at its Midland plant, this was not reported to the government. Id. p 57.⁶

Prior to its use in Vietnam, the U.S. military had not undertaken any Agent Orange toxicological testing of its own before ordering and deploying the chemical. The approval by the Army Chemical corps scientists of Agent Orange as safe was based on data received directly from V.K. Rowe, Dow’s chief toxicologist. Id. at 57.

According to Thomas Whiteside in his book “The Pendulum and the Toxic Cloud” the “American military, having developed 2,4,5,T as part of its biological warfare program in the years following the Second World War, unhesitatingly employed it during the war in Southeast Asia....without the Pentagon’s scientists ever having taken the precaution of systematically testing whether the chemical caused harm to the unborn offspring of as much as an experimental mouse.” (Whiteside is quoted Id. at p. 57).

Nonetheless the chemical companies which sought to protect a lucrative government contract and lucrative domestic business failed to disclose to the government the results of their internal testing. See April 19, 1983 New York Times article entitled“1965 Memos Show Dow’s Anxiety on Dioxin.” The memos referred to were part of those filed in the US Veterans case and mentioned to some extent in the various decisions. These memos clearly show that Dow had described the results which showed severe liver damage in rabbits and the fact that Dow could not find a a no effect level in the rabbits regardless of the level of exposure.

As reports of increased miscarriages, stillbirths and birth defects in Vietnam as well as domestically began to gain the attention of US scientists, it turned out that the National Cancer Institute had already (in 1962) contracted the Bionetics Research laboratories of Bethesda Maryland to conduct cancer studies on a number of pesticides including 2,4,-D and 2,4,5-T. The study was to be reviewed by a “blue ribbon” commission of scientists.” When in the summer of 1965 Bionetics tests on female mice and rats showed that 2,4,5,-T was a powerful teratogen, Dow objected that they had used a dirty sample. Id at 58.⁷

Unfortunately, through a combination of industry pressure and White House concern that the report would feed growing anti-war sentiment, the report was not made public until 1969.⁸ When the Bionetics Study was eventually made public, the government ordered restrictions and later a ban on its use both in Vietnam and domestically.

The legal analysis above alleged in the case filed by the Vietnamese victims claims under the Alien Tort Statute which allows aliens to seek damages in tort for violations of the law of nations and treaties. Unfortunately, in light of the decision in Sosa v Alvaraz-Machain 542 U.S. 692 (2004) courts appear to be reading the statute and claims for which remedies may be sought much too narrowly and the case has thus far not been successful. ⁹ Indeed, in the opinion of the Second Circuit Court of Appeals, the panel of judges referred to last year’s $3 million congressional appropriation for environmental remediation in a manner suggesting that Congress has the obligation to provide the relief sought by the Vietnamese in court.

The Tragedy of Not Testing These Agents Before Using Them

The Cramer Opinion relied on by Dean Rusk and by extension President Kennedy required there to be research on the effects of defoliating agents before they were used. Ignoring this advice has had disastrous consequences for millions of people throughout the world inside and out of Vietnam. Below are several items which need to be understood about the impact of the failure to follow the Cramer opinion and the refusal to stop using these weapons as soon as scientific evidence regarding their use began emerging from the Bionetics study.

1. Beyond the scope of the environmental and human disaster which has been documented, the tragedy of the use of these chemicals before they were tested is that the dioxin in 2,4,5-T did not have to be present. It is an impurity in 2,4,5-T which could have been virtually eliminated had the chemical companies manufactured it at low temperatures over a longer fabrication period. It is known that dioxin did nothing to add to the defoliating characteristics of the other compounds, so there was no military reason in the world for the dioxin to be present in these agents.

2. There is no doubt that in Vietnam the agents were sprayed in at least 10 times the concentrations as they were in the US for weed control function. As noted in the seminal study by Jeanne and Steven Stellman et. al. from Columbia University, entitled: The Extent and Patterns of usage of Agent Orange and other Defoliants in Vietnam”, (Nature Volume 433, 17 April 2003, pp 681-687), millions of Vietnamese (between 2.1 and 4.8 million) would have been present in the more 3,181 hamlets when the spraying occurred. It is estimated that the equivalent of 600 kilograms of pure dioxin was sprayed or spilled during the Vietnam war. (See report of seven year study conducted by Canada’s Hatfield Consultants, Wayne Dwernychuk).

