George Mason University Antonin Scalia Law School

Agent Orange: Then and Now

By Fall 2017 M-VETS Student-Advisor Lindsey Kimmitt

Agent Orange as a War Tactic

Chemical defoliants were first used as a war tactic in the 1950s, when British planes sprayed Malayan jungles during the Malayan Emergency, stripping trees bare, depriving communist guerrillas of cover, and destroying crops that insurgents relied on for food.[1]  A decade later, then-South Vietnam President Ngo Dihn Diem asked the United States to conduct aerial herbicide spraying to aid in their long struggle against Viet Cong and North Vietnamese fighters.[2]  Citing the use of herbicides by the British during the Malayan Emergency as precedent, then-President John F. Kennedy authorized the start of the U.S. Air Force’s herbicide program in Vietnam.[3]

During the Vietnam War, United States military planes sprayed approximately 20 million gallons of herbicides in Vietnam and surrounding areas.[4]  Code-named Ranch Hand, this operation reached its peak from 1967 to 1969.[5]  Of all the chemical defoliants—referred to as “rainbow herbicides”[6]—used during the Vietnam War, Agent Orange, which contained the deadly chemical dioxin, was the most widely used.[7]  “It was available in slightly different mixtures, sometimes referred to as Agent Orange I, Agent Orange II, Agent Orange III, and ‘Super Orange.’”[8]  Agent Orange and its variations accounted for almost two-thirds of the chemical defoliants used during the entire Vietnam War.[9]

Initial Harms from Direct Exposure

As with all the herbicides, the primary purpose of the chemical mixtures was to cause plants to lose their leaves.[10]  Dioxin—the super harmful component of Agent Orange—was not intentionally added to Agent Orange; its existence in Agent Orange was an unintended byproduct produced during the manufacturing process.[11]  The specific dioxin found in Agent orange—2,3,7,8-tetrachlorodibenzo-p-dioxin, or TCDD—had immediate and long-term effects.[12]  Among the many recognized consequences of Agent Orange use and exposure, the health effects of veterans who were directly exposed to the chemical during their time in service is particularly noteworthy.

While in Vietnam, the U.S. government communicated to servicemembers that the chemicals were harmless—telling them not to worry about any potential health consequences.[13]  However, when the veterans returned home they began to experience ill health, reporting a range of conditions: rashes and other skin irritations; psychological symptoms; type 2 diabetes; cancers such as Hodgkin’s disease, prostate cancer and leukemia; and many other afflictions.[14]  Further, many veterans reported instances of their wives having miscarriages or children born with birth defects.[15]  The increase and volume of these unfortunate events led veterans to suspect that the direct exposure to the chemical defoliants was to blame.[16]

Legislative Action to Correct for the Harms

In 1977, veterans began to file disability claims with the Department of Veterans Affairs (VA) for conditions they attributed to the Agent Orange exposure; however, the policy was that unless they could prove the condition began either when they were in service or within one year of their discharge, their claims were denied.[17]  A major victory came for veterans around 1984, when seven large chemical companies that manufactured Agent Orange settled a class action suit filed on behalf of 2.4 million veterans exposed to the herbicide, agreeing to pay $180 million in compensation to veterans or their next of kin.[18]  Another victory for veterans followed shortly thereafter.  In 1991, then-President George H. W. Bush signed into law the Agent Orange Act.[19]  This law “accepted a presumed link to illnesses like non-Hodgkin’s lymphoma, soft tissue sarcoma, and chloracne.”[20]  This legislation stated that veterans diagnosed with those aforementioned ailments were declared eligible for medical and monetary benefits; the presumed link removing any additional requirement for the veteran to have to prove they were exposed to the chemical defoliants.[21]  In other words, if the veteran “set foot” in Vietnam during a certain time-period, the law presumes the veteran was exposed to the defoliant.[22]

Since returning from war, Vietnam veterans have suspected that exposure to Agent Orange harmed their children.[23]  While the government recognizes and compensates for the adverse health effects of veterans exposed to Agent Orange, they have been far less willing to tie the indirect effects of exposure to conditions suffered by veterans’ after born children; even though there is much support that dioxin is a highly persistent chemical compound that lasts for many years in the body due to accumulating in fatty tissue.[24]

