<DOC> [106 Senate Hearings] [From the U.S. Government Printing Office via GPO Access] [DOCID: f:65766.wais]
S. Hrg. 106-585
FORMER U.S. WORLD WAR II POW'S: A STRUGGLE FOR JUSTICE
=======================================================================
HEARING
before the
COMMITTEE ON THE JUDICIARY
UNITED STATES SENATEONE HUNDRED SIXTH CONGRESS
SECOND SESSION
on
DETERMINING WHETHER THOSE WHO PROFITED FROM THE FORCED LABOR OF AMERICAN WORLD WAR II PRISONERS OF WAR ONCE HELD AND FORCED INTO LABOR FOR PRIVATE JAPANESE COMPANIES HAVE AN OBLIGATION TO REMEDY THEIR WRONGS AND WHETHER THE UNITED STATES CAN HELP FACILITATE AN APPROPRIATE RESOLUTION
__________
JUNE 28, 2000
__________
Serial No. J-106-94
__________
Printed for the use of the Committee on the Judiciary
COMMITTEE ON THE JUDICIARY
ORRIN G. HATCH, Utah, Chairman
STROM THURMOND, South Carolina PATRICK J. LEAHY, Vermont CHARLES E. GRASSLEY, Iowa EDWARD M. KENNEDY, Massachusetts ARLEN SPECTER, Pennsylvania JOSEPH R. BIDEN, Jr., Delaware JON KYL, Arizona HERBERT KOHL, Wisconsin MIKE DeWINE, Ohio DIANNE FEINSTEIN, California JOHN ASHCROFT, Missouri RUSSELL D. FEINGOLD, Wisconsin SPENCER ABRAHAM, Michigan ROBERT G. TORRICELLI, New Jersey JEFF SESSIONS, Alabama CHARLES E. SCHUMER, New York BOB SMITH, New Hampshire
Manus Cooney, Chief Counsel and Staff Director
Bruce A. Cohen, Minority Chief Counsel
(ii)
C O N T E N T S----------
STATEMENTS OF COMMITTEE MEMBERS
Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........ 1 Feinstein, Hon. Dianne, U.S. Senator from the State of California 5 Grassley, Hon. Charles E., U.S. Senator from the State of Iowa... 22 Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont... 23
CHRONOLOGICAL LIST OF WITNESSES
Statement of Hon. Jeff Bingaman, U.S. Senator from the State of New Mexico.................................................. 3 Panel consisting of David W. Ogden, Acting Assistant Attorney General, Civil Division, U.S. Department of Justice, Washington, DC; and Ronald J. Bettauer, Deputy Legal Adviser, Department of State, Washington, DC............................ 6 Panel consisting of Harold W. Poole, former World War II prisoner of war in Japan, Salt Lake City, UT; Frank Bigelow, former World War II prisoner of war in Japan, Brooksville, FL; Maurice Mazer, former World War II prisoner of war in Japan, Boca Raton, FL; Lester I. Tenney, former World War II prisoner of war in Japan, LaJolla, CA; Edward Jackfert, former World War II prisoner of war in Japan, and commander, American Defenders of Bataan and Corregidor, Inc., Wellsburg, WV; and Harold G. Maier, professor of law, Vanderbilt University, Nashville, TN.. 28
ALPHABETICAL LIST AND MATERIALS SUBMITTED
Bettauer, Ronald J.:
Testimony.................................................... 10
Prepared statement........................................... 14
Bigelow, Frank: Testimony........................................ 31
Bingaman, Hon. Jeff: Testimony................................... 3
Jackfert, Edward: Testimony...................................... 35
Maier, Harold G.:
Testimony.................................................... 38
Prepared statement........................................... 39
Mazer, Maurice: Testimony........................................ 32
Ogden, David W.:
Testimony.................................................... 6
Prepared statement........................................... 8
Poole, Harold W.:
Testimony.................................................... 28
Prepared statement........................................... 29
Tenney, Lester I.: Testimony..................................... 33 APPENDIX
Questions and AnswersResponses to questions of Senator Hatch from:
The Department of Justice.................................... 47
Ronald J. Bettauer........................................... 53Additional 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, DCSTATEMENT 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
honor, we have had our share of injustice, and now we seek
responsibility from our Government in allowing us to be heard
in a court of justice.
Thank you.
The Chairman. Thank you, Dr. Tenney. I appreciate your
great testimony.
Mr. Jackfert.STATEMENT OF EDWARD JACKFERT
Mr. Jackfert. Mr. Chairman and members of the Senate
Judiciary Committee, the American Defenders of Bataan and
Corregidor, Inc., deeply appreciates this opportunity to speak
to your committee today.
My name is Edward Jackfert. I recently completed my second
term as National Commander of American Defenders of Bataan and
Corregidor, Inc. This gave me the opportunity to know most of
the members, the problems they encountered during the war in
prisoner of war camps, and subsequent mental and physical
problems that emanated from their internment.
These heroic defenders of the Philippines, Guam, Wake
Island, the Dutch East Indies fought with what they had, and no
army has ever done so much with so little. Upon the surrender
of the Philippines, many were subjected to a death march and
horrible prisoner of war camp conditions. They were then
squeezed into the filthy allotted space in the bowels of the
hell ships and transported to Japan. Maybe there was still some
physical strength left in them to work for the Japanese
industrialists, or perhaps they could serve as barter should
the Japanese militarists need them for such.
Devoid of any comforts, without food or water, and not even
the courtesy to mark the ship as carrying prisoners of war,
they sailed through the battle-infested waters toward Japan.
They saw the smack of a torpedo or a bomb as it hit their ship.
They saw the rushing waters that entered the hold and they felt
panic that said ``this is it.'' There was terror written in
deep, gaunt lines on the faces of the men, men that were to the
breaking point both mentally and physically. Many died aboard
the hell ships and were buried at sea. We have a record of
3,632 POW's dying on these hell ships.
Those that arrived in Japan were assigned to quarters which
were unfit for human living. They were starved, beaten, and
then assigned to Japanese industrialists as slave labor to work
in plants, mines, shipyards, and factories. Many died of
starvation and severe mistreatment by the Japanese
industrialists in Japan. There were 27,465 Americans captured
and interned by the Japanese military during World War II. Of
these, 11,107 died while they were prisoners of war, and only
16,358 were returned to military control of the U.S. Armed
Forces.
Those who have survived the barbaric treatment in these
prisoner of war camps suffer immensely today from the residual
effects of their prisoner of war life. It took our Government
36 years to recognize by law certain disabilities resulting
from the atrocious treatment of prisoners of war by the
Japanese military and industrialists.
Those few who came home continually looked to their
Government to seek some redress from the Japanese
industrialists who used them as slave labor during World War
II. As of this date, they have found none. What they did
receive was a peace treaty with Japan that many claim denies
them compensation for violation of their human rights.
With the help of a few civic-minded attorneys and other
individuals in various parts of the United States, the prisoner
of war community has initiated a drive for justice against
those Japanese industrialists that used them as slave labor. A
number of lawsuits have been recently filed in the State of
California on behalf of these former prisoners of war. These
complaints were filed against those Japanese firms that
benefited from their slave labor during World War II. Hopes
were high that perhaps justice might now prevail for this
group.
However, the prisoner of war community has been recently
informed that the U.S. Department of Justice has issued an
opinion that supports an incorrect interpretation of the Peace
Treaty with Japan dated September 8, 1951, which could
foreclose the rights of POW's under California law.
This action by the Justice Department is in direct
contradiction to a letter written by the Justice Department to
Judge John W. Bissell, Newark, NJ, that requested the
Department to appear as a friend of the court in two slave
labor claims on behalf of persons forced to work in German
factories during World War II. The Civil Division of the
Department of Justice respectfully declined the request of
Judge Bissell to become involved in this particular litigation.
It is very apparent that the Justice Department made a
determined decision only 6 months ago not to interfere with
claims pending on behalf of Holocaust slave labor victims,
whereas in our slave labor cases they have taken a position
which is detrimental to such claims on behalf of slave labor
victims of the Japanese industrialists.
These former prisoners of war are bewildered that the
Justice Department chose to take such a position which
interferes with the rights of private citizens to bring claims
against private Japanese companies. Is this what we fought for?
Is this what some of our comrades died for? Is this justice?
Are they using a double standard in their decisions relative to
Holocaust slave labor victims and the slave labor performed by
American prisoners of war?
We have many veterans in the audience here today, members
of the VFW, the American Legion, DAV, AMVETS, Military Order of
the Purple Heart Association, American Ex-POW's, Center for
Internee Rights, U.S.S. Houston Survivors, Jewish War Veterans,
Philippine Scouts, and a number of other veterans
organizations. Is this the freedom and justice that they fought
for?
I was interned at Tokyo Area Prisoner of War Camp No. 2,
Kawasaki, Japan. Our camp was in the middle of a highly
industrial area centered on Tokyo Bay midway between Tokyo and
Yokohama. I was forced to work for Nippon Steel, Showa Denko,
Mitsui Co., and Kokosho. Beginning in January 1945, our area
was subjected to continual heavy bombing by B-29's. On many
occasions, we had to perform slave labor while bombing raids
were going on around us, with planes flying right over our
heads. We were not permitted to construct air raid shelters
until June 1945.
On July 25, 1945, our area was subjected to a heavy
demolition bombing which destroyed our camp and killed 22 of
our fellow prisoners of war. The next day, we had the task of
picking up the pieces of flesh of our dead comrades. The memory
of this haunts us to this day.
Since the end of World War II, neither the Japanese
Government nor those private industrial Japanese companies that
enslaved our soldiers have ever offered to make restitution for
the abuses and injuries we suffered, much less to offer an
apology. It is time for the U.S. Government to act honorably
and quickly to close this dark chapter and afford these former
prisoners of war the dignity that was taken away from them many
years ago.
Once again, I thank you for being able to appear before you
today.
The Chairman. Well, thank you, Commander. We are happy to
have you here.
Professor Maier, we will take your testimony at this time.STATEMENT OF HAROLD G. MAIER
Mr. Maier. Thank you. I have a note from Mr. O'Brien
indicating that you are running short of time, and I am aware
of that.
The Chairman. Well, if you could summarize, it would be
great.
Mr. Maier. That is exactly what I wanted to do. You have a
written statement from me, which is much longer than I was
going to deliver anyway and deals with the same issues.
The Chairman. We will put your complete statement in the
record and anything else you care to provide us.
Mr. Maier. I do have a few comments I would like to make on
some of the other testimony today. I thought I would just say
one thing about that which will take about 1 minute.
The Chairman. Sure.
Mr. Maier. I was somewhat surprised at Mr. Bettauer's
testimony from the State Department, although I fully
understand the problems of international diplomacy and how they
sometimes tend to run counter to the legal issues with which we
have to deal. But my concern with it was two-fold--perhaps just
one.
I think it is a very dangerous precedent for the Department
of State to take the position that the plain language of a
treaty--and I am referring now to the most-favored-nation
clause--can be interpreted somehow in the light of a single,
nonstated objective with which that claim was put into the
treaty. I know of no public position taken like that, and I
know of no legal support for it.
When you write it down and you negotiate it, it is just
like a piece of law, and that is what the Constitution of the
United States says. The treaty is the supreme law of the land
and I think we have to interpret it in the way in which we
normally interpret the supreme law of the land when that is
written by the Congress and signed by the President. So I was
concerned about that, and I don't think that that is the way in
which one interprets this treaty in any event, and I have
addressed that in the paper.
I do want to say one other thing. We have also two papers,
one by Prof. John Rogers of the University of Kentucky, and the
other by Prof. Michael Ramsey, who is a professor of law at the
University of San Diego Law School. I have read both of these
papers and if you do not have them, I would very much like to
ask that you put those into the record as well.
The Chairman. Without objection, we will do that.
Mr. Maier. I have read both of them, and I haven't
consulted with either of them, but on the basis of my
experience as a teacher and a scholar I believe that both
papers are excellent analyses and support conclusions I would
strongly recommend to this committee.
[The prepared statements of Prof. Michael D. Ramsey and
Prof. John M. Rogers appear in the Appendix.]
Mr. Maier. I guess I ought to say who I am. I am a
professor of law at Vanderbilt. I hold the David Daniels Allen
Distinguished Chair there, and I specialize in international
legal studies, public international law. Constitutional Law of
the United States and Foreign Relations are the two courses I
teach that are related to this.
I was counsel on international law in the Legal Adviser's
Office at the Department of State in 1983-84, and I continue to
serve as a consultant on international legal issues for them. I
am an elected member of the American Law Institute. I do that
only so that the record will show that I have some expertise in
the field with which we are dealing.
If I may say one more thing, my profession gives me always
the great pleasure to associate with some very distinguished
people--Members of the Senate, Members of Congress, Members of
the executive branch, and others in the U.S. Government and
outside it. But I have never been in the presence of such
distinguished men as those who are at this table with me today.
That is all.
[The prepared statement of Prof. Harold G. Maier follows:]Prepared Statement of Professor Harold G. Maier
i. professional biography and qualifications
I am Harold G. Maier, Professor of Law at Vanderbilt University,
Nashville, Tennessee, where I have been a member of the Law School
faculty since 1965. I received my BA degree in English literature at
the University of Cincinnati in 1959 and my JD degree in 1963 at the UC
College of Law. I earned my LLM degree at the University of Michigan in
1964 with a concentration in international legal studies.
In 1959-60, I studied German language and history as a Luftbrucke
Dankstipendiat at the Free University of Berlin, Federal Republic of
Germany (FRG), and pursued advanced studies concerning the
international licensing of industrial property rights at the Max Planck
Institute for Patent, Trademark and Competition Law at the University
of Munich (FRG) in 1964-65.
At Vanderbilt, I currently teach courses in International Civil
Litigation, Constitutional Law of United States Foreign Relations, and
Conflict of Laws and have also taught Public International Law,
Comparative Law, Civil Procedure, U.S. Constitutional Law, Patents,
Trademarks and Unfair Competition and Immigration Law, as well as
seminars on various related subjects.
In 1983-84, I served as Counselor on International Law to the Legal
Adviser of the United States Department of State and am presently a
member of the State Department's Advisory Committee on Private
International Law. I was special liaison between the Office of the
Legal Adviser and the committee of Reporters for the ALI's Restatement
(Third) of Foreign Relations Law of the United States, 1984-88, and was
consultant to the Office of the Assistant Secretary of the Army for the
Panama Canal Treaty Negotiations, 1976-77.
I served as an expert witness for the United States government in
the Cuban Mariel Boat Lift cases (see, e.g., Fernandez-Roque v. Smith,
622 F. Supp. 887 (N.D.Ga., 1985) and was a member of American Branch of
the International Law Association's ad hoc Committee on International
Law in Municipal Courts, report published November 16, 1993.
I have been a visiting professor at law schools at the Universities
of Pennsylvania, George Washington, North Carolina and Georgia and in
summer law programs in Aix-en-Provence, France, and London, England.
For the academic year 2000-2001, I have been appointed Straus Visiting
Distinguished Professor of Law at Pepperdine University Law School in
Malibu, California.
I am a member of the American Society of International Law and of
the American Society of Comparative Law. I served on the board of
editors of the American Journal of International Law in 1984-88, and
have been a member of the editorial board of the American Journal of
Comparative Law since 1997.
I was elected to membership in the American Law Institute (ALI) in
1984 and served on the Committee of Consultants for the ALI's Complex
Litigation Project, 1988-1993. In 1975-1976, I was a Guest Scholar at
the Brookings Institution, Washington, D.C., studying the role of the
separation of powers principle in the conduct of United States foreign
policy.
ii. context of this testimony
I have been requested by United States nationals who were held as
prisoners of war by the Government of Japan during the Second World War
to consider the application of international and constitutional legal
principles in United States courts in the context of claims filed by
those nationals against certain Japanese corporations and their United
States subsidiaries. I have been asked to assume that the Japanese
corporate defendants used these American war prisoners as slave or
forced laborers without pay, tortured them and committed other acts of
gross inhumanity against them, all in violation of international and
Japanese legal standards for treatment of prisoners of war.
iii. commentary on the legal substance of these claims
I have been advised that both the Japanese parent juridical
entities and their United States subsidiaries have invoked the 1951 San
Francisco Peace Treaty between the United States and Japan \1\ (and
particularly Article 14(b) of that treaty) as a defense to these
actions by American citizens who were Japanese Prisoners of War held in
Japan during World War II. It is my opinion that none of the terms of
that Treaty precludes these legal actions by American citizens who were
former prisoners of war.
---------------------------------------------------------------------------
\1\ Treaty of Peace with Japan of September 8, 1951, 3 U.S.T. 3169
(hereinafter Peace Treaty).
---------------------------------------------------------------------------
There are several reasons why the 1951 Peace Treaty does not
preclude these claims. First, the language of Article 14 and the
publicly articulated purposes of the Treaty indicate only that it
intended to do more than address the limited questions of what should
be done with Japanese-owned assets which in 1951 were under the control
of the United States and the other Allied Powers. In this respect, the
1951 Treaty does not include terms of exclusivity of remedy with
respect to all Japanese violations of individual rights of American
citizens that occurred during world War II. Article 14(a)(2) of the
Treaty gave the United States and it Allies only the right to seize and
dispose of Japanese assets within their control. Section 14(a)(2) makes
no comprehensive reference to any limitations on future remedial
measures on behalf of United States nationals (for example, nothing in
the Treaty addresses or purports to precludes U.S. nationals from
seeking future remedies against assets or property of private Japanese
nationals located in Japan).
Moreover, the mechanism selected for paying compensation (e.g., the
confiscation of Japanese-owned assets then under the control of the
United States for conversion into assets suitable for paying
compensation claims to persons illegally injured by the Japanese
Government) was agreed to by the Allied Powers in explicit recognition
that, at that point in time, Japan could not develop a viable postwar
economy if it were required to pay immediately all valid claims. This
policy basis for Article 14(a)(2) excludes any reference, pro or con,
to future claims filed by individuals to recover for injuries at the
hands of the Government of Japan or Japanese nationals when the
Japanese economy no longer needed protection from the necessary results
of its inhumane wartime policies. As such, there is no evidence in the
Treaty's language or purpose that the Allied Powers agreed to excuse
the Government of Japan or Japanese nationals from future private
claims to recover for these injuries.
Lacking the evidence of any clear intention to nullify the future
rights of these former prisoners now seeking compensation, the public
statements of the United States' negotiators at most suggest the Peace
Treaty was specifically intended to address only the use of Japanese
assets then located within the United States. Thus, for example, I
would direct the attention of the Committee to Secretary of State
Dulles' explanation of the Treaty's terms and intent before the Senate
Foreign Relations Committee, in which he stated, The United States gets, under this treaty, the right to use
Japanese assets in this country to satisfy whatever claims
Congress feels should be satisfied. We have taken under that
provision approximately $90 million of Japanese assets in this
country. Approximately $20 million have been used to take care
of claims which have been approved by the Congress on behalf of
internees, civilians and prisoners of war, and it remains for
Congress to decide what it wants to do with the balance.\2\
---------------------------------------------------------------------------
\2\ Emphasis added. Nothing in this statement suggests that future claims of United
States nationals were intended to be nullified by operation of the
Peace Treaty, or that the United States had precluded any U.S.
nationals from pursuing future claims. Secretary Dulles' comments refer
only to claims to be satisfied out of Japanese assets then located
within the United States and to the role of Congress in distributing
the balance of these particular assets. This interpretation makes
especially good sense in the light of the stated purpose of the United
States to prevent the economic collapse of post-war Japan by
restricting recovery to those assets then under United States control.
