American veterans suing the military and CIA for allegedly using them as guinea pigs in chemical and biological tests from 1922 to the present won the right to pursue the case as a class action, a federal judge ruled late Sunday.
Chief District Judge Claudia Wilken granted class action status in a 59-page order posted online. The suit alleges a vast program of secret human experimentation with such chemical weapons as mustard gas and Sarin exposed soldiers for decades.
The experiments may cover as many as 100,000 military personnel at numerous facilities over the decades, according to the plaintiffs.
The lawsuit alleges that from World War I to about 1975, “soldier volunteers” were experimentally exposed to a wide range of chemical agents for research atomic, biological and chemical warfare. The claims include constitutional violations and violation of the Administrative Procedures Act.
Although a 1953 memorandum by the Army required voluntary consent from soldiers and that subjects be informed of potential dangers, the suit alleges “all volunteers participated without giving informed consent because the full risks of the experiments were not fully disclosed,” Wilken wrote.
The lawsuit was filed in 2009 by Vietnam Veterans of American, Swords to Plowshares and a host of individuals. It claims the soldiers were given more than 250 drugs and as potentially as many as 400. Along with deadly Sarin, they were allegedly exposed to amphetamines, barbiturates, mustard gas, phosgene gas, Thorazine and LSD.
The suit also includes an allegation that the far flung testing included experiments with septal electrodes implanted to test the ability to directly control human behavior.
The Department of Defense argues that it is “unaware of any general long-term health effects associated with the chemical and biological testing programs,” Wilken wrote. But that is contradicted by the department’s own documents, she said.
She concluded that plaintiffs may pursue claims for failure to provide notice to test subjects and the right to pursue claims for medical care to test subjects.
In 2002, Congress passed the National Defense Authorization Act, which required the Secretary of Defense to work to identify projects or tests conducted by the military that may have exposed armed forces to chemical or biological agents.
Test subjects were compelled to sign secrecy agreements and face military discipline if they violated the lifetime oath. The suit seeks to life the secrecy oaths to allow soldiers to discuss the testing and receive health care.
The CIA has said it cannot locate records and denied that the secrecy oaths exist.
“The CIA’s self-serving statement that it cannot locate records of secrecy oaths that it directly administered, and thus does not believe that such oaths were made, does not establish this fact or that other secrecy oaths cannot be traced fairly to the CIA,” Wilken wrote. She said the plaintiffs may include the CIA in their claims regarding the oaths.
To show that a death or disability is connected to a veteran’s participation in the testing, or those seeking survivor benefits, they must show that it is at least likely as not that there is a link.
In 2005, letters related to WWII-era testing went to 321 individuals or their survivors who could be located from a database of nearly 4,500 individuals exposed to mustard gas and other material.
A second round of letters went to 4,000 people from a list of 10,000 who participated in Cold War-era testing.
The decision names Morrison & Foerster as class counsel for the veterans.
Case: Vietnam Veterans of America v. CIA, No. C09-0037CW