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[106 Senate Hearings]
[From the U.S. Government Printing Office via GPO Access]
[DOCID: f:65766.wais]
S. Hrg. 106-585
FORMER U.S. WORLD WAR II POW'S: A STRUGGLE FOR JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATE ONE HUNDRED SIXTH CONGRESS
SECOND SESSION
on
DETERMINING WHETHER THOSE WHO PROFITED FROM THE FORCED LABOR OF
AMERICAN WORLD WAR II PRISONERS OF WAR ONCE HELD AND FORCED INTO
LABOR FOR PRIVATE JAPANESE COMPANIES HAVE AN OBLIGATION TO REMEDY
THEIR WRONGS AND WHETHER THE UNITED STATES CAN HELP FACILITATE AN
APPROPRIATE RESOLUTION
__________
JUNE 28, 2000
__________
Serial No. J-106-94
__________
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
(ii)
C O N T E N T S ----------
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........ 1
Feinstein, Hon. Dianne, U.S. Senator from the State of California 5
Grassley, Hon. Charles E., U.S. Senator from the State of Iowa... 22
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont... 23
CHRONOLOGICAL LIST OF WITNESSES
Statement of Hon. Jeff Bingaman, U.S. Senator from the State
of New Mexico.................................................. 3
Panel consisting of David W. Ogden, Acting Assistant Attorney
General, Civil Division, U.S. Department of Justice,
Washington, DC; and Ronald J. Bettauer, Deputy Legal Adviser,
Department of State, Washington, DC............................ 6
Panel consisting of Harold W. Poole, former World War II prisoner
of war in Japan, Salt Lake City, UT; Frank Bigelow, former
World War II prisoner of war in Japan, Brooksville, FL; Maurice
Mazer, former World War II prisoner of war in Japan, Boca
Raton, FL; Lester I. Tenney, former World War II prisoner of
war in Japan, LaJolla, CA; Edward Jackfert, former World War II
prisoner of war in Japan, and commander, American Defenders of
Bataan and Corregidor, Inc., Wellsburg, WV; and Harold G.
Maier, professor of law, Vanderbilt University, Nashville, TN.. 28
ALPHABETICAL LIST AND MATERIALS SUBMITTED
Bettauer, Ronald J.:
Testimony.................................................... 10
Prepared statement........................................... 14
Bigelow, Frank: Testimony........................................ 31
Bingaman, Hon. Jeff: Testimony................................... 3
Jackfert, Edward: Testimony...................................... 35
Maier, Harold G.:
Testimony.................................................... 38
Prepared statement........................................... 39
Mazer, Maurice: Testimony........................................ 32
Ogden, David W.:
Testimony.................................................... 6
Prepared statement........................................... 8
Poole, Harold W.:
Testimony.................................................... 28
Prepared statement........................................... 29
Tenney, Lester I.: Testimony..................................... 33 APPENDIX
Questions and AnswersResponses to questions of Senator Hatch from:
The Department of Justice.................................... 47
Ronald J. Bettauer........................................... 53 Additional Submissions for the Record
Text of e-mail message to Senator Hatch from Rabbi Abraham Cooper
of the Simon Wiesenthal Center, Berlin, Germany, dated June 26,
2000........................................................... 55
Prepared statements of:
Bruce R. Harder, director, National Security and Foreign
Affairs, Veterans of Foreign Wars of the United States..... 55
Linda G. Holmes.............................................. 56
Chalmers Johnson............................................. 59
Prime Minister Tomiichi Murayama, dated Aug. 15, 1995........ 61
Michael D. Ramsey............................................ 61
Paul W. Reuter............................................... 65
John M. Rogers............................................... 67
Joseph A. Violante........................................... 72
Letters to:
Senator Hatch from Edward Jackfert, past national commander,
American Defenders of Bataan & Corregidor, Inc., dated June
20, 2000................................................... 73
Stuart Eizenstat, Deputy Secretary of the U.S. Treasury, from
Michael Engelberg, M.D., the American Center for Civil
Justice, dated June 10, 2000............................... 74
Hiroaki Yano, president, Mitsubishi International Corp., from
Michael Engelberg, M.D., the American Center for Civil
Justice, dated June 13, 2000............................... 74
Hiroshi Noda, Kawasaki Heavy Industries U.S.A.), Inc., from
Michael Engelberg, M.D., the American Center for Civil
Justice, dated June 13, 2000............................... 75
Senator Hatch from Michael M. Honda, California State
Legislature, dated June 30, 2000........................... 75
Senator Hatch from Gilbert M. Hair, executive director, the
Center for Internee Rights, Inc., dated June 22, 2000...... 76
Chart: Information on U.S. POW's held in World War II.... 78
Senator Hatch from John E. Julian, first selectman, Office of
Selectman, State of Connecticut............................ 79
Senator Hatch from John F. Sommers, Jr., executive director,
the American Legion, dated June 27, 2000................... 79
Senator Hatch from Charles L. Taylor, AMVETS national
commander, dated June 26, 2000............................. 80
Senator Hatch from Bob Weygand, Member of Congress, House of
Representatives, dated June 23, 2000....................... 80
Senator Hatch from Frank G. Wickersham, III, national
legislative director, Military Order of the Purple Heart,
dated June 23, 2000........................................ 81
FORMER U.S. WORLD WAR II POW'S:
A STRUGGLE FOR JUSTICE
----------
WEDNESDAY, JUNE 28, 2000
U.S. Senate,
Committee on the Judiciary,
Washington, DC.
The committee met, pursuant to notice, at 10:33 a.m., in
room SD-226, Dirksen Senate Office Building, Hon. Orrin G.
Hatch (chairman of the committee) presiding.
Also present: Senators Grassley, Sessions, and Feinstein. OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM
THE STATE OF UTAH The Chairman. I am pleased today to welcome a distinguished
group of witnesses to enlighten the committee on a very
important issue, namely the struggle for compensation of
American POW's once held and forced into labor by and for
private Japanese companies.
I apologize for starting this hearing half an hour too
late, but we had two votes right in a row and that takes
precedence over everything else. So I apologize to you.
On April 9, 1942, Allied forces in the Philippines
surrendered Bataan to the Japanese. Ten to twelve thousand
American soldiers were forced to march some 60 miles in
broiling heat, in a deadly trek known as the Bataan Death
March. Following a lengthy internment under horrific
conditions, thousands of POW's were shipped to Japan in the
holds of freighters known as hell ships. Once in Japan, many of
these POW's were forced into slave labor for private Japanese
steel mills and other private companies until the end of the
war. During the war, over 27,465 Americans were captured and
interned by the Japanese. Only 16,000 of them made it home.
Let me say at the outset that this is not a dispute with
the Japanese people and these are not claims against the
Japanese Government. Rather, this is a hearing, the purpose of
which is to determine whether those who profited from the slave
labor of American POW's have an obligation to remedy their
wrongs, and whether the United States can help to facilitate a
resolution.
Let me also say to the veterans who are here today on
behalf of this committee, the Congress, and the American
people, we thank you. As has often been expressed, POW's
experience a wide range of emotions concerning their captivity.
I am here to tell you today that you are all heroes. You are
heroes for your bravery on the battlefields and, of course, in
the prison camps themselves, heroes for the innumerable
displays of compassion and love for your fellow men, heroes for
your perseverance through circumstances most of us can barely
imagine. You are living testaments to the indomitable human
spirit that is the fabric of this great Nation, the United
States of America, and everyone here living in freedom owes you
a tremendous debt of gratitude.
Unfortunately, global, political, and security needs of the
time often overshadowed your legitimate claims for justice, and
you were once again asked to sacrifice for your country.
Following the end of the war, for example, our Government
allegedly instructed many of the POW's held by Japan not to
discuss their experiences and treatment. Some were even asked
to sign nondisclosure agreements. Consequently, many Americans
remain unaware of the atrocities that took place and the
suffering our POW's endured.
Through the years, various efforts have been made to offer
some compensation for POW's held in Japan. Under the War Claims
Act, our Government has made meager payments of $1.00 a day for
missed meals and $1.50 per day for lost wages. Clearly, in the
eyes of most, this is inadequate.
Following the passage of a California statute extending the
statute of limitations for World War II claims until 2010, and
the recent litigation involving victims of the Holocaust, a new
effort is underway by the former POW's in Japan to seek
compensation from the private companies which profited from
their slave labor.
One issue for the committee to examine is whether the POW's
held in Japan are receiving an appropriate level of advocacy
from the U.S. Government. In the Holocaust litigation, the
United States played a facilitating role in the discussions
between German companies and their victims. The Justice
Department also declined to file a Statement of Interest in the
litigation, even when requested by the court. The efforts of
the administration were entirely appropriate and the settlement
was an invaluable step toward movement forward from the past.
Here, in contrast, there has been no effort by our
Government, through the State Department or otherwise, to open
a dialog between the Japanese and the former POW's. Moreover,
in response to a request from the court, the Justice Department
did, in fact, file a Statement of Interest which was very
damaging to the claims of the POW's, stating in essence that
their claims were barred by the 1951 Peace Treaty with Japan
and the War Claims Act.
This contrasting treatment raises the legitimate questions
of whether this administration has a consistent policy
governing whether and how to weigh in during these World War
II-era cases. What, if any, are the criteria used to decide
whether or not to intervene? Have those criteria been fairly
applied in this case?
From a moral perspective, the claims of those forced into
labor by private German companies and private Japanese
companies appear to be of similar merit. Yet, they have spurred
different responses from the administration. Why? There may be
legitimate reasons for the differences, but we need to ask the
questions.
The Statement of Interest filed by the Justice Department
in the lawsuits against Japanese companies also raises a number
of questions because of its silence concerning a number of
important treaty provisions and concepts of international law.
The committee has a duty to ensure the thoroughness of the work
the Justice Department submits to the court, and we will
explore some of those issues here today.
Our first panel of witnesses will address these questions
to the administration. We are pleased to have representatives
from the Departments of Justice and State. We are then
fortunate to have the benefit of hearing from a number of POW's
themselves who can tell us of their experiences and their
struggles for recognition and compensation from the private
companies that held them.
In the end, I hope we can elevate the discussion concerning
where we go from here. I am not sure agreement on this issue
will be easy. What can the United States of America, the
country these men sacrificed for, do to resolve these matters
in a fair and appropriate manner?
Here in the Senate, we are doing what we can. With the help
of Senator Feinstein, we have moved through the Judiciary
Committee Senate bill 1902, the Japanese Records Disclosure
Act, which would set up a commission to declassify thousands of
Japanese Imperial Army records held by the U.S. Government,
after appropriate screening for sensitive national security
information and the like.
The Senate is also doing what it can to fulfill our
Government's responsibility to these men by including a
provision in the DOD authorization bill which would pay a
$20,000 gratuity to POW's from Bataan and Corregidor who were
forced into labor. Such payment would be in addition to any
other payments these veterans may receive under law, and thus
would not compromise any of the claims asserted in the
litigation against the Japanese companies.
Ultimately, I do not know where we will come out on the
precise meaning of the treaty. Regardless of how the technical
legal issues are resolved, which the courts will determine in
light of the moral imperative and interests of simple fairness,
we must ask ourselves can Congress do more? Can the executive
branch do more? I am open to ideas and hope that this hearing
begins a dialog to discuss what can be done in light of all the
moral, legal, national security, and foreign policy interests
which are at play.
We are delighted to have one of our colleagues here today
from New Mexico, Senator Bingaman, and we will turn to him for
his testimony at this time. However, I may interrupt at any
time if the ranking member comes and cares to make a statement
himself.
So, Senator Bingaman, we will take your statement at this
time. I understand that the Honorable Max Cleland may be here
shortly. If he comes, we will certainly take his statement
along with yours.STATEMENT OF HON. JEFF BINGAMAN, A U.S. SENATOR FROM THE STATE
OF NEW MEXICO Senator Bingaman. Thank you very much, Mr. Chairman. I will
just take a very small amount of time here from the committee
to speak specifically about S. 1806, which is a bill I
introduced and you referred to. It is now included in the
defense authorization bill.
We introduced this last October, with Senators Coverdell
and Domenici and Hollings and Cleland as cosponsors with me on
the bill. It would provide an honorarium of $20,000 to
qualified veterans or their surviving spouses, and by
``qualified'' I mean those who were made to perform slave labor
to support the Japanese war effort.
