PART II

The Chairman. Thank you, Mr. Tenney.

Mr. Mazer.

Mr. Mazer. The only thing I want out of this is justice. We are having our laws in the United States, and we who fought and came back sick, and some are still sick, we want someone to tell us why it happened, why we didn't get the help that we should have had. But I have nothing against the Japanese people. This is Mitsubishi. They took me and they harmed me, and I would like to see that they pay for that.

The Chairman. Well, thank you, Mr. Mazer.

Mr. Jackfert.

Mr. Jackfert. Senator, we all know that we live in the greatest country in the world. There is no doubt about that, but we were all professional soldiers. We willingly would have died for our country and freedom. Freedom is what it is all about. That is why we are here.

And as far as justice goes, I think that perhaps in our country we have the greatest jury system in the world. Let a jury decide what justice is for us. It is not money; it is what we went through. Hopefully, perhaps someday the people of the United States will realize--our story has never really been told. You have heard these veterans here tell you about what they went through, but they cannot tell you what they went through. You had to be there; you had to feel the cold, the bugs, all this. This is a part of what we went through. It is impossible.

So it is not money, it is justice, and that is all we seek. We want these companies that are responsible for making us slave laborers responsible for what we went through.

The Chairman. Thank you, Mr. Jackfert.

Professor Maier, we do have a number of legal questions we would like to ask, but in the interests of time I think it is best to submit those to you in writing and make your responses part of the formal record here.

Mr. Maier. Thank you very much, Senator.

The Chairman. Your responses will be very important to us, so we would like those back as soon as you can, but we would like them to be as fully stated as possible.

Mr. Maier. I will be glad to do that.

The Chairman. I would like to thank all of the witnesses who have appeared today and all of the organizations and individuals who have submitted statements or materials to be included in the record. Your input has been very valuable; in fact, let me say it has been invaluable.

I want to express my special thanks to the many former POW's and their family members who are here today. Your personal stories and experiences are powerful reminders that freedom is not free. You have paid a heavy price for the liberty that all of us enjoy and take for granted. We are forever in your debt.

I am also pleased that the Judiciary Committee has been able to provide a forum for these important issues to be raised and discussed. Obviously, there are some difficult legal issues to be raised that have been raised. There are difficult legal and diplomatic questions that must be answered and addressed.

We are going to continue to help ensure that your stories are told and that the public becomes educated about this part of history. We will continue to push for the disclosure of records and the information that should rightfully be in the public domain. We also will fight for passage of compensation for you from our Government.

Finally, regardless of how the technical legal issues of the treaty are resolved, which the courts are going to have to determine, we will continue to explore how else this committee and others in Congress might be appropriately helpful. I am open to ideas, and hope that this hearing begins a dialog to discuss what can be done in light of all the moral, legal, national security, and foreign policy interests that are at play in this matter.

Now, to commemorate your appearances here today, I am going to personally have flags flown over the Capitol and sent to your homes, flags just like this one right here. We will send them to your homes, and I would like you to please accept those as a token of the Judiciary Committee's gratitude for your service to our country.

In addition, some of you may have heard that I write music. Well, we just finished our second patriotic CD and it is called ``Heal Our Land.'' Mr. Bigelow, the first CD, which I am going to send to you as well, because of your feelings for the flag, has the song in it ``I Love Old Glory.'' And I presume all of you have similar feelings.

But in this second patriotic CD, I wrote a song for my brother, who was killed in the Second World War in the Plesty Oil Raid, the one that knocked out Hitler's Vienna, Austria, oil fields. He was missing in action for 2 years and then finally they found him and brought him home, so we had to go through it all again.

I also have in there the song that we wrote for John McCain's friend who gathered little bits of cloth and made a flag that they would salute and pledge allegiance to every night that kept them sane. And when they found that he had this flag inside his shirt, the Hanoi soldiers took him outside and beat him within an inch of his life and threw him back in on this cement slab in the middle of the compound all bloody and broken and beaten.

John said they cleaned him up as best they could, and he said that they had four incandescent bulbs on all hours of the day and night so there was always some light in the compound. So what they did is they went to sleep, and for some reason John woke up in the middle of the night and here was Mike Christian, this fellow who had before used a bamboo needle to fashion little bits of cloth into a flag, eyes all puffed up and bloodshot, broken and beaten and bloody, sitting with a bamboo needle starting all over again to make another U.S. flag. You folks understand that. You have been through that. You have suffered for us. You have been willing to give your lives, and to a large degree you have given a large part of your lives for us.

I hope that the Justice Department and the State Department will review this matter. I suggest to our friends in the Government of Japan that they look at this matter carefully because there needs to be some reparation here. I suggest to the people who run these major corporations that are, I think, in every case very successful that they realize they have some responsibilities here, too. I am hopeful that this hearing will move us all down that road, in those directions.

I want you to keep sending materials to us and help us to understand. We will follow these matters with a great deal of interest, and let's hope that much good will come from this hearing. I think already much good has come just because of the testimony that you gentlemen have given here today, because people all over this country are seeing this on C-SPAN and will see it again on C-SPAN, and many of us who lived through those years will recollect what you went through.

And for those who are younger who really don't have much of a recollection at all of the sacrifices that were made so that they could have freedom, this particular hearing, I think, will open their minds and their hearts to realize that there are great human beings who gave their lives for us. There are great human beings who suffered for us, and you are among them and the leaders of those great human beings.

So I am very grateful to have been able to sit through this hearing today. I feel like this has been one of the great hearings that we have had on Capitol Hill in recent years, and I just want to personally thank each and every one of you and all of those of you in the audience for the sacrifices you have made for me, for my family, for our friends, for our neighbors, for our fellow citizens, and really for the whole world, because without you this world would be a very, very different place than it is today. So God bless each and every one of you.

With that, we will recess until further notice.

[Whereupon, at 1:01 p.m., the committee was adjourned.]

Responses of the Department of Justice to Questions From Senator Hatch

Question 1. In connection with the Holocaust Cases, the Department was requested by the court to submit a statement of interest as to whether the private lawsuits were precluded under international law or constitutional principles, but declined, having concluded that these actions were not barred from proceeding. In other words, where its views were consistent with the position of U.S. nationals and contrary to the views of foreign interests, the Department withheld submission of its views. Now, having concluded that its views are contrary to the views of U.S. nationals and consistent with the views of a foreign interests, the Department has submitted its views. Please explain the policy considerations that went into the decision not to submit a statement of interest in the Holocaust Cases while submitting views in these cases.

Answer 1. The premise of this question is incorrect. It is true that the Department of Justice was invited by District Judge John W. Bissell to state the views of the United States concerning the impact of various post-war treaties with Germany on the cases pending before him brought by World War II era slave and forced laborers against German companies. The United States did not, however, as the question posits, decline the court's invitation on the basis of a conclusion ``that these actions were not barred from proceeding.'' The United States has taken no position on the interpretation of the treaties. As we advised Judge Bissell, the negotiations over creation of a German foundation to compensate victims were then at a ``very delicate'' stage, and the United States negotiators were hopeful that the talks could reach fruition shortly. If successful, of course, a settlement would render resolution of the legal issues unnecessary. The Department's letter (copy attached) went on to say that, ``as a result, we are reluctant to take action now that might interfere with achieving that objective, an achievement we believe the court would welcome.'' (Tab 1). The Department also agreed to update the court on the progress of the talks and ``perhaps suggest a further schedule'' for providing the United States' views. These positions were taken at the request of the Department of State, who had the lead in conducting the negotiations in question, and the policy lead for the United States on these issues. Thus, the State Department's judgment that the United States should not submit its views to Judge Bissell was based on a judgment that filing could interfere with negotiations that hold out the hope of payments to slave and forced labor survivors, including perhaps 100,000 or more American citizens. If the final settlement is reached, as the State Department anticipates, these cases will be dismissed voluntarily, obviating the need to resolve the legal issues or for the United States to opine on them.

In contrast, the foreign policy agencies of the United States are not involved in any negotiations concerning the claims of American prisoners of war in Japan, and the decision to file in the Heimbuch case, at the request of and in close consultation with the State Department, stemmed from the United States' obligation to carry out what it believes are clear treaty commitments.' Having waived World War II claims of U.S. nationals against Japanese nationals, in a treaty made by the President with the advice and consent of the Senate almost fifty years ago, the State Department concluded that United States had an obligation to its treaty partner to see that the provisions of that agreement are faithfully executed, and that this required the filing of the Statement of Interest. After careful analysis of the law and posture of the case, the Department of Justice deferred to that judgment.

Question 2. The Statement of Interest asserts, without any analysis or citation of authority, that ``the United States created an exclusive remedy for claims by its nationals against Japan and its nationals arising out of WW II through the Treaty of Peace with Japan and the War Claims Act.'' Please cite any provision of the War Claims Act that precludes causes of action by U.S. nationals against Japanese nationals, or provides that the War Claims Act is an exclusive remedy for any claims by U.S. nationals against Japanese nationals. In addition, please cite and provide any document (including but not limited to negotiating history) or citation to any other contemporaneous authority or precedent that the Treaty clearly, intentionally, and unmistakably excluded or precluded lawsuits by U.S. nationals against Japanese nationals?

Answer 2. There is significant public record material concerning the negotiating and drafting history and Senate ratification of the Treaty of Peace. We discuss this history below and have provided copies of pertinent materials as attachments to these answers.

