Congressional Record: September 10, 2001 (Senate)
Page S9209-S9246
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED
AGENCIES APPROPRIATIONS ACT, 2002
The PRESIDING OFFICER. Under the previous order, the Senate will now
proceed to the consideration of H.R. 2500, which the clerk will report.
The legislative clerk read as follows:
A bill (H.R. 2500) making appropriations for the
Departments of Commerce, Justice, and State, the Judiciary,
and related agencies for the fiscal year ending September 30,
2002, and for other purposes.
[...]
Amendment No. 1538
Mr. SMITH of New Hampshire. Madam President, on behalf of Senators
Harkin, Warner, Inhofe, Cochran, and myself, I send an amendment to the
desk.
The PRESIDING OFFICER. The clerk will report the amendment.
The legislative clerk read as follows:
The Senator from New Hampshire [Mr. Smith], for himself,
Mr. Harkin, Mr. Warner, Mr. Inhofe, and Mr. Cochran, proposes
an amendment numbered 1538.
Mr. SMITH Of New Hampshire. Madam President, I ask unanimous consent
reading of the amendment be dispensed with.
The PRESIDING OFFICER. Without objection, it is so ordered.
The amendment is as follows:
(Purpose: To provide protection to American Servicemen who were used in
World War II as slave labor)
At the appropriate place, add the following:
Sec. . None of the funds made available in this Act may be
used by the Department of Justice or the Department of State
to file a motion in any court opposing a civil action against
any Japanese person or corporation for compensation or
reparations in which the plaintiff alleges that, as an
American prisoner of war during World War II, he or she was
used as slave or forced labor.
Mr. SMITH of New Hampshire. Madam President, there are many things
that happen in war of which, when we look back, many of us on both
sides of the aisle are not always proud. But I want to point out that
sometimes things happen that must be corrected just because it is the
right thing to do. This amendment I am offering is likely to be
mischaracterized. There will be a lot of things said about what my
amendment does not do. I want to make sure everybody understands what
my amendment does. This concerns something that happened during World
War II. I want to refer to it before I go to the actual context of the
amendment.
There is an article written by Peter Maas I want printed in the
Record which is entitled ``They Should Have Their Day In Court.'' I ask
unanimous consent a copy of that article be printed in the Record. It
is a Parade magazine article.
There being no objection, the material was ordered to be printed in
the Record, as follows:
[From Parade Magazine, June 17, 2001]
They Should Have Their Day In Court
(By Peter Mass)
Tears suddenly fill Lester Tenney's eyes. ``I'm sorry,'' he
says. ``It's been a long time, but it's still very hard
sometimes to talk about.'' All I can do is nod dumbly. Words
fail me as I listen to the horror he is describing.
On April 9, 1942, Tenney, a 21-year-old Illinois National
Guardsman, was one of 12,000 American soldiers who
surrendered to the Japanese at the tip of Bataan Peninsula,
which juts into Manila Bay in the Philippines. Ill-equipped,
ill-trained, disease-ridden, they had fought ferociously for
nearly five months against overwhelming odds, with no
possibility of help, until they ran out of food, medical
supplies and ammunition.
As prisoners of war, Tenney among them, they were taken to
a prison camp by the Japanese army on what became infamous as
the nine-day, 55-mile-long Bataan Death March, during which
1000 of them perished. The atrocities they suffered have to
some extent been revealed. But what happened afterward--when
they were forced into inhuman slave labor for some of Japan's
biggest corporations--remains largely unknown. These
corporations, many of which have become global giants,
include such familiar names as Mitsubishi, Mitsui, Kawasaki
and Nippon Steel.
Through interviews with former POWs and examinations of
government records and court documents, I learned that in
1999 Tenney had filed a lawsuit for reparations in a
California state court. His suit was followed by a number of
others by veterans who had suffered a similar fate. The
Japanese corporations, instead of confronting their dark
past, went into deep denial. Represented by American law
firms, they maintained that, by treaty, they didn't owe
anybody anything--not even an apology.
Surprisingly, the U.S. government stepped in on behalf of
the Japanese and not only had these lawsuits moved to federal
jurisdiction but also succeeded in getting them dismissed by
Vaughn R. Walker, a federal judge in the Northern District of
California. In his ruling, Judge Walker declared in essence
that the fact that we had won the war was enough of a payoff.
His exact words were ``The immeasurable bounty of life for
themselves [the POWs] and their posterity in a free society
services the debt.'' In applauding the judge's decision, an
attorney for Nippon Steel was quoted as saying, ``It's
definitely a correct ruling.'' She did not dwell on what
these men had gone through.
What befell Lester Tenney as a POW was by no means unique.
He got an inkling of what was to come on that April day in
1942 when he surrendered and one of his captors smashed in
his nose with the butt end of a rifle. Forced to stumble
along a road of crushed rock and loose sand, the men--
wracked with malaria, jaundice and dysentery--were given
no water. Occasionally, they would pass a well. Anyone who
paused to scoop up a handful of water was more likely than
not bayoneted or shot to death. The same fate awaited most
POWs who could no longer walk. ``If you stopped,'' Tenney
recalls, ``they killed you.''
As Tenney staggered forward, he saw a Japanese officer
astride a horse, wielding a samurai sword and chortling as he
tried, often successfully, to decapitate POWs. During a rare
respite, one prisoner was so disoriented that he could not
get up. A rifle butt knocked him senseless. Two of his fellow
POWs, were ordered to dig a shallow trench, put him in it and
bury him while he was still alive. They refused. One of them
immediately had his head blown off with a pistol shot. Two
more POWs were then ordered to dig two trenches--one for the
dead POW, the other for the original prisoner, who had begun
to moan. Tenney heard him continue to moan as he was being
covered with dirt.
Tenney was one of 500 POWs packed into a 50-by-50-foot hold
of a Japan-bound freighter. The overhead hatches were kept
closed except when buckets of rice and water were lowered
twice daily. Each morning, four POWs were allowed topside to
hoist up buckets of bodily wastes and the corpses of any-one
who had died during the night, which were tossed overboard.
In Japan, the prisoners were sent to a coal mine about 35
miles from a city they had never heard of, called Nagasaki.
The mine was owned by the Mitsui conglomerate, which is today
one of the world's biggest corporations. You see the truck
containers it builds on every highway in America. The mine
was so dangerous that Japanese miners refused to work in it.
The Geneva Convention of 1929 specified that the POWs of
any nation ``shall at all times be humanely treated and
protected'' and explicitly forbade forced labor. Japan,
however, never ratified the treaty. That was how it justified
putting POWs to work during World War II, freeing up able-
bodied Japanese men for military service.
Lester Tenney and his fellow POW slave laborers worked 12-
hour shifts. Their diet, primarily rice, amounted to less
than 600 calories a day. This was subsequently reduced
[[Page S9220]]
to about 400 calories. When he was taken prisoner, Tenney
weighed 185 pounds. When he was liberated in 1945, he weighed
97 pounds.
Vicious beatings by Mitsui overseers at the mine were
constant. Tenney's worst moment came when two overseers
decided he wasn't working fast enough and went at him with a
pickax and a shovel. His nose was broken again. So was his
left shoulder. The business end of the ax pierced his side,
just missing his hip bone but causing enough internal damage
to leave him with a permanent limp.
Frank Bigelow was a Navy seaman on the island fortress of
Corregodor in Manila Bay. It was lost about a month after
Bataan fell, so Bigelow escaped the Death March. But he ended
up in the same Mitsui coal mine as Tenney. He was in the
deepest hard-rock part of the mine when a boulder toppled
onto his leg, snapping both the tibia and fibula bones 6
inches below the knee. A POW Army doctor, Thomas Hewlett, was
refused plaster of Paris for a cast. Hewlett tried to
construct a makeshift splint, but it didn't work. Bigelow's
leg began to swell and become putrid. Tissue-destroying
gangrene had set in.
With four men holding Bigelow down, Hewlett performed an
amputation without anesthesia, using a razor and a hacksaw
blade. Bigelow recalls: ``I said, `Doc, do you have any
whiskey you could give me?' and he said, `If I had any. I'd
be drinking it myself.' '' To keep the gangrenous toxins from
spreading, Hewlett packed the amputation with one item
readily available in the prison camp--maggots. Bigelow still
can't comprehend how he withstood the excruciating pain.
``You don't know what you can do 'till you do it,'' he says.
Another seaman, George Cobb, was aboard the submarine
Sealion in Manila Bay when it was sunk in an air attack three
days after Pearl Harbor. Cobb was shipped to a copper mine in
northern Japan owned by the Mitsubishi corporate empire. Clad
only in gunnysacklike garments, the POWs had to trudge to the
mine through 10-foot-snowdrifts in bitter winter cold. Of 10
captured Sealion crewmen. Cobb is the sole survivor. ``I try
not to remember anything,'' he says. ``I want it to be a
four-year blank.''
One day in August 1945, Lester Tenney and his fellow POWs
saw a huge, mushroom-shaped cloud billowing from Nagasaki.
None of them, of course, knew it was the atom bomb that would
end the war. They found out on Aug. 15 that Japan has
surrendered when they were given Red Cross food packages for
the first time during their long captivity. They then found a
nearby warehouse crammed with similar packages and medical
supplies that had never been distributed. They also would
learn that the Japanese high command had a master plan to
exterminate all the POW slave laborers, presumably to cover
up their horrific ordeal.
After the POWs returned home, they were given U.S.
government forms to sign that bound them not to speak
publicly about what had been done to them. America was in a
geopolitical battle with the Soviet Union and, later, Red
China for the hearts and minds of the postwar Japanese and
did not want to do anything that might prove offensive to our
recent enemy. The State Department's chief policy adviser to
Gen. Douglas MacArthur, who headed up the occupation of
Japan, rhetorically asked: ``Is it believed that a Communist
Japan is in the best interests of the United States?''
But Tenney, possibly because of his extended
hospitalization, never got one of those forms. In 1946 he
wrote a letter to the State Department citing his experience
and requesting guidance on how to mount claims against those
who had beaten, tortured and enslaved him. The State
Department replied that it was looking into the matter and
advised him not to retain an attorney.
Hearing nothing further, Tenney, a high school dropout,
decided to get on with his life. He eventually earned a Ph.D.
in finance and taught at both San Diego State University and
Arizona State University. Meanwhile, the U.S. and Japan
finalized a peace treaty in 1951.
Two years ago, Tenney read that the U.S. government not
only had successfully worked on behalf of Holocaust victims
in Europe but also was brokering an agreement with Germany to
compensate those forced into slave labor during the Nazi
regime. It was then that he filed his own lawsuit against
Mitsui.
The U.S. State Department and Justice Department intervened
for the Japanses corporate defendants on the basis of the
1951 treaty, a clause of which purports to waive all future
restitution claims. But the treaty contains another clause,
which the U.S. government to date has chosen to ignore,
stating that all bets would be off if other nations got the
Japanese to agree to more favorable terms than our treaty.
Eleven nations--including the then Soviet Union, Vietnam and
the Philippines--got such terms.
There is still hope for the surviving POWs, their widows
and heirs. Last March, two California Congressmen, Republican
Dana Rohrabacher and Democrat Mike Honda, co-sponsored a bill
(H.R. 1198) calling for justice for the POWs.
Notably, Honda is a Japanese-American who, as an infant,
was interned by the U.S. with his mother and father during
World War II. The U.S. has since paid each surviving internee
$20,000 in restitution and, perhaps more important,
acknowledged that the internment was wrong. ``I believe,''
Honda told me, ``that these POWs not only fought for their
country but survived, and now they are trying to survive our
judicial system. They should have their day in court.''
Mr. SMITH of New Hampshire. Madam President, I think most of us are
familiar with or have heard discussions about the Bataan Death March.
That was a terrible experience for a lot of American GIs. But I think
what happened after the Bataan Death March, to some of those same
people, and others, is particularly outrageous.
I want to refer to a couple of paragraphs from this article because
it certainly sums up why they should have their day in court and what
exactly we are talking about with regard to these American GIs and
POWs. Let me read a couple of paragraphs.
On April 9, 1942, a gentleman by the name of Lester Tenney, one of
12,000 POWs, American soldiers, surrendered to the Japanese at the tip
of Bataan Peninsula. They were taken to a prison camp by the Japanese
Army on what became infamous as the 9-day, 55-mile-long Bataan Death
March during which 1,000 of them perished. I will not go into all of
the details, but a few details will show why a day in court is
justified and is important. The atrocities they suffered--some have
been revealed; some have not--and what happened afterward, where they
were forced into slave labor camps for some of Japan's biggest
corporations, remains largely unknown. Frankly, until I got involved in
this a few months ago, I didn't know some of this had happened.
Many of these corporations have become global giants today, including
some names that would certainly get one's attention: Mitsubishi,
Matsui, Kawasaki, and Nippon, to name just a few.
Through interviews with former POWs, we have come to learn a lot. But
to my amazement, the United States Government stepped in on behalf of
the Japanese and not only had lawsuits thrown out to get reparations
for what happened--they moved to Federal jurisdiction--but also
succeeded in getting them dismissed. I found that particularly
outrageous. This is all pointed out by Mr. Maas in his article.
I want to quote one paragraph as to what happened during that march
and then go into a little bit about what happened after the Bataan
Death March:
What befell Lester Tenney as a POW was by no means unique.
He got an inkling of what was to come on that April day in
1942 when he surrendered and one of his captors smashed his
nose with the butt end of a rifle. Forced to stumble along a
road of crushed rock and loose sand, the men--wracked with
malaria, jaundice and dysentery--were given no water.
Occasionally, they would pass a well. Anyone who paused to
scoop up a handful of water was more likely than not
bayoneted or shot to death. The same fate awaited most POWs
who could no longer walk. ``If you stopped,'' Tenney recalls,
``they killed you.''
As Tenney staggered forward, he saw a Japanese officer
astride a horse, wielding a samurai sword and chortling as he
tried, often successfully, to decapitate POWs. During a rare
respite, one prisoner was so disoriented that he could not
get up. A rifle butt knocked him senseless. Two of his fellow
POWs were ordered to dig a shallow trench, put him in it and
bury him while he was still alive. They refused. One of them
immediately had his head blown off with a pistol shot. Two
more POWs were then ordered to dig two trenches--one for the
dead POW, the other for the original prisoner, who had begun
to moan. Tenney heard him continue to moan as he was being
covered with dirt.
Tenney was one of 500 POWs packed into a 50-by-50-foot hold
of a Japan-bound freighter. The overhead hatches were kept
closed except when buckets of rice and water were lowered
twice daily. Each morning, four POWs were allowed topside to
hoist up buckets of bodily wastes and the corpses of anyone
who had died during the night. . . .
This is what happened to them after the Bataan Death March. When they
survived that, they were put on these freighters and taken into these
coal mines and basically made slaves.
Vicious beatings by Mitsui overseers at the mine were constant.
Tenney's worst moment came when two overseers decided he wasn't working
fast enough and went at him with a pickax and a shovel. His nose was
broken again. So was his left shoulder. The business end of the ax
pierced his side, just missing his hip bone but causing enough internal
damage to leave him with a permanent limp.