I introduced the bill for a variety of reasons. You went
through many of those in your opening statement. Clearly, these
veterans were not adequately recognized and compensated for
their contributions. Part of the settlement between the United
States and the Government of Japan provided for compensation to
American prisoners of war in 1952. That settlement, however,
never compensated American prisoners who were made to perform
slave labor while they were in captivity.
We sure are well aware, many of our veterans, many
survivors of the Bataan and Corregidor episodes were shipped on
so-called death ships to Japan and worked in shipyards, mines,
and factories to support the Japanese war effort. Some of those
ships unfortunately were actually sunk by our own forces, who
were unaware that they had human cargo of Americans on board.
This came to my attention, frankly, because a good friend
of mine, Nick Cintas, who is a former prisoner of war, a Bataan
veteran who lives in my town of Silver City, called it to my
attention a year or so ago. He pointed out then that he didn't
think our Government was doing what it should. In particular,
he pointed to the fact that the Government of Canada had
recently approved a honorarium to Canadian prisoners of war
from Hong Kong who were enslaved by the Japanese, and that
award did not prejudice in any way other attempts to obtain
compensation. Instead, it was an expression of support and
appreciation by the Canadian Government. We then put together
this legislation that I have referred to, with the clear view
that we should do at least as well by our veterans, our Bataan
and Corregidor veterans, as the Canadian Government had done.
Clearly, the heroism of these individuals is well
documented. There is no question that this is a worthwhile
effort to compensate them for this slave labor that was
performed. I wanted to particularly just call the committee's
attention to this legislation as we continue to work on the
defense authorization bill on the Senate floor, and solicit
active support of any additional Senators who are anxious to
support this.
I think it would mean a great deal to those who are
surviving, and there are fewer who are surviving each day. I
know that there are a great many Bataan veterans who came from
New Mexico, and the number who still survive is dwindling each
month. So it is very important that we pass this legislation
and that we do so this year.
I commend the committee for having this hearing, and I hope
that in addition to this legislation, you can find some other
ways to be of assistance.
The Chairman. Well, thank you, Senator Bingaman. We
appreciate you being here and appreciate you taking time out of
your valuable schedule. Thank you.
I notice that Senator Feinstein is here. Would you care to
make opening remarks on behalf of the minority? STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE
STATE OF CALIFORNIA
Senator Feinstein. Just very quickly, if I might, Mr.
Chairman, let me begin by thanking you for holding this
hearing. I am particularly pleased that a constituent of mine,
Dr. Lester Tenney, was able to come before the committee today
and share his experiences.
As many of my colleagues know, Dr. Tenney has written a
book detailing the brutality experienced by Americans at the
hands of the Japanese Imperial Army and private Japanese
companies that ran labor camps. I would like to commend him not
only for enduring these conditions while held captive in Japan,
but also for preserving a historical record from which future
generations can learn.
Mr. Chairman, the veterans who have joined us today are all
Americans who have served in Bataan and performed slave labor
in Japanese mines, shipyards, and factories. As prisoners of
war, they were subject to deprivation of liberty, to beatings,
to starvation, and to other atrocities. Their endurance through
all this symbolizes the sacrifice of all of the brave men who
served during World War II.
I am hopeful that measures such as the bill I have
introduced, the Japanese Imperial Army Disclosure Act, will
assist in bringing to full disclosure evidence of use of
chemical and biological agents, as well as atrocities that
individuals have faced.
I think it is important that these classified records be
released much as the German classified Holocaust-related
records have been released. And I think by airing the light of
day on much of this, we will be able to put this very terrible
chapter behind us.
I thank you, Mr. Chairman. I look forward to the testimony.
The Chairman. Well, thank you so much, Senator.
Our first panel--now, if Senator Cleland comes, we will
interrupt this panel, but on the first panel we are pleased to
have Acting Assistant Attorney General for the Civil Division
of the Department of Justice, David Ogden. Mr. Ogden supervised
the preparation and filing of the Statement of Interest which
has been filed in the POW litigation.
Deputy legal adviser at the State Department, Ronald
Bettauer, also worked on the Statement of Interest, and advised
Under Secretary of State Thomas Pickering on the legal issues
involved. We did invite Under Secretary Pickering to appear
himself to help explain the policy of when the State Department
decides to intervene in these types of claims. We understand
that he was the decisionmaker at the State Department on
whether to file something in this case.
Unfortunately, he declined our invitation. I think he has
made a mistake. We will hear from him on this matter because he
cannot avoid accountability on this matter, so I would like you
to send that message back to the State Department. We believe
it is incumbent on something as important as this that people
come.
So we are pleased to have the two of you here, and we will
take your statement first, Mr. Ogden.
PANEL CONSISTING OF DAVID W. OGDEN, ACTING ASSISTANT ATTORNEY
GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE,
WASHINGTON, DC; AND RONALD J. BETTAUER, DEPUTY LEGAL ADVISER,
DEPARTMENT OF STATE, WASHINGTON, DC STATEMENT OF DAVID W. OGDEN
Mr. Ogden. Mr. Chairman, Senator Feinstein, members of the
committee, I appreciate very much the opportunity to appear
before you to provide additional information concerning the
United States' Statement of Interest in Heimbuch v. Ishihara
Sangyo Kaisha Ltd., a case brought by American prisoners of war
of the Japanese against Japanese companies.
Based upon the chairman's letter to the Attorney General
and my own discussions with committee staff, I understand that
the chairman is seeking to ensure that the Department is
applying consistent policy in its treatment of various World
War II-related and prisoner of war-related matters, and in
particular to assure that the Justice Department fulfilled its
professional obligations and based its filing in Heimbuch on
sound, thorough legal and historical analysis. I welcome the
opportunity to address those questions, and as I will explain,
I believe the Department has been both consistent and diligent
in its representation of the United States in this matter.
Before turning directly to these questions, however, I
would like to make some preliminary and somewhat personal
observations. First, I consider it a singular privilege to
represent the United States in our courts, and recognize that
this privilege carries substantial obligations. Foremost among
these, of course, is the attorney's responsibility to his
client, to represent the United States' interests faithfully
and diligently, consistent with the law.
Counsel for the United States is also an officer of the
court and a servant of the American people. As such, there is a
particularly strong obligation to help the courts correctly
apply the law and to do justice in matters affecting the
interests of the United States. As acting head of the Civil
Division, I have been blessed to have the support of a
dedicated and talented group of career attorneys who day in and
day out meet those high standards and help me to do so.
I have also found that, on occasion, the faithful
performance of these duties can be personally painful. That has
been certainly true in the Heimbuch case. I have a profound
respect for and feel a deep personal indebtedness to the
plaintiffs in this case. They and other great Americans like
them endured the most brutal of conditions in the service of
this Nation, as you said, Mr. Chairman, and their efforts and
suffering were crucial to safeguarding our freedom at a very
dark hour. I have not relished the responsibility of submitting
legal papers on behalf of this Nation that have opposed their
legal claims against entities that they allege abused them and
benefited from their enslavement during the war.
Let me turn now to the specifics of the case. In a March
24, 2000, order in Heimbuch, U.S. District Judge Alsup, of the
Northern District of California, requested that the United
States express its views on whether Federal law governs any
claims by American soldiers captured and imprisoned by Japan
during World War II where such claims are directed to private
Japanese companies for whom such soldiers were forced to work
as slaves, and whether removal of such claims from State court
to Federal court is proper.
On May 23, 2000, the Department of Justice, on behalf of
the United States, filed a Statement of Interest with respect
to those issues, as you have said, Mr. Chairman, and expressed
the position that such claims are governed by Federal law and
should be heard in Federal court.
This conclusion was based on the 1951 Peace Treaty between
the United States and Japan, in which the United States
expressly waived its own claims and those of its nationals
against Japan and its nationals arising from prosecution of the
war. The United States has not been asked to provide, and has
not purported to provide, its views with respect to any other
aspects of those cases.
Under 28 U.S.C. section 517, the Department of Justice's
role is to represent the positions and policies of the United
States in litigation matters. The Department of Justice, as you
undoubtedly know, tries to be as responsive as possible to
judicial requests for the views of the United States in cases
that affect the interests of the United States.
When we receive such a request, such as the one in
Heimbuch, we communicate immediately with the appropriate
client agency to determine what the appropriate response should
be. In this case, the Justice Department acted at the request
of the Department of State, which, of course, is the Agency
responsible for conducting the foreign relations of the United
States, including interpreting treaties to which the United
States is a party.
The State Department asked the Justice Department to file a
brief in response to the court's request in Heimbuch advising
the court that the 1951 Peace Treaty preempted any State law
claims and required that the matter be heard in Federal court.
Our attorneys reviewed the State Department's request carefully
and thoroughly, and worked closely with the lawyers in State's
Legal Adviser's Office, including Mr. Bettauer, to research the
issues and to present the court with a statement responsive to
its inquiry that represented the legal and policy position of
the United States.
As you will see from the written answers that we have
provided to your questions, Mr. Chairman, it is clear from the
language of the 1951 Treaty and the materials surrounding its
negotiation and ratification by the Senate that the United
States intended to waive its claims and those of its nationals
against Japan and its nationals.
As I have said, we admire and sympathize with these valiant
men who were prisoners of war, and condemn the wartime policies
of Japan and its industry that forced them into servitude. But
in 1951, President Truman and the U.S. Senate made a carefully
considered national decision that our interests would best be
served by a peace settlement that resolved all potential
claims. For that reason, it was the strong view of the
Department of State that the United States, having made this
solemn commitment in a treaty, must honor that obligation. The
Statement of Interest was filed in that spirit.
Now, I know that the chairman is also concerned that, in
contrast to Heimbuch, as you said, Mr. Chairman, the United
States did not file a statement of interest in Gross v.
Volkswagen and Rosenfeld v. Volkswagen, litigation in the
District of New Jersey involving the claims of individuals who
were allegedly enslaved by German entities during the war.
In a letter we have attached to our answers to the
committee's questions, I advised U.S. District Judge John W.
Bissell that negotiations between representatives of the
plaintiffs--that is, representatives of the victims there--and
representatives of Germany and German industry were ongoing at
that time over the creation of a German foundation to
compensate victims, and that those negotiations were then at a
very delicate stage.
As I explained, as a result, we are reluctant to take
action now that might interfere with achieving this objective,
an achievement we believe the court would welcome. The
Department also agreed to update the court at that time on the
progress of talks and perhaps to provide the Department's
views, if that would be appropriate.
Thus, the Government's decision not to submit its views to
Judge Bissell was done in an effort to facilitate a consensual
settlement of the case that might make resolution of the legal
issues unnecessary and provide relief to many victims. The
decision not to file a brief in Gross and Rosenfeld was made
based upon the recommendation of the Department of State, which
has been leading the effort that you described, Mr. Chairman,
by the U.S. Government to facilitate such a resolution.
The State Department's responsibility is to determine the
policy interests of the United States in this regard, and after
extensive discussion the Department of Justice deferred to its
policy views with respect to declining to file a statement of
interest on the grounds I have described.
I hope that these remarks and the written answers that we
have provided to the committee's inquiries are helpful. I would
be glad to respond to any questions the committee may have.
[The prepared statement of Mr. Ogden follows:] Prepared Statement of David W. Ogden
Mr. Chairman and Members of the Committee: I appreciate the
opportunity to appear before you to provide additional information
concerning the United States' Statement of Interest in Heimbuch, et al.
v. Ishihara Sangyo Kaisha, Ltd. et al., a case brought by American
prisoners of war of the Japanese against Japanese companies. Based upon
the Chairman's letter to the Attorney General and my own discussions
with Committee staff, I understand that the Chairman is seeking to
ensure that the Justice Department is applying a consistent policy in
its treatment of various World War II-related and prisoner of war-
related matters, and in particular to assure that the Justice
Department fulfilled its professional obligations and based its filing
in Heimbuch on a sound, thorough legal and historical analysis. As I
will explain, I believe the Department has been both consistent and
diligent in its representation of the United States in this matter.
Before turning directly to these questions, I would like to make
some preliminary and somewhat personal observations. First, I consider
it a singular privilege to represent the United States in our courts,
and recognize that this privilege carries substantial obligations.
