JUSTICE IS NOT A GI BENEFIT

...Late in 1969, the White House bowed to public pressure and ordered the Defense Department to phase put the use of Agent Orange in Vietnam...

...The dangers that inevitably result from this absence of outside accountability are nowhere more evident that in the VA's policies on Agent Orange...

...Raabe had quite a different complaint: Not only had Irvine misquoted him, he wrote, they had never even discussed the issue of "balance" together...

...The chemical companies would then enjoy the legal immunity of a public body...

...Accepting this defense would have repercussions in future cases brought by persons harmed by toxic agents...

...They will receive no compensation for their injuries...

...Severo was no newcomer to his subject...

...Severo countered by saying that he had a right to confront his accusers, and he refused to let Irvine interrogate him...

...While Raabe would not vouch for AIM's story, the VA welcomed it with open arms...

...Put simply, a Government contractor is not responsible for mistakes for which the Government itself cannot be held responsible...

...Those veterans who were exposed to radiation share a fate similar to Agent Orange victims...

...As it also turns out, the VA's press office aided in the research and preparation of the Report in the first place...

...In a disturbing extension of the Feres rule, the court not only refused to address the merits of the veterans' claims, but also barred suits by veterans' wives and their children for their own health problems...

...They had children with serious birth defects, and many veterans' wives suffered miscarriages...

...The companies also contended they were not liable because they simply made the herbicide according to Government contract specifications...

...in May, he became the acting head of the agency...

...As a result, Vietnam veterans have virtually no right to sue the Government for health care' or compensation related to Agent Orange exposure, even if they can prove that their health problems have been caused by the herbicide...

...And so veterans find themselves stuck on a legal treadmill...

...It makes no difference whether the orders result in the infliction of negligent or intentional harm, or directly violate a service member's constitutional rights...

...So even if immunity doctrines did not keep a veteran out of court, the $10 limitation is insurance that arbitrary agency actions will not be challenged...

...This ruling, if followed by other courts, means that current and future generations of children whose birth defects may be caused by Agent Orange will have no remedy against the Government...

...Irvine says he never saw Raabe's letter...

...This precarious balance between civilian court oversight and military autonomy has tipped most often in favor of the military...

...Some critics argue that the military experiments with new technology to test its later usefulness in the corporate sector...

...And that is the catch: The veterans will get hospital care only if the VA decides there is "credible medical evidence" linking health problems to Agent Orange...

...Obviously, more than the simple need to maintain discipline justifies military immunity...

...But once at the VA, veterans face another legal obstacle that parallels the Feres doctrine...

...But the VA denied the claims—more than five thousand of them by this year...

...Lest any of the thousands of VA employes who read the memo suspect bias, however, he added, "I would like to caution you against any action or initiative which might suggest to veterans that the VA has diminished its commitment to a thorough and responsible pursuit of knowledge and understanding of the many facets of this still perplexing issue...

...As a sad irony, courts that have dismissed veterans' claims have at the same time invited them to go to the Veterans Administration for health care and compensation...

...Army manuals described Agent Orange, a combination of two chemicals—2,4,5-T, containing dioxin, and 2,4-D—as "relatively non-toxic to man or animals...

...This time around, reaction came from another quarter: Severo soon received a call from Reed Irvine, editor of the AIM Report, which is published by Accuracy in Media, Inc., a self-styled watchdog group established, according to Irvine, "to combat media inaccuracy and distortion...

...First, he said that he had spoken with Mark Raabe, the staff director for the subcommittee responsible for the critical report (which was never officially released), and that Raabe had told him the report was not "balanced...

...Irvine told Severo that he had received "complaints" about the article, but when Severo asked who had complained, Irvine refused to say, insisting that he had a right to protect his sources...

...much of its funding reportedly comes from the Mellon family, a leading angel of the Right...

...We may never know what Dow and the Government knew about the health dangers of Agent Orange before it was used...

...But the courts are still extremely reluctant to involve themselves in serious military matters...