The Lingering Issues

Over the past few decades, the VA medical staff has physically examined more than 668,000 Vietnam veterans possible exposed to Agent Orange, documenting health conditions and also asking questions about their children’s birth defects, before and after the war.[25]  Sadly, this data showed that a veteran’s odds of having a child born with birth defects were over one-third higher after Agent Orange exposure than those who were not exposed.[26]  Even when presented with this all this evidence, the VA’s position on compensating offspring of those exposed to Agent Orange is quite narrow.  Essentially, there are three criteria that must all be met in order for an affected child to receive benefits or compensation: the child must (1) have been conceived after the date on which the veteran first entered the Republic of Vietnam; (2) have a covered birth defect not otherwise resulting from a familial disorder, a birth-related injury, or a fetal or neonatal infirmity with well-established causes; and (3) be a biological child of a woman Vietnam Veteran who served in Vietnam during the period beginning February 28, 1961 and ending May 7, 1975.[27]

Although there is currently a large portion of this affected community that is not being served, there is a strong movement to persuade the government that these children need and deserve just compensation for the injuries likely caused by their parent’s military service to the United States. On a promising note, “after repeated recommendations by federal scientific advisory panels, Congress passed a bill that requires the VA to pay for an analysis of all research done thus far on the descendants of veterans with toxic exposure.”[28]  Additionally, the bill requires the VA “to determine the feasibility of future research and, if such studies are possible, to pursue them.”[29]  Until such a time when the government broadens the conditions that are covered by the affected children of Vietnam veterans, groups advocating for compensating individuals suffering health problems linked to Agent Orange encourages the children of veterans to file claims with the VA for benefits related to Agent Orange even though the department currently doesn’t cover most defects.[30]

[1] See Clyde Haberman, Agent Orange’s Long Legacy, for Vietnam and Veterans, N.Y. Times, May 11, 2014,

[2] See id.; William A. Buckingham Jr., Operation Ranch Hand: The Air Force and Herbicides in Southeast Asia, 1961-1971 11-12 (CreateSpace Independent Publishing Platform, 1982).

[3] See Peter Hough, The Global Politics of Pesticides: Forging Consensus from Conflicting Interests 61 (Earthscan LLC, 1998);

[4] See Haberman, supra note 1.

[5] See Haberman, supra note 1.

[6] Rainbow Herbicides, (last visited January 11, 2018).

[7] See Agent Orange,, 2001,

[8] Id.

[9] See id.

[10] See id.

[11] See id.

[12] See id.

[13] See Kenneth J. Hermann; Killing Me Softly: How Agent Orange Murders Vietnam’s Children, Political Affairs, April 25, 2006.

[14] See Agent Orange,, 2001,; Agent Orange, (last visited January 11, 2018).

[15] Agent Orange, (last visited January 11, 2018).

[16] Id.

[17] Agent Orange, (last visited January 11, 2018).

[18] See Agent Orange,, 2001,

[19] See Charles Ornstein, Agent Orange Act Was Supposed to Help Vietnam Veterans – But May Still Don’t Qualify, ProPublica, July 17, 2015,

[20] Haberman, supra note 1.

[21] See Haberman, supra note 1.

[22] See Ornstein, supra note 19.

[23] See Charles Ornstein, Hannah Fresques, and Mike Hixenbaugh, The Children of Agent Orange, ProPublica, December 16, 2016,

[24] See Agent Orange,, 2001,; Agent Orange, (last visited January 11, 2018).

[25] See Charles Ornstein, Mike Hixenbaugh, and Hannah Fresques, Agent Orange Curse: Vietnam Vets Can Pass Birth Defects to Their Kids, New Data Suggests, The Virginia-Pilot, December 16, 2016,

[26] See Ornstein, supra note 23.

[27] 38 U.S.C. § 1812 (2000); see Birth Defects in Children of Women Vietnam Veterans,, (last visited January 5, 2018).

[28] Ornstein, supra note 23.

[29] Ornstein, supra note 23.

[30] See Ornstein, supra note 23.