Most of us are familiar enough with stories that came out of the
Bataan Death March to know what happened there. But to think of
surviving that 55-mile trek over a 9-day period, basically being
bayonetted if you helped a
[[Page S9221]]
friend who fell down or beaten or whatever, to survive all of that and
then be placed into camps, slave labor camps on behalf of these
corporations by these corporations.
I want to read the amendment I am offering because it is important to
understand what the content is. All it says is:
None of the funds made available in this act may be used by
the Department of Justice or the Department of State to file
a motion in any court opposing a civil action against any
Japanese person or corporation for compensation or
reparations in which the plaintiff alleges that, as an
American prisoner of war during World War II, he or she was
used as a slave or forced labor.
All this says is that no funds will be used to block the right of
these folks to go to court. It doesn't provide any money to anybody. It
doesn't assume that anybody is going to win this case. It doesn't do
any of that. We are probably going to hear that. That is not the case.
All it says is that the State Department stays out of it, the Justice
Department stays out of it, and these folks are allowed to have their
day in court.
Let me explain why I introduced this amendment. As I said, to go
through what they went through in the Bataan Death March, and then to
be put into slave camps by Japanese companies was atrocious. I want to
make clear what I mean by Japanese corporations. War is a terrible
reality. I have said that. What happens during war is tragic, and
sometimes it just happens. There is not a heck of a lot you can do
about it. What happened in World War II at the hands of these private
Japanese companies is especially tragic because there has never been
anything done about it. We are not talking about the Japanese
Government torturing American prisoners. I want to make that clear. The
war is over. A treaty was signed. Whatever happened, happened. That is
behind us.
What we are talking about is private Japanese corporations, many of
which exist today, corporations that Americans know and trust, who used
Americans as slaves, who should have been offered protection under the
Geneva Convention--not the Japanese Government, please understand, the
Japanese corporations.
Out of the 36,000 U.S. soldiers who were captured by the Japanese,
5,300 roughly are alive today. They are not getting any younger.
Several of those veterans live in New Hampshire. I was astounded to
find out that eight or nine of them do actually live in New Hampshire.
I am sure they can be found in every State in the Union. I met with
some of those veterans during the August recess. It was a very
emotional meeting, but the interesting thing about it, there was no
anger presented to me about what happened in the war. The anger and
frustration that was expressed to me was what happened with these
private companies that went beyond what happened in the war.
Arthur Reynolds from Kingston, NH, spent 3\1/2\ years as a POW, 2
years of which he spent shoveling coal under unspeakable conditions for
a private Japanese company. He lost 100 pounds in captivity and weighed
less than 100 pounds when he was liberated. He survived on barely 500
calories a day, suffered countless beatings. Now he is being told by
his Government--not the Japanese Government, the United States
Government--that they are on the side of the Japanese corporation that
enslaved him.
I say to my colleagues, that is just flat out wrong. Whatever happens
in the courtroom happens in the courtroom. That is why we have lawyers
on both sides. But what we are talking about here is the right to sue.
That is what we are talking about--not the right to have a victory
when you sue, just the right to sue. However you feel, I have some very
strong feelings that they should win this case and many Americans--
most, I hope--also do. We are not asking for a victory, as much as I
would like to see it. We are asking for the right to sue.
Arthur is 85 years old. How much longer is Arthur going to live?
Manford Dusett from Seabrook, NH, spent 3\1/2\ years as a POW. Like
Arthur Reynolds, he is a survivor of the Bataan Death March and the so
called hell ships that transported the prisoners to Japan. He was
forced to work in a coal mine for 10 to 12 hours a day, with almost no
food and under the worst imaginable conditions. He suffered a broken
leg in the mine. Frankly, he is lucky to be alive today. He was able to
get just enough medical treatment to survive. Manford, as his
colleague, weighed less than 100 pounds when he was released. There
were others from New Hampshire. This gentleman in the picture here is
Roland Stickney from Lancaster. I met with him. There are others from
New Hampshire: Roland Gagnon from Nashua, Roland Stickney from
Lancaster, Arthur Locke from Hookset, Wesley Wells from Hillsburo, Bill
Onufrey from Freedom, Ernest Ouellette of Boscawen, and I am sure I
missed a few. I tried to find everybody.
My colleagues who might be familiar with the plight of these
veterans, I have submitted for the Record the Parade magazine article.
It is important you read that to understand not only what happened to
them in the Bataan Death March but, after that, how they survived when
they were put on those ships. Imagine being taken in those ships to the
coal mines and other places where they were reported to work as slaves.
These veterans are seeking compensation through our legal system--
that is all they are doing--from the Japanese corporations that used
them as slave laborers. That is all they are doing. Yet, believe it or
not, our Government, the U.S. Government, is trying to stop that. They
are opposing veterans' efforts to seek proper redress through our
judicial system. Is that constitutional?
Should our Government be stopping a private citizen from seeking his
or her day in court for a grievance? I don't think so. I think it is
wrong. I am, frankly, ashamed it is happening, which is why I am on the
floor of the Senate. I am not here to redebate the war, refight the
war, or bring up and point out the atrocities of the war. That is not
why I am here. I don't think the veterans would want me to do that. The
State Department facilitated, ironically, a recent agreement between
German companies and their victims who were used as slave laborers
during World War II. I commend them for that. That was the right thing
to do.
Last year this body passed S. Con. Res. 158, introduced by my
colleague and good friend, Senator Hatch, and urged the Secretary of
State to facilitate discussions between these veterans and the guilty
corporations. But the State Department chose to ignore this
recommendation, unlike what they did in the German case. When it comes
to the Japanese case, they chose to ignore this. In the case of the
Japanese companies, the State and Justice Departments argued--listen
carefully--that the private claims of the veterans were waived by the
1951 peace treaty with Japan. I will repeat that because it is very
important to the whole discussion of this case. The State and Justice
Departments argued that the private claims of veterans were waived by
the 1951 peace treaty with Japan. I am going to say, with the greatest
respect, that that is flatout wrong. Their rights were not waived. Why
do they maintain this position then?
Let me read from the 1951 peace treaty, article 14(b). Let me read
from article 14(b) in the 1951 peace treaty:
[E]xcept as otherwise provided in the present Treaty, the
Allied Powers waive all reparation 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 the
Allied Powers for direct military costs of occupation.
If I had only read article 14(b), which I just read, I might have
agreed--and probably would have--that the claims of these veterans were
waived by the treaty because that is what it sounds like. But the issue
is a lot deeper than that. So if someone is going to read article 14(b)
on the Senate floor and say, therefore, these claims are waived, then
we have to go beyond that. Let me go beyond that:
Article 14(b) does not waive private claims against private
Japanese companies.
Don't be mistaken. The State Department knew this in 1951 when the
treaty was signed. In fact, John Foster Dulles, the chief negotiator
for the treaty--prior to his being Secretary of State--orchestrated a
confidential exchange of diplomatic notes between the Japanese and the
Dutch to address this very issue in 14(b). In short, the Dutch didn't
want any part of 14(b). They refused to waive the private claims of
[[Page S9222]]
their nationals because, as the United States--remember the fifth
amendment?--the Dutch were constitutionally barred from doing so
without due process of law. So they had a constitutional problem like
we have. They can't waive the private claims. Fortunately, the
diplomatic notes--and this is what burns me up, frankly, if I may say
it as nicely as I can. We find so much information classified in
Government. It is the old cover-your-you-know-what routine. That is why
we keep it classified. There are legitimate reasons to classify
materials, but 50 years later we finally get the truth declassified.
All these guys, for all these years, were being denied their day in
court when the truth was buried in the classified files. It is just
absolutely unbelievable. I am not saying I am the first to find it. I
know lawyers have found it for the others, for those doing this, those
who are suing. But let me go right at it.
What did those diplomatic notes say? We have it right here. This is
September 7, 1951, just declassified in 2000, 50 years later, after all
these guys have fought all these years trying to get reparations, and
most of them have died. Only 5,300 remain out of 12,000. Here we are. I
will read this letter:
Dear Mr. Prime Minister,
I beg to draw the attention of Your Excellency to the
paragraph in the address to President and Delegates of the
Peace Conference I made yesterday, reading as follows:
``Some question has arisen as to the interpretation of the
reference in article 14(b) to ``claims of Allied Powers and
their nationals''--
It sounded as if we waived everybody's rights--
which the Allied Powers agree to waive.
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
national 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 confiscating or
expropriating private property of their nationals.
Signed by the Prime Minister of Japan.
This one is signed by Dirk Stikker, Minister of Foreign Affairs of
the Netherlands. A copy was sent to the Japanese Government. It says,
in part:
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 . . .
.
And so forth.
To get to the fourth chart, this is from the Prime Minister of Japan
to the Dutch, and I will read this portion outlined:
With regard to the question mentioned in Your Excellency's
note, I have the honor to state as follows:
In view of the constitutional legal limitations referred to
by the Government of the Netherlands, the Government of Japan
does not consider that the Government of the Netherlands by
signing the Treaty has itself expropriated the private claims
of its nationals so that, as a consequence thereof, after the
Treaty comes into force these claims would be nonexistence.
The Japanese Government is saying that:
However, the Japanese Government points out that, under the
Treaty, Allied nationals will not be able to obtain
satisfaction regarding such claims, although, as the
Netherlands Government suggests, there are certain types of
private claims by Allied nationals which the Japanese
Government might wish to voluntarily deal with.
These two documents remained classified for 50 years while these guys
tried for 50 years to get their day in court. Our own Government would
not give these documents to our own soldiers. What an outrage that is.
That is an absolute outrage.
The 1951 peace treaty in no way obligates the Government of Japan to
pay any private claims. I admit that. It does not obligate them to do
anything. We are not talking about the Government of Japan.
At the same time, the treaty does not waive private claims against
private Japanese companies, as the State and Justice Departments would
like you to believe, and it is right there in declassified documents
finally after 50 years.
How is an exchange of diplomatic notes between the Government of
Japan and the Government of the Netherlands relevant to the United
States and its citizens? Good question. The answer lies in article 26
of the peace treaty, and this is what article 26 says:
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 of the
present treaty.
In other words, if they make a deal with the Netherlands, it does not
involve anybody else who has the same constitutional problems. This
occurred in an exchange of diplomatic notes. Japan made it clear the
treaty did not waive the private claims of Dutch citizens, and article
26 automatically extends this to American citizens. Pure and simple.
End of story.
This would have been resolved 20 or 30 years ago if somebody had just
declassified these documents. If somebody can please tell me why these
documents were classified for 50 years because of national security, I
will be happy to say we should classify them again.
The Departments of State and Justice are on the side of Japanese
corporations. That is what this amendment is about: Are you on the side
of our Justice Department and State Department that are on the side of
the Japanese corporations that did this to our Americans, against the
intent of that treaty, or are you on the side of the American GIs and
POWs who for 50 years have been denied their day in court?
That is it. There is nothing complicated about my colleagues' vote on
this one. That is it: You are either for the American GIs who served
and were prisoners and were slaves or you are on the side of the
Japanese corporations that put them in slave camps and your own Justice
Department and State Department which kept the documents classified for
50 years so they could not get their day in court. Whose side are you
on? That is it. There is nothing complicated about it.
What has happened is wrong. It goes against the historical record,
and my amendment simply prevents the unnecessary interference of the
Departments of State and Justice in this case. I repeat, because it is
very important to understand, I do not predetermine the outcome with my
amendment.
Before I yield the floor, I want to repeat what the amendment says so
that everybody understands it:
None of the funds made available in this act--
The underlying legislation, the Departments of Commerce, Justice,
State--
None of the funds made available in this Act may be used by
the Department of Justice or the Department of State to file
a motion in any court opposing a civil action . . . .
In other words, we do not want Justice and State to come in now and
oppose the action of this court, of these men, mostly men. Why? Because
for 50 years these documents were classified and they did not even have
the opportunity to do it. We did them a disservice. These are men who
fought and suffered horribly in a terrible war.
I urge my colleagues to please read my amendment when you come down
to the Chamber to vote to give these men--brave men, heroes--the
opportunity to go to court under the terms of the 1951 treaty, and give
them an opportunity to be heard. That is all we are doing.
I also want to point out in all that--I did not say it at the time,
but to give a little bit more credence to the argument, guess who
drafted the memos we are talking about between the Dutch and the
Japanese. Who was involved in that draft? None other than John Foster
Dulles. That is the great tragedy of this. John Foster Dulles himself
participated in the draft of those documents. We have all the evidence
to that as well.
I hope my colleagues in the Senate will say to Justice and State:
Step aside; it is the right thing to do. You kept this secret all these
years by classifying documents and did not allow our guys a day in
court. Step aside; do the decent thing and let these men go to court,
as it is determined under the treaty we now know, and allow them to
sue. If they lose, they lose. If they win, they win, but just let them
go to court.
Madam President, I yield the floor.
The PRESIDING OFFICER. The Senator from Iowa.
[[Page S9223]]
Mr. HARKIN. Madam President, I thank my colleague and friend, the
Senator from New Hampshire, Mr. Smith, for proposing this important
legislation and for offering this amendment today, which I am proud to
cosponsor.
Before I get into the need for the amendment and perhaps repeat some
of the facts that the Senator from New Hampshire brought up, let me
take a minute to summarize what happened in the Philippines and Japan
between 1942 and 1945.
On March 11, 1942, Gen. Douglas MacArthur reluctantly left behind
thousands of American troops in the Philippines. Arriving in Melbourne,
Australia, he pledged, of course, those famous words: ``I shall
return.''
General MacArthur did return. He liberated the Philippines and rolled
back the forces of imperial Japan. Sadly, MacArthur was too late for
the hundreds who had died in the infamous Bataan Death March. In that
3-day forced march, American troops were denied food and water, beaten
and bayoneted if they fell to the ground. As many as 700 Americans lost
their lives in those 3 days.
It also was too late for the thousands who lost their lives on the
so-called hell ships that transported surviving POWs to Japan and
Japanese-occupied territories. Packed into cargo holds, American POWs
struggled for air, as temperatures reached 125 degrees. Almost 4,000
American servicemen would lose their lives just on these journeys in
these cargo ships.
Those who survived Bataan and the hell ships would find little rest
as Japanese POWs. For more than 3 years, they would serve as slave
labor for private Japanese companies, the same companies whose names we
revere today and whose products we buy daily, weekly, and monthly in
the United States: Matsui, Mitsubishi, Nippon, and others.
Throughout the war, Americans worked in the mines of these companies,
their factories, their shipyards, their steel mills. They labored every
day for 10 hours or more a day in dangerous working conditions. Some of
those who went into the mines were sent into the mines because it was
too dangerous for Japanese to work in them. So they sent the American
POWs into the coal mines to dig the coal. They were beaten on a regular
basis.
Frank Exline of Pleasant Hill, IA, was one of those POWs. A Navy
seaman who was captured April 9, 1942, Frank spent 39 months working
for Japanese companies in Osaka, Japan. He began on the docks unloading
rock salt and keg iron. Later, he found himself toiling in the rice
fields. He was fed two rice bowls a day and given very little water.
During his time with these Japanese companies, Frank was tortured and
beaten, once for stealing a potato. Upon being caught, the potato was
shoved in his mouth as he was forced to stand at rigid attention
directly in the sun for 45 minutes. If he moved or even blinked, he was
hit in the face.
