Military Lawsuits

Arms Control Today July/August 2007

Iran-Iraq Chemical Warfare Aftershocks Persist

By Alex Bollfrass

Almost two decades after the end of the Iran-Iraq War, the conflict's chemical weapons legacy lingers in the streets of Ramadi and in courtrooms throughout the world. Iranian, Kurdish, and U.S. victims of Iraq's chemical weapons are seeking judicial redress. At the same time, the Iraqi special tribunal has sentenced three key perpetrators to death.

Revealing that the left-over dangers from eight years of that war have not ended, UN inspectors charged with verifying and monitoring Iraq's disarmament warned in their latest report of the continuing threat that munitions and expertise left behind by the war still pose even as insurgents mount new types of chemical attacks.

Death Sentence for "Chemical Ali"

Ali Hassan al-Majid, Saddam Hussein's cousin and top aide, was pronounced guilty on June 24 of ordering the use of chemical weapons during the dictator's anti-Kurdish operation, a decision that earned him the nickname Chemical Ali. He was sentenced to death by hanging.

The so-called Anfal campaign lasted from late February to early September 1988. The prosecution alleged that the campaign destroyed approximately 2,000 villages and killed 180,000 people. The trial's defendants claimed that it was a counter-insurgency operation and the Kurds were supporting the Iranian enemy. According to the Supreme Iraqi Criminal Tribunal's verdict, the Anfal campaign constituted genocide, a war crime, and a crime against humanity.

During the Anfal campaign, Ali Hassan served as secretary-general of the Ba'ath Party's northern bureau. He later oversaw the Kuwaiti occupation and was minister of the interior prior to the 2003 U.S. invasion. Two other high-ranking officials were also given the death penalty and another two received life sentences for their role in the attacks.

Complaints Collect in Dutch Courts

Iraq"e;s chemical warfare program relied on foreign suppliers, one of whom recently had his 15-year prison sentence extended another two years. The businessman Frans van Anraat had been convicted in December 2005 of complicity in war crimes for shipping more than 1,100 tons of thiodiglycol from a U.S. company to Iraq. The chemical was crucial in the production of the mustard gas used by the Ba'athists in their attacks on Kurds in 1987 and 1988, which included the Anfal campaign.

A Dutch appeals court increased Van Anraat's sentence on May 9, arguing that he had been "driven by naked greed," but it found the evidence insufficient to convict him of complicity in genocide. The appeals court also ruled that 15 Kurdish plaintiffs would not receive the "680 in damages that the lower court had awarded them.

These victims, however, are being represented in a separate upcoming civil case. The state prosecutor also is considering an appeal of the case to the Netherlands' high court in hopes of establishing van Anraat' complicity in genocide.

The Iranian government will be filing its own legal claims in the matter. Iranian news sources reported that Deputy Foreign Minister Mehdi Mostafavi announced May 12 in Tehran that his government would be launching suits against Iraq"e;s Western chemical suppliers and that it had created a dossier on the subject.

Iranian diplomats contacted by Arms Control Today did not respond to requests for details. It appears that the first suit will be brought in the Netherlands, in connection with the van Anraat case.

During the war, Iran developed its own chemical weapons program and supplier network in response to Iraqi attacks. One Israeli supplier, Nahum Manbar, is on the verge of release from prison in that country. He was sentenced to 16 years in 1998 but is likely to be released soon, pending the state attorney's request for Israeli intelligence to vet if Manbar's release would pose a threat. Two of Iran's suppliers have also served jail sentences in the United States.

U.S. Veterans' Suit Wilting

The Iranian lawsuits are starting just as U.S. Persian Gulf War veterans' quest for compensation is trickling to a halt. The U.S. military blew up Iraqi ammunition depots containing chemical weapons agents and may have inadvertently exposed its own soldiers to toxic fallout. The class action lawsuit targeting alleged Western chemical suppliers to Hussein's government, originally filed in 1994, has failed to gain traction in U.S. and European courts.

The class action complaint comprises some 3,000 plaintiffs, but its list of defendants has dwindled from 46 businesses to two companies. The lead attorney in the case, Gary Pitts, told Arms Control Today June 15 that he has been unable to establish proper jurisdiction over the mostly European companies in the United States, despite their U.S. subsidiaries.

