I'm from the Government and I'm Here to Kill You Read online

  Sedan’s fallout cloud drifted over a group of students on a field trip led by Professor Robert C. Pendleton, director of the University of Utah’s Department of Radiological Health. The group was measuring background radiation, and the readings increased a hundredfold as the fallout cloud swept past.36 Pendleton got his students to safety and then began blowing the whistle, pointing particularly to the hazards posed by I-131. Utah health officials responded by dumping thousands of gallons of milk. The Kennedy Administration reacted to the public uproar by insisting there was no cause for concern, then it forbade agencies to release any fallout data without White House approval.37

  The term “Atomic Veterans” is used to describe servicemen exposed to radiation in the line of duty; a majority of the 250,000 Atomic Veterans were exposed at the Nevada testing grounds or the tests in the Pacific. In Nevada, infantry were placed as close as half a mile from the detonations and sometimes marched through ground zero shortly after the detonation; in the Pacific, ships were posted as near as three miles from the ground zero and often drenched in radioactive water from underwater blasts.38 A medical study showed that a sample of 3,027 soldiers exposed in one of the Nevada tests had a 300 percent elevated risk for leukemia.39

  Professor Pendleton did not know that a controversy regarding I-131 levels was already brewing inside the AEC. In the late 1950s, geneticist Edward B. Lewis raised the question of the dangers of fallout and testified before Congress’s Joint Committee on Atomic Energy.40 The Joint Committee asked the AEC to report on the subject. AEC assigned the report to Harold Knapp of its Fallout Studies Branch. Knapp’s conclusion was that the thyroids of infants in southern Utah had been exposed to as much as four hundred radiation absorbed doses (rads) at a time when the maximum safe level for infants was considered half a rad per year. Nor was the risk limited to southern Utah. As far off as St. Louis, infants were irradiated at five times the supposedly safe level.41

  The Knapp findings had the potential to be explosive. Gordon Dunning circulated the report with a memo attached that noted: “The Commission has been telling the world for years that it has been conducting its operations safely…. [W]hat reaction can we expect from the press and public?”

  Knapp, with more candor than tact, replied, “I expect somebody might want to hang Gordon Dunning from a sour apple tree.”42 A team of AEC scientists was formed to meet with Knapp and convince him to withdraw his study; instead they supported him. In the end, the AEC agreed to publish his paper. But when Dr. Knapp saw the published version, he realized that it had been trimmed to remove all his I-131 findings.43

  Then, in 1965, the U.S. Public Health Service commissioned a study of cancer in the downwind areas of Utah and Nevada, conducted by Dr. Edward Weiss. Weiss looked at leukemia, which can be caused by fallout’s radioactive strontium. He found that in the two Utah counties most affected by fallout there had been twenty-eight cases of leukemia, when statistics would have predicted only nineteen.44 The study immediately generated worries—and at very high levels. Shortly after receiving a draft, a White House science advisor asked the Public Health Service “what would be the federal government’s liability” for any injury caused. A joint AEC-PHS-White House meeting was held the next day, with three lawyers in attendance.45

  Shortly thereafter, Weiss’s study was deep-sixed; officially, it remained unfinished and unpublished until 1979, when the Washington Post discovered and released its findings. Its January 8, 1979, story revealed:

  Federal health officials had evidence as early as 1965 that excessive leukemia deaths were occurring among Utah residents exposed to radioactive fallout from U.S. atomic bomb tests, according to documents obtained by The Washington Post.

  But the U.S. Public Health Service apparently ignored the findings of one of its own investigators and withheld his study, which cited the leukemia victims’ “extended residence” in the fallout area.

  The long-forgotten and unpublished study, dated Sept. 14, 1965, was requested and obtained under the Freedom of Information Act.