Then there is Frank Cardamon of Des Moines, a marine who was
stationed in China. His ship was sent back to the U.S. to get more
supplies. When it stopped in the Philippines, of course, the ship was
attacked and captured. Frank was captured at Corregidor and sent to
Japan to work in an auto parts factory and then in the lead mines.
He was never paid for his work, fed two cups of rice a day, and went
from 160 pounds to 68 pounds in his 3 years of capture. These men tell
me they survived on sheer will, not on the food.
Last month in Iowa, as Senator Smith did in New Hampshire, I met with
three other POWs and their families on this issue. I met with William
McFall of Des Moines, who received a Purple Heart and numerous other
medals. He worked in the coal mines and told me about how dangerous it
was working in the coal mines.
I met with the sisters of Jon Hood, a Navy seaman forced to work on
the shipping docks. I met with Gene Henderson of Des Moines. He
actually was not in the military. He was a civilian employee at the
Pacific Naval Air Base on Wake Island. Gene Henderson was captured and
sent to China to work on Japanese artillery ranges before he was sent
to work in the iron ore pits in Japan.
Although she could not attend the meeting I held, Margaret Baker of
Oelwin, IA, wrote me a letter in June about her late husband Charles
Baker. Charles Baker, who was an Army private, survived the Bataan
Death March before he was sent to work in the mines in Japan for 3
years. He died at age 54 in 1973. In her letter she wrote:
He suffered many injuries and hunger on the Death March
during his imprisonment. We feel that his early death was
caused by the suffering that he endured while working long
hours in the mines, without food, rest and clothing.
I speak for this amendment and support it on behalf of these veterans
and their families. These men and 700 of their fellow prisoners of war
and their families are now seeking long delayed justice. They have gone
to court to ask for compensation from the Japanese companies that used
them as slave laborers during the war.
They deserve their day in court. Yet as the Senator from New
Hampshire has pointed out, our own State Department has come down on
the side of the Japanese companies, not our POWs. The State Department
has taken the view that the peace treaty signed in 1951 prohibits
reparations from private Japanese companies for survivors such as Frank
Cardamon or Gene Henderson. In fact, State Department officials have
submitted statements to the Court in support of the view of the
Japanese companies. I do not think that is right. I do not think it is
fair. That is why I am a cosponsor of Senator Smith's amendment that
would stop the State Department and the Department of Justice from
using taxpayer dollars to defend the interests of these Japanese
companies.
I might add, the House passed this amendment in July by an
overwhelming 393-to-33 vote, an amendment stating the State Department
should not be allowed to use our tax dollars to fight against our
American POWs in court. Now again, as Senator Smith said, I am sure
while we both believe the Japanese companies ought to pay reparations
and ought to pay these POWs for the slave labor they provided during
the war, that is not what our amendment says. Our amendment simply says
let them go to court; let them make their case; let the Japanese
companies come in and defend themselves, if they will.
That is all we are asking. We are not preconditioning the outcome. We
are not setting up any kind of a standard by which they will be held in
one view over the Japanese companies. We are simply saying let them
have their day in court. We are saying our State Department should not
be intervening in State or Federal courts against these POWs. Let the
POWs have their own arguments and their day in court, and let us keep
our State Department out of it.
These men courageously served our country. They endured unspeakable,
wretched conditions as slave laborers for these Japanese companies.
MacArthur was forced to leave them behind in 1942. In 2001, let us not
leave them behind one more time. Let us give them their day in court.
My colleague has given all of the arguments. He has outlined what the
treaty said in article 14(b). He laid out very cogently and clearly the
side agreements that had been done by John Foster Dulles, at that time
the chief negotiator for the allied nations, whose letters and side
agreements were not brought to light until April of last year. So for
all of these years these POWs and their lawyers really perhaps did not
have a leg to stand on because of this treaty, but then after April of
2000 we found out the Japanese had made an agreement with the
Government of the Netherlands to allow the private citizens of the
Netherlands to pursue their private claims.
Then article 26 of the 1951 peace treaty sort of trumps article
14(b). Now article 14(b), as Senator Smith pointed out, basically said:
The allied powers waive all reparation 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.
On its face, that ends it. That ends it right there. For all of these
years, that is what sort of the basis in court was. Article 26 did
state, 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
[[Page S9224]]
same advantages shall be extended to the parties to the present treaty.
We did not know until April 2000 that the Japanese Government had
indeed made a war claims settlement with another state granting greater
advantages to the nationals of that state, and that was, of course, the
Dutch citizens because the diplomatic note to the Japanese Prime
Minister from the Dutch Foreign Minister--again which was read by the
Senator from New Hampshire, and I just repeat it for emphasis sake--it
said that: It is my Government's view--that is, the Government's view
of the Government of the Netherlands--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 nonexistent.
In other words, the Dutch Minister said: It is my Government's view
that 14(b) does not prohibit private claims of the nationals of the
Netherlands.
The Japanese Prime Minister responded:
In view of the constitutional legal limitations referred to
by the government of the Netherlands, the government of Japan
does not consider that the government of the Netherlands by
signing the treaty has itself expropriated the private claims
of its nationals so that, as a consequence thereof, after the
treaty comes into force these claims would be nonexistent.
Taken out of international State Department legalese, what that
basically says is the Government of Japan has said to the Government of
Netherlands that just signing this treaty does not mean you take away
from your citizens their right of private claims against the Government
of Japan or the nationals of the nation of Japan.
This is the document we did not know about until April of 2000. So we
know that article 26 of the treaty of 1951 now comes into full force
and play, and because Japan made a war claims settlement with the
Netherlands that gives them greater advantages than those provided in
the present treaty, those same advantages should be extended to all of
the parties of the present treaty. Therefore, we believe very strongly
that our private citizens, our POWs who worked as slave laborers, have
every right to pursue their claims in whatever courts they can find to
take up those claims.
Unfortunately, the Departments of State and Justice are not on the
side of our POWs. They convinced a Federal judge to dismiss these
lawsuits. This is fundamentally unfair. This amendment would correct
this injustice. I do not know whether or not in a court of law these
POWs will be able to prevail. I don't know all of the legal
implications. I do know they should have their day in court to argue
their claims against these private companies. It is not as if
Mitsubishi, Matsui, and Nippon are bankrupt. These are multinational
corporations. They are big.
As the Senator from New Hampshire said, our POWs are getting older
and not that many remain. It seems to me this is the fair and right
thing to do, to make final these reparations, and without interference
from the executive branch of the Government.
I am constrained to say I hope no one interprets this amendment or
our support for this amendment as somehow trying to bring up again
World War II or bringing up in a way that would be detrimental to the
present Government of Japan the actions taken during World War II. That
is not our intention at all. We all recognize the Government of Japan
is one of the great, strong democracies of our present world. They have
a system of free government and free enterprise in Japan that is the
envy of many places in the world.
For a year and a half I was privileged to serve my country as a Navy
pilot stationed at Atsugi airbase in Japan in the mid to late 1960's. I
spent a year and a half living on the Japanese economy. I worked every
day with men and women who worked for the Nippon Aircraft Corporation.
I was one of their test pilots. I worked with them every day. During my
year and a half there, I can honestly say I became an admirer of the
Japanese people and an admirer of many of the things they have done
after World War II. I don't for one minute admire anything they did
during World War II, what the warlords did, what they did to lead that
nation into World War II. The atrocities they committed during World
War II are a definite blot on their history.
Today, the Japanese Government stands as a beacon of democracy and
representative government. The Japanese people, I think, have expunged
themselves of this terrible legacy of World War II. I am saying this
because I don't want anyone to interpret that we are using this
amendment or offering this amendment as if making a detrimental
statement about the present Government of Japan. That is not so.
We are saying we believe in the rule of law, just as the Japanese
Government, since World War II, believes in the rule of law. This rule
of law we adhere to, that we believe in so strongly, says that people
who are wronged, people who believe they have a claim against another
person or a government, ought to have their day in court. That is all
we are saying. Let them make their case. If the Japanese companies want
to defend themselves and say they have already paid reparations, they
have already paid in full for all of this, let them come to court and
show us. That is all we are saying.
The administration argues this amendment violates our Constitution
regarding the separation of powers. This type of restriction we are now
placing on appropriations by the participation of the Attorney General
in private litigation has been enacted in Congress before and has been
accepted and complied with by the executive branch. There was an
example offered by Warren Rudman, another Senator from New Hampshire,
passed in 1983 that barred the Justice Department from intervening in
certain types of private antitrust lawsuits. We have done that many,
many times in the past. I don't think the argument that somehow this
violates our separation of powers holds any water.
I thank my colleague from New Hampshire for his leadership on this
issue, for sticking up for our POWs and for offering this amendment. I
hope it is passed overwhelmingly so we can coordinate with the House,
which passed it overwhelmingly, and permit these lawsuits to move ahead
and give POWs their long overdue day in court. They may have been left
behind in 1942 by General MacArthur; let's not leave them behind one
more time.
I yield the floor.
The PRESIDING OFFICER (Mr. Bayh). The Senator from Hawaii.
Mr. INOUYE. Mr. President, two of my most distinguished colleagues,
the Senator from New Hampshire, Mr. Smith, and the Senator from Iowa,
Mr. Harkin, have offered this amendment to the measure before the
Senate. I will share my thoughts on this amendment and the reasons why
I oppose it.
While listening to my colleagues' speak, I was reminded that a few
days ago I was called upon by one of my dear friends in the Senate,
advising me that I should not be involved in this matter; that it would
be, without question, an amendment of high emotions, and that it would
revive memories of a distant past, black memories.
Like some of my colleagues, I am old enough to recall those dark days
in our history. Like some Members, I was involved in that ancient war,
World War II. Sometimes I have my personal nightmares.
There is no question that none of us here would ever condone any of
the actions taken by the Japanese in the Bataan death march. Being of
Japanese ancestry becomes a rather personal matter. Who knows, one of
my cousins could have been the one with the bayonet and rifle. I have
no way of knowing. But those men who mistreated our men were of the
same ancestry.
Therefore, I stand before the Senate not with any great pleasure but
because I feel it must be done. Two days ago, officials of our Nation
and the high officials of Japan gathered in the city of San Francisco
to commemorate the 50th anniversary of the signing of the Treaty of San
Francisco which ended the hostilities of Japan in World War II. This
treaty was a farsighted document designed very deliberately to
eliminate the possibility of further Japanese aggression by paving the
way for an enduring peace between our two countries.
Central to this goal was the recognition by the United States that it
had a responsibility to rebuild war-torn Japan so that it could regain
its economic self-sufficiency. The economic abandonment of Germany
after World War I by the victorious nations of Europe and its horrific
consequences were
[[Page S9225]]
enough to convince the President and the Congress of the United States
to avoid inviting a repetition in the Pacific. Accordingly, the
provisions of the San Francisco treaty were specifically aimed at
protecting the recovering economy of Japan, and among the most
important of these was article 14(b) of that treaty. I think we should
read this article 14(b) once again:
[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[.]
It was clear that this language was intended to waive, unless
otherwise provided in the treaty, all claims of the United States and
allied nationals against Japan and Japanese nationals arising from
World War II.
No one can deny the pain and the atrocities suffered by American
citizens who were prisoners of war in Japan, and by agreeing to article
14(b), our Nation did not intend to turn its back on its own citizens.
I have had the privilege and the great honor of serving in the
Congress now for nearly 42 years and during that time I believe my
record is very clear when it comes to the support of the men and women
in uniform. At this moment, I find myself in some disagreement with the
great leaders of this Senate as to how the Defense Appropriations
Subcommittee's bill should be handled. I have always maintained that we
cannot do enough for men and women in uniform. Less than one-half of 1
percent of this Nation has stepped forward to indicate to the rest of
us that they are willing to stand in harm's way and, if necessary, at
the risk of their lives. How can anyone say this is not something
worthy of our support? So my support for the men in uniform, I hope,
will not be questioned by any one of my colleagues.
When we signed the treaty and when we passed the War Claims Act of
1948 soon thereafter, our Nation assumed the responsibility of making
reparations to our people using the proceeds of Japanese assets ceded
by Japan under the treaty. We thought it was important enough at that
moment in our history to take over that responsibility.
I do not stand before you to present any rationale or apology for
Japanese war crimes because history has shown that during the war, as
in many great wars, officers and men of competing armies oftentimes
resort to treatment of prisoners so cruel and inhumane as to seem
barbaric. There are no good people in a war.
Those of us on the committee, the Defense Appropriations
Subcommittee, have one thing in mind--to prevent wars--because many of
us have seen what war can do. There is no question that American
prisoners in the hands of the Japanese suffered much. I think the
evidence is rather clear, as pointed out by the Senator from New
Hampshire and the Senator from Iowa. However, when the officials of our
nations met with representatives of the defeated nation, Japan, these
atrocities were recognized and taken into account in the consideration
and ratification of the treaty of San Francisco.
Moreover, the Government of Japan has acknowledged the damage and
suffering it caused during World War II. Last Saturday, September 8,
the Minister for Foreign Affairs, Mr. Tanaka, reaffirmed Japan's
feelings of deep remorse and heartfelt apologies that had been
previously expressed in 1995 by then-Prime Minister Murayama.
Unfortunately, the amendment presented by my two distinguished
colleagues attacks a central provision of the treaty by making it
difficult, if not impossible, for the Departments of Justice and State
to intervene in reparations suits and assert article 14(b) of the
treaty.
I think we should remind ourselves that article II of the
Constitution of the United States makes it very clear that it is the
President of the United States who has the responsibility of
negotiating treaties and making certain that the provisions of the
treaties are carried out. It is not the right of any State or any
individual, nor is it the right of this Congress.
Thus, if this amendment is approved by both Houses of Congress and
signed into law by the President, it would announce our intention to
abrogate a central term of the treaty of San Francisco. This action
will abrogate that treaty. Some have suggested it might be a slap in
the face of the Japanese. Yes, it might be, but, more importantly, it
will abrogate a treaty.
We who have stood on this floor time and again condemning other
nations for slight deviation of their treaties are now coming forth
deliberately to say that we are prepared to abrogate this treaty. This
would be contrary to U.S. foreign policy because it would signal to the
world that the United States cares little for its treaty obligations.
It would be also contrary to U.S. national security policy because the
San Francisco treaty is the cornerstone of U.S. security arrangements
in the Asia-Pacific region.
In addition to the foreign and security policy considerations, this
amendment might also encourage other nations to facilitate lawsuits
against the United States, and against U.S. companies and the U.S.
Government and its officials for actions by U.S. military and those who
support such actions.
This is not farfetched. It could expose our Nation and our Nation's
citizens to millions, if not billions, of dollars in claims. The
administration of President Bush, in its policy statement issued
through the Department of State, concurs with this analysis and
strongly opposes the amendment.
Indeed, the administration additionally objected to the amendment
because it would impair the executive branch's ability to carry out its
core constitutional responsibility relating to treaties, article II of
the Constitution. Accordingly, reopening this issue as the amendment
now proposes would have very serious negative consequences for United
States-Japan relations, and, sadly, would sow doubt about America's
word among other allies.
Therefore, I oppose the amendment and I hope all of my colleagues
will carefully consider the points that I have raised.