Foremost among these, of course, is the attorney's responsibility to
his client--to represent the United States' interests faithfully and
diligently consistent with the law. Counsel for the United States is
also an officer of the Court, and a servant of the American people. As
such, there is a particularly strong obligation to help the courts
correctly apply the law and do justice in matters affecting the
interests of the United States. As acting head of the Civil Division, I
have been blessed to have the support of a dedicated and talented group
of career attorneys who, day in and day out, meet those high standards
and help me to do so.
I have also found that, on occasion, the faithful performance of
these duties can be personally painful. That has been true in the
Heimbuch case. I have profound respect for, and feel deep personal
indebtedness to, the plaintiffs in this case. They, and other great
Americans like them, endured the most brutal of conditions in the
service of this Nation, and their efforts and suffering were crucial to
safeguarding our freedom at a very dark hour. I have not relished the
responsibility of submitting legal papers on behalf of this Nation that
have opposed their legal claims against entities that, they allege,
abused them and benefitted from their enslavement during the War.
Let me turn now to the specifics of the case. In a March 24, 2000
Order in Heimbuch, United States District Judge Alsup of the Northern
District of California requested that the United States express its
views on whether federal law governs any claims by American soldiers
captured and imprisoned by Japan during World War II, where such claims
are directed to private Japanese companies for whom such soldiers were
forced to work as slaves, and whether removal of such claims to federal
court is proper. On May 23, 2000, the Department of Justice, on behalf
of the United States, filed a Statement of Interest with respect to
those issues, and expressed the position that such claims are governed
by federal law and should be heard in federal court. This conclusion
was based on the 1951 peace treaty between the United States and Japan,
in which the United States expressly waived its own claims, and those
of its nationals, against Japan and its nationals, arising from the
prosecution of the War. The United States has not been asked to
provide, and has not purported to provide, its views with respect to
any other aspects of those claims.
Under 28 U.S.C. 517, the Department of Justice's role is to
represent the positions and policies of the United States in litigation
matters. The Department of Justice, as you will undoubtedly understand,
tries to be as responsive as possible to judicial requests for the
views of the United States in cases in which there is a federal
interest. When we receive a request such as the one in Heimbuch, we
communicate with the client agency to determine what the appropriate
response should be. In this case, the Justice Department acted at the
request of the Department of State, which, of course, is the agency
responsible for conducting the foreign relations of the United States,
including interpreting treaties to which the United States is a party.
The State Department asked the Justice Department to file a brief in
response to the Court's request in Heimbuch, advising the Court that
the 1951 peace treaty preempted any state law claims and required that
the matter be heard in federal court.
Our attorneys reviewed the State Department's request carefully and
thoroughly and worked closely with lawyers in State's Legal Adviser's
office to research the issues and to present the court with a statement
responsive to its inquiry that represented the legal and policy views
of the United States. As you will see from the Department's written
answers to the questions you submitted, it is clear from the language
of the 1951 peace treaty and the materials surrounding its negotiation
and ratification that the United States intended to waive its claims
and those of its nationals against Japan and its nationals. As I have
said, we admire and sympathize with these valiant men who were
prisoners of war, and condemn the wartime policies of Japan and its
industry that forced them into servitude. But in 1951, President Truman
and the United States Senate made a carefully considered, national
decision that our interests would best be served by a peace settlement
that resolved all potential legal claims. For that reason, it was the
strong view of the Department of State that, the United States having
made this solemn commitment in a treaty, it must honor its obligation.
The Statement of Interest was filed in that spirit.
I know that the Chairman is also concerned that, in contrast to the
filing in Heimbuch, the United States did not file a Statement of
Interest in Gross v. Volkswagen and Rosenfeld v. Volkswagen, litigation
in the District of New Jersey involving the claims of individuals who
were allegedly enslaved by German entities during the War. In a letter
we have attached to our answers to the Committee's questions, I advised
United States District Judge John W. Bissell that negotiations between
representatives of the plaintiffs and representatives of Germany and
German industry were ongoing over creation of a German foundation to
compensate victims, and that those negotiations were then at a ``very
delicate'' stage. As I explained, ``as a result, we are reluctant to
take action now that might interfere with achieving that objective, an
achievement we believe the court would welcome.'' The Department also
agreed to update the Court on the progress of the talks and ``perhaps
suggest a further schedule'' for providing the United States' views.
Thus, the government's decision not to submit its views to Judge
Bissell was done in an effort to facilitate a consensual settlement of
the case that might make resolution of the legal issues unnecessary.
The decision not to file a brief in Gross and Rosenfeld was made
based upon the recommendation of the Department of State, which has
been leading an effort by the United States government to facilitate
such a resolution. Its responsibility is to determine the policy
interests of the United States in this regard, and the Department of
Justice deferred to its policy views with respect to declining to file
a Statement of Interest in the district court.
I hope that these remarks, and the written answers we have provided
to the Committee's inquiries, are helpful. I would be glad to respond
to any questions the Committee may have. The Chairman. Thank you, Mr. Ogden.
Mr. Bettauer. STATEMENT OF RONALD J. BETTAUER
Mr. Bettauer. Thank you very much, Mr. Chairman, Senator
Feinstein. Good morning. I also appreciate the opportunity to
appear before you today. I am a Deputy Legal Adviser at the
Department of State and have been directly involved in both the
German slave and forced labor negotiations, and the development
of our position on the class action lawsuits that have been
brought by former POW's against Japanese private companies in
California State court.
Let me begin by expressing the administration's and my own
personal sympathy to the victims of Japanese wartime aggression
and our deep gratitude for those veterans who bravely served
our country in the Pacific theater during World War II. We and
the American people owe these veterans a great debt.
I intend to address briefly the 1951 Treaty of Peace with
Japan and why the State Department asked the Department of
Justice to file a Statement of Interest in favor of removal of
the lawsuits to Federal court.
Article 14(b) of the 1951 Treaty of Peace with Japan
provides that: except as otherwise provided in the * * * Treaty, the
Allied powers waive all reparations claims of the
Allied powers, other claims of the Allied powers and
their nationals, arising out of any action taken by
Japan and its nationals in the course of the
prosecution of the war. The Chairman. Is that the language you are basically
relying on, then?
Mr. Bettauer. That is the basic language, yes.
The Chairman. But how can the Government waive the rights
of individuals?
Mr. Bettauer. Well, I will talk a little bit about how this
occurred.
The Chairman. I shouldn't have interrupted you. I can see
how the Government can waive its rights. I can see how it can
enter into a treaty. I can see how it can do all of that. But
what bothers me is how can it, without the consent of the
individual citizens, waive the rights of individual citizens
who have been mistreated.
Mr. Bettauer. The Government has had the power to address
the claims and settle the claims against foreign nations of
citizens for some 200 years under our system, going all the way
back, I believe, to the Jay Treaties. There are many cases,
including Belmont, Dames and Moore, which have upheld the
espousal power of the United States to take up the claims of
the citizens and to settle them against----
The Chairman. That is right, if they actually take up the
claims of the citizens and actually settle them for the benefit
of the citizens. And I could see where that would apply, but
here it seems to me they have just ignored the claims of the
citizens, other than the $1.50 a day.
Mr. Bettauer. Well, I think you have to look at what the
treaty intended to accomplish as a whole.
The Chairman. Yes, but I looked at the treaty and I don't
see the language in there that forecloses individual suits for
reparations. That is where I am having some difficulty. I am
not trying to give you a rough time. I just want to----
Mr. Bettauer. This treaty by its terms settles all war-
related claims of the United States----
The Chairman. So what? So what?
Mr. Bettauer [continuing]. And its nationals, and precludes
the possibility of taking----
The Chairman. You mean our Federal Government can just say,
to hell with you Bataan death marchers and you people who were
mistreated, we are just going to waive all your rights because
we have the almighty power to do so?
Mr. Bettauer. There was a decision made in the 1950's----
The Chairman. I don't care about the decision. I am saying,
can the Federal Government do that?
Mr. Bettauer. Yes, I think the Federal Government can do
that.
The Chairman. Actually take away their rights without
giving them a chance to be heard?
Mr. Bettauer. That is, I think, an established authority of
the Federal Government.
The Chairman. I don't believe that. I mean, I know that you
are sincere in expressing that, but I can't believe that under
our Constitution that that is going to be upheld.
Mr. Bettauer. I would suggest that it has been upheld many
times.
The Chairman. All right, I will listen further.
Mr. Bettauer. As I said, the treaty then settles the
claims, in our view, and we think this reading of the treaty is
in accord with the basic principle of treaty interpretation in
the 1969 Vienna Convention on the Law of Treaties that a treaty
shall be interpreted in good faith, in accordance with the
ordinary meaning to be given to the terms of the treaty in
their context and in light of its object and purpose.
The Chairman. Yes, but, look, Mr. Bettauer, I think there
is a distinction between individual claims arising under
domestic law versus international law.
Mr. Bettauer. The treaty language says all claims of the
powers and other claims of the powers and of their nationals
arising out of any actions taken by Japan and its nationals. It
is not limited to claims under----
The Chairman. Constitutionally, can our Government take
away the rights of individual citizens just because they have
put it in a treaty, put language in a treaty? Can you cite a
case in point, absolutely in point on that issue? Just give me
a case.
Mr. Bettauer. There is a good review of the previous
authorities by the Supreme Court in Dames and Moore v. Reagan.
This is the case that upheld the Algiers Accords, which was the
agreement by which the U.S. hostages in Iran were released. At
that time, we had an agreement that took the claims of those
hostages out of U.S. courts and sent them to a tribunal in The
Hague, and which took some of the claims, the claims of the
people who had actually been hostage--we took claims of
Americans against Iran and sent them to our tribunal. But the
claims of the hostages themselves were extinguished, and there
was litigation about that, too, and that was upheld as well.
The Chairman. Upheld by whom?
Mr. Bettauer. The U.S. courts.
The Chairman. I don't think this case has been really
tried. I don't think it has been tested. If there is a private
right of action, isn't that property under the fifth amendment?
If so, taking that property requires just compensation.
Mr. Bettauer. Let me go on to how we got there.
The Chairman. Sure; now, if I could just interrupt you
again, I have to shuttle between the Finance Committee and here
because there is a very important markup going on. So if I have
to leave, I am going to ask you, Senator Feinstein, or if there
is a Republican here, fine, but if not, I am going to ask you
to continue this hearing. Both Senator Feinstein and I have, I
think, very similar interests in this and want to get to the
bottom of it and see what can be done here.
But continue, Mr. Bettauer.
Mr. Bettauer. OK; the fact that the treaty waived all
claims is unambiguously supported by the negotiating history of
the treaty, by the broad security objectives of the U.S.
Government at the time, and by the extensive, often
excruciatingly painful deliberations that preceded the treaty's
advice and consent by the Senate. The Senate considered these
issues.
The overarching intent of those who negotiated, signed, and
ultimately ratified the treaty was to bring about a complete
global settlement of all war-related claims, in order both to
provide compensation to the victims of the war and to rebuild
Japan's economy and convert Japan into a strong U.S. ally.
It was recognized at the time that those goals could not
have been served had the treaty left open the possibility of
continued, open-ended legal liability of Japanese industry for
its wartime actions. In this regard, the negotiators and the
U.S. Senate were extremely sensitive to the calamitous results
of the continuing debts that had been imposed on Germany by the
Treaty of Versailles.
Another provision of the treaty, article 19(a), similarly
closed off the possibility of claims being brought by Japanese
nationals against the United States or its nationals arising
out of both the war and the subsequent occupation of Japan.
Our longstanding position is not one that we have reached
casually or lightly. We have thoroughly examined all of the
legal arguments that have been advanced, and have undertaken an
exhaustive amount of historical research. Although we
sympathize with those who have brought the lawsuits and
acknowledged that they have suffered great injuries in the
service of their country, we are convinced that the treaty
precludes these lawsuits and that we have no legal basis upon
which to approach Japan or its nationals for additional
compensation for war claims.
Our decision to ask the Justice Department to file a
Statement of Interest, which was specifically solicited by a
Federal district court, was based not only on our concern for
upholding our international legal obligations, but also upon
the fact that the treaty is a duly ratified international
agreement of the United States that is therefore the supreme
law of the land.
The treaty was approved by the U.S. Senate by a strong two-
thirds majority on March 20, 1952, and subsequently ratified by
President Truman. The records of the hearings of the U.S.