...The military arsenal includes not only guns and bullets but toxic chemicals, nuclear weaponry, radiation-emitting radar, and other dangerous and potentially lethal products of our advanced technology...

...In the last three decades, courts have dismissed the complaints of many grievously wronged veterans and their families with little more than unthinking reliance on the Feres case...

...did not warn soldiers of health risks, and did nothing to minimize their exposure...

...The law was passed to eliminate the need for private bills to compensate injured persons...

...Irvine also blasted The New York Times in his April AIM Report, citing the paper's "long record of misinforming its readers" about Agent Orange and calling Severo's reporting a collection of "horror stories" which only spread "fear and suspicion...

...The chemical companies not only denied the charges but in turn sued the Government, alleging that the Government misused the herbicide by spraying it on soldiers...

...In fact, one of the stated reasons in Feres for barring veterans from the courts is that the VA is available to help them...

...In June, Congress took an important step to improve VA medical treatment for veterans exposed to Agent Orange: Both the Senate and the House passed similar bills that would give these veterans priority medical care if the VA finds their health problems are related to Agent Orange...

...However, the courts chose to exclude members of the armed forces from coverage by the 1946 law...

...The New York court agreed with the Government and, in a recent decision, dismissed the Government from the lawsuit...

...What AIM actually does is ferret out what it perceives as left-wing "bias" in the nation's newsrooms...

...The court stated that the broad blanket of military immunity that protects the Government against Agent Orange liability might also extend to the herbicide manufacturers...

...This broad military exception was established by the Supreme Court in 1950, when it decided Feres v. United States...

...He had two major complaints about the article...

...Some veterans, when they chose to argue, have been quickly shuffled off to a VA psychiatrist...

...Many veterans complain that the VA has no idea what to do with the complex medical problems they have...

...They share a history of involuntary and uninformed exposure to dangerous substances, a pattern of Government indifference, deception in the face of their complaints, and, finally, a rude awakening to the realization that they have no right to sue the Government for their health problems...

...Discipline would be impaired by subjecting military orders to court review, the reasoning goes...

...Dow Chemical Company, a principal manufacturer of Agent Orange, echoed the refrain...

...An obvious concern is that the VA may defeat these legislative efforts to compensate veterans by holding firm to its current position...

...Beyond these issues and the immediate needs of Vietnam veterans and their families, the Feres immunity doctrine also will keep the truth about Agent Orange from the public...

...This hands-off judicial approach, which views the military as an autonomous segment of the society, was firmly entrenched as early as 1911 ,when the Supreme Court pronounced, "The courts are not the only instrumentalities of government...

...Congress has never seen fit even to debate the merits of legislating a change in this interpretation of the law...

...Veterans frustrated by the roadblocks at the VA have already turned to the courts for help...

...But the courts are uniformly reluctant to second-guess Defense Department "military" decisions...

...The question of whether common sense or basic fairness supports the Feres immunity doctrine has rarely been the subject of serious judicial debate...

...If some compromise proposal becomes law, the VA for the first time would be forced to decide which health problems may be caused by Agent Orange...

...As one court stated, the "security and common defense of the country would quickly disintegrate under such meddling...

...Even if the VA were to change its policy and compensate veterans for Agent Orange problems, their children and wives would be unaffected...

...For three years, the VA's position has remained simple and uninformed: There is no scientific evidence to show that Agent Orange causes long-term health problems...

...The VA by law is the only major Federal agency whose decisions cannot be reviewed in court...

...In effect, the companies said the Government was partly, if not solely, to blame for any Agent Orange health problems...

...This statutory relic was passed after the Civil War to prevent lawyers from preying on veterans who received war benefits...

...The legal tangle facing veterans also includes a law that makes it a criminal violation for a lawyer to accept a fee of more than $10 for representing a veteran's disability claim...

...Donald Custis got into the act...

...The court's ruling also suggests another extension of military immunity that raises serious questions about the relationship of war contractors to the Government and their legal responsibility to the public...

...The court reached this conclusion through a rather circuitous legal route...

...Historically, courts have been hesitant to intervene in legal disputes between soldiers and the military...