3. It is now known that dioxin acts like a hormone. It gets to the receptors in the cells of a developing fetus before the normal hormones and directs the cells to do abnormal things. The cell’s nucleus is protected by a “defense perimeter” which has the role of preventing the molecules not having required structure from entering the nucleus and therefore interfering with the genetic heritage. But, within cellular cytoplasm (i.e. the whole of cell’s elements except the nucleus) dioxin blends with a component, naturally present in every cell, the aryl-hydrocarbon receptor and will be able to enter the cellular nucleus’ defenses, “passing itself off “ as a hormone. It is that complex dioxin-receptor which will mix-up the hormonal messages of our endocrinal system (the whole of glands with internal secretion, throwing in blood the produced materials called hormones) and will activate some parts of DNA, areas so-called “dioxin sensitive” and therefore produce toxic effects.

Even before the mechanisms of action were known, studies had shown some correlation between exposure to Agent Orange and many diseases. This has allowed the US government's Veterans’http://veteransinfo.org/id4.html Administration to officially recognize 13 medical conditions linked to Agent Orange in soldiers who were exposed. These veterans are entitled to disability payments and medical care. (See http://veteransinfo.org/id4.html). The diseases include leukemia, Hodgkins and non-Hodgkins lymphoma, cancer, dermatological complications, and mental retardation, as well as type II diabetes. IARC (the International Agency for Research on Cancer, a part of the World Health Organization) has recognized dioxin as a known human carcinogen since 1997.¹⁰

4. In the southern part of Vietnam within the Agent Orange spraying zone, it is estimated that over 800,000 people continue to suffer serious health problems and are in need of constant medical attention and untold thousands have already died. As many as 2-4 million Vietnamese are thought to be suffering from the effects of exposure to Agent Orange, according to Kenneth Herrmann, director of the Vietnam Program at the State University of New York at Brockport.

Recently the Dialogue group reported that it will cost at least $14 million to remove dioxin residues from just one site around the former US airbase in Danang. The cost of a comprehensive clean-up around three dioxin hot spots and former US bases is estimated at around $60 million. The $3 million pledged by US Congress last year is a pathetically inadequate amount set against the billions spent in waging war and deploying weapons of mass destruction. Furthermore the $3 million has not been distributed.

The recent study of one Agent Orange hot spot, the former US airbase in Danang, (http://vn-agentorange.org/military_20070615.html) http://vn-agentorange.org/military_20070615.html found dioxin levels 300 to 400 times higher than internationally accepted limits. The study confirmed that rainwater had carried dioxin into city drains and into a neighboring community that is home to more than 100,000 people. Dr Arnold Schecter, a leading expert in dioxin contamination in the US, sampled the soil around former US airbase in Bien Hoa in 2003 and found dioxin levels that were 180 times above the safe level set by the US environmental protection agency. The US government was aware of these findings in 2003. In terms of being able to test the soil and the water, each test costs about $600 to $1,000. To do widespread testing is cost prohibitive for the Vietnamese.

5. Veterans from the other countries who served with US soldiers in Vietnam are now seeking and in some cases receiving compensation for their injuries. The Vietnamese government and the organization representing the victims, the Vietnam Association for the Victims of Agent Orange (VAVA), try to provide assistance to the victims they have identified in in various amounts and for different services. But, the reality is, despite significant development in Vietnam, the government does not have the resources to address this public health crisis either for treatment, monitoring or clean up.

Based on the above legal analysis, and the high cost of remediation, the United States has an obligation to provide assistance to the Vietnamese. How this is done should be the result of ongoing congressional investigation and legislation. This hearing is an important first step in this process. I applaud the subcommittee for holding this important hearing. Hopefully it will be the beginning of a process which will result in the United States stepping up to its forgotten responsibility to the victims of Agent Orange. Thank you.