It has no bearing on the continued existence of claims if and when
Japan's, economy might recover or if Japan demonstrated its ability to
provide further compensation.
Second, the structure of the text of the Peace Treaty provided many
provisions in which the United States could declare explicitly that the
remedies referred to in the Treaty were exclusive (or preclusive) with
respect to all claims brought by private U.S. citizens. As even the
most cursory examination of the text of the Treaty would disclose, no
such explicit limitation is contained in the Treaty. Despite this, I am
advised that an assertion to the contrary has been made by the
Defendant corporations (and presumably by the Government of Japan)
based on Article 14(b) which, by its terms, waives: * * * all reparations claims of the Allied Powers, [and] 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. * * * \3\
---------------------------------------------------------------------------
\3\ Art. 14(b), Peace Treaty differs from that in which the United
States government has espoused a claim and then decides to settle that
claim without the consent of the claim's original private owner. In
those circumstances, once the United States government has espoused the
claim, it has put the claim settlement process into the diplomatic
realm. Private rights cannot limit the ability of the United State's
government to carry on effective diplomacy by agreeing with another
government to compromise a claim once that claim has been espoused. Under international law and practice, this provision does not
operate in the manner asserted by these Defendants. To the contrary,
the most reasonable interpretation of the wording used in this
provision is that the Allied Powers (including the United States)
waived their respective rights to espouse in the future the claims of
their respective nationals arising out of the prosecution of the war.
Without such espousal, no claims based on private injuries and arising
under international law exist for the Allied Powers to pursue against
the Government of Japan. If this were not the intent of the waiver, the
Allied Powers--including the United States--would have put themselves
in the position of waiving unespoused claims in which they had no
valid, legally recognized interest. Under international law, an injured
national's government has no recognized legally enforceable interest,
and, therefore, no interest to ``waive,'' until the government espouses
the injured individual's claim.
This rule has particular significance for the United States. Under
domestic law, the United States government cannot waive a claim that it
does not ``own,''--that it has not espoused--without the consent of the
owner of the claim. I am not aware of any indication that the former
U.S. prisoners of war waived their claims, nor any evidence that the
United States ever proposed espousal of these claims or formally
espoused these claims. The fact that the former POW's have filed this
law suit suggests precisely the opposite conclusion.
Third, even if the Treaty could be construed to preclude private
claims by United States nationals against Japanese nationals, this
preclusive effect would have been overtaken by operation of the Most
Favored Nation provision embodied in Article 26. Under that Article,
Japan has extended unconditionally to every Allied Power (including the
United States) the right to claim the same treatment from the Japanese
government that Japan gives other nations with respect to war claims,
regardless of any limitation that might be read into the original terms
of the 1951 Treaty. This most-favored-nation clause, which is
commonplace in treaties, is unconditional and unqualified. It operates
automatically to give the United States and any other Allied Powers
rights of any other nation to which the Japanese government might give
more favorable treatment with respect to war claims than it gave to the
parties to the Peace Treaty. Under standard practice in international
law, the United States need take no formal action to avail itself of
such more favorable terms. Furthermore, the time at which such more
favorable terms might be granted to another nation is irrelevant to the
rights of the United States to claim the benefit of those terms. The
United States need not enter into additional negotiations with Japan in
order to claim its most-favored-nation rights. The failure of the
United States or any other Treaty party to take any formal or official
steps to invoke its rights under the most-favored-nation clause does
not, of itself, constitute a waiver of those rights, nor does such
failure create an estoppel against the assertion of such rights.
While I have not reviewed the totality of all treaties into which
Japan has entered since World War II, I have reviewed at least eight in
which the Japanese government has extended ``more'' favorable treatment
to other nations than it did to the United States with respect to
United States claims on behalf of its injured nationals. For example,
Japan agreed in its peace treaty with Denmark to make payment for
claims for injury to Danish nationals, without requiring release of
claims against Japanese nationals as Japan required in the Peace Treaty
with the United States. Similarly, Japan has paid claims of foreign
nationals without requiring the release of claims against Japanese
nationals, the quid pro quo that its nationals now seek to invoke
through the strained interpretation of the 1951 treaty with the United
States, discussed above. (See Japanese Treaties with Sweden,
Switzerland, Spain, and The Netherlands.) Further, in their war claims
settlement agreement, Japan agreed with Burma to reopen both the scope
of waiver and the amount of payment that Japan was to make to settle
claims against Japan by Burma. Japan has made no such offer to the
United States. And, in its settlement with the Soviet Union, Japan
agreed to limit the scope of its release of claims to those that arose
after August 9, 1945. I am advised that the claims at issue in the
suits brought by U.S. nationals against Japan arose before that date.
In the light of these subsequent war claims agreements on terms
more favorable to foreign nationals than those extended to nationals of
the United States in the Peace Treaty, Japan must now be treated as
having extended that same favorable treatment to claims by United
States nationals. Those terms do not include any basis to assert that
claims by United States nationals against Japanese nationals have been
``waived'' in any respect. Thus, I reiterate that, even if the Treaty
could be construed to preclude private claims by United States
nationals against Japanese nationals, this preclusive effect would have
been overtaken by operation of the Most Favored Nation provision
embodied in Article 26.
iv. conclusion
For all these reasons, I conclude that, in accordance with
international law and practice, the 1951 Treaty should not, and cannot,
be interpreted to preclude private actions by U.S. nationals against
private Japanese nationals, and that Article 14(b) of that Treaty does
not operate to effect any contrary rule. The Chairman. Well, thank you, professor. I think that is a
nice way of summing up. I feel very honored to be with you
gentlemen and your friends in the audience here today myself.
I am way over time, but let me just have each of you answer
these three questions. Tell us what it meant to you to serve
your country, and I think most of you have already indicated
that, but if you would care to make any additional comments,
and how has your Government's response to your cases affected
you. Some may say that this litigation is all about money.
Please tell us what asserting these claims means to you and
what really do you want from these companies that had you work
in slave labor.
You don't have to answer all four of them, but why don't we
start with you, Mr. Poole, and then go right across the table.
Mr. Poole. Thank you, Senator. I would like to respond to
the question about why and what it is we are looking for out of
this case. For myself, justice is at the top of the list, and
also I would like the information and the account of this to be
incorporated in our history books so that my great-grandkids
and those that follow will be able to read and know what really
happened to us there. And also it might be a deterrent for any
of this happening again in the event that the situation arises
with different nations. It might help out and give them a
little more of a guideline to follow rather than what happened
to us.
The Chairman. Thank you.
Mr. Bigelow.
Mr. Bigelow. The primary thing I am looking for, sir, is
justice, but I would like to say that the thing I think should
happen in this country more than anything else is that our
children and our young people should be taught what happened
and why it happened, and maybe the future leaders of our
country won't make this same mistake. That is all.
The Chairman. Thank you.
Mr. Tenney.
Mr. Tenney. What I would like is that I want not only the
justice that we are talking about, but by getting this justice
I think we will also have an opportunity to let the citizens of
Japan know once and for all what really happened. They are
ignorant of what has happened because the Japanese Government
refuses to tell them, the Japanese Government refuses to put it
in their textbooks, and the people there do not know what
happened.
And so by seeking justice, by getting this apology that can
be a national issue--remember that in 55 years they have done
nothing, no apology, and the Japanese companies have done
absolutely nothing. But by issuing a formal apology, I think
that will not only help our own country, but will educate the
Japanese people to what really happened. And it is through
education that we can stop this from ever happening again.
It is not a case of money. It is a case of what is right,
it is a case of having what is right given to us. And if that
means an apology, that is fine. If it means money, then let the
courts decide on that. But I don't want that. I want the
apology and I want the Japanese people to all know what
happened.
The Chairman. Thank you, Mr. Tenney.
Mr. Mazer.
Mr. Mazer. The only thing I want out of this is justice. We
are having our laws in the United States, and we who fought and
came back sick, and some are still sick, we want someone to
tell us why it happened, why we didn't get the help that we
should have had. But I have nothing against the Japanese
people. This is Mitsubishi. They took me and they harmed me,
and I would like to see that they pay for that.
The Chairman. Well, thank you, Mr. Mazer.
Mr. Jackfert.
Mr. Jackfert. Senator, we all know that we live in the
greatest country in the world. There is no doubt about that,
but we were all professional soldiers. We willingly would have
died for our country and freedom. Freedom is what it is all
about. That is why we are here.
And as far as justice goes, I think that perhaps in our
country we have the greatest jury system in the world. Let a
jury decide what justice is for us. It is not money; it is what
we went through. Hopefully, perhaps someday the people of the
United States will realize--our story has never really been
told. You have heard these veterans here tell you about what
they went through, but they cannot tell you what they went
through. You had to be there; you had to feel the cold, the
bugs, all this. This is a part of what we went through. It is
impossible.
So it is not money, it is justice, and that is all we seek.
We want these companies that are responsible for making us
slave laborers responsible for what we went through.
The Chairman. Thank you, Mr. Jackfert.
Professor Maier, we do have a number of legal questions we
would like to ask, but in the interests of time I think it is
best to submit those to you in writing and make your responses
part of the formal record here.
Mr. Maier. Thank you very much, Senator.
The Chairman. Your responses will be very important to us,
so we would like those back as soon as you can, but we would
like them to be as fully stated as possible.
Mr. Maier. I will be glad to do that.
The Chairman. I would like to thank all of the witnesses
who have appeared today and all of the organizations and
individuals who have submitted statements or materials to be
included in the record. Your input has been very valuable; in
fact, let me say it has been invaluable.
I want to express my special thanks to the many former
POW's and their family members who are here today. Your
personal stories and experiences are powerful reminders that
freedom is not free. You have paid a heavy price for the
liberty that all of us enjoy and take for granted. We are
forever in your debt.
I am also pleased that the Judiciary Committee has been
able to provide a forum for these important issues to be raised
and discussed. Obviously, there are some difficult legal issues
to be raised that have been raised. There are difficult legal
and diplomatic questions that must be answered and addressed.
We are going to continue to help ensure that your stories
are told and that the public becomes educated about this part
of history. We will continue to push for the disclosure of
records and the information that should rightfully be in the
public domain. We also will fight for passage of compensation
for you from our Government.
Finally, regardless of how the technical legal issues of
the treaty are resolved, which the courts are going to have to
determine, we will continue to explore how else this committee
and others in Congress might be appropriately helpful. 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 that are at
play in this matter.
Now, to commemorate your appearances here today, I am going
to personally have flags flown over the Capitol and sent to
your homes, flags just like this one right here. We will send
them to your homes, and I would like you to please accept those
as a token of the Judiciary Committee's gratitude for your
service to our country.
In addition, some of you may have heard that I write music.
Well, we just finished our second patriotic CD and it is called
``Heal Our Land.'' Mr. Bigelow, the first CD, which I am going
to send to you as well, because of your feelings for the flag,
has the song in it ``I Love Old Glory.'' And I presume all of
you have similar feelings.
But in this second patriotic CD, I wrote a song for my
brother, who was killed in the Second World War in the Plesty
Oil Raid, the one that knocked out Hitler's Vienna, Austria,
oil fields. He was missing in action for 2 years and then
finally they found him and brought him home, so we had to go
through it all again.
I also have in there the song that we wrote for John
McCain's friend who gathered little bits of cloth and made a
flag that they would salute and pledge allegiance to every
night that kept them sane. And when they found that he had this
flag inside his shirt, the Hanoi soldiers took him outside and
beat him within an inch of his life and threw him back in on
this cement slab in the middle of the compound all bloody and
broken and beaten.
John said they cleaned him up as best they could, and he
said that they had four incandescent bulbs on all hours of the
day and night so there was always some light in the compound.
So what they did is they went to sleep, and for some reason
John woke up in the middle of the night and here was Mike
Christian, this fellow who had before used a bamboo needle to
fashion little bits of cloth into a flag, eyes all puffed up
and bloodshot, broken and beaten and bloody, sitting with a
bamboo needle starting all over again to make another U.S.
flag. You folks understand that. You have been through that.
You have suffered for us. You have been willing to give your
lives, and to a large degree you have given a large part of
your lives for us.
I hope that the Justice Department and the State Department
will review this matter. I suggest to our friends in the
Government of Japan that they look at this matter carefully
because there needs to be some reparation here. I suggest to
the people who run these major corporations that are, I think,
in every case very successful that they realize they have some
responsibilities here, too. I am hopeful that this hearing will
move us all down that road, in those directions.
I want you to keep sending materials to us and help us to
understand. We will follow these matters with a great deal of
interest, and let's hope that much good will come from this
hearing. I think already much good has come just because of the
testimony that you gentlemen have given here today, because
people all over this country are seeing this on C-SPAN and will
see it again on C-SPAN, and many of us who lived through those
years will recollect what you went through.
And for those who are younger who really don't have much of
a recollection at all of the sacrifices that were made so that
they could have freedom, this particular hearing, I think, will
open their minds and their hearts to realize that there are
great human beings who gave their lives for us. There are great
human beings who suffered for us, and you are among them and
the leaders of those great human beings.
So I am very grateful to have been able to sit through this
hearing today. I feel like this has been one of the great
hearings that we have had on Capitol Hill in recent years, and
I just want to personally thank each and every one of you and
all of those of you in the audience for the sacrifices you have
made for me, for my family, for our friends, for our neighbors,
for our fellow citizens, and really for the whole world,
because without you this world would be a very, very different
place than it is today. So God bless each and every one of you.
With that, we will recess until further notice.
[Whereupon, at 1:01 p.m., the committee was adjourned.]
A P P E N D I X----------
Questions and Answers
----------
Responses of the Department of Justice to Questions From Senator Hatch
Question 1. In connection with the Holocaust Cases, the Department
was requested by the court to submit a statement of interest as to
whether the private lawsuits were precluded under international law or
constitutional principles, but declined, having concluded that these
actions were not barred from proceeding. In other words, where its
views were consistent with the position of U.S. nationals and contrary
to the views of foreign interests, the Department withheld submission
of its views. Now, having concluded that its views are contrary to the
views of U.S. nationals and consistent with the views of a foreign
interests, the Department has submitted its views. Please explain the
policy considerations that went into the decision not to submit a
statement of interest in the Holocaust Cases while submitting views in
these cases.
Answer 1. The premise of this question is incorrect. It is true
that the Department of Justice was invited by District Judge John W.
Bissell to state the views of the United States concerning the impact
of various post-war treaties with Germany on the cases pending before
him brought by World War II era slave and forced laborers against
German companies. The United States did not, however, as the question
posits, decline the court's invitation on the basis of a conclusion
``that these actions were not barred from proceeding.'' The United
States has taken no position on the interpretation of the treaties. As
we advised Judge Bissell, the negotiations over creation of a German
foundation to compensate victims were then at a ``very delicate''
stage, and the United States negotiators were hopeful that the talks
could reach fruition shortly. If successful, of course, a settlement
would render resolution of the legal issues unnecessary. The
Department's letter (copy attached) went on to say that, ``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.''
(Tab 1). 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. These positions were taken at the request of
the Department of State, who had the lead in conducting the
negotiations in question, and the policy lead for the United States on
these issues. Thus, the State Department's judgment that the United
States should not submit its views to Judge Bissell was based on a
judgment that filing could interfere with negotiations that hold out
the hope of payments to slave and forced labor survivors, including
perhaps 100,000 or more American citizens. If the final settlement is
reached, as the State Department anticipates, these cases will be
dismissed voluntarily, obviating the need to resolve the legal issues
or for the United States to opine on them.
In contrast, the foreign policy agencies of the United States are
not involved in any negotiations concerning the claims of American
prisoners of war in Japan, and the decision to file in the Heimbuch
case, at the request of and in close consultation with the State
Department, stemmed from the United States' obligation to carry out
what it believes are clear treaty commitments.' Having waived World War
II claims of U.S. nationals against Japanese nationals, in a treaty
made by the President with the advice and consent of the Senate almost
fifty years ago, the State Department concluded that United States had
an obligation to its treaty partner to see that the provisions of that
agreement are faithfully executed, and that this required the filing of
the Statement of Interest. After careful analysis of the law and
posture of the case, the Department of Justice deferred to that
judgment. Question 2. The Statement of Interest asserts, without any analysis
or citation of authority, that ``the United States created an exclusive
remedy for claims by its nationals against Japan and its nationals
arising out of WW II through the Treaty of Peace with Japan and the War
Claims Act.'' Please cite any provision of the War Claims Act that
precludes causes of action by U.S. nationals against Japanese
nationals, or provides that the War Claims Act is an exclusive remedy
for any claims by U.S. nationals against Japanese nationals. In
addition, please cite and provide any document (including but not
limited to negotiating history) or citation to any other
contemporaneous authority or precedent that the Treaty clearly,
intentionally, and unmistakably excluded or precluded lawsuits by U.S.
nationals against Japanese nationals?
Answer 2. There is significant public record material concerning
the negotiating and drafting history and Senate ratification of the
Treaty of Peace. We discuss this history below and have provided copies
of pertinent materials as attachments to these answers.
Article 14(b) of the 1951 Peace Treaty states that, ``[e]xcept 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.'' 33
U.S.T. 3169 (Tab 2). On its face, Article 14(b) waives not only claims
against the Government of Japan, but all claims arising out of the
prosecution of the war, whether such claims are based on actions of the
Government of Japan or actions of Japanese private nationals. The Peace
Treaty defines ``nationals'' to include ``juridical persons,'' and
juridical persons includes business corporations. Article 4(a). Nor, by
its terms, is the waiver limited to claims that would fall within a
strict definition of ``reparations.'' Article 14(b) specifically waives
reparations claims of the Allied Powers, and all other war-related
claims of the Allied Powers and their nationals.
We think it clear that the treaty means what it says. The
contemporaneous documentary record further demonstrates that both the
Executive and Legislative Branches understood and intended that all
claims, including national-to-national claims, would be waived. As is
reflected in the papers of the State Department and the congressional
record, both Branches were concerned that imposing heavy burdens on the
Japanese economy could result in a weak Japan and, as a result, an
expansion of Soviet influence. Thus, in furtherance of critical
national security and other interests, the United States and the other
Allied Powers sought to achieve a peace that would permit Japan to
recover economically, and join Western nations. Waiving reparations and
other claims against the Government of Japan and Japanese nationals was
intended to advance this policy goal. In 1950, President Truman
appointed John Foster Dulles as a special Foreign Policy Adviser to the
Secretary of State, and assigned him the specific task of negotiating a
multilateral peace treaty with Japan. Dulles fully recognized the
possibility that Japan someday would be in a better economic position,
and then might be able to afford to pay the legal claims of its
countless victims. Nonetheless, in a draft statement he wrote for
Secretary of State Acheson to deliver to the President of the
Philippines in August 1951, Dulles noted that ``only vigorous effort
and industry by the Japanese will enable them to earn enough foreign
exchange to import what they need to live in decency.'' Memorandum by
the Secretary of State (Acheson) to the President, Washington, August
7, 1951, reprinted in Foreign Relations of the United States 1951, Vol.
VI, Asia and the Pacific, at 1245 (1977) (enclosing Draft Proposed
Statement to the Philippine Government drafted by Dulles) (Tab 3).
Dulles further observed: This would be impossible if the Treaty kept alive the right
of the Allies to demand monetary reparation payments. That
would so impair public and private credit as to make essential
capital developments impossible and so contract Japanese
ability to finance exports and imports as to endanger Japan's
survival as a member of the free world. It would destroy
Japanese initiative because the Japanese would know that the
greater was their exertion the more would be taken from them.