Senate and the U.S. Senate Foreign Relations Committee indicate
that the Senate was well aware that article 14(b) settled all
war-related claims. In fact, the Senate heard testimony from
several members of the public who were not pleased with this
provision. The Senate gave its advice and consent by a vote of
66 to 10, without inserting a single reservation pertaining to
war claims or article 14(b) in its resolution of ratification.
Let me emphasize that the Senate's action occurred shortly
after termination of the hostilities when the horrific wounds
of World War II were still fresh, emotions still raw, and the
memories of the war's innumerable tragedies still vivid.
A large part of the treaty was devoted to the issue of
reparations. The scheme of the treaty was that each state party
would compensate its own nationals for their injuries, either
out of confiscated Japanese public and private assets or
otherwise. To this end, the United States confiscated
approximately $90 million worth of assets owned by the Japanese
Government and Japanese private nationals, including companies,
and used the proceeds to satisfy the monetary claims of U.S.
nationals who were victims of Japanese aggression.
Congress passed an amendment to the War Claims Act of 1948
to create a new war claims program that would award American
war victims, including slave and forced laborers, amounts to be
determined by a war claims commission using the proceeds of
liquefied Japanese assets. Congress, through its approval of
the treaty and amendment of the War Claims Act, created an
exclusive Federal remedy for all American victims of the war.
Thus, when the United States filed its Statement of
Interest on May 23, outlining why these lawsuits belong in
Federal court, we did so not only because of our international
obligations and our foreign policy concerns, but because we
believe our stance is true to the intent of the U.S. Congress
that approved the ratification of the treaty and created a
comprehensive war claims program. It is consistent with the
broad, bipartisan consensus that existed in all branches of
Government in 1952 that this treaty was in the overall best
interests of the American people and that reparations
provisions were fair and reasonable.
For nearly 50 years, the treaty has sustained our security
interests and supported peace and stability throughout East
Asia. We believe the treaty leaves no sound legal basis for the
United States or its nationals to seek further monetary
recovery against Japanese corporations, and that the treaty
remains the supreme law of the land.
Thank you, Madam Chairman.
[The prepared statement of Mr. Bettauer follows:] Prepared Statement of Ronald J. Bettauer
Mr. Chairman and Members of the Committee: Good morning. My name is
Ronald Bettauer. I am a Deputy Legal Adviser at the U.S. Department of
State. I have been directly involved in both the German forced labor/
slave labor negotiations and the development of our position on the
class action lawsuits that have been brought by former POW's against
Japanese private companies in California state courts. Let me begin by
expressing the Administration's and my own personal sympathy to the
victims of Japanese wartime aggression, and our gratitude for those
veterans who bravely served our country in the Pacific theater during
World War II. We, and the American people, owe these gentlemen a great
debt.
I intend to address briefly the 1951 Treaty of Peace with Japan,
and why the State Department asked the Department of Justice to file a
Statement of Interest in favor of removal of the lawsuits to federal
court.
The 1951 the Treaty of Peace with Japan settles all war-related
claims of the U.S. and its nationals, and precludes the possibility of
taking legal action in United States domestic courts to obtain
additional compensation for war victims from Japan or its nationals--
including Japanese commercial enterprises. Article 14(b) of the Treaty
provides that, ``[e]xcept as otherwise provided in the * * * Treaty,
the Allied Powers waive all reparations claims of the Allied Powers,
other claims of the Allied Powers and their nationals arising out of
any actions taken by Japan and its nationals in the course of the
prosecution of the war * * * '' This position is in accord with basic
principles of treaty interpretation as set forth in the 1969 Vienna
Convention on the Law of Treaties, i.e., ``[a] treaty shall be
interpreted in good faith, in accordance with the ordinary meaning to
be given to the terms of the treaty in their context and in light of
its object and purpose.''
This is clear and unequivocal language: all reparations claims
against Japan and its nationals. This language is unambiguously
supported by the negotiating history of the Treaty, and by the broad
security objectives the U.S. Government hoped to achieve with the
Treaty, and, most important for present purposes, by the extensive,
often excruciatingly painful deliberations that preceded the Senate's
advice and consent to ratification of the treaty.
The overarching intent of those who negotiated, signed, and
ultimately ratified this Treaty was to bring about a complete, global,
settlement of all war-related claims, in order both to provide
compensation to the victims of the war and to rebuild Japan's economy
and convert Japan into a strong U.S. ally. It was recognized at the
time that those goals could not have been served had the Treaty left
open the possibility of continued, open-ended legal liability of
Japanese industry for its wartime actions. In this regard, the
negotiators and the U.S. Senate were extremely sensitive to the
calamitous results of the continuing debts that had been imposed on
Germany in the Treaty of Versailles. Another provision of the Treaty,
Article 19(a), similarly closed off the possibility of claims being
brought by Japanese nationals against the United States or its
nationals arising out of both the war and the subsequent occupation of
Japan.
Our longstanding position is not one that we have reached casually
or lightly. We have thoroughly examined all of the legal arguments that
have been advanced by the parties to these lawsuits, and we have
undertaken an exhaustive amount of historical research. We have also
discussed the issue with one of the direct participants in the
negotiations. Although we sympathize with the plaintiffs and
acknowledge that they suffered great injuries in the service of their
country, we are convinced that the Treaty precludes these lawsuits, and
that we have no legal basis upon which to approach Japan and its
nationals for additional compensation for war claims.
Our decision to ask the Justice Department to file a Statement of
Interest, which was specifically solicited by the federal district
court, was based not only on our concern for upholding our
international legal obligations, but also upon the fact that this
Treaty is a duly ratified international agreement of the United States
that is, therefore, the supreme law of the land. This Treaty was
approved by the U.S. Senate by a strong two-thirds majority on March
20, 1952, and subsequently ratified by President Truman.
The records of the hearings of the U.S. Senate, and the U.S. Senate
Foreign Relations Committee, indicate that the Senate was well aware
that Article 14(b) settled all war-related claims, and in fact, heard
testimony from several members of the public who were not pleased with
that provision. The Senate gave its advice and consent by a vote of 66
to 10, without inserting a single reservation pertaining to war claims
or Article 14(b) in its resolution of advice and consent. Let me
emphasize, particularly, that the Senate's action occurred only shortly
after the termination of hostilities, when the horrific wounds of World
War II were still fresh, emotions still raw, and the memories of the
war's innumerable tragedies still vivid.
A very large part of the Treaty was devoted to the issue of
reparations. The scheme of the Treaty was that each state party would
compensate its own nationals for their injuries, either out of
confiscated Japanese public and private assets, or otherwise. To this
end, the United States confiscated approximately 90 million dollars'
worth of assets owned by Japan and Japanese private nationals
(including Japanese companies), and used the proceeds to satisfy the
monetary claims of U.S. nationals who were victims of Japanese
aggression. The U.S. Congress amended the War Claims Act of 1948 to
create new war claims programs that would award American war victims,
including slave/forced laborers, in amounts to be determined by a War
Claims Commission, using the proceeds of liquidated Japanese assets. We
believe that Congress, through its approval of the Treaty and the
amendment of the War Claims Act, intended to create an exclusive
federal remedy for all American victims of the war.
Thus, when the United States filed its Statement of Interest on May
23 outlining why these lawsuits belong in federal court, we did so not
only because of our international obligations or our foreign policy
concerns, but because we believe our stance is true to the intent of
the U.S. Congress that approved the ratification of this Treaty and
created a comprehensive war claims compensation program. It is
consistent with the broad, bipartisan consensus that existed in all
branches of government in 1952, that this Treaty was in the overall
best interests of the American people and that the reparations
provisions were fair and reasonable.
For nearly 50 years, this Treaty has sustained our security
interests and supported peace and stability throughout East Asia. We
believe that the Treaty leaves no sound legal basis for the United
States or its nationals to seek further monetary recovery against
Japanese corporations, and that the Treaty remains the supreme law of
the land. Senator Feinstein. Thank you very much.
Senator Sessions [presiding]. Are you prepared to go
forward?
Senator Feinstein. I am prepared.
Senator Sessions. Senator Feinstein?
Senator Feinstein. Thank you very much, both gentlemen. Let
me read article 14(b), if I might: Except as otherwise provided in the present Treaty,
the Allied powers waive all reparations claims of the
Allied powers, other claims of the Allied powers and
their nationals, arising out of any actions taken by
Japan and its nationals in the course of the
prosecution of the war, and claims of all powers for
direct military costs of occupation. Now, I think, Mr. Bettauer, you referred to that article,
and let me just read the most-favored-nations clause of article
26:
Should Japan make a peace settlement or war claims
settlement with any state, granting that state greater
advantages than those provided by the present Treaty,
those same advantages shall be extended to the parties
to the present Treaty. Now, my question then is, Has Japan provided more favorable
terms to other nations in connection with settlements of war
claims than you now assert were provided in the 1951 treaty?
Mr. Bettauer. If I may start by focusing on article 26 for
a second, that provision we do not regard really as providing a
most-favored-nation-type scheme. John Foster Dulles, who
personally drafted this treaty, included article 27----
Senator Feinstein. Twenty-six.
Mr. Bettauer. Twenty-six, excuse me, and said that the
purpose of the provision was, and I am quoting one of his
documents, ``for the protection of Japan so that if other
countries should make demands upon Japan, Japan would have a
basis of resisting by pointing to'' that provision. That was a
key goal because the idea was to pull Japan away from the
Communist bloc. Dulles designed the provision to deter the
Japanese from dealing on favorable terms with the Soviet Union
specifically with regard to its territorial demands.
So the only time that Dulles raised article 26 was in 1956,
when Japan and the Soviet Union were negotiating a peace
settlement. Dulles made a public statement to the effect that
if Japan recognized the Soviet territorial claims of
sovereignty, article 26 might open the way for the United
States to claim comparable benefits.
He explained publicly that he had exerted article 26 ``for
the very purpose of trying to prevent the Soviet Union from
getting more favorable treatment than the United States got,''
and that he simply wanted to remind Japan of its existence.
Dulles then met with the Japanese Ambassador to discuss the
difficulties Japan was having in the negotiations and stated
that the United States had no intention of making territorial
demands itself, but simply to give Japan an argument with the
Russians. So the contemporaneous construction of article 26 and
practice under article 26 suggests that it was not really an
MFN provision in the sense of comparing peace settlements
dollar for dollar.
In any event, while certain types of treaties may
traditionally contain MFN provisions--and these can be
investment treaties and tariff treaties--this is not so with
peace treaties. Peace treaties are so complex and entail so
many different types of obligations that there is really no way
of measuring whether, on an overall basis, one is more
advantageous than the other.
Senator Feinstein. Could I stop you just for one moment?
Mr. Bettauer. Yes.
Senator Feinstein. You didn't really answer my question. My
question is, Has Japan provided more favorable treatment to
other nations?
Mr. Bettauer. There are a number of other treaties that
Japan has with other nations, because this was a multilateral
peace treaty and Japan was encouraged to conclude peace
treaties with those who weren't party to it. And there are some
claim provisions in some of those peace treaties, but looking
at----
Senator Feinstein. That are more favorable?
Mr. Bettauer. No; it is impossible to say because you have
to know what the claims of the other countries were, what the
counterclaims of Japan were, what the other provisions of the
peace treaties were that bear on it. And I don't think we are
in a position that we can conclude any of those is more
favorable.
The Chairman. Well, if I could interrupt, in article 26, it
seems to me the terms of article 26 appear unconditional and
automatic. What they say is, Should Japan make a peace
settlement of war claims settlement with any state granting
that state greater advantage than those provided by the present
treaty, those same advantages shall--not ``may,'' ``could,''
``would''--but shall be extended to the parties to the present
treaty?
Mr. Bettauer. Well, as I just explained, the purpose of
article 26 was to provide a counterweight to Soviet territorial
demands.
The Chairman. Fine; then why shouldn't the claims of these
American POW's enjoy the same treatment as claims by forced
laborers from Burma, the Soviet Union, the Netherlands and
elsewhere, all states that were granted greater advantages
within the meaning of article 26?
Mr. Bettauer. Well, I don't think we have concluded,
Senator, that they have been granted greater advantages.
The Chairman. I don't see how you can help but conclude
that they were granted.
