CLDC Blog July 6, 2015
By Rebecca K. Smith, CLDC Board President & Cooperating Attorney
Beginning in 1942, the U.S. government approved the use of human subjects in experiments to test its chemical and biological weapons. The human subjects were tens of thousands of members of the U.S. armed services that the government intentionally exposed to these chemical and biological agents. The experiments lasted for decades. Last week, in Vietnam Veterans of America v. CIA, the Ninth Circuit Court of Appeals issued a ruling that will allow these veterans to receive adequate medical care to address the debilitating and devastating health impacts the experiments caused to them.
During the World War II-era tests, soldiers were exposed to Lewisite (an arsenic-based blister agent) and mustard gas, as well as other “gases such as phosgene (a choking agent), hydrogen cyanide and cyanogen chloride (blood poisoning agents), and chloroacetophenone (tear gas).” A 2006 government report from the Veterans Administration recounted that these subjects “were exposed commonly to acutely toxic levels . . . of agents via small drops applied to the arm or to clothing, or in gas chambers, sometimes without protective clothing.” In the 1950’s, the government started to test dozens more chemicals on human subjects, including nerve agents and psychoactive chemicals. These tests continued on a large scale, affecting thousands of soldiers, until the mid-1970’s. The government characterized the soldiers as “volunteers” in these experiments.
After large-scale “volunteer” testing ended, the government established a program to maintain a registry of soldiers who had been test subjects, for the purpose of notifying them in the future if the government obtained new information about the potential effects of the chemicals on human health. The Army later issued regulations that require medical follow-up on research subjects to “ensure that any long-range problems are detected and treated.” The regulations also state that test subjects “are authorized all necessary medical care for injury and disease that is a proximate result of their participation in research.” Despite these regulations, veterans were not receiving the information or care they needed.
In 2009, a group of veterans filed a lawsuit against the government for failing to (1) provide notice to former test subjects about their exposures to biological and chemical agents and the currently known health effects of those agents, and (2) provide medical care to these test subjects for diseases or conditions proximately caused by their participation in military experiments.
Last week, the federal appeals court held that the government has an ongoing duty to notify veterans of health impacts, and that it has failed that duty. The court also held that the government must provide health care and that it has also failed that duty. The court remanded to the district court to issue a more specific order on the type of care and notice that will now be required by court order.