Agent Orange and the Alien Tort Statute

Arguments will begin today in U.S. District Court for the Eastern District of New York in Brooklyn over a motion to dismiss an Alien Tort Statute lawsuit by Vietnamese nationals seeking damages from manufacturers of Agent Orange, an herbicide used by the U.S. during the Vietnam War. This remarkable suit is brought as a class action on behalf of every Vietnamese national who was exposed to Agent Orange. According to the complaint, this class consists of “not less than two to four million persons.” No dollar amount in damages is specified, probably any amount wouldn’t fit on a page of their brief.

The plaintiffs seem to face serious obstacles (as explained in the defendants here and here)(1) the 10-year statute of limitations for Alien Tort Statute claims would appear to bar this suit; (2) it seems highly doubtful that spraying herbicides was a violation of international law at the time of the Vietnam War (apparently, this has become a matter of dispute between two well known international law figures, George P. Fletcher and W. Michael Reisman); (3) any finding that such spraying was a violation of international law may create separation of powers problems because the President plainly authorized the spraying as part of his war powers; (4) it is also highly doubtful that defendant manufacturers are liable under international law for the actions of the U.S. government.

On the other hand, the plaintiffs wisely filed their lawsuit in the court of Judge Jack B. Weinstein who is a respected federal judge, but let’s face it, is hero of the plaintiffs’ bar. So even though I think the defendants appear to have the stronger arguments, I put the plaintiffs’ chances of success (in district court) at better than 50 percent.