It may be argued that no one can predict the future with
certainty, and that events not now foreseen might give Japan a
future ability to pay monetary reparation. That is true. But it
is also true that if an economy is set up so that it must bear
all unfavorable developments while deprived of the benefit of
all favorable developments, there is lacking the balance needed
to produce endeavor and to sustain credit, and disaster occurs
which is not limited to the area dealt with.
All of these lessons were taught by the Treaty of Versailles.
Under it reparations claims destroyed German credit and will to
work. The claims were sought to be enforced by the most
determined effort that history records. Certain Allied armies
occupied the industrial heart of Germany, they arrested the
German industrialists for allegedly sabotaging reparations, and
they operated mines and factories for reparation account. But
the Treaty and all the efforts to enforce it produced no
appreciable reparations, but did create grave divisions as
between the principal allies and set in motion inflationary
forces, first in Germany, and then on a world-wide scale which
many observers believe were largely responsible for the tragic
economic collapse which began in 1929 and lasted until World
War II.Id.
To ensure that all war claims, brought either by individuals or by governments, would be settled by the Peace Treaty, the United States suggested the addition of the waiver provision that eventually became Article 14(b) of the Peace Treaty. Japanese Peace Treaty: Working Draft and Commentary Prepared in the Department of State, Washington, June 1, 1951, reprinted in Foreign Relations of the United States 1951, Vol. IV, Asia and the Pacific, at 1084 (1977) (Tab 4). The United States justified this suggested addition with the following comment:
The insertion * * * is proposed for the reason that the
treaty should settle and dispose of all claims of the Allied
Powers and their nationals arising out of the war. If no waiver
were provided, some Allied governments or Allied nationals
might continue to press such claims against Japan after the
coming into force of the treaty. Settlement of claims in the
treaty assures that no Allied government or Allied national
receives preferential treatment. The language of the waiver
follows closely the language of Article 19 in which Japan
waives claims against the Allied Powers.Id.\1\
---------------------------------------------------------------------------
\1\ Article 14(b) and Article 19(a) of the Treaty are not
identical. Article 19 does not use the term ``reparations'' at all,
instead providing simply that Japan waives all claims of Japan and its
nationals arising out of the war. Article 14(b) waives all
``reparations'' claims of the Allied Powers, but then goes on to say
that all ``other claims'' of the Allied Powers and their nationals
against Japan and its nationals also are waived. Thus, to the extent
that there is a legal distinction between ``reparations'' claims of the
Allied nations against the defeated nation of Japan and other sorts of
claims that might arise out of the prosecution of the war, Article
14(b) explicitly waives both. The Senate Committee on Foreign Relations (``Committee'')
unanimously recommended that the Senate give its advice and consent to
ratification of the 1951 Treaty of Peace with Japan. See S. Exec. Rep.
No. 82-2, at 4 (1952) (Tab 5). The Senate specifically focused on the
wisdom of waiving legal claims. In its recommendation, the Committee
warned that requiring payment of reparations and other war-related
claims ``in any proportion commensurate with the claims of the injured
countries and their nationals'' would be ``contrary to the basic
purposes and policy of the free nations, the Allied Powers, and the
United States in particular'' in the Far East. Id. at 12. The Committee
described Article 14(a) as containing ``the unequivocal provision that
Japan should pay reparations to the Allied Powers for the damage and
suffering it caused during the War,'' but recognized that, ``[a]t the
same time, article 14(b) states that except as otherwise provided, the
Allied Powers waive all reparations and claims against Japan.'' Id. In
recommending that the Senate give its advice and consent to
ratification of the Treaty, including the waiver provisions, the
Committee emphasized Japan's willingness otherwise to ``shoulder''
reparations, and the unprecedented magnitude of reparations it had
already paid. Id. at 12, 14.
The Committee informed the Senate that the Treaty's ``provisions do
not give a direct right of return to individual claimants except in the
case of those having property in Japan.'' S. Exec. Rep. No. 82-2, at
13; see also Japanese Peace Treaty and Other Treaties Relating to
Security in the Pacific: Hearings Before the Senate Comm. on Foreign
Relations, 82nd Cong. 144-45 (1952) (``Committee Hearings'') (the
Treaty's waiver provision ``closes'' and ``locks'' the gate on all
avenues of recovery) (Tab 6). In fact, the Committee held extensive
public hearings in January 1952 on the specific issue of war claims.
The records of these hearings confirm that the Senate was aware that
all individual claims were being waived by Article 14(b), and that such
claims would be dealt with exclusively through legislation. Committee
Hearings at 133-45.
During the hearings, various objections and questions were raised
concerning compensation for individual claims and specific objections
were made to the waiver of these claims. See, e.g., id. One legislator
even attempted to limit the effect of Article 14(b) by proposing a
reservation to the Treaty stating that ``nothing contained in this
Treaty shall be construed to abrogate the * * * just and proper claims
of private citizens of the United States.'' See 98 Cong. Rec. S2365,
2567-71 (1952) (Tab 7). In a memorandum, Adrian S. Fisher, the Legal
Adviser for the U.S. Department of State, informed Secretary of State
Acheson that this proposed reservation was ``in direct conflict with
Article 14(b),'' and that, if this reservation were added to the Treaty
during the ratification process, ``a renegotiation of the Treaty
Article would unquestionably ensue.'' Memorandum to The Secretary from
Mr. Fisher (the Legal Adviser), dated March 19, 1952, at 4 (Tab 8).
In lieu of such a provision, the State Department recommended that
Congress adopt the War Claims Commission's suggestion that Congress
amend the War Claims Act of 1948 ``to provide for the receipt,
adjudication and payment of claims * * * resulting from mistreatment,
personal injury, disability, or impairment of health caused by the
illegal actions of any enemy government during World War II.''
Committee Hearings at 147. Congress eventually accepted this
invitation, and amended the War Claims Act to ``create[] a domestic
mechanism for distributing captured Japanese assets,'' which entitled
members of the putative class ``to detention benefits for the period of
imprisonment in Japan.'' Aldrich v. Mitsui & Co. (USA), Case No. 87-
912-Civ-J-12, slip op. at 3 (M.D. Fla. Jan. 20,1988) (citing 50 U.S.C.
App. Sec. Sec. 2004 and 2005 (1994)) (Tab 9).
Consistent with this position, the Senate gave its advice and
consent to the Treaty on March 20, 1952, by a vote of 66 to 10, without
adding a reservation pertaining to war claims in its resolution of
advice and consent. See 98 Cong. Rec. S2594 (1952) (Tab 10). Advice and
consent was considered and approved as part of a package with three
additional security treaties relating to the Pacific region, reflecting
the United States' view of the Treaty as an integral part of its
political and foreign relations goals in that region. See, e.g., Cong.
Rec. S2327, 2361, 2450, 2462 (1952) (Tab 11).
Article 14(b)'s waiver provision did not, however, mean that
victims who had claims against the Japanese government and Japanese
nationals would not be compensated. A key feature of the Treaty was the
system for the payment of war-related claims it established to provide
compensation for ``the damage and suffering'' inflicted by Japan and
its nationals ``during the war.'' Treaty, Art. 14(a). Private Japanese
nationals--primarily corporations--who had property or other assets
located outside Japan, paid a heavy price under the 1951 Peace Treaty
to satisfy the requirements of this system. The Government of Japan
volunteered the use of those assets to satisfy war claims.\2\ Pursuant
to that Article and Article 16 of the Treaty, assets located in Allied
territory valued at approximately $4 billion were confiscated by Allied
governments, and their proceeds distributed to Allied nationals in
accordance with domestic legislation. See Comments on British Draft,
Memorandum by the Officer in Charge of Economic Affairs in the Office
of Northeast Asian Affairs (Hemmendinger) to the Deputy to the
Consultant (Allison), April 24, 1951, reprinted in Foreign Relations of
the United States 1951, Vol. VI, Asia and the Pacific, at 1016 (1977)
(Tab 12). The total value of Japanese-owned assets located in U.S.
territory (including the Philippines) was estimated in 1952 to be worth
more than $90 million. See Japanese Peace Treaty Negotiations, Feb. 5,
1952, reprinted in Executive Sessions of the Senate Foreign Relations
Committee (Historical Series), Vol. IV, 82nd Cong., 2nd Session, 1952,
at 121-22 (1976) (Tab 13).
---------------------------------------------------------------------------
\2\ [E]ach of the Allied Powers shall have the right to seize,
retain, liquidate or otherwise dispose of all property, rights and
interests of---------------------------------------------------------------------------
(a) Japan and Japanese Nationals, (b) Persons acting for or on behalf of Japan or Japanese
Nationals, (c) Entities owned or controlled by Japan or Japanese
nationals.Treaty, Art. 14(a)(2).
Following the war, these assets were seized by the Office of Alien Property (an office within the U.S. Department of Justice), liquidated, and the proceeds placed into a War Claims Fund, for ultimate distribution to POWs and other claimants. As Ambassador Dulles explained:
The United States gets, under this treaty, the right to use
Japanese assets in this country to satisfy whatever claims
Congress feels should be satisfied. We have taken under that
provision approximately $90 million of Japanese assets in this
country. Approximately $20 million have been used to take care
of claims which have been approved by the Congress on behalf of
internees, civilian and prisoners of war, and it remains for
Congress to decide what it wants to do with the balance.Id. Funds to pay reparations mostly were provided from the confiscation
of assets of Japanese businesses, in accordance with United States and
Allied policy.\3\
---------------------------------------------------------------------------
\3\ As an expression of its desire to indemnify those members of
the armed forces of the Allied Powers who suffered undue hardships
while prisoners of war of Japan, Japan will transfer its assets and
those of its nationals * * * for the benefit of former prisoners and
their families.'' Treaty, Art. 16 (emphasis added).4
---------------------------------------------------------------------------
Using these confiscated funds, the Senate Committee on Foreign
Relations recognized that it ``is the duty and responsibility of each
[Allied] government to provide such compensation for persons under its
protection as that government deems fair and equitable, such
compensation to be paid out of reparations that may be received from
Japan or from other sources.'' S. Exec. Rep. No. 82-2, at 12-13.
Following the recommendation of the State Department, Congress amended
the War Claims Act of 1948, 50 U.S.C. App. Sec. Sec. 2001-2017 (1994),
to afford additional compensation to those taken prisoner of war by the
Japanese. 50 U.S.C. App. Sec. 2005(d) (1994).
Originally enacted immediately after the war, the War Claims Act
had established a system of compensation for prisoners of war like
Plaintiffs and certain other victims of World War II. The Act
established a War Claims Commission (now the Foreign Claims Settlement
Commission), which initially was authorized to adjudicate claims
``filed by any prisoner of war for compensation'' for specified
violations of the Geneva Convention of July 27, 1929, suffered while a
prisoner of war, including claims for violations ``relating to labor of
prisoners of war.'' 50 U.S.C. App. Sec. 2005 (1994). These claims
covered inadequate food, inhumane treatment, and certain types of
forced labor. The Act was prompted by Congress' desire ``to facilitate
the giving of immediate relief to those American citizens who were
imprisoned by the enemy during the war.'' S. Rep. No. 80-1742, at 7
(1948) (Tab 14).
At that time, however, Congress acknowledged that ``the question of
war claims * * * is too complex to be approached by the Congress on a
piecemeal basis and that the subject in its entirety must be studied
thoroughly before any intelligent action can be taken.'' H.R. Rep. No.
80-976, at 4 (1947) (Tab 15). Therefore, Congress charged the
Commission with recommending types of claims to be accepted, adopting
the procedures for considering claims, and establishing uniform
standards for handling such claims. See 50 U.S.C. App. Sec. 2007
(1994); 94 Cong. Rec. H564-69 (1948) (Tab 16). Congress anticipated
that the Commission would ensure ``the claims [would] be handled in
accordance with priorities, priorities to be established for, we will
say, the veterans of Bataan and others who have suffered similarly, as
being No. 1 for consideration.'' 94 Cong. Rec. H566 (1948).
Congress rejected a proposal that would have allowed federal courts
to adjudicate war compensation claims, because of the complexity of the
issues and the need to have the claims ``classified by experts who are
qualified so to do'' in order to ``get some rationality out of this
situation [and] to determine the categories of claims that should be
allowed.'' 94 Cong. Rec. H564 (1948). It is clear that Congress did not
want claims within the Commission's jurisdiction to be adjudicated by
the courts, because it barred judicial review of the Commission's
decisions ``by mandamus or otherwise.'' 50 U.S.C. App. Sec. 2010
(1994). Question 3. At no point in the Statement of Interest does the
Department provide any analysis of the language of Article 14(b) of the
Treaty which limits the scope of any waiver to ``actions taken by Japan
and its nationals in the course of the prosecution of the war.'' Please
explain the meaning of this limitation, and identify and provide all
contemporaneous documents upon which the Department relies in that
interpretation. Please explain how the failure by private Japanese
companies to pay U.S. nationals for commercial labor at commercial-
level wages is conduct arising ``in the course of the prosecution of
the war.''
Answer 3. Everything known about the drafting of the phrase ``in
the course of the prosecution of the war'' indicates that it was
intended to have a very broad scope.\4\ The phrase first appeared in a
proposed revision to Article 19(a) of the U.S.-U.K. draft of the
Treaty. Japanese Peace Treaty: Working Draft and Commentary Prepared in
the Department of State, Washington, June 1, 1951, reprinted in Foreign
Relations of the United States 1951, Vol. VI, Asia and the Pacific, at
1093-94 (1977) (Tab 4). Article 19(a) is a reciprocal provision to
Article 14(b) that waives all claims by Japan and its nationals against
the U.S. and its nationals. The revision was proposed by the United
Kingdom along with the alternative phrase ``or in the exercise or
purported exercise of belligerent rights.'' Id. The United States
preferred the language in ``the course of the prosecution of the war''
because it was more comprehensive. Id. The phrase was later inserted
into Article 14(b).
---------------------------------------------------------------------------
\4\ The phrase ``in the course of the prosecution of the war'' is
not a specific term of art under the laws of war. We have only found
the phrase in one other international agreement, a 1972 agreement,
Union of Soviet Socialist Republics Settlement of Lend Lease,
Reciprocal Aid and Claims, 23 U.S.T. 2910.
---------------------------------------------------------------------------
In their complaint, Plaintiffs allege substantial and active
participation by the Japanese Government in subjecting American
prisoners of war to forced labor. Compl. para. para. 10, 12, 13, 43, 46
(Tab 17). According to the allegations in the complaint, the conduct
that forms the basis of Plaintiffs' claims was the direct result of
laws and policies toward POWs adopted by the Government of Japan to aid
its war effort. Compl. para. para. 10, 12, 13, 41.\5\ Indeed, almost
all of the allegations in the complaint deal with the actions of Japan
and its policies in prosecuting the war. The allegations of actions
taken by Japan and those taken by defendant companies are mingled, and
clearly were taken ``in the course of the prosecution of the war.''
---------------------------------------------------------------------------
\5\ Article 28 of the Geneva Convention of July 27, 1929, provides
that ``[t]he detaining Power shall assume entire responsibility for the
maintenance, care, treatment and payment of wages of prisoners of war
working for the account of private persons.'' 6 U.S.T. 3316 (1929).
---------------------------------------------------------------------------
The war-time Japanese economy was an integral part of Japan's
mobilization for ``total war.'' See John W. Dower, Embracing Defeat:
Japan in the Wake of World War II, 529-30 (1999). ``The complexities of
mobilizing an industrialized nation for total war required them [the
military] to take Japan's other vested interests into partnership. They
enlisted the aid of the leaders of big business, whose expertise was
crucial in exploiting the resources of the Japanese Empire and in
designing and building new weaponry.'' Meirion and Susie Harries,
Sheathing the Sword: The Demilitarization of Japan, 4 (1987). By the
late 1930s, industry, commerce and finance in Japan were dominated by
an interlocking series of monopolistic combines called zaibatsu. Id. at
5. The zaibatsu rose to positions of prominence by collaborating
closely with the military. Dower, at 529-30. ``The zaibatsu factories
were called upon to provide equipment, their shops to provide
transport, their banks for finance, and their overseas branches were
useful bases for intelligence-gathering.'' Harries, at 53. The military
and zaibatsu cooperated to create an economy devoted to the pursuit of
the war, and it is clear from plaintiffs' complaint that the very
purpose of pressing prisoners of war into forced labor was to shore up
industrial support for this total war effort. Question 4. Has the Department attempted to determine whether Japan
has entered into any war claims settlement or other agreements through
which, pursuant to Article 26 of the Treaty, more advantageous terms
must be extended to the United States by Japan? Attached are copies of
relevant portions of other treaties entered into by Japan. Please
explain why the United States should not now invoke the equivalent
rights extended to Burma by Japan, particularly in light of the
determination of the United Kingdom that that Agreement triggered
rights of the Allied Powers under Article 26. Please explain why, in
light of Japan's War Claims Agreement with the Soviet Union, the United
States should not take the position that Article 14(b) applies only to
claims of U.S. nationals arising after August 8, 1945. Please explain
why the terms of Japan's War Claims Settlements with other countries
which do not require the waiver of claims by nationals or against
Japanese nationals should not be extended to the United States by
operation of Article 26. Please provide all analyses supporting these
views and all documents on which they rely.
Answer 4. Article 26 does not provide any rights to private
litigants who may claim that they should have the benefit of a treaty
signed by other sovereign nations. There is no private right to invoke
Article 26 of the Treaty--only the United States Government has rights
under Article 26. ``International treaties are not presumed to create
rights that are privately enforceable.'' Goldstar (Panama) S.A. v.
United States, 967 F.2d 965, 968 (4th Cir.), cert. denied, 506 U.S. 955
(1992); see also United States v. Li, 206 F.3d 56, 670 (1st Cir. 2000)
(en banc) (``treaties do not generally create rights that are privately
enforceable in the federal courts''); Tel-Oren v. Libyan Arab Republic,
726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J., concurring) (same), cert.
denied, 470 U.S. 1003 (1985); Restatement Sec. 907 comment a
(``[international agreements, even those directly benefitting private
persons, generally do not create private rights or provide for a
private cause of action in domestic courts * * *.''). As the Supreme
Court said well over 100 years ago in the Head Money Cases: ``A treaty
is primarily a compact between independent nations. It depends for the
enforcement of its provisions on the interest and the honor of the
governments which are parties to it.'' 112 U.S. 580, 598 (1884). To be
sure, the presumption against a private right of action may be overcome
where a treaty confers rights on private parties, and the treaty
partners intend that those rights be judicially enforceable. See Diggs
v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976). But that is not the
case here. See id.; cf. Li, 206 F.3d at 63 (noting State Department
distinction between a treaty that creates ``state-to-state'' rights and
one that creates individual rights).
Only the United States may invoke Article 26 in appropriate
circumstances. Whether to invoke the rights embodied in Article 26 is a
mixed question of law and diplomatic policy entrusted in the first
instance to the Department of State. Article 26 has been mentioned
publicly by United States officials only once, to deter the Japanese
from granting sovereignty over the Kurile Islands to the Soviet Union.
See Secretary Dulles' News Conference of August 28, 1956, Department of
State Press Release No. 450 (Tab 18). Absent invocation of Article 26,
there is no current basis for altering or construing the Treaty of
Peace to conform to the terms of other nations' treaties with Japan. Question 5. In determining the position that the 1951 Treaty
necessarily and unmistakably waived the claims of private U.S.
nationals against private Japanese nationals, did the Department make
any independent review of the negotiating history? Please explain how
the position of the Department is consistent with the exchanges between
Japan and the Netherlands, which are attached. Did the Department
consult with the Japanese Government regarding public reports (some
quoting the Japanese Prime Minister) that the official position of the
Japanese Government was that the 1951 Treaty did not waive national
versus national claims?
