BY WILLIAM C. TRIPLETT

An appeals court in January handed veterans who were unwitting victims of chemical and biological experiments a long-overdue victory in a toughly fought lawsuit brought seven years ago on their behalf by Vietnam Veterans of America and Swords to Plowshares.

Instead of money, though, the veterans were awarded two things that are arguably more important at this point in their lives—access to detailed information about the experiments and access to health care provided by the experimenter, the U.S. Army.
While some of the particulars of this story may be new, its broader themes are familiar, certainly to Vietnam veterans. “It’s another example of the government hiding things, not giving up information that would help veterans,” said VVA President John Rowan.

There was a lot to hide.

Beginning in the mid-1950s at Edgewood Arsenal in Maryland—and with help from the Central Intelligence Agency—the Army developed a secret program to test biochemical agents on unsuspecting soldiers. They were only told they would be testing out new clothing, such as field jackets, and various weapons. They were never told anything about being infected with, or exposed to, things such as deadly nerve agents (sarin and VX), incapacitating agents (BZ), lethal pathogens (plague and anthrax), and even hallucinogens (LSD and mescaline).

According to a CNN report four years ago, when one soldier who’d been subjected to many tests either by injection or pill “questioned the staff about whether he was in any danger, they reassured him: ‘There is nothing here that could ever harm you.’ ”

The Edgewood program was motivated by Cold War fears of possible Soviet biological or chemical warfare attacks. Initially, the tests were defensive in nature—soldiers were often injected or given an antidote shortly after exposure—to discover the best ways to survive such attacks. But subsequent tests were designed for offensive capabilities.

The experiments and the people experimented upon numbered in the thousands. The program went on for years until congressional inquiries and hearings put an end to it in the mid-1970s.

The program’s effects on victims, however, was only beginning.

As soldiers finished at Edgewood and prepared to return to their normal duty stations, they were ordered never to discuss anything they had seen, heard, or done while there. The historical record strongly suggests that they obeyed—until later in life when many started coming down with multiple diseases and ailments.

Suspecting their illnesses were tied to the Edgewood experiments, the former soldiers filed claims for service-connection with the VA, which, it turned out, had actually been part of the Edgewood experiments at one point. The San Francisco Chronicle reported that by 2009, the VA, hardly a disinterested party, had denied “97 to 99 percent of their claims for disability and death benefits.”

Frustrated, eight Edgewood veterans approached the San Francisco-based law firm Morrison Foerster, which was known for representing veterans. VVA soon got involved because of its longstanding interest in the potential long-term effects of veterans’ exposure to toxic substances. Eventually Swords to Plowshares, a veterans rights organization also based in San Francisco, became involved, too.

The decision was made to sue, but not for monetary damages. The plaintiffs wanted to know exactly what was done to them. They also wanted appropriate health care for illnesses they believed resulted from the testing. The suit, filed by Morrison Foerster, named the U.S. Army, the CIA, and the Department of Defense as defendants.

Time, however, was on the government’s side. An estimated seven thousand eight hundred soldiers—possibly more—had been experimented upon, but some had died and others were dying. Before the lawsuit could even move forward, the Army tried to get it dismissed, claiming a slew of legal points such as lack of jurisdiction and expiration of the statute of limitations.

The Army also tried to invoke the Feres doctrine, which essentially immunizes the U.S. military from being sued for money regarding injuries sustained during service. While the plaintiffs made clear they were not seeking cash, the Army argued that the money that would be spent in providing health care could be construed as a financial award.

A year passed, and in 2010 a District Court judge ruled against the defendants on all counts. The case would be allowed to proceed.

It would be another three years, however, before any further progress was made. But it was major progress. In November 2013 the same District Court issued an injunction compelling the Army to inform the veterans about the details and health effects of experiments performed on them. Specifically, the judge said the Army has “an ongoing duty to warn [the veterans] about newly acquired information that may affect their well-being now and in the future as it becomes available.”

The judge also said that Army Regulation 70-25 “entitles plaintiffs to medical care for any disabilities, injuries, or illnesses suffered as a result of participation in the experimentation program.” But the judge didn’t compel the Army to provide that care, citing care available from the VA.

Morrison Foerster felt the Army should be compelled to provide medical care, and appealed that part of the ruling. “The Army has its own independent duty under its own regulations to provide care,” said Ben Patterson, a Morrison Foerster attorney involved with the litigation. “That’s entirely separate from the VA.” Put another way, why shouldn’t the Army be made to comply with its own rules? Especially, as the law firm maintained, since studies had shown links between the tests and some illnesses the veterans had developed.

As Morrison Foerster filed an appeal for a second or tandem injunction, the defendants appealed not only to overturn the injunction to disclose information about the tests, but also, once more, to have the case dismissed entirely. The move didn’t surprise Rowan. “It’s all part and parcel of the government not wanting to tell anybody anything,” he said. “It was that way with Agent Orange, the Atomic soldiers, and so many others.”

The case went to the Ninth Circuit of Appeals, which reviewed all arguments and issued a decision two years later, in June 2015. Once again, the ruling came down completely on the veterans’ side. The Ninth Circuit denied the Army’s attempt to have the case tossed, upheld the District Court’s injunction for the Army to provide access to information about the tests, and—perhaps most importantly—granted Morrison Foerster’s request to file a second injunction forcing the Army to provide health care.

As such, the Ninth Circuit effectively disagreed with the District Court only on that last point, and only in part, writing “we cannot agree that the Army’s duty to provide care is excused by the availability of medical care from another government agency [the VA], even if that care would overlap to some degree and in some manner with the care that the Army is required to provide.”

That might seem to have put an end to things and therefore been cause to celebrate, but the case wasn’t finished. While the Ninth Circuit had granted the second injunction, it was up to the District Court to spell out exactly what the injunction would say. So the case went back there.

The Army hadn’t given up, either. Its attorneys petitioned the Ninth Circuit to rehear the full case in hopes of obtaining a more favorable ruling. It wasn’t until January that the court responded—declining to rehear.

VVA hailed the decision as a clear and final victory. “It reaffirms our position that caring for veterans is part of the continuing cost of war,” Rowan said, noting the Ninth Circuit’s refusal to rehear sends a signal “that the government cannot ride roughshod over its own regulations and the rights of veterans. This case has succeeded in exposing the breadth and scope of some of the top-secret experimentation that the military first denied and then acknowledged had been conducted to the potential detriment of the health of thousands of test subjects.”

Rowan also saluted Morrison Foerster “for their unwavering support of veterans.” The law firm of course welcomed the victory, but as Patterson said: “Keep in mind, it’s possible the Army could try to get the Supreme Court to take the case. They’ve got ninety days to do it.” That is, from the date of the Ninth Circuit’s January ruling, meaning the deadline for filing a request for Supreme Court review would be around the end of this April.

“It’s been a long case,” Patterson said. “We got both the District Court and the Ninth Circuit to say, yes, you have to do these things for veterans. It’d be great if the Army did the right thing” and did not file for Supreme Court review.

For the moment, the only matter still outstanding is the specific wording of the injunction making the Army responsible for providing health care, which the District Court has not yet issued. It could come any day, though, and it will certainly be reason to celebrate.