I thank the Chair.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. Mr. President, I want to respond to my great friend--he
is my great friend--and colleague from Hawaii. There is no one with
whom I have greater respect and admiration in the Senate for all the
years I have been here than the senior Senator from Hawaii, Mr. Inouye.
Certainly, I commend him for his statement and the courage he has shown
to take his position on this matter. No one should in any way
misinterpret the action taken by Senator Inouye in opposing this
amendment. I know he comes at it with conscience and with his own
feeling of what is right.
I may not agree with his position on it, and let no one think that in
any way Senator Inouye now or at any time has let down our country, or
our veterans, or our military establishment. By his own life and by his
own example, Senator Inouye has shown what it means to be a patriot and
to put himself in harm's way and possibly give one's life for his
country. He did that during World War II.
No one could have been more proud than all of us here when President
Clinton finally recognized his efforts, his dedication, and his
sacrifice during war in finally granting Senator Inouye the
Congressional Medal of Honor. It was a recognition that was long
overdue.
I hope that no one misinterprets what the Senator said in his opening
statement about taking his position. I certainly don't, and no one else
should.
As I said, we have a disagreement. And, quite frankly, I am hard
pressed to think of the last time I disagreed with the Senator from
Hawaii because I have high regard for him in matters pertaining to our
military, to our veterans, and the defense of our country. But I just
happen to have a disagreement on this one issue.
Again, I point out that all we are trying to do is give the day in
court for our rule of law. I believe we can do so without in any way
abrogating a treaty or harming our relations with Japan. As I said
earlier, I have the highest esteem for Japan and the people of Japan. I
would want nothing in any way to be misinterpreted that we are in any
way trying to bring up the dark days of World War II again. But I
believe just as strongly that our rule of law commands us not to do
otherwise.
[[Page S9226]]
We must permit them to have their day in court. It is their right.
Again, I thank the Senator from New Hampshire for offering the
amendment.
I particularly want to thank Senator Inouye for his years of
dedication to our country, for his leadership during World War II, and
for his 42 years of leadership in the Senate. I am sorry I have to
disagree with him on this issue.
Thank you, Mr. President.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, I want to associate myself
with every single word the Senator from Iowa just said regarding our
colleague, Senator Inouye. I want to state for the record that Senator
Inouye has earned the right to say anything he wishes on the floor of
the Senate with his distinguished service to our country. I think we
have a difference of opinion on what the treaty said or didn't say.
That is it as far as I am concerned, to make the record clear.
I want to respond to the point on the abrogation of treaties because
I think it is important we understand that, in my view--and I think in
the view of many--it doesn't abrogate the treaty at all. It limits the
State and the Justice departments from interfering. That is all. The
courts will decide the true intent of the treaty. That is what courts
are supposed to do. But they should be able to do so without what I
would consider unnecessary meddling.
Article 26 of the treaty makes it very clear that the Japanese
entered into a more advantageous agreement than those terms apply to
all the signatories of the treaty.
We are not abrogating the treaty. We are fulfilling the treaty.
I think it is very important to understand those points that were
made in the exchange between the Japanese Government and the Dutch
Government and article 26 in the sense that the person who offered
those documents, John Foster Dulles, made it very clear that we don't
want to deny individuals under a constitutional government the right to
have their constitutional rights fulfilled.
I would respond quickly to three or four points that were made by the
opponents and then yield the floor.
We just talked about those who say it undermines the treaty
obligations. It merely prevents the State and the Justice departments
from distorting the true facts. I am not saying the State and Justice
departments in any way directly are responsible for holding back
documents. The truth is our own Government for 50 years never released
these documents. Had these documents been available 50 years ago, I
think this matter would have been resolved.
For all these years our veterans never had the opportunity to have
this information and take it to court.
The judicial branch is perfectly capable and within its rights to
interpret treaties without any assistance from or deference to the
views of the executive branch or frankly, the legislative branch. This
is law. That is how things are settled.
In any event, the amendment does not prevent the executive branch
from executing the treaty. I want to make that very clear. It does not
prevent the executive branch from executing the treaty. It merely
prevents the executive branch from advocating a certain interpretation
in court.
All we are doing with my amendment and that of Senator Harkin and
others who cosponsored it is to say we are not going to provide
taxpayer dollars to allow that argument to be fought. Let it go to
court. That is all. I think it is very important that we understand
that.
Some say the amendment impairs the ability of the courts to interpret
treaties. The courts are perfectly capable of interpreting treaties
without the assistance of the executive branch. They are not bound by
executive interpretation. In fact, the Supreme Court noted in one of
its opinions that the courts interpret treaties for themselves. The
courts remain the final arbiter of a treaty's meaning and have the
right to interpret a treaty.
The courts observed that the views of the executive branch regarding
a treaty are entitled to no deference of any type when they appear to
have been adopted either solely for political reasons or in the context
of any particular litigation. I believe we are dealing with the latter
in this case.
Let me also get to the point of damaging relations with Japan. No one
wants to do that. I want to make it very clear that I believe Japan is
a valuable ally in the Far East and that they are very important to us,
especially as we look at the emergence of China and the threat of the
Chinese. This is not about the Japanese Government. It is not about
replaying the war. It is about interpreting a treaty the way it was
intended and allowing people to have their day in court without losing
their constitutional rights. That is for all of us.
It should not change our relationship with Japan. I do not know of
anybody who wants to do that. We are strong allies. We are close
friends. We are going to continue to be close friends after this. This
should not, in any way, be construed as an unfriendly act. Secretary
Powell, I think, recently called Japan our Pacific anchor. I think he
is right. But it does send a serious message that as long as these
veterans are with us, this is going to be an area of contention.
Frankly, I think it is better for Japanese-American relations to get
it behind us. Let's move on. And the best way to do it is to allow
these men to come to court without the interference of the Justice and
State Departments; let them come to court, have their day in court, and
get a decision. That was the right thing to do when the State
Department did that in relation to the activities in the German case,
and I think it is the right thing to do in this case.
Last year, again, as I said earlier in my statement, this body passed
S. Con. Res. 158, offered by Senator Hatch, which urged the Secretary
of State to facilitate discussions between the veterans and the
Japanese. Unfortunately, though, the State Department chose to ignore
that. All we are trying to do is to move forward and not have it hang
out there any longer.
Again, this is an issue between private Japanese companies and
private United States citizens who have been wronged by those
companies. It is also important to remind people that we do have a
Constitution and every single one of us has constitutional rights.
Under the fifth amendment: ``No person shall . . . be deprived of
life, liberty, or property, without due process of law; nor shall
private property be taken for public use, without just compensation.''
The Supreme Court has ruled that the Federal Government can take or
espouse private claims of United States citizens against foreign
governments and their agents, but this case involves private claims
against private corporations that are not agents of the Japanese
Government. There are no constitutional or legal precedents for the
Federal Government to take or espouse the private claims of its
citizens against private foreign entities.
In fact, if you read article 14(b), which we have done a couple
times, to mean ``private versus private claims,'' this raises very
serious fifth amendment concerns. The Federal Government does not have
the right to espouse private versus private claims. There is an
important difference between the private versus Government claims,
which the Federal Government can espouse, and the private versus
private claims, which the Federal Government cannot espouse. That is a
big difference.
Just like the United States Government, the Dutch were faced with the
same problem. The Dutch had a constitutional issue, which is why they
raised the issue at the time, which is why article 26 was written. John
Foster Dulles certainly had a hand in writing both of those letters and
the exchange of letters between the Japanese and the Dutch. He
understood both sides of it. And he understood it completely. That is
why the letters were written and why the Dutch raised the question. And
that is why they made certain that if another country raised similar
objections, such as the United States, they would have the opportunity
to have their citizens have their day in court.
So I hope that as we get to whatever point the leadership decides to
call a vote on this, we understand that this is not about bringing up
some old war stories or replaying the war or anything at all. It is
simply about the right of an American citizen, who happened to be a
POW, to get his or her
[[Page S9227]]
day in court against a private company in another country and not be
interfered with by our own Government.
All our amendment does is say that no funds under this act shall be
used by our country or our Government to interfere with that claim.
That is it.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from Hawaii.
Mr. INOUYE. Point of inquiry: Will this matter be voted upon at 5:30?
Mr. HOLLINGS. I think so. We are ready to make that request, but I
want to say a word in debate.
Mr. INOUYE. Fine.
Mr. REID. Mr. President, will the Senator yield?
The PRESIDING OFFICER. The Senator from Nevada.
Mr. REID. Mr. President, I ask unanimous consent that the time until
3:15 p.m. be for debate with respect to the Smith amendment No. 1538;
that at 3:15 p.m. the amendment be set aside to recur at 5 p.m. today,
with all time equally divided and controlled between Senators Smith of
New Hampshire and Hollings or their designees; that a vote in relation
to the amendment occur at 5:30 p.m. today, with no second-degree
amendments in order prior to a vote in relation to the amendment;
further, that at 3 p.m. Senator Dorgan be recognized to offer an
amendment relating to TV Marti.
Mr. HOLLINGS. You mean 3:15.
Mr. REID. Yes, 3:15.
The PRESIDING OFFICER. Is there objection?
The Chair hears none, and it is so ordered.
Mr. REID. Mr. President, I extend my appreciation to the Senator from
Idaho, who is not in the Chamber, for allowing us to move forward on
this even though his amendment is pending.
Mr. HOLLINGS. Mr. President, I thank the distinguished Senator from
Nevada, who keeps the trains running--and on time --and, incidentally,
is fully informed on what is on that train. That is really the point to
be made with Senator Harry Reid.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. Mr. President, there is no question when the chorus is
formed to praise our distinguished senior colleague from Hawaii, I am
going to be in that chorus. There is no one I admire more.
I remember the debate with respect to the reparations, and I was
moved by our other wonderful Senator from Hawaii, Mr. Matsunaga. But
mind you me, that was a very different situation.
Here is an individual of Japanese descent, Daniel Inouye of Hawaii,
who fought for over a year to try and gain acceptance as a soldier in
the cause of the United States in World War II. And having done that--
because I was in that particular theater--to go forward in Italy with
the Nisei fighters, even after the armistice peace had been signed with
Italy, with his arm gone and 22 slugs in his body.
He only got the Distinguished Service Cross. It hit my conscience
that here was an individual, just because he was alone, and not
recognized at that time, who only received the Distinguished Service
Cross. And that was repaired last year when he, and others of those
brave Nisei fighters, received the Medal of Honor. So the record has
been made.
But this isn't on account of Senator Inouye's courage. I really am
grateful, managing this bill myself, that he has taken this position
that does take courage in one sense of the word. But under the
Constitution, which the distinguished Senator from New Hampshire points
out, there is no other course than to kill this particular amendment.
Let me speak again of my high regard for the Senator from New
Hampshire and the Senator from Iowa in their feeling for the veterans,
particularly those who suffered under that death march from Bataan,
because I was dragged into this thing myself in May of 1942, when
others just ahead of me got caught up not only in the Bataan march but
served as prisoners of war under such treatment that has been described
by the distinguished Senators from New Hampshire and Iowa.
I think of Jack Leonard. I think of other classmates who suffered in
that period of the war. So I share the feeling of the Senator from New
Hampshire. You cannot be more devastated and defaced and tortured than
these Japanese prisoners of war. They deserve every bit of
consideration they can get under the Constitution. But if we are going
to be a body of laws, there isn't any question about whose side--I was
taken by the Senator from New Hampshire who said you are either on the
side of the private Japanese corporations or you are on the side of the
veterans. Not at all. You are either on the side of the Constitution or
you are not. And our Constitution says: The treaty made duly ratified
is the law of the land. That terminated any particular claims or their
day in court.
To understand, read this amendment, not agreeing, if you please, with
the Senator from New Hampshire, not agreeing, if you please, with the
Senator from South Carolina, but it says:
None of the funds made available in this Act may be used by
the Department of Justice or the Department of State to file
a motion in any court opposing a civil action against any
Japanese person or corporation for compensation or
reparations in which the plaintiff alleges that, as an
American prisoner of war during World War II, he or she was
used as a slave or forced labor.
It says that the Department of Justice and the Department of State
cannot function as a Department of Justice and a Department of State.
Certainly, they don't want to do that. If it is to be that they have a
right or day in court--and certainly nothing we vote on this afternoon
will take away that right or day in court--it has been had, this time
last year in the California court. The judge found it and studied it
and objectively looked at it in every particular regard and found
otherwise. Nothing that we vote on today one way or the other is going
to take away their right in court.
But there is a right and a duty and a responsibility of the
Department of State and the Department of Justice to defend the
position of the United States. And we think that the position of the
United States is under article 14 of that particular treaty with Japan,
ratified in 1952 by an overwhelming vote that was entered into by
President Truman, ratified by a 66-10 bipartisan vote in the U.S.
Senate. If I raise my hand as a Senator, I hereby pledge to preserve,
protect, and defend. So it is not the side of the corporation or the
side of the veteran. It is the position under the Constitution. You
have to defend the laws of the land.
Certainly, I am not totally familiar with this particular issue,
certainly not as much so perhaps as the distinguished Senator from New
Hampshire. But there have been others who have studied it very
thoroughly.
I have a letter from a distinguished former Secretary of State. This
is in June. He writes to the House chairman of Foreign Relations, I
take it, at that particular time. I want to read from this letter from
George P. Shultz:
Dear Mr. Chairman: I am writing to you to express my deep
reservations about H.R. 1198, the Justice for the U.S.
Prisoners of War Act of 2001.
This was passed overwhelmingly, incidentally, in the House of
Representatives. We have too many pollsters in Government. My pollster,
my political consultant said: Why don't you keep your mouth shut. Let
Danny Inouye defend it and you don't have to say anything. And then in
the next election, you won't have to explain how the veterans now are
all against you.
Life is too short for that kind of nonsense. You have to take
positions here. Let me go ahead with Secretary Shultz's letter:
I express my opposition to the bill against the background
of tremendous sympathy for the problems of the United States'
citizens who have in one way or another been harmed, many
severely, in the course of war and its sometimes dehumanizing
impact.
But the bill in question would have the effect of voiding
the bargain we made and explicitly set out in the Treaty of
Peace between Japan, the United States, and forty-seven other
countries. President Truman with the advice and consent of
the Senate ratified the treaty and it became effective April
28, 1952.
The Treaty has served us well in providing the fundamental
underpinning for the peace and prosperity we have seen, for
the most part, in the Asia Pacific region over the past half-
century.
The Treaty addresses squarely the issue of compensation for
damages suffered at the hands of the Japanese. Article 14 in
the treaty sets out the terms of Japanese payment ``for the
damage and suffering caused by it during the war.'' The
agreement provides:
1. a grant of authority to Allied Powers to seize Japanese
property within their jurisdiction at the time of the
treaty's effective date;
[[Page S9228]]
2. an obligation of Japan to assist in the rebuilding of
territory occupied by Japanese forces during the war; and
3. waiver of all ``other claims of the Allied Powers and
their nationals arising out of any action taken by Japan and
its nationals of the war.''
Let me divert from the reading of this letter. One says ``to seize
the property.'' That was done. Japanese property was seized. You
constantly hear in the presentation that this is against private
corporations. The treaty was against private corporations and their
property and was distributed to the prisoners of war. It wasn't done
enough; you and I both agree on that in a flash. I sympathize with the
motivation of the distinguished Senator from New Hampshire, but we did
seize the property. And we did distribute it as reparations. That ended
all claims of all nationals.