Mr. Bettauer. In addition, we were involved in and
facilitated the negotiations of many of those treaties, not all
of them. But, for example, we encouraged the Burma treaty
negotiation. We pressed Japan to do that, and we never raised
an article 26 concern at the time. It would be too late now, 40
years later, to seek to renegotiate the benefits we received
under the peace treaty because of something that we assisted
Japan in doing back then.
Senator Feinstein. Then what was the rationale behind
article 26?
Mr. Bettauer. I have just tried to explain that, Senator.
Senator Feinstein. But it doesn't seem to me to make sense.
Mr. Bettauer. We have gone through the historical
documents.
Senator Feinstein. You say to wean Japan away from the
Communist bloc, but I don't quite see how this relates to
weaning Japan away from the Communist bloc.
Mr. Bettauer. The two documents that are contemporaneous
that deal with article 26 are a press statement by Dulles and a
memorandum of a conversation that he had about the article. In
both of those documents, Dulles asserts that the purpose of
article 26 is to provide Japan a counterweight to territorial
demands.
The language, I know, is broader than that, but after 40
years, it is too late to raise article 26 issues with Japan,
particularly since we were aware contemporaneously of all the
agreements that were under negotiation at the time, and indeed
facilitated the negotiation of some of them.
The Chairman. Let me ask you a few questions. Has the State
Department met with representatives of the Japanese companies
at issue here or with the Japanese Government concerning this
matter, or with both, and if so, when and how often?
Mr. Bettauer. I am not aware of whether we have met with
representatives of the Japanese companies. We can get that
information for you for the record.
The Chairman. Will you get that for us? OK.
[The information referred to appears in the Appendix,
Questions and Answers section.]
Mr. Bettauer. I know that the State Department meets with
representatives of the Japanese Government frequently, and I
have been in some meetings.
The Chairman. On these issues?
Mr. Bettauer. They are interested and they have asked about
this issue.
The Chairman. How many times has the State Department met
with Mr. Poole or Mr. Bigelow, Mr. Mazer or Mr. Tenney or their
lawyers?
Mr. Bettauer. Some of their lawyers are former colleagues
of mine from the State Department, so I have met with them many
times.
The Chairman. I am talking about to discuss these matters.
Mr. Bettauer. I don't recall that any of their lawyers have
requested a meeting with me to discuss these matters. I do not
know if they have met with others in the Legal Adviser's
Office, and we can supply that information for the record, if
you like.
The Chairman. Well, if you would, I appreciate it.
[The information referred to appears in the Appendix,
Questions and Answers section.]
The Chairman. Now, I have to say under article 26, the
United States again is entitled to the same terms of future
treaties Japan may enter into which contain more favorable
disposition of claims than the 1951 treaty. And I repeat again
that the terms of article 26 appear unconditional and
automatic: Should Japan make a peace settlement or war claims
settlement with any state granting that state greater
advantage than those provided by the present treaty,
those same advantages shall be extended to the parties
to the present treaty. This language clearly states that the terms should be
extended, no ifs, ands, or buts. So why shouldn't the claims of
these American POW's get the same treatment, or at least enjoy
equal treatment, as claims by forced laborers from Burma who
received money from Japan? As I understand it, Japan excluded
claims with the Soviet Union arising before August 1945, and
there may be other matters that could be interpreted more
favorably than apparently the State Department is willing to
interpret right now.
Mr. Bettauer. Well, as far as I know, the Burma settlement
with Japan states that Burma will supply by way of
reparations----
The Chairman. Japan will supply.
Mr. Bettauer. Japan will supply Burma by way of reparations
the services of Japanese people and products, the value of
which will be on the average equivalent to--it says essentially
$20 million for a period of 10 years. And Japan also took every
measure to facilitate economic cooperation.
Now, I am not sure that $20 million worth of services of
Japanese people was something equivalent to $90 million actual
at the time we got it, nor am I aware that that was something
we would have wished, the United States would have wished at
the time. Burma was a developing country at the time and it had
been devastated by the war.
Japan's settlement with Burma was brought about, as I have
just said, with the encouragement of Dulles. In September 1954,
he informed the National Security Council that ``The big
problem economically for Japan was the question of reparations,
particularly with the Philippines, Indonesia, and Burma.''
He added that he told Premier Yoshida to ``try to accept a
reasonable solution, such as the recent Burmese offer which
appeared to be a reasonable proposal.'' At the time, the U.S.
Government was trying to support Burma. The substantial aid
package that came with the Burma-Japan settlement relieved the
U.S. taxpayer of a substantial financial burden that would
otherwise have been borne. This was an advantage to us. So it
is very hard to conclude that the Burma settlement would
provide a basis for us now to go back to Japan.
The Chairman. Well, I have to say that it is wonderful that
we received some benefits because we didn't have to pay, but
the fact of the matter is that the treaty says: Therefore, Japan agrees, subject to such detailed
terms as may be agreed upon, to supply the Union of
Burma by way of reparations with the services of
Japanese people and products of Japan, the value of
which would be on an annual average 7,200 million yen,
equivalent to 20 million United States American
dollars, for the period of 10 years. Japan agrees,
subject to such detailed terms as may be agreed upon,
to take every possible measure to facilitate economic
cooperation wherein the services of Japanese people and
the products of Japan, the value of which will
aggregate on an annual average 1,800 million yen,
equivalent to 5 million United States American dollars,
will be made available to the government or people of
the union of Burma for the period of 10 years, and also
agrees to reexamine at the time of the final settlement
of reparations toward all other claimant countries the
Union of Burma's claim for just and equitable treatment
in the light of the results of such settlement, as well
as the economic capacity of Japan to bear the overall
burden of reparations. Then the next paragraph:
The Union of Burma shall have the right to seize,
retain, liquidate, or otherwise dispose of all property
rights and interests of Japan and Japanese nationals,
including juridical persons, which on the coming into
force of this treaty were subject to its jurisdiction. Well, it seems to me that we can go back to one of my
original questions, and that is how can our Government take
away the rights of individual citizens to sue individual
companies, not the Government of Japan, but individual
companies in Japan, for reparations for having been mistreated
and having been forced into slave labor? What is the
justification? I mean, where is the legal justification?
Show me a case that says that these veterans have no right
to go against the Japanese companies that exploited them and
abused them and made them slave laborers. This isn't against
the Government.
Mr. Bettauer. No, no; I have mentioned some cases, and I
think we are at a point where we differ on this.
The Chairman. Well, I don't know of a case in point that
says that they have no right to sue those companies.
Mr. Bettauer. The case in point for this actual treaty is
currently being litigated, but the precedent is out there
saying that the United States has the ability to espouse and
settle claims. And we have done so multiple times over the last
200 years, often with benefits, and here there are some.
Although one would always like to see more benefits, there are
some benefits for former veterans.
I mean, in the postwar period there are probably 15 or 20
times that we have done agreements with foreign countries and
settled claims of U.S. nationals, whether they have liked it or
not. So this is a well-established authority and it has been
upheld by the courts, and I am sure you will see some of that
in the papers that we have filed.
The Chairman. Well, let me turn to Senator Sessions for any
questions he might have.
Senator Sessions. Thank you, Mr. Chairman. If I were
sitting in an appellate court, I believe I would rule with you
on this legal debate.
The Chairman. Well, now, that is a pleasant thought, I will
tell you.
Senator Sessions. I was about to ask Mr. Ogden here if he
would rule with you, too, just as a third party. It does seem
to me that there is an opportunity for those to make these
claims and it is not precluded by the plain language of the
statute.
I have a friend who survived the Bataan Death March. He has
shared some of the horrors with me. He speaks occasionally
still in schools around the State of Alabama, and it was a very
bad thing. It should not have happened.
Let me ask, Mr. Bettauer, do you conclude--and I suppose it
is the State Department that would say this--do you conclude
that the treatment, let's just say specifically in Japan of
slave labor, violated the Geneva Accords, the Geneva agreement?
Mr. Bettauer. My impression is that it did and that there
were war crimes committed. I am aware that there were war
crimes trials after the war and Japanese nationals were held
accountable and executed for their violations of the law of
war, and indeed that this treaty, the Peace Treaty, compels
Japan to abide by the war crimes decisions that were made.
Senator Sessions. With regard to our compensation of
Japanese-American citizens that were held against our American
sense of justice, that incarceration was upheld by the courts,
was it not?
Mr. Bettauer. You mean the----
Senator Sessions. Internment in the United States of
Japanese-American citizens.
Mr. Bettauer. I believe so, but I am not an expert on that.
Senator Sessions. Well, I guess my point is we have made
compensation to them even though it appears that courts have
held that it was a legal act.
Would you agree, Mr. Ogden, that it was upheld as a legal
act?
Mr. Ogden. Yes, Senator Sessions, that is my understanding.
Senator Sessions. Has there been any effort by the State
Department to encourage Japan to compensate these citizens who
were treated so badly even though there may be a dispute about
whether they are legally compelled to do so?
Mr. Bettauer. The agreement settles the claims, Senator.
And we may have a disagreement about the details of the
agreement, but we have researched it thoroughly and we have
gone through the hearings that were held by the Senate Foreign
Relations Committee at the time of the agreement and it seems
abundantly clear that there was even discussion of this issue,
some concern expressed about it, but the decision to settle and
resolve all the claims.
Senator Sessions. Well, I would say this, frankly. Settling
up after a war is not an easy thing.
Mr. Bettauer. Right.
Senator Sessions. People have to give and take and reach an
agreement that is going to bind forever. And nobody can
anticipate completely what kinds of claims might occur in the
future, and we are probably in the long run better off
following the agreement than trying to get around the
agreement.
Certainly, our partnership with Japan has been a great
thing for America, and I believe the world. Their economic
growth has been good, but my question is could they not be
urged in the light of their economic progress and strength,
whether they are legally required or not, to consider
compensating these people who suffered.
Mr. Bettauer. Well, I mean it is possible to urge, but our
treaty commitment and the object and purpose of the treaty was
to resolve these claims. And it would be trying to find a back
door to go around the treaty commitment to say, look, we know
we agreed with you that we have resolved and settled all these
claims, and yet you should pay some more anyway. That is not in
keeping with a good-faith abidance by the treaty terms.
The Chairman. We are not asking the Government to pay. We
are asking the companies that did the acts to pay, and to pay
individual American citizens who were abused and mistreated and
forced into slave labor. Some of these companies are multi-
billion-dollar companies today which might not be multi-
billion-dollar companies today had it not been for forced labor
during that period of time. That is the difference.
I would like the State Department to go back and reassess
this because I think your arguments are ridiculous. You are
clearly a very bright man and you clearly have been sent up
here as a sacrificial lamb, it seems to me. I mean, I don't
know how in the world you can come in here and make these
arguments like this. Now, if you can show me where the Federal
Government has a right to just strip people of rights against
individual private companies that abuse them, that is another
matter, but I haven't seen anything, nor do I believe there is
anything that exists. And, Mr. Ogden, I think you ought to
reassess this because your opinion is very broad, way too
broad, and frankly it is just not right.
Look, I am just a poor little country lawyer here, but I
want you both to go back and I want Mr. Pickering to reassess
this. I mean, this is ridiculous. Especially in light of what
is happening in Europe, I mean this is absolutely ridiculous.
Your opinions, in my opinion, are not accurate. I am trying to
be nice.
Senator Sessions. Mr. Chairman, thank you for having this
hearing and for raising these issues. They are unpleasant, but
I hope not damaging to our relationship with Japan, but a part
of a healing process where we can recognize the bad things that
did happen and we can confront them in this modern age. In the
long run, I am confident it will make us stronger.
Thank you.
The Chairman. Well, thank you.
Senator Grassley, we will go to you, but you had a comment
you wanted to make, Mr. Ogden, before I turn to Senator
Grassley.
Mr. Ogden. Thank you, Mr. Chairman. What I wanted to say
was that I appreciated your remarks, and I certainly will go
back and take another look at the----
The Chairman. I really want you to do this. Our Japanese
friends realize this was a terrible set of situations. I mean,
these companies are not poverty-stricken companies; it is not
going to bankrupt them. They really ought to, out of good
faith, reassess this situation. And I think the Justice
Department ought to reassess it, and certainly the State
Department lawyers ought to reassess this because I think any
interpretation of constitutional law flies in the face of what
you are arguing here today.