Answer 5. The Department of Justice made an exhaustive review of
the drafting and negotiating history of the Treaty prior to submitting
the Statement of Interest. We also held appropriate consultations with
the Japanese Government and are confident that the official positions
of the United States and Japanese Governments as to whether these
claims can be brought under the Treaty are consistent. Our answer to
question 2, above, reflects our review of the negotiating history.
The exchanges between the Governments of the Netherlands and Japan
do not alter the United States' understanding of the treaty. The
exchanges between the Governments of the Netherlands and Japan make
clear that, under the Treaty of Peace, Dutch nationals would not be
able to obtain satisfaction for their claims from Japan or Japanese
nationals. The claims of Dutch nationals, as with all other Allied
nationals, would continue to exist and could be satisfied through
compensation by their own government (similar to what the United States
provided through the War Claims Act) or through voluntary agreement by
the Japanese government. See Memorandum of Conversation, by the Deputy
Director of the Office of British Commonwealth and Northern European
Affairs (Satterthwaite), San Francisco, September 4, 1951, reprinted in
Foreign Relations of the United States 1951, Vol. VI, Asia and the
Pacific, at 1332-33 (1977) (Tab 19). Question 6. In preparing the Statement of Interest, did the
Department (or the State Department) consult with any scholars or
experts on international law or treaty interpretation? Did either
Department discuss any of the above-mentioned issues with any person
involved in the negotiation or contemporaneous application of the 1951
Treaty? In the event of an affirmative answer to either question,
please provide the name of such person and any document memorializing
the substance of the discussion or consultation.
Answer 6. In preparing the Statement of Interest, the Department of
Justice consulted with and relied on the legal and policy expertise of
the Department of State. It is the Department of State, not outside
scholars and/or experts on international law, that is responsible for
the foreign policy of the United States, including the interpretation
of its treaties and obligations under international law.
__________Responses of Ronald J. Bettauer to Questions From Senator Hatch
Question 1. Has the Department of State met with Japanese companies
to discuss the lawsuits filed by the U.S. POWs?
Answer 1. No, the Department of State never met with the companies.
Department of State and Justice attorneys have, however, had telephone
conversations with some of the Japanese companies, legal
representatives. After the U.S. Government was invited by the District
Court to file a Statement of Interest, legal representatives of the
companies sent most of their comments, inquiries and correspondence to
the Department of Justice. Question 2. How often has the Department of State met with the
plaintiffs (the POWs) or their attorneys?
Answer 2. The Department of State has not met with the plaintiffs.
The plaintiffs themselves never initiated contact with the State
Department, nor did their legal representatives ever indicate to the
Department that their clients wished to meet with State Department
officials. The State Department never initiated contact with the
plaintiffs, as it would have been unethical (under legal ethics rules)
to contact parties directly who are being represented by counsel.
Department of State attorneys, however, had a number of telephone
conversations with legal representatives for the plaintiffs. These
conversations were of a similar nature to the conversations that
government attorneys had with defendants' attorneys.
Significantly, however, on February 15, 2000, representatives for
the plaintiffs met--at their request--with Deputy Secretary of the
Treasury Stuart E. Eizenstat, who was acting in his capacity as the
Special Representative of the President and the Secretary of State on
Holocaust Issues. Also present at the meeting was a representative from
the State Department's East Asian and Pacific Affairs Bureau. At this
meeting, plaintiffs' attorneys presented a list of legal points in
support of their presentation. Mr. Eizenstat committed to pass these
points to Department of State attorneys, and he promptly did so. These
points were given serious attention by Department of State and Justice
attorneys in their internal deliberations.
After the U.S. Government announced its decision to file its
Statement of Intent, legal representatives for the plaintiffs sent most
of their comments, inquiries and correspondence to the Department of
Justice.Additional Submissions for the Record
----------
Berlin, Germany, June 26, 2000.
Text of E-mail Message to Senator Hatch From Rabbi Abraham Cooper of
the Simon Wiesenthal Center The Simon Wiesenthal Center applauds the initiative of Senator
Orrin Hatch to convene hearings on the ex-POWs of the infamous Bataan
Death March of World War II this week under the jurisdiction of the
U.S. Senate Judiciary Committee. The great sacrifice, dignity and
unselfish heroism of great Americans like Lester Tenney deserve to be
remembered by all Americans for all time. However, the full scope of
their suffering was never fully understood by the American people, nor
fully dealt with by our government. On the eve of Independence Day,
July 4th, it is only right therefore, that the Committee fully explore
all of the historic issues surrounding the plight of these former POWs.
While the Wiesenthal Center is not involved in restitution issues, It
is the position of our Center, that all documentation related to the
Pacific/Asia theater of World War II be made available by all relevant
governments, led by Japan, The United States, China and Russia. Without
full disclosure of the past, there can be no just nor final closure for
history, no full and meaningful reconciliation for those who suffered.
We look forward to reading the full text of these important hearings
and to learn of any further Congressional initiatives which results
from them.
With best personal regards to Chairman Hatch and the distinguished
members of the Judiciary Committee, Rabbi Abraham Cooper.
__________Prepared Statement of Bruce R. Harder, Director, National Security and
Foreign Affairs, Veterans of Foreign Wars of the United States Mr. Chairman and Members of the Committee: The Veterans of Foreign
Wars of the United States is pleased to be able to make a written
statement for the record on behalf of those American veterans who were
prisoners of war in the Pacific during World War II.
This statement is the written testimony of the Veterans of Foreign
Wars of the United States. We understand that the purpose of today's
hearing is to explore the historical, legal, and practical issues
surrounding the plight of the former POWs.
This written testimony presents the VFW leadership's views on this
issue. We want to make it clear that we strongly support the right of
these veterans who are former Prisoners of War (POWs) to receive fair
and just compensation for the injuries they suffered at the hands of
their Japanese captors, and the slave labor they were forced to perform
by private Japanese Companies during World War II.
It is a well-documented fact that during World War II, thousands of
Americans were taken as POWs in the Pacific Theater and many were
forced into slave labor. According to our sources, over 33,000 U.S.
military personnel were captured in the Pacific Theater and interned by
the Japanese. Of this total, over 12,500 of them died in captivity. The
percentage of those who died in captivity gives a good indication of
the horrid conditions that existed in the POW camps administered by the
Japanese. These POWs suffered from a lack of adequate food, clothing,
shelter, and medical care, suffered interrogation and torture, endured
unthinkable abuse and brutality under the hands of their captors, and
had their rights under the Geneva Conventions routinely violated. In
addition, many of these POWs were transported to mainland Japan, and
were required to work for private Japanese companies as slave laborers
under horrible conditions. Here as well they were subjected to severe
beatings and many different types of human rights abuses. When the war
ended, the survivors returned home, but have never received fair
compensation for their injuries and labor.
In fact, the only compensation most of these POWs received was
standard Veterans Administration/Affairs benefits including medical
care, and one dollar from the U.S. government for every day they spent
in enforced labor while enslaved to private Japanese companies. After
the war, peace treaty considerations kept them from legally pursuing
larger reparations from the Japanese government or companies. On the
other hand, the Japanese companies who profited from the enslavement of
these American POWs have never compensated their American victims in
any way nor have they offered so much as an apology for the way our
POWs were abused and exploited. We think these former American POWs
have a right to be adequately compensated from the private Japanese
companies for their suffering and sacrifice.
Recently, we received a letter from former POW, Robert M. Shrum who
was held as a POW by Japan for three and a half years during World War
II. A life member of the American Defenders of Bataan and Corregidor
and the Veterans of Foreign Wars of the United States and other
veterans organizations, Mr. Shrum was captured in the Philippines in
April 1942 following the fall of Bataan and Corregidor. A survivor of
the Bataan Death March, Mr. Shrum recently wrote a letter to President
and in it he said: After World War II ended in the Pacific, neither the Japanese
government or the private Japanese companies who worked us as
slave laborers, has ever offered to make restitution for the
work, lack of food, abuse, unbearable living conditions,
suffered injuries, tortured and killings; and have not even
offered an apology.
Most distressing to us, the U.S. government has continued to
ignore us during these same intervening years. Our government
has never supported us to have fair compensation and
restitution paid to us who were brutally enslaved and deprived
of all human dignity. To me this is incomprehensible especially
as in recent years our government has awarded reparations to
Japanese American citizens who were interned in U.S. camps
during World War II, as well as diligently worked to resolve
claims by victims of German atrocities during the Holocaust.
Both of these injustices deserve to be remedied and finally
achieved--but we former Pacific prisoners-of-war slave laborers
continue to be ignored by the U.S. government and Japanese
government. If the Japanese are willing apologize and pay restitution for
crimes committed by their own soldiers against the former ``comfort
women'' of the Republic of Korea, then why should they not do the same
for American POWs who also ruthlessly abused and enslaved during World
War II. We believe that private Japanese companies have a similar
obligation to provide just and equitable compensation to American
former POWs.
On May 12, 2000, the Executive Director of the VFW Washington
Office sent letters to both Attorney General Janet Reno and Secretary
of State Madeleine K. Albright pointing out that our own government had
turned its back on our former POWs and did not pursue compensation from
those companies for the injuries these veterans sustained. In addition,
his letters urging both Attorney General Reno and Secretary Albright to
stand up for these former prisoners of war whose claims are not against
our government or the government of Japan, but on the private companies
that brutally enslaved them and profited form their labor.
Unfortunately, to date, our letters have gone unanswered.
Recently, we were distressed to learn that the United States
Department of Justice publicly stated a position that is adverse to the
efforts of the former POWs who seek redress from private Japanese
corporations. Frankly, we are outraged that the Department of Justice
has found it necessary to take such a position against our own former
POW veterans.
The VFW believes it is time that our government showed compassion
for these brave men and support their claims for just and equitable
compensation. Our veterans seek only fairness and equitable restitution
for injuries suffered in defense of our great country and all that it
represents. Now is the time for the U.S. government to act honorably to
afford the former POWs the fairness and dignity they deserve.
Therefore, we urgently request that the Congress of the United
States thoroughly investigate this matter and intervene on behalf of
our veterans to ensure that justice is done before it is too late.
Mr. Chairman and Members of the committee, thank you for this
opportunity to present the views of the Veterans of Foreign Wars of the
United States on this issue.
__________Prepared Statement of Linda G. Holmes
americans in captivity: an overview of the pacific war, 1941-45
Shimon Peres recently referred to Japan's conquest of East and
Southeast Asia as ``The other Holocaust.'' When I asked him to clarify
the context of his remark, he wrote to me: ``What I mean is that
although one can in no way compare the atrocities perpetrated by the
Nazis to any other atrocities, nevertheless the damage caused by the
Japanese attacks during the war was similar in character to that of a
holocaust.'' And indeed it was.
After feeling entitled to slaughter millions of Chinese and to
subjugate the people of Korea to a brutal occupation, Japan's military
forces began implementing their primary goal of what its leaders termed
``The Greater East Asian Co-Prosperity Sphere'': to eliminate white
people from Asia, forever. Between 1941 and 1945, its occupying troops
systematically worked to do just that. And they had standing orders,
issued in 1942, to kill all white people in custody if surrender were
imminent. Only the abrupt, atomic end of the Pacific War prevented this
mass execution, which would have annihilated nearly 300,000 white
families and military prisoners scattered in internment camps and
company worksites all over occupied Asia and the home islands of Japan.
Within weeks of the attack on Pearl Harbor, Japanese army and navy
personnel rounded up every white man, woman and child in Asia,
including almost 14,000 Americans. A few--a very few--were released, if
they were lucky enough to be married to an Asian or a national from an
Axis country; or if they were one of the 3000 civilians exchanged for
Japanese civilians living in the Americas. After three months, when our
government saw that the Japanese intended to keep nearly all of our
citizens incarcerated, we began rounding up Japanese living in the
United States, primarily those on the West Coast. The delayed timing of
this relocation is often overlooked; it followed weeks of frantic
diplomacy. We had been Japan's protector nation in three previous wars,
including World War I; and Washington officialdom couldn't believe the
government of Japan was not prepared to return the favor. We had no
idea how deep the resentment of ``white colonials'' was throughout
Asia; it had been building for a long time.
Before sundown on December 8, 1941, Japanese forces began taking
American military personnel prisoner in various outposts and embassies.
By Christmas Eve, nearly 1200 civilian construction workers on Wake
Island found themselves prisoners of war, along with the Marine
garrison there. And before six months had passed, General Douglas
MacArthur's entire Army of the Pacific had been either killed or
captured. By May 1942, over 25,000 Americans were prisoners of war;
their number would eventually swell to 36,000+. Nearly half died in
captivity, as compared to just 1.1 percent of military POW who perished
in German military stalags, or fixed POW camps. Over 3,600 Americans
died at sea in unmarked merchant ships transporting them to the
Japanese home islands for use as slave laborers in war production at
factories, mines and shipyards. Nine out of 10 POW who died in World
War II perished in Japanese, not German custody.
All of our prisoners of war performed slave labor, under brutal
conditions, for the next three and a half years, even when they were so
sick they could hardly stand. Theirs was the longest captivity anywhere
during World War II, and it was marked by slow starvation, disease,
medical experimentation at many POW camps, and the deliberate
withholding of medical supplies, relief packages, mail and even soap or
toilet paper.
Much has been made of the fact that the Japanese Diet [parliament]
failed to ratify the 1929 Geneva conventions relating to prisoners of
war, which their delegate had signed. But the Diet did ratify the
conventions of the International Red Cross, which were a part of that
same 1929 gathering. So the fact that the Japanese refused to
distribute Red Cross packages which arrived weekly at company worksites
and POW camps throughout occupied territory--constituted a separate
category of war crime. The Japanese government also declared all of its
occupied territory a war zone, and refused to let Swiss inspectors
inspect POW camps and civilian internee centers within the ``war
zone.'' Japanese authorities refused to cooperate with the
International Committee of the Red Cross in supplying names of those
held captive; for most American families, a year or more went by with
no confirmation of the status of their sons, husbands, brothers. And
our civilians in internment centers were slowly being starved to death
as well; visits from Red Cross or Swiss government representatives were
rare events; most internees or POW never saw a Red Cross representative
and can only remember one or two Red Cross boxes being given out during
nearly four years of captivity. Perhaps the most egregious interference
with relief was the withholding by the Japanese government of 98
million swiss francs in relief funds contributed by the United States,
Great Britain and The Netherlands, in a secret bank account set up
through the Swiss National Bank, which the Japanese government had
pledged to release so Swiss workers could buy extra supplies for POW
and internees. Instead, the money sat in the Yokohama Specie Bank till
war's end. Over $6.2 million, worth $54 million today, was from the
U.S. Treasury; we never asked for a dime of it to be returned.
Although it was a clear violation of international law to do so,
Japanese company heads asked for the use of white prisoners; paid the
government two yen per day for the use of each prisoner; agreed to pay
the prisoners Japanese soldier's pay, and were required to house them
on company property. Most prisoners never saw any money; all came home
empty-handed and sick. None ever regained full health; all still suffer
nightmares, PTSD, and many residual, compounded health problems.
After the war ended, Japan's major industrialists were named as
suspected war criminals, but the indictments were dropped for lack of
evidence (no clear paper trails could be found in time for the trials'
opening date; and very, very few members of the trial teams could speak
or read Japanese.) A policy decision was made to avoid mentioning the
names of companies during the trials, according to a member of the
prosecution team. After a high-profile trial which seemed to drag
endlessly, 25 Japanese Class A [top leaders] criminals were sentenced.
Seven were executed; 16 received life sentences; one died in prison
before sentencing and another was declared insane. The rest were
released, and further investigations of Class A criminals were abruptly
halted.
Although several hundred Japanese military and civilian war
criminals were convicted of sentences ranging from death to life
imprisonment to 25 years or more, most death sentences were commuted,
and no convicted Japanese served more than ten years. The majority were
released when our occupation officially ended in 1952; by 1958 all had
been released and Sugamo Prison was closed because it was empty.
Surviving American ex-POW were allowed to file claims under the War
Claims Act of 1948 to receive $1.00 per day times the number of days
held captive for ``missed meals,'' with a cap of $1500 per claimant.
After the 1951 Treaty of Peace was signed, and our ex-POW were
prevented from filing further claims, Congress passed the War Claims
Act of 1952, allowing ex-POW to apply for $1.50 per day for ``forced
labor and/or mistreatment'' while in custody. The payment funds came
from $280 million in frozen Japanese and other Axis assets seized in
the United States between 1942 and 1946.
But no one at that time could predict how severe the residual
effects of prolonged malnutrition and the diseases which accompany it
would be for these survivors. The effects of their captivity have
continued to compound throughout their lifetimes. Many have fought for
50 years to receive full disability payments from the Veterans
Administration; some were granted full allowances as recently as 1998
or 1999. Information about their treatment by the Japanese had been so
suppressed both during and after the war, that many medical personnel
at VA centers have had a hard time grasping the long-term effects of
severe malnutrition, or to understand the types of injuries these men
sustained during their captivity.
It is worth noting that the official Japanese government report on
the wartime use of POW labor was not issued until December 1955, long
after the conclusion of the Tokyo War Crimes Trials and the drawing up
of the 1951 Treaty of Peace. This report is based in turn on the
periodic reports Japanese companies were required to file, showing
compliance with the regulations on payment of POW and other matters
involving care etc. of POW. The companies apparently stated that
payments had been made to POW and backed up these reports with pay
sheets some POW say they were forced to sign, despite not receiving the
stated pay. Also, the companies reported receipt of relief supplies
(Red Cross) but failed to mention that they did not distribute the
packages to the POW.
So it is possible that the Japanese Government, and for that matter
our own Government, may have been under the impression that our POW
were in fact paid, housed and cared for to a degree that in fact
rarely, if ever, occurred. Red Cross reports show an acute awareness of
this fact (misleading information from Japanese authorities.)
In other words, the Japanese government may be basing its position
on these rather misleading reports which formed the basis if its
government's 1955 official report. However, I have no evidence one way
or the other to suggest that our own government officials were aware
of, or read, the 1955 Japanese government report.
Adequate compensation for the suffering and slave labor endured by
our prisoners remains the largest unresolved issue of the Pacific War.
It is hoped that the hearing conducted by the Senate, Committee on the
Judiciary today will bring forth further discussion and documentation
to illuminate the full intention of the San Francisco Peace Treaty, and
of the framers who drafted it. Such illumination may at last bring some
closure to those who became what their Japanese captors liked to refer
to as ``guests of the emperor.'' Meanwhile, the ashes of thousands of
Americans have long since been scattered to the winds which blow across
Japanese company properties.
I respectfully request that this statement become part of the
record of the hearing conducted by the Senate Committee on the
Judiciary June 28, 2000.Prepared Statement of Chalmers Johnson
In December 1937, when the invading Japanese army captured the city
that was then the capital of China, Nanjing, it proceeded to rape,
torture, and execute many thousands of Chinese civilians and unarmed
prisoners of war. The facts of this atrocity are not in dispute,
although controversy still surrounds the absolute numbers of Japan's
victims. Survivors of this and other instances of Japan's brutality
toward civilians and prisoners during wartime--in violation of
international treaties to which Japan was a signatory-have repeatedly
sought compensation from the Japanese government for their suffering.