The waiver of all other claims of the allied powers and their
nationals, that ended it. It didn't say whether 50 years from now we
can find some memo with respect to the Netherlands and whether or not
they had constitutional authority. There isn't any question that our
Secretary of State, John Foster Dulles, had authority. There isn't any
question that the President of the United States who signed the treaty,
the Congress itself, the U.S. Senate that ratified that treaty, had its
authority. This is by the board what was found 50 years later by the
Netherlands. Let's find out what was found by the United States of
America, its President and its Senate as constitutionally binding under
the treaty.
Let me go back to the letter from George P. Shultz:
The interests of Allied prisoners of war are addressed in
Article 16, which provides for transfer of Japanese assets in
neutral or even me jurisdictions to the International Red
Cross for distribution to former prisoners and their
families.
H.R. 1198 challenges these undertakings head on, as it
says, ``In any action in a Federal court . . . the court . .
. shall not construe section 14(b) of the Treaty of Peace
with Japan as constituting a waiver by the United States of
claims by nationals of the United States, including claims by
members of the United States armed forces, so as to preclude
the pending action.''
I read further:
I have read carefully an opinion of Judge Vaughn R. Walker
of the U.S. District Court in California rendered on July 21,
2000 . . .
I ask unanimous consent that the opinion be printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
H.R. 1198--THE JUSTICE FOR U.S. PRISONERS OF WAR ACT OF 2001
In Re World War II Era Japanese Forced Labor, September 21, 2000,
Decision by Judge Vaughn R. Walker, U.S. District Court, N.D.
California
UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA
Master File No MDL-1347.
In Re: World War II Era Japanese Forced Labor Litigation.
This Document Relates To:
Alfano v. Mitsubishi Corp, CD Cal No 00-3174
Corre v. Mitsui & Co., CD Cal No 00-999
Eneriz v. Mitsui & Co, CD Cal No 00-1455
Heimbuch, et al. v. Ishihara Sangyo Kaisha, Ltd, ND Cal No
99-0064
Hutchison v. Mitsubishi Materials Corp, CD Cal No 00-2796
King v. Nippon Steel Corp., ND Cal No 99-5042
Levenberg v. Nippon Sharyo, Ltd, ND Cal No 99-1554
Levenberg v. Nippon Sharyo, Ltd, ND Cal No 99-4737
Poole v. Nippon Steel Corp., CD Cal No 00-0189
Price v. Mitsubishi Corp., CD Cal No 00-5484
Solis v. Nippon Steel Corp., CD Cal No 00-0188
Titherington v. Japan Energy Corp., CD Cal No 00-4383
Wheeler v. Mitsui & Co., Ltd., CD Cal No 00-2057
On December 23, 1941, after mounting a brave resistance
against an overwhelming foe, the small American garrison on
Wake Island in the South Pacific surrendered to Imperial
Japanese forces. James King, a former United States Marine,
was among the troops and civilians taken prisoner by the
invaders. He was ultimately shipped to Kyushu, Japan, where
he spent the remainder of the war toiling by day as a slave
laborer in a steel factory and enduring maltreatment in a
prison camp by night. When captured, King was 20 years old, 5
feet 11 inches tall and weighed 167 pounds. At the conclusion
of the war, he weighed 98 pounds.
James King is one of the plaintiffs in these actions
against Japanese corporations for forced labor in World War
II; his experience, and the undisputed injustice he suffered,
are representative. King and the other plaintiffs seek
judicial redress for this injustice.
I
These actions are before the court for consolidated
pretrial proceedings pursuant to June 5, 2000, and June 15,
2000, orders of transfer by the Judicial Panel on
Multidistrict Litigation. On August 17, 2000, the court heard
oral argument on plaintiffs' motions for remand to state
court and defendants' motions to dismiss or for judgment on
the pleadings.
This order addresses, first, all pending motions for
remand. For the reasons stated below, the court concludes
that notwithstanding plaintiffs' attempts to plead only state
law claims, removal jurisdiction exists because these actions
raise substantial questions of federal law by implicating the
federal common law of foreign relations.
Second, the court addresses the preclusive effect of the
1951 Treaty of Peace with Japan on a subset of the actions
before the court, namely, those brought by plaintiffs who
were United States or allied soldiers in World War II
captured by Japanese forces and held as prisoners of war.
The court concludes that the 1951 treaty constitutes a
waiver of such claims.
This order does not address the pending motions to dismiss
in cases brought by plaintiffs who were not members of the
armed forces of the United States or its allies. Since these
plaintiffs are not citizens of countries that are signatories
of the 1951 treaty, their claims raise a host of issues not
presented by the Allied POW cases and, therefore, require
further consideration in further proceedings.
II
Defendants may remove to federal court ``any civil action
brought in a State court of which the district courts of the
United States have original jurisdiction.'' 28 USC
Sec. 1441(a). ``The propriety of removal thus depends on
whether the case originally could have been filed in federal
court.'' Chicago v. International College of Surgeons, 522 US
156, 163 (1997).
Federal courts have original jurisdiction over cases
``arising under the Constitution, laws or treaties of the
United States.'' 28 USC Sec. 1331. For purposes of removal,
federal question jurisdiction exists ``only when a federal
question is presented on the face of the plaintiff's properly
complaint.'' Caterpillar Inc v. Williams, 482 US 386, 392
(1987). Since a defense is not part of a plaintiff's properly
pleaded statement of his claim, a case may not be removed to
federal court on the basis of a federal defense. Rivet v.
Regions Bank of La, 522 US 470, 475 (1998).
Defendants' assertion of the Treaty of Peace with Japan as
a defense to plaintiffs' state law causes of action does not,
therefore, confer federal jurisdiction. Recognizing this,
defendants rely on a line of cases committing to federal
common law questions implicating the foreign relations of the
United States.
In Banco Nacional de Cuba v. Sabbatino, 376 US 398, 425
(1964), a case in which federal jurisdiction was based on
diversity of citizenship, the Supreme Court held that
development and application of the act of state doctrine was
a matter of federal common law, notwithstanding the general
rule of Erie R Co v. Thompkins, 304 US 64, 78 (1938), that
federal courts apply state substantive law in diversity
cases. The court reasoned that because the doctrine concerned
matters of comity between nations, ``the problems involved
are uniquely federal in nature.'' Id at 424. Although the
applicable state law mirrored federal decisions, the Court
was ``constrained to make it clear that an issue [involving]
our relationships with other members of the international
community must be treated exclusively as an aspect of federal
law.'' Id at 425.
Under Banco Nacional, federal common law governs matters
concerning the foreign relations of the United States. See
Texas Indus, Inc v. Radcliffe Materials, Inc, 451 US 630,
641 (1981). ``In these instances, our federal system does not
permit the controversy to be resolved under state law, either
because the authority and duties of the United States as
sovereign are intimately involved or because the * * *
international nature of the controversy makes it
inappropriate for state law to control.'' Id.
If an examination of the complaint shows that the
plaintiff's claims necessarily require determinations that
will directly and significantly affect United States foreign
relations, a plaintiff's state law claims should be removed.
Republic of Phillipines v. Marcos, 806 F2d 344, 352 (2d Cir
1986). This doctrine has been extended to disputes between
private parties that implicate the ``vital economic and
sovereign interests'' of the nation where the parties'
dispute arose. Torres v. Southern Peru Copper Corp, 113 F3d
540, 543 n8 (5th Cir 1997).
The court concludes that the complaints in the instant
cases, on their face, implicate the federal common law of
foreign relations and, as such, give rise to federal
jurisdiction. Plaintiffs' claims arise out of world war and
are enmeshed with the momentous policy choices that arose in
the war's aftermath. The cases implicate the uniquely federal
interests of the United States to make peace and enter
treaties with foreign nations. As the United States has
argued as amicus curiae, these cases carry potential to
unsettle half a century of diplomacy.
After a thorough analysis, Judge Baird in the Central
District of California denied remand in one of the cases now
before the undersigned pursuant to the multidistrict
litigation transfer order. Poole v. Nippon Steel Corp, No.
00-0189 (CD Cal March 17, 2000). The court agrees with the
analysis and the conclusion in that case. (In another related
case in which remand was granted, Jeong v Onoda
[[Page S9229]]
Cement Co, Ltd, 2000 US Dist LEXIS 7985 (CD Cal May 18,
2000), the court did not consider the federal common law of
foreign relations as a basis for federal jurisdiction.) Judge
Baird held: ``[T]his case, on its face, presents substantial
issues of federal common law dealing with foreign policy and
relations. * * * As such, plaintiffs may not evade this
Court's jurisdiction by cloaking their complaints in terms of
state law.'' The motions for remand are DENIED.
III
In addressing the motions to dismiss, the court refers
again to a complaint that is representative of the actions by
United States and Allied POWs, King v. Nippon Steel Corp., No
99-5042.
As noted at the outset of this order, plaintiff King seeks
redress for wrongs inflicted by his captors half a century
ago. In count one of the complaint, he asserts a claim under
California Code of Civil Procedure Sec. 354.6, a new law that
permits an action by a ``prisoner-of-war of the Nazi regime,
its allies or sympathizers'' to ``recover compensation for
labor performed as a Second World War slave labor victim * *
* from any entity or successor in interest thereof, for whom
that labor was performed * * *.'' Cal Code Civ Pro
Sec. 354.6. Count two is an unjust enrichment claim in which
plaintiff seeks disgorgement and restitution of economic
benefits derived from his labor. In count three, plaintiff
seeks damages in tort for battery, intentional infliction of
emotional distress and unlawful imprisonment. Count four
alleges that defendant's failure to reveal its prior
exploitation of prisoner labor to present-day customers in
California and elsewhere constitutes an unfair business
practice under California Business and Professions Code
Sec. 17204.
Defendants move pursuant to Federal Rule of Civil Procedure
12(c) for a judgment on the pleadings, arguing: (1)
plaintiff's claims are barred by the Treaty of Peace with
Japan; (2) plaintiff's claims raise nonjusticiable political
questions; (3) the peace treaty, the War Claims Act of 1948
and the federal government's plenary authority over foreign
affairs combine to preempt plaintiff's claims and (4) because
the complaint alleges injuries caused by the Japanese
government, plaintiff's claims are barred by the act of state
doctrine and the Foreign Sovereign Immunities Act.
These arguments, and King's countervailing positions, arise
in all of the cases before the court brought on behalf of
Allied POWs against Japanese corporations. The court need not
address all of them. For the reasons stated below, the court
concludes that plaintiffs' claims are barred by the Treaty of
Peace with Japan.
A
A motion for judgment on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c) is the proper means to
challenge the sufficiency of the complaint after an answer
has been filed. Depending on the procedural posture of the
individual case, some defendants have filed motions pursuant
to FRCP 12(c) and others have filed motions to dismiss
pursuant to FRCP 12(b). The distinction in the present
context is not important. In the Ninth Circuit, the standard
by which the district court must determine Rule 12(c) motions
is the same as the standard for the more familiar motion to
dismiss under rule 12(b)(6): ``A district court will render a
judgment on the pleadings when the moving party clearly
establishes on the face of the pleadings [and by evidence of
which the court takes judicial notice] that no material issue
of fact remains to be resolved and that it is entitled to
judgment as a matter of law.'' Enron Oil Trading & Transp Co
v. Walbrook Ins Co, 132 F3d 526, 529 (9th Cir 1997)
(citations omitted).
B
The Treaty of Peace with Japan was signed at San Francisco
on September 8, 1951, by the representatives of the United
States and 47 other Allied powers and Japan. Treaty of Peace
with Japan, [1952] 3 UST 3169, TIAS No 2490 (1951). President
Truman, with the advice and consent of the Senate, ratified
the treaty and it became effective April 28, 1952. Id.
Article 14 provides the terms of Japanese payment ``for the
damage and suffering caused by it during the war.'' Id at Art
14(a). For present purposes, the salient features of the
agreement are: (1) a grant of authority of Allied powers to
seize Japanese property within their jurisdiction at the time
of the treaty's effective date; (2) an obligation of Japan to
assist in the rebuilding of territory occupied by Japanese
forces during the war and (3) waiver of all ``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 * * *.'' Id at Art 14(a)-(b) (emphasis
added).
It is the waiver provision that defendants argue bars
plaintiffs' present claims. In its entirety, the provision
reads: ``(b) 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 if the Allied Powers for direct military
costs of occupation.'' Id at Art 14(b).
On its face, the treaty waives ``all'' reparations and
``other claims'' of the ``nationals'' of Allied powers
``arising out of any actions taken by Japan and its nationals
during the course of the prosecution of the war.'' The
language of this waiver is strikingly broad, and contains no
conditional language or limitations, save for the opening
clause referring to the provisions of the treaty. The
interests of Allied prisoners of war are addressed in Article
16, which provides for transfer of Japanese assets in neutral
or enemy jurisdictions to the International Committee of the
Red Cross for distribution to former prisoners and their
families. Id at Art 16. The treaty specifically exempts from
reparations, furthermore, those Japanese assets resulting
from ``the resumption of trade and financial relations
subsequent to September 2, 1945.'' Id at Art
14(a)(2)(II)(iv).
To avoid the preclusive effect of the treaty, plaintiffs
advance an interpretation of Article 14(b) that is strained
and, ultimately, unconvincing. Although the argument has
several shades, it comes down to this: the signatories of the
treaty did not understand the Allied waiver to apply to
prisoner of war claims because the provision did not
expressly identify such claims, in contrast to the
corresponding Japanese waiver provision of Article 19.
Article 19(b) states that the Japanese waiver includes ``any
claims and debts arising in respect to Japanese prisoners of
war and civilian internees in the hands of the Allied Powers
* * * .''
That the treaty is more specific in Article 19 does not
change the plain meaning of the language of Article 14. If
the language of Article 14 were ambiguous, plaintiffs'
expressio unius argument would have more force. But
plaintiffs cannot identify any ambiguity in the language of
Article 14. to do so would be to inject hidden meaning into
straightforward text.
The treaty by its terms adopts a comprehensive and
exclusive settlement plan for war-related economic injuries
which, in its wholesale waiver of prospective claims, is not
unique. See, for example, Neri v. United States, 204 F2d 867
(2d Cir 1953) (claim barred by broad waiver provision in
Treaty of Peace with Italy). The waiver provision of Article
14(b) is plainly broad enough to encompass the plaintiffs'
claims in the present litigation.
C
The court does not find the treaty language ambiguous, and
therefore its analysis need go no further. Chan v. Korea
Airlines, 490 US 122, 134 (1989) (if text of treaty is clear,
courts ``have no power to insert an amendment.''). To the
extent that Articles 19(b) raises any uncertainty, however,
the court ``may look beyond the written words to the history
of the treaty, the negotiations, and the practical
construction adopted by the parties.'' Air France v. Saks,
470 US 392, 396 (1985). These authorities are voluminous and
therefore of doubtful utility due to the potential for
misleading selective citation. Counsel for both sides have
proved themselves skilled in scouring these documents for
support of their positions, and that both sides have
succeeded to a certain degree underscores the questionable
value of such resort to drafting history. Nevertheless,
the court has conducted its own review of the historical
materials, and concludes that they reinforce the
conclusion that the Treaty of Peace with Japan was
intended to bar claims such as those advanced by
plaintiffs in this litigation.