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¹The Last Ghost of War is the title of a full length documentary made by film makers Janet Gardner and Pham Quoc Thai which documents the issues. The name is based on the statement of former American Ambassador to Vietnam Raymond Burghardt once said that Agent Orange/ dioxin issues were the last testy problem in American-Vietnamese relations

²Prior to being codified in treaty form in the Hague Convention of 1907, the use of poison or poisoned weapons in war had been banned by the Lieber Code, the St. Petersburg Declaration of 1868, the Brussels Declaration of 1874, and the Oxford Manual of the Laws and Customs of War, of 1880 and the Hague Regulations of 1899..

³As a ratified treaty the Hague Conventions are part of domestic law pursuant to Article VI §2 of the United States Constitution which states:

This constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States shall be the supreme law of the land; and the judges in every state shall be bound thereby, any thing in the constitution or laws of any state to the contrary notwithstanding.

⁴Although the Russo-Japanese war predated the 1907 Hague Regulations, as noted above poison or poisoned weapons were already banned.

⁵By late 1962 approval was granted for offensive use of herbicides to destroy planted fields and crops suspected of being used by the Viet Cong. The use of herbicides for crop destruction peaked in 1965 when 45% of the total spraying was designed to destroy crops. Various herbicides were used for defoliation and crop destruction spraying in Vietnam including Agent Blue (cacodylic acid), Agent White (a mixture of 80% tri-isopropanol amine salt of 2,4-dichlorophenoxyacetic acid (2,4-D) and picloram), Agent Purple (a formulation of 50% n-butyl ester of 2,4-D, 30% n- butyl ester of 2,4,5-trichlorophenoxyacetic acid (2,4,5-T) and 20% isobutyl ester of 2,4-D), Agent Green (100% n-butyl ester of 2,4,5-T) and Agent Pink (60% n-butyl ester of 2,4,5-T and 40% isobutyl ester of 2,4,5-T) After 1964, Agent Orange, a 50-50 mixture of the n-butyl esters of 2,4-D and 2,4,5-T, was one of the most widely used herbicides, along with Agent White and Agent Blue. See A.L. Young, J.A. Calcagni, C.E. Thalken & J.W. Tremblay, The Toxicology, Environmental Fate, and Human Risk of Herbicide Orange and its Associated Dioxin, USAF OEHL Technical Report (Oct. 1978).

⁶Doyle in this work, also claims that in 1963 the Advanced Research Projects Agency did hire the Institute for Defense Analysis (IDA) to review the toxicity of all the herbicides proposed for use in Vietnam. The IDA, however, reported that it could not guarantee if any of them would be safe for military use, noting the military penchant for using over kill concentrations, with possible effects on exposed populations and domestic animals. Id at 56. It is also important to note that Monsanto and Diamond Alkali had accidental spills of 2,4,5,-T, in 1949, and 1954 respectively which resulted in injuries to workers from both Chloracne and liver problems.

⁷Although Dow spokespersons later claimed that if Bionetics had used its chemicals rather than a sample from a competitor which had a high impurity level in its manufacturing, when Dow’s samples were tested in 1970 by the National Institutes of Environmental Health Sciences and The Food and Drug Administration, using samples that contained less than one part per million of dioxin, the tests still showed significant teratogenic effects. Id. at 60.

⁸In July 1969, Ralph Nader received a leaked copy of the report and gave it to Dr. Mathew Meselson, a Harvard University Biologist. This release triggered actions to stop the spraying which were eventually successful. Id at p 58.

⁹The Vietnamese plaintiffs’ case was filed on January 30, 2004 before Sosa was decided. It was dismissed by the District Court in March of 2005. The Court of Appeals affirmed on February 22, 2008, and rehearing was denied on May 7, 2008. There will be a petition to the Supreme Court for review. The Vietnamese plaintiffs believe that their case should have prevailed even in light of the Sosa decision, but will not discuss this matter in this testimony.

¹⁰American veterans who were exposed to Agent Orange during the Vietnam War first filed a class-action lawsuit in 1979, which sought to represent 2.4 million veterans. In 1984, seven companies that manufactured Agent Orange agreed to pay $180 million in compensation to U.S. veterans or their next of kin. Since then Congress provided some relief in 1991 with the passage of the Agent Orange Act. Untold billions have already been paid to hundreds of thousands of US veterans.