C O N T E N T S

STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........ 1

Feinstein, Hon. Dianne, U.S. Senator from the State of California 5

Grassley, Hon. Charles E., U.S. Senator from the State of Iowa... 22

Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont... 23

CHRONOLOGICAL LIST OF WITNESSES

Statement of Hon. Jeff Bingaman, U.S. Senator from the State

of New Mexico.................................................. 3

Panel consisting of David W. Ogden, Acting Assistant Attorney General, Civil Division,
U.S. Department of Justice, Washington, DC; and Ronald J. Bettauer,
Deputy Legal Adviser, Department of State, Washington, DC............................ 6

Panel consisting of Harold W. Poole, former World War II prisoner of war in Japan, Salt Lake City, UT;
Frank Bigelow, former World War II prisoner of war in Japan, Brooksville, FL;
Maurice Mazer, former World War II prisoner of war in Japan, Boca Raton, FL;
Lester I. Tenney, former World War II prisoner of war in Japan, LaJolla, CA;
Edward Jackfert, former World War II prisoner of war in Japan, and commander, American Defenders of Bataan and Corregidor, Inc., Wellsburg, WV;
and Harold G. Maier, professor of law, Vanderbilt University, Nashville, TN.. 28

ALPHABETICAL LIST AND MATERIALS SUBMITTED

Bettauer, Ronald J.:

Testimony.................................................... 10

Prepared statement........................................... 14

Bigelow, Frank: Testimony........................................ 31

Bingaman, Hon. Jeff: Testimony................................... 3

Jackfert, Edward: Testimony...................................... 35

Maier, Harold G.:

Testimony.................................................... 38

Prepared statement........................................... 39

Mazer, Maurice: Testimony........................................ 32

Ogden, David W.:

Testimony.................................................... 6

Prepared statement........................................... 8

Poole, Harold W.:

Testimony.................................................... 28

Prepared statement........................................... 29

Tenney, Lester I.: Testimony..................................... 33

APPENDIX

Questions and Answers

Responses to questions of Senator Hatch from:

The Department of Justice.................................... 47

Ronald J. Bettauer........................................... 53

Additional Submissions for the Record

Text of e-mail message to Senator Hatch from Rabbi Abraham Cooper of the Simon Wiesenthal Center, Berlin, Germany, dated June 26,

2000........................................................... 55

Prepared statements of:

Bruce R. Harder, director, National Security and Foreign
Affairs, Veterans of Foreign Wars of the United States..... 55

Linda G. Holmes.............................................. 56

Chalmers Johnson............................................. 59

Prime Minister Tomiichi Murayama, dated Aug. 15, 1995........ 61

Michael D. Ramsey............................................ 61

Paul W. Reuter............................................... 65

John M. Rogers............................................... 67

Joseph A. Violante........................................... 72

Letters to:

Senator Hatch from Edward Jackfert, past national commander,

American Defenders of Bataan & Corregidor, Inc., dated June 20, 2000................................................... 73

Stuart Eizenstat, Deputy Secretary of the U.S. Treasury, from Michael Engelberg, M.D.,
the American Center for Civil Justice, dated June 10, 2000............................... 74

Hiroaki Yano, president, Mitsubishi International Corp., from

Michael Engelberg, M.D., the American Center for Civil

Justice, dated June 13, 2000............................... 74

Hiroshi Noda, Kawasaki Heavy Industries U.S.A.), Inc.,
from Michael Engelberg, M.D., the American Center for Civil Justice, dated June 13, 2000............................... 75

Senator Hatch from Michael M. Honda, California State Legislature, dated June 30, 2000........................... 75

Senator Hatch from Gilbert M. Hair, executive director, the Center for Internee Rights, Inc., dated June 22, 2000...... 76

Chart: Information on U.S. POW's held in World War II.... 78

Senator Hatch from John E. Julian, first selectman, Office of Selectman, State of Connecticut............................ 79

Senator Hatch from John F. Sommers, Jr., executive director, the American Legion, dated June 27, 2000................... 79

Senator Hatch from Charles L. Taylor, AMVETS national commander, dated June 26, 2000............................. 80

Senator Hatch from Bob Weygand, Member of Congress, House of Representatives, dated June 23, 2000....................... 80

Senator Hatch from Frank G. Wickersham, III, national legislative director,
Military Order of the Purple Heart, dated June 23, 2000........................................ 81

FORMER U.S. WORLD WAR II POW'S:

A STRUGGLE FOR JUSTICE

----------

WEDNESDAY, JUNE 28, 2000

U.S. Senate,

Committee on the Judiciary,

Washington, DC.

The committee met, pursuant to notice, at 10:33 a.m., in room SD-226, Dirksen Senate Office Building, Hon. Orrin G. Hatch (chairman of the committee) presiding.

Also present: Senators Grassley, Sessions, and Feinstein.

OPENING STATEMENT OF HON. ORRIN G. HATCH, A U.S. SENATOR FROM THE STATE OF UTAH

The Chairman. I am pleased today to welcome a distinguished group of witnesses to enlighten the committee on a very important issue, namely the struggle for compensation of American POW's once held and forced into labor by and for private Japanese companies.

I apologize for starting this hearing half an hour too late, but we had two votes right in a row and that takes precedence over everything else. So I apologize to you.

On April 9, 1942, Allied forces in the Philippines surrendered Bataan to the Japanese. Ten to twelve thousand American soldiers were forced to march some 60 miles in broiling heat, in a deadly trek known as the Bataan Death March. Following a lengthy internment under horrific conditions, thousands of POW's were shipped to Japan in the holds of freighters known as hell ships. Once in Japan, many of these POW's were forced into slave labor for private Japanese steel mills and other private companies until the end of the war. During the war, over 27,465 Americans were captured and interned by the Japanese. Only 16,000 of them made it home.

Let me say at the outset that this is not a dispute with the Japanese people and these are not claims against the Japanese Government. Rather, this is a hearing, the purpose of which is to determine whether those who profited from the slave labor of American POW's have an obligation to remedy their wrongs, and whether the United States can help to facilitate a resolution.

Let me also say to the veterans who are here today on behalf of this committee, the Congress, and the American people, we thank you. As has often been expressed, POW's experience a wide range of emotions concerning their captivity. I am here to tell you today that you are all heroes. You are heroes for your bravery on the battlefields and, of course, in the prison camps themselves, heroes for the innumerable displays of compassion and love for your fellow men, heroes for your perseverance through circumstances most of us can barely imagine. You are living testaments to the indomitable human spirit that is the fabric of this great Nation, the United States of America, and everyone here living in freedom owes you a tremendous debt of gratitude.

Unfortunately, global, political, and security needs of the time often overshadowed your legitimate claims for justice, and you were once again asked to sacrifice for your country. Following the end of the war, for example, our Government allegedly instructed many of the POW's held by Japan not to discuss their experiences and treatment. Some were even asked to sign nondisclosure agreements. Consequently, many Americans remain unaware of the atrocities that took place and the suffering our POW's endured.

Through the years, various efforts have been made to offer some compensation for POW's held in Japan. Under the War Claims Act, our Government has made meager payments of $1.00 a day for missed meals and $1.50 per day for lost wages. Clearly, in the eyes of most, this is inadequate.

Following the passage of a California statute extending the statute of limitations for World War II claims until 2010, and the recent litigation involving victims of the Holocaust, a new effort is underway by the former POW's in Japan to seek compensation from the private companies which profited from their slave labor.

One issue for the committee to examine is whether the POW's held in Japan are receiving an appropriate level of advocacy from the U.S. Government. In the Holocaust litigation, the United States played a facilitating role in the discussions between German companies and their victims. The Justice Department also declined to file a Statement of Interest in the litigation, even when requested by the court. The efforts of the administration were entirely appropriate and the settlement was an invaluable step toward movement forward from the past.

Here, in contrast, there has been no effort by our Government, through the State Department or otherwise, to open a dialog between the Japanese and the former POW's. Moreover, in response to a request from the court, the Justice Department did, in fact, file a Statement of Interest which was very damaging to the claims of the POW's, stating in essence that their claims were barred by the 1951 Peace Treaty with Japan and the War Claims Act.

This contrasting treatment raises the legitimate questions of whether this administration has a consistent policy governing whether and how to weigh in during these World War II-era cases. What, if any, are the criteria used to decide whether or not to intervene? Have those criteria been fairly applied in this case?

From a moral perspective, the claims of those forced into labor by private German companies and private Japanese companies appear to be of similar merit. Yet, they have spurred different responses from the administration. Why? There may be legitimate reasons for the differences, but we need to ask the questions.

The Statement of Interest filed by the Justice Department in the lawsuits against Japanese companies also raises a number of questions because of its silence concerning a number of important treaty provisions and concepts of international law. The committee has a duty to ensure the thoroughness of the work the Justice Department submits to the court, and we will explore some of those issues here today.

