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                                                        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 Answers
Responses 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