  Officials of the Department of Health, Education and Welfare—now involved in a major controversy over whether A-bomb tests caused leukemia and cancer—were described as “horrified” to learn from the Post request that such an unpublished study existed.46

  How the informational dam was broken is a tale in itself. Gordon Eliot White was the Washington, D.C., bureau chief for Deseret News, Salt Lake City’s largest newspaper. During a slow news period in June 1977, word came of Sgt. Paul Cooper, an “Atomic Veteran” who was dying of leukemia and blamed his exposure to fallout at the Nevada Test Site.47

  White acquired fallout-level charts and compared them to figures on leukemia deaths he obtained from the National Cancer Institute. He found leukemia rates were exceptionally high in the parts of Utah most affected by fallout; one hard-hit county had nearly twice the national rate.48 He thought the matter was worth a story.

  White’s story came to the attention of Dr. Joseph L. Lyon, director of the Utah Cancer Registry. Dr. Lyon had thought the idea of a fallout-cancer connection was “nutty” and conducted his own research, expecting to refute the connection. Rather than comparing leukemia rates in counties with and without fallout, he would take counties affected by fallout and determine whether leukemia rates had increased during atomic testing and declined after it ended. Where White had compared leukemia rates in a geographical sense, Dr. Lyon would compare them over time.

  To his surprise, Dr. Lyon found that the data confirmed the connection between atomic testing fallout and leukemia. Published in the prestigious New England Journal of Medicine, his results indicated that downwinder children born during the atomic tests had a 244 percent greater risk of dying from leukemia than children born before or after the tests.49 Lyon had unknowingly replicated the results of the still-suppressed Weiss study.

  The genie was out of the bottle. The downwinders had an explanation for the remarkable rates of cancer in their communities. They began to organize.

  THE DOWNWINDERS TURN TO COURT

  Before long, the downwinders had linked up with a legal team headed by the late Dale Haralson of Tucson, Arizona, an experienced personal injury trial attorney, and Stewart Udall, former Secretary of the Interior and lobbyist. Haralson had a personal stake in the matter: he would try the case while recovering from radiation treatment for throat cancer. Ultimately, 1,200 persons, injured downwinders or survivors of those who had died, joined in the case.

  The suits focused not on the testing itself, but on the government’s failure to warn. There was little sense in challenging the decision to test; if the discretionary function exception covered anything, it would certainly cover a presidential decision to initiate testing of weapons essential to the national defense. But failure to warn was a different sort of issue; it was hard to see what policy decisions were implicated in not warning people there was dangerous radiation headed their way. Indeed, the government had not only failed to warn, it had led the downwinders to believe that the fallout was harmless, promised that it would warn them if levels were likely to become dangerous, and actively suppressed any suggestion that the downwinders were in danger.

  Lawsuits involving 1,200 plaintiffs were unmanageable, so it was decided that twenty-four plaintiffs would serve as a test or “bellwether” case to establish general legal doctrines. The lead plaintiff, Irene Allen, had twice been widowed by cancer. Other plaintiffs included the families of four children who had died from leukemia while in their early teens, and adult plaintiffs who had suffered from malignant melanoma or cancers of the colon, breast, bladder, kidneys, lung, and thyroid. The plaintiffs were almost all rural and Mormon, did not smoke or drink liquor, ate food fresh from their farms, fed their children milk from their own cows, and, in short, led lives that any health-food advocate would envy—except their food had been coated, and their children’s milk laced, with radioactive fallout.

  The initial hope was for a settlement. Stewart Udall had served in the Cabinet
s of Presidents John F. Kennedy and Lyndon Baines Johnson and retained powerful Democratic connections. The lawsuits were begun under the Jimmy Carter Administration, and Carter had been pressing for a comprehensive nuclear testing treaty. But the White House apparently did not want to get involved, so Udall dealt with the U.S. Department of Justice. USDOJ’s OPs were attorneys rather than politicians, so they thought of settlement in terms of “what’s the risk of our losing, and for how much?” Udall was a politician with a law degree, and approached matters as a lobbyist would, trying to use his connections and convince the government that settling was the fair and politically beneficial approach. As a result, the settlement negotiations quickly went nowhere. “He seemed to have the idea that if he knocked on the right door, had gone high enough, and had created enough adverse publicity, the legal and factual issues would just go away,” the head of USDOJ’s Torts Branch later recollected.50