Our first panel of witnesses will address these questions to the administration. We are pleased to have representatives from the Departments of Justice and State. We are then fortunate to have the benefit of hearing from a number of POW's themselves who can tell us of their experiences and their struggles for recognition and compensation from the private companies that held them.

In the end, I hope we can elevate the discussion concerning where we go from here. I am not sure agreement on this issue will be easy. What can the United States of America, the country these men sacrificed for, do to resolve these matters in a fair and appropriate manner?

Here in the Senate, we are doing what we can. With the help of Senator Feinstein, we have moved through the Judiciary Committee Senate bill 1902, the Japanese Records Disclosure Act, which would set up a commission to declassify thousands of Japanese Imperial Army records held by the U.S. Government, after appropriate screening for sensitive national security information and the like.

The Senate is also doing what it can to fulfill our Government's responsibility to these men by including a provision in the DOD authorization bill which would pay a $20,000 gratuity to POW's from Bataan and Corregidor who were forced into labor. Such payment would be in addition to any other payments these veterans may receive under law, and thus would not compromise any of the claims asserted in the litigation against the Japanese companies.

Ultimately, I do not know where we will come out on the precise meaning of the treaty. Regardless of how the technical legal issues are resolved, which the courts will determine in light of the moral imperative and interests of simple fairness, we must ask ourselves can Congress do more? Can the executive branch do more? I am open to ideas and hope that this hearing begins a dialog to discuss what can be done in light of all the moral, legal, national security, and foreign policy interests which are at play.

We are delighted to have one of our colleagues here today from New Mexico, Senator Bingaman, and we will turn to him for his testimony at this time. However, I may interrupt at any time if the ranking member comes and cares to make a statement himself.

So, Senator Bingaman, we will take your statement at this time. I understand that the Honorable Max Cleland may be here shortly. If he comes, we will certainly take his statement along with yours.

STATEMENT OF HON. JEFF BINGAMAN, A U.S. SENATOR FROM THE STATE OF NEW MEXICO

Senator Bingaman. Thank you very much, Mr. Chairman. I will just take a very small amount of time here from the committee to speak specifically about S. 1806, which is a bill I introduced and you referred to. It is now included in the defense authorization bill.

We introduced this last October, with Senators Coverdell and Domenici and Hollings and Cleland as cosponsors with me on the bill. It would provide an honorarium of $20,000 to qualified veterans or their surviving spouses, and by ``qualified'' I mean those who were made to perform slave labor to support the Japanese war effort.

I introduced the bill for a variety of reasons. You went through many of those in your opening statement. Clearly, these veterans were not adequately recognized and compensated for their contributions. Part of the settlement between the United States and the Government of Japan provided for compensation to American prisoners of war in 1952. That settlement, however, never compensated American prisoners who were made to perform slave labor while they were in captivity.

We sure are well aware, many of our veterans, many survivors of the Bataan and Corregidor episodes were shipped on so-called death ships to Japan and worked in shipyards, mines, and factories to support the Japanese war effort. Some of those ships unfortunately were actually sunk by our own forces, who were unaware that they had human cargo of Americans on board.

This came to my attention, frankly, because a good friend of mine, Nick Cintas, who is a former prisoner of war, a Bataan veteran who lives in my town of Silver City, called it to my attention a year or so ago. He pointed out then that he didn't think our Government was doing what it should. In particular, he pointed to the fact that the Government of Canada had recently approved a honorarium to Canadian prisoners of war from Hong Kong who were enslaved by the Japanese, and that award did not prejudice in any way other attempts to obtain compensation. Instead, it was an expression of support and appreciation by the Canadian Government. We then put together this legislation that I have referred to, with the clear view that we should do at least as well by our veterans, our Bataan and Corregidor veterans, as the Canadian Government had done.

Clearly, the heroism of these individuals is well documented. There is no question that this is a worthwhile effort to compensate them for this slave labor that was performed. I wanted to particularly just call the committee's attention to this legislation as we continue to work on the defense authorization bill on the Senate floor, and solicit active support of any additional Senators who are anxious to support this.

I think it would mean a great deal to those who are surviving, and there are fewer who are surviving each day. I know that there are a great many Bataan veterans who came from New Mexico, and the number who still survive is dwindling each month. So it is very important that we pass this legislation and that we do so this year.

I commend the committee for having this hearing, and I hope that in addition to this legislation, you can find some other ways to be of assistance.

The Chairman. Well, thank you, Senator Bingaman. We appreciate you being here and appreciate you taking time out of your valuable schedule. Thank you.

I notice that Senator Feinstein is here. Would you care to make opening remarks on behalf of the minority?

STATEMENT OF HON. DIANNE FEINSTEIN, A U.S. SENATOR FROM THE STATE OF CALIFORNIA

Senator Feinstein. Just very quickly, if I might, Mr. Chairman, let me begin by thanking you for holding this hearing. I am particularly pleased that a constituent of mine, Dr. Lester Tenney, was able to come before the committee today and share his experiences.

As many of my colleagues know, Dr. Tenney has written a book detailing the brutality experienced by Americans at the hands of the Japanese Imperial Army and private Japanese companies that ran labor camps. I would like to commend him not only for enduring these conditions while held captive in Japan, but also for preserving a historical record from which future generations can learn.

Mr. Chairman, the veterans who have joined us today are all Americans who have served in Bataan and performed slave labor in Japanese mines, shipyards, and factories. As prisoners of war, they were subject to deprivation of liberty, to beatings, to starvation, and to other atrocities. Their endurance through all this symbolizes the sacrifice of all of the brave men who served during World War II.

I am hopeful that measures such as the bill I have introduced, the Japanese Imperial Army Disclosure Act, will assist in bringing to full disclosure evidence of use of chemical and biological agents, as well as atrocities that individuals have faced.

I think it is important that these classified records be released much as the German classified Holocaust-related records have been released. And I think by airing the light of day on much of this, we will be able to put this very terrible chapter behind us.

I thank you, Mr. Chairman. I look forward to the testimony.

The Chairman. Well, thank you so much, Senator.

Our first panel--now, if Senator Cleland comes, we will interrupt this panel, but on the first panel we are pleased to have Acting Assistant Attorney General for the Civil Division of the Department of Justice, David Ogden. Mr. Ogden supervised the preparation and filing of the Statement of Interest which has been filed in the POW litigation.

Deputy legal adviser at the State Department, Ronald Bettauer, also worked on the Statement of Interest, and advised Under Secretary of State Thomas Pickering on the legal issues involved. We did invite Under Secretary Pickering to appear himself to help explain the policy of when the State Department decides to intervene in these types of claims. We understand that he was the decisionmaker at the State Department on whether to file something in this case.

Unfortunately, he declined our invitation. I think he has made a mistake. We will hear from him on this matter because he cannot avoid accountability on this matter, so I would like you to send that message back to the State Department. We believe it is incumbent on something as important as this that people come.

So we are pleased to have the two of you here, and we will take your statement first, Mr. Ogden.

PANEL CONSISTING OF DAVID W. OGDEN, ACTING ASSISTANT ATTORNEY GENERAL,
CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE, WASHINGTON, DC;

AND RONALD J. BETTAUER, DEPUTY LEGAL ADVISER, DEPARTMENT OF STATE, WASHINGTON, DC

STATEMENT OF DAVID W. OGDEN

Mr. Ogden. Mr. Chairman, Senator Feinstein, members of the committee, I appreciate very much the opportunity to appear before you to provide additional information concerning the United States' Statement of Interest in Heimbuch v. Ishihara Sangyo Kaisha Ltd., a case brought by American prisoners of war of the Japanese against Japanese companies.

Based upon the chairman's letter to the Attorney General and my own discussions with committee staff, I understand that the chairman is seeking to ensure that the Department is applying consistent policy in its treatment of various World War II-related and prisoner of war-related matters, and in particular to assure that the Justice Department fulfilled its professional obligations and based its filing in Heimbuch on sound, thorough legal and historical analysis. I welcome the opportunity to address those questions, and as I will explain, I believe the Department has been both consistent and diligent in its representation of the United States in this matter.

Before turning directly to these questions, however, I would like to make some preliminary and somewhat personal observations. First, I consider it a singular privilege to represent the United States in our courts, and recognize that this privilege carries substantial obligations. Foremost among these, of course, is the attorney's responsibility to his client, to represent the United States' interests faithfully and diligently, consistent with the law.

Counsel for the United States is also an officer of the court and a servant of the American people. As such, there is a particularly strong obligation tohelp the courts correctly apply the law and to do justice in matters affecting the interests of the United States. As acting head of the Civil Division, I have been blessed to have the support of a dedicated and talented group of career attorneys who day in and day out meet those high standards and help me to do so.