Article 14(b) of the 1951 Peace Treaty states that, ``[e]xcept as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war.'' 33 U.S.T. 3169 (Tab 2). On its face, Article 14(b) waives not only claims against the Government of Japan, but all claims arising out of the prosecution of the war, whether such claims are based on actions of the Government of Japan or actions of Japanese private nationals. The Peace Treaty defines ``nationals'' to include ``juridical persons,'' and juridical persons includes business corporations. Article 4(a). Nor, by its terms, is the waiver limited to claims that would fall within a strict definition of ``reparations.'' Article 14(b) specifically waives reparations claims of the Allied Powers, and all other war-related claims of the Allied Powers and their nationals.

We think it clear that the treaty means what it says. The contemporaneous documentary record further demonstrates that both the Executive and Legislative Branches understood and intended that all claims, including national-to-national claims, would be waived. As is reflected in the papers of the State Department and the congressional record, both Branches were concerned that imposing heavy burdens on the Japanese economy could result in a weak Japan and, as a result, an expansion of Soviet influence. Thus, in furtherance of critical national security and other interests, the United States and the other Allied Powers sought to achieve a peace that would permit Japan to recover economically, and join Western nations. Waiving reparations and other claims against the Government of Japan and Japanese nationals was intended to advance this policy goal. In 1950, President Truman appointed John Foster Dulles as a special Foreign Policy Adviser to the Secretary of State, and assigned him the specific task of negotiating a multilateral peace treaty with Japan. Dulles fully recognized the possibility that Japan someday would be in a better economic position, and then might be able to afford to pay the legal claims of its countless victims. Nonetheless, in a draft statement he wrote for Secretary of State Acheson to deliver to the President of the Philippines in August 1951, Dulles noted that ``only vigorous effort and industry by the Japanese will enable them to earn enough foreign exchange to import what they need to live in decency.'' Memorandum by the Secretary of State (Acheson) to the President, Washington, August 7, 1951, reprinted in Foreign Relations of the United States 1951, Vol. VI, Asia and the Pacific, at 1245 (1977) (enclosing Draft Proposed Statement to the Philippine Government drafted by Dulles) (Tab 3). Dulles further observed:

This would be impossible if the Treaty kept alive the right of the Allies to demand monetary reparation payments. That would so impair public and private credit as to make essential capital developments impossible and so contract Japanese ability to finance exports and imports as to endanger Japan's survival as a member of the free world. It would destroy Japanese initiative because the Japanese would know that the greater was their exertion the more would be taken from them.It may be argued that no one can predict the future with certainty, and that events not now foreseen might give Japan a future ability to pay monetary reparation. That is true. But it is also true that if an economy is set up so that it must bear all unfavorable developments while deprived of the benefit of all favorable developments, there is lacking the balance needed to produce endeavor and to sustain credit, and disaster occurs which is not limited to the area dealt with.

All of these lessons were taught by the Treaty of Versailles. Under it reparations claims destroyed German credit and will to work. The claims were sought to be enforced by the most determined effort that history records. Certain Allied armies occupied the industrial heart of Germany, they arrested the German industrialists for allegedly sabotaging reparations, and they operated mines and factories for reparation account. But the Treaty and all the efforts to enforce it produced no appreciable reparations, but did create grave divisions as between the principal allies and set in motion inflationary forces, first in Germany, and then on a world-wide scale which many observers believe were largely responsible for the tragic economic collapse which began in 1929 and lasted until World War II. Id.

To ensure that all war claims, brought either by individuals or by governments, would be settled by the Peace Treaty, the United States suggested the addition of the waiver provision that eventually became Article 14(b) of the Peace Treaty. Japanese Peace Treaty: Working Draft and Commentary Prepared in the Department of State, Washington, June 1, 1951, reprinted in Foreign Relations of the United States 1951, Vol. IV, Asia and the Pacific, at 1084 (1977) (Tab 4). The United States justified this suggested addition with the following comment:

The insertion * * * is proposed for the reason that the treaty should settle and dispose of all claims of the Allied Powers and their nationals arising out of the war. If no waiver were provided, some Allied governments or Allied nationals might continue to press such claims against Japan after the coming into force of the treaty. Settlement of claims in the treaty assures that no Allied government or Allied national receives preferential treatment. The language of the waiver follows closely the language of Article 19 in which Japan waives claims against the Allied Powers. Id.\1\

\1\ Article 14(b) and Article 19(a) of the Treaty are not identical. Article 19 does not use the term ``reparations'' at all, instead providing simply that Japan waives all claims of Japan and its nationals arising out of the war. Article 14(b) waives all ``reparations'' claims of the Allied Powers, but then goes on to say that all ``other claims'' of the Allied Powers and their nationals against Japan and its nationals also are waived. Thus, to the extent that there is a legal distinction between ``reparations'' claims of the Allied nations against the defeated nation of Japan and other sorts of claims that might arise out of the prosecution of the war, Article 14(b) explicitly waives both.

The Senate Committee on Foreign Relations (``Committee'') unanimously recommended that the Senate give its advice and consent to ratification of the 1951 Treaty of Peace with Japan. See S. Exec. Rep. No. 82-2, at 4 (1952) (Tab 5). The Senate specifically focused on the wisdom of waiving legal claims. In its recommendation, the Committee warned that requiring payment of reparations and other war-related claims ``in any proportion commensurate with the claims of the injured countries and their nationals'' would be ``contrary to the basic purposes and policy of the free nations, the Allied Powers, and the United States in particular'' in the Far East. Id. at 12. The Committee described Article 14(a) as containing ``the unequivocal provision that Japan should pay reparations to the Allied Powers for the damage and suffering it caused during the War,'' but recognized that, ``[a]t the same time, article 14(b) states that except as otherwise provided, the Allied Powers waive all reparations and claims against Japan.'' Id. In recommending that the Senate give its advice and consent to ratification of the Treaty, including the waiver provisions, the Committee emphasized Japan's willingness otherwise to ``shoulder'' reparations, and the unprecedented magnitude of reparations it had already paid. Id. at 12, 14.

The Committee informed the Senate that the Treaty's ``provisions do not give a direct right of return to individual claimants except in the case of those having property in Japan.'' S. Exec. Rep. No. 82-2, at 13; see also Japanese Peace Treaty and Other Treaties Relating to Security in the Pacific: Hearings Before the Senate Comm. on Foreign Relations, 82nd Cong. 144-45 (1952) (``Committee Hearings'') (the Treaty's waiver provision ``closes'' and ``locks'' the gate on all avenues of recovery) (Tab 6). In fact, the Committee held extensive public hearings in January 1952 on the specific issue of war claims. The records of these hearings confirm that the Senate was aware that all individual claims were being waivedby Article 14(b), and that such claims would be dealt with exclusively through legislation. Committee Hearings at 133-45.

During the hearings, various objections and questions were raised concerning compensation for individual claims and specific objections were made to the waiver of these claims. See, e.g., id. One legislator even attempted to limit the effect of Article 14(b) by proposing a reservation to the Treaty stating that ``nothing contained in this Treaty shall be construed to abrogate the * * * just and proper claims of private citizens of the United States.'' See 98 Cong. Rec. S2365, 2567-71 (1952) (Tab 7). In a memorandum, Adrian S. Fisher, the Legal Adviser for the U.S. Department of State, informed Secretary of State Acheson that this proposed reservation was ``in direct conflict with Article 14(b),'' and that, if this reservation were added to the Treaty during the ratification process, ``a renegotiation of the Treaty Article would unquestionably ensue.'' Memorandum to The Secretary from Mr. Fisher (the Legal Adviser), dated March 19, 1952, at 4 (Tab 8).

In lieu of such a provision, the State Department recommended that Congress adopt the War Claims Commission's suggestion that Congress amend the War Claims Act of 1948 ``to provide for the receipt, adjudication and payment of claims * * * resulting from mistreatment, personal injury, disability, or impairment of health caused by the illegal actions of any enemy government during World War II.'' Committee Hearings at 147. Congress eventually accepted this invitation, and amended the War Claims Act to ``create[] a domestic mechanism for distributing captured Japanese assets,'' which entitled members of the putative class ``to detention benefits for the period of imprisonment in Japan.'' Aldrich v. Mitsui & Co. (USA), Case No. 87-912-Civ-J-12, slip op. at 3 (M.D. Fla. Jan. 20,1988) (citing 50 U.S.C. App. Sec. Sec. 2004 and 2005 (1994)) (Tab 9).

Consistent with this position, the Senate gave its advice and consent to the Treaty on March 20, 1952, by a vote of 66 to 10, without adding a reservation pertaining to war claims in its resolution of advice and consent. See 98 Cong. Rec. S2594 (1952) (Tab 10). Advice and consent was considered and approved as part of a package with three additional security treaties relating to the Pacific region, reflecting the United States' view of the Treaty as an integral part of its political and foreign relations goals in that region. See, e.g., Cong. Rec. S2327, 2361, 2450, 2462 (1952) (Tab 11).

Article 14(b)'s waiver provision did not, however, mean that victims who had claims against the Japanese government and Japanese nationals would not be compensated. A key feature of the Treaty was the system for the payment of war-related claims it established to provide compensation for ``the damage and suffering'' inflicted by Japan and its nationals ``during the war.'' Treaty, Art. 14(a). Private Japanese nationals--primarily corporations--who had property or other assets located outside Japan, paid a heavy price under the 1951 Peace Treaty to satisfy the requirements of this system. The Government of Japan volunteered the use of those assets to satisfy war claims.\2\ Pursuant to that Article and Article 16 of the Treaty, assets located in Allied territory valued at approximately $4 billion were confiscated by Allied governments, and their proceeds distributed to Allied nationals in accordance with domestic legislation. See Comments on British Draft, Memorandum by the Officer in Charge of Economic Affairs in the Office of Northeast Asian Affairs (Hemmendinger) to the Deputy to the Consultant (Allison), April 24, 1951, reprinted in Foreign Relations of the United States 1951, Vol. VI, Asia and the Pacific, at 1016 (1977) (Tab 12). The total value of Japanese-owned assets located in U.S. territory (including the Philippines) was estimated in 1952 to be worth more than $90 million. See Japanese Peace Treaty Negotiations, Feb. 5, 1952, reprinted in Executive Sessions of the Senate Foreign Relations Committee (Historical Series), Vol. IV, 82nd Cong., 2nd Session, 1952, at 121-22 (1976) (Tab 13).