On September 22, 1999, in Tokyo, the chief judge of the Tokyo District
Court dismissed the most important case concerning the Nanjing massacre
on grounds that individuals do not have a right to sue the Japanese
government.
It is in part because the Japanese courts have never once ruled in
favor of Japan's victims that California and other American states have
recently passed laws allowing former prisoners of war to sue American
branches of Japanese corporations for compensation for their suffering.
On August 26, 1999, the California legislature passed a resolution
calling on Japan to pay reparations to ``United States military and
civilian prisoners of war, * * * the survivors of the `Rape of Nanking'
[Nanjing], * * * and the women who were forced into sexual slavery and
known by the Japanese military as `comfort women.''' The California
Legislature also extended the statute of limitations for World War II
lawsuits to the end of 2010, in another piece of legislation, Senate
Bill 1245.
During World War II, some 33,587 United States military and 13,966
civilian prisoners of the Japanese military were confined in prison
camps, where many were subjected to forced labor. On August 11, 1999,
the first individual lawsuit in California was filed on behalf of Dr.
Lester Tenney, against Mitsui & Co., Ltd. and related entities for the
slave labor that Dr. Tenney endured in Mitsui's coal mines. Since then
a number of suits have been filed against companies such as Mitsubishi
International Corp., Mitsubishi Materials Corporation, Mitsui Mining
Co., Ltd., Nippon Steel, Japan Energy, Ishihara Sangyo, Ishikawajima
Harima Heavy Industries, Ltd., Sumitomo Heavy Industries, Nippon
Sharyo, Ltd. and other Japanese companies.
These lawsuits are likely to be much more damaging to Japanese-
American relations than any genuine governmental apology and the
payment of token compensation. Thus far Japan's official response has
been to stonewall and to argue that the peace treaty of 1952 settled
all claims arising from the war. There is a possible Japanese defense
against these lawsuits, but this is assuredly not it. International law
has now progressed to where claims by an individual against a state are
recognized. Moreover, Germany has already agreed to pay large sums to
compensate its forced laborers-in addition to the billions it has paid
to Israel and other survivors of the Nazi genocide against the Jews.
Relying on the peace treaty is not a good defense for several
reasons. First, the suits are not against the Japanese government but
against private Japanese corporations. Second, the United States
required that Japan pay only minimal reparations after the war because
it was trying to integrate Japan into the U.S.'s Cold War structure.
Third, the reparations Japan did pay went primarily to corrupt
dictators in places like the Philippines, Indonesia, and Burma, not to
individuals who had truly suffered at Japan's hands. Fourth, the
precedent of holding Germany, Switzerland, and American corporations
such as the Ford Motor Co. responsible for their wartime activities is
clearly applicable to Japan.
Japanese government officials acknowledge that Japan paid
considerably less in reparations after the war than other Axis powers
and that this favorable treatment of Japan came about because of the
strategy the United States pursued in the Cold War in east Asia. Thus,
for example, Tetsuo Ito of Japan's Ministry of Foreign Affairs writes
in The Japanese Annual of International Law (No. 37, 1994): The chaotic international conditions in the midst of the Cold
War eventually favored Japan in terms of the [Peace] treaty
contents. The co-drafters of the treaty [the United States and
Great Britain] had obviously eased their policy on reparations,
deciding not to impose a heavy burden on the Japanese economy,
because the rapid recovery of Japan would serve their interest
by helping to strengthen the Western Camp in their defense of
freedom against the Communism about to infiltrate Asia. [p.4]
* * * If we compare the San Francisco Peace Treaty with other
peace treaties after the Second World War, such as the Allied
peace treaties with Bulgaria, Finland, Hungary, Italy and
Romania signed on February 10, 1947, we can find that, while
the latter provided for specific figures of reparations to be
made in kind by the defeated countries, the former treated
Japan in a very generous manner by letting Japan negotiate with
each claimant country to make decisions, even regarding
important conditions such as the amount of each reparation.
Besides the problem of reparations, the Allies seemed to have
treated Japan more favorably than the European Axis countries
in other matters as well. [p. 43]The peace treaty was negotiated and signed while the Korean War was actually in progress. Japan was then the major military staging area for American operations in Korea, just as a decade and more later Okinawa was for American operations in Vietnam. The United States treated its ``fuchin kubo'' (unsinkable aircraft carrier), to use the language of the time, generously and ensured that the other allies went along with this.
Article 14(b) of the ``Multilateral Treaty of Peace with
Japan,''signed at San Francisco September 8, 1951, and in effect from
April 28, 1952, stipulates that ``Except as otherwise provided in the
present Treaty, the Allied Powers waive all reparations claims by 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 the Allied Powers
for direct military costs of occupation.'' This is the article on which
the Japanese government relies in rejecting all claims by former
P.O.W.s and internees that they be compensated for their illegal
treatment at the hands of the Japanese during the war. But there are
legal problems with this defense, in addition to the political ones
already mentioned. One is described by Tetsuo Ito of the Japanese
Ministry of Foreign Affairs as follows: ``The waiver of `claims of its
nationals' can not mean the renunciation of such claims by a state in
rigid legal terms, * * * because a state can not theoretically waive
the right of a third person, without its consent, who is not a party to
the treaty concerned, regardless of whether it is a state or an
individual'' [J.Ann. Int. Law, No. 37, 1994, p. 68]. Individuals always
retain the right to enter a claim based on their municipal law.
The more serious problem of relying on article 14(b) is its opening
clause, which reads ``Except as otherwise provided in the present
Treaty.'' Article 26 of the same Treaty overrides it: ``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.'' In treaties with the Netherlands, Denmark,
Sweden, and Spain, Japan accepted a release of claims only against the
Government of Japan, not by nationals of those countries against
Japanese nationals. The Netherlands treaty was signed May 13, 1956.
Since that time article 26 has superseded article 14(b) with regard to
claims by foreigners against Japanese civilians for their actions
during the war.
Japan's only real defense would be that it was the United States
government that refused to press the claims of its own citizens against
Japan. General MacArthur decided to exonerate the Emperor from any
responsibility for the war-thereby causing most Japanese to believe
that if the head of state was not responsible, then ordinary people and
companies were certainly blameless. The surviving American prisoners of
war thus could make as good a case against their own government's
indifference to their suffering as against Japanese corporations today.
Instead of stonewalling, the Japanese government would be wise to
take these suits as an opportunity to deal with some of the unfinished
business of World War II. Perhaps it should seek to create a joint
Japanese-American foundation that could compensate the survivors and
also offer to them a sincere apology for their shabby treatment by both
governments a half century ago. Thanks to the Cold War, Japan enjoyed a
long period in which the United States blocked all private claims
against it. Today, most of the plaintiffs in these cases are very
elderly. It would be easy for Japan to pay them. Since World War II,
the only two countries that have ever indicted their own citizens for
war crimes are Germany and France. But this is not something that
either Japan or the United States should be proud of. A trial like that
in France in 1997 of Maurice Papon, the wartime mayor of Bordeaux, for
collaborating in the deportation of Jewish civilians to Germany and his
recent recapture after he fled to Switzerland is simply unimaginable in
Japan. That is what is fueling these lawsuits as much as monetary
claims.
Chalmers Johnson's latest book is ``Blowback: The Costs and
Consequences of American Empire'' (Metropolitan Books, 2000). He is
also the editor of ``Okinawa: Cold War Island,'' published by the Japan
Policy Research Institute, of which he is president. He is an emeritus
professor of international relations and a specialist on the political
history of East Asia at the University of California, San Diego.
(Translation), August 15, 1995.Prepared Statement of Prime Minister Tomiichi Murayama
The world has seen fifty years elapse since the war came to an end.
Now, when I remember the many people both at home and abroad who fell
victim to war, my heart is overwhelmed by a flood of emotions.
The peace and prosperity of today were built as Japan overcame
great difficulty to arise from a devastated land after defeat In the
war. That achievement is something of which we are proud, and let me
herein express my heartfelt admiration for the wisdom and untiring
effort of each and every one of our citizens. Let me also express once
again my profound gratitude for the indispensable support and
assistance extended to Japan by the countries of the world, beginning
with the United States of America. I am also delighted that we have
been able to build the friendly relations which we enjoy today with the
neighboring countries of the Asia-Pacific region, the United States and
the countries of Europe.
Now that Japan has come to enjoy peace and abundance, we tend to
overlook the pricelessness and blessings of peace. Our task is to
convey to younger generations the horrors of war, so that we never
repeat the errors in our history. I believe that, as we join hands
especially with the peoples of neighboring countries, to ensure true
peace in the Asia-Pacific region--indeed, in the entire world--it is
necessary, more than anything else, that we foster relations with all
countries based on deep understanding and trust. Guided by this
conviction, the Government has launched the Peace, Friendship and
Exchange Initiative, which consists of two parts promoting: support for
historical research into relations in the modern era between Japan and
the neighboring countries of Asia and elsewhere; and rapid expansion of
exchanges with those countries. Furthermore, I will continue in all
sincerity to do my utmost in efforts being made on the issues arisen
from the war, in order to further strengthen the relations of trust
between Japan and those countries.
Now, upon this historic occasion of the 50th anniversary of the
war's end, we should bear in mind that we must look into the past to
learn from the lessons of history, and ensure that we do not stray from
the path to the peace and prosperity of human society In the future.
During a certain period in the not too distant past, Japan,
following a mistaken national policy, advanced along the road to war,
only to ensnare the Japanese people in a fateful crisis, and, through
its colonial rule and aggression, caused tremendous damage and
suffering to the people of many countries, particularly to those of
Asian nations. In the hope that no such mistake be made in the future,
I regard, In a spirit of humility, these Irrefutable facts of history,
and express here once again my feelings of deep remorse and state my
heartfelt apology. Allow me also to express my feelings of profound
mourning for all victims, both at home and abroad, of that history.
Building from our deep remorse on this occasion of the 50th
anniversary of the end of the war, Japan must eliminate self-righteous
nationalism, promote international coordination as a responsible member
of the international community and, thereby, advance the principles of
peace and democracy. At the same time, as the only country to have
experienced the devastation of atomic bombing, Japan, with a view to
the ultimate elimination of nuclear weapons, must actively strive to
further global disarmament in areas such as the strengthening of the
nuclear non-proliferation, regime. It is my conviction that in this way
alone can Japan atone for its past and lay to rest the spirits of those
who perished.
It is said that one can rely on, good faith. And so, at this time
of remembrance, I declare to the people of Japan and abroad my
intention to make good faith the foundation of our Government policy,
and this is my vow.
__________Prepared Statement of Michael D. Ramsey
My name is Michael D. Ramsey and I am a Professor of Law at the
University of San Diego Law School. I teach and write in the area of
foreign affairs law, including the law of treaties. Among other
matters, I specialize in the legal aspects of international claims
against foreign governments and foreign nationals. I am submitting this
statement for the record in a Hearing to be held by the Senate
Judiciary Committee scheduled for June 28, 2000, regarding the legal
status of claims against and Japanese nationals by former U.S.
Prisoners of War (POW's).
I have been asked to assume that the POW's were held and forced to
labor for private companies in Japan, that such companies were never
``mobilized'' under Japanese law, to operate as a part of the war
effort under the daily control of the Japanese military; that by treaty
such labor could only serve commercial purposes (and could not promote
the war effort of Japan); and that these companies were obligated to
pay wages to these laborers at private, commercial rates, but did not
do so.
The following sets forth my views on the question whether the 1951
Peace Treaty, signed in San Francisco between Japan and various allied
powers including the United States (the ``Treaty''), waives the claims
of individual U.S. citizens against private Japanese entities for
injuries suffered during World War II. I should note that my views are
not based on an exhaustive review of the history and context of the
Treaty, but only upon my general knowledge of treaty and constitutional
law and practice. For the reasons set forth below, I conclude that the
Treaty should not be read to waive private claims alleged against
individuals or entities who were not acting as agents of the Japanese
government.
At the outset I think it critical to distinguish among three types
of claims by U.S. citizens: (1) claims against the Japanese government;
(2) claims against individual Japanese nationals and Japanese entities
acting as agents of the Japanese government; and (3) claims against
individual Japanese nationals and private Japanese entities not acting
as agents of the Japanese government. I propose to discuss only the
third type of claim, and my conclusions with respect to the treaty are
limited to this category of claims, which I shall hereafter call
``private claims''.
The relevant language of the Treaty is Article 14(b), which states: [T]he Allied Powers waive all reparations claims of the Allied
Powers, [and] 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 * * *
(emphasis added). I assume for purposes of this discussion that the initial part of
the Article 14(b) language--that is, the waiver of claims of the Allied
Powers and their nationals arising out of any action taken by Japan and
its nationals--could be read to encompass all of the above categories
of claims, including the private claims. I have not been asked to
consider this issue, and express no opinion on it one way or the other.
However, even if this part of Article 14(b) does include private
claims, for the waiver to apply the second part of the relevant article
requires that the claims aris[e] * * * in the course of the prosecution
of the war. It is not at all clear that this language includes the
private claims and in my opinion that is not the best reading of the
language.
To be sure, one might argue that the phrase ``in the course of the
prosecution of the war'' encompasses all actions by whatever parties
that directly or indirectly aided the Japanese war effort. I assume
that those who would find a waiver of the private claims in Article
14(b) are relying on such a reading. This is quite a broad reading, as
it would encompass, in effect, any action taken during wartime that
benefited Japan or weakened the United States, as any such action would
contribute to Japan's war effort. But there is also a narrower reading
available: specifically, that since only the government ``prosecutes''
(that is, carries into execution) a war, only actions of the government
and its agents related to the war effort would be included, and not all
private actions occurring during the war. Thus, the phrase ``in the
course of the prosecution of the war'' is at least ambiguous as to
whether it encompasses actions of purely private parties not acting
under the direction of the Japanese government.
I believe that the narrower reading is not only plausible, but is
the preferred reading of the relevant language. This is based on four
factors, as set forth below: (1) historical practice; (2)
constitutional considerations; (3) ordinary usage, and (4) other
portions of the Treaty.
First, with respect to historical practice, agreements settling
claims between the United States and foreign nations are of course
quite common, dating to the earliest days of the Republic. However, it
is highly unusual for a claims settlement treaty to waive purely
private claims. Most, if not all, claims settlement agreements to which
the United States is a party waive claims of the United States and of
U.S. nationals against a foreign government and (sometimes) against
agents of the foreign government. Although I have not undertaken a
comprehensive study, I am generally familiar with claims settlement
agreements entered into by the United States and I personally am not
aware of any claims settlement agreement of the United States that
manifestly waives claims between private U.S. nationals and private
foreign nationals for purely private conduct. At best, such a waiver
would have to be viewed as highly unusual. The claims settlements that
have been extensively litigated, such at those considered by the U.S.
Supreme Court in the Pink and Belmont cases and more recently in Dames
& Moore v. Regan, only waived or adjusted claims by private U.S.
individuals against the foreign government itself and individual and
corporate agents of the foreign government. In Dames & Moore, for
example, the Court referred to the settlement power as the ``sovereign
authority to settle the claims of its [the U.S.'s] nationals against
foreign countries.'' Dames & Moore v. Regan, 453 U.S. 654 (1981).
As I have indicated, reading Article 14(b)'s phrase ``in the course
of the prosecution of the war'' broadly to include private wartime
activities would result in an extensive waiver of claims by private
individuals against private individuals. That is entirely contrary to
historical practice, which is not to include such claims within
negotiated intergovernmental claims settlement agreements. On the other
hand, reading ``in the course of the prosecution of the war'' narrowly
to refer to only governmental activities would make the 1951 Treaty
accord with historical practice of limiting intergovernmental
settlements to claims against the foreign government and its agents.
Second, a broad reading of the phrase ``in the course of the
prosecution of the war'' leads to serious constitutional difficulties,
while a narrow reading of the phrase is somewhat less constitutionally
problematic. The relevant constitutional provision is the Fifth
Amendment, which among other things prohibits the U.S. government from
taking private property without just compensation. It is certainly
arguable that a private legal claim is ``property'' within the meaning
of this clause. Indeed, at least one court of appeals, relying on
Supreme Court precedent, has squarely declared that ``There is no
question that claims for compensation are property interests that
cannot be taken for public use without compensation.'' In re Air Crash
in Bali, Indonesia, 684 F2d 1301 (9th Cir. 1982). Under this reading,
if the U.S. government waived private claims in Article 12(b) of the
Treaty, that was a taking of private property. It is also certainly
arguable that the owners of that property never received adequate
compensation for it. Indeed, Article 14(a) of the Treaty seems to
acknowledge that the United States is settling claims against Japan for
far less than they are worth in order to support Japan's economy. Thus
the Treaty, if read broadly, appears to take private property without
just compensations, contrary to the Fifth Amendment.
It is true that a similar argument could be raised against a waiver
of claims of U.S. citizens against Japan and its agents. These too, it
might seem, are property interests worthy of constitutional protection;
indeed this was suggested by Justice Powell in his dissenting opinion
in Dames & Moore, 453 U.S. at 691. However, courts that have addressed
similar claims since Dames & Moore have treated them differently than,
for example, the Ninth Circuit treated purely private claims in the
Bali case. The case of Shanghai Power Co. v. United States, 4 Cl. Ct.
237 (1983), affirmed without opinion, 765 F.2d 159 (Fed. Cir. 1985), is
illustrative. Decided by Judge Kozinski, then on the court of claims
and now an intellectual leader of the Ninth Circuit, the Shanghai Power
case involved President Carter's claims settlement with China. The
plaintiff, Shanghai Power, had a claim against an instrumentality of
the Chinese government which the agreement settled for a fraction of
its value, and Shanghai Power alleged a violation of its rights under
the Fifth Amendment. The court agreed that Shanghai Power's legal claim
was property, but held that no compensable taking had occurred,
essentially on two grounds: (1) the unique nature of claims against
foreign governments, and (2) the longstanding historical practice of
the U.S. government settling claims against foreign governments without
the affected parties' consent. Similarly, in Marks v. United States, 15
Cl. Ct. 609 (1988), the court of claims rejected an alleged
unconstitutional taking based on the U.S. government's settlement of
private claims against the government of Iran and its agents.
Of course, the decisions in Shanghai Power and Marks may not be
correct, as the Supreme Court appeared to leave that question open in
the Dames & Moore decision and has not definitely ruled on it since
then. However, at a minimum there appears to be some support for the
proposition that the courts would not find a constitutional violation
where the U.S. government settles individual claims against a foreign
government it and its agents without the consent of the claimholder,
even though in general abrogation of private legal claims is
constitutionally problematic under the Fifth Amendment. As a result, a
narrow reading of Article 14(b) of the 1951 Treaty would likely render
the Treaty constitutional, if the rule of Shanghai Power were applied.
On the other hand, a broad reading of Article 14(b)--such that it
extended to claims between private parties--would raise serious
constitutional difficulties under the Bali case. The reasoning that
allowed the Shanghai Power court to avoid finding a constitutional
violation would not be available with respect to the 1951 Treaty if
Article 14 (b) is read broadly to apply to private claims. This again
suggests that the narrow reading should be preferred.
