The U.S. military and CIA have a duty to provide medical car to thousands of veterans, exposed to toxic chemical, biological and nuclear weapons experiments from World War II to through the Vietnam War era, a federal appeals court said.
The U.S. Army is obligated to notify and provide medical care to former subjects of human experimentation even though the Veterans Administration may also provide care that might be duplicative, the 9th U.S. Circuit Court of Appeals ruled Tuesday.
A group of veterans’ organizations, lead by the Vietnam Veterans of America sued the Army, the CIA and the VA seeking a court order obligating the government to care for the subjects of experiments.
In 1942, the War Department, as the Defense Department was then known, approved human experiments to test chemical weapons and the effectiveness of protective clothing. By the end of the war, more than 60,000 service members had been used as guinea pigs.
In the 1950s a second wave of chemical weapons research began and continued until 1975, exposing 6,700 human subjects to 250 different chemical and biological agents.
Experiments included exposure to Lewisite, an arsenic-based blister agent, mustard gas, phosgene, a choking agent, hydrogen cyanide and cyanogens chloride, blood poisoning agents.
Some soldiers were exposed to toxic levels on the skin or left in gas chambers, sometimes without protective clothing, according to the court.
The injuries were initially quite high, with 1,000 cases of acute mustard gas agent toxicity in one two-year period, the court said.
During the course of 20 years of experiments from 1955 to 1975, the DOD exposed 6,700 humans to a wide range of chemical and biological agents. In 1953, the Army established policies regulating use of human subjects even as experiments began to broaden to include atomic exposure.
In 1975, the Army ceased large scale experiments exposing humans to chemical agents, according to the court. Then various programs of notification of veterans of the possible health effects began. And by the 1980s the Army created a database of volunteers, military, civilian federal employees and state prisoners, who participated in experiments.
By 1990, the military contacted 128 veterans used in WWII mustard gas testing and identified another 6,387 by 2004. But by 2005, it could only locate 319 and sent them letters.
The lawsuit argued the military was obligated to inform test subjects on an ongoing basis of diseases that might be caused by the exposures and to provide medical care for those conditions.
U.S. District Judge Claudia Wilken in Oakland, agreed that the veterans and others were entitled to notice and ongoing medical care. But she refused to order the Army to provide medical care that was already the duty of the VA.
The appeals court disagreed. It held that the Army must provide medical care to test subjects, despite any obligation by the VA to provide medical care.
The Army had argued it was obligated to provide medical care only during the period of the experiment.
“The fact that the VA provides medical care to some former test subjects… does not relieve the Army of its duty,” the court wrote.
The panel found nothing in the regulations to support the Army’s conclusion that its duty to provide medical care “ends as soon as the experiment ends.”
Judges Clifford Wallace and Mary Schroeder joined Judge William Fletcher in his opinion, with Wallace partially dissenting on the legal basis for a portion of the ruling.
Case: Vietnam Veterans of America v. CIA, No. 13-17430, 14-15108