\2\ [E]ach of the Allied Powers shall have the right to seize, retain, liquidate or otherwise dispose of all property, rights and interests of

(a) Japan and Japanese Nationals,

(b) Persons acting for or on behalf of Japan or Japanese Nationals,

(c) Entities owned or controlled by Japan or Japanese nationals. Treaty, Art. 14(a)(2). Following the war, these assets were seized by the Office of Alien Property (an office within the U.S. Department of Justice), liquidated, and the proceeds placed into a War Claims Fund, for ultimate distribution to POWs and other claimants. As Ambassador Dulles explained:

The United States gets, under this treaty, the right to use Japanese assets in this country to satisfy whatever claims Congress feels should be satisfied. We have taken under that provision approximately $90 million of Japanese assets in this country. Approximately $20 million have been used to take care of claims which have been approved by the Congress on behalf of internees, civilian and prisoners of war, and it remains for Congress to decide what it wants to do with the balance. Id. Funds to pay reparations mostly were provided from the confiscation of assets of Japanese businesses, in accordance with United States and Allied policy.\3\

\3\ As an expression of its desire to indemnify those members of the armed forces of the Allied Powers who suffered undue hardships while prisoners of war of Japan, Japan will transfer its assets and those of its nationals * * * for the benefit of former prisoners and their families.'' Treaty, Art. 16 (emphasis added).4

Using these confiscated funds, the Senate Committee on Foreign Relations recognized that it ``is the duty and responsibility of each [Allied] government to provide such compensation for persons under its protection as that government deems fair and equitable, such compensation to be paid out of reparations that may be received from Japan or from other sources.'' S. Exec. Rep. No. 82-2, at 12-13. Following the recommendation of the State Department, Congress amended the War Claims Act of 1948, 50 U.S.C. App. Sec. Sec. 2001-2017 (1994), to afford additional compensation to those taken prisoner of war by the Japanese. 50 U.S.C. App. Sec. 2005(d) (1994).

Originally enacted immediately after the war, the War Claims Act had established a system of compensation for prisoners of war like Plaintiffs and certain other victims of World War II. The Act established a War Claims Commission (now the Foreign Claims Settlement Commission), which initially was authorized to adjudicate claims ``filed by any prisoner of war for compensation'' for specified violations of the Geneva Convention of July 27, 1929, suffered while a prisoner of war, including claims for violations ``relating to labor of prisoners of war.'' 50 U.S.C. App. Sec. 2005 (1994). These claims covered inadequate food, inhumane treatment, and certain types of forced labor. The Act was prompted by Congress' desire ``to facilitate the giving of immediate relief to those American citizens who were imprisoned by the enemy during the war.'' S. Rep. No. 80-1742, at 7 (1948) (Tab 14).

At that time, however, Congress acknowledged that ``the question of war claims * * * is too complex to be approached by the Congress on a piecemeal basis and that the subject in its entirety must be studied thoroughly before any intelligent action can be taken.'' H.R. Rep. No. 80-976, at 4 (1947) (Tab 15). Therefore, Congress charged the Commission with recommending types of claims to be accepted, adopting the procedures for considering claims, and establishing uniform standards for handling such claims. See 50 U.S.C. App. Sec. 2007 (1994); 94 Cong. Rec. H564-69 (1948) (Tab 16). Congress anticipated that the Commission would ensure ``the claims [would] be handled in accordance with priorities, priorities to be established for, we will say, the veterans of Bataan and others who have suffered similarly, as being No. 1 for consideration.'' 94 Cong. Rec. H566 (1948).

Congress rejected a proposal that would have allowed federal courts to adjudicate war compensation claims, because of the complexity of the issues and the need to have the claims ``classified by experts who are qualified so to do'' in order to ``get some rationality out of this situation [and] to determine the categories of claims that should be allowed.'' 94 Cong. Rec. H564 (1948). It is clear that Congress did not want claims within the Commission's jurisdiction to be adjudicated by the courts, because it barred judicial review of the Commission's decisions ``by mandamus or otherwise.'' 50 U.S.C. App. Sec. 2010 (1994).

Question 3. At no point in the Statement of Interest does the Department provide any analysis of the language of Article 14(b) of the Treaty which limits the scope of any waiver to ``actions taken by Japan and its nationals in the course of the prosecution of the war.'' Please explain the meaning of this limitation, and identify and provide all contemporaneous documents upon which the Department relies in that interpretation. Please explain how the failure by private Japanese companies to pay U.S. nationals for commercial labor at commercial-level wages is conduct arising ``in the course of the prosecution of the war.''

Answer 3. Everything known about the drafting of the phrase ``in the course of the prosecution of the war'' indicates that it was intended to have a very broad scope.\4\ The phrase first appeared in a proposed revision to Article 19(a) of the U.S.-U.K. draft of the Treaty. Japanese Peace Treaty: Working Draft and Commentary Prepared in the Department of State, Washington, June 1, 1951, reprinted in Foreign Relations of the United States 1951, Vol. VI, Asia and the Pacific, at 1093-94 (1977) (Tab 4). Article 19(a) is a reciprocal provision to Article 14(b) that waives all claims by Japan and its nationals against the U.S. and its nationals. The revision was proposed by the United Kingdom along with the alternative phrase ``or in the exercise or purported exercise of belligerent rights.'' Id. The United States preferred the language in ``the course of the prosecution of the war'' because it was more comprehensive. Id. The phrase was later inserted into Article 14(b).

\4\ The phrase ``in the course of the prosecution of the war'' is not a specific term of art under the laws of war. We have only found the phrase in one other international agreement, a 1972 agreement, Union of Soviet Socialist Republics Settlement of Lend Lease, Reciprocal Aid and Claims, 23 U.S.T. 2910.

In their complaint, Plaintiffs allege substantial and active participation by the Japanese Government in subjecting American prisoners of war to forced labor. Compl. para. para. 10, 12, 13, 43, 46 (Tab 17). According to the allegations in the complaint, the conduct that forms the basis of Plaintiffs' claims was the direct result of laws and policies toward POWs adopted by the Government of Japan to aid its war effort. Compl. para. para. 10, 12, 13, 41.\5\ Indeed, almost all of the allegations in the complaint deal with the actions of Japan and its policies in prosecuting the war. The allegations of actions taken by Japan and those taken by defendant companies are mingled, and clearly were taken ``in the course of the prosecution of the war.''

\5\ Article 28 of the Geneva Convention of July 27, 1929, provides that ``[t]he detaining Power shall assume entire responsibility for the maintenance, care, treatment and payment of wages of prisoners of war working for the account of private persons.'' 6 U.S.T. 3316 (1929).

The war-time Japanese economy was an integral part of Japan's mobilization for ``total war.'' See John W. Dower, Embracing Defeat: Japan in the Wake of World War II, 529-30 (1999). ``The complexities of mobilizing an industrialized nation for total war required them [the military] to take Japan's other vested interests into partnership. They enlisted the aid of the leaders of big business, whose expertise was crucial in exploiting the resources of the Japanese Empire and in designing and building new weaponry.'' Meirion and Susie Harries, Sheathing the Sword: The Demilitarization of Japan, 4 (1987). By the late 1930s, industry, commerce and finance in Japan were dominated by an interlocking series of monopolistic combines called zaibatsu. Id. at 5. The zaibatsu rose to positions of prominence by collaborating closely with the military. Dower, at 529-30. ``The zaibatsu factories were called upon to provide equipment, their shops to provide transport, their banks for finance, and their overseas branches were useful bases for intelligence-gathering.'' Harries, at 53. The military and zaibatsu cooperated to create an economy devoted to the pursuit of the war, and it is clear from plaintiffs' complaint that the very purpose of pressing prisoners of war into forced labor was to shore up industrial support for this total war effort.

Question 4. Has the Department attempted to determine whether Japan has entered into any war claims settlement or other agreements through which, pursuant to Article 26 of the Treaty, more advantageous terms must be extended to the United States by Japan? Attached are copies of relevant portions of other treaties entered into by Japan. Please explain why the United States should not now invoke the equivalent rights extended to Burma by Japan, particularly in light of the determination of the United Kingdom that that Agreement triggered rights of the Allied Powers under Article 26. Please explain why, in light of Japan's War Claims Agreement with the Soviet Union, the United States should not take the position that Article 14(b) applies only to claims of U.S. nationals arising after August 8, 1945. Please explain why the terms of Japan's War Claims Settlements with other countries which do not require the waiver of claims by nationals or against Japanese nationals should not be extended to the United States by operation of Article 26. Please provide all analyses supporting these views and all documents on which they rely.