I have also found that, on occasion, the faithful performance of these duties can be personally painful. That has been certainly true in the Heimbuch case. I have a profound respect for and feel a deep personal indebtedness to the plaintiffs in this case. They and other great Americans like them endured the most brutal of conditions in the service of this Nation, as you said, Mr. Chairman, and their efforts and suffering were crucial to safeguarding our freedom at a very dark hour. I have not relished the responsibility of submitting legal papers on behalf of this Nation that have opposed their legal claims against entities that they allege abused them and benefited from their enslavement during the war.

Let me turn now to the specifics of the case. In a March 24, 2000, order in Heimbuch, U.S. District Judge Alsup, of the Northern District of California, requested that the United States express its views on whether Federal law governs any claims by American soldiers captured and imprisoned by Japan during World War II where such claims are directed to private Japanese companies for whom such soldiers were forced to work as slaves, and whether removal of such claims from State court to Federal court is proper.

On May 23, 2000, the Department of Justice, on behalf of the United States, filed a Statement of Interest with respect to those issues, as you have said, Mr. Chairman, and expressed the position that such claims are governed by Federal law and should be heard in Federal court.

This conclusion was based on the 1951 Peace Treaty between the United States and Japan, in which the United States expressly waived its own claims and those of its nationals against Japan and its nationals arising from prosecution of the war. The United States has not been asked to provide, and has not purported to provide, its views with respect to any other aspects of those cases.

Under 28 U.S.C. section 517, the Department of Justice's role is to represent the positions and policies of the United States in litigation matters. The Department of Justice, as you undoubtedly know, tries to be as responsive as possible to judicial requests for the views of the United States in cases that affect the interests of the United States.

When we receive such a request, such as the one in Heimbuch, we communicate immediately with the appropriate client agency to determine what the appropriate response should be. In this case, the Justice Department acted at the request of the Department of State, which, of course, is the Agency responsible for conducting the foreign relations of the United States, including interpreting treaties to which the United States is a party.

The State Department asked the Justice Department to file a brief in response to the court's request in Heimbuch advising the court that the 1951 Peace Treaty preempted any State law claims and required that the matter be heard in Federal court. Our attorneys reviewed the State Department's request carefully and thoroughly, and worked closely with the lawyers in State's Legal Adviser's Office, including Mr. Bettauer, to research the issues and to present the court with a statement responsive to its inquiry that represented the legal and policy position of the United States.

As you will see from the written answers that we have provided to your questions, Mr. Chairman, it is clear from the language of the 1951 Treaty and the materials surrounding its negotiation and ratification by the Senate that the United States intended to waive its claims and those of its nationals against Japan and its nationals.

As I have said, we admire and sympathize with these valiant men who were prisoners of war, and condemn the wartime policies of Japan and its industry that forced them into servitude. But in 1951, President Truman and the U.S. Senate made a carefully considered national decision that our interests would best be served by a peace settlement that resolved all potential claims. For that reason, it was the strong view of the Department of State that the United States, having made this solemn commitment in a treaty, must honor that obligation. The Statement of Interest was filed in that spirit.

Now, I know that the chairman is also concerned that, in contrast to Heimbuch, as you said, Mr. Chairman, the United States did not file a statement of interest in Gross v. Volkswagen and Rosenfeld v. Volkswagen, litigation in the District of New Jersey involving the claims of individuals who were allegedly enslaved by German entities during the war.

In a letter we have attached to our answers to the committee's questions, I advised U.S. District Judge John W. Bissell that negotiations between representatives of the plaintiffs--that is, representatives of the victims there--and representatives of Germany and German industry were ongoing at that time over the creation of a German foundation to compensate victims, and that those negotiations were then at a very delicate stage.

As I explained, as a result, we are reluctant to take action now that might interfere with achieving this objective, an achievement we believe the court would welcome. The Department also agreed to update the court at that time on the progress of talks and perhaps to provide the Department's views, if that would be appropriate.

Thus, the Government's decision not to submit its views to Judge Bissell was done in an effort to facilitate a consensual settlement of the case that might make resolution of the legal issues unnecessary and provide relief to many victims. The decision not to file a brief in Gross and Rosenfeld was made based upon the recommendation of the Department of State, which has been leading the effort that you described, Mr. Chairman, by the U.S. Government to facilitate such a resolution.

The State Department's responsibility is to determine the policy interests of the United States in this regard, and after extensive discussion the Department of Justice deferred to its policy views with respect to declining to file a statement of interest on the grounds I have described.

I hope that these remarks and the written answers that we have provided to the committee's inquiries are helpful. I would be glad to respond to any questions the committee may have.

[The prepared statement of Mr. Ogden follows:]

Prepared Statement of David W. Ogden

Mr. Chairman and Members of the Committee: I appreciate the opportunity to appear before you to provide additional information concerning the United States' Statement of Interest in Heimbuch, et al. v. Ishihara Sangyo Kaisha, Ltd. et al., a case brought by American prisoners of war of the Japanese against Japanese companies. Based upon the Chairman's letter to the Attorney General and my own discussions with Committee staff, I understand that the Chairman is seeking to ensure that the Justice Department is applying a consistent policy in its treatment of various World War II-related and prisoner of war-related matters, and in particular to assure that the Justice Department fulfilled its professional obligations and based its filing in Heimbuch on a sound, thorough legal and historical analysis. As I will explain, I believe the Department has been both consistent and diligent in its representation of the United States in this matter.

Before turning directly to these questions, I would like to make some preliminary and somewhat personal observations. First, I consider it a singular privilege to represent the United States in our courts, and recognize that this privilege carries substantial obligations. Foremost among these, of course, is the attorney's responsibility to his client--to represent the United States' interests faithfully and diligently consistent with the law. Counsel for the United States is also an officer of the Court, and a servant of the American people. As such, there is a particularly strong obligation to help the courts correctly apply the law and do justice in matters affecting the interests of the United States. As acting head of the Civil Division, I have been blessed to have the support of a dedicated and talented group of career attorneys who, day in and day out, meet those high standards and help me to do so.

I have also found that, on occasion, the faithful performance of these duties can be personally painful. That has been true in the Heimbuch case. I have profound respect for, and feel deep personal indebtedness to, the plaintiffs in this case. They, and other great Americans like them, endured the most brutal of conditions in the service of this Nation, and their efforts and suffering were crucial to safeguarding our freedom at a very dark hour. I have not relished the responsibility of submitting legal papers on behalf of this Nation that have opposed their legal claims against entities that, they allege, abused them and benefitted from their enslavement during the War.

Let me turn now to the specifics of the case. In a March 24, 2000 Order in Heimbuch, United States District Judge Alsup of the Northern District of California requested that the United States express its views on whether federal law governs any claims by American soldiers captured and imprisoned by Japan during World War II, where such claims are directed to private Japanese companies for whom such soldiers were forced to work as slaves, and whether removal of such claims to federal court is proper. On May 23, 2000, the Department of Justice, on behalf of the United States, filed a Statement of Interest with respect to those issues, and expressed the position that such claims are governed by federal law and should be heard in federal court. This conclusion was based on the 1951 peace treaty between the United States and Japan, in which the United States expressly waived its own claims, and those of its nationals, against Japan and its nationals, arising from the prosecution of the War. The United States has not been asked to provide, and has not purported to provide, its views with respect to any other aspects of those claims.

Under 28 U.S.C. 517, the Department of Justice's role is to represent the positions and policies of the United States in litigation matters. The Department of Justice, as you will undoubtedly understand, tries to be as responsive as possible to judicial requests for the views of the United States in cases in which there is a federal interest. When we receive a request such as the one in Heimbuch, we communicate with the client agency to determine what the appropriate response should be. In this case, the Justice Department acted at the request of the Department of State, which, of course, is the agency responsible for conducting the foreign relations of the United States, including interpreting treaties to which the United States is a party. The State Department asked the Justice Department to file a brief in response to the Court's request in Heimbuch, advising the Court that the 1951 peace treaty preempted any state law claims and required that the matter be heard in federal court.

Our attorneys reviewed the State Department's request carefully and thoroughly and worked closely with lawyers in State's Legal Adviser's office to research the issues and to present the court with a statement responsive to its inquiry that represented the legal and policy views of the United States. As you will see from the Department's written answers to the questions you submitted, it is clear from the language of the 1951 peace treaty and the materials surrounding its negotiation and ratification that the United States intended to waive its claims and those of its nationals against Japan and its nationals. As I have said, we admire and sympathize with these valiant men who were prisoners of war, and condemn the wartime policies of Japan and its industry that forced them into servitude. But in 1951, President Truman and the United States Senate made a carefully considered, national decision that our interests would best be served by a peace settlement that resolved all potential legal claims. For that reason, it was the strong view of the Department of State that, the United States having made this solemn commitment in a treaty, it must honor its obligation. The Statement of Interest was filed in that spirit.