As an American, Pitts has been unable to file in the national courts of the major suppliers: Germany, the Netherlands, and the United Kingdom. Some of the biggest suppliers to Iraq were German, but Germany's judiciary rules do not permit consolidated lawsuits. This means that each plaintiff would need to file separate suits against each company.

Pitts said the "heavy players" had escaped punishment. One of the two remaining defendants, Alcolac Inc., was previously convicted of violating U.S. export laws in 1989 for supplying van Anraat with the thiodiglycol that he sold to the Iraqis. Kellogg, the other company, built an ammonia facility in Iraq but was not listed in the detailed records of its chemical weapons program that Iraq gave to the United Nations.

Another setback for the case has been the disappearance of a key witness, Alaa al-Saeed. He headed the Iraqi chemical weapons program at al-Muthanna, the largest chemical weapons facility under the Ba'athist government, and had agreed to testify in the case.

On his way to a new Iraqi government post in the Science Ministry, al-Saeed was kidnapped in March and is still believed to be in captivity. A representative of the U.S. embassy in Iraq confirmed to Arms Control Today June 17 that its Office of Hostage Affairs had an open file on al-Saeed but declined to provide details.

UNMOVIC Issues Warning of Lingering Expertise, Materials

In addition to occupying judges with questions of guilt and compensation, the war's consequences still pose threats to the lives of people in Iraq. The UN Monitoring, Verification and Inspection Commission (UNMOVIC) recently warned about the danger of an escalation in chemical attacks in Iraq. In their May 29 report to the Security Council, the commissioners noted that at least 10 insurgent attacks have killed dozens and injured hundreds of individuals. It observes that the situation is aggravated by the presence of a past program's materials and expertise.

These attacks involved the dispersion of widely available chlorine gas with conventional explosives. The report, addressing the period between the beginning of March and the end of May, alerts the Security Council that hundreds of individuals in Iraq have experience in producing and delivering chemical weapons. The supply of these scientists' expertise and insurgents' demands for deadly weaponry presents a dangerous combination.

Another risk factor mentioned in the report is the existence of procurement networks that can acquire chemical precursors for weapons. UNMOVIC says that despite Security Council resolutions mandating that any dual-use chemicals imported into Iraq must be reported to it, UNMOVIC has received no such information since the U.S. invasion of March 2003. Consequently, weapons-usable chemicals can be shipped into Iraq with impunity.

Dual-use-chemical production equipment exists in Iraq, providing the infrastructure for small-scale production of chemical weapons. UNMOVIC points out that those interested in using chemical weapons could improvise primitive delivery systems to reach their targets.

The report also noted the possible existence of pre-1991 chemical weapons. Mustard gas-filled artillery shells may be particularly dangerous because the agent is unlikely to have deteriorated in potency. The remaining nerve-agent warheads are less of a direct threat because of probable degradation, but they may still pose a health hazard, according to the Iraq inspection agency. The agency was disbanded June 29 before it could take action on removing these threats. Legal consequences from the Iran-Iraq War, on the other hand, will be rippling through the courts for the indefinite future.

Source:Arms Control Today July/August 2007,submitted and extracted by Denise Nichols 7 July 2007

NATIONWIDE CLASS ACTION AGAINST VA --
DEPARTMENT OF VETERANS AFFAIRS SUED FOR
GROSS MISTREATMENT OF DISABLED VETS

July 23, 2007

SAN FRANCISCO, Calif. The Department of Veterans Affairs (VA) is flagrantly violating the constitutional and statutory rights of veterans returning from Iraq and Afghanistan, according to a national class action lawsuit filed today in federal court. The lawsuit is the first of its kind in the country.

We Need Your Help
PLEASE DONATE TO DRA(Disability Rights Advocates)

The complaint, filed in the United States District Court for the Northern District of California, seeks to prohibit the VA from continuing a number of improper practices in handling claims for health care and disability benefits.

Most disabled veterans cannot receive medical treatment without a disability claim approval. However, the VA now has a backlog of over 600,000 claims, and a decision on a claim can take up to twelve to fifteen years. Some pending claims go back to the Vietnam era. In the meantime, many disabled veterans give up in despair or frustration, fall into drug or alcohol dependency, or commit suicide. Even after claims have been approved, veterans face ongoing problems receiving care. Because the demand for medical care and treatment by the VA has risen dramatically since the U.S. became involved in the current conflicts in Iraq and Afghanistan, the VA has long waiting lists and, in some cases, no appropriate treatment for disabled veterans is available.