Answer 4. Article 26 does not provide any rights to private litigants who may claim that they should have the benefit of a treaty signed by other sovereign nations. There is no private right to invoke Article 26 of the Treaty--only the United States Government has rights under Article 26. ``International treaties are not presumed to create rights that are privately enforceable.'' Goldstar (Panama) S.A. v. United States, 967 F.2d 965, 968 (4th Cir.), cert. denied, 506 U.S. 955 (1992); see also United States v. Li, 206 F.3d 56, 670 (1st Cir. 2000) (en banc) (``treaties do not generally create rights that are privately enforceable in the federal courts''); Tel-Oren v. Libyan Arab Republic, 726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J., concurring) (same), cert. denied, 470 U.S. 1003 (1985); Restatement Sec. 907 comment a (``[international agreements, even those directly benefitting private persons, generally do not create private rights or provide for a private cause of action in domestic courts * * *.''). As the Supreme Court said well over 100 years ago in the Head Money Cases: ``A treaty is primarily a compact between independent nations. It depends for the enforcement of its provisions on the interest and the honor of the governments which are parties to it.'' 112 U.S. 580, 598 (1884). To be sure, the presumption against a private right of action may be overcome where a treaty confers rights on private parties, and the treaty partners intend that those rights be judicially enforceable. See Diggs v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976). But that is not the case here. See id.; cf. Li, 206 F.3d at 63 (noting State Department distinction between a treaty that creates ``state-to-state'' rights and one that creates individual rights).

Only the United States may invoke Article 26 in appropriate circumstances. Whether to invoke the rights embodied in Article 26 is a mixed question of law and diplomatic policy entrusted in the first instance to the Department of State. Article 26 has been mentioned publicly by United States officials only once, to deter the Japanese from granting sovereignty over the Kurile Islands to the Soviet Union. See Secretary Dulles' News Conference of August 28, 1956, Department of State Press Release No. 450 (Tab 18). Absent invocation of Article 26, there is no current basis for altering or construing the Treaty of Peace to conform to the terms of other nations' treaties with Japan.

Question 5. In determining the position that the 1951 Treaty necessarily and unmistakably waived the claims of private U.S. nationals against private Japanese nationals, did the Department make any independent review of the negotiating history? Please explain how the position of the Department is consistent with the exchanges between Japan and the Netherlands, which are attached. Did the Department consult with the Japanese Government regarding public reports (some quoting the Japanese Prime Minister) that the official position of the Japanese Government was that the 1951 Treaty did not waive national versus national claims?

Answer 5. The Department of Justice made an exhaustive review of the drafting and negotiating history of the Treaty prior to submitting the Statement of Interest. We also held appropriate consultations with the Japanese Government and are confident that the official positions of the United States and Japanese Governments as to whether these claims can be brought under the Treaty are consistent. Our answer to question 2, above, reflects our review of the negotiating history.

The exchanges between the Governments of the Netherlands and Japan do not alter the United States' understanding of the treaty. The exchanges between the Governments of the Netherlands and Japan make clear that, under the Treaty of Peace, Dutch nationals would not be able to obtain satisfaction for their claims from Japan or Japanese nationals. The claims of Dutch nationals, as with all other Allied nationals, would continue to exist and could be satisfied through compensation by their own government (similar to what the United States provided through the War Claims Act) or through voluntary agreement by the Japanese government. See Memorandum of Conversation, by the Deputy Director of the Office of British Commonwealth and Northern European Affairs (Satterthwaite), San Francisco, September 4, 1951, reprinted in Foreign Relations of the United States 1951, Vol. VI, Asia and the Pacific, at 1332-33 (1977) (Tab 19).

Question 6. In preparing the Statement of Interest, did the Department (or the State Department) consult with any scholars or experts on international law or treaty interpretation? Did either Department discuss any of the above-mentioned issues with any person involved in the negotiation or contemporaneous application of the 1951 Treaty? In the event of an affirmative answer to either question, please provide the name of such person and any document memorializing the substance of the discussion or consultation.

Answer 6. In preparing the Statement of Interest, the Department of Justice consulted with and relied on the legal and policy expertise of the Department of State. It is the Department of State, not outside scholars and/or experts on international law, that is responsible for the foreign policy of the United States, including the interpretation of its treaties and obligations under international law

Responses of Ronald J. Bettauer to Questions From Senator Hatch

Question 1. Has the Department of State met with Japanese companies to discuss the lawsuits filed by the U.S. POWs?

Answer 1. No, the Department of State never met with the companies. Department of State and Justice attorneys have, however, had telephone conversations with some of the Japanese companies, legal representatives. After the U.S. Government was invited by the District Court to file a Statement of Interest, legal representatives of the companies sent most of their comments, inquiries and correspondence to the Department of Justice.

Question 2. How often has the Department of State met with the plaintiffs (the POWs) or their attorneys?

Answer 2. The Department of State has not met with the plaintiffs. The plaintiffs themselves never initiated contact with the State Department, nor did their legal representatives ever indicate to the Department that their clients wished to meet with State Department officials. The State Department never initiated contact with the plaintiffs, as it would have been unethical (under legal ethics rules) to contact parties directly who are being represented by counsel. Department of State attorneys, however, had a number of telephone conversations with legal representatives for the plaintiffs. These conversations were of a similar nature to the conversations that government attorneys had with defendants' attorneys.

Significantly, however, on February 15, 2000, representatives for the plaintiffs met--at their request--with Deputy Secretary of the Treasury Stuart E. Eizenstat, who was acting in his capacity as the Special Representative of the President and the Secretary of State on Holocaust Issues. Also present at the meeting was a representative from the State Department's East Asian and Pacific Affairs Bureau. At this meeting, plaintiffs' attorneys presented a list of legal points in support of their presentation. Mr. Eizenstat committed to pass these points to Department of State attorneys, and he promptly did so. These points were given serious attention by Department of State and Justice attorneys in their internal deliberations.

After the U.S. Government announced its decision to file its Statement of Intent, legal representatives for the plaintiffs sent most of their comments, inquiries and correspondence to the Department of Justice.

Additional Submissions for the Record

Berlin, Germany, June 26, 2000.

Text of E-mail Message to Senator Hatch From Rabbi Abraham Cooper of the Simon Wiesenthal Center

The Simon Wiesenthal Center applauds the initiative of Senator Orrin Hatch to convene hearings on the ex-POWs of the infamous Bataan Death March of World War II this week under the jurisdiction of the U.S. Senate Judiciary Committee. The great sacrifice, dignity and unselfish heroism of great Americans like Lester Tenney deserve to be remembered by all Americans for all time. However, the full scope of their suffering was never fully understood by the American people, nor fully dealt with by our government. On the eve of Independence Day, July 4th, it is only right therefore, that the Committee fully explore all of the historic issues surrounding the plight of these former POWs. While the Wiesenthal Center is not involved in restitution issues, It is the position of our Center, that all documentation related to the Pacific/Asia theater of World War II be made available by all relevant governments, led by Japan, The United States, China and Russia. Without full disclosure of the past, there can be no just nor final closure for history, no full and meaningful reconciliation for those who suffered. We look forward to reading the full text of these important hearings and to learn of any further Congressional initiatives which results from them.

With best personal regards to Chairman Hatch and the distinguished members of the Judiciary Committee, Rabbi Abraham Cooper.

Prepared Statement of Bruce R. Harder,
Director, National Security and Foreign Affairs,
Veterans of Foreign Wars of the United States

Mr. Chairman and Members of the Committee: The Veterans of Foreign Wars of the United States is pleased to be able to make a written statement for the record on behalf of those American veterans who were prisoners of war in the Pacific during World War II.

This statement is the written testimony of the Veterans of Foreign Wars of the United States. We understand that the purpose of today's hearing is to explore the historical, legal, and practical issues surrounding the plight of the former POWs.

This written testimony presents the VFW leadership's views on this issue. We want to make it clear that we strongly support the right of these veterans who are former Prisoners of War (POWs) to receive fair and just compensation for the injuries they suffered at the hands of their Japanese captors, and the slave labor they were forced to perform by private Japanese Companies during World War II.

It is a well-documented fact that during World War II, thousands of Americans were taken as POWs in the Pacific Theater and many were forced into slave labor. According to our sources, over 33,000 U.S. military personnel were captured in the Pacific Theater and interned by the Japanese. Of this total, over 12,500 of them died in captivity. The percentage of those who died in captivity gives a good indication of the horrid conditions that existed in the POW camps administered by the Japanese. These POWs suffered from a lack of adequate food, clothing, shelter, and medical care, suffered interrogation and torture, endured unthinkable abuse and brutality under the hands of their captors, and had their rights under the Geneva Conventions routinely violated. In addition, many of these POWs were transported to mainland Japan, and were required to work for private Japanese companies as slave laborers under horrible conditions. Here as well they were subjected to severe beatings and many different types of human rights abuses. When the war ended, the survivors returned home, but have never received fair compensation for their injuries and labor.

In fact, the only compensation most of these POWs received was standard Veterans Administration/Affairs benefits including medical care, and one dollar from the U.S. government for every day they spent in enforced labor while enslaved to private Japanese companies. After the war, peace treaty considerations kept them from legally pursuing larger reparations from the Japanese government or companies. On the other hand, the Japanese companies who profited from the enslavement of these American POWs have never compensated their American victims in any way nor have they offered so much as an apology for the way our POWs were abused and exploited. We think these former American POWs have a right to be adequately compensated from the private Japanese companies for their suffering and sacrifice.

Recently, we received a letter from former POW, Robert M. Shrum who was held as a POW by Japan for three and a half years during World War II. A life member of the American Defenders of Bataan and Corregidor and the Veterans of Foreign Wars of the United States and other veterans organizations, Mr. Shrum was captured in the Philippines in April 1942 following the fall of Bataan and Corregidor. A survivor of the Bataan Death March, Mr. Shrum recently wrote a letter to President and in it he said:

After World War II ended in the Pacific, neither the Japanese government or the private Japanese companies who worked us as slave laborers, has ever offered to make restitution for the work, lack of food, abuse, unbearable living conditions, suffered injuries, tortured and killings; and have not even offered an apology.