I know that the Chairman is also concerned that, in contrast to the filing in Heimbuch, the United States did not file a Statement of Interest in Gross v. Volkswagen and Rosenfeld v. Volkswagen, litigation in the District of New Jersey involving the claims of individuals who were allegedly enslaved by German entities during the War. In a letter we have attached to our answers to the Committee's questions, I advised United States District Judge John W. Bissell that negotiations between representatives of the plaintiffs and representatives of Germany and German industry were ongoing over creation of a German foundation to compensate victims, and that those negotiations were then at a ``very delicate'' stage. As I explained, ``as a result, we are reluctant to take action now that might interfere with achieving that objective, an achievement we believe the court would welcome.'' The Department also agreed to update the Court on the progress of the talks and ``perhaps suggest a further schedule'' for providing the United States' views. Thus, the government's decision not to submit its views to Judge Bissell was done in an effort to facilitate a consensual settlement of the case that might make resolution of the legal issues unnecessary.

The decision not to file a brief in Gross and Rosenfeld was made based upon the recommendation of the Department of State, which has been leading an effort by the United States government to facilitate such a resolution. Its responsibility is to determine the policy interests of the United States in this regard, and the Department of Justice deferred to its policy views with respect to declining to file a Statement of Interest in the district court.I hope that these remarks, and the written answers we have provided to the Committee's inquiries, are helpful. I would be glad to respond to any questions the Committee may have.

The Chairman. Thank you, Mr. Ogden.

Mr. Bettauer.

STATEMENT OF RONALD J. BETTAUER

Mr. Bettauer. Thank you very much, Mr. Chairman, Senator Feinstein. Good morning. I also appreciate the opportunity to appear before you today. I am a Deputy Legal Adviser at the Department of State and have been directly involved in both the German slave and forced labor negotiations, and the development of our position on the class action lawsuits that have been brought by former POW's against Japanese private companies in California State court.

Let me begin by expressing the administration's and my own personal sympathy to the victims of Japanese wartime aggression and our deep gratitude for those veterans who bravely served our country in the Pacific theater during World War II. We and the American people owe these veterans a great debt.

I intend to address briefly the 1951 Treaty of Peace with Japan and why the State Department asked the Department of Justice to file a Statement of Interest in favor of removal of the lawsuits to Federal court.

Article 14(b) of the 1951 Treaty of Peace with Japan provides that: except as otherwise provided in the * * * Treaty, the Allied powers waive all reparations claims of the Allied powers, other claims of the Allied powers and their nationals, arising out of any action taken by Japan and its nationals in the course of the prosecution of the war.

The Chairman. Is that the language you are basically relying on, then?

Mr. Bettauer. That is the basic language, yes.

The Chairman. But how can the Government waive the rights of individuals?

Mr. Bettauer. Well, I will talk a little bit about how this occurred.

The Chairman. I shouldn't have interrupted you. I can see how the Government can waive its rights. I can see how it can enter into a treaty. I can see how it can do all of that. But what bothers me is how can it, without the consent of the individual citizens, waive the rights of individual citizens who have been mistreated.

Mr. Bettauer. The Government has had the power to address the claims and settle the claims against foreign nations of citizens for some 200 years under our system, going all the way back, I believe, to the Jay Treaties. There are many cases, including Belmont, Dames and Moore, which have upheld the espousal power of the United States to take up the claims of the citizens and to settle them against----

The Chairman. That is right, if they actually take up the claims of the citizens and actually settle them for the benefit of the citizens. And I could see where that would apply, but here it seems to me they have just ignored the claims of the citizens, other than the $1.50 a day.

Mr. Bettauer. Well, I think you have to look at what the treaty intended to accomplish as a whole.

The Chairman. Yes, but I looked at the treaty and I don't see the language in there that forecloses individual suits for reparations. That is where I am having some difficulty. I am not trying to give you a rough time. I just want to----

Mr. Bettauer. This treaty by its terms settles all war-related claims of the United States----

The Chairman. So what? So what?

Mr. Bettauer [continuing]. And its nationals, and precludes the possibility of taking----

The Chairman. You mean our Federal Government can just say, to hell with you Bataan death marchers and you people who were mistreated, we are just going to waive all your rights because we have the almighty power to do so?

Mr. Bettauer. There was a decision made in the 1950's----

The Chairman. I don't care about the decision. I am saying, can the Federal Government do that?

Mr. Bettauer. Yes, I think the Federal Government can do that.

The Chairman. Actually take away their rights without giving them a chance to be heard?

Mr. Bettauer. That is, I think, an established authority of the Federal Government.

The Chairman. I don't believe that. I mean, I know that you are sincere in expressing that, but I can't believe that under our Constitution that that is going to be upheld.

Mr. Bettauer. I would suggest that it has been upheld many times.

The Chairman. All right, I will listen further.

Mr. Bettauer. As I said, the treaty then settles the claims, in our view, and we think this reading of the treaty is in accord with the basic principle of treaty interpretation in the 1969 Vienna Convention on the Law of Treaties that a treaty shall be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.

The Chairman. Yes, but, look, Mr. Bettauer, I think there is a distinction between individual claims arising under domestic law versus international law.

Mr. Bettauer. The treaty language says all claims of the powers and other claims of the powers and of their nationals arising out of any actions taken by Japan and its nationals. It is not limited to claims under----

The Chairman. Constitutionally, can our Government take away the rights of individual citizens just because they have put it in a treaty, put language in a treaty? Can you cite a case in point, absolutely in point on that issue? Just give me a case.

Mr. Bettauer. There is a good review of the previous authorities by the Supreme Court in Dames and Moore v. Reagan. This is the case that upheld the Algiers Accords, which was the agreement by which the U.S. hostages in Iran were released. At that time, we had an agreement that took the claims of those hostages out of U.S. courts and sent them to a tribunal in The Hague, and which took some of the claims, the claims of the people who had actually been hostage--we took claims of Americans against Iran and sent them to our tribunal. But the claims of the hostages themselves were extinguished, and there was litigation about that, too, and that was upheld as well.

The Chairman. Upheld by whom?

Mr. Bettauer. The U.S. courts.

The Chairman. I don't think this case has been really tried. I don't think it has been tested. If there is a private right of action, isn't that property under the fifth amendment? If so, taking that property requires just compensation.

Mr. Bettauer. Let me go on to how we got there.

The Chairman. Sure; now, if I could just interrupt you again, I have to shuttle between the Finance Committee and here because there is a very important markup going on. So if I have to leave, I am going to ask you, Senator Feinstein, or if there is a Republican here, fine, but if not, I am going to ask you to continue this hearing. Both Senator Feinstein and I have, I think, very similar interests in this and want to get to the bottom of it and see what can be done here.

But continue, Mr. Bettauer.

Mr. Bettauer. OK; the fact that the treaty waived all claims is unambiguously supported by the negotiating history of the treaty, by the broad security objectives of the U.S. Government at the time, and by the extensive, often excruciatingly painful deliberations that preceded the treaty's advice and consent by the Senate. The Senate considered these issues.

The overarching intent of those who negotiated, signed, and ultimately ratified the treaty was to bring about a complete global settlement of all war-related claims, in order both to provide compensation to the victims of the war and to rebuild Japan's economy and convert Japan into a strong U.S. ally.

It was recognized at the time that those goals could not have been served had the treaty left open the possibility of continued, open-ended legal liability of Japanese industry for its wartime actions. In this regard, the negotiators and the U.S. Senate were extremely sensitive to the calamitous results of the continuing debts that had been imposed on Germany by the Treaty of Versailles.

Another provision of the treaty, article 19(a), similarly closed off the possibility of claims being brought by Japanese nationals against the United States or its nationals arising out of both the war and the subsequent occupation of Japan.

Our longstanding position is not one that we have reached casually or lightly. We have thoroughly examined all of the legal arguments that have been advanced, and have undertaken an exhaustive amount of historical research. Although we sympathize with those who have brought the lawsuits and acknowledged that they have suffered great injuries in the service of their country, we are convinced that the treaty precludes these lawsuits and that we have no legal basis upon which to approach Japan or its nationals for additional compensation for war claims.

Our decision to ask the Justice Department to file a Statement of Interest, which was specifically solicited by a Federal district court, was based not only on our concern for upholding our international legal obligations, but also upon the fact that the treaty is a duly ratified international agreement of the United States that is therefore the supreme law of the land.

The treaty was approved by the U.S. Senate by a strong two-thirds majority on March 20, 1952, and subsequently ratified by President Truman. The records of the hearings of the U.S. Senate and the U.S. Senate Foreign Relations Committee indicate that the Senate was well aware that article 14(b) settled all war-related claims. In fact, the Senate heard testimony from several members of the public who were not pleased with this provision. The Senate gave its advice and consent by a vote of 66 to 10, without inserting a single reservation pertaining to war claims or article 14(b) in its resolution of ratification.

Let me emphasize that the Senate's action occurred shortly after termination of the hostilities when the horrific wounds of World War II were still fresh, emotions still raw, and the memories of the war's innumerable tragedies still vivid.

