U.S. wants Agent Orange suit dismissed 

By William Glaberson 
The New York Times 

03/01/05 "IHT" - - NEW YORK The U.S. Justice Department is urging a federal judge in New York to dismiss a lawsuit involving 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 had committed war crimes by supplying the military with Agent Orange, which contained dioxin, a highly toxic substance.

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 Monday in U.S. District Court in Brooklyn, New York, Justice Department lawyers filed a brief in January that described the suit as a threat to the president's power to wage war and an effort at a "breathtaking expansion" of the powers of federal courts.

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 government's filing said that, if the claims were accepted, they would "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 Kokkoris, said 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 argued that they had produced Agent Orange following government specifications and that its use in Vietnam was necessary to protect American soldiers. They also argued that there is no clear link between exposure to Agent Orange and the health problems attributed to it.

During a hearing last March, Judge Jack Weinstein of the U.S. District Court in Brooklyn said the case raised important issues and "has to go forward seriously," suggesting that it might eventually need to be decided by the U.S. Supreme Court.

He asked whether precedents concerning the treatment of makers of Zyklon B, the hydrogen cyanide gas used in Nazi death camps, might be applicable. After World War II, two manufacturers of Zyklon B were convicted of war crimes and executed.

Agent Orange was widely used in Vietnam. 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 War veterans, who claimed that Agent Orange caused cancer, birth defects and other health problems.

Weinstein, who also presided over those cases, said at the time that the veterans would have 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 the arguments on Monday. International law experts have argued on both sides on the central issue: whether Agent Orange should be considered a "poison" that was barred during warfare by international law.

George Fletcher, an international law professor at Columbia University wrote 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 and water.

Copyright 2005 The International Herald Tribune

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