Memory day

Joseph E. Fahey is a judge in New York state and an adjunct professor of law at Syracuse University.

Two years ago, I stood in a rural upstate New York cemetery, next to the casket of my oldest and closest friend. A military honor guard was present, a bugler played “Taps,” and a young soldier presented a United States flag to my friend’s wife “ ... with the thanks of a grateful nation.”

My friend was 58 years old. His parents were alive, both approaching 90. His grandparents had both lived well into their 90s. With that family history, I fully expected that he would outlive me. Instead, he was killed by a cancer caused by his exposure to the toxic defoliant Agent Orange during his service in Vietnam almost 40 years before. It made me mad.

My friend had served in the Army in Vietnam from 1968 to 1969. Every day was like Russian roulette with the Viet Cong or the North Vietnamese regulars. Yet at the end of that year, he came home alive, limbs intact, with no mental or emotional scars. My friend was immensely proud of his service in Vietnam. It may have been the defining experience of his life. Many times during the almost four decades following his service, whenever he was faced with adversity, he would comment, “If I survived Vietnam, I can survive anything.”


And yet he didn’t survive Vietnam. Thirty years after his service, after he had attended college, established a career, married and started a family, he discovered that the war had followed him home. Doctors removed a large soft tissue tumor from his abdomen. Luckily, there was no sign that it had spread anywhere else. For the moment, it seemed like he had dodged another bullet. But four years later the cancer was back.

In time, my friend’s battle to stay alive became full time. He retired, obtained Social Security disability benefits and was declared fully disabled by the Department of Veterans Affairs. He fought hard and managed to hang on until his daughter graduated from high school. He lost his fight a few weeks later, on July 6, 2006.

Although he believed that his wife and daughter would be secure with the disability income from the Social Security Administration and benefits from Veterans Affairs, he was half right. Social Security disability payments stopped for both of them. They will resume for his widow when she turns 62, more than a decade away. They ceased for his daughter when she turned 18. His VA benefits were also suspended -- apparently a bureaucratic snafu -- although they were reinstated after some intervention from our local congressman.

There is no argument my friend’s cancers were the result of Agent Orange. During the first decade after his return from Vietnam, the state of New Jersey conducted a study of veterans exposed to Agent Orange. The researchers looked at where the Army had used the defoliant and at soldiers in units that were deployed in those areas. My friend was one of them.

He was also a member of the class of veterans that sued Dow Chemical Co., the manufacturer of Agent Orange. That lawsuit was settled when Dow agreed to pay millions of dollars into a fund to compensate those veterans who developed cancer from their exposure to Agent Orange. Although the settlement appeared reasonable at the time, the amount proved to be inadequate; the fund was exhausted by the time my friend became ill. A second and third lawsuit was dismissed by the judge who had presided over the first action. However, the findings made by the judge in his decision reveal a lot.

In his decision dismissing the latest lawsuit, the judge found that the chemical companies that had manufactured Agent Orange were entitled to the benefit of the “government contractor” defense. That is, they were merely carrying out the Defense Department’s directions in producing this toxic substance. In support of that conclusion, he found that Agent Orange was produced from a recipe of chemicals provided by the Pentagon and manufactured and used on government orders and under its supervision.


The judge described how the Department of Defense knew, during the 1950s and early ‘60s, almost a decade before my friend was sent to Vietnam, that Agent Orange contained highly toxic dioxin but nevertheless insisted that it be manufactured with extremely high doses of undiluted herbicides containing the substance. Indeed, the judge observed that there was never a time that the chemical companies possessed as much knowledge as the government concerning Agent Orange’s toxicity. He further described how the government ordered all warnings of Agent Orange’s toxicity removed from the barrels it was delivered in.

This last April 21, I accompanied my friend’s family to Washington for Memory Day, sponsored by the Vietnam Veterans Memorial Fund to remember veterans who died from injuries or conditions resulting from their service in Vietnam. A member of each veteran’s family read his or her name, when and with what unit he or she served, and any other thoughts they wished to express. That day, about 75 veterans were honored. Among other stories and memories, widows, children and siblings recounted the anguish of dealing with bureaucratic indifference, denials and neglect at the hands of the government while their hero lay dying. It made me mad all over again.

Americans are an uncommonly generous people. After Sept.11, 2001, a fund was established to compensate the survivors of that terrorist attack. The same action was taken after the massacre at Virginia Tech in 2007. Those who lost loved ones in those two tragedies richly deserve that assistance; surely those who lost their loved ones in the service of their country, because of exposure to a poison used by their government, deserve the same. The Department of Veterans Affairs, like the judge who dismissed the later claims, would undoubtedly say that those who can demonstrate that their exposure to Agent Orange caused them to develop cancer should receive disability benefits, but this is a meager reward for the veterans who will invariably die at the hands of their government.

It is long past time for these veterans to be treated fairly. If they are to be denied the right to seek recompense in the courts, then the other two branches of government owe it to them to fashion another remedy, such as a compensation fund.

If our representatives in Congress and in the White House are not willing to take that action, then perhaps they ought to skip the meaningless platitude -- the one about thanks and a grateful nation -- that is uttered when the widow is presented the flag that draped her husband’s coffin.