Most distressing to us, the U.S. government has continued to ignore us during these same intervening years. Our government has never supported us to have fair compensation and restitution paid to us who were brutally enslaved and deprived of all human dignity. To me this is incomprehensible especially as in recent years our government has awarded reparations to Japanese American citizens who were interned in U.S. camps during World War II, as well as diligently worked to resolve claims by victims of German atrocities during the Holocaust. Both of these injustices deserve to be remedied and finally achieved--but we former Pacific prisoners-of-war slave laborers continue to be ignored by the U.S. government and Japanese government.

If the Japanese are willing apologize and pay restitution for crimes committed by their own soldiers against the former ``comfort women'' of the Republic of Korea, then why should they not do the same for American POWs who also ruthlessly abused and enslaved during World War II. We believe that private Japanese companies have a similar obligation to provide just and equitable compensation to American former POWs.

On May 12, 2000, the Executive Director of the VFW Washington Office sent letters to both Attorney General Janet Reno and Secretary of State Madeleine K. Albright pointing out that our own government had turned its back on our former POWs and did not pursue compensation from those companies for the injuries these veterans sustained. In addition, his letters urging both Attorney General Reno and Secretary Albright to stand up for these former prisoners of war whose claims are not against our government or the government of Japan, but on the private companies that brutally enslaved them and profited form their labor. Unfortunately, to date, our letters have gone unanswered.

Recently, we were distressed to learn that the United States Department of Justice publicly stated a position that is adverse to the efforts of the former POWs who seek redress from private Japanese corporations. Frankly, we are outraged that the Department of Justice has found it necessary to take such a position against our own former POW veterans.

The VFW believes it is time that our government showed compassion for these brave men and support their claims for just and equitable compensation. Our veterans seek only fairness and equitable restitution for injuries suffered in defense of our great country and all that it represents. Now is the time for the U.S. government to act honorably to afford the former POWs the fairness and dignity they deserve.

Therefore, we urgently request that the Congress of the United States thoroughly investigate this matter and intervene on behalf of our veterans to ensure that justice is done before it is too late.

Mr. Chairman and Members of the committee, thank you for this opportunity to present the views of the Veterans of Foreign Wars of the United States on this issue.

Prepared Statement of Linda G. Holmes

americans in captivity: an overview of the pacific war, 1941-45

Shimon Peres recently referred to Japan's conquest of East and Southeast Asia as ``The other Holocaust.'' When I asked him to clarify the context of his remark, he wrote to me: ``What I mean is that although one can in no way compare the atrocities perpetrated by the Nazis to any other atrocities, nevertheless the damage caused by the Japanese attacks during the war was similar in character to that of a holocaust.'' And indeed it was.

After feeling entitled to slaughter millions of Chinese and to subjugate the people of Korea to a brutal occupation, Japan's military forces began implementing their primary goal of what its leaders termed ``The Greater East Asian Co-Prosperity Sphere'': to eliminate white people from Asia, forever. Between 1941 and 1945, its occupying troops systematically worked to do just that. And they had standing orders, issued in 1942, to kill all white people in custody if surrender were imminent. Only the abrupt, atomic end of the Pacific War prevented this mass execution, which would have annihilated nearly 300,000 white families and military prisoners scattered in internment camps and company worksites all over occupied Asia and the home islands of Japan.

Within weeks of the attack on Pearl Harbor, Japanese army and navy personnel rounded up every white man, woman and child in Asia, including almost 14,000 Americans. A few--a very few--were released, if they were lucky enough to be married to an Asian or a national from an Axis country; or if they were one of the 3000 civilians exchanged for Japanese civilians living in the Americas. After three months, when our government saw that the Japanese intended to keep nearly all of our citizens incarcerated, we began rounding up Japanese living in the United States, primarily those on the West Coast. The delayed timing of this relocation is often overlooked; it followed weeks of frantic diplomacy. We had been Japan's protector nation in three previous wars, including World War I; and Washington officialdom couldn't believe the government of Japan was not prepared to return the favor. We had no idea how deep the resentment of ``white colonials'' was throughout Asia; it had been building for a long time.

Before sundown on December 8, 1941, Japanese forces began taking American military personnel prisoner in various outposts and embassies. By Christmas Eve, nearly 1200 civilian construction workers on Wake Island found themselves prisoners of war, along with the Marine garrison there. And before six months had passed, General Douglas MacArthur's entire Army of the Pacific had been either killed or captured. By May 1942, over 25,000 Americans were prisoners of war; their number would eventually swell to 36,000+. Nearly half died in captivity, as compared to just 1.1 percent of military POW who perished in German military stalags, or fixed POW camps. Over 3,600 Americans died at sea in unmarked merchant ships transporting them to the Japanese home islands for use as slave laborers in war production at factories, mines and shipyards. Nine out of 10 POW who died in World War II perished in Japanese, not German custody.

All of our prisoners of war performed slave labor, under brutal conditions, for the next three and a half years, even when they were so sick they could hardly stand. Theirs was the longest captivity anywher during World War II, and it was marked by slow starvation, disease, medical experimentation at many POW camps, and the deliberate withholding of medical supplies, relief packages, mail and even soap or toilet paper.

Much has been made of the fact that the Japanese Diet [parliament] failed to ratify the 1929 Geneva conventions relating to prisoners of war, which their delegate had signed. But the Diet did ratify the conventions of the International Red Cross, which were a part of tha same 1929 gathering. So the fact that the Japanese refused to distribute Red Cross packages which arrived weekly at company worksites and POW camps throughout occupied territory--constituted a separate category of war crime. The Japanese government also declared all of its occupied territory a war zone, and refused to let Swiss inspectors inspect POW camps and civilian internee centers within the ``war zone.'' Japanese authorities refused to cooperate with the International Committee of the Red Cross in supplying names of those held captive; for most American families, a year or more went by with no confirmation of the status of their sons, husbands, brothers. And our civilians in internment centers were slowly being starved to death as well; visits from Red Cross or Swiss government representatives were rare events; most internees or POW never saw a Red Cross representative and can only remember one or two Red Cross boxes being given out during nearly four years of captivity. Perhaps the most egregious interference with relief was the withholding by the Japanese government of 98 million swiss francs in relief funds contributed by the United States, Great Britain and The Netherlands, in a secret bank account set up through the Swiss National Bank, which the Japanese government had pledged to release so Swiss workers could buy extra supplies for POW and internees. Instead, the money sat in the Yokohama Specie Bank till war's end. Over $6.2 million, worth $54 million today, was from the U.S. Treasury; we never asked for a dime of it to be returned.

Although it was a clear violation of international law to do so, Japanese company heads asked for the use of white prisoners; paid the government two yen per day for the use of each prisoner; agreed to pay the prisoners Japanese soldier's pay, and were required to house them on company property. Most prisoners never saw any money; all came home empty-handed and sick. None ever regained full health; all still suffer nightmares, PTSD, and many residual, compounded health problems.

After the war ended, Japan's major industrialists were named as suspected war criminals, but the indictments were dropped for lack of evidence (no clear paper trails could be found in time for the trials' opening date; and very, very few members of the trial teams could speak or read Japanese.) A policy decision was made to avoid mentioning the names of companies during the trials, according to a member of the prosecution team. After a high-profile trial which seemed to drag endlessly, 25 Japanese Class A [top leaders] criminals were sentenced. Seven were executed; 16 received life sentences; one died in prison before sentencing and another was declared insane. The rest were released, and further investigations of Class A criminals were abruptly halted.

Although several hundred Japanese military and civilian war criminals were convicted of sentences ranging from death to life imprisonment to 25 years or more, most death sentences were commuted, and no convicted Japanese served more than ten years. The majority were released when our occupation officially ended in 1952; by 1958 all had been released and Sugamo Prison was closed because it was empty.

Surviving American ex-POW were allowed to file claims under the War Claims Act of 1948 to receive $1.00 per day times the number of days held captive for ``missed meals,'' with a cap of $1500 per claimant. After the 1951 Treaty of Peace was signed, and our ex-POW were prevented from filing further claims, Congress passed the War Claims Act of 1952, allowing ex-POW to apply for $1.50 per day for ``forced labor and/or mistreatment'' while in custody. The payment funds came from $280 million in frozen Japanese and other Axis assets seized in the United States between 1942 and 1946.

But no one at that time could predict how severe the residual effects of prolonged malnutrition and the diseases which accompany it would be for these survivors. The effects of their captivity have continued to compound throughout their lifetimes. Many have fought for 50 years to receive full disability payments from the Veterans Administration; some were granted full allowances as recently as 1998 or 1999. Information about their treatment by the Japanese had been so suppressed both during and after the war, that many medical personnel at VA centers have had a hard time grasping the long-term effects of severe malnutrition, or to understand the types of injuries these men sustained during their captivity.

It is worth noting that the official Japanese government report on the wartime use of POW labor was not issued until December 1955, long after the conclusion of the Tokyo War Crimes Trials and the drawing up of the 1951 Treaty of Peace. This report is based in turn on the periodic reports Japanese companies were required to file, showing compliance with the regulations on payment of POW and other matters involving care etc. of POW. The companies apparently stated that payments had been made to POW and backed up these reports with pay sheets some POW say they were forced to sign, despite not receiving the stated pay. Also, the companies reported receipt of relief supplies (Red Cross) but failed to mention that they did not distribute the packages to the POW.

So it is possible that the Japanese Government, and for that matter our own Government, may have been under the impression that our POW were in fact paid, housed and cared for to a degree that in fact rarely, if ever, occurred. Red Cross reports show an acute awareness of this fact (misleading information from Japanese authorities.)

In other words, the Japanese government may be basing its position on these rather misleading reports which formed the basis if its government's 1955 official report. However, I have no evidence one way or the other to suggest that our own government officials were aware of, or read, the 1955 Japanese government report.