Now, I appreciate your position and I don't mean to pick on
you unduly, but I do intend to pick on you some more.
Mr. Bettauer. But I would say that we do take our guidance
on constitutional law issues from the Justice Department.
The Chairman. Oh, that is good. Now, we know who is the
real culprit here. [Laughter.]
Mr. Bettauer. They talk to us about treaty interpretation
issues, you see, so we cooperate.
The Chairman. I understand. You are doing the best you can,
but it is not good enough. I think you ought to go reassess
this, I really do.
Let me turn to Senator Grassley.STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE
STATE OF IOWA Senator Grassley. Well, first of all, I apologize to the
panel for not being here for your testimony because I, as
Senator Hatch, had to be for a short period of time in markup
of the marriage penalty bill down the hall in the Finance
Committee. But I do feel that in the little time I have been
here, Senator Hatch has laid out very strongly the position
that I hold, and I thank him for doing it.
I would just simply relate that even though there are just
a small number of these people affected that live in my State
of Iowa--I understand that we have 33 living former POW's of
Japan, 18 POW widows or next of kin, 7 civilian internees, and
1 civilian internee widow--it is still very important that we
make sure that justice is done.
These individuals obviously support these hearings because
they want to see that the United States turns the same scrutiny
on Japan as we did on Germany. I believe I am in agreement with
that position even as forcefully as it was expressed by Senator
Hatch that you review our policy. And I believe that this
committee does a great service, then, for the people that we
owe so much to in World War II, particularly those that
suffered the most by being prisoners, that we would through
this committee try to redirect U.S. policy in regard to this
matter and see what we can do to make sure it is consistent.
I think the issue has already been discussed and so I will
not be asking any questions. However, I will make a statement
that I think we need to review our policies; that when we send
letters in opposition to the position of some victims of World
War II, those who were slave labor victims in Japan, but not do
that in the case of slave labor victims in Germany, that we do
not appear to have a consistent policy. It seems blatantly
unfair, and not something that makes the American Government
look good to its citizens. And I am not sure that it even sends
a very clear signal about our leadership in the world community
of nations, about the moral leadership that we ought to have.
Thank you, Mr. Chairman.
The Chairman. Thank you, Senator.
Senator Feinstein has another question.
Senator Feinstein. Thank you, Mr. Chairman. I would like to
introduce for the record a statement by Senator Leahy.
The Chairman. Without objection, we will place that in the
record.
[The prepared statement of Senator Leahy follows:] Prepared Statement of Senator Patrick Leahy, a U.S. Senator From the
State of Vermont I would like to begin my remarks by thanking all of our witnesses
for coming today, especially those of you who were taken prisoner
during the Second World War. All Americans should honor your sacrifice,
and should be made aware of the inhuman conditions you were forced to
endure. For that reason alone, I think it is valuable that we have this
hearing today.
I am very sympathetic to the claims being advanced by the former
prisoners of war appearing before us today. They were treated with
utter contempt and in violation of the laws of war. Having said that, I
am aware that the litigation raises complex issues involving our
foreign policy powers and obligations that our courts are in the
process of resolving. As such, it would be inappropriate for me or for
this Committee to prejudge the merits of those legal issues. So I will
simply say that you have my sympathy and my attention.
I do fear that the majority's concern about this litigation does
not extend to litigation brought by other Americans looking to redress
wrongs through our States' civil justice systems. We hold this hearing
in the midst of our Committee's consideration of the so-called Class
Action Fairness Act, which would drastically reduce plaintiffs' access
to State courts, instead forcing them into federal court. It is
therefore somewhat surprising that the majority has called
representatives of the Justice and State Departments here this morning
to answer for their legal opinion that the plaintiffs in these prisoner
of war lawsuits belong not in State courts but in federal court.
I also find it somewhat ironic that we are holding this hearing so
soon after the majority fought so hard against the nomination of Judge
Richard Paez to the Ninth Circuit Court of Appeals. The U.S. Chamber of
Commerce, one of Judge Paez's most influential detractors, based its
opposition to Judge Paez solely on a preliminary ruling he authored in
the case of John Doe I v. Unocal. In that ruling, Judge Paez merely
turned down Unocal's motion to dismiss a case brought against it based
on its activities in Burma, a notorious abuser of human rights. Even
this early ruling--which still left open the possibility that Unocal
would win summary judgment in the case--was seen as too ``anti-
business'' and ``pro-human rights'' by the same majority that today
holds this hearing to show support for the litigation brought by
plaintiffs protesting human rights abuses by Japanese corporations.
As legitimate as these concerns are, however, I do not believe that
they should overshadow the testimony and the experiences of the
witnesses who are here before us today. I simply hope that we show
consistent solicitude for others who seek access to our courts. Senator Feinstein. Let me see if I understand this. If I
understand this, Mr. Bettauer, you were saying that John Foster
Dulles apparently made some agreement that there would be no
prosecution of individual claims. You say that that is binding.
Now, that may be a policy matter that was handled at the time.
When Senator Hatch asked you about a case in point, you
said, well, the case in point is being litigated at the present
time. From that, I would deduce that the legal question has not
been finally resolved as to whether this treaty can, in fact,
prevent any American from exercising their right to litigate
for damages.
Mr. Bettauer. If I may, I was trying to say that these
individual claims are currently being adjudicated. So if you
ask for something exactly on point, you don't have a decision.
Senator Feinstein. Right.
Mr. Bettauer. But there is ample authority for the
proposition that the executive branch or the President may
espouse and settle claims of U.S. nationals, and the treaty
does that and it became U.S. law. It is not just done as a
policy matter, but it was given advice and consent and
ratified, and therefore has become part of the law of the
United States.
There were hearings on this exact issue before the Senate
Foreign Relations Committee at the time, and there was a back-
and-forth about whether this was a desirable thing to do. And
the committee at the time and the Senate at the time decided to
do that, and therefore the treaty was ratified.
The Chairman. But isn't it true, Mr. Bettauer, that as a
matter of law nation states do not own the claims of their
nationals arising under domestic law? Consequently, how could
the United States ``waive'' domestic law claims that it did not
own? In other words, isn't the better reading that the United
States waived the claims it owned, namely only the
international claims of its own citizens, not the individual
claims of the citizens?
Mr. Bettauer. The treaty says claims against--it says other
claims of their nationals arising out of any action taken by
Japan and its nationals.
The Chairman. I agree it has that language, but----
Mr. Bettauer. It doesn't limit it to claims arising under
one or another system of law. When claims have an international
character, there is precedent. And I mentioned when we
normalized with the Soviet Union back in 1933, it generated a
series of cases that said that the United States may take and
settle claims, and they are very famous cases. This was all
reviewed in the case that I mentioned concerning the Iran
hostage crisis. So it is not something that is new.
The Chairman. I am aware of settling claims against
countries. What I am talking about is settling claims against
companies, not countries.
Senator Feinstein. But if I understand what he is saying,
he is saying that because the treaty has this language and this
language was discussed by the Foreign Relations Committee of
the Senate, and yet the treaty was adopted by the Senate, that
therefore it absolves any further claims.
The Chairman. Yes, that is what he is saying.
Mr. Bettauer. It becomes part of U.S. law, yes. The treaty,
under the U.S. Constitution, is the supreme law of the land,
along with statutes.
The Chairman. That is right, and it doesn't say anything
about private claims against private companies brought by
individual citizens who have a right to bring them.
Mr. Bettauer. Yes, it does, Senator.
The Chairman. Yes? Point it out to me.
Mr. Bettauer. I think we are going in circles because I
think you----
The Chairman. Well, let me do this. I would like the both
of you to reassess this. I would like you to assist the
committee more because I don't see that. I see how you are
interpreting it in a broad way. I think, Mr. Ogden, your legal
interpretation is too broad, but I would like you to reassess
this.
I also think that it is important for you to meet with the
representatives of these individual claimants. I think, in all
fairness, you should meet with the representatives of the
POW's.
Mr. Ogden. Mr. Chairman, we would certainly welcome the
opportunity to do that. We always are willing to meet with
litigants in matters of this nature, and in this case that
would be particularly so. We would be pleased to do that.
I think on the question of the meaning of the treaty, at
your suggestion, we will go back and take another look. I will
say that we have not taken this lightly to this point and have
put an enormous amount of work in.
The Chairman. But you have taken a broad-brush
interpretation, but in a very narrow way.
Mr. Ogden. Our view, having looked at the history and
reviewed the language, is that it was the intent of the United
States in the treaty to waive national-against-national claims.
The Chairman. I don't doubt that, but that doesn't waive
individual rights. That is the problem.
Mr. Ogden. You have raised, I think, a further point today,
which is the question whether, if the United States has done
that, it was a constitutional act. At least that is what I hear
your question being, whether it was a taking of property
without just compensation under the fifth amendment.
That is a separate issue. It has to do with whether there
would be claims against the United States arising out of the
operation of the treaty. I think I will go back and take a look
at that.
The Chairman. It is more than just possible claims against
the United States. It is that if those are property rights,
then the United States cannot waive them. In other words, these
people still have the right to bring them, and again not
against the Government of Japan, which the treaty supersedes--
the treaty is the highest law of the land--but against the
individual companies that exploited these people.
Well, you have both agreed to reassess and go back and give
us the benefit of your wisdom. You are both very bright people.
I believe you are both very good men, and I would like to have
you reassess this and I would like Mr. Pickering to reassess
this. And I think he ought to come when we invite him next
time. I hope you will send that message to him. We have been
friends for a long time, but when the Judiciary Committee wants
witnesses from the State Department, we want them here. And
unless they have a good excuse, we don't think they just stiff
the committee.
Senator Sessions. Mr. Chairman, would he also respond to
the chairman's inquiry about other nations, that escape valve
clause and why that wouldn't apply?
The Chairman. Well, that is right.
Senator Sessions. If Burma gets special privileges, why not
American citizens? I would like you to address that question,
also.
The Chairman. Well, that is all part of this, and that is a
very good point that you are making.
Mr. Ogden. Would you like me to address it now, or are you
asking us to go back and do it?
The Chairman. We would like you, in your reassessment, to
take that into consideration that individual Burmese were
compensated, and in that particular case, I believe, by the
treaty and by the government. Under 26, it seems to me that
opens the door for our POW's as well.
But we will look forward to getting more advice and counsel
from you, OK?
Mr. Bettauer. Yes.
The Chairman. All right. Well, thank you so much. We
appreciate both of you being here.
Mr. Ogden. Thank you.
The Chairman. I am very pleased to now introduce the
witnesses on our second panel. We are very fortunate to have a
distinguished group of former POW's, as well as Prof. Harold
Maier from the Vanderbilt School of Law.
Let me say that our panel of POW's is representative. In
preparing for these hearings, we have heard from many
remarkable individuals--former POW's, family members, scholars
and activists who work on veterans issues. The men before us
today are representatives of all the POW's, their families, and
those who have struggled on their behalf. I know we have a
number of former POW's and family members in the audience, some
of whom traveled great distances to be here today, and we
deeply appreciate your presence here today.
Let me introduce the panel. Mr. Harold Poole is from Salt
Lake City, UT, and served in the 20th Pursuit Squadron of the
Army Air Corps in the Philippines. Mr. Poole earned a Silver
Star for valor in combat during the intense fighting that broke
out after Pearl Harbor. Following his capture and survival of
the Bataan Death March, Mr. Poole was shipped to Japan and
forced into labor for Nippon Steel.
Frank Bigelow currently resides in Brooksville, FL. He is a
Navy veteran who once served aboard the U.S.S. Arizona. After
being transferred to the Philippines, he was eventually
captured by the Japanese in May 1942. Mr. Bigelow survived the
horrific journey to Japan aboard the hell ships and was
eventually taken to Omuta Camp 17, where he was forced to work
in a coal mine operated by the Mitsui Mining Co. Beaten and
tortured, Mr. Bigelow eventually lost a leg from the dangerous
conditions of the mine.
Maurice ``Mo'' Mazer now hails from Boca Raton, FL. After
surviving the Bataan Death March, Mr. Mazer was shipped to
Japan and forced to labor for Mitsubishi in copper and smelter
mines. He has been active in veterans organizations and is a
former Commander of the American Defenders of Bataan and
Corregidor.
