The Official Voice of Vietnam Veterans of America, Inc. ®
An organization chartered by the U.S. Congress
March/April 2003
SHAD UPDATE:
VVA Sues Accountable Federal OfficialsBY WILLIAM TRIPLETT There's an old saying: If you don't like the system, change it. That's often followed by another old saying about how some things are easier said than done. Veterans have long complained of the slow, laborious, even labyrinthine process the Department of Veterans Affairs requires them to undergo in order to file a claim. The process is worse if access to classified military records is necessary to adjudicate a claim. And if those records involve military operations that are still secret or potentially embarrassing - or pose a huge financial liability to the government - you may have an easier time, per another old saying, getting blood from a stone.
Vietnam Veterans of America, 21 veterans of a still largely secret Department of Defense program, several senators, and a number of members of the House want to change the system - at least enough to eliminate the government's tendency to protect itself at the expense of veterans.
In the 1960s, the Pentagon carried out highly classified seaborne biological and chemical warfare tests that involved an estimated 5,000 to 10,000 U.S. Navy, Marine Corps, and Air Force personnel. The tests were code-named SHAD, an acronym for Shipboard Hazard and Decontamination. The objective was to determine the vulnerability of American warships to chemical and biological warfare (CBW). SHAD veterans claim they were never informed of the testing, which exposed them to various CBW agents and toxins as well as decontaminants later discovered to be carcinogenic. Many veterans have developed - and some have died - from illnesses associated with exposure to those substances.
When SHAD veterans learned in the last decade that they had been part of a secret CBW test program, they tried to get information about it from the Pentagon to facilitate filing VA medical claims. After first denying that SHAD had ever taken place, then later admitting it had, Pentagon officials have been slow in providing information about the various tests. The officials maintain that the records - anywhere from 30 to 40 years old - are hard to find and must first be reviewed before declassification, all of which takes time, they say.
The veterans counter that the Pentagon has long known that the substances used were dangerous and should have been alerting veterans, through the VA, about what they had been exposed to. VVA and 21 SHAD veterans last fall filed a unique class-action suit they hope will change the way the Pentagon and the VA handle claims involving classified records - which, the plaintiffs believe, also will have implications for the way the two agencies handle all claims.
At the same time, Rep. Mike Thompson (D-Calif.) and Sen. Bill Nelson (D-Fla.) are planning to introduce legislation that would force the Department of Defense to submit to Congress a thorough review of all CBW testing the military has done. The legislation also would require the VA to notify veterans of their participation and to specify what substances they may have been exposed to - something the lawsuit alleges the VA has deliberately failed to do properly.
"The bill has quite a bit of bipartisan support," said Mandy Kenney, deputy legislative director for Thompson. "`It's a pretty pure cause: Folks who served their country deserve to have appropriate information on their medical history. We're not asking DoD to release national security secrets, just provide accurate information on what they were exposed to so they can get help if necessary."
Instead of suing the U.S. government at large, as is typically done, the class-action suit names specific employees, either current or former, of the Department of Defense and the VA. "That is very important in terms of legal strategy," said Douglas Rosinski, an attorney with Shaw Pittman, the Washington, D.C., law firm representing VVA and the 21 SHAD veterans. "This is explicitly not another lawsuit against the government. For one reason, lawsuits against the government are tough and the government is a big target. But more importantly, the `government' didn't decide to do project SHAD. The 'government' didn't decide not to tell anybody about it. These decisions were made by specific people. We've spent a lot of time picking out people we know did the things we say they did."
Pentagon officials named as defendants include former Secretary of Defense Robert S. McNamara, along with John C. Doesburg, Bernard D. Rostker, and Michael Kilpatrick. The VA officials named are Susan H. Mather, Neil S. Otchin, Robert J. Epley, and Thomas J. Pamperin. The suit alleges that these people orchestrated or contributed to a cover-up - characterized as "intentional, willful, wanton, and in bad faith" in the complaint - of SHAD and its possible adverse health effects by denying veterans access to information about the tests. "These are people who signed or stamped the letters and denials," Rosinski said.
The complaint holds that by not providing timely information to the veterans - the military knew as early as the mid-1980s that at least one substance used was emphatically not harmless, as originally believed - and by continuing to deny veterans access to the full information, the defendants violated the plaintiffs' constitutional right to go to court and file claims. It is by specifically naming defendants that the suit hopes to change things.
"You don't take on the whole bureaucracy," Rosinski said. "You don't take on city hall. You go in and kick out the bums who are in city hall. What we're saying is, 'Hey, you can't just sit there behind your desk and stamp "deny, deny, deny," because it makes your processing rate look good so that you can get promoted. You think you're doing better by protecting military secrets, and they may be secrets, but dammit, you know it means 5,000 veterans not getting their benefits because you "know better." We want you to think about what you've done, because you're going down for it.' "
Department of Justice attorneys, who will represent all defendants in the suit, recently responded to the complaint by filing a motion to dismiss the case. This is a standard tactic in lawsuits involving the government, which usually argues it is immune from such cases. Rosinski predicts that whatever the decision by the U.S. District Court for the District of Columbia, which is presiding over the case, it will be appealed. "I'm sure they will appeal if they lose" on the motion, he said, "and I know we will appeal if they win." The appeals process could take more than a year to resolve, he said. "We'll be lucky if the case actually gets started by next summer."
Then again, as another old saying goes, better late than never.
Shipboard Hazard and Decontamination (SHAD) was a small part of Project 112, which drew together all DoD chemical warfare agent testing, bio warfare agent tests, and all other nonconventional weaponry testing. This project involved the highest level of the U.S. government. All tests down to the minute details of who, what, when, how, and which agent would be involved was requested over the signature of Secretary Robert McNamara. The final decision was made by the president after significant input by the national security adviser and the president's science adviser. Results of each and every test came right back to the same officials. SHAD is the first set of tests for which we have been able to obtain documentation.
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