Adequate compensation for the suffering and slave labor endured by our prisoners remains the largest unresolved issue of the Pacific War. It is hoped that the hearing conducted by the Senate, Committee on the Judiciary today will bring forth further discussion and documentation to illuminate the full intention of the San Francisco Peace Treaty, and of the framers who drafted it. Such illumination may at last bring some closure to those who became what their Japanese captors liked to refer to as ``guests of the emperor.'' Meanwhile, the ashes of thousands of Americans have long since been scattered to the winds which blow across Japanese company properties.

I respectfully request that this statement become part of the record of the hearing conducted by the Senate Committee on the Judiciary June 28, 2000.

Prepared Statement of Chalmers Johnson

In December 1937, when the invading Japanese army captured the city

that was then the capital of China, Nanjing, it proceeded to rape, torture, and execute many thousands of Chinese civilians and unarmed prisoners of war. The facts of this atrocity are not in dispute, although controversy still surrounds the absolute numbers of Japan's victims. Survivors of this and other instances of Japan's brutality toward civilians and prisoners during wartime--in violation of international treaties to which Japan was a signatory-have repeatedly sought compensation from the Japanese government for their suffering. On September 22, 1999, in Tokyo, the chief judge of the Tokyo District Court dismissed the most important case concerning the Nanjing massacre on grounds that individuals do not have a right to sue the Japanese government.

It is in part because the Japanese courts have never once ruled in favor of Japan's victims that California and other American states have recently passed laws allowing former prisoners of war to sue American branches of Japanese corporations for compensation for their suffering. On August 26, 1999, the California legislature passed a resolution calling on Japan to pay reparations to ``United States military and civilian prisoners of war, * * * the survivors of the `Rape of Nanking' [Nanjing], * * * and the women who were forced into sexual slavery and known by the Japanese military as `comfort women.''' The California Legislature also extended the statute of limitations for World War II lawsuits to the end of 2010, in another piece of legislation, Senate Bill 1245.

During World War II, some 33,587 United States military and 13,966 civilian prisoners of the Japanese military were confined in prison camps, where many were subjected to forced labor. On August 11, 1999, the first individual lawsuit in California was filed on behalf of Dr. Lester Tenney, against Mitsui & Co., Ltd. and related entities for the slave labor that Dr. Tenney endured in Mitsui's coal mines. Since then a number of suits have been filed against companies such as Mitsubishi International Corp., Mitsubishi Materials Corporation, Mitsui Mining Co., Ltd., Nippon Steel, Japan Energy, Ishihara Sangyo, Ishikawajima Harima Heavy Industries, Ltd., Sumitomo Heavy Industries, Nippon Sharyo, Ltd. and other Japanese companies.

These lawsuits are likely to be much more damaging to Japanese-American relations than any genuine governmental apology and the payment of token compensation. Thus far Japan's official response has been to stonewall and to argue that the peace treaty of 1952 settled all claims arising from the war. There is a possible Japanese defense against these lawsuits, but this is assuredly not it. International law has now progressed to where claims by an individual against a state are recognized. Moreover, Germany has already agreed to pay large sums to compensate its forced laborers-in addition to the billions it has paid to Israel and other survivors of the Nazi genocide against the Jews.

Relying on the peace treaty is not a good defense for several reasons. First, the suits are not against the Japanese government but against private Japanese corporations. Second, the United States required that Japan pay only minimal reparations after the war because it was trying to integrate Japan into the U.S.'s Cold War structure. Third, the reparations Japan did pay went primarily to corrupt dictators in places like the Philippines, Indonesia, and Burma, not to individuals who had truly suffered at Japan's hands. Fourth, the precedent of holding Germany, Switzerland, and American corporations such as the Ford Motor Co. responsible for their wartime activities is clearly applicable to Japan.

Japanese government officials acknowledge that Japan paid considerably less in reparations after the war than other Axis powers and that this favorable treatment of Japan came about because of the strategy the United States pursued in the Cold War in east Asia. Thus, for example, Tetsuo Ito of Japan's Ministry of Foreign Affairs writes in The Japanese Annual of International Law (No. 37, 1994):

The chaotic international conditions in the midst of the Cold War eventually favored Japan in terms of the [Peace] treaty contents. The co-drafters of the treaty [the United States and Great Britain] had obviously eased their policy on reparations, deciding not to impose a heavy burden on the Japanese economy, because the rapid recovery of Japan would serve their interest by helping to strengthen the Western Camp in their defense of freedom against the Communism about to infiltrate Asia. [p.4]* * * If we compare the San Francisco Peace Treaty with other peace treaties after the Second World War, such as the Allied peace treaties with Bulgaria, Finland, Hungary, Italy and Romania signed on February 10, 1947, we can find that, while the latter provided for specific figures of reparations to be made in kind by the defeated countries, the former treated Japan in a very generous manner by letting Japan negotiate with each claimant country to make decisions, even regarding important conditions such as the amount of each reparation. Besides the problem of reparations, the Allies seemed to have treated Japan more favorably than the European Axis countries in other matters as well. [p. 43]

The peace treaty was negotiated and signed while the Korean War was actually in progress. Japan was then the major military staging area for American operations in Korea, just as a decade and more later Okinawa was for American operations in Vietnam. The United States treated its ``fuchin kubo'' (unsinkable aircraft carrier), to use the language of the time, generously and ensured that the other allies went along with this.

Article 14(b) of the ``Multilateral Treaty of Peace with Japan,''signed at San Francisco September 8, 1951, and in effect from April 28, 1952, stipulates that ``Except as otherwise provided in the present Treaty, the Allied Powers waive all reparations claims by the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war, and claims of the Allied Powers for direct military costs of occupation.'' This is the article on which the Japanese government relies in rejecting all claims by former P.O.W.s and internees that they be compensated for their illegal treatment at the hands of the Japanese during the war. But there are legal problems with this defense, in addition to the political ones already mentioned. One is described by Tetsuo Ito of the Japanese Ministry of Foreign Affairs as follows: ``The waiver of `claims of its nationals' can not mean the renunciation of such claims by a state in rigid legal terms, * * * because a state can not theoretically waive the right of a third person, without its consent, who is not a party to the treaty concerned, regardless of whether it is a state or an individual'' [J.Ann. Int. Law, No. 37, 1994, p. 68]. Individuals always retain the right to enter a claim based on their municipal law.

The more serious problem of relying on article 14(b) is its opening clause, which reads ``Except as otherwise provided in the present Treaty.'' Article 26 of the same Treaty overrides it: ``Should Japan make a peace settlement or war claims settlement with any State granting that State greater advantages than those provided by the present Treaty, those same advantages shall be extended to the parties to the present Treaty.'' In treaties with the Netherlands, Denmark, Sweden, and Spain, Japan accepted a release of claims only against the Government of Japan, not by nationals of those countries against Japanese nationals. The Netherlands treaty was signed May 13, 1956. Since that time article 26 has superseded article 14(b) with regard to claims by foreigners against Japanese civilians for their actions during the war.

Japan's only real defense would be that it was the United States government that refused to press the claims of its own citizens against Japan. General MacArthur decided to exonerate the Emperor from any responsibility for the war-thereby causing most Japanese to believe that if the head of state was not responsible, then ordinary people and companies were certainly blameless. The surviving American prisoners of war thus could make as good a case against their own government's indifference to their suffering as against Japanese corporations today.

Instead of stonewalling, the Japanese government would be wise to take these suits as an opportunity to deal with some of the unfinished business of World War II. Perhaps it should seek to create a joint Japanese-American foundation that could compensate the survivors and also offer to them a sincere apology for their shabby treatment by both governments a half century ago. Thanks to the Cold War, Japan enjoyed a long period in which the United States blocked all private claims against it. Today, most of the plaintiffs in these cases are very elderly. It would be easy for Japan to pay them. Since World War II, the only two countries that have ever indicted their own citizens for war crimes are Germany and France. But this is not something that either Japan or the United States should be proud of. A trial like that in France in 1997 of Maurice Papon, the wartime mayor of Bordeaux, for collaborating in the deportation of Jewish civilians to Germany and his recent recapture after he fled to Switzerland is simply unimaginable in Japan. That is what is fueling these lawsuits as much as monetary claims.

Chalmers Johnson's latest book is ``Blowback: The Costs and Consequences of American Empire'' (Metropolitan Books, 2000). He is also the editor of ``Okinawa: Cold War Island,'' published by the Japan Policy Research Institute, of which he is president. He is an emeritus professor of international relations and a specialist on the political history of East Asia at the University of California, San Diego.

(Translation), August 15, 1995.

Prepared Statement of Prime Minister Tomiichi Murayama

The world has seen fifty years elapse since the war came to an end.

Now, when I remember the many people both at home and abroad who fell victim to war, my heart is overwhelmed by a flood of emotions.The peace and prosperity of today were built as Japan overcame great difficulty to arise from a devastated land after defeat In the war. That achievement is something of which we are proud, and let me herein express my heartfelt admiration for the wisdom and untiring effort of each and every one of our citizens. Let me also express once again my profound gratitude for the indispensable support and assistance extended to Japan by the countries of the world, beginning with the United States of America. I am also delighted that we have been able to build the friendly relations which we enjoy today with the neighboring countries of the Asia-Pacific region, the United States and the countries of Europe.