The official record of treaty negotiations establishes that
a fundamental goal of the agreement was to settle the
reparations issue once and for all. As the statement of the
chief United States negotiator, John Foster Dulles, makes
clear, it was well understood that leaving open the
possibility of future claims would be an unacceptable
impediment to a lasting peace:
``Reparation is usually the most controversial aspect of
peacemaking. The present peace is no exception.
``On the one hand, there are claims both vast and just.
Japan's aggression caused tremendous cost, losses and
suffering. * * *
``On the other hand, to meet these claims, there stands a
Japan presently reduced to four home islands which are unable
to produce the food its people need to live, or the raw
materials they need to work. * * *
``Under these circumstances, if the treaty validated, or
kept contingently alive, monetary reparations claims against
Japan, her ordinary commercial credit would vanish, the
incentive of her people would be destroyed and they would
sink into a misery of body and spirit that would make them
easy prey to exploitation. * * *
``There would be bitter competition [among the Allies] for
the largest possible percentage of an illusory pot of gold.''
See US Dept of State, Record of Proceedings of the Conference
for the Conclusion and Signature of the Treaty of Peace with
Japan 82-83 (1951) (Def Req for Judicial Notice, Exh I).
The policy of the United States that Japanese liability for
reparations should be sharply limited was informed by the
experience of six years of United States-led occupation of
Japan. During the occupation the Supreme Commander of the
Allied Powers (SCAP) for the region, General Douglas
MacArthur, confiscated Japanese assets in conjunction with
the task of managing the economic affairs of the vanquished
nation and with a view to reparations payments. See SCAP,
Reparations: Development of Policy and Directives (1947). It
soon became clear that Japan's financial condition would
render any aggressive reparations plan an exercise in
futility. Meanwhile, the importance of a stable, democratic
Japan as a bulwark to communism in the region increased.
[[Page S9230]]
At the end of 1948, MacArthur expressed the view that ``[t]he
use of reparations as a weapon to retard the reconstruction
of a viable economy in Japan should be combated with all
possible means'' and ``recommended that the reparations issue
be settled finally and without delay.'' Memorandum from
General Headquarters of SCAP to Department of the Army (Dec.
14, 1948) at para. 8 (Def Req for Judicial Notice, Exh E).
That this policy was embodied in the treaty is clear not
only from the negotiations history but also from the Senate
Foreign Relations Committee report recommending approval of
the treaty by the Senate. The committee noted, for
example: ``Obviously insistence upon the payment of
reparations in any proportion commensurate with the claims
of the injured countries and their nationals would wreck
Japan's economy, dissipate any credit that it may possess
at present, destroy the initiative of its people, and
create misery and chaos in which the seeds of discontent
and communism would flourish. In short, [it] would be
contrary to the basic purposes and policy of * * * the
United States * * *.''
Japanese Peace Treaty and Other Treaties Relating to
Security in the Pacific, S Rep No 82-2, 82d Cong, 2d Sess 12
(1952) (Def Req for Judicial Notice, Exh F). The committee
recognized that the treaty provisions ``do not give a direct
right of return to individual claimants except in the case of
those having property in Japan,'' id at 13, and endorsed the
position of the State Department that ``United States
nationals, whose claims are not covered by the treaty
provisions * * * must look for relief to the Congress of the
United States,'' id at 14.
Indeed, the treaty went into effect against the backdrop of
congressional response to the need for compensation for
former prisoners of war, in which many, if not all, of the
plaintiffs in the present cases participated. See War Claims
Act of 1948, 50 USC Sec. Sec. 2001-2017p (establishing War
Claims Commission and assigning top priority to claims of
former prisoners of war).
Were the text of the treaty to leave any doubt that it
waived claims such as those advanced by plaintiffs in these
cases, the history of the Allied experience in post-war
Japan, the drafting history of the treaty and the
ratification debate would resolve it in favor of a finding of
waiver.
D
As one might expect, considering the acknowledged
inadequacy of compensation for victims of the Japanese regime
provided under the treaty, the issue of additional
reparations has arisen repeatedly since the adoption of that
agreement some 50 years ago. This is all the more
understandable in light of the vigor with which the Japanese
economy has rebounded from the abyss.
The court finds it significant, as further support for the
conclusion that the treaty bars plaintiffs' claims, that the
United States, through State Department officials, has stood
firmly by the principle of finality embodied in the treaty.
This position was expressed in recent congressional testimony
by Ronald J. Bettauer, deputy legal advisor, as follows:
``The 1951 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.''
POW Survivors of the Bataan Death March, Hearing before the
Senate Committee on the Judiciary (June 28, 2000) (statement
of Ronald J Bettauer, United States Department of State) (Def
Req for Judicial Notice, Exh P).
In another recent example, in response to a letter from
Senator Orrin Hatch expressing ``disappointment'' with the
``fifty-five year old injustice imposed on our military
forces held as prisoners of war in Japan'' and urging the
Secretary of State to take action, a State Department
representative wrote: ``The Treaty of Peace with Japan has,
over the past five decades, served to sustain U.S.
security interests in Asia and to support peace and
stability in the region. We strongly believe that the U.S.
must honor its international agreements, including the
[treaty]. There is, in our view, no justification for the
U.S. to attempt to reopen the question of international
commitments and obligations under the 1951 Treaty in order
now to seek a more favorable settlement of the issue of
Japanese compensation.
``This explanation obviously offers no consolation to the
victims of Japanese wartime aggression. Regrettably, however,
it was impossible when the Treaty was negotiated--and it
remains impossible today, 50 years later--to compensate fully
for the suffering visited upon the victims of the war * *
*.'' Letter of Jan 18, 2000, from US Dept of State to The Hon
Orrin Hatch at 2.
The conclusion that the 1951 treaty constitutes a waiver of
the instant claims, as stated above and argued in the brief
of the United States as amicus curiae in this case, carries
significant weight. See Kolovrat v. Oregon, 366 US 187, 194
(1961) (``While courts interpret treaties for themselves, the
meaning given them by the departments of government
particularly charged with their negotiation and enforcement
is given great weight.''); Sullivan v. Kidd, 254 US 425, 442
(1921) (``[T]he construction placed upon the treaty before us
and consistently adhered to by the Executive Department of
the Government, charged with the supervision of our foreign
relations, should be given much weight.''). The government's
position also comports entirely with the court's own analysis
of the treaty and its history.
Plaintiffs raise several additional arguments that bear
only brief mention. First is the characterization of these
claims as not arising out of the ``prosecution of the war,''
as that phrase is used in the treaty. Plaintiffs attempt to
cast their claims as involving controversies between private
parties.
It is particularly far-fetched to attempt to distinguish
between the conduct of Imperial Japan during the Second World
War and the major industry that was the engine of its war
machine. The lack of any sustainable distinction is apparent
from the complaints in these cases. For example, the King
complaint alleges that a class of war prisoners were forced
to work ``in support of the Japanese war effort,'' Compl
para. 56, and pursuant to a directive from the Japanese
government that the ``labor and technical skill' '' of
prisoners of war ``be fully utilized for the replenishment of
production, and contribution rendered toward the prosecution
of the Greater East Asiatic War,' '' id at para. 30.
Furthermore, the complaint asserts that plaintiff worked in a
factory ``where motor armatures were manufactured for the war
effort.'' Id at para. 35. These allegations quite clearly
bring this action within the scope of the treaty's waiver of
all claims ``arising out of any actions taken by Japan and
its nationals in the course of the prosecution of the war.''
Treaty at Art 14(b).
Plaintiffs also argue that waiver of plaintiffs' claims
renders the treaty unconstitutional and invalid under
international law. This position is contrary to the well-
settled principle that the government may lawfully exercise
its ``sovereign authority to settle the claims of its
nationals against foreign countries.'' Dames & Moore v.
Regan, 453 US 654, 679-80 (1981); See also Neri, 204 F2d
at 868-69 (enforcing treaty waiver of reparations claims).
Finally, plaintiffs assert that subsequent settlements
between Japan and other treaty signatories on more favorable
terms than those set forth in the treaty should ``revive''
plaintiff's claims under Article 26, which provides in
relevant part: ``Should Japan make a * * * 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.'' Treaty at Art 26. Without deciding whether
the evidence plaintiff cities of other agreements implicates
Article 26, the court finds that that provision confers
rights only upon the ``parties to the present treaty,'' i.e.,
the government signatories. The question of enforcing Article
26 is thus for the United States, not the plaintiffs, to
decide.
IV
The Treaty of Peace with Japan, insofar as it barred future
claims such as those asserted by plaintiffs in these actions,
exchanged full compensation of plaintiffs for a future peace.
History has vindicated the wisdom of that bargain. And while
full compensation for plaintiffs' hardships, in the purely
economic sense, has been denied these former prisoners
countless other survivors of the war, the immeasurable bounty
of life for themselves and their posterity in a free society
and in a more peaceful world services the debt.
The motions to dismiss and/or for judgment on the pleadings
are GRANTED. The clerk shall enter judgment in favor of
defendants in the above-captioned cases.
IT IS SO ORDERED.
Vaughn R. Walker,
United States District Judge.
Mr. HOLLINGS. Quoting, again, from the letter:
I have read carefully an opinion of Judge Vaughn R. Walker
of the U.S. District Court in California rendered on
September 21, 2000, dealing with claims, many of a heart-
rending nature. His reasoning and his citations are incisive
and persuasive to me. He writes, ``The cases implicate the
uniquely federal interests of the United States to make peace
and enter treaties with foreign nations. As the United States
has argued as amicus curiae, there cases carry potential to
unsettle half a century of diplomacy.'' Just as Judge Walker
ruled against claims not compatible with the Treaty, I urge
that Congress should take no action that would, in effect,
abrogate the Treaty.
The chief negotiator of the Treaty on behalf of President
Truman was the clear-eyed and tough-minded John Foster
Dulles, who later became Secretary of State for President
Eisenhower. He and other giants from the post World War II
period saw the folly of what happened after World War I, when
a vindictive peace treaty, that called upon the defeated
states to pay huge reparations, helped lead to World War II.
They chose otherwise: to do everything possible to cause
Germany and Japan to become democratic partners and, as the
Cold War with the Soviet Union emerged, allies in that
struggle.
As Judge Walker notes in his opinion, ``the importance of a
stable, democratic Japan as a bulwark to communism in the
region increased.'' He says, ``that this policy was embodied
in the Treaty is clear not only from the negotiations
history, but also from the Senate Foreign Relations Committee
report recommending approval of the Treaty by the Senate . .
. and history has vindicated the wisdom of that bargain.''
This is George P. Shultz, and I quote further:
[[Page S9231]]
I served during World War II as a Marine in the Pacific. I
took part in combat operations. I had friends--friends close
to me--friendships derived from the closeness that comes from
taking part in combat together, killed practically beside me.
I do not exaggerate at all in saying that the people who
suffered the most are the ones who did not make it at all. I
have always supported the best of treatment for our veterans,
especially those who were involved in combat. If they are not
being adequately taken care of, we should always be ready to
do more.
If you have fought in combat, you know the horrors of war
and the destructive impact it can have on decent people. You
also know how fragile your own life is. I recall being the
senior Marine on a ship full of Marines on our way back from
the Pacific Theater after 3 years overseas. We all knew that
we would reassemble into assorted forces for the invasion of
the Japanese home islands. As Marines, we knew all about the
bloody invasion of Tarawa, the Palaus, Okinawa, Iwo Jima, and
many other Islands. So we knew what the invasion of the
Japanese home islands would be like.
Not long after we left port, an atomic bomb was dropped on
Japan. None of us knew what that was, but we sensed it must
be important since the event was newsworthy enough to get to
our ships at sea. Then we heard of a second one. Before our
ship reached the States, the war was over.
I have visited Japan a number of times and I have been
exposed to Hiroshima and Nagasaki. Civilians there were
caught up in the war. I am sympathetic toward them. I have
heard a lot of criticism of President Truman for dropping
those bombs, but everyone on that ship was convinced that
President Truman saved our lives. Yes, war is terrible, but
the treaty brought it to an end.
I can divert and express those same sentiments. I didn't get back
until November. He is talking about August when those bombs were
dropped in 1945. But there is no question that President Truman was the
hero for dropping those bombs. But under the International Criminal
Court, somebody could try to file a claim 50 years later that he was a
war criminal. A kind of thinking that is going on today is that this is
politically correct. I will resume reading the letter from George P.
Shultz:
The Bill would fundamentally abrogate a central provision
of a 50 year old treaty, reversing a longstanding foreign
policy stance. The Treaty signed in San Francisco nearly 50
years ago and involving 49 nations could unravel. A dangerous
legal precedent would be set.
Once again, I would say to you, where we have veterans,
especially veterans of combat who are not being adequately
supported, we must step up to their problems without
hesitation. But let us not unravel confidence in the
commitment of the United States to a Treaty properly
negotiated and solemnly ratified with the advice and consent
of the United States Senate.
I submit this letter to you and other members of the House
of Representatives with my deep respect for the wisdom of the
congressional process, and for the vision embodied in the
past World War II policies that have served our country and
the world so well.
Sincerely yours,
George P. Shultz.
The PRESIDING OFFICER. The time of the Senator has expired. The time
between now and 3:15 was to have been equally divided between the
Senator from South Carolina and the Senator from New Hampshire.
Mr. HOLLINGS. Let me ask--my distinguished colleague from New
Hampshire, I am sure, will say a word to extend the time. My
understanding in the agreement was that it was 3:15.
I just say that the distinguished Senator's amendment is clear. It
says, look, Mr. Secretary of State, Mr. Attorney General of the Justice
Department, you shall not defend the U.S. position. Now, come on. If
there is a dispute--and there obviously is--with the Senator's
amendment with respect to the right of these veterans, then let it be
determined with a comprehensive review, with all the documents and
everything else in a court of law. This doesn't prevent the veterans
from moving forward, but it certainly prevents the United States of
America, through its Department of Justice and Department of State,
from defending the position of the United States under this particular
treaty.
The distinguished Senator from New Hampshire could well say, wait a
minute, here is this information that has come to light 50 years later.
Whether that has an effect or not is to be determined. No rights have
been taken away from my veteran friend here who might stand at my side
and say, Hollings, I want you to bring the case. Nothing prevents the
case from being brought. But this amendment says no one defends this
particular treaty. The Senate, which ratified the treaty, doesn't want
to take the position that its ratification cannot even be commented on
by this particular amendment because all funds are removed, no motion
can be made, no defense can be made. On that basis alone, I will
support the Senator from Hawaii in his opposition and commend him again
for his courage, and I commend my friend from New Hampshire for raising
this particular question because it is a serious one, but it ought to
be discussed in a court of law and both sides heard fully, without
saying one particular side can't be defended at all.
I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, I wish to respond briefly
to a couple of the points my colleague from South Carolina made. The
argument that our former POWs have already been compensated under the
War Claims Act and 1951 peace treaty is ridiculous, to be candid about
it. POWs who were enslaved by private Japanese corporations received
next to nothing in compensation. Many POWs received nothing--nothing,
zippo.
A Federal judge who dismissed many of the lawsuits wrote in his
opinion--listen to this:
The immeasurable bounty of life for themselves and their
posterity in a free society services the debt.