...Although the late Justice William O. Douglas wrote in a military case several years ago that "the Pentagon is not yet sovereign," most Vietnam veterans and their families who have sued the Government over Agent Orange probably feel otherwise...

...The VA can, legally, maintain its position without court review...

...Having arrived at this decision, the court ruled that the chemical companies could not step in and do what the veterans could not—sue the Government...

...Custis is responsible for all VA Agent Orange research...

...They cannot command or regulate the Army...

...Within a few days, Irvine peppered The New York Times with letters to the publisher, the editor, and Severo...

...Second, The Times had created a "gross distortion" by calling a "draft" an "unpublished staff report...

...Because the Government is protected by the Feres doctrine, Dow and other chemical manufacturers may escape all liability by proving that they merely followed the Government's specifications to produce the herbicide and only did what the Government told them to do—a contract-law version of the Nuremberg defense...

...Department of Defense began spraying Vietnamese forests with Agent Orange in 1962, it had conducted no tests for impacts on human health, and it took no precautions to limit exposure of ground troops...

...No court can review the VA's equally ungenerous position that it will not compensate veterans for possible genetic damage, even if veterans could prove such damage was related to Agent Orange exposure...

...This failure to address veterans' charges about Agent Orange also means that the public will be denied the facts about one of the most controversial issues in the continuing legacy of Vietnam, tf Orange Journalism It all started last March, when New York Times science reporter Richard Severo wrote an exclusive article on a Congressional subcommittee's draft report that sharply criticized the Government's stand on Agent Orange...

...But no sooner had The Times received Irvine's letters when it also received copies of a letter Raabe had sent to Irvine...

...The Pentagon obeyed, but stressed that no damage to human beings had been demonstrated...

...As the Government immunity doctrine derives from the feudal era when "the king could do no wrong," these corporations which produced chemical weapons of war would enjoy regal protection from legal process...

...the VA's acting press officer, confirmed that he gave Irvine a personal briefing...

...A ruling in a recent suit brought by veterans against the manufacturers of Agent Orange illustrates how the Government avoids responsibility for its actions...

...Although Custis wrote that "it would be inappropriate for us to disseminate this report through an overt, official campaign," he nevertheless sent it out under official VA stationery because he found it "useful to provide as background to media representatives who come forward for general information in this respect...

...Following what has become known as the Feres doctrine, the courts for thirty years have denied veterans access to the judicial system...

...They are not even allowed to pursue their cases in court to the point where they have an opportunity to prove that the Government committed any wrongful act when it sprayed the herbicide in Vietnam...

...Even if the VA does open its hospital doors to veterans with Agent Orange problems, there is some question concerning the quality of medical care veterans will receive...

...Before the law's enactment, no citizen could sue the Government for damages...

...The problems were remarkably similar to health problems reported by workers who had been exposed to dioxin in industrial accidents...

...The discipline rationale is puzzling even on a superficial level, because prisoners in Federal penitentiaries have a right to sue the Government under the same law which veterans are excluded from using...

...Instead, veterans might lose because of a complicated web of legal doctrines that will prevent them from ever having their complaints heard by the courts...

...Irvine himself says AIM "got help from the VA," and Stratton Appleman...

...The reason for his hope was none other than the AIM Report...

...Senator Alan Cranston, the California Democrat who sponsored the Senate bill, made it clear he believes such evidence exists...

...At the same time, Government studies showed that the 2,4,5-T in Agent Orange caused deaths and stillbirths among laboratory animals...

...As spraying increased during the war's peak years, 1967 and 1968, reports of birth defects and miscarriages among Vietnamese villagers began to surface...

...The military's exalted status above the law has been eroded somewhat over the years, and soldiers have won a limited right to press their claims in civilian courts...

...The issue was left in relative obscurity until 1979, when Vietnam veterans in their late twenties and early thirties began to complain of an unusual array of health problems: skin rashes, fatigue, numbness in their fingers and toes—and cancer...

...The principal reasoning behind the Feres doctrine is that Congress could not have intended the courts to review the propriety of military orders that result in injuries to soldiers...

