The U.S. military has an on-going duty to warn of health risks and provide medical care to the thousands of soldiers used as guinea pigs in chemical weapons tests since 1942, a federal judge ruled Tuesday. The veterans used in experiments are entitled to medical care from the Dept. of Veterans Affairs for any injuries that may have resulted from exposure to mustard gas, LSD or biological agents.
Although the military implemented a rule in 1988 requiring consent and on-going notification of potential hazards to test subjects, one legal question was whether that rule applied to subjects used in tests prior to 1988. U.S. District Judge Claudia Wilken held that the rule does apply to human subjects exposed to nuclear weapons effect, chemical warfare agents or biological warfare agents prior to 1988.
Between 1942 and the end of World War II more than 60,000 military servicemen had been used as subjects in chemical defense research. Some 4,000 had been exposed to mustard gas or in-field exercises over contaminated grounds.
The purpose was to test the effectiveness of protective clothing, among other things.
The programs were scaled back after the war, but from 1955 to 1975 thousands of soldiers were used in experiments on a wide range of 250 to 400 chemical agents at the U.S. Army Laboratories in Edgewood Arsenal in Maryland.
Testing also included conscientious objectors to war. Most were Seventh Day Adventists, with roughly 2,300 individuals subjected to biological agents between 1954 and 1973.
Human testing was suspended in 1976, according to the opinion, although tests of protective suits continued until 1979.
“The court concludes that defendants’ duty to warn test subjects of possible health effects is not limited to the time that these individuals provide consent to participate in the experiments,” Wilken wrote. “Instead, defendants have an ongoing duty to warn about newly acquired information that may affect the well-being of test subjects after they completed their participation in research,” she said.
The lawsuit was brought by Vietnam Veterans of America, Swords to Plowshares and individual veterans.
In the 1990s, the Veterans Administration began sending notices to surviving service members it could locate. In 2005, the Dept. of Defense gave the VA the names of nearly 17,000 cold war-era test subjects. Several hundred WWII veterans were located and notified by letter.
Wilken found the Army has not met its ongoing obligation to provide notice of the effects of testing, doses and substances used on individuals. She said 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.”
Although the veterans objected to medical care from the DVA, which they argued has been inadequate or has been denied in some cases, Wilken said they cannot choose who will provide the care when Congress designated to the DVA.
Wilken rejected the veterans’ constitutional claim that their due process rights have been violated.
Case: Vietnam Veterans of America v. CIA, No. C09-0037CW