A third reason for preferring the narrow reading of the phrase ``in
the course of the prosecution of the war'' is that even in isolation,
that is the better reading of the language. The relevant dictionary
definition of ``to prosecute'' is ``to carry on''. War is a public act,
carried on (``prosecuted'') by a government through its agents. There
is no such thing as a ``private'' war. Individuals not in government
service do not ``carry on'' a war. They may support the war, but they
do not ``prosecute'' it, if ``prosecution'' is read, as the dictionary
says it should be, to mean mean ``carrying on''. Thus claims do not
arise from the ``carrying on'' of war unless they arise from the
activities of those who are carrying it on--namely the government,
acting through its agents. To put it in practical terms, if an
individual Japanese national living in a neutral country murdered an
individual U.S. national in that neutral country, even during wartime,
this would not be considered part of the war effort because it is not
endorsed by the Japanese government. Rather, it would be treated as a
simple murder. It makes little sense to speak of this as part of the
``prosecution'' of the war, even if the reason for the murder was that
the Japanese citizen was motivated by patriotic zeal, and even if it
indirectly benefited the Japanese government in some way. On the other
hand, if the murder was committed by a Japanese government agent, for
some purpose connected to the war, that clearly seems to be a
``prosecution'' of the war. The difference is the government agency,
because governments, and not private citizens, ``prosecute'' wars.
This ordinary usage is confirmed by the way the phrase
``prosecution of the war'' is used in U.S. statutes. When used in U.S.
statutes, it plainly refers to the U.S. government's war effort, not to
all private activities that assist or relate to the war effort in some
way. For example, the Wartime Suspension of Limitations Act, 18 U.S.C.
3287, provides that ``When the United States is at war the running of
any statute of limitations applicable to any offense * * * committed in
connection with * * * any contract, subcontract, [or] purchase order
which is connected with or related to the prosecution of the war * * *
shall be suspended.'' As its context makes clear, the Act intended by
this language to suspend the statute of limitations on a narrow class
of actions: specifically, fraud in wartime government procurement
contracts. See Bridges v. United States, 346 U.S. 209 (1953) (noting
that the general purpose of the statute was to safeguard U.S. treasury
from wartime fraud); United States v. Grainge, 346 U.S. 235 (1953)
(discussing the Act as applying to fraud in government contracts). The
Act did not create a general suspension of the statute of limitations
in private contract cases during wartime, and to my knowledge no court
has suggested such an interpretation. The obviously limited scope of
the Act necessitates a narrow reading of the phrase ``prosecution of
the war'' encompassing only the government's war effort. If
``prosecution of the war'' included purely private conduct during
wartime that had some connection with or benefit to the war effort,
then the language of the Act would suspend the statute of limitations
with respect to much purely private activity that occurred during the
war--a reading that has never occurred to anyone, interpreting the
statute. Thus reading ``prosecution of the war'' in the 1951 Treaty
narrowly to refer to war-related activities of the Japanese government
is consistent with that phrase's statutory usage, while a broader
reading of the language is not.
Finally, evidence from other parts of the Treaty confirms that the
narrow reading is the correct one. First, there is an official French
version of the Treaty, as well as the official English version. The
French version of Article 14(b) renders ``the prosecution of the war''
as ``la conduite de la guerre''. The relevant French dictionary
definition of ``conduite'' is ``conduct; * * * direction;
supervision.'' Thus the French version of the Treaty waives claims
arising from the ``conducting, direction or supervision of the war.''
These words clearly refer to actions of one who has control over the
war effort, which can only be the government and its instrumentalities.
Even if the word ``prosecution'' is thought ambiguous, surely
``conduct'', ``supervision'' and ``direction'' are not: governments and
government agents (but not purely, private individuals), ``conduct''
war or ``direct'' war or ``supervise'' war. In short, the French
version (``conduite'') plainly limits itself to the government's war
effort, and does not encompass private activities. This suggest that
the English version, ``prosecution'', should be read equivalently--that
is, as not encompassing purely private activity.
That reading is confirmed by other parts of the Treaty,
specifically two sections of Article 19. When the parties to the Treaty
intended a broad waiver of claims, they used broader language than
Article 14(b). In Article 19(a), Japan ``waives all claims of Japan and
its nationals against the Allied Powers and their nationals arising out
of the war * * *'' While it is not obvious what claims this
encompasses, it certainly seems broader than claims ``arising out of *
* * the course of the prosecution of the war'' (else the phrase ``the
course of the prosecution of the war'' would be superfluous). It seems
likely that the parties intended for Japan (but not the Allies) to make
a broad waiver, extending to at least some private claims having a
close link to the war. In addition, in Article 19(a), Japan waived
``all claims (including debts) against Germany and German nationals on
behalf of the Japanese government and Japanese national * * * for loss
or damage sustained during the war''. This appears to be an even
broader waiver encompassing essentially everything that happened in the
war years. These three distinct ways of expressing waiver of claims
suggested that each should be given a distinct meaning, and the only
reasonable way to do this is to read ``prosecution of the war''
narrowly so that it does not swallow the other two categories.
In summary, I conclude that even assuming Article 14(b) of the
Treaty extends to individual claims against Japanese nationals in some
instances, it would only apply to those situations in which the
defendant was acting as an agent of the Japanese government in carrying
on the war effort. (Thus a U.S. national could, under this reading, not
sue a Japanese military officer in his individual capacity for
battlefield atrocities). Only these cases are properly viewed as being
part of the ``prosecution of the war'' as required for the Article
14(b) waiver. Private parties do not ``prosecute'' a war, so purely
private claims do not arise out of actions taken ``in the course of the
prosecution of the war.'' This reading is consistent with the ordinary
meaning of the phrase ``to prosecute"; with other evidence from the
treaty itself, including the French version and the phrasing of the
Article 19 waivers; with historical practice, in which
intergovernmental waiver of purely private claims without consent of
the claimholder is at best unusual; and with constitutional
requirements, which would find waiver of purely private claims to be
constitutionally suspect. On the other hand, the broader reading that
would encompass all private claims within the Article 14(b) waiver is
not consistent with the most natural reading of the relevant phrase,
creates tensions with other parts of the document, and is historically
anomalous and constitutionally suspect, For these reasons, I conclude
that the best reading of the Article 14(b) waiver is that it does not
extend to purely private claims.
__________Prepared Statement of Paul W. Reuter
I wish to thank Chairman Hatch and the Committee of the Judiciary
for the opportunity to present these comments regarding the
maintenance, treatment, transfer and slave labor conditions suffered by
American Prisoners of War while held captive by the Imperial Japanese
Military Forces during World War Two.
Ten and one-half hours after the attack upon the Hawaiian Islands,
the Japanese military bombed Clark Field in the Philippines, destroying
50 percent of the US Army Air Corps heavy bombardment offense inventory
in the Far East area. Lack of operational aircraft plus superior
Japanese air power forced trained airmen and associated military
personnel into front line duties usually employed by Infantry and
Artillery units. Facing overwhelming odds, extreme shortages of food,
medicines, defective ordinance, personal maintenance equipment and an
unfamiliar leadership situation; a surrender to the enemy was made on 9
April 1942.
Surrender was followed by the Bataan Death March and incarceration
at Camp O'Donnell in Tarlac Province on Luzon. Extreme shortage of
food, water, medical attention, plus the severe weather conditions of a
hot tropical climate suffered under the Japanese captors rules,
resulted in the death of many hundreds of men.
The Japanese sent work details from Camp O'Donnell, and later
Cabanatuan, to areas on Luzon Island such as the Tayabas Road Detail,
the Nichols Field runway detail, Bataan Peninsula detail to reclaim
Army ordinance, Pier 7 stevedore detail plus a large farm detail to
Davao Penal Colony on Mindanao. In late Summer, 1942, drafts of POW's
by the thousands were shipped to the Japanese home islands to support a
severe labor shortage caused by the drain of manpower to sustain combat
efforts against the approaching Allied armies.
The transports used for POW transit to Japan were derelict tramp
steamers of aged and uncertain vintage. Most were two hold cargo ships
having one or two cargo decks below the main deck. Many had hauled
horse drawn artillery South from Japan, then modifying the lower deck
to accommodate men where stalls had held horses. A stall five feet wide
would contain two horses, but with a shelf built five feet above the
deck it held ten POW's cramped together and limiting lateral space to a
cramped twelve inches. Food and water were lowered from the hatch
opening in five gallon cans when weather permitted moving across the
main deck to deliver the foodstuffs.
Cans were lowered to serve as latrine vessels but these filled
rapidly and were not emptied soon enough to prevent overflow of waste
products. On our ship the Corol Maru a wooden latrine containing five
holes, or seats, hung over the forward rail in a position where the
user of the latrine was hanging off the side of the ship with nothing
but the Ocean beneath. Food consisted of rice (about one cup) twice a
day, and, weather and ship movement permitting, some sort of thin soup.
Water was lowered by cans into the hold to be dispensed to POW's below,
usually by tablespoons full per man and never enough to satisfy. When
the weather turned foul, and lasted the full trip from Formosa to the
port of Mogi on the Island of Hokioda, the hatch cover was closed and,
on occasion, the canvas cover was battened down leaving the hold in
pitch black darkness.
Our ship left Manila for Formosa on 21 September 1943. We stayed a
few days at anchor in a locked in harbor on Formosa, about fifty feet
from another ship painted white and sporting large green crosses but
with artillery barrels visible under the canvas canopy. The ship flew
the flag of a Hospital ship and carried troops while we traveled in a
targeted ship to Japan. Five or six bodies were off loaded while at
anchor, presumably from the aft hold. Our transport had two holds, the
fore hold held 400 POW's and the aft hold held 480 POW's. The only
contact between men in these holds occurred when men were dispatched to
carry food and water to the individual holds.
Our trip to Mogi was quick but horrendous travel. With a heavy
weather, stormy ocean the ship headed on a direct route to Mogi because
hunting submarines could not operate in such stormy weather. Many other
Hell ships carrying POW's to Japan were forced to hug coastlines,
travel in convoy, do defensive sailing maneuvers, dodge torpedoes and
submarines; all of these forcing long days on the water and causing
many deaths from the maltreatment. On three of these Hell ships over
4000 American POWs lost their fives, but deaths and casualties were
rampant on many other ships taking POWs to Japan for continued labor.
On arrival at Mogi the fore hold POWs were fined up and marched to
the railroad station, boarded a train and after an overnight trip
arrived at Hirahata, a town on the inland sea, opposite Shikoko Island,
in the Osaka Protectorate and about 35 miles southeast of Osaka. Our
group of 400 joined the 80 Marine and Navy personnel from Wake and Guam
Islands already in the camp. We began work at the steel mill operated
by Seitetsu Steel the next day. The mill was located about two miles
from the camp and the town of Hirahata, on a road that lead directly to
the mill. We marched that road, sometimes jogged, every day under the
charge of civilian steel company overseers who also assigned jobs, set
completion levels, and administered physical punishment, sometimes
without reason, as at those times when language differences defied
communication.
My first assignment was in a machine shop as operator of a Shaper,
or horizontal lathe, a device that I was totally unfamiliar with. After
operating this Shaper for six months I was observed committing an
unauthorized act, which resulted in a beating by the military
commander, and banishment from the machine shop detail. The majority of
POWs worked the yard detail which included jobs such as lifting,
carrying, chipping, shoveling, stevedoring, etc., all necessary around
a steel mill. This mill was a large steel producer and the site
contained a large coke and gas central for the nearby area which
contained many mills and factories in either direction along the coast.
The work on yard details was strenuous and energy draining.
Surviving three and a half years on drastically reduced diets, when
daily calorie intake measured well under 1000 calories, and forced to
perform a required quantity of work under primitive, hazardous
conditions without the use of safety equipment resulted in terribly
malnourished underweight bodies. At the outset of the war my weight was
208 pounds. At Hirahata my weight reached 130 pounds. We worked as
stevedores unloading coal ships, iron ore ships, loading slag,
unloading pig iron from the foundry (a full pig weighed 145 pounds)
placing the pigs in stacks, loading the pigs into rail cars for furnace
use, unloading rail cars of white rock, chipping large bricks for
furnace lining, unloading coal rail cars at the coke plant and loading
benzine onto rail boxcars.
The barracks were terrible and unheated, baths were available about
twice per month, meals were usually a cup of rice in the morning,
another cup on the job around noon and rice plus soup or diacon, or
occasionally tofu or dried fish or silkworms soaked in brine. We
received two Red Cross packages in the two years at the camp. Upon
arrival we were fed under the civilian ration of 750 calories per day
which proved too little intake for large American frames. After a few
months the effect of our deteriorating condition and low work effort
caused the Japanese to put Americans on the military ration of 850
calories per day.
The camp was governed by Japanese military. A Lieutenant, a noncom,
a medic and perimeter and gate soldiers were all of the military.
Workers were turned over to company overseers who marched us to work,
gave out work assignments, administered punishment, and returned us to
the camp at night. We received a day off about every three weeks, to
clean ourselves and launder clothes. We did not receive pay, as such,
although the Japanese said they were paying us. There were two versions
of our pay status; the first explanation was that the mill paid for our
food and lodging and this amount equaled the pay we would have
received. This method meant we worked only for the opportunity to
survive. This system is borne out in that we worked under the edict
``no work, no eat'' so all workers able to walk to the mill, made the
trip. We POWs disregarded this system and everyone shared alike.
The second method of payment for our work also resulted in zero
transfer of money. Under this method monies earned were deposited, by
individual name, in a Postal Savings Account. However, no books were
kept and no POW has ever benefited from such an account.
Some of my fellow POW friends swear that a Code of Silence has been
imposed upon them which prevents them from discussing their experiences
while a prisoner of war of the Japanese. Other former military members
and civilians who, during the period immediately following the
surrender of Japan, participated in the discovery, examination,
analysis and prosecution of Japanese involved in biological warfare and
inhuman medical experiments have, without divulging classified
material, made remarks very disturbing to the POW's. Remarks such as:
``I am sorry we did not tell the men what was happening to them, or at
least we should have told the VA''., and, ``Each Japanese POW should
have an extensive blood serology examination''. and, ``Americans were
used in Unit 731 experiments.''. At Hirahata, in the two year stay,
three times Medical personnel came to our camp, lined everyone up, and
injected some undisclosed material into the left nipple. One wonders,
Why always the left nipple? and, Why not inform our Doctor about the
medication?
Secrets are necessary to proper functioning of the military and
foreign service in their dealing in other entities, but secrets
involving the feeding, medicating, treatment and anything affecting the
well being of individuals should not be kept secret, especially to the
individual who is now and has been hurt by the authorities not
divulging information pertinent to the individuals life. The President
has opened many of the files relating to the World War Two European
campaign and treatment administered by the Nazi regime. Why keep the
files on Japans actions relating to their war effort and culpability in
unauthorized acts toward Asian and American closed after sixty years
have past? Cannot the Judiciary Committee recommend such a move?
I Love my country. I fought for my country, willingly and
aggressively without expectations. It is time for my country to level
with me about the WHY of the deleterious actions which affect me and
concern me.
I call upon the Senate Judiciary Committee to fully support the
Bataan-Corregidor compensation entered by Sens. Bingaman and Domenici.
In conclusion, let me be the first Japan held POW to call upon
President Clinton to declassify World War Two records thru the Treaty
date in 1952.
__________Prepared Statement of John M. Rogers
I am the Lewis Professor of Law at the University of Kentucky
College, of Law. I have taught public international law regularly since
1979 and U.S. constitutional law since 1982. I have also taught
international law as a Fulbright Professor for a year at the Foreign
Affairs College in Beijing, China, as a Fulbright Professor for a year
at Zhongshan University in Guangzhou, China, and as visiting professor
at the University of San Diego Law School. My research scholarship has
focused to a large extent on the relation between domestic and
international legal systems. I recently published a book describing and
justifying the accepted, albeit limited, role of public international
law in U.S. law. Before becoming a professor, I engaged in appellate
litigation practice for the Civil Division of the United States
Department of Justice, for four years. Later, as Visiting Professor at
the Department of Justice in 1983-85, I represented the Department of
State, the Immigration and Naturalization Service, the Defense
Department, the Treasury Department, the Federal Reserve Board, and
other federal agencies in a number of federal courts appeals involving
foreign affairs law and international law.
I have been requested by counsel for United States nationals who
were held by the Government of Japan during the Second World War as
Prisoners of War to consider the application of international legal
principles in the context of the pursuit by those nationals of certain
claims. In particular, I am advised that these nationals are pursuing
claims in the state and federal courts of the United States against
entities organized under the laws of Japan which, during the Second
World War, directly employed these Prisoners of War as laborers,
allegedly failed to pay them wages required under international and
Japanese law, and allegedly tortured them or committed acts of gross
inhumanity, all in violation of international and Japanese law
standards. In addition, I am advised that California law allows such
actions also to be pursued against subsidiaries of these entities
operating in the United States and that such subsidiaries are also
defendants in the pending litigation.
I have been advised that the defendants have invoked the terms of
the 1951 Treaty of Peace with Japan (and particularly Article 14(b) of
that Treaty) as a defense to these actions. After review of the Treaty
and materials available from public sources, as well as the memoranda
regarding Article 14 submitted in these cases, I have reached an
opinion that Article 14(b) does not preclude actions brought by United
States nationals in United States courts under domestic (i.e., Japanese
or United States) law.
The plain meaning of the language of Article 14(b) of the Treaty of
Peace with Japan in which ``the Allied Powers waive * * * 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''
is that it extends only to international claims in respect of
nationals. Such claims are well understood to be governed by the
international legal system even though they arise by virtue of harms to
individuals. States of nationality of the victim have complete control
ever such claims, and may settle them over the objection of the
victims. The Peace Treaty's use of the word ``waive'' indicates
unmistakably that such international claims are contemplated. Domestic
law claims, in contrast, are subject to national or local law, even
though international matters may be involved. A private individual's
claim under domestic law cannot be ``waived'' by the state, because it
is not the state's claim under the domestic legal system.
A clear understanding of the distinction between international law
claims and domestic law claims makes the above conclusion inescapable.
The two different types of claims arise under different law, with
different fora, different enforcement mechanisms, and usually with
different parties. An international claim in its purest form is a claim
between nation-states. The Statute of the International Court of
Justice reflects this by providing that only states may be parties
before the Court. I.C.J. Stat. art. 34(1). The body of law that applies
to an international claim is found in international treaty and custom,
and not generally from the tort or contract law of particular states,
which may after all be different. International claims are typically
resolved by diplomacy, but may be subject to international arbitration,
or even submitted to international courts like the International Court
of Justice. The law applied in such fora is treaty law and customary
international law, and not the domestic law of the states parties.
(E.g., I.C.J. Stat. art. 38(1); General Claims Convention (Mexico-
U.S.), Sept. 8, 1923, art. II, reprinted in 4 U.N. Repts.. of Intl.
Arb. Awards 11, 12.) Enforcement of such claims proceeds the way any
treaty obligation is enforced. That is, states presumably obtain
advantage from being seen as complying with international obligations,
and therefore make good on international claims accepted as valid
within the international legal system.
An international claim can be on ``individual'' claim in the sense
that state A owes State B an obligation not to mistreat a national of
State B in a certain way. This occurs also when State A fails to give
the national of State B the protection that international law requires.
For instance, Iran violated the international law rights (under treaty
law and customary international law) of the United States by not
protecting individual U.S. diplomats from Iranian mobs (see Case
Concerning United States Diplomatic and Consular Staff in Tehran (U.S.
v. Iran), 1990 I.C.J. 3, 31-33), and the United States in 1891 violated
the international law rights of Italy by permitting a mob to lynch
Italians in New Orleans (see Lynching of Italians at New Orleans and
Elsewhere, 6 J. B. Moore, Digest of International Law Sec. 1026, at 837
(1906)). In these situations the harm to an individual violated an
international obligation defined by international treaty and
international customary law. The claim is an individual one in the
sense that harm to an individual is the basis for the claim, and the
individual often must have exhausted local remedies before the
international claim way be upheld. And when a claim is paid to the
claiming state, it is normally turned over by that state to the injured
individual. But in concept the international claim is one brought by,
and under the control of, the state of nationality of the individual
victim. A state may settle or waive such claims since it is the party
making the claim, and need not get the approval of the individual
victim. See 8 M. Whiteman, Digest of International Law 1216 (1963).