Now that Japan has come to enjoy peace and abundance, we tend to overlook the pricelessness and blessings of peace. Our task is to convey to younger generations the horrors of war, so that we never repeat the errors in our history. I believe that, as we join hands especially with the peoples of neighboring countries, to ensure true peace in the Asia-Pacific region--indeed, in the entire world--it is necessary, more than anything else, that we foster relations with all countries based on deep understanding and trust. Guided by this conviction, the Government has launched the Peace, Friendship and Exchange Initiative, which consists of two parts promoting: support for historical research into relations in the modern era between Japan and the neighboring countries of Asia and elsewhere; and rapid expansion of exchanges with those countries. Furthermore, I will continue in all sincerity to do my utmost in efforts being made on the issues arisen from the war, in order to further strengthen the relations of trust between Japan and those countries.

Now, upon this historic occasion of the 50th anniversary of the war's end, we should bear in mind that we must look into the past to learn from the lessons of history, and ensure that we do not stray from the path to the peace and prosperity of human society In the future.

During a certain period in the not too distant past, Japan, following a mistaken national policy, advanced along the road to war, only to ensnare the Japanese people in a fateful crisis, and, through its colonial rule and aggression, caused tremendous damage and suffering to the people of many countries, particularly to those of Asian nations. In the hope that no such mistake be made in the future, I regard, In a spirit of humility, these Irrefutable facts of history, and express here once again my feelings of deep remorse and state my heartfelt apology. Allow me also to express my feelings of profound mourning for all victims, both at home and abroad, of that history.

Building from our deep remorse on this occasion of the 50th anniversary of the end of the war, Japan must eliminate self-righteous nationalism, promote international coordination as a responsible member of the international community and, thereby, advance the principles of peace and democracy. At the same time, as the only country to have experienced the devastation of atomic bombing, Japan, with a view to the ultimate elimination of nuclear weapons, must actively strive to further global disarmament in areas such as the strengthening of the nuclear non-proliferation, regime. It is my conviction that in this way alone can Japan atone for its past and lay to rest the spirits of those who perished.

It is said that one can rely on, good faith. And so, at this time of remembrance, I declare to the people of Japan and abroad my intention to make good faith the foundation of our Government policy, and this is my vow.

Prepared Statement of Michael D. Ramsey

My name is Michael D. Ramsey and I am a Professor of Law at the University of San Diego Law School. I teach and write in the area of foreign affairs law, including the law of treaties. Among other matters, I specialize in the legal aspects of international claims against foreign governments and foreign nationals. I am submitting this statement for the record in a Hearing to be held by the Senate Judiciary Committee scheduled for June 28, 2000, regarding the legal status of claims against and Japanese nationals by former U.S. Prisoners of War (POW's).

I have been asked to assume that the POW's were held and forced to labor for private companies in Japan, that such companies were never ``mobilized'' under Japanese law, to operate as a part of the war effort under the daily control of the Japanese military; that by treaty such labor could only serve commercial purposes (and could not promote the war effort of Japan); and that these companies were obligated to pay wages to these laborers at private, commercial rates, but did not do so.

The following sets forth my views on the question whether the 1951 Peace Treaty, signed in San Francisco between Japan and various allied powers including the United States (the ``Treaty''), waives the claims of individual U.S. citizens against private Japanese entities for injuries suffered during World War II. I should note that my views are not based on an exhaustive review of the history and context of the Treaty, but only upon my general knowledge of treaty and constitutional law and practice. For the reasons set forth below, I conclude that the Treaty should not be read to waive private claims alleged against individuals or entities who were not acting as agents of the Japanese government.

At the outset I think it critical to distinguish among three types of claims by U.S. citizens: (1) claims against the Japanese government; (2) claims against individual Japanese nationals and Japanese entities acting as agents of the Japanese government; and (3) claims against individual Japanese nationals and private Japanese entities not acting as agents of the Japanese government. I propose to discuss only the third type of claim, and my conclusions with respect to the treaty are limited to this category of claims, which I shall hereafter call ``private claims''.

The relevant language of the Treaty is Article 14(b), which states:[T]he Allied Powers waive all reparations claims of the Allied Powers, [and] other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war * * * (emphasis added).

I assume for purposes of this discussion that the initial part of the Article 14(b) language--that is, the waiver of claims of the Allied Powers and their nationals arising out of any action taken by Japan and its nationals--could be read to encompass all of the above categories of claims, including the private claims. I have not been asked to consider this issue, and express no opinion on it one way or the other. However, even if this part of Article 14(b) does include private claims, for the waiver to apply the second part of the relevant article requires that the claims aris[e] * * * in the course of the prosecution of the war. It is not at all clear that this language includes the private claims and in my opinion that is not the best reading of the language.

To be sure, one might argue that the phrase ``in the course of the prosecution of the war'' encompasses all actions by whatever parties that directly or indirectly aided the Japanese war effort. I assume that those who would find a waiver of the private claims in Article 14(b) are relying on such a reading. This is quite a broad reading, as it would encompass, in effect, any action taken during wartime that benefited Japan or weakened the United States, as any such action would contribute to Japan's war effort. But there is also a narrower reading available: specifically, that since only the government ``prosecutes'' (that is, carries into execution) a war, only actions of the government and its agents related to the war effort would be included, and not all private actions occurring during the war. Thus, the phrase ``in the course of the prosecution of the war'' is at least ambiguous as to whether it encompasses actions of purely private parties not acting under the direction of the Japanese government.

I believe that the narrower reading is not only plausible, but is the preferred reading of the relevant language. This is based on four factors, as set forth below: (1) historical practice; (2) constitutional considerations; (3) ordinary usage, and (4) other portions of the Treaty.

First, with respect to historical practice, agreements settling claims between the United States and foreign nations are of course quite common, dating to the earliest days of the Republic. However, it is highly unusual for a claims settlement treaty to waive purely private claims. Most, if not all, claims settlement agreements to which the United States is a party waive claims of the United States and of U.S. nationals against a foreign government and (sometimes) against agents of the foreign government. Although I have not undertaken a comprehensive study, I am generally familiar with claims settlement agreements entered into by the United States and I personally am not aware of any claims settlement agreement of the United States that manifestly waives claims between private U.S. nationals and private foreign nationals for purely private conduct. At best, such a waiver would have to be viewed as highly unusual. The claims settlements that have been extensively litigated, such at those considered by the U.S. Supreme Court in the Pink and Belmont cases and more recently in Dames & Moore v. Regan, only waived or adjusted claims by private U.S. individuals against the foreign government itself and individual and corporate agents of the foreign government. In Dames & Moore, for example, the Court referred to the settlement power as the ``sovereign authority to settle the claims of its [the U.S.'s] nationals against foreign countries.'' Dames & Moore v. Regan, 453 U.S. 654 (1981).

As I have indicated, reading Article 14(b)'s phrase ``in the course of the prosecution of the war'' broadly to include private wartime activities would result in an extensive waiver of claims by private individuals against private individuals. That is entirely contrary to historical practice, which is not to include such claims within negotiated intergovernmental claims settlement agreements. On the other hand, reading ``in the course of the prosecution of the war'' narrowly to refer to only governmental activities would make the 1951 Treaty accord with historical practice of limiting intergovernmental settlements to claims against the foreign government and its agents.

Second, a broad reading of the phrase ``in the course of the prosecution of the war'' leads to serious constitutional difficulties, while a narrow reading of the phrase is somewhat less constitutionally problematic. The relevant constitutional provision is the Fifth Amendment, which among other things prohibits the U.S. government from taking private property without just compensation. It is certainly arguable that a private legal claim is ``property'' within the meaning of this clause. Indeed, at least one court of appeals, relying on Supreme Court precedent, has squarely declared that ``There is no question that claims for compensation are property interests that cannot be taken for public use without compensation.'' In re Air Crash in Bali, Indonesia, 684 F2d 1301 (9th Cir. 1982). Under this reading, if the U.S. government waived private claims in Article 12(b) of the Treaty, that was a taking of private property. It is also certainly arguable that the owners of that property never received adequate compensation for it. Indeed, Article 14(a) of the Treaty seems to acknowledge that the United States is settling claims against Japan for far less than they are worth in order to support Japan's economy. Thus the Treaty, if read broadly, appears to take private property without just compensations, contrary to the Fifth Amendment.

It is true that a similar argument could be raised against a waiver of claims of U.S. citizens against Japan and its agents. These too, it might seem, are property interests worthy of constitutional protection; indeed this was suggested by Justice Powell in his dissenting opinion in Dames & Moore, 453 U.S. at 691. However, courts that have addressed similar claims since Dames & Moore have treated them differently than, for example, the Ninth Circuit treated purely private claims in the Bali case. The case of Shanghai Power Co. v. United States, 4 Cl. Ct. 237 (1983), affirmed without opinion, 765 F.2d 159 (Fed. Cir. 1985), is illustrative. Decided by Judge Kozinski, then on the court of claims and now an intellectual leader of the Ninth Circuit, the Shanghai Power case involved President Carter's claims settlement with China. The plaintiff, Shanghai Power, had a claim against an instrumentality of the Chinese government which the agreement settled for a fraction of its value, and Shanghai Power alleged a violation of its rights under the Fifth Amendment. The court agreed that Shanghai Power's legal claim was property, but held that no compensable taking had occurred, essentially on two grounds: (1) the unique nature of claims against foreign governments, and (2) the longstanding historical practice of the U.S. government settling claims against foreign governments without the affected parties' consent. Similarly, in Marks v. United States, 15 Cl. Ct. 609 (1988), the court of claims rejected an alleged unconstitutional taking based on the U.S. government's settlement of private claims against the government of Iran and its agents.