A large part of the treaty was devoted to the issue of reparations. The scheme of the treaty was that each state party would compensate its own nationals for their injuries, either out of confiscated Japanese public and private assets or otherwise. To this end, the United States confiscated approximately $90 million worth of assets owned by the Japanese Government and Japanese private nationals, including companies, and used the proceeds to satisfy the monetary claims of U.S. nationals who were victims of Japanese aggression.

Congress passed an amendment to the War Claims Act of 1948 to create a new war claims program that would award American war victims, including slave and forced laborers, amounts to be determined by a war claims commission using the proceeds of liquefied Japanese assets. Congress, through its approval of the treaty and amendment of the War Claims Act, created an

exclusive Federal remedy for all American victims of the war.

Thus, when the United States filed its Statement of Interest on May 23, outlining why these lawsuits belong in Federal court, we did so not only because of our international obligations and our foreign policy concerns, but because we believe our stance is true to the intent of the U.S. Congress that approved the ratification of the treaty and created a comprehensive war claims program. It is consistent with the broad, bipartisan consensus that existed in all branches of Government in 1952 that this treaty was in the overall best interests of the American people and that reparations provisions were fair and reasonable.

For nearly 50 years, the treaty has sustained our security interests and supported peace and stability throughout East Asia. We believe the treaty leaves no sound legal basis for theUnited States or its nationals to seek further monetary recovery against Japanese corporations, and that the treaty remains the supreme law of the land.

Thank you, Madam Chairman.

[The prepared statement of Mr. Bettauer follows:]

Prepared Statement of Ronald J. Bettauer

Mr. Chairman and Members of the Committee: Good morning. My name is Ronald Bettauer. I am a Deputy Legal Adviser at the U.S. Department of State. I have been directly involved in both the German forced labor/slave labor negotiations and the development of our position on the class action lawsuits that have been brought by former POW's against Japanese private companies in California state courts. Let me begin by expressing the Administration's and my own personal sympathy to the victims of Japanese wartime aggression, and our gratitude for those veterans who bravely served our country in the Pacific theater during World War II. We, and the American people, owe these gentlemen a great debt.

I intend to address briefly the 1951 Treaty of Peace with Japan, and why the State Department asked the Department of Justice to file a Statement of Interest in favor of removal of the lawsuits to federal court.

The 1951 the Treaty of Peace with Japan settles all war-related claims of the U.S. and its nationals, and precludes the possibility oftaking legal action in United States domestic courts to obtain additional compensation for war victims from Japan or its nationals--including Japanese commercial enterprises. Article 14(b) of the Treaty provides that, ``[e]xcept as otherwise provided in the * * * Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war * * * '' This position is in accord with basic principles of treaty interpretation as set forth in the 1969 Vienna Convention on the Law of Treaties, i.e., ``[a] treaty shall be interpreted in good faith, in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in light of its object and purpose.''

This is clear and unequivocal language: all reparations claims against Japan and its nationals. This language is unambiguously supported by the negotiating history of the Treaty, and by the broad security objectives the U.S. Government hoped to achieve with the Treaty, and, most important for present purposes, by the extensive, often excruciatingly painful deliberations that preceded the Senate's advice and consent to ratification of the treaty.

The overarching intent of those who negotiated, signed, and ultimately ratified this Treaty was to bring about a complete, global, settlement of all war-related claims, in order both to provide compensation to the victims of the war and to rebuild Japan's economy and convert Japan into a strong U.S. ally. It was recognized at the time that those goals could not have been served had the Treaty left open the possibility of continued, open-ended legal liability of Japanese industry for its wartime actions. In this regard, the negotiators and the U.S. Senate were extremely sensitive to the calamitous results of the continuing debts that had been imposed on Germany in the Treaty of Versailles. Another provision of the Treaty, Article 19(a), similarly closed off the possibility of claims being brought by Japanese nationals against the United States or its nationals arising out of both the war and the subsequent occupation of Japan.

Our longstanding position is not one that we have reached casually or lightly. We have thoroughly examined all of the legal arguments that have been advanced by the parties to these lawsuits, and we have undertaken an exhaustive amount of historical research. We have also discussed the issue with one of the direct participants in the negotiations. Although we sympathize with the plaintiffs and acknowledge that they suffered great injuries in the service of their country, we are convinced that the Treaty precludes these lawsuits, and that we have no legal basis upon which to approach Japan and its nationals for additional compensation for war claims.

Our decision to ask the Justice Department to file a Statement of Interest, which was specifically solicited by the federal district court, was based not only on our concern for upholding our international legal obligations, but also upon the fact that this Treaty is a duly ratified international agreement of the United States that is, therefore, the supreme law of the land. This Treaty was approved by the U.S. Senate by a strong two-thirds majority on March 20, 1952, and subsequently ratified by President Truman.

The records of the hearings of the U.S. Senate, and the U.S. Senate Foreign Relations Committee, indicate that the Senate was well aware that Article 14(b) settled all war-related claims, and in fact, heard testimony from several members of the public who were not pleased with that provision. The Senate gave its advice and consent by a vote of 66 to 10, without inserting a single reservation pertaining to war claims or Article 14(b) in its resolution of advice and consent. Let me emphasize, particularly, that the Senate's action occurred only shortly after the termination of hostilities, when the horrific wounds of World War II were still fresh, emotions still raw, and the memories of the war's innumerable tragedies still vivid.

A very large part of the Treaty was devoted to the issue of reparations. The scheme of the Treaty was that each state party would compensate its own nationals for their injuries, either out of confiscated Japanese public and private assets, or otherwise. To this end, the United States confiscated approximately 90 million dollars' worth of assets owned by Japan and Japanese private nationals (including Japanese companies), and used the proceeds to satisfy the monetary claims of U.S. nationals who were victims of Japanese aggression. The U.S. Congress amended the War Claims Act of 1948 to create new war claims programs that would award American war victims, including slave/forced laborers, in amounts to be determined by a War Claims Commission, using the proceeds of liquidated Japanese assets. We believe that Congress, through its approval of the Treaty and the amendment of the War Claims Act, intended to create an exclusive federal remedy for all American victims of the war.

Thus, when the United States filed its Statement of Interest on May 23 outlining why these lawsuits belong in federal court, we did so not only because of our international obligations or our foreign policy concerns, but because we believe our stance is true to the intent of the U.S. Congress that approved the ratification of this Treaty and created a comprehensive war claims compensation program. It is consistent with the broad, bipartisan consensus that existed in all branches of government in 1952, that this Treaty was in the overall best interests of the American people and that the reparations provisions were fair and reasonable.

For nearly 50 years, this Treaty has sustained our security interests and supported peace and stability throughout East Asia. We believe that the Treaty leaves no sound legal basis for the United States or its nationals to seek further monetary recovery against Japanese corporations, and that the Treaty remains the supreme law of the land.

Senator Feinstein. Thank you very much.

Senator Sessions [presiding]. Are you prepared to go forward?

Senator Feinstein. I am prepared.

Senator Sessions. Senator Feinstein?

Senator Feinstein. Thank you very much, both gentlemen. Let me read article 14(b), if I might: Except as otherwise provided in the present Treaty, the Allied powers waive all reparations claims of the Allied powers, other claims of the Allied powers and their nationals, arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war, and claims of all powers for direct military costs of occupation.Now, I think, Mr. Bettauer, you referred to that article, and let me just read the most-favored-nations clause of article 26:

Should Japan make a peace settlement or war claims settlement with any state, granting that state greater advantages than those provided by the present Treaty, those same advantages shall be extended to the parties to the present Treaty.

Now, my question then is, Has Japan provided more favorable terms to other nations in connection with settlements of war claims than you now assert were provided in the 1951 treaty?

Mr. Bettauer. If I may start by focusing on article 26 for a second, that provision we do not regard really as providing a most-favored-nation-type scheme. John Foster Dulles, who personally drafted this treaty, included article 27----

Senator Feinstein. Twenty-six.

Mr. Bettauer. Twenty-six, excuse me, and said that the purpose of the provision was, and I am quoting one of his documents, ``for the protection of Japan so that if other countries should make demands upon Japan, Japan would have a basis of resisting by pointing to'' that provision. That was a key goal because the idea was to pull Japan away from the Communist bloc. Dulles designed the provision to deter the Japanese from dealing on favorable terms with the Soviet Union specifically with regard to its territorial demands.

So the only time that Dulles raised article 26 was in 1956, when Japan and the Soviet Union were negotiating a peace settlement. Dulles made a public statement to the effect that if Japan recognized the Soviet territorial claims of sovereignty, article 26 might open the way for the United States to claim comparable benefits.

He explained publicly that he had exerted article 26 ``for the very purpose of trying to prevent the Soviet Union from getting more favorable treatment than the United States got,'' and that he simply wanted to remind Japan of its existence.