The suit claims that numerous VA practices violate the constitutional and statutory rights of veterans with Post Traumatic Stress Disorder (PTSD) by denying veterans adequate procedural safeguards in the VA benefits process, access to the judicial process, mandated medical care, and VA benefits as a result of their PTSD. In addition to seeking a declaration from the court that these practices violate the constitutional and statutory rights of the Plaintiffs, the lawsuit seeks an injunction preventing the defendants from continuing certain policies and procedures. No damages are being sought. Plaintiffs in the case include two non-profit organizations, Veterans for Common Sense and Veterans United for Truth, on behalf of all veterans who are seeking or receiving health care or disability benefits from the VA. Plaintiffs are represented by the California-based public interest law firm Disability Rights Advocates (DRA).

"The motto, taken from Abraham Lincoln's second inaugural address, is to care for him who shall have borne the battle and for his widow and orphan," said Melissa Kasnitz of DRA. "The VA is not living up to its motto or its obligation to care for our disabled veterans. Instead it is abandoning our veterans, shamefully following a path that will lead to broken lives and staggering social costs."

Among those veterans suffering the most are Iraq and Afghanistan troops returning home with mental disabilities. As many as 15-50% of returning troops have PTSD, according to the complaint. These troops are being deprived of critical mental health services, especially in the early phases of the illness when identification and treatment are crucial. Left untreated, severe PTSD can lead to substance abuse, depression and suicide. Veterans with PTSD and other psychiatric disabilities may also be the most unprepared to face the bureaucratic battles necessary to secure the benefits to which they are entitled.

The suit alleges that the VA has not only shortchanged the disabled veterans for whom they are supposed to provide care, but it has also consistently presented misleading statistics to the American public. Specifically, the complaint says that the VA has falsely understated the length of time it takes to decide a veteran's claims and the true cost of caring for disabled veterans. "Our Iraq and Afghanistan war veterans want immediate access to high-quality VA healthcare and benefits when they return home," says Paul Sullivan, Executive Director for Veterans for Common Sense. "After the terrible failures following the Vietnam War and Gulf War, never again shall our government turn its back on our veterans when they return home from war. We must do everything we can to prevent more veterans from falling in the cracks that lead to broken families, unemployment, alcoholism, drug abuse, crime and homelessness. When one of our combat veterans walks into a VA hospital, then they must see a doctor that day. When a war veteran needs disability benefits because he or she can't work, then they must get a disability check in a few weeks. Since the Iraq and Afghanistan wars began, the VA has betrayed our veterans. Instead of hiring more doctors and claims processors, the VA instituted new policies that block veterans' access to prompt mental healthcare. America should be outraged. While we are reluctant to file suit against the VA, it is the VA's anti-veteran policies that leave us no other option than to fight for what our veterans earned after fighting on the front lines in Iraq and Afghanistan."

"This lawsuit is unprecedented," says attorney Sid Wolinsky with DRA. "It is the first class action lawsuit to directly challenge the VA's unconscionable backlog of claims, the endless waiting time that disabled veterans face in receiving appropriate mental health care from the VA, and the adequacy of VA care for PTSD."

PTSD is a psychiatric disorder that can develop in a person who witnesses, or is confronted with, a traumatic event. PTSD is the most prevalent mental disorder arising from combat. According to the complaint, "more than any previous war, the wars in Iraq and Afghanistan are likely to produce a high percentage of troops suffering from PTSD," due to the widespread use of improvised explosive devises, multiple rotations, the ambiguity of fighting combatants dressed as civilians, and the use of National Guard members and Reservists.

Case Information

Case Name: VCS, et al. v. Nicholson, et al.

Court: United States District Court, Northern District of California

Date filed: July 23, 2007

Case Type: Class Action lawsuit for declaratory and injunctive relief only (no damages)

Claims: First and Fifth Amendments to the United States Constitution; 38 U.S.C.S 1710(e)(1)(D); and Section 504 of the Rehabilitation Act of 1973, 29 U.S.C.S 794

Complete Case Information Document - Read/Download pdf.

