A FEDERAL magistrate judge in San Francisco ordered the CIA to produce specific records and testimony about the human experiments the government allegedly conducted on thousands of soldiers from 1950 through 1975.
Three veterans groups and six individual veterans sued the CIA and other government agencies, claiming they used about 7,800 soldiers as human guinea pigs to research biological, chemical and psychological weapons.
The experiments, many of which took place at Edgewood Arsenal and Fort Detrick in Maryland, allegedly exposed test subjects to chemicals, drugs and electronic implants. Though the soldiers volunteered, they never gave informed consent, because the government didn't fully disclose the risks, the veterans claimed. They were also required to sign an oath of secrecy, according to the complaint.
The veterans filed three sets of document requests to find out who was tested, what substances they were given, and how it affected them. Between October and April, the government produced about 15,000 pages of heavily redacted records, most of which related to the named plaintiffs only.
The CIA argued that much of the information requested was protected under the Privacy Act and the Health Insurance Portability and Accountability Act.
U.S. Magistrate Judge James Larson acknowledged that some of the requests were too broad and ordered the veterans to be more specific and to reduce the total number of requests.
For example, Larson said the plaintiffs' definition of "test program" is "overbroad," as it not only named experimental programs like "Bluebird," "Artichoke" and "MKUltra," but also included "any other program of experimentation involving human testing of any substance, including but not limited to 'MATERIAL TESTING PROGRAM EA 1729.'"
He ordered the veterans to provide a list of specific test programs and test substances.
But once the plaintiffs narrow their requests, Larson said, they are entitled to most of the information. Each government agency must respond individually to each request, he said, and if an agency denies any request, it must explain -- in sufficient detail -- why the records are purportedly privileged.
The CIA has already claimed that some documents are protected under the state-secrets privilege, but Larson said the agency needs to be more specific. He asked for a "supplemental declaration explaining with heightened specificity" why the documents are considered state secrets. Because these documents might contain sensitive information, the judge allowed the CIA to file the declaration under seal.
Larson rejected the government's bid to limit the scope of discovery, saying doing so "removes the remaining hurdle" for the CIA to respond to the veterans' sets of requests.
"Defendants should respond in earnest to Plaintiffs' discovery requests, regardless of any ongoing or prior searches, investigations, or litigation," Larson wrote. He said the government can't limit disclosure to information about the six individual plaintiffs.
The CIA insisted discovery was unwarranted in its case, because it never funded or conducted drug research on military personnel.
Larson wasn't convinced.
"[T]his court rejects the conclusion that the CIA necessarily lacks a nexus to Plaintiffs' claims, and orders the CIA to respond in earnest" to the veterans' requests, "particularly because defendants have presented evidence that would appear to cast doubt on that conclusion," he wrote.
The government also tried to avoid deposition, claiming too much time had passed since the alleged experiments, and any witnesses familiar with the projects likely no longer work for the government. The CIA further argued, unsuccessfully, that the court should stay discovery until the Department of Defense completes its investigation of the experiments.
Larson reminded the CIA that it "cannot use the DoD investigation as an excuse to avoid discovery responsibilities."
He then addressed which topics are fair game for deposition, saying the government must produce witnesses to testify about the following: communication between the VA and test subjects on their health care claims; a 1963 CIA Inspector General report on an experiment called MKUltra, and the basis for each redaction on that report; the scope and conduct of document searches; the doses and effects of substances administered to test subjects; any contract or research proposals concerning the experiments; a confidential Army memo about the use of volunteers in research; all government-led human experiments from 1975 to date, but only those that involve specific drugs; and whether the government secretly administered MKUltra materials to "the patrons of prostitutes" in safe houses in New York and San Francisco, as the veterans claimed.
Judge Larson ruled for the CIA on other issues, however, saying the agency's not required to testify about test subjects who withdrew their consent or refused to participate; devices allegedly implanted into certain test subjects; the alleged use of patients at VA hospitals as guinea pigs in chemical and biological weapons experiments; or the drug research studies conducted by Dr. Paul Hoch, who was purportedly funded by the government and caused the death of a patient named Harold Blauer.
Though Larson declined to sanction the government, as the veterans sought, he warned that he would impose sanctions for any "future unjustifiable discovery recalcitrance."
Named plaintiffs are the Vietnam Veterans of America, Swords to Plowshare, the Veterans Rights Organization, Bruce Price, Franklin D. Rochelle, Larry Meirow, Eric P. Muth, David C. Dufrane and Wray C. Forrest.
Courthouse News Service