Dulles then met with the Japanese Ambassador to discuss the difficulties Japan was having in the negotiations and stated that the United States had no intention of making territorial demands itself, but simply to give Japan an argument with the Russians. So the contemporaneous construction of article 26 and practice under article 26 suggests that it was not really an MFN provision in the sense of comparing peace settlements dollar for dollar.

In any event, while certain types of treaties may traditionally contain MFN provisions--and these can be investment treaties and tariff treaties--this is not so with peace treaties. Peace treaties are so complex and entail so many different types of obligations that there is really no way of measuring whether, on an overall basis, one is more advantageous than the other.

Senator Feinstein. Could I stop you just for one moment?

Mr. Bettauer. Yes.

Senator Feinstein. You didn't really answer my question. My question is, Has Japan provided more favorable treatment to other nations?

Mr. Bettauer. There are a number of other treaties that Japan has with other nations, because this was a multilateral peace treaty and Japan was encouraged to conclude peace treaties with those who weren't party to it. And there are some claim provisions in some of those peace treaties, but looking at----

Senator Feinstein. That are more favorable?

Mr. Bettauer. No; it is impossible to say because you have to know what the claims of the other countries were, what the counterclaims of Japan were, what the other provisions of the peace treaties were that bear on it. And I don't think we are in a position that we can conclude any of those is more favorable.

The Chairman. Well, if I could interrupt, in article 26, it seems to me the terms of article 26 appear unconditional and automatic. What they say is, Should Japan make a peace settlement of war claims settlement with any state granting that state greater advantage than those provided by the present treaty, those same advantages shall--not ``may,'' ``could,'' ``would''--but shall be extended to the parties to the present treaty?

Mr. Bettauer. Well, as I just explained, the purpose of article 26 was to provide a counterweight to Soviet territorial demands.

The Chairman. Fine; then why shouldn't the claims of these American POW's enjoy the same treatment as claims by forced laborers from Burma, the Soviet Union, the Netherlands and elsewhere, all states that were granted greater advantages within the meaning of article 26?

Mr. Bettauer. Well, I don't think we have concluded, Senator, that they have been granted greater advantages.

The Chairman. I don't see how you can help but conclude that they were granted.

Mr. Bettauer. In addition, we were involved in and facilitated the negotiations of many of those treaties, not all of them. But, for example, we encouraged the Burma treaty negotiation. We pressed Japan to do that, and we never raised an article 26 concern at the time. It would be too late now, 40 years later, to seek to renegotiate the benefits we received under the peace treaty because of something that we assisted Japan in doing back then.

Senator Feinstein. Then what was the rationale behind article 26?

Mr. Bettauer. I have just tried to explain that, Senator.

Senator Feinstein. But it doesn't seem to me to make sense.

Mr. Bettauer. We have gone through the historical documents.

Senator Feinstein. You say to wean Japan away from the Communist bloc, but I don't quite see how this relates to weaning Japan away from the Communist bloc.

Mr. Bettauer. The two documents that are contemporaneous that deal with article 26 are a press statement by Dulles and a memorandum of a conversation that he had about the article. In both of those documents, Dulles asserts that the purpose of article 26 is to provide Japan a counterweight to territorial demands.

The language, I know, is broader than that, but after 40 years, it is too late to raise article 26 issues with Japan, particularly since we were aware contemporaneously of all the agreements that were under negotiation at the time, and indeed facilitated the negotiation of some of them.

The Chairman. Let me ask you a few questions. Has the State Department met with representatives of the Japanese companies at issue here or with the Japanese Government concerning this matter, or with both, and if so, when and how often?

Mr. Bettauer. I am not aware of whether we have met with representatives of the Japanese companies. We can get that information for you for the record.

The Chairman. Will you get that for us? OK.

[The information referred to appears in the Appendix, Questions and Answers section.]

Mr. Bettauer. I know that the State Department meets with representatives of the Japanese Government frequently, and I have been in some meetings.

The Chairman. On these issues?

Mr. Bettauer. They are interested and they have asked about this issue.

The Chairman. How many times has the State Department met with Mr. Poole or Mr. Bigelow, Mr. Mazer or Mr. Tenney or their lawyers?

Mr. Bettauer. Some of their lawyers are former colleagues of mine from the State Department, so I have met with them many times.

The Chairman. I am talking about to discuss these matters.

Mr. Bettauer. I don't recall that any of their lawyers have requested a meeting with me to discuss these matters. I do not know if they have met with others in the Legal Adviser's Office, and we can supply that information for the record, if you like.

The Chairman. Well, if you would, I appreciate it.

[The information referred to appears in the Appendix, Questions and Answers section.]

The Chairman. Now, I have to say under article 26, the United States again is entitled to the same terms of future treaties Japan may enter into which contain more favorable disposition of claims than the 1951 treaty. And I repeat again that the terms of article 26 appear unconditional and automatic:

Should Japan make a peace settlement or war claims settlement with any state granting that state greateradvantage than those provided by the present treaty, those same advantages shall be extended to the parties to the present treaty.

This language clearly states that the terms should be extended, no ifs, ands, or buts. So why shouldn't the claims of these American POW's get the same treatment, or at least enjoy equal treatment, as claims by forced laborers from Burma who received money from Japan? As I understand it, Japan excluded claims with the Soviet Union arising before August 1945, and there may be other matters that could be interpreted more favorably than apparently the State Department is willing to interpret right now.

Mr. Bettauer. Well, as far as I know, the Burma settlement with Japan states that Burma will supply by way of reparations----

The Chairman. Japan will supply.

Mr. Bettauer. Japan will supply Burma by way of reparations the services of Japanese people and products, the value of which will be on the average equivalent to--it says essentially $20 million for a period of 10 years. And Japan also took every measure to facilitate economic cooperation.

Now, I am not sure that $20 million worth of services of Japanese people was something equivalent to $90 million actual at the time we got it, nor am I aware that that was something we would have wished, the United States would have wished at the time. Burma was a developing country at the time and it had been devastated by the war.

Japan's settlement with Burma was brought about, as I have just said, with the encouragement of Dulles. In September 1954, he informed the National Security Council that ``The big problem economically for Japan was the question of reparations, particularly with the Philippines, Indonesia, and Burma.''

He added that he told Premier Yoshida to ``try to accept a reasonable solution, such as the recent Burmese offer which appeared to be a reasonable proposal.'' At the time, the U.S. Government was trying to support Burma. The substantial aid package that came with the Burma-Japan settlement relieved the U.S. taxpayer of a substantial financial burden that would otherwise have been borne. This was an advantage to us. So it is very hard to conclude that the Burma settlement would provide a basis for us now to go back to Japan.

The Chairman. Well, I have to say that it is wonderful that we received some benefits because we didn't have to pay, but the fact of the matter is that the treaty says:

Therefore, Japan agrees, subject to such detailed terms as may be agreed upon, to supply the Union of Burma by way of reparations with the services of Japanese people and products of Japan, the value of which would be on an annual average 7,200 million yen, equivalent to 20 million United States American dollars, for the period of 10 years. Japan agrees, subject to such detailed terms as may be agreed upon, to take every possible measure to facilitate economic cooperation wherein the services of Japanese people and the products of Japan, the value of which will aggregate on an annual average 1,800 million yen, equivalent to 5 million United States American dollars, will be made available to the government or people of the union of Burma for the period of 10 years, and also agrees to reexamine at the time of the final settlement of reparations toward all other claimant countries the Union of Burma's claim for just and equitable treatment in the light of the results of such settlement, as well as the economic capacity of Japan to bear the overall burden of reparations.

Then the next paragraph: The Union of Burma shall have the right to seize, retain, liquidate, or otherwise dispose of all property rights and interests of Japan and Japanese nationals, including juridical persons, which on the coming into force of this treaty were subject to its jurisdiction.

Well, it seems to me that we can go back to one of my original questions, and that is how can our Government take away the rights of individual citizens to sue individual companies, not the Government of Japan, but individual companies in Japan, for reparations for having been mistreated and having been forced into slave labor? What is the justification? I mean, where is the legal justification?

Show me a case that says that these veterans have no right to go against the Japanese companies that exploited them and abused them and made them slave laborers. This isn't against the Government.

Mr. Bettauer. No, no; I have mentioned some cases, and I think we are at a point where we differ on this.

The Chairman. Well, I don't know of a case in point that says that they have no right to sue those companies.

Mr. Bettauer. The case in point for this actual treaty is currently being litigated, but the precedent is out there saying that the United States has the ability to espouse and settle claims. And we have done so multiple times over the last 200 years, often with benefits, and here there are some. Although one would always like to see more benefits, there are some benefits for former veterans.

I mean, in the postwar period there are probably 15 or 20 times that we have done agreements with foreign countries and settled claims of U.S. nationals, whether they have liked it or not. So this is a well-established authority and it has been upheld by the courts, and I am sure you will see some of that in the papers that we have filed.