More PTSD information available on this website under Gulf War Illness- Post Traumatic Stress Disorder

Veterans exposed to atomic radiation lose court ruling
By Michael Doyle McClatchy Newspapers

(This was emailed to us so that we would post it to inform you. Posted on Fri, Aug. 25, 2006)

McClatchy Newspapers

WASHINGTON - Radiation exposure took Alice Broudy's husband a generation ago. This week, a court ruling sliced away at her bid for redress. In a quiet ruling that nonetheless resonates nationwide, a federal appellate court rejected efforts by Broudy and others seeking claims on behalf of "atomic veterans." The same court simultaneously rejected bids by other veterans exposed to biological and chemical agents. Taken together, the dual rulings by the D.C. Circuit Court of Appeals will likely impede many veterans hoping for compensation. At the very least, it will complicate future claims. "It's a significant ruling," Washington-based attorney David Cynamon, who represented veterans in both cases, said Friday. "Unfortunately, it's a significantly bad ruling." A Department of Veterans Affairs spokesman couldn't be reached to comment.

Broudy, a resident of California's Orange County, has long been seeking full compensation for the death of her husband, a Marine major who was repeatedly exposed to radiation. She has company. George Woodward, who lives north of Wichita, Kan., in the town of Miltonvale, was exposed to radiation during a 1955 test blast. Kathy Jacobovitch, a resident of Vashon Island, Wash., lost her father through exposure to contaminated ships in Puget Sound. Ernest Kirchmann, a 62-year-old Navy veteran who lives south of Minneapolis in tiny West Concord, who's filed a separate lawsuit, was exposed during a 1964 nuclear submarine accident. "It isn't just my personal case," Broudy said Friday. "It's the entire veterans community. It makes me so angry."

Broudy married her husband, Charles, in 1948. Three years earlier, he'd walked the war-poisoned streets of Nagasaki. Within a decade, he was facing radiation in the Nevada desert. He died of lymphatic cancer in 1977. Though she has since received partial compensation, Broudy has been confronting the federal government for more. She has now lost three separate lawsuits. "This closes the door," Cynamon said of the latest appellate court ruling, which was issued Wednesday. "It will make it very difficult, if not impossible, for individuals who are victimized by government cover-ups."

All told, an estimated 220,000 U.S. soldiers were allegedly exposed to radiation in the 1940s and 1950s. Some, such as William Yurdyga of Sacramento, Calif., claimed in an earlier lawsuit that they were exposed following the Hiroshima or Nagasaki atomic blast. Others claimed exposure during Cold War testing.

The three-member appellate panel wasn't ruling on whether the atomic veterans deserve compensation. A 1988 law provides that. To succeed, though, veterans must prove they were present at a radioactive site and that they contracted a radiation-related illness or were exposed to a cancer-causing radiation level.

Required military test records can be elusive. A 1973 fire destroyed many veterans' records, and veterans consider alternative "dose reconstruction" estimates inaccurate. "You send a Freedom of Information Act request," Broudy said, "and you wait and you wait and you wait, and then maybe you get a piece of it, or you get nothing at all because they say it's classified." The latest lawsuit sought to force Pentagon officials to release all relevant records. In the opinion written by Appellate Judge Thomas Griffith, appointed by President Bush last year, the court panel agreed unanimously that atomic veterans couldn't compel a massive release of all the Pentagon's relevant documents. Instead, individual veterans must file individual claims.

If the Pentagon is "covering up records of medical tests that describe the amount of radiation to which these veterans were exposed, FOIA (the Freedom of Information Act) provides a potential remedy," Griffith wrote. A new study by Melinda Podgor for the Elder Law Journal found that 18,275 atomic veterans had filed for compensation as of October 2004. Only 1,875 claims were granted.

On a separate but related legal track, veterans such as Columbia, S.C., resident John Goricki and Homestead, Fla., resident Richard B. Holmes were pursuing claims following exposure during the Shipboard Hazard and Defense project of the 1950s and 1960s. Project SHAD allegedly exposed up to 10,000 soldiers and sailors to biological and chemical agents. Like the atomic veterans, SHAD survivors claim that the Pentagon clings to secret information. Like the atomic veterans, they couldn't persuade the appellate court to order the release of all relevant documents. The veterans "can still seek, through FOIA, the documents they believe they need to pursue their benefits claims," the appellate panel ruled.