  The trial consumed thirteen weeks. The downwinders’ case was strengthened by several remarkable discoveries. Some residents had been given “film badges” that measured the exposure of their wearer to radiation. The government had kept the measurements secret. When the government was forced to release the data, the reason for the secrecy became obvious. Plaintiff Willard Lewis Bowler was one of those issued a badge. He later died of metastatic melanoma, an especially deadly skin cancer. The government records showed his skin had been exposed to thirty-one thousand millirems of radioactivity, the equivalent of three to four thousand chest x-rays.51

  Frank Butrico, the Public Health Service radiation monitor who had reported the fallout in St. George, Utah, testified that a government report he had supposedly authored was a forgery. The report, found in the AEC files, had him claiming that all children were indoors when the fallout cloud passed over, when actually he had reported school children playing outdoors.52 The forged report added, in words Butrico testified he never would have used, that “the effectiveness of the safety program was amazing.”53 Butrico testified that he was shocked to see “that [his] name is over a report that contains statements unknown to [him].”54 Almost any private attorney who discovered that his client had forged an exhibit would have, at the very least, moved to withdraw from the case, but the USDOJ lawyers were unfazed.

  Judge Jenkins took seventeen months to rule, and then he released a thorough and lengthy decision. Federal trial court rulings typically run about ten pages printed in the Federal Supplement, but Judge Jenkins’s ruling in Allen v. United States55 ran a staggering 225 pages.

  The critical question: Was the failure to warn absolutely protected by the Federal Tort Claims Act exception for “discretionary functions”? Judge Jenkins ruled that it was not. First, in his view the discretionary function exception covered policy decisions. The decision whether to test atomic bombs was protected, but the failure to warn people so they could take precautions was operational negligence, not policy making. “At no time has the defendant [the government] ever asserted that as a matter of conscious choice it deliberately adopted a policy of not warning, not measuring and not educating the populace at hazard,” he ruled.56 It was a refinement of the district court ruling in the Texas City case. There, the judge had argued that only high-level policy decision making was protected, and his decision had been overturned. Judge Jenkins’s ruling was narrower. Policy making at any level would be protected; what was not protected was a failure to consider safety, to make safety policy. Judge Jenkins found in favor of ten plaintiffs; the others, he concluded, might have gotten cancer by sheer chance.

  The government was not pleased; even ten winning plaintiffs were too many. It took an appeal to the Tenth Circuit, which reversed Judge Jenkins’s ruling. The Circuit’s ruling hinged on the recently decided United States v. Varig Airlines,57 where the Federal Aviation Administration had negligently certified as safe a passenger plane that caught fire and crashed, killing 123 people. The Supreme Court had ruled that the discretionary function exception protected supervisors and inspectors who had decided to skip inspecting the airplane for fire hazards: “[I]t is the nature of the conduct, rather than the status of the actor, that governs whether the discretionary function exception applies in a given case.”58 As the Court saw it, the FAA OPs might have made “certain calculated risks, but those risks were accepted for the advancement of a governmental purpose.”59 The agency simply did not have enough resources to completely inspect every aircraft, and the low-level decisions to inspect one plane or another were protected as policy making.

  In short, whether Americans died by the bad judgment of a Cabinet official or negligence of a “grunt” in the federal machine, the government was protected against lawsuits.

  With the Supreme Court ruling in hand, the Tenth Circuit had no difficulty disposing of Judge Jenkins’s ruling in favor of the ten downwinders.60 Yes, government employees had known that the downwinders would be drenched in radioactive fallout. Yes, they had negligently failed to warn the downwinders of the danger; in fact, they led them to believe that fallout was nothing to be concerned about. Yes, people had died as a result. But no, the government was not liable for the result. Killing people and lying about it to the citizens and to the court was a “discretionary function” of federal employees.