The Chairman. Well, let me turn to Senator Sessions for any questions he might have.

Senator Sessions. Thank you, Mr. Chairman. If I were sitting in an appellate court, I believe I would rule with you on this legal debate.

The Chairman. Well, now, that is a pleasant thought, I will tell you.

Senator Sessions. I was about to ask Mr. Ogden here if he would rule with you, too, just as a third party. It does seem to me that there is an opportunity for those to make these claims and it is not precluded by the plain language of the statute.

I have a friend who survived the Bataan Death March. He has shared some of the horrors with me. He speaks occasionally still in schools around the State of Alabama, and it was a very bad thing. It should not have happened.

Let me ask, Mr. Bettauer, do you conclude--and I suppose it is the State Department that would say this--do you conclude that the treatment, let's just say specifically in Japan of slave labor, violated the Geneva Accords, the Geneva agreement?

Mr. Bettauer. My impression is that it did and that there were war crimes committed. I am aware that there were war crimes trials after the war and Japanese nationals were held accountable and executed for their violations of the law of war, and indeed that this treaty, the Peace Treaty, compels Japan to abide by the war crimes decisions that were made.

Senator Sessions. With regard to our compensation of Japanese-American citizens that were held against our American sense of justice, that incarceration was upheld by the courts, was it not?

Mr. Bettauer. You mean the----

Senator Sessions. Internment in the United States of Japanese-American citizens.

Mr. Bettauer. I believe so, but I am not an expert on that.

Senator Sessions. Well, I guess my point is we have made compensation to them even though it appears that courts have held that it was a legal act. Would you agree, Mr. Ogden, that it was upheld as a legal act?

Mr. Ogden. Yes, Senator Sessions, that is my understanding.

Senator Sessions. Has there been any effort by the State Department to encourage Japan to compensate these citizens who were treated so badly even though there may be a dispute about whether they are legally compelled to do so?

Mr. Bettauer. The agreement settles the claims, Senator. And we may have a disagreement about the details of the agreement, but we have researched it thoroughly and we have gone through the hearings that were held by the Senate Foreign Relations Committee at the time of the agreement and it seems abundantly clear that there was even discussion of this issue, some concern expressed about it, but the decision to settle and resolve all the claims.

Senator Sessions. Well, I would say this, frankly. Settling up after a war is not an easy thing.

Mr. Bettauer. Right.

Senator Sessions. People have to give and take and reach an agreement that is going to bind forever. And nobody can anticipate completely what kinds of claims might occur in the future, and we are probably in the long run better off following the agreement than trying to get around the agreement.

Certainly, our partnership with Japan has been a great thing for America, and I believe the world. Their economic growth has been good, but my question is could they not be urged in the light of their economic progress and strength, whether they are legally required or not, to consider compensating these people who suffered.

Mr. Bettauer. Well, I mean it is possible to urge, but our treaty commitment and the object and purpose of the treaty was to resolve these claims. And it would be trying to find a back door to go around the treaty commitment to say, look, we know we agreed with you that we have resolved and settled all these claims, and yet you should pay some more anyway. That is not in keeping with a good-faith abidance by the treaty terms.

The Chairman. We are not asking the Government to pay. We are asking the companies that did the acts to pay, and to pay individual American citizens who were abused and mistreated and forced into slave labor. Some of these companies are multi-billion-dollar companies today which might not be multi-billion-dollar companies today had it not been for forced labor during that period of time. That is the difference.

I would like the State Department to go back and reassess this because I think your arguments are ridiculous. You are clearly a very bright man and you clearly have been sent up here as a sacrificial lamb, it seems to me. I mean, I don't know how in the world you can come in here and make these arguments like this. Now, if you can show me where the Federal Government has a right to just strip people of rights against individual private companies that abuse them, that is another matter, but I haven't seen anything, nor do I believe there is anything that exists. And, Mr. Ogden, I think you ought to reassess this because your opinion is very broad, way too broad, and frankly it is just not right.

Look, I am just a poor little country lawyer here, but I want you both to go back and I want Mr. Pickering to reassess this. I mean, this is ridiculous. Especially in light of what is happening in Europe, I mean this is absolutely ridiculous. Your opinions, in my opinion, are not accurate. I am trying to be nice.

Senator Sessions. Mr. Chairman, thank you for having this hearing and for raising these issues. They are unpleasant, but I hope not damaging to our relationship with Japan, but a part of a healing process where we can recognize the bad things that did happen and we can confront them in this modern age. In the long run, I am confident it will make us stronger. Thank you.

The Chairman. Well, thank you. Senator Grassley, we will go to you, but you had a comment you wanted to make, Mr. Ogden, before I turn to Senator Grassley.

Mr. Ogden. Thank you, Mr. Chairman. What I wanted to say was that I appreciated your remarks, and I certainly will go back and take another look at the----

The Chairman. I really want you to do this. Our Japanese friends realize this was a terrible set of situations. I mean, these companies are not poverty-stricken companies; it is not going to bankrupt them. They really ought to, out of good faith, reassess this situation. And I think the Justice Department ought to reassess it, and certainly the State Department lawyers ought to reassess this because I think any interpretation of constitutional law flies in the face of what you are arguing here today.

Now, I appreciate your position and I don't mean to pick on you unduly, but I do intend to pick on you some more.

Mr. Bettauer. But I would say that we do take our guidance on constitutional law issues from the Justice Department.

The Chairman. Oh, that is good. Now, we know who is the real culprit here. [Laughter.]

Mr. Bettauer. They talk to us about treaty interpretation issues, you see, so we cooperate.

The Chairman. I understand. You are doing the best you can, but it is not good enough. I think you ought to go reassess this, I really do. Let me turn to Senator Grassley.

STATEMENT OF HON. CHARLES E. GRASSLEY, A U.S. SENATOR FROM THE STATE OF IOWA

Senator Grassley. Well, first of all, I apologize to the panel for not being here for your testimony because I, as Senator Hatch, had to be for a short period of time in markup of the marriage penalty bill down the hall in the Finance Committee. But I do feel that in the little time I have been here, Senator Hatch has laid out very strongly the position that I hold, and I thank him for doing it.

I would just simply relate that even though there are just a small number of these people affected that live in my State of Iowa--I understand that we have 33 living former POW's of Japan, 18 POW widows or next of kin, 7 civilian internees, and 1 civilian internee widow--it is still very important that we make sure that justice is done.

These individuals obviously support these hearings because they want to see that the United States turns the same scrutiny on Japan as we did on Germany. I believe I am in agreement with that position even as forcefully as it was expressed by Senator Hatch that you review our policy. And I believe that this committee does a great service, then, for the people that we owe so much to in World War II, particularly those that suffered the most by being prisoners, that we would through this committee try to redirect U.S. policy in regard to this matter and see what we can do to make sure it is consistent.

I think the issue has already been discussed and so I will not be asking any questions. However, I will make a statement that I think we need to review our policies; that when we send letters in opposition to the position of some victims of World War II, those who were slave labor victims in Japan, but not do that in the case of slave labor victims in Germany, that we do not appear to have a consistent policy. It seems blatantly unfair, and not something that makes the American Government look good to its citizens. And I am not sure that it even sends a very clear signal about our leadership in the world community of nations, about the moral leadership that we ought to have.

Thank you, Mr. Chairman.

The Chairman. Thank you, Senator. Senator Feinstein has another question.

Senator Feinstein. Thank you, Mr. Chairman. I would like to introduce for the record a statement by Senator Leahy.

The Chairman. Without objection, we will place that in the record.

[The prepared statement of Senator Leahy follows:]

Prepared Statement of Senator Patrick Leahy, a U.S. Senator From the State of Vermont

I would like to begin my remarks by thanking all of our witnesses for coming today, especially those of you who were taken prisoner during the Second World War. All Americans should honor your sacrifice, and should be made aware of the inhuman conditions you were forced to endure. For that reason alone, I think it is valuable that we have this hearing today.

I am very sympathetic to the claims being advanced by the former prisoners of war appearing before us today. They were treated with utter contempt and in violation of the laws of war. Having said that, I am aware that the litigation raises complex issues involving our foreign policy powers and obligations that our courts are in the process of resolving. As such, it would be inappropriate for me or for this Committee to prejudge the merits of those legal issues. So I will simply say that you have my sympathy and my attention.

I do fear that the majority's concern about this litigation does not extend to litigation brought by other Americans looking to redress wrongs through our States' civil justice systems. We hold this hearing in the midst of our Committee's consideration of the so-called Class Action Fairness Act, which would drastically reduce plaintiffs' access to State courts, instead forcing them into federal court. It is therefore somewhat surprising that the majority has called representatives of the Justice and State Departments here this morning to answer for their legal opinion that the plaintiffs in these prisoner of war lawsuits belong not in State courts but in federal court.