Dr. Lester Tenney is a retired professor from Arizona State
and San Diego State Universities. In 1941, he joined the
Illinois National Guard and was sent to the Philippines, where
he was eventually captured. Dr. Tenney was also forced into
labor in the coal mines of Japan. He has written a fascinating
book of his experiences entitled ``My Hitch in Hell,'' which is
an inspiring account of the indomitable human spirit. It
demonstrates how these remarkable men pulled together and
helped each other make it through their ordeal. I highly
recommend it to all of you.
Ed Jackfert is the National Commander of the American
Defenders of Bataan and Corregidor, a national veterans
organization devoted to the men who served there. Mr. Jackfert
is a veteran of the Army Air Corps and is himself a former POW
held by the Japanese.
Finally, we are pleased to have with us a very
distinguished legal scholar, Prof. Harold Maier, of the
Vanderbilt School of Law. Professor Maier is an expert in
international law and has studied the 1951 Peace Treaty with
Japan.
We welcome all of you here today. Before we hear opening
statements from our panel, I would like to recognize some of
the organizations which are represented here today and who have
expressed support for the committee's efforts. If you are
representing a group, please rise at the time I mention your
name.
We are pleased to have representatives from the VFW, the
American Legion, the American Ex-POW's, the American Defenders
of Bataan and Corregidor, the Center for Internee Rights,
U.S.S. Houston Survivors, Philippine Scouts Heritage Society,
Jewish War Veterans, the Disabled American Veterans, and
Admiral Nimitz Museum. All of you are here. We are grateful to
have you here and we welcome you before the committee. Thank
you very much. [Applause.]
Many other organizations, such as the Simon Wiesenthal
Center, could not be here today, but have expressed support for
the committee's efforts, and those statements will be made a
part of the record.
So we thank all for your participation here today.
Let's turn to Mr. Poole at this time. PANEL CONSISTING OF HAROLD W. POOLE, FORMER WORLD WAR II
PRISONER OF WAR IN JAPAN, SALT LAKE CITY, UT; FRANK BIGELOW,
FORMER WORLD WAR II PRISONER OF WAR IN JAPAN, BROOKSVILLE, FL;
MAURICE MAZER, FORMER WORLD WAR II PRISONER OF WAR IN JAPAN,
BOCA RATON, FL; LESTER I. TENNEY, FORMER WORLD WAR II PRISONER
OF WAR IN JAPAN, LaJOLLA, CA; EDWARD JACKFERT, FORMER WORLD WAR
II PRISONER OF WAR IN JAPAN, AND COMMANDER, AMERICAN DEFENDERS
OF BATAAN AND CORREGIDOR, INC., WELLSBURG, WV; AND HAROLD G.
MAIER, PROFESSOR OF LAW, VANDERBILT UNIVERSITY, NASHVILLE, TN
STATEMENT OF HAROLD W. POOLE
Mr. Poole. Good morning, Mr. Chairman and members of the
committee, and thank you, Senator Hatch, for your kind remarks
in introducing me.
As previously indicated, my name is Harold Wood Poole. I am
an 81-year-old widower living in Salt Lake City, UT. I have a
son and a daughter and nine grandchildren. I retired 20 years
ago from the U.S. Postal Service, having served 30 years as a
letter carrier.
In 1940, I volunteered in the U.S. Army Air Corps. After a
brief period of training in California, my unit, the 20th
Pursuit Squadron, was shipped out to the Philippine Islands. I
was assigned to the armament section and worked on the guns of
our planes.
Life in the Philippines was initially quite pleasant until
war broke out. I was stationed at Clark Field, northwest of
Manila. Waves of Japanese planes bombed the field, going after
our planes and munitions. I will simply say, hoping not to
appear immodest, that I received the Silver Star for valor in
combat for my action in shooting down a Japanese plane that
day.
After holding the invading Japanese at bay for 4 months,
the decision was made to surrender the U.S. forces. We were cut
off, out of food, ammunition, medicine, and supplies. I will
tell you it was a bleak day. Many bleak days followed--3\1/2\
years, to be exact. The Japanese guards continually berated us
as cowards for surrendering, saying that we disgraced our
country, ourselves, and our families, and didn't deserve to be
alive.
They refused us the dignity of the title ``prisoner of
war.'' Rather, they referred to us as captives, and as such we
had no rights. There were 200 members in our squadron who
surrendered, and only 50 of them came home. Out of those 50,
there are just a couple over 20 left.
I was shipped to Japan in one of the so-called hell ships.
Having survived the death march and the hell ships, my greatest
challenge was still ahead--20 months of forced slave labor for
Nippon Steel Corp. We worked 7 days a week, 10 hours a day. We
were starved, beaten, and abused. We suffered disease,
deprivation, and depression. I nearly died twice, once from
malaria in the Philippines and the other time from pneumonia in
Japan.
We suffered from dysentery, beriberi, scurvy, pellagra, and
jaundice, and a lot of these diseases were resulting from
starvation rations which we had to put up with. If you became
too ill to work, these already meager rations were further cut
in half. Before the war broke out, I weighed 180 pounds, and
when we were finally liberated I weighed 97 pounds.
We worked at Nippon Steel doing heavy labor. Sometimes, we
unloaded freight cars, worked to supply a blast furnace, or
unloaded ships. If you didn't work hard or fast enough, you
were beaten. For a long time, we were not allowed to receive or
send mail. It was 2 years before my mother even knew whether I
was dead or alive.
I mentioned previously that only 50 of us came home from
the war. I have often wondered why I survived and why so many
of my buddies did not. Obviously, these are questions whose
answers are ultimately known only to God, but I attribute my
survival to Him. I am a religious man and I believe my Heavenly
Father heard and answered my prayers while I was a prisoner of
war. My faith in Him and my country gave me the strength to
hang on when there was nothing else to hold on to.
Now, over 50 years later, I think I know why my life was
preserved. I am here today to speak not only for myself, but
for all those young men who never came home. I am here to ask
for your help as I seek justice not only for me, but for all of
us who served and suffered, both living and dead. Justice has
long been delayed, but it was not be denied.
I am skipping over a little of it that has been covered
already, Senator Hatch, by your explanation in your first
presentation.
So what I simply ask today, Mr. Chairman, is for your aid
and assistance in helping us right this wrong. If the United
States is not going to support us, then for heaven's sake they
should not oppose us. I have confidence and trust in our
American system of justice. I know if you will just allow us
our day in court, our cause will speak for itself. As for me
and my buddies, I will speak for those who are no longer here
to speak for themselves. Please help us have that opportunity.
Thank you. I would be happy to respond at the appropriate
time to any questions you may have.
[The prepared statement of Mr. Poole follows:] Prepared Statement of Harold W. Poole
Good Morning Mr. Chairman, and members of the Committee. And thank
you Senator Hatch for your kind remarks in introducing me. As
previously indicated, my name is Harold Wood Poole. I am an 80-year-old
widower living in Salt Lake City, Utah. I have a son and a daughter,
and nine grandchildren. I retired 20 years ago from the United States
Postal Service, having served 30 years as a letter carrier.
As a young man many years ago, I joined the United States Army in
1940. After a brief period of training in California, my army air corps
unit, the 20th Pursuit Squadron, was shipped out to the Philippine
Islands. I was assigned to the armament section, and worked on the guns
on our planes. Life in the Philippines was initially quite pleasant
until war broke out.
I don't have to tell you anything about Pearl Harbor. It is all
well known and well documented history. But what is not so well known
was the Japanese attack on the Philippines the day after Pearl Harbor.
I know, I was there. I was stationed at Clark Field, northwest of
Manila. Waves of Japanese planes bombed and strafed the field, going
after our planes and munitions. I will simply say, hoping not to appear
immodest, that I received the Silver Star for Valor in Combat for my
actions in shooting down a Japanese plane that day. But I did not
receive that medal until after the war, and a lot happened in between.
That's what I want to tell you about today.
After holding the invading Japanese at bay for four months, the
decision was made to surrender the U.S. forces. We were cut off, out of
food, ammo, medicine and supplies. I will tell you it was a bleak day.
Many bleak days followed. 3\1/2\ years to be exact. The Japanese guards
continually berated us as cowards for surrendering, saying that we
disgraced our country, ourselves, and our families, and didn't deserve
to be alive. They refused us the dignity of the title, ``Prisoner of
War.'' Rather, they referred to us as ``captives,'' and as such, we had
no rights.
You have all heard about the infamous Bataan Death March. Well, I
lived it. Six days and nights of pure hell. We were already weak and
ill before we began. We walked in stifling tropical heat, without
water, food or adequate rest. We were prodded along by bayonets, and,
if you failed to move fast enough, you were run through with the
bayonet. I lost a lot of buddies on the march. I lost a lot more over
the next 3\1/2\ years. Two hundred members of my squadron surrendered.
Only 50 ever came home. There are now only about 20 of us left. I was
shipped to Japan in one of the so-called ``hell ships.'' Having
survived the Death March and the hell ships, my greatest challenge was
still ahead. Two years of forced slave labor for Nippon Steel
Corporation. We worked 7 days a week, 10 hours a day. We were starved,
beaten and abused. We suffered disease, deprivation and depression. I
nearly died twice, once from malaria, the other time from pneumonia. We
suffered from dysentery, beriberi, scurvy and pellagra. Many of these
diseases resulted from surviving on starvation rations. If you became
too ill to work, these already meager rations were further cut in half.
Before the war broke out, I weighed 180 pounds. When we were finally
liberated I weighed 97 pounds.
We worked at Nippon Steel doing heavy labor. Sometimes we unloaded
freight cars, worked to supply a blast furnace, or unloaded ships. If
you didn't work hard or fast enough, you were beaten. For a long time,
we were not allowed to receive or send mail. It was several years
before my mother even knew whether I was dead or alive. But with all
due respect, most of what we experienced and lived through cannot be
fully or adequately described. Suffice it to say, you had to be there.
I mentioned previously that only 50 of us came home from the war. I
have often wondered why I survived and why so many of my buddies did
not. Obviously, these are questions whose answers are ultimately known
only to God. But I attribute my survival to Him. I am a religious man,
and I believe my Heavenly Father heard and answered my prayers while I
was a prisoner of war. My faith in Him, and my country, gave me the
strength to hang on when there was nothing else to hold on to. And now,
over 50 years later, I think I know why my life was preserved. I am
here today to speak not only for myself, but also for all those young
men who never came home. I am here to ask for your help as I seek
justice not only for me, but for all of us who served and suffered,
both living and dead. Justice has been long delayed, but it must not be
denied.
I am currently a plaintiff in a lawsuit seeking justice. I am not
alone. Other POW survivors are involved as well. Our lawsuit is not
against the Japanese Government--nor the Japanese people. I have long
since forgiven them. Indeed, as a practicing Mormon, I sent my son to
Japan for two years to serve as a missionary. We are all God's
children.
But forgiveness does not eliminate the demands of justice. My
lawsuit is against Nippon Steel--the corporation which benefited
directly from my forced slave labor. I want the world to know what
happened to me and my fellow soldiers who were forced to work under
such despicable conditions for Nippon Steel.
I am not a lawyer, but my attorneys tell me that a similar lawsuit
such as mine was brought in New Jersey by survivors of the Holocaust.
Many of them were slave laborers as well. In that case, I am told, the
Department of Justice was requested to submit the position of the
United States concerning the suit. The Department of Justice took no
position. But now I am told that the Department of Justice has taken a
position opposing our right to bring suit and to seek justice for the
Pacific survivors of forced slave labor. I acknowledge that I am not
educated in the law--but I think I know what is fair--and what is
right. And I am here to respectfully tell you that it is neither fair
nor right for the United States Government to take such a position
against American soldiers--albeit over 50 years later--who when called
upon so many years ago--faithfully answered their country's call.
So what I simply ask today, Mr. Chairman, is your aid and
assistance in helping us right this wrong. If the United States is not
going to support us, then for heaven sakes, they should not oppose us.
I am told that there are very strong legal arguments why we should be
allowed our day in court. Obviously, I believe there are equally strong
equitable reasons as well. I have confidence and trust in our American
system of justice. I know if you will just allow us our day in court,
our cause will speak for itself. As for me and my buddies, I will speak
for those who are no longer here to speak for themselves. Please help
us have that opportunity.
Thank you. I would be happy to respond at the appropriate time to
any questions you may have. The Chairman. Thank you.
