VVA Sues Accountable Federal Officials
BY 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.
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.
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
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
"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
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."
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.
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
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.'
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
Then again, as
another old saying goes, better late than never.
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