...Military personnel were ordered to witness above-ground nuclear tests in the 1950s as part of a massive human experimentation program to study, among other things, whether persons could handle the stress of high-level radiation exposure...

...Dow's chief lawyer was reported recently to have said that the contract defense could have wide impact on toxic substance compensation cases when manufacturers defend their actions on the ground that they complied with existing Government standards...

...Veterans who complain that the VA policy Lewis M. Milford is a lawyer at the National Veterans Law Center at American University in Washington, D. C. The Center has represented Vietnam veterans and veterans exposed to radiation by the atmospheric testing program...

...In the Feres decision, the court said the Federal Tort Claims Act did not give military personnel the right to sue the Government for admittedly negligent acts which occurred on active duty...

...Like Vietnam veterans exposed to Agent Orange, they are victims of the sacred military immunity and the laws that protect the VA from their complaints...

...That law allowed citizens to sue the Federal Government for most personal injuries caused by the Federal Government or its agents...

...Consequently, the plaintiffs argue, the companies are now responsible for health problems caused by Agent Orange exposure...

...two years earlier he had written a series on Agent Orange which forced the first serious Government attention to the problem...

...Veterans by the hundreds filed claims for compensation with the Veterans Administration (VA), charging that their problems were caused by Agent Orange exposure during military service...

...Raabe also pointed out that Accuracy in Media's editor had spelled his name wrong...

...And it is likely that veterans would not be able to sue the VA if it decides to deny them priority treatment mandated by Congress itself...

...The Government countered that the Feres doctrine barred the chemical companies from trying to establish any Government responsibility for military actions involving the use of Agent Orange...

...The need for outside review of military actions is greater now than ever before...

...it recognized the modern right to judicial remedy for injuries by the Federal Government...

...In that suit, filed in a Federal court in New York in 1979, veterans and their families alleged that the chemical manufacturers of Agent Orange, including Dow and Monsanto, knew before the Government bought arid used the herbicide that it posed health problems...

...Veterans have encountered many of the same problems as workers in modern industrial workplaces...

...Speaking of the bar to children's claims for birth defects, the court said: "To hold otherwise might open the door for governmental liability to countless generations of claimants having ever-diminishing genetic relationships to the person actually injured...

...The law was passed more than fifty years ago out of a paternalistic notion that because.the agency had the special expertise and compassion to treat veterans, court review was unnecessary...

...In a June 9 memorandum to VA offices titled "Media Coverage on Agent Orange," Custis offered some "reason to hope . . . that future media coverage of the herbicide issue will be more responsible than past accounts which relied on emotional allegations rather than scientific fact...

...In Washington, Dr...

...First, the court decided that because of the Feres doctrine, veterans could not sue the Government directly for problems related to Agent Orange...

...Vern Rogers, a public information officer for the VA in Chicago, distributed the AIM Report throughout VA offices in the Great Lakes area...

...Some thought the situation would change in 1946, when the Federal Tort Claims Act was passed...

...If, some time in the future, a court decision on Agent Orange is reported in the press as a loss for veterans, it will not mean that Agent Orange did not injure them or that the Government and the chemical companies did nothing wrong...

...And when veterans try to sue the VA, they discover that Congress has passed a law which prevents them from suing that agency...

...Because the Government could not be held responsible for veterans' injuries, the Government could not be held responsible for any results that flowed from them...

...why the Government continued to use the herbicide until more than enough evidence was available to suggest its dangers, and why soldiers were never warned of possible health effects...

...In the next few months, the court will decide whether to accept the companies' contract defense and dismiss the veterans' lawsuit...

...Dow is challenging that ban in court...

...PHOTOGRAPH BY BOB WILSON ignores a massive amount of scientific data to the contrary frequently have met little more than cold stares...

...The agency argues that there is not enough evidence to justify compensating veterans for Agent Orange exposure, even though the Environmental Protection Agency considers the herbicide hazardous enough to justify an emergency ban on most domestic uses—killing vegetation along highways, for instance...