That is what he said. If that is not a ridiculous statement, even if
it did come from a judge, I have never heard one. Here it is again:
The immeasurable bounty of life for themselves [POWs] and
their posterity in a free society services the debt.
It is true under the War Claims Act POWs could receive minimal
compensation--a dollar a day--for their claims against the acts of
powers. They could not be compensated for claims against private
corporations and nationals who were not agents.
I want to make it clear to my colleagues that a treaty that is signed
between the United States and another government that says that a U.S.
citizen cannot sue another U.S. citizen--excuse me, another citizen in
a foreign country without due process--it is wrong. You can't do that.
You cannot deny due process. John Foster Dulles realized it when they
wrote the side agreement and they wrote this memorandum of
understanding and then buried it. They classified it. Senator Inouye
and others have pointed out what article 14(b) says. I read it, and I
agree. If article 14(b) is read alone without knowing any other
background, then one could make the case these folks should not have
that opportunity to proceed.
This is right out of the memorandum of understanding, and this was
partially written by Dulles himself:
Following the conversation of September 3, 1951, between
the Secretary of the Dutch Foreign Ministry . . . Dutch
Ambassador, and others, we emphasize that the purpose of this
statement was not to obligate the Japanese actually to pay
out any money to the claimants. He realized fully this was an
unlikely possibility. He emphasized, however, the statement
he had made to the Secretary the day before that the Dutch
Government was faced with a difficult legal problem; namely,
without a proper interpretation agreed to by the Japanese, it
would appear the Dutch Government was, by the act of signing
the Japanese peace treaty, giving up without due process
rights held by Dutch subjects.
That is the same issue with the United States, and Dulles realized
it. You cannot sign a treaty that says we have no due process against
another citizen in another country. You simply cannot do it.
Talk about sticking to the Constitution and defending the
Constitution. That is exactly what I am doing, and that is exactly what
John Foster Dulles and others were doing because they realized article
14(b) was wrong. Then in an effort to cover it all up to satisfy the
Dutch, he buried it. He classified it and kept it classified for 50
years to keep these people from having the right to go to court. That
is what he did. That is what the U.S. Government did. That is wrong,
and we need to correct it. We can correct it right here today.
We cannot say we are not defending the Constitution. We are not only
defending the Constitution, we are defending the rights of individuals
who live under this Constitution to have due process. That is what we
are doing, and that is what this debate is about.
[[Page S9232]]
I yield the floor, Mr. President.
Mrs. FEINSTEIN. Mr. President, I rise to express my opposition to the
Smith Amendment to the Commerce-Justice-State Authorization.
I do not do so because I think that the lawsuits filed against the
Japanese corporations by the former Prisoners of War who were used as
slave labor during World War II should not go forward--just the
opposite--but because I believe that this Amendment takes the wrong
approach to this issue.
I strongly support the right of the POWs to file lawsuits against the
Japanese corporations. The POWs and veterans are only seeking justice
from the private companies that enslaved them, and these claims should
be allowed to move forward.
In fact, Senator Hatch and I introduced legislation earlier this
year, S. 1272, the POW Assistance Act of 2001, precisely because I
believe that it is important for those POWs who were used as slave
labor during World War II to have their day in court, and an
opportunity to press their claims for remuneration and compensation.
There are serious questions about whether the 1951 Treaty between
Japan and the United States has settled these claims, and these
questions should be dealt with seriously. But as these lawsuits go
forward, I do not think that it is right and proper to enjoin the
Department of State and the Department of Justice from offering the
court their opinion on the meaning and interpretation of the 1951
Treaty. That opinion--which may ultimately be determined to be
incorrect--is a perfectly legitimate part of the proceedings.
I strongly support the right of the POWs to seek justice. This is a
matter that belongs before the courts. But I do not think that the
Smith Amendment is the right way to go, and I urge my colleague to
oppose its passage.
Mr. NELSON of Florida. Mr. President, I want to express my support
for amendment No. 1538 of Senators Smith and Harkin regarding American
POWs held in Japan. I do so with much respect for those who have served
and suffered horrible treatment as a result of their service. I was
traveling with President Bush in Florida when the vote occurred, but
had I been present, I would have voted ``nay'' to the motion to table
the amendment.
We do have an international treaty with Japan to which we are bound.
But, this amendment is not about what the Treaty signed 50 years ago
does or does not allow. It is about due process to those Americans who
suffered a grievous wrong. The point is that these brave Americans be
allowed their day in court to have their case heard. Actions by the
Departments of Justice and State to block such actions deprive them of
fairness and due process. Congress should not be a party to such
deprivations.
I support the Smith-Harkin amendment and wish to be on record as
opposed to the motion to table it.
Mr. BYRD. Mr. President, during World War II, 36,000 Americans were
captured and held prisoner by Japan. The story of the often horrific
treatment of these prisoners is punctuated by episodes such as the
Bataan Death March, where ten Americans lost their lives for every mile
of the gruesome journey, and by the pictures of the emaciated soldiers
who spent years in confinement on starvation rations. I cannot think of
any way in which we, as a nation, could begin to repay the men who
suffered through such abhorrent treatment.
The amendment before us today, offered by Senator Smith and Senator
Harkin, however, puts in jeopardy constitutional principles that each
member of the Armed Forces, and each member of this body, swore to
uphold. The amendment would prevent the Department of State and the
Department of Justice from defending the U.S. Government in court
against lawsuits that challenge whether provisions in the Treaty of San
Francisco will continue to be in force as the law of the land.
The treaty, which brought peace between Japan, the United States, and
our Allies in World War II, explicitly settled all wartime reparations
claims that might arise against Japan. The text of the peace treaty is
very clear in this regard. Because, under Article VI of the
Constitution, a ratified treaty is the supreme law of the land, it is
equally clear that this treaty prohibits the Government of the United
States, or its people, from seeking further reparations from the
Government of Japan, or its people. This is the position that the
Department of State and the Department of Justice have maintained since
ratification of the treaty in 1952.
The amendment before us would prohibit those departments from arguing
in court against lawsuits that violate the peace treaty. It would
prevent the U.S. Government from upholding a supreme law of our land.
It would prohibit our government from acting in a responsible manner in
support of our international obligations. It would stop the executive
branch from taking action on this issue, which affects our foreign
policy. I cannot support an amendment that challenges so many of our
basic constitutional principles on the importance of treaties and the
conduct of foreign policy.
This is not to say that our veterans who were held prisoner by Japan
must be denied compensation or restitution for the inhumane treatment
they suffered. Those veterans were eligible for compensation
distributed by the U.S. Government under the War Claims Act of 1948.
The proponents of the amendment before us may believe that compensation
was not sufficient, which may be true. There are other ways to
compensate our veterans that do not tread upon constitutional
principles. One proposal is in the Fiscal Year 2002 Defense
Authorization bill, as reported by the Armed Services Committee last
Friday.
The bill authorizes the Department of Veterans Affairs to pay $20,000
to former prisoners, or their surviving spouses, who were forced to
perform slave labor while held by Japan. Such a proposal would allow
those veterans to receive the compensation they seek, without
challenging the legal status of a ratified treaty. There may be other
proposals to compensate the veterans in question as well.
We must also consider how other countries would react to an action by
Congress that would question our Nation's adherence to a 50-year-old
treaty with one of our closest allies. Already this year, the United
States has shown an alarming tendency toward unilateralism in regard to
a number of international agreements: the Kyoto Protocol, the Anti-
Ballistic Missile Treaty, the International Criminal Court, the
Biological Weapons Convention, and the U.N. convention on small arms. A
move to reverse a major provision of such a longstanding peace treaty
would be an disconcerting confirmation, and escalation, of this trend.
This is a particularly inopportune time to raise further questions
about our Nation's ability to cooperate with other countries.
I urge my colleagues not to view the vote on the Smith-Harkin
amendment as an up-or-down vote on our veterans. There are serious
constitutional and foreign policy issues at stake, and other means to
compensate these veterans have not yet been exhausted. We should take a
closer look at alternative means of compensation, and reject this
attempt to tie the hands of our government in discharging its
constitutional duty to defend a ratified treaty.
The PRESIDING OFFICER (Mr. Wyden). The Senator from Hawaii.
Mr. INOUYE. Mr. President, I ask unanimous consent that the Senator
from Nebraska be given 10 extra minutes to present his statement.
The PRESIDING OFFICER. Without objection, it is so ordered. The
Senator from Nebraska.
Mr. HAGEL. Mr. President, I thank my friend, the distinguished senior
Senator from Hawaii, who is, as we have heard today, one of the most
distinguished veterans of World War II, as is his colleague, the
distinguished Senator from South Carolina.
I am a bit of an interloper on this issue, except to say my father
spent 3 years in the South Pacific during World War II in the Army Air
Corps. So I know some of what my distinguished colleagues are talking.
I am most appreciative of the efforts and the motives of the
distinguished Senator from New Hampshire, Mr. Smith. I know of his
father's great sacrifice during World War II, meaning the sacrifice
Senator Smith's family made to this country. I do not tread upon this
subject lightly.
I rise to oppose this amendment. The Senator from South Carolina and
the Senator from Hawaii have made very significant, substantive points
as to
[[Page S9233]]
why it is the wrong course of action, in the opinion of some, including
this Senator from Nebraska.
I will say first, there is surely no way a grateful nation can ever
adequately compensate or express our feelings to those brave men and
women who gave so much to this country, who were the subjects of the
slave labor camps, the forced marches, the unspeakable brutality,
except this: We should put some of this in some perspective. What,
indeed, was it that these brave men and women fought and endured for?
It was freedom. It was the liberty for a nation, an individual, to have
the kind of life and dignity for which America has stood for over 200
years. That is what it was about.
How do we compensate, how do we adequately thank these men and women?
We cannot, of course, but we should remember this: What they fought
for, what they endured, can be, in fact, recognized by knowing and
understanding that the greatest legacy any of us can leave in life is a
family, the world better than we found it, and accomplishing something
much greater than our own self-interests. That is the most important
dynamic for me as I have listened to this debate and as I have read the
reasons and listened to the reasons that Senator Smith has put forward
to essentially change our treaty obligations.
Make no mistake. This is a very significant step that this body, this
Congress, this Nation will take if, in fact, we vote for this
amendment. Great nations honor their treaty commitments. Treaty
commitments are important, and we can debate the specifics of sections
and paragraphs of law and treaties, and as has been articulated rather
directly and plainly this afternoon, there are various interpretations
of that. But we should make it very clear that this great Nation will,
in fact, live up to its commitments of our treaties, a commitment that
we made 50 years ago when that treaty was signed in San Francisco,
which was, as expressed here, commemorated last weekend. It is a 50-
year treaty.
Was it awkward? Was it done not exactly the right way? Were parts of
that treaty misclassified? Why did we classify some of it in the way we
did? I suppose we could take days, weeks, and months debating that, but
that is part of a smaller issue. The bigger issue really, in fact, is:
Are we, in fact, going to unilaterally reinterpret the commitment we
gave to 48 other nations that signed this treaty 50 years ago? That is
really the issue.
American prisoners of war forced into slave labor by Japan during
World War II suffered unspeakable brutality, and their treatment by
Japanese overseers violated every standard of human decency. Their
sacrifice and heroism now forms one of the most distinguished chapters
in American history.
While we must not forget these Americans who suffered so greatly, we
also must not forget our country's historic and principled decision in
the aftermath of this terrible conflict. Our peace treaty with Japan
was not punitive. Although the United States had defeated a brutal
enemy, we chose not to claim the spoils of war. Instead, the peace
treaty with Japan reflected the great humanity, vision, spirit and
generosity of the American people. Referred to at the time as a ``Peace
of Reconciliation,'' it looked forward to Japan's economic recovery and
not backward to its defeat. Most important, it reflected the new
stirrings of a great and magnanimous superpower.
In 1945, most Americans felt the terms of surrender with Japan were
too lenient. By 1951, most Americans began to see Japan in a very
different light--as a potential friend and ally in East Asia, not as an
implacable foe. When John Foster Dulles negotiated our generous peace
with Japan, waiving all reparation claims, the American public
supported the treaty, and the Senate ratified it with a lopsided
majority, 66-10, on March 20, 1952. The United States has stood behind
this decision for 50 years. Last Saturday, on September 8, Secretary of
State Powell and Japanese Foreign Minister Tanaka commemorated the 50th
anniversary of the Treaty of San Francisco at San Francisco's War
Memorial Opera House, and formally renewed the strategic partnership
between the United States and Japan. This relationship stands as one of
this country's most important--a tie of friendship and common interest
that will grow stronger and become increasingly important to our
strategic interest in East Asia and the world in the coming decades.
Senate amendment No. 1157, which has been offered today, would
prevent the State and Justice Departments from stating our San
Francisco Treaty obligations in court. This action is not
insignificant. It would hamper the President's ability to conduct
United States foreign policy, and it would violate the spirit, and
likely the letter, of one of the most significant treaties of the 20th
century. This would set a dangerous precedent. While many of my
distinguished colleagues may no longer agree with the decision made by
the United States in 1951, it still stands as a treaty obligation and
the official United States position in U.S. court cases. We are a
nation that upholds the rule of law and honors its treaty commitments.
How then should we honor and fairly compensate the Americans who
suffered grievously as slave or forced labor in World War II without
violating our long-held treaty obligation with Japan? Two of our World
War II allies, Canada and the United Kingdom, recently provided
compensation to their prisoners of war--recognizing that Japan has no
obligation to do so under the Treaty of San Francisco. This is a model
that we might consider using for the surviving American prisoners of
war who suffered as Japanese slaves or forced laborers, without
undermining our treaty obligations. Under the War Claims Act of 1948,
and its 1952 amendment, the United States Government took all
responsibility for compensating World War II prisoners of war. Our
prisoners of war received some compensation in the decade following
World War II. Senators Bingaman and Hatch introduced legislation, S.
1302, early last month to provide $20,000 to each veteran or civilian
internee, or their surviving spouses.
The last Congress, the 106th Congress, enacted Senate Concurrent
Resolution 158 calling on the Secretary of State to facilitate
discussions between American prisoners of war forced into slave labor
during World War II and the Japanese companies that benefitted from
their enslavement. The issue of forced and slave labor has been raised
with the Japanese government at a variety of levels by our State
Department. The recent decision by Germany to compensate slave and
forced laborers during World War II may provide a model on this issue.
Japan and the United States commemorated the 50th anniversary of the
Treaty of San Francisco over the weekend. The treaty underpins and
supports the United States security structure in East Asia, and forms
the basis of our friendship with Japan. Treaty commitments and
symbolism are important. We should not risk our reputation as a
reliable treaty partner by unilaterally reinterpreting an important
provision of this treaty that has stood for 50 years. Great nations are
consistent. We should act appropriately.
I will oppose this amendment.
Once again, I ask my colleagues to pay careful attention to this
amendment, and in the next couple of hours, if you are not aware of
what this amendment does, please make yourself aware of it because if
we vote for this amendment, it will be about much bigger things than
the specific point of this amendment. I do not believe that is in the
best interests of our country, the best interests of the world, and,
quite honestly, the best interests of the very families and the
legacies these brave men and women will leave behind and what they
endured for us.