I also find it somewhat ironic that we are holding this hearing so soon after the majority fought so hard against the nomination of Judge Richard Paez to the Ninth Circuit Court of Appeals. The U.S. Chamber of Commerce, one of Judge Paez's most influential detractors, based its opposition to Judge Paez solely on a preliminary ruling he authored in the case of John Doe I v. Unocal. In that ruling, Judge Paez merely turned down Unocal's motion to dismiss a case brought against it based on its activities in Burma, a notorious abuser of human rights. Even this early ruling--which still left open the possibility that Unocal would win summary judgment in the case--was seen as too ``anti-business'' and ``pro-human rights'' by the same majority that today holds this hearing to show support for the litigation brought by plaintiffs protesting human rights abuses by Japanese corporations.

As legitimate as these concerns are, however, I do not believe that they should overshadow the testimony and the experiences of the witnesses who are here before us today. I simply hope that we show consistent solicitude for others who seek access to our courts.

Senator Feinstein. Let me see if I understand this. If I understand this, Mr. Bettauer, you were saying that John Foster Dulles apparently made some agreement that there would be no prosecution of individual claims. You say that that is binding. Now, that may be a policy matter that was handled at the time.

When Senator Hatch asked you about a case in point, you said, well, the case in point is being litigated at the present time. From that, I would deduce that the legal question has not been finally resolved as to whether this treaty can, in fact, prevent any American from exercising their right to litigate for damages.

Mr. Bettauer. If I may, I was trying to say that these individual claims are currently being adjudicated. So if you ask for something exactly on point, you don't have a decision.

Senator Feinstein. Right.

Mr. Bettauer. But there is ample authority for the proposition that the executive branch or the President may espouse and settle claims of U.S. nationals, and the treaty does that and it became U.S. law. It is not just done as a policy matter, but it was given advice and consent and ratified, and therefore has become part of the law of the United States.

There were hearings on this exact issue before the Senate Foreign Relations Committee at the time, and there was a back-and-forth about whether this was a desirable thing to do. And the committee at the time and the Senate at the time decided to do that, and therefore the treaty was ratified.

The Chairman. But isn't it true, Mr. Bettauer, that as a matter of law nation states do not own the claims of their nationals arising under domestic law? Consequently, how could the United States ``waive'' domestic law claims that it did not own? In other words, isn't the better reading that the United States waived the claims it owned, namely only the international claims of its own citizens, not the individual claims of the citizens?

Mr. Bettauer. The treaty says claims against--it says other claims of their nationals arising out of any action taken by Japan and its nationals.

The Chairman. I agree it has that language, but----

Mr. Bettauer. It doesn't limit it to claims arising under one or another system of law. When claims have an international character, there is precedent. And I mentioned when we normalized with the Soviet Union back in 1933, it generated a series of cases that said that the United States may take and settle claims, and they are very famous cases. This was all reviewed in the case that I mentioned concerning the Iran hostage crisis. So it is not something that is new.

The Chairman. I am aware of settling claims against countries. What I am talking about is settling claims against companies, not countries.

Senator Feinstein. But if I understand what he is saying, he is saying that because the treaty has this language and this language was discussed by the Foreign Relations Committee of the Senate, and yet the treaty was adopted by the Senate, that therefore it absolves any further claims.

The Chairman. Yes, that is what he is saying.

Mr. Bettauer. It becomes part of U.S. law, yes. The treaty, under the U.S. Constitution, is the supreme law of the land, along with statutes.

The Chairman. That is right, and it doesn't say anything about private claims against private companies brought by individual citizens who have a right to bring them.

Mr. Bettauer. Yes, it does, Senator.

The Chairman. Yes? Point it out to me.

Mr. Bettauer. I think we are going in circles because I think you----

The Chairman. Well, let me do this. I would like the both of you to reassess this. I would like you to assist the committee more because I don't see that. I see how you are interpreting it in a broad way. I think, Mr. Ogden, your legal interpretation is too broad, but I would like you to reassess this.

I also think that it is important for you to meet with the representatives of these individual claimants. I think, in all fairness, you should meet with the representatives of the POW's.

Mr. Ogden. Mr. Chairman, we would certainly welcome the opportunity to do that. We always are willing to meet with litigants in matters of this nature, and in this case that would be particularly so. We would be pleased to do that.

I think on the question of the meaning of the treaty, at your suggestion, we will go back and take another look. I will say that we have not taken this lightly to this point and have put an enormous amount of work in.

The Chairman. But you have taken a broad-brush interpretation, but in a very narrow way.

Mr. Ogden. Our view, having looked at the history and reviewed the language, is that it was the intent of the United States in the treaty to waive national-against-national claims.

The Chairman. I don't doubt that, but that doesn't waive individual rights. That is the problem.

Mr. Ogden. You have raised, I think, a further point today, which is the question whether, if the United States has done that, it was a constitutional act. At least that is what I hear your question being, whether it was a taking of property without just compensation under the fifth amendment.

That is a separate issue. It has to do with whether there would be claims against the United States arising out of the operation of the treaty. I think I will go back and take a look at that.

The Chairman. It is more than just possible claims against the United States. It is that if those are property rights, then the United States cannot waive them. In other words, these people still have the right to bring them, and again not against the Government of Japan, which the treaty supersedes--the treaty is the highest law of the land--but against the individual companies that exploited these people.

Well, you have both agreed to reassess and go back and give us the benefit of your wisdom. You are both very bright people. I believe you are both very good men, and I would like to have you reassess this and I would like Mr. Pickering to reassess this. And I think he ought to come when we invite him next time. I hope you will send that message to him. We have been friends for a long time, but when the Judiciary Committee wants witnesses from the State Department, we want them here. And unless they have a good excuse, we don't think they just stiff the committee.

Senator Sessions. Mr. Chairman, would he also respond to the chairman's inquiry about other nations, that escape valve clause and why that wouldn't apply?

The Chairman. Well, that is right.

Senator Sessions. If Burma gets special privileges, why not American citizens? I would like you to address that question, also.

The Chairman. Well, that is all part of this, and that is a very good point that you are making.

Mr. Ogden. Would you like me to address it now, or are you asking us to go back and do it?

The Chairman. We would like you, in your reassessment, to take that into consideration that individual Burmese were compensated, and in that particular case, I believe, by the treaty and by the government. Under 26, it seems to me that opens the door for our POW's as well.

But we will look forward to getting more advice and counsel from you, OK?

Mr. Bettauer. Yes.

The Chairman. All right. Well, thank you so much. We appreciate both of you being here.

Mr. Ogden. Thank you.

The Chairman. I am very pleased to now introduce the witnesses on our second panel. We are very fortunate to have a distinguished group of former POW's, as well as Prof. Harold Maier from the Vanderbilt School of Law.

Let me say that our panel of POW's is representative. In preparing for these hearings, we have heard from many remarkable individuals--former POW's, family members, scholars and activists who work on veterans issues. The men before us today are representatives of all the POW's, their families, and those who have struggled on their behalf. I know we have a number of former POW's and family members in the audience, some of whom traveled great distances to be here today, and we deeply appreciate your presence here today.

Let me introduce the panel. Mr. Harold Poole is from Salt Lake City, UT, and served in the 20th Pursuit Squadron of the Army Air Corps in the Philippines. Mr. Poole earned a Silver Star for valor in combat during the intense fighting that broke out after Pearl Harbor. Following his capture and survival of the Bataan Death March, Mr. Poole was shipped to Japan and forced into labor for Nippon Steel.

Frank Bigelow currently resides in Brooksville, FL. He is a Navy veteran who once served aboard the U.S.S. Arizona. After being transferred to the Philippines, he was eventually captured by the Japanese in May 1942. Mr. Bigelow survived the horrific journey to Japan aboard the hell ships and was eventually taken to Omuta Camp 17, where he was forced to work in a coal mine operated by the Mitsui Mining Co. Beaten and tortured, Mr. Bigelow eventually lost a leg from the dangerous conditions of the mine.

Maurice ``Mo'' Mazer now hails from Boca Raton, FL. After surviving the Bataan Death March, Mr. Mazer was shipped to Japan and forced to labor for Mitsubishi in copper and smelter mines. He has been active in veterans organizations and is a former Commander of the American Defenders of Bataan and Corregidor.

Dr. Lester Tenney is a retired professor from Arizona State and San Diego State Universities. In 1941, he joined the Illinois National Guard and was sent to the Philippines, where he was eventually captured. Dr. Tenney was also forced into labor in the coal mines of Japan. He has written a fascinating book of his experiences entitled ``My Hitch in Hell,'' which is an inspiring account of the indomitable human spirit. It demonstrates how these remarkable men pulled together and helped each other make it through their ordeal. I highly recommend it to all of you.

Ed Jackfert is the National Commander of the American Defenders of Bataan and Corregidor, a national veterans organization devoted to the men who served there. Mr. Jackfert is a veteran of the Army Air Corps and is himself a former POW held by the Japanese.