In contrast, a domestic law claim is brought under domestic (i.e,
national or local) law, such as common law contract or tort law, or
statutory antitrust or employment discrimination law. The parties are
typically private individuals and corporations (but may include states
and government agencies, to the extent that they have personality
within the domestic legal system). The forum is generally a court or
adjudicative agency of the nation's government or its subdivisions. The
enforcement mechanism is the executive arm of the government, which
insures that judgments are enforced. Of course the government can
affect the rights and obligations of parties to domestic law claims,
for instance by legislating to change the law applicable to such a
claim. But such a change of rights or obligations would only in the
most puzzling fashion be called a ``waiver.'' The government may not
waive the claim of its national under domestic law, since it does not
represent that individual, nor does it own the claim in any sense even
remotely like it owns individual claims under international law.
The law of one system may refer to, and sometimes even incorporate,
the law of the other. A treaty may, for instance, refer to the domestic
law of the parties. In the other direction, a statute may refer to, or
incorporate, treaty language. My recent book is largely a survey of the
various ways in which domestic law refers to international law.
International Law and United States Law, Ashgate Press, 1999
(hereinafter ``IL&USL''). But international claims remain something
very distinct from domestic law claims. Under domestic law, for
instance, the Constitution as interpreted by the Supreme Court is the
highest domestic law of the United States, regardless of what any
treaty says. See Reid v. Covert, 354 U.S 1, 15-18 (1957) (plurality
opinion). Under international law, in contrast, a valid treaty is
higher than anything in the U.S. Constitution. See Vienna Convention on
the Law of Treaties, art. 27, 1155 U.N.T.S. 331.
It is also true that one action may result in both an international
claim and a domestic law claim. The categories actually overlap in this
sense, but an international claim is often not sufficient to raise a
domestic law claim, and a domestic law claim is often not sufficient to
be an internation law claim. For instance, an attack on a diplomat--not
prevented by local authorities--could give rise to a tort claim for
battery by the diplomat against the attacker under California law, and
to an international law claim by the sending state against the United
States. But many tort and contract claims, even against foreign
nationals, and even against foreign states, are not sufficient for the
United States to raise an international law claim. Indeed, the United
States generally refrains from raising contract claims at the
international level, unless there has been something like a state
refusal to provide a fair forum. 8 M. Whiteman, Digest of United States
Practice International Law 906 (1963); 1975 Digest of United States
Practice in International Law 485. And many international claims do not
raise the possibility of a domestic law claim. For instance, if the
United States were to pass legislation permitting violation of a
binding UN Security Council resolution embargoing some rogue regime, no
claim would lie under U.S. law against an individual selling goods in
violation of the embargo, even though a valid international claim could
presumably be brought against the United States (see Diggs v. Shultz,
470 F.2d 461 (D.C. Cir. 1972)).
The overlap is in a very rough way analogous to the overlap of tort
law and criminal law within the United States domestic legal system.
Tort law and criminal law are different bodies of law, with generally
different purposes and different parties. Mere negligence resulting in
injury may be tortious but not criminal. And driving recklessly without
hurting anyone may be criminal but not tortious. But careless driving
may in some cases be both a crime and a tort. It does not follow,
though, that the tort claim can be waived by the criminal prosecutor.
The government is the party in interest bringing a criminal case, it
brings the case in the interest of the public, even though the victim
is an individual. The government can settle, criminal claims, even over
the objection of the victim, in the greater interest of the general
public. It can be said to ``waive'' future prosecution. But the
government is not the party in interest in a civil tort suit, and it
would be a puzzling use of words for a government prosecutor to
``waive'' future tort litigation brought by the victim. Until the O.J.
Simpson case, many non-lawyers may not have clearly understood the way
in which resolution of a criminal case does not control resolution of a
civil case. But the difference was always there. Similarly, many
lawyers misapprehend the clear difference between an international law
claim and a domestic law claim, but the difference still there.
As. pointed out in paragraph 7, a government may of course change
domestic law, and thereby change the content of domestic law rights and
duties. Typically this is done by legislation, but in the United States
it can also be done by self-executing treaty provision (President plus
\2/3\ Senate approval), by congressionally approved executive agreement
(President with statutory authorization), and (in a limited category of
cases) by executive agreement without explicit congressional
authorization (see United States v. Pink, 315 U.S. 203 (1942)). For
instance, the self-executing treaty provision at issue in the famous
case of Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816),
changed the domestic law rights of private parties contesting the
ownership of real property in Virginia. See Fairfax's Devisee v.
Hunter's Lessee, 11 U.S. (7 Cranch) 603 (1813). And the executive
agreement upheld in Darnes & Moore v. Regan, 453 U.S. 654 (1981),
changed the domestic law rights of private contractors raising domestic
law contract claims against instrumentalities of the Iranian
government.
Article 14(b) of the Treaty of Peace with Japan by its plain terms
contemplates resolution of international law claims against Japan. This
is because of the use of the word ``waive.'' The United States can
waive individual claims under international law, because such claims
are claims of the United States in important and legally relevant ways.
It would make no sense for the United States government to ``waive''
claims of individuals under domestic law. In order to extinguish (or
even to affect) domestic law claims, some different language would be
required. ``Waive'' means give up, relinquish, or surrender. To
extinguish domestic law claims, in contrast, one would expect language
like ``extinguish,'' ``suspend,'' ``invalidate,'' ``nullify,'' or the
like. Thus, the executive agreement upheld in Dames & Moore v. Regan,
453 U.S. 654 (1981), provided that the United States was obligated to terminate all legal proceedings in United States courts
involving claims of United States persons and institutions
against Iran and its state enterprises, to nullify all
attachments and judgments obtained therein, to prohibit all
further litigation based on such claims, and to bring about the
termination of such claims through binding arbitration.453 U.S. at 665, quoting directly from the executive agreement. Or instead of prohibiting domestic litigation, a self-executing treaty might directly change domestic law obligations. For instance, the following treaty provisions changed what otherwise would have been the domestic law rights or obligations of private parties in the United States courts:
The citizens [of the Parties] shall have liberty to * * * carry
on trade * * * upon the same terms as native citizens or
subjects. (Asakura v. City of Seattle, 265 U.S. 332, 340
(1924).)
A national of the other state `shall be allowed a term of three
years in which to sell [certain inherited real] property * * *
and withdraw the proceeds * * *' free from any discriminatory
taxation. (Clark v. Allen, 331 U.S. 503, 507-508 (1947).)
in case real estate situated within the territories of one of
the contracting parties should fall to a citizen of the other
party, who, on account of his being an alien, could not be
permitted to hold such property in the State * * * in which it
may be situated, there shall be accorded to the said heir, or
other successor, such term as the laws of the State * * * will
permit to sell such property, he shall be at liberty at all
times to withdraw and export the proceeds thereof without
difficulty. * * * (Hauenstein v. Lynham, 100 U.S. 483, 486-490
(1879).)
no higher or other duties, charges, or taxes of any kind, shall
be levied by one country on removal of property therefrom by
citizens of the other country `than are or shall be payable in
each State, upon the same, when removed by a citizen or subject
of such state respectively'. (Nielsen v. Johnson, 279 U.S. 47,
50 (1929).)Article 14(b) of the Treaty of Peace with Japan contains no such
language, The article simply does not refer in any plain way to
domestic law rights, obligations, or claims. Instead, it waives claims
of the United States government, including both claims by the nation as
a whole, and international law claims of the United States in respect
of nationals.
This conclusion says nothing about whether Article 14(b) is ``self-
executing.'' Whether a treaty provision is self-executing determines
whether the provision changes domestic law without implementing
legislation by Congress. Only it Article 14 obligated the United States
to extinguish a category of domestic law claims, or to change domestic
law rights or obligations, and no legislation implemented the
obligation, would a court have to determine whether the obligation was
self-executing as a matter of United States law. See IL&USL at 76-87.
But where a treaty provision does not obligate the United States to
change its domestic law in the first place, it is a question of the
most conjectural sort to ask whether, if it did, it would be self-
executing. Accordingly, no authorities dealing with whether a treaty
provision is self-executing are relevant to the conclusion that the
provision simply does not extend to domestic law claims.
That Article 14(b) does not extend to domestic law claims of
nationals is directly supported by the contemporaneous Stikker-Yoshida
correspondence of 1951. By note of September 7, 1951. Netherlands
Minister of Foreign Affairs Dirk Stikker drew the attention of the
Prime Minister of Japan to Foreign Minister Stikker's words addressed
to the Peace Conference on the previous day: It is my Government's view that article 14(b) as a matter of
correct interpretation does not involve the expropriation by
each Allied Government of the private claims of its nationals
so that after the Treaty comes into force these claims will be
non-existent.
The question is important because some Governments, including
my own, are under certain limitations of constitutional and
other governing laws as to confiscation or appropriating
private property of their nationals. Also, there are certain
types of private claims by allied nationals, which we would
assume the Japanese Government might want voluntarily to deal
with in its own way as a matter of good conscience or of
enlightened expediency. This statement, is perfectly consistent with reading the waiver
with respect to nationals found in Article 14(b) to extend only to
international law claims of states in respect of individuals, and not
to claims of nationals under domestic legal systems, Indeed, it is
otherwise difficult to make sense of the Netherlands Foreign Minister's
statement.
That Article 14(b) does not extend to domestic law claims of
nationals is further supported by a law review article by the
Counselor, at the time of writing, of the Japanese Embassy in London.
Tetsuo Ito, Japan's Settlement of the Post-World War II Reparations and
Claims, 34 Japanese Annual of International Law 38 (1994). Mr. Ito's
analysis, though it is his own and does not purport generally to
represent official Japanese government opinion, has particular weight
inasmuch as Mr. Ito is a former director of the Legal Affairs Division
of the Treaties Bureau of the Japanese Foreign Ministry. At the end of
a clear two-page discussion of the nature of international claims in
respect of individual nationals, id. at 67-69. Mr. Ito reaches the
following conclusion, describing it as the position of the Japanese
Government: [I]t seems the following view of the Japanese Government is
persuasive: ``the waiver by a state of claims of its
nationals,'' provided for in treaties concerned, does not mean
the renounciation of the right to claims themselves, which its
nationals possess, or, at least, can claim to possess, on the
basis of its municipal laws, but means the renounciation of the
right of diplomatic protection, which the state possesses, in
respect of the claim of its nationals, under international law.
Therefore, after waiving the claims of its nationals in
treaties, the state can not take up the issue of such claims on
an intergovernmental basis, even if its individuals request to
do so.Id. at 68-69.
Finally, the Statement of Interest by the United States is
remarkably bare of support for its apparently contrary analysis. It is
true that courts defer to the opinion of the Executive Branch. The
Statement of Interest filed on May 23, 2000, however, fails to provide
any support far its conclusion that the Treaty of Peace aid the War
Claims Act created a remedy that excluded domestic law claims of U.S.
nationals. The Statement of Interest states repeatedly (at 2, 4, 6, 10,
12, 13) that the Peace Treaty, along with the War Claims Act that
provided for distribution of funds obtained by the United States
pursuant to the treaty, created an exclusive remedy for compensation
for prisoners of war. But nothing in the Statement of Interest actually
supports this conclusion. First, Congress's desire that claims within
the War Claims Commission's jurisdiction not be adjudicated by courts
(Statement of Interest at 6) by its terms extends only to claims
against the funds that the War Claims Commission was to distribute,
i.e., funds obtained for international legal claims. It is perfectly
consistent with that intent for domestic law claims between nationals
of the two states to survive. Second, contrary to the Statement of
Interest (at 10), the plain meaning of Article 14(b) does not support
the argument that domestic law claims are, extinguished The plain
meaning of ``waive'' is to the contrary, See paragraph 12, supra.
Third, the discussion of the federal preemption doctrine (at 11-13)
relies upon the treaty interpretation of Article 14(b) that domestic
law claims are extinguished, but does nothing to support that
underlying premise. All of the authorities cited in the Statement of
Interest are fully consistent with the natural reading of Article
14(b), that the Allied Powers waived their international law claims.
The Statement of Interest fails entirely to deal with the accepted
distinction between international law claims and domestic law claims.
The Statement of Interest fails to explain how language of ``waiver''
somehow means extinguishment. It fails to explain either the Stikker-
Yoshida correspondence, or the Japanese Government views described in
the Ito article. Accordingly, with respect to Article 14(b), the
Statement of Interest contains no more than repeated governmental ipse
dixit that domestic law claims of U.S. nationals have been excluded by
a treaty, a treaty that simply does not say as much.
It should be added that domestic law claims of the United States
government are also conceivably waived by Article 14(b), since it is
possible that the United States gave up its right to pursue a class of
claims in the domestic courts of Japan or the United States, in
addition to waiving its international law claims. But with respect to
domestic law claims of U.S. nationals, it is an entirely strained and
unnatural reading of the words ``the Allied Powers waive'' to interpret
it to mean the Allied Powers ``take away'' or ``extinguish'' claims of
their nationals in domestic courts under domestic law. Under no
accepted concept are such claims--in contrast with international law
claims--theirs to ``waive.''
__________Prepared Statement of Joseph A. Violante
Mr. Chairman and Members of the Committee: On behalf of the more
than one million members of the Disabled American Veterans (DAV) and
its Auxiliary, I am pleased to provide DAV's remarks for the record on
the plight of former World War II American Prisoners of War (POWs)
captured in the Pacific, and their struggle for justice.
The DAV is made up of men and women disabled in our nation's
defense. The DAV was founded in 1920 and chartered by Congress in 1932
as the primary advocate for America's service-connected disabled
veterans, their dependents and survivors. Since its inception, the DAV
has been dedicated to one, single purpose: building better lives for
our nation's disabled veterans and their families. During the past 80
years, the DAV has never wavered in its commitment to serve our
nation's service-connected disabled veterans, their dependents and
survivors.
The DAV has a narrow legislative focus defined by its Congressional
charter and our Constitution and Bylaws. We are charged with advancing
the interests of wartime disabled veterans and their dependents
concerning certain federal veterans' benefits and services. These
benefits and services have, as part of their eligibility criteria, the
establishment of a service-connected disability as a result of wound,
injury, or disease that occurred during active duty.
Our major policy positions are determined by our membership passing
certain resolutions at our annual National Conventions. These
resolutions must be in keeping with the guidelines of our charter, as
well as our Constitution and Bylaws.
In recognition of the fact that former POWs suffered cruel and
inhumane treatment and nutritional deprivation at the hands of their
captors, which resulted in long-term adverse health effects, our
membership has consistently supported legislation that would expand POW
presumptions.
Although no resolution was submitted for DAV to consider supporting
the efforts of former World War II American POWs in the Pacific in
their efforts to seek legal action against those Japanese companies who
used American POWs as slave labor, the DAV is seriously concerned about
our government's position opposing this litigation. It is inconceivable
that our government would take a neutral position with regards to
similar issues affecting reimbursement from German companies, and
oppose claims directed to private Japanese companies for whom former
POWs were forced to work as slaves.
Sadly, our nation has chosen to continue to ignore its commitment
to those brave men and women who have defended the freedoms all
Americans, and many citizens around the world, cherish. It is hard to
imagine a group of men and women more deserving than those former POWs
who endured months and years of cruel and inhumane treatment,
brutality, nutritional deprivation, and adverse health effects at the
hands of their captors, especially those captured in the Pacific
theater.
The DAV strongly believes that our nation has a sacred obligation--
a duty--to ensure that the defenders of our freedom are adequately
cared for, compensated, rehabilitated, and returned to gainful civilian
employment, whenever possible. In many cases, it is impossible to erase
the physical and mental traumas of war suffered by those valiant
warriors who sacrificed, and gave their all, no questions asked, in
defense of freedom.
There is a common bond among veterans, forged by their shared
experiences that have molded their character and their values. Although
their lives have been forever changed, their values have not, and their
commitment to this nation remains strong, even though our government
too often reneges on its commitment to them.
In return for sacrificing their lives, their limbs, and mental and
physical well-being, the only thing that veterans have ever asked in
return is that our government honors its commitment to help them and
their families in their hour of need. This sacred covenant between our
nation and its citizen soldiers has been both implied and implicit
since our nation was founded.
We must never forget how blessed we are to live in a free society,
nor forget the price that was paid for our freedom, especially by those
deprived of all human dignity by their captors. We must, therefore,
honor and care for those who distinguish their lives in defense of
freedom--whatever the cost.
The only thing that these former World War II American POWs of the
Pacific Theater ask is for the right to receive just and fair
compensation from private Japanese companies who profited from their
slave labor, without interference from our government. At the very
least, our government should remain neutral and not oppose their legal
action--they deserve nothing less.
Mr. Chairman, this completes my testimony. Thank you for allowing
the DAV the opportunity to discuss its concerns about our government's
opposition to the legal claims of former World War II American POWs
against private Japanese companies.
__________
American Defenders of Bataan & Corregidor, Inc.,
Wellsburg, WV, June 20, 2000.
Senator Orrin Hatch,
Dirksen Senate Office Building, Washington, DC.
Dear Senator Hatch: We were squeezed into the filthy allotted space
in the bowels of the hell ships, and were locked in for safe-keeping.
Maybe there was still some physical strength left for work or perhaps
they would serve as barter should the Japanese militarists need them
for such. Devoid of any comforts, without food or water and not even
the courtesy to mark the ship as carrying prisoners of war, we sailed
through the battle infested waters toward Japan. We saw the smack of a
torpedo or bomb as it hit the ship, we saw the rushing water as it
entered the hold and we felt panic that said ``This is it''. There was
terror written in deep gaunt lines on the faces of the men. Men that
were then to the breaking point. We arrived in Japan and were assigned
to quarters which were unfit for human living, starved, beaten and then
assigned to Japanese industrialists as slave labor to work in plants to
manufacture and handle war materials which would be used against our
own country men for almost three and one half years. thousands died
from starvation and severe mistreatment by the Japanese military. Today
we suffer immensely from the residual effects of our prisoner of war
life. It took 36 years for our government (PL 97-37) to recognize the
physical and mental disabilities of this group of veterans.
Those few who came home continually looked to their government to
seek some compensation from the Japanese government and industrialists
who used them as slave labor during World War II. As of this date they
have found none. What we did receive is, a peace treaty with Japan,
that many of us claim denies us redress for violation of our basic
human rights. With the help of a few civic minded attorneys and other
individuals in various parts of the United States, the prisoners of war
community has initiated a drive for justice against those Japanese
industrialists that used us as a slave labor in plants that produced
war goods which were used against those gallant and brave armed forces
who were island hopping in the South Pacific to free them from the
tyrannical hands of the Japanese government. A number of law suits have
recently been filed in the state of California on behalf of these
former prisoners of war. These complaints were filed against those
Japanese firms that benefited from their slave labor during World War
II. Currently, there are almost eighty attorneys assisting in the
litigation against the Japanese industrialists.