Mr. Bigelow. STATEMENT OF FRANK BIGELOW
Mr. Bigelow. I want to thank you for allowing me to speak
to you today. I want to give special thanks to Senator Hatch,
from Utah, for his efforts. I am Frank Bigelow, formerly seaman
second class. I am now 78 years old and residing in
Brooksville, FL. I am here to speak for the POW's from World
War II.
Bullets, exotic diseases, and starvation couldn't kill us.
Neither could 2 years of slave labor, being beaten, nearly
beheaded, by the masters we were forced to serve. It is that
strength that brings me here today. Justice is long overdue for
the thousands of World War II veterans.
No doubt, you have heard of Omuta Camp 17, where your
fathers, sons, and brothers were forced to do hard labor. We
were defending a beach on Corregidor when thousands of
Americans and Filipino troops were taken prisoner by the
Japanese. I knew right then that I was going to make it. When
they hauled down the American flag, ground it into the Earth,
urinated on it, it made me sick, and we held a lot of guys back
to keep them from fighting the Japanese because they would have
had their heads cut off immediately.
I loved my flag and I loved my country. I was 20 years old
and half a world a way from my home in North Dakota. I
contracted malaria, jaundice, diarrhea, and dysentery all at
the same time, and I forced myself to eat charcoal to save my
life.
After a year, the Japanese asked for 500 POW volunteers to
go to another camp, and after 3 weeks at sea we found ourselves
in Omuta, Japan. That was August 1943, Camp 17. Everyday the
Japanese Army delivered us to a coal mine owned by Mitsui, one
of the biggest business conglomerates in Japan, and we were
their slave labor. Mitsui Mining was right up there in front
and we were told to work or die--long hours, short rations.
Usually, tiny portions of rice and seaweed soup could barely
sustain us as we were doing physical, heavy labor. I was skin
and bones, and at 6 foot, 4 inches, I weighed just 95 pounds.
We worked as many as 27 days straight and we were beaten
badly. Since my bones were so brittle from malnutrition, one
night when a huge rock fell on my leg it broke my bones like
old dead twigs. There was another American POW, Dr. Thomas
Hewlett. He improvised with two sharpened bicycle spokes, one
through my knee and one through my ankle. It didn't work.
Eventually, I got gangrene, and due to lack of choice, since we
had no medical supplies, much less surgical supplies, we had to
do what was called a guillotine operation.
He had a hacksaw blade and a razor blade, some knives, and
four guys holding me. He resorted to a primitive method to
battle the growing infection. He put maggots inside the
bandage, and when he took them out and pulled out the
infection, that man saved my life and my leg--the rest of my
leg, I should say.
Japan surrendered, and at the age of 24 I left that
prisoner of war camp thinking only of my freedom in America.
Former Navy and Marine prisoners of war were shipped to Guam,
and when we reached Guam Navy intelligence officers took us one
on one into rooms. We were each handed a paper headed
``Restricted.'' I have that right here. This subject was
restricted, ``Publicity in Connection with Liberated Prisoners
of War.'' We were told to read and sign and keep our mouths
shut, and I am just putting that politely. We were young, we
were scared, and yearning to get home. We would have signed
almost anything to do this.
And what do I think the company owes us? My leg, a couple
of years of our lives, and at least miner's wages for what we
did. Most of all, they owe us an apology. It was war time, and
as prisoners of war we were supposed to be treated humanely,
fed, given a decent place to live, and medical treatment. We
received absolutely none of these.
If our lawsuits go to trial against the biggest and richest
companies in the world, Mitsubishi, Nippon and Mitsui among
them, we hope that photos taken by Terence Kirk will help our
case. Terence built his own camera and he took six pictures.
That is all he got away with. We want to use them as evidence
against the Japanese who enslaved us, industrialists whose
companies used prisoners of war as slave labor and were never
tried. The photos were never used. We feel it is only fair to
hold these companies accountable.
In closing, may I say protect your freedom and your flag
with your life, if it is necessary. It is the most important
thing any American will ever have.
Thank you.
The Chairman. Well, thank you, Mr. Bigelow. We appreciate
your testimony very much.
We will go to you, Mr. Mazer. We are happy to have you
here. STATEMENT OF MAURICE MAZER
Mr. Mazer. Good morning, Senator Hatch.
The Chairman. Good morning.
Mr. Mazer. My name is Maurice Mazer. I am one of the
survivors of the Bataan Death March and 42 months' imprisonment
in various camps, both in the Philippines and Japan. I was
proud to serve as the National Commander of the American
Defenders of Bataan and Corregidor for 1952 and 1953.
I thank you for holding this hearing on our behalf today to
call attention to those who served in the Pacific during World
War II and were captured by the Japanese. We became slave
laborers of private Japanese companies after our surrender and
suffered unspeakable torture under our captors. Our Government
has never recognized our sacrifice, and the Japanese companies
who enslaved us have never compensated us. Further, we have
never been compensated by our Government and have not received
an apology from anyone. We deserve closure.
I was imprisoned in Hanawa Camp in Japan. Each morning, the
Japanese soldiers turned me and my fellow prisoners of war over
to the guards for Mitsubishi Mining, a private company which
enslaved us for its own profit and forced us to work in its
copper mines and smelter mines. I was beaten unmercifully by
the Mitsubishi guards and had my back broken in the mines when
one of the guards ran a car carrying a mine operative into me,
slamming me against the wall of the mine. Today, I suffer
numerous health problems directly attributed to the time I
spent as a slave laborer.
It is absolutely unconscionable that our Government has
awarded reparations to Japanese-American citizens who were in
the United States relocation camps during World War II, many of
whom were proven to be spies and Japanese sympathizers, and has
ignored the plight of its military men and women who were
enslaved by the Japanese. It is incomprehensible to me that our
Justice Department has taken a position against our American
prisoners of war who became slave laborers at the hands of
private Japanese companies during the war.
At the same time, the Justice Department made a conscious
decision not to interfere with claims pending on behalf of the
Holocaust survivors. Those of us interned by Mitsubishi,
Mitsui, Nippon, Ishihara Sangyo, and many other Japanese
companies suffered our own holocaust and this has never been
recognized. This terrible injustice needs to be rectified as
soon as possible. We, who are the victims, are old and dying
off. We have waited too long for our private hell to end. It is
a time for closure.
Thank you for having this hearing. I appreciate your
efforts to rectify injustices that I and those I was imprisoned
with had to endure. I hope that through your efforts, I and
those I was enslaved with will find our peace.
Thank you.
The Chairman. Well, thank you, Mr. Mazer.
We have a vote on and there are only about 5 minutes left
for me to get there. I think what I will do is recess for just
a few minutes so I can go vote, because I would like to hear
the whole testimony. Of course, if Senator Sessions comes back,
he will continue the testimony.
You will be next, Dr. Tenney, and if you don't mind
waiting, I don't have any choice; I need to get over there and
vote. So we will recess until I can get back or Senator
Sessions gets here.
[The committee stood in recess from 12:04 p.m. to 12:30
p.m.]
The Chairman. I apologize for the delay, but that is the
best we can do when we have votes around here.
We will turn to you, Dr. Tenney. I am sorry that you had to
wait to give your testimony until now. STATEMENT OF LESTER I. TENNEY
Mr. Tenney. Mr. Chairman, members of the committee, in
early 1942, along with 12,000 other Americans who were fighting
and defending our country on the Bataan Peninsula, I was
promised supplies, food, and reinforcements by our Government.
As history shows, that promise was never fulfilled.
During one of President Roosevelt's fireside chats made in
February 1942, as we sat in our tanks we listened to him say
that in every war there are those who must be sacrificed for
the benefit of the whole war effort. We suddenly realized he
was talking about us. We were being sacrificed and abandoned
for the benefit of the overall war effort.
Well, Senators, we were well able to do that. After all, we
were proud young men and women serving our country, and we took
an oath to protect our country at all costs. Then on April 9,
1942, Bataan surrendered. We then found ourselves prisoners of
war. I would like to take just a moment to share with you what
it was like being a prisoner of war of the Japanese.
First of all, you are stripped of every human right you
thought you had. You are constantly reminded of the fact that
you are cowards, that you are lower than dogs, that you have no
rights whatsoever. You are humiliated beyond belief, and your
faith and morals are challenged on a daily basis. Sickness and
diseases like dysentery, malaria, beriberi, scurvy, and
pellagra run rampant in your body. Beatings become an everyday
occurrence, and you are deprived of adequate food. You can see
that picture there, Senator. That is what we looked like.
Well, here we are, 58 years later, and we are once again
informed that we are being sacrificed and abandoned by our own
Government, but this time not for the war effort, but instead
for the benefit of those large Japanese industrial giants who
profited from our slave labor. I once again feel that I have
been taken prisoner, but this time by my own country. I have
been able to take the beatings, but now I have to take the
beatings with words from our own country.
How has this come to be? Well, the California legislature,
as was mentioned earlier, unanimously passed a statute that was
enacted into law allowing claims for compensation for those
veterans who were used as slave laborers to go forward in the
courts, irrespective of the running of the statute of
limitations. Pursuant to this law, I, along with many of my
former POW friends who were enslaved by Japanese companies
during World War II, have since filed lawsuits seeking
reparations, equality, and justice.
Shockingly, the U.S. Department of Justice has recently
filed a court submission, the effect of which would nullify the
action of the California legislature. Why is it, then, that the
Justice Department at the same time had taken a hands-off
position with regard to the same treaty issues as in the German
Holocaust case?
The actions of the Justice Department and the State
Department is incomprehensible to me, to allude to the fact
that our State Department places more emphasis on the documents
of the treaty than on the actual treaty itself. I am speaking
as one of the survivors of the infamous Bataan Death March and
over 3\1/2\ years as a prisoner of war. Ultimately, I was taken
to Japan on a hell ship. Once there, I became a slave laborer
in a Mitsui coal mine. I was forced to shovel coal 12 hours a
day, 28 days a month, for over 2 years.
And the reward I received for this hard labor? Beatings by
the civilian workers in the mine, and the reason for the
beatings were because I did not work fast enough, did not
shovel enough coal that day, or because the Americans won an
important battle. We got to know how the war was progressing by
the frequency and severity of the beatings. And, of course, the
beatings were usually with pick axe, hammer, chains, or
whatever the Mitsui overseer was able to get in their hands.
Now, I, along with many of my former POW friends, are
seeking justice from the Japanese companies that placed us into
servitude, and they took pleasure in our humiliation. Our
plight for recognition of this wrong has been ignored for the
past 55 years, and more recently is being denied by our own
Government. Those of us who were fortunate enough to survive
are coming to the end of our lives and we would like once and
for all to see justice done on our behalf.
We cannot recapture our youth or our health. Frank here
cannot get his leg back. But we would like to recapture our
honor and our dignity that was taken away from us. The very
least our country should do is not stand in the way by
compounding our servitude. It is not money that motivates us;
it is a need to remind the world of the importance of basic
human rights and dignity. A wrong is a wrong, no matter how
many people are doing it.
The Justice Department erroneously or negligently issued a
formal submission to the courts of our Nation, omitting the
most crucial issue of the San Francisco Peace Treaty, and, in
effect, took away our rights for recovery. Section 26, known as
the most-favored-nation clause, states: Should Japan make a peace settlement or war claims
settlement with any state granting that state greater
advantages than those provided by the present treaty,
those same advantages shall be extended to the parties
to the present treaty. The records of our State Department show that at least six
other nations have been granted more favorable treaty terms
than those given to the United States. Article 26, when
properly interpreted, allows victims of forced or slave labor
to seek recovery for the wrongs perpetrated against former
prisoners of war during World War II. Yet, the Justice
Department studiously ignored it in its Statement of Interest
and mentioned not one word of article 26, even though it had
been briefed on this issue. I urge you, Senators, to use your
position within our Government to correct this wrong and have
our Justice Department turn away from this misguided action.
Mr. Chairman, Senators, this is not a tirade against Japan
as a nation. I have no animosity toward the Japanese people.
However, I and my colleagues who have served the United States
and fought in Bataan are entitled to compensation and an
apology from the Japanese companies that enslaved us. I heard
the statement of Mr. Ron Bettauer. The debt he is talking about
can be paid by helping us or getting out of our way.
Thank you, Senators, for listening to my story about honor,
injustice, and responsibility. We served our country with
h