Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Tanner Bowen
Tanner Bowen is a sophomore at the University of Pennsylvania studying business.
War often elicits unthinkable acts of atrocity against other human beings. Throughout human history, and specifically starting with World War II, the horrors of war have become even more monstrous because of the growing number of civilian casualties as a result of warfare. This reality of war often begs the question: “How can we ensure the safety of our civilian population amidst current developments in chemical and biological war tactics?”
One such response was taken by the United States government through subjecting human participants to various chemicals.
Operating at Edgewood Arsenal near the Chesapeake Bay in Maryland, the U.S. Army Chemical Corps conducted a set of classified tests on human subjects during the height of the Cold War, between from 1948 to 1975. The goal of these tests was to examine how each experiment participant would react to the different tactics of biological and chemical warfare. Some subjects were administered mustard gas, PCP, LSD, sarin, and numerous other chemicals. 
The participants would voluntarily sign up to be test subjects in these studies. After numerous years of experimentation, the U.S. Army developed policies governing these participants. In 1962, AR 70-25 was adopted, which prescribed policies relating to the volunteers. The requirements of the regulation stipulated that the participant be told the nature of the experiment to which the person was to be subjected, as well as be fully informed about any health effects that might arise due to these experiments.
The Army ceased its experiments in 1975 after a mounting public concern, and in 1988, it amended AR 70-25, stating that the Surgeon General has the right to order medical follow-up after these experiments took place, as well as authorizing all volunteers “necessary medical care for injury or disease that is a proximate result of their participation in research.”
In a recent case accepted by the Ninth Circuit Court of Appeals, the Court heard the complaints of numerous Army veterans who were Edgewood Arsenal test subjects during the height of human experimentation in the 20th century. The plaintiffs in this case sued the Department of Defense, the CIA, and the VA, arguing that the Army is required, on an ongoing basis, to notify further notify test subjects about updated health consequences of the chemical testing they were subjected to. Additionally, the Army is expected to provide medical care for conditions caused by their participation in the research experiments.
In Vietnam Veterans of America v. Central Intelligence Agency, the Ninth Circuit heard a cross appeal from the district court, which ruled that the Army was required to continuously update former test subjects about potential health complications related to their experiments. However, the Army was not required to provide medical care because most test subjects were veterans who were treated under the authority of the VA.
The Ninth Circuit upheld and reversed the District Court’s judgement. The Court ruled that the Army was required to continuously update patients in terms of new health effects since prior agency-related policies had explicitly said so. Additionally, a court can compel a governmental agency to act if the agency action is “...unlawfully withheld or unreasonably delayed.”  Up to this point, the Army had developed a policy in the 1980s that mandated a duty to warn/inform.
Secondly, on the mandatory medical care issue, the Ninth Circuit found this issue to be particularly important since the Army does not provide medical care to individuals who are not retirees of the military, medical retirees, or reservists/active duty military. In the 1988 update to AR 70-25, the U.S. Army included in that “volunteers are authorized necessary medical care for injury or disease that is a proximate result of their participation in the research.” In fact, the contentious point was not that the Army shouldn’t provide medical care to volunteers, but only to volunteers of potential future experiments. In fact, if the Army had its way, it would not provide medical care to the thousands of surviving participants who were subjected to experiments prior to 1988. The Ninth Circuit ruled that there is nothing within the text of the statute that would indicate that medical care ends whenever the experiment formally ends.
But what stands a larger and more prominent issue here is the blatant ethical conundrum involving whether an agency that subjected volunteers to painful experiments should be responsible for the medical care and information distributed to those participants in relation to the research conducted. At the time, the Army seemed to develop policies with the former and future test subjects in mind. But, upon further examination and litigation, we end up seeing an agency that is trying to shirk its responsibilities that it unequivocally took on at an earlier date. Indeed, this case just highlights that despite the numerous legal corporate and private-sector ethics courses that one might take, the government and its respective agencies are not immune from these same issues.
 “Secrets of Edgewood.” The New Yorker. 2012. Accessed February 20, 2016.
 5 U.S. Code § 706
Photo Credit: Flickr User Steve Montana Photography
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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