I ask my colleagues to oppose this amendment as we vote this
afternoon and once again recognize the Senator from New Hampshire for
his motives, for his intent, but in this Senator's opinion it is the
wrong approach to accomplish something that is important.
I thank the Chair. I yield the floor.
The PRESIDING OFFICER. The Senator from South Carolina.
Mr. HOLLINGS. I believe there is no further statement to be made with
respect to the Smith amendment and that now the unanimous consent
agreement takes place whereby the distinguished Senator from North
Dakota will ask to set the Smith amendment aside, to be brought up at 5
p.m. with the time equally divided between 5 p.m. and 5:30 p.m., and
the vote to
[[Page S9234]]
occur at 5:30 p.m. Until then, the agreement is the Senator from North
Dakota will be recognized for him to offer an amendment.
The PRESIDING OFFICER. The Senator from North Dakota.
[...]
Mr. SMITH of New Hampshire. Mr. President, it is my understanding we
have the vote on the Smith amendment at 5:30. Is that correct?
The PRESIDING OFFICER. That is correct.
Mr. SMITH of New Hampshire. I say to my colleagues who are also here
to speak, I will be very brief in deference to those on both sides who
wish to speak.
I want to say what the Smith amendment does. It says:
None of the funds made available in this Act may be used by
the Department of Justice or the Department of State to file
a motion in any court opposing a civil action against any
Japanese person or corporation for compensation or
reparations in which plaintiff alleges that, as an American
prisoner of war during World War II, he or she was used as
slave or forced labor.
All this says is that no funds in this act will be used to block that
lawsuit.
That is it. We are not making any editorial comment on the merits or
demerits of the lawsuit or who should win it. I have personal feelings
about who should win it. I believe the Ameican POWs should win the
lawsuits. That is up to the courts. All we want to do is let that
process proceed.
I also want to make it very clear that this amendment does not
abrogate the 1951 peace treaty with Japan. I repeat, It does not
abrogate the 1951 peace treaty with Japan. It merely limits the State
and Justice departments from interfering in the veterans' lawsuits.
Why does it not do it? Because article 26 makes it very clear that if
the Japanese should enter into any agreement that is more advantageous,
then the same terms apply to all the signatories to the treaty. That is
what it says. Should Japan make a 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.
Did that happen? The answer is, yes, it did--right here in an
agreement that was written between the Japanese Government and the
Dutch. The point is it did happen.
We are not violating the treaty. Article 26 is part of the treaty. We
are simply complying with the treaty.
The bottom line is we are not only not abrogating it, but we are
complying with the treaty. This is about whether or not we are going to
side with Japanese companies or American war heroes. That is the bottom
line. That is the issue. As Senator Hollings said a while back, this is
about the Constitution and about the treaty; it is not. We are
complying with the treaty with this amendment.
This is about siding with Japanese companies in this lawsuit or with
American war heroes.
That is the issue. We are not even doing that. We are just allowing
the process to move forward because American war heroes can have their
day in court. That is all we are doing. The treaty allows for that very
clearly.
As I indicated in my previous remarks today, John Foster Dulles, when
he did the background and memorandum of understanding and wrote some of
this language, understood it, too. Then this was classified for 50
years.
We didn't know about it. The lawyers who are trying to present these
lawsuits on behalf of American war heroes--the greatest generation--
didn't have access to this information until it was declassified a year
ago. That is what this is about, pure and simple. There is nothing
complicated.
You are either for allowing American war heroes who were in the
Bataan Death March and who were forced into slave labor camps to have
their day in court--you don't even have to be for them winning, as I
happen to be, and as I know many others are. You just have to be for
allowing them their day in court as is prescribed under that 1951
treaty, period. That is what it is about. You are either for that or
you are for the Japanese companies that basically forced them into
slave labor.
That is the difference. That is what we are talking about in this
amendment.
I yield the floor.
The PRESIDING OFFICER (Mr. Corzine). The Senator from Hawaii is
recognized.
Mr. INOUYE. Mr. President, I believe all of us will agree that the
atrocities committed and the inhumane treatment of our war prisoners
cannot be condoned and cannot in any way be justified. We condemn those
atrocities. It is not a question of Japanese corporations versus
American heroes. What is involved is the Constitution of the United
States. Article II makes it very clear that treaties are to be
negotiated by the President or the executive branch of this country--
not by any State, nor by any individual, nor by the Senate. It will be
by the executive branch. There is no question about that.
The document that my dear friend from New Hampshire has referred to
which was arranged by our then-Secretary of State, John Foster Dulles,
should be praised and not condemned. I would like to explain.
I believe the references to this arrangement is a bit misleading. I
say so most respectfully. This arrangement which was engineered by
Secretary Dulles was simply a side agreement designed to address a
domestic issue for the Dutch and thereby enabling the Dutch to sign on
as a signatory to the treaty of peace in San Francisco.
It does not in any way change the terms of the treaty. My colleagues
from New Hampshire and Iowa have read the documents. But somehow we
have slid over certain words. If I may, very carefully I will quote
from their document.
However, the Japanese Government points out that under the
treaty allied nationals will not be able to obtain
satisfaction regarding such claims. Although, as the
Netherlands government suggests, there are certain types of
private claims by allied nationals which the Japanese
Government might wish voluntarily to deal with.
We have somehow skimmed over that word ``voluntarily.''
At this moment, Mr. President, if you wanted to sue me and I said to
you, I voluntarily open myself up to you, we need not go to court, no
one is going to fuss over that. If at this moment a prisoner of war of
the United States should decide that he wants to sue the Japanese
Government or a Japanese national notwithstanding the treaty, and if
that Japanese national or the Japanese Government should say, yes, they
voluntarily expose themselves, we don't have to break the treaty. But
if the Japanese Government or the Japanese national should resist and
challenge that claim, then I say the executive branch of the Government
of the United States should have every right to intervene in such a
suit because it does impact upon the treaty of San Francisco.
I think we should read this again:
There are certain types of private claims by allied
nationals which the Japanese Government might wish
voluntarily to deal with.
This amendment is not necessary. If you want to sue the Japanese
Government or its national at this moment, and the Government and the
national said to you, yes, they will voluntarily enter into an
agreement with you to compensate you for whatever claims you may have,
no one is going to complain. But this amendment will without question
impact upon the treaty. It will abrogate the treaty. Then other
countries will begin to doubt our good word. Is our word good? Are the
promises made by the United States good? We are constantly criticizing
other nations for violating, if I may say, provisions of treaties.
This is very simply an attempt on the part of the United States to
violate a provision of a treaty. I hope that my colleagues will not
lead us down this very dangerous path. If we violate, how can we be
critical of other nations violating provisions of their treaties? So I
hope this matter will be settled. And accordingly, if I may, Mr.
President, I move to table the Smith amendment.
The PRESIDING OFFICER. The motion is premature while time remains.
Mr. INOUYE. I assumed the Senator had finished.
Mr. SMITH of New Hampshire. Senator Harkin wishes to speak.
[[Page S9240]]
Mr. INOUYE. I am sorry.
The PRESIDING OFFICER. The Senator from Iowa.
Mr. HARKIN. How many minutes do we have?
The PRESIDING OFFICER. Six minutes.
Mr. HARKIN. Mr. President, first of all, we are not abrogating any
treaties with this amendment. How could we abrogate a treaty with an
amendment that simply says: No moneys can be expended by the State
Department Attorney General to go into court opposing our POW cases
against private Japanese companies? That is all we are saying. Again,
we have done this time and time and time again in the history of this
country. This is not something new.
We have the power to do that. We have the power of the purse strings.
We are not abrogating the treaty. We are just saying that the U.S.
Government cannot go into court using taxpayer money to oppose the POWs
who are filing these lawsuits.
If the court upholds the treaty and says that they cannot get
anything, that they have already been compensated, well, that's the end
of it. I guess they can appeal it to the Supreme Court of the United
States, but if the courts find, as my friend from Hawaii says, that
this treaty holds and would be abrogated, and we can't do that, then
that is the end of the case, but at least the POWs will have had their
day in court.
That is all we are asking with this amendment. We are not abrogating
any treaties; we are simply trying to uphold the rule of law and our
own private citizens' rights.
Let's keep in mind whom we are talking about: 30,000 men who served
their country in unbearable conditions in Japanese prisoner-of-war
camps. Now we are talking about at least 700 of them--some from my own
State of Iowa--seeking some long-delayed justice. They have gone to
court to demand compensation from the Japanese companies that used them
as slave laborers.
And who were these companies? Mitsubishi, Mitsui, Nippon Steel. These
are not tiny, little companies that are going to go broke because they
might have to pay these people some back wages and compensation for
what they endured during those war years.
I think it is unconscionable that our own State Department has
intervened in the courts to keep them from pressing their case. That is
not right. It is not fair.
So, No. 1, this amendment does not, in any way, undermine the treaty.
Let the court decide that. All we are saying is, the State Department
cannot use our taxpayers' money--the very taxes paid by these former
POWs--to go into court to keep them from seeking redress.
No. 2, this does not violate a separation of powers. We have, time
and time again, used the power of the purse strings to say that the
Attorney General cannot intervene in certain court cases. That is
nothing new. We have done that before.
No. 3, they have said the POWs have already been compensated by the
United States. Well, I talked to three POWs from Iowa who were slave
laborers in Japan during the war, and not one of them got paid. So I do
not know whom they are talking about, but they did not get a dime.
No. 4, it has been said this opens up the United States to lawsuits
from other countries. Again, the United States was known to treat our
POWs more decently. Many of the German POWs who worked here in the
cotton fields were indeed paid for their work when they worked in the
United States as POWs.
Again, we can get wrapped up in all these details, but let's keep in
mind what we are talking about. We are talking about men who survived
on a cup of rice a day. The one person I knew in Iowa, who is still
alive, went from 160 pounds down to 68 pounds in 3 years working in a
Japanese auto parts factory and then in the lead mines in Japanese
occupied territory.
Again, these survivors and their families should at least give them
their day in court. That is all we are asking. Mitsubishi, they have a
lot of money. Nippon Steel, they can hire the best lawyers if they want
to argue this case.
Mr. President, I ask unanimous consent to have printed in the Record
the number of former POWs in various States who would be affected by
this class action suit: 1,454 in California, 200 in Arizona, 200 in
Colorado, 150 in Georgia, 150 in Illinois--I am not going to read the
whole list, but I ask to have that list printed in the Record.
There being no objection, the material was ordered to be printed in
the Record, as follows:
State by State Listing of Survivors and Their Families who Would
Benefit or Would Be Affected by the Class Action Suit
Arizona: 200.
California: 1,454
Colorado: 200.
Georgia: 150.
Illinois: 150.
Louisiana: 140.
Maryland:, 1,154.
New York: 240.
Virginia: 189.
Oregon: 250.
Texas: 972.
Washington: 350.
Wisconsin: 106.
Ohio: 100.
North Carolina: 100.
Pennsylvania: 100.
Massachusetts: 100.
Mr. HARKIN. Mr. President, again, let's keep in mind that all the
Smith-Harkin amendment says is: Do not use taxpayers' money to have the
State Department come into court to fight our former POWs who are
seeking compensation from Japanese companies that never paid them. That
is all we are asking. If the judge and the Supreme Court of the United
States find that they cannot abrogate that treaty, that is the end of
it, but at least give them their day in court.
Let's not turn our backs on them. They suffered long enough. It is
time they get their just compensation.
Mr. President, I yield the floor.
The PRESIDING OFFICER. The Senator from New Hampshire.
Mr. SMITH of New Hampshire. Mr. President, just a unanimous consent
request.
I ask unanimous consent that Senator Wayne Allard be added as a
cosponsor to the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
The sponsors' time has expired.
Who yields time?
The Senator from Hawaii.
Mr. INOUYE. Mr. President, as I indicated earlier this afternoon, it
was certain that this debate would become a highly emotional one. A few
of us were involved in that ancient war, and we know what the Bataan
Death March was all about. We do not condone that; we condemn it. We
are not here to justify or provide a rationale for the actions taken by
the Japanese troops; far from it. But we are here to maintain the
integrity of our country and our treaties.
Yes, we have provided provisions in the appropriations bill stopping
our Departments from suing on certain issues, but never on a treaty.
This one will break a treaty.
So, Mr. President, I hope my colleagues will go along in support of
my motion to table.
Mr. SMITH of New Hampshire. Mr. President, before the motion is made,
I have one more unanimous consent request.
I ask unanimous consent that Senator Ben Campbell also be added as a
cosponsor to the amendment.
The PRESIDING OFFICER. Without objection, it is so ordered.
Who yields time?
Mr. INOUYE. Mr. President, what is the time situation?
The PRESIDING OFFICER. The opposition has 2 minutes remaining.
Mr. INOUYE. I yield back the remainder of our time and move to table
the Smith amendment.
Mr. HOLLINGS. I ask for the yeas and nays.
The PRESIDING OFFICER. Is there a sufficient second?
There appears to be.
The question is on agreeing to the motion. The clerk will call the
roll.
The legislative clerk called the roll.
Mr. REID. I announce that the Senator from Missouri (Mrs. Carnahan),
the Senator from North Carolina (Mr. Edwards), the Senator from
Massachusetts (Mr. Kerry), the Senator from Florida (Mr. Nelson), the
Senator from Michigan (Ms. Stabenow), and the Senator from New Jersey
(Mr. Torricelli) are necessarily absent.
Mr. NICKLES. I announce that the Senator from Arizona (Mr. Kyl) and
the Senator from Arizona (Mr. McCain) are necessarily absent.
[[Page S9241]]
The PRESIDING OFFICER (Mr. Carper). Are there any other Senators in
the Chamber desiring to vote?
The result was announced--yeas 34, nays 58, as follows:
[Rollcall Vote No. 276 Leg.]
YEAS--34
Akaka
Biden
Bond
Byrd
Carper
Chafee
Cleland
Corzine
Daschle
Dodd
Enzi
Feinstein
Fitzgerald
Gregg
Hagel
Helms
Hollings
Inouye
Jeffords
Kohl
Levin
Lott
Lugar
McConnell
Mikulski
Murkowski
Nelson (NE)
Nickles
Reed
Reid
Rockefeller
Sarbanes
Stevens
Thompson
NAYS--58
Allard
Allen
Baucus
Bayh
Bennett
Bingaman
Boxer
Breaux
Brownback
Bunning
Burns
Campbell
Cantwell
Clinton
Cochran
Collins
Conrad
Craig
Crapo
Dayton
DeWine
Domenici
Dorgan
Durbin
Ensign
Feingold
Frist
Graham
Gramm
Grassley
Harkin
Hatch
Hutchinson
Hutchison
Inhofe
Johnson
Kennedy
Landrieu
Leahy
Lieberman
Lincoln
Miller
Murray
Roberts
Santorum
Schumer
Sessions
Shelby
Smith (NH)
Smith (OR)
Snowe
Specter
Thomas
Thurmond
Voinovich
Warner
Wellstone
Wyden
NOT VOTING--8
Carnahan
Edwards
Kerry
Kyl
McCain
Nelson (FL)
Stabenow
Torricelli
The motion was rejected.
The PRESIDING OFFICER. The question is on agreeing to the amendment.
The amendment (No. 1538) was agreed to.
[...]