  Contrast the government response to its tests irradiating people other than American citizens. In addition to the Nevada Test Site, there was a test site in the Marshall Islands. In March 1954, a blast there proved much more powerful than expected, and a Japanese fishing vessel, the Daigo Fukuryu Maru, was covered in fallout. One of its crewmen died as an indirect result,61 and a considerable amount of tuna was dumped due to fears of radiation. The United States agreed to pay $2 million ($18 million in 2017 dollars) as compensation.62

  CHAPTER 3

  TUSKEGEE, ALABAMA: DYING “FOR THE GLORY OF SCIENCE”

  For the most part, doctors and civil servants simply did their job. Some merely followed orders, others worked for the glory of science.

  —Dr. John Heller, Director, Division of Venereal Disease, U.S. Public Health Services (USPHS), 19721

  [I]f the colored population becomes aware that accepting free hospital care means a post-mortem [an autopsy], every darkey will leave Macon county and it will hurt Dibble’s hospital. This can be prevented, however, if the doctors of Macon County are brought into our confidence and requested to be very careful not to let the objective of our plan be known.

  —Dr. O. C. Wenger, U.S. Public Health Services, 19332

  SYPHILIS IS A STRANGE DISEASE. UNLIKE most diseases, its European outbreak can be fixed precisely in time—Naples, the winter of 1494–95. Scientists still debate whether it was brought back by Columbus’s sailors, was a deadly mutation of an existing disease, or was brought by Columbus’s crews and then mutated into a deadly disease.

  Also unusual is that scientists can track the evolution of syphilis and show how it keyed upon “survival of the weakest.” Syphilis arrived in a horrifying form—“its pustules often covered the body from the head to the knees, caused flesh to fall from people’s faces, and led to death within a few months.”3 The face was often the first target, with the sufferer’s nose and oral cavity caving in as the underlying tissues were destroyed.

  Hideous disfigurement and swift death might do for some diseases, but they were a lousy business plan for a disease spread by sexual contact. The more aggressive strains of the germ died with their hosts; strains that killed slowly, or let their host survive until something else felled him, were the ones that continued to spread. In 1575, some eighty years after the disease’s origin, the noted surgeon Ambroise Pare could write:

  Generally, the lues venerea [venereal plague] which now reigneth is far more mild and easy to be cured than that which was in former times, when it first began among us; besides, each day it seemeth to be milder than other. Astrologers think that the cause hereof to be this: for that the celestial influences that first brought in this disease, in success of time by the contrary revolutions of the stars,
lose their power and become weak; so that it may seem somewhat likely that, that at length after some few years it may wholly cease.4

  Pare is likely overstating matters: the disease was still fearsome enough that his patients were willing to undergo his cure, which involved cauterizing the sores with the equivalent of small branding irons (patients squeamish about having red-hot irons applied to their genitals were treated with acid or molten sulfur applied to the same body part).5

  Fast forward three hundred years to the nineteenth century. By now the spirochete that causes the disease has reached an accommodation with its human host, a dance of death in three stages. In the primary stage, a small, usually painless, sore develops at the site of the infection. After it vanishes, a secondary stage begins, characterized by a rash and flu-like symptoms. The bacteria—a spirochete—is loose in the blood. Then those symptoms, too, go away.

  The disease then seemingly becomes dormant. In most cases, the dormancy lasts for a lifetime, and the infected person may never realize that his body is harboring the spirochete and passing the disease on to other victims through sexual contact. Whatever damage the bacteria do is not enough to cause symptoms.

  In the other cases, after ten or twenty years of supposed dormancy the disease’s impact becomes apparent. About 10 percent of all syphilis cases are of the mildest form, where the victim develops sores and painful tumorlike pockets of inflammation that can affect skin, bones, and sometimes internal organs. They are often disfiguring but rarely life threatening.