Vets Used in Chem Tests Must Get Health Warnings

Veterans used as guinea pigs in decades of military and CIA chemical and biological weapons tests lost sweeping constitutional violation claims, but did win ongoing obligation the military warn them of health effects and provide VA medical benefits.

The massive class action on behalf of as many as 60,000 veterans used in experiments from World War I to the Vietnam era, prevailed Wednesday in a federal court decision upholding a military obligation to notify them when new medical evidence of potential damage is uncovered.  In addition, U.S. District Judge Claudia Wilken said the veterans are entitled to make health claims through the Dept. of Veterans Affairs.

But the vets lost broader claims for unlimited medical care and claims of constitutional violation for failure to provide them with notice of full nature of experiments, liberty interests and failure to provide means to challenge denial of medical care.

“Court summarily adjudicates in favor of Plaintiffs that the Army has an ongoing duty to warn and orders the Army, through the DVA or otherwise, to provide test subjects with newly acquired information that may affect their well-being that it has learned since its original notification, now and in the future as it becomes available,” Wilken wrote.

By the end of World War II over 60,000 U.S. servicemen had been used as human subjects in a chemical defense research program, mostly drawn from personnel working at Edgewood Arsenal in Maryland.  At least 4,000 had been subject to high levels of mustard gas agents to test the effectiveness of protective clothing, among other things, according to the court.

Among the drugs tested on vets were LSD, mescaline, thorazine, atropine and scopolamine.  It also included vets exposed to nuclear weapons test fallout.

From 1955 to 1975, roughly 7,800 personnel were exposed to newer chemical agents, including nerve gases and psychoactive drugs such as LSD and thorazine.  The Department of Defense used 250 to 400 different chemical and biological agents during its research on humans.

Another 2,300 people from 1954 to 1973 entered military service as conscientious objectors, most were Seventh Day Adventists who were used as subjects in biological tests at Fort Detrick, Maryland.  The program of human experiments was ended in July 1976, according to the court.

In 1953 the Army promised that all casualties of the experiments would receive medical treatment and hospitalization, according to the plaintiffs.

The Army began internal discussions in 1979 about whether the subject soldiers should be notified that they may face risk of continued injury from the experiments.  Ultimately, the Army began a system of notification and record keeping of individual volunteers in 1981, including “military members, federal civilian employees and state prisoners.”

Between 1988 and 1990, the military expanded its notification program, obligating commanders to warn volunteers of hazards, create a data base to answer questions and provide newly acquired information, and included subjects deliberately exposed to nuclear weapons effects.

But a decade later, in 2000, the military wanted to delete the research volunteer registry database saying the records had been incorporated into a new records system.

CIA and military defendants argued there is no duty under the Administrative Procedures Act to provide notice to past test subjects and that the court has no jurisdiction to rule on claims for medical care for the veterans.

The rule changes between 1988 and 1990 “do contain a duty to warn that is manifestly and unambiguously forward-looking in nature,” Wilken wrote.

What was less clear was the military obligation to continue warn participants prior to the 1988 rule expansions. Ultimately, she held there is a duty to continue supplying future warnings to those subject to pre-1988 experimentation.

She rejected the military argument that a database must be developed at the outset of the research in order to carry out the duty of future notifications.

“Although it may be easier to make such a database at the outset, it is also possible to create one after the fact, using whatever information is available,” she said.

Argued for deference,  Wilken rejected saying it is “not warranted.”

She also rejected the vets’ argument that the Dept. of Veterans Affairs was biased by its own involvement in some of the experimentation.  She found no reason to think the DVA issued biased injury findings.

Case: Vietnam Veterans of America v. CIA, No. C09-0037CW