ON GUARD Radiation and Herbicide Suits Rejected by Courts by Tricia Critchfield Veterans and others who were exposed to radioactive fallout and Agent Orange suffered serious setbacks recently when federal appeals courts, in two separate rul- ings, threw out lawsuits seeking damages for their injuries. While the victims’ attor- neys have stated that they’ll appeal to the Supreme Court, some legal observers doubt that the high court will overturn rul- ings which, if left alone, will finally put an end to litigation which embarrasses the government. In Denver, the 10th Circuit Court of Appeals reversed a 1984 verdict by a Salt Lake City federal court which had awarded damages to ten of 24 Utah residents who’d suffered radiation-induced cancers after living “downwind” from the Nevada test-site. The court based its action on a section of the Federal Tort Claims Act which prevents suit where injury was the result of high-level policymakers exercis - ing their “ discretionary functions.” The court’s ruling acknowledges that Ameri- can leaders knew that the bomb-testing they ordered would lead to excess cancer and death rates. The lower court had re- jected this defense during the trial. One of the plantiffs, Mrs. Helen Nisson of southern Utah, whose son died of leukemia, told reporters, “ We can give millions to the Contras, but not one penny for kids down here who died.” Over two thousand other cases of “downwinders” who'd developed cancer.and otherJiealth problems because of the fallout will never be brought to trial unless the appeals court’s ruling is overturned. “ It was a body blow, even though I expected the ruling. This appeals court has overturned every radiation case they get their hands on,” observed Janet Gordon, director of Citizens Call, a Utah group advocating compensation. Ms. Gordon decried gov- ernment stonewalling on the issue. “ If we’d suffered an earthquake or major flood, they’d have sent in assistance in a minute.” The efforts of Vietnam veterans to over- turn the grossly inadequate settlement of the Agent Orange class action were also frustrated when the 2d Circuit Court of Appeals, sitting in Manhattan, upheld the court-induced pact. Describing the settle - ment’s size as merely a “ payment of nui- sance value,” the judges nonetheless up- held most of its terms. They did reject trial judge Jack Weinstein’s plan to give $45 million of the settlment fund to a private foundation, explaining that they feared endless litigation over the charity’s ac- tivities. The court also rejected a secret fee arrangement under which “ investor- attorneys” on the plantiffs’ team would have received three times as much in fees as those who actually did the work. Al- though the court preached that such an arrangement couldn’t be allowed because it generated “ impermissable incentives” to settle, they gave the tainted plan their approval anyway. The reaction among Vietnam veterans was immediate. Randy Guffey of the Viet- nam Veterans Agent Orange Committee, a coalition of vet groups based in Arlington, VA., commented, “ It’s obviously a polit- ical, not a judicial decision. The judges feared opening Pandora’s Box. There is a body of scientific evidence which supports our claims, no matter what the judges say.” Frank Lattanzi, a veteran affiliated with Citizen Soldier observed; “ In its opinion, the court referred to new research which has documented high levels of dioxin in the blood and tissue of vets. This is an ongoing scientific issue, yet the courts are trying to deep-six it like so much toxic waste. ” The New York court also upheld Judge Weinstein’s dismissal of the claimants who elected to leave the class and sue on their own. Even though it heard no evi- dence, the lower court had dismissed these cases, ruling that they could not have won at trial. Wayne Mansulla, a Washington, D.C. attorney who represents the “opt-out” veterans expressed shock at the ruling. “ We conducted hundreds of depositions and gathered thousands of documents on the issue of the government’s knowledge of the hazards, yet the court mangled the facts and disposed of the issue in a few paragraphs. The case cries out for review by a court willing to actually read the re- cord from below.” Mansulla and other attorneys plan to petition the U.S. Sup- reme Court for review. One “downwinder, ” Mrs. Gloria Gre- gorson of Cedar City, UT, who suc- cumbed recently to cancer may have of- fered the most telling prophecy; “They’re JusTwaTting for us todieonV then they can bury the problem along with us.” □ Continued from page 10 Knox and Fatigue Press at Ft. Hood, local papers mushroomed around the country: Shakedown at Ft. Dix, Attitude Check at Camp Pendleton, Fed-Up at Ft. Lewis, All Hands Abandon Ship at Newport Naval Station, The Last Harass at Ft. Gordon, Left Face at Ft. McClellan, Rage at Camp Lejeune, The Star-Spangled Bummer at Wright-Patterson AFB . . . the list could stretch to over a hundred papers. The GI newspapers varied from local gripes to a basic anti-brass, anti-war, anti - racist consciousness. Some lasted for only a few issues, folding when the guys putting it out were transferred or discharged. But most of those connected with organizing projects came out consistently, if sporadi- cally, through the war years. Generally the papers were produced by small groups of GIs. It was illegal to distri- bute on base, but nonetheless countless copies were smuggled on and placed around the barracks, stuck in bathrooms, casually left in lounge areas. A large number were distributed in base towns and were well received. As one Marine organizer put it, “ Guys ask if the paper is ‘underground.’ If we reply yes, they take it. Guys identify with a rebellion if not with the revolution.” Relations between GIs and civilians on the projects took many forms. On the one hand, civilians performed some essential functions, such as keeping the places run- ning, while guys were on base and gener- ally provided contacts and resources from the world of the movement. These con- tributions were valued by GIs. But civi- lians didn’t share the same experiences or the same risks, and this at times led to conflict. The problem was not simply a civil- ian-GI dichotomy. One organizer at Ft. Lewis wrote, “Often, the problem was that the middle-upper class people would dominate the meetings and directions, with the lower class people doing most of the work.” Despite these internal struggles, the high degree of transience among GIs, and the pervasive power of the brass, the over- riding intensity of the war ensured that the work continued. Since the high level of risk limited what actions could be underta- ken, newspapers were the most realistic form of political expression. Attempts were made, however, to find other forms of struggle. Sick call strikes were or- ganized at Ft. Knox early in the war and later at Ft. Lewis. Soldiers cannot legally go on strike, but military regulations sup- posedly guarantee them the right to go on sick call. Such efforts had to be publicized well in advance, and the brass resorted to intimidation, harassment, and outright re- fusal of the sick call privilege to crush these strikes. The attempt at Ft. Knox re- sulted in failure, though at Ft. Lewis it had a moderate impact, with up to 30% of the base trying to go on sick call. Attempts were also made to hold meet- ings on base. In October of 1969 such a meeting was held at a service club at Ft. Lewis, but due to agent infiltration, it was raided by the MPs who picked up thirty- five GIs. Though formal charges were never brought, almost all of them were either transferred, shipped to Vietnam, discharged, or busted on other charges. Attempts were also made to mobilize GIs for off-base actions such as civilian peace demonstrations. These were at times successful. Hundreds of GIs participated in Ft. Hood and Ft. Bragg and in cities like San Francisco and in December of 1969 almost 1,000 marines participated in an anti-war march in Oceanside, California. The military tried to stifle this expression VET-GATE Continued from page 4 responsible for oversight of the VA, have demonstrated little appetite for probing any deeper. Only after intense pressure was exerted by some legislators, did the veterans affairs committee!) in the House and Senate conduct a brief hearing into the growing scandal in March 1987. At this hearing, the NARS lawyers re- leased another bombshell. Despite its per- sistent claims that the files of atomic vete- rans couldn’t be separated from 35 million others, the VA has had the ability since 1982 to track all radiation claims pending before it. It also established another com- puter program in 1984 which allows the agency to immediately identify all such claims which have been resolved. Despite this steadily accumulating evidence of sloth and deceit at the highest levels of the government’s second largest agency, sev- eral committee members spent their time attacking the NARS representatives for conducting a “ vendetta” against the VA. The response of the “big three” vete- of resistance, largely by placing whole units or entire bases on restriction. Throughout this period, the GIs who became involved tended to be white work- ing class Vietnam vets. Racism clearly played a role in preventing solidarity bet- ween white and third world GIs. □ (to be continued next issue— Ed.) rans organizations to illegal practices which affect millions of their members has been depressingly predictable. For exam- ple, the national commander of the Dis- abled American Veterans editorialized in the March, 1987 issue of its magazine, “Current efforts being undertaken in the courts hold out only a false hope for atomic veterans seeking a resolution to their long suffering. ” Only one national veterans group, the Vietnam Veterans of America, has ex- pressed any public support for NARS’ valiant efforts. The others, apparently, fear that they have too much to lose. It remains to be seen what the long-term effects of the lawsuit will be. It’s possible that the Supreme Court will again reject NARS’ effort to allow veterans the right to counsel of their choice. The current ar- rangement of power is undergirded to two other well-entrenched rules; a statute which bars any judicial review of VA deci- sions, no matter how egregious, and the Feres decision wherein the Supreme Court barred any lawsuits for active duty injury— leaving all claimants to the tender mercies of, you guessed it, the V.A.