Hopes were high that perhaps justice might now prevail for this
group. However, the prisoner of war community has recently been
informed that the United States Department Of Justice, pursuant to a
court's order requesting such, has issued an opinion that supports the
Peace Treaty with Japan dated September 8, 1951. The opinion states
that a claim relying on state law is considered one ``arising under''
federal law and may be removed to federal court, The opinion states
that the Peace Treaty along with the War Claims Act of 1948 preempts
state law claims as shown in Raymond Heimbuch et al against Ishihara
Sangyo Kaisha Ltd. for remanding the litigation to a state court.
This action by the Justice Department is in direct contradiction to
a letter by Judge John W. Bissell that requested the department to
appear as ``amicus curiae'' (commonly known as friend of the court) in
two slave labor claims on behalf of persons forced to work in German
factories during World War II. The Civil Division of the Department of
Justice respectfully declined the request of Judge Bissell to become
involved in this particular litigation.
It is very apparent that the Justice Department made a determined
decision only six months ago not to interfere with claims pending on
behalf of Holocaust slave tabor victims, whereas in the Raymond
Heimbuch et al litigation, they have taken a position which is
detrimental to such claims on behalf of slave labor victims of the
Japanese industrialists. These former prisoners of war are bewildered
that the Department Of Justice chose to take such a position which
interferes with the rights of a private citizens to bring claims
against private companies. These plaintiffs are particularly concerned
that the effect of this opinion could nullify the action of the
California legislature in seeking to open up State courts for American
POW's pursuing fair compensation for slave labor performed during World
War II.
Why are former prisoners of war who were forced to perform slave
labor for the Japanese companies being treated differently from persons
who performed as slave labor for German companies during World War II?
Why did the Department of Justice publicly state a position that is
adverse to the former prisoners of war who seek redress from private
Japanese companies? It should be noted that many of the Holocaust slave
labor victims and their representatives have been actively involved in
supporting legislation against Japanese companies and are doing
everything they can to right the injustices which occurred in the
Pacific during World War II. We would appreciate your help on this
matter.
Respectfully yours,
Edward Jackfert,
Past National Commander, American Defenders Of Bataan & Corregidor.
__________
The American Center for Civil Justice,
Brooklyn, NY, June 10, 2000.
Stuart Eizenstat,
Deputy Secretary of the U.S. Treasury,
U.S. Treasury Department, Washington, DC.
Dear Mr. Eizenstat: The American Center for Civil Justice, an
advocacy group, has been responsible for the public awareness that has
spawned the more than thirty present lawsuits against Japanese
Corporations for the enslavement of American ex-POWs during World War
II.
The Center provided the initial and essential historical and legal
research to enable these claims to move forward. The Center has also
corresponded with some of the Japanese Corporations that maintain
headquarters in the United States.
The Center's primary goal and commitment has been to establish a
quick and early closure to this issue of compensation that has been
ignored for half a century.
The Center is presently proposing a direct settlement between the
companies and the claimants, that will be fair to the victims without
harming the corporations involved.
The Center believes this approach is in the best interest of all
parties and in the national interest of both Countries.
The Center represents the majority of living American claimants and
has the ability to reach out to all American victims within a
reasonable period of time.
The Center has no financial interest in this claim or settlement
and has made every effort in preventing this issue from becoming a new
found source of revenue for the legal industry,
This proposal and your response to it are destined to become part
of the history of this affair, and such intervention would seem to be
within your official capacity.
I would be available to meet with you at the earliest possible
opportunity.
Sincerely,
Michael Engelberg, MD.
__________
The American Center for Civil Justice,
Brooklyn, NY, June 13, 2000.
Mr. Hiroaki Yano,
President, Mitsubishi International Corp., NY, NY.
Dear Mr. Yano: The American Center for Civil Justice, an advocacy
group, is authorized to represent 600 American ex-POWs of alleged
Japanese slave labor, the largest group seeking redress for
enslavement.
Since our last correspondence in December, approximately thirty new
lawsuits have been filed against Japanese industries and the United
States legal system is being used as a tool to pursue these claims.
The Center which was the original advocate of this issue and was
responsible for making it public, proposes a swift and direct
settlement, which will remove this claim from the courts. By
immediately addressing these claims, this issue, that will affect
American and Japanese relations, and may affect the future of your
company, would be resolved in a sensible and just manner.
The Center will be able to reach out to all American victims within
a reasonable period of time.
In continuing to defend these mushrooming claims in U.S. Courts,
your legal and public relations cost could possibly exceed a total
settlement cost while not bringing closure to either plaintiff or
defendant.
This is a serious offer of good faith on behalf of the victims and
the Center will have no financial interest in this claim or settlement.
The Center believes this approach is in the best interest of all
the concerned parties and is in the national interest of both of our
countries. While it is unfortunate that the Center's December
correspondence and its recommendations was not acted upon, no action on
your part will initiate further law suits which will elevate the
expenses and public profile of this unfortunate matter.
Your response to this offer, which is being made on behalf of the
elderly and frail American surviving victims, will for posterity,
reflect your attitude and approach towards correcting an historical
injustice.
If you would like to explore the framework and details of this
recommendation, I will be available to meet with you or your
representative at the earliest possible opportunity.
Sincerely,
Michael Engelberg, MD.
__________
The American Center for Civil Justice,
Brooklyn, NY, June 13, 2000.
Mr. Hiroshi Noda,
Kawasaki Heavy Industries (U.S.A.), Inc., NY, NY.
Dear Mr. Noda: The American Center for Civil Justice, an advocacy
group, is authorized to represent 600 American ex-POWs of alleged
Japanese slave labor, the largest group seeking redress for
enslavement.
Since our last correspondence in December, approximately thirty new
lawsuits have been filed against Japanese industries and the United
States legal system is being used as a tool to pursue these claims.
The Center which was the original advocate of this issue and was
responsible for making it public, proposes a swift and direct
settlement, which will remove this claim from the courts. By
immediately addressing these claims, this issue, that will affect
American and Japanese relations, and may affect the future of your
company, would be resolved in a sensible and just manner.
The Center will be able to reach out to all American victims within
a reasonable period of time.
In continuing to defend these mushrooming claims in U.S. Courts,
your legal and public relations cost could possibly exceed a total
settlement cost while not bringing closure to either plaintiff or
defendant.
This is a serious offer of good faith on behalf of the victims and
the Center will have no financial interest in this claim or settlement.
The Center believes this approach is in the best interest of all
the concerned parties and is in the national interest of both of our
countries. While it is unfortunate that the Center's December
correspondence and its recommendations was not acted upon, no action on
your part will initiate further law suits which will elevate the
expenses and public profile of this unfortunate matter.
Your response to this offer, which is being made on behalf of the
elderly and frail American surviving victims, will for posterity,
reflect your attitude and approach towards correcting an historical
injustice.
If you would like to explore the framework and details of this
recommendation, I will be available to meet with you or your
representative at the earliest possible opportunity.
Sincerely,
Michael Engelberg, MD.
__________
Assembly California Legislature,
Sacramento, CA, June 30, 2000.
RE: Senate Hearing on ``Former U.S. World War II POWs: A Struggle for
Justice''Hon. Orrin Hatch,
Chair, Honorable Members of the Senate Judiciary Committee,
U.S. Senate Committee on the Judiciary, Dirksen Senate Office Building,
Washington, DC.
Dear Chair and Judiciary Committee Members: I write to you as a co-
author of California State Senator Tom Hayden's legislation (Senate
Bill 1245 of 1999) which grants former prisoners of war a basis to
pursue claims against Japanese companies doing business in California.
I am also the author of Assembly Joint Resolution 27 of 1999, which
calls for Japan to formally apologize and pay reparations for war
crimes.
In 1670, Benedict Spinoza wrote in his Theological-Political
Treatise: Peace is not an absence of war, it is a virtue, a state of
mind, a disposition for benevolence, confidence, justice. For former slave laborers, the war is over, but there is no peace.
In an effort to bring closure to a heroic community of Americans, the
State of California has granted former prisoners of war who were forced
to work as slave laborers a right to seek compensation. I urge you to
do all within your power to allow these Americans to have their day in
court.
The Justice Department has interpreted the San Francisco Peace
Treaty of 1951 as barring these claims. The Justice Department opinion
passively restates the position of the State Department, but is void of
any apparent common sense of justice. It fails to recognize that a true
peace is more than the absence of war.
While I value the work of the Justice Department, I recall that the
Justice Department successfully opposed the initial claims of Japanese-
Americans seeking redress for their internment. In this instance, as in
the past, there are persuasive legal arguments contrary to the position
of the State Department. These arguments must be aired in a court of
law.
This is truly a test of our democracy. I urge you and every member
of Congress assist these valiant Americans by securing their day in
court--they deserve nothing less. To deny them a day in court is, at
this point, to deny them justice and their only remaining opportunity
for true peace.
Sincerely,
Michael M. Honda,
California State Legislature, 23rd Assembly District.
__________
The Center for Internee Rights, Inc.,
Miami Beach, FL, June 22, 2000.
Senator Orrin Hatch,
Senate Judiciary Committee, U.S. Senate,
Washington, DC.
Dear Chairman Hatch, On behalf of our fifty thousand members
representing former POWs and civilian internees of Japan in World War
II let me thank you for taking an interest in the plight of these poor
souls who were so brutalized by Japan in WWII.
Frankly, we are shocked and disappointed on the recent decision
issued by the Department of Justice relating to American POWs used by
private Japanese companies as slave labor in WWII. California took the
initiative and did the right thing by passing laws to allow slave
laborers to sue the companies that used them illegally and who never
paid them. The issue is not a sovereign nation to sovereign nation
issue but one of an individual citizen suing a private company. Why
people keep bringing up the San Francisco Peace Treaty as blocking the
ability of these lawsuits to progress is beyond me.
Frankly, Senator Hatch, the San Francisco Peace Treaty ought to be
looked at very carefully for it specifically did not end the issue of
compensation for the victims of Japan. The history of the Treaty is
certainly flawed with ominous political reckoning and the victims were
mostly ignored by their own Government. Germany on the other hand has
stepped forward and faced their transgressions in WWII in a just and
honorable way. The US Government has strongly supported the effort both
private and governmental in settling compensation issues for those who
suffered under the Nazi German Regime. Why then is there a dual
standard when it comes to the same type of victims who suffered under
the Japanese?
I can tell you this, having been a former internee of the Japanese
in WWII, those captured by Japan suffered unspeakable and inhumane
treatment by Japan. The US on the other hand treated the Japanese,
Japanese-Americans, Italians and Germans who were interned in the
United States during the war with kindness, respect and far beyond the
parameters of the Geneva and Hague Convention. That is the American way
and we can be proud that we treated enemies at time of war in such a
benevolent fashion.
The Japanese Government will continue to hide behind the San
Francisco Peace Treaty until the United States Government faces the
fact that they themselves were involved in an unjust Treaty that fully
overlooked the plight of the American citizens captured and interned by
Japan.
It is our hope, Senator Hatch, that your Hearings will expose the
US Government's calloused and uncaring attitude toward the American
citizens who sacrificed all in the pursuit of freedom and democracy
that we are privileged to enjoy today. In the spirit of our great
nation your Committee can resolve the situation. it is time to do the
right thing.
Respectfully,
Gilbert M. Hair (Santo Tomas Internee),
Executive Director,
Life Member--ADBC, AXPOW, DAV, AMERICAN LEGION, CORMV.[Editor's note: The attachment of an article from the Veterans' Journal, October 1999 Issue, Volume 2, Number 10, ``Massacres and Atrocities of World War II,'' is retained in Committee files.] [GRAPHIC] [TIFF OMITTED] T5766.001
Office of Selectman,
State of Connecticut,
Stafford Springs, CT, June 20, 2000.
Senator Orrin Hatch,
Chairman, Senate Judiciary Committee, Washington, DC.
Dear Mr. Hatch, A resident of our community, Darrell Stark was
captured in the Philippines by the Japanese as a young man at the onset
of World War II.
While most of the men in his unit died either while being
transported or in captivity, Mr. Stark survived. He was transferred to
Japan and forced to work as a slave laborer for three years.
He feels strongly that like his counterparts who were forced to do
slave labor for the Germans, that he should be able to bring Civil
Actions against the Japanese companies that profited from his labor in
the United States Courts.
We understand that people, who were enslaved in the European
Theater, are permitted to bring suit, but those people used in this
fashion in Asia are not. The concept that some former service men and
women can bring suit and others can't is difficult to understand.
We understand that vital social and governmental issues may be
involved with their decision but the overriding human consideration
should be that federal legislation should be enacted to permit our
former slave laborers to be compensated for their suffering and their
work.
Your swift attention to this matter will be appreciated not only by
Darrell Stark but also by the thousands of other former service men and
women who suffered the same fate.
Very truly yours,
John E. Julian,
First Selectman.
__________
The American Legion,
Washington, DC, June 27, 2000.
Hon. Orrin Hatch,
Chairman Senate Judiciary Committee,
Dirksen Senate Office Building, Washington, DC.
Dear Chairman Hatch: On behalf of the 2.8 million members of The
American Legion, I want to express our sincere thanks to you for
scheduling the Judiciary Committee hearing on June 28 on the subject of
compensation for Bataan POWs. We welcome and appreciate your leadership
on this issue and trust that the hearing will help bring closure and
justice to the survivors of Bataan who have been waiting for this for
over fifty years.
Bataan survivor compensation has been a concern of The American
Legion for many years. We have two longstanding resolutions that speak
to this specific issue. Our steadfast position remains that the
Japanese government must: (1) Render an official and unequivocal apology for the pain,
suffering and death inflicted on American POWs and (2) Pay $20,000 to the surviving service members who were involved in
the Bataan Death March and to the Families of the non-surviving
service members.We feel that this is the very least the Japanese can do to right one of the most egregious wrongs of the 20th Century.
As you are well aware, the American prisoners held by the Japanese
were subjected to conditions and deliberate abuse that were beyond
belief. Upwards of 10,000 American prisoners died as a result of
Japanese brutality during their occupation of the Philippines. Seeing
that Germany has apologized for its injustices during World War II and
reparations have been paid to Japanese-Americans who were forced into
internment camps, positive steps from Japan are long past due.
The American Legion was certainly pleased to see the recent
introduction of H. Con. Res. 357 that expresses the sense of Congress
concerning war crimes committed by the Japanese military during World
War II. This resolution closely mirrors American Legion positions and
calls for both an apology and the payment of reparations to surviving
POWs, by the Japanese. We strongly support H. Con. Res. 357 and urge
the U.S. Government to exact pressure on the Japanese government and
commercial interests to make an apology and make payment of reparations
a reality.
We are also aware of section 655 of S. 2549, the National Defense
Authorization Act for fiscal year 2001, which if enacted will pay a
gratuity through the Secretary of Veterans Affairs to eligible veterans
or their surviving spouses. This provision would pay $20,000 to
veterans of Bataan or Corregidor who were POW's forced to preform slave
labor in Japan during WWII. The American Legion would support this
proposal only after all attempts diplomatic, administrative and
Congressional in nature for payment by the Japanese government or
Japanese commercial interests have been exhausted.
The American Legion applauds the Committee's actions to expose and
address the heinous activities of the Japanese during World War II.
While Japan can never fully atone for these actions, the Japanese most
assuredly should take steps to apologize and provide a sense of justice
to the Bataan survivors and their families.
Sincerely,
John F. Sommer, Jr.,
Executive Director.
__________
AMVETS,
Lanham, MD, June 26, 2000.
The Hon. Orrin Hatch,
U.S. Senate Washington, DC.
Dear Senator Hatch: As AMVETS National Commander, I am pleased to
support the efforts of the Senate Judiciary Committee to examine the
plight of the U.S. POW's and civilian internees who were captured,
interned and brutalized by Japan during WWII.
It is important that we as a nation investigate the service of
American POW's forced to endure long hours of hard labor for Japanese
businesses during their capture and recognize and compensate those
brave veterans. This issue is of great concern to the AMVETS
membership. This August, at our 56th National Convention, delegates
will consider an organizational resolution that requires AMVETS to
support all efforts to investigate and resolve the claims of slave
labor by the Japanese during WWII.
Thank you for the opportunity to express our support for this
important issue. AMVETS is proud of your efforts in helping to secure
the benefits of America's veterans.
Yours in loyalty and service,
Charles L. Taylor,
AMVETS National Commander.
__________
House of Representatives,
Washington, DC, June 23, 2000.
The Hon. Orrin G. Hatch,
Chairman, Senate Judiciary Committee, Washington, DC.
Dear Mr. Chairman: It has come to my attention that you are
considering holding hearings on the ability of American Prisoners of
War (POWs) held by the Japanese during WWII to sue, in federal court,
for the injuries, back wages, and damages resulting from the POW's
imprisonment and forced labor. I write to express my strong support of
your holding hearings to look into this matter.
Several thousand American soldiers were held as POW's and performed
slave labor which, in large part, contributed to the wealth and success
of many private Japanese corporations. These POW's endured unspeakable
horrors, were beaten often, and poorly fed while working in mills 10 to
15 hours per day. We, in the Federal Government, have an obligation to
ensure that the soldiers, who were imprisoned as they fought to protect
and preserve our freedom and democracy, receive the just compensation
to which they are entitled.
As you know, similar cases involving Nazi Germany have arisen.
However, there seem to be inconsistencies in how the Department of
Justice has responded to certain courts which have sought the opinion
of the United States regarding cases involving POW's held by Japan and
Germany. As such, I believe that a hearing is appropriate and the
Senate is best suited to conduct hearings on how best to resolve this
situation as any action on this issue would involve or be impacted by
the treaties that ended WWII.
You may also know that the State of Rhode Island is currently
considering legislation that would allow former POW's and their kin to
sue, in Superior court, Japanese corporations that profited greatly
from the slave labor of these prisoners. That legislation unanimously
passed the Rhode Island State Senate and is expected to pass the House.
Thank you for your attention to this matter and please feel free to
contact me if you have any questions or if I can provide any additional
information.
Sincerely,
Bob Weygand,
Member of Congress.
__________
Military Order of the Purple Heart,
Springfield, VA, June 23, 2000.
The Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
Senator Hatch: The Military Order of the Purple Heart, a
Congressionally chartered organization dedicated to protecting and
advancing the rights and interests of our Nation's Combat Wounded
Veterans, supports the request for equitable and fair treatment made by
our former Japanese-held World War II Prisoners of War. Specifically,
these POWs are requesting that the U.S. Government support, by all
appropriate means, their claims for redress from private Japanese
companies that used them as slave labor during the course of their
imprisonment.
The Military Order of the Purple Heart. requests that the Senate
Committee on the Judiciary investigate and explore the historical,
legal, and practical issues involved with the claims for equitable
compensatory action made by these gallant veterans and former POWs. We
would especially ask that the following specific concerns of these
veterans be addressed: <bullet> That certain key language in the San Francisco Peace Treaty
of 8 September 1951 is not operative in light of Article 26,
the Most Favored Nation Clause, of that treaty. <bullet> That the language of Article 14(b) of the Treaty does not
encompass current U.S. POW claims. <bullet> That the Treaty does not operate to waive national versus
national claims. <bullet> That the U.S. Justice Department's Statement of interest of
the United States on the Plaintiffs Motion to Remand in
Heimbuch v. Ishihara & Co., Ltd., Case No. COO-0064 WHA, (N.D.
Cal. Mar. 23, 2000) (J. Alsup) dated 23 May 2000 is inequitable
in light of the U.S. position taken on litigation (Gross v.
Volkswagen and Rosenfeld v. Volkswagen) involving German
Holocaust victims. I thank you in advance for your interest and consideration of this
request.
Yours in patriotism,
Frank G. Wickersham, III,
National Legislative Director, MOPH.
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