Of course, the decisions in Shanghai Power and Marks may not be correct, as the Supreme Court appeared to leave that question open in the Dames & Moore decision and has not definitely ruled on it since then. However, at a minimum there appears to be some support for the proposition that the courts would not find a constitutional violation where the U.S. government settles individual claims against a foreign government it and its agents without the consent of the claimholder, even though in general abrogation of private legal claims is constitutionally problematic under the Fifth Amendment. As a result, a narrow reading of Article 14(b) of the 1951 Treaty would likely render the Treaty constitutional, if the rule of Shanghai Power were applied. On the other hand, a broad reading of Article 14(b)--such that it extended to claims between private parties--would raise serious constitutional difficulties under the Bali case. The reasoning that allowed the Shanghai Power court to avoid finding a constitutional violation would not be available with respect to the 1951 Treaty if Article 14 (b) is read broadly to apply to private claims. This again suggests that the narrow reading should be preferred.

A third reason for preferring the narrow reading of the phrase ``in the course of the prosecution of the war'' is that even in isolation, that is the better reading of the language. The relevant dictionary definition of ``to prosecute'' is ``to carry on''. War is a public act, carried on (``prosecuted'') by a government through its agents. There is no such thing as a ``private'' war. Individuals not in government service do not ``carry on'' a war. They may support the war, but they do not ``prosecute'' it, if ``prosecution'' is read, as the dictionary says it should be, to mean mean ``carrying on''. Thus claims do not arise from the ``carrying on'' of war unless they arise from the activities of those who are carrying it on--namely the government, acting through its agents. To put it in practical terms, if an individual Japanese national living in a neutral country murdered an individual U.S. national in that neutral country, even during wartime, this would not be considered part of the war effort because it is not endorsed by the Japanese government. Rather, it would be treated as a simple murder. It makes little sense to speak of this as part of the ``prosecution'' of the war, even if the reason for the murder was that the Japanese citizen was motivated by patriotic zeal, and even if it indirectly benefited the Japanese government in some way. On the other hand, if the murder was committed by a Japanese government agent, for some purpose connected to the war, that clearly seems to be a ``prosecution'' of the war. The difference is the government agency, because governments, and not private citizens, ``prosecute'' wars.

This ordinary usage is confirmed by the way the phrase ``prosecution of the war'' is used in U.S. statutes. When used in U.S. statutes, it plainly refers to the U.S. government's war effort, not to all private activities that assist or relate to the war effort in some way. For example, the Wartime Suspension of Limitations Act, 18 U.S.C. 3287, provides that ``When the United States is at war the running of any statute of limitations applicable to any offense * * * committed in connection with * * * any contract, subcontract, [or] purchase order which is connected with or related to the prosecution of the war * * * shall be suspended.'' As its context makes clear, the Act intended by this language to suspend the statute of limitations on a narrow class of actions: specifically, fraud in wartime government procurement contracts. See Bridges v. United States, 346 U.S. 209 (1953) (noting that the general purpose of the statute was to safeguard U.S. treasury from wartime fraud); United States v. Grainge, 346 U.S. 235 (1953) (discussing the Act as applying to fraud in government contracts). The Act did not create a general suspension of the statute of limitations in private contract cases during wartime, and to my knowledge no court has suggested such an interpretation. The obviously limited scope of the Act necessitates a narrow reading of the phrase ``prosecution of the war'' encompassing only the government's war effort. If ``prosecution of the war'' included purely private conduct during wartime that had some connection with or benefit to the war effort, then the language of the Act would suspend the statute of limitations with respect to much purely private activity that occurred during the war--a reading that has never occurred to anyone, interpreting the statute. Thus reading ``prosecution of the war'' in the 1951 Treaty narrowly to refer to war-related activities of the Japanese government is consistent with that phrase's statutory usage, while a broader reading of the language is not.

Finally, evidence from other parts of the Treaty confirms that the narrow reading is the correct one. First, there is an official French version of the Treaty, as well as the official English version. The French version of Article 14(b) renders ``the prosecution of the war'' as ``la conduite de la guerre''. The relevant French dictionary definition of ``conduite'' is ``conduct; * * * direction; supervision.'' Thus the French version of the Treaty waives claims arising from the ``conducting, direction or supervision of the war.'' These words clearly refer to actions of one who has control over the war effort, which can only be the government and its instrumentalities. Even if the word ``prosecution'' is thought ambiguous, surely ``conduct'', ``supervision'' and ``direction'' are not: governments and government agents (but not purely, private individuals), ``conduct'' war or ``direct'' war or ``supervise'' war. In short, the French version (``conduite'') plainly limits itself to the government's war effort, and does not encompass private activities. This suggest that the English version, ``prosecution'', should be read equivalently--that is, as not encompassing purely private activity.

That reading is confirmed by other parts of the Treaty, specifically two sections of Article 19. When the parties to the Treaty intended a broad waiver of claims, they used broader language than Article 14(b). In Article 19(a), Japan ``waives all claims of Japan and its nationals against the Allied Powers and their nationals arising out of the war * * *'' While it is not obvious what claims this encompasses, it certainly seems broader than claims ``arising out of * * * the course of the prosecution of the war'' (else the phrase ``the course of the prosecution of the war'' would be superfluous). It seems likely that the parties intended for Japan (but not the Allies) to make a broad waiver, extending to at least some private claims having a close link to the war. In addition, in Article 19(a), Japan waived ``all claims (including debts) against Germany and German nationals on behalf of the Japanese government and Japanese national * * * for loss or damage sustained during the war''. This appears to be an even broader waiver encompassing essentially everything that happened in the war years. These three distinct ways of expressing waiver of claims suggested that each should be given a distinct meaning, and the only reasonable way to do this is to read ``prosecution of the war'' narrowly so that it does not swallow the other two categories.

In summary, I conclude that even assuming Article 14(b) of the Treaty extends to individual claims against Japanese nationals in some instances, it would only apply to those situations in which the defendant was acting as an agent of the Japanese government in carrying on the war effort. (Thus a U.S. national could, under this reading, not sue a Japanese military officer in his individual capacity for battlefield atrocities). Only these cases are properly viewed as being part of the ``prosecution of the war'' as required for the Article 14(b) waiver. Private parties do not ``prosecute'' a war, so purely private claims do not arise out of actions taken ``in the course of the prosecution of the war.'' This reading is consistent with the ordinary meaning of the phrase ``to prosecute"; with other evidence from the treaty itself, including the French version and the phrasing of the Article 19 waivers; with historical practice, in which intergovernmental waiver of purely private claims without consent of the claimholder is at best unusual; and with constitutional requirements, which would find waiver of purely private claims to be constitutionally suspect. On the other hand, the broader reading that would encompass all private claims within the Article 14(b) waiver is not consistent with the most natural reading of the relevant phrase, creates tensions with other parts of the document, and is historically anomalous and constitutionally suspect, For these reasons, I conclude that the best reading of the Article 14(b) waiver is that it does not extend to purely private claims.

Prepared Statement of Paul W. Reuter

I wish to thank Chairman Hatch and the Committee of the Judiciary for the opportunity to present these comments regarding the maintenance, treatment, transfer and slave labor conditions suffered by American Prisoners of War while held captive by the Imperial Japanese Military Forces during World War Two.

Ten and one-half hours after the attack upon the Hawaiian Islands, the Japanese military bombed Clark Field in the Philippines, destroying 50 percent of the US Army Air Corps heavy bombardment offense inventory in the Far East area. Lack of operational aircraft plus superior Japanese air power forced trained airmen and associated military personnel into front line duties usually employed by Infantry and Artillery units. Facing overwhelming odds, extreme shortages of food, medicines, defective ordinance, personal maintenance equipment and an unfamiliar leadership situation; a surrender to the enemy was made on 9 April 1942.

Surrender was followed by the Bataan Death March and incarceration at Camp O'Donnell in Tarlac Province on Luzon. Extreme shortage of food, water, medical attention, plus the severe weather conditions of a hot tropical climate suffered under the Japanese captors rules, resulted in the death of many hundreds of men.

The Japanese sent work details from Camp O'Donnell, and later Cabanatuan, to areas on Luzon Island such as the Tayabas Road Detail, the Nichols Field runway detail, Bataan Peninsula detail to reclaim Army ordinance, Pier 7 stevedore detail plus a large farm detail to Davao Penal Colony on Mindanao. In late Summer, 1942, drafts of POW's by the thousands were shipped to the Japanese home islands to support a severe labor shortage caused by the drain of manpower to sustain combat efforts against the approaching Allied armies.

The transports used for POW transit to Japan were derelict tramp steamers of aged and uncertain vintage. Most were two hold cargo ships having one or two cargo decks below the main deck. Many had hauled horse drawn artillery South from Japan, then modifying the lower deck to accommodate men where stalls had held horses. A stall five feet wide would contain two horses, but with a shelf built five feet above the deck it held ten POW's cramped together and limiting lateral space to a cramped twelve inches. Food and water were lowered from the hatch opening in five gallon cans when weather permitted moving across the main deck to deliver the foodstuffs.

Cans were lowered to serve as latrine vessels but these filled rapidly and were not emptied soon enough to prevent overflow of waste products. On our ship the Corol Maru a wooden latrine containing five holes, or seats, hung over the forward rail in a position where the user of the latrine was hanging off the side of the ship with nothing but the Ocean beneath. Food consisted of rice (about one cup) twice a day, and, weather and ship movement permitting, some sort of thin soup. Water was lowered by cans into the hold to be dispensed to POW's below usually by tablespoons full per man and never enough to satisfy. When the weather turned foul, and lasted the full trip from Formosa to the port of Mogi on the Island of Hokioda, the hatch cover was closed and, on occasion, the canvas cover was battened down leaving the hold in pitch black darkness.

Our ship left Manila for Formosa on 21 September 1943. We stayed a few days at anchor in a locked in harbor on Formosa, about fifty feet from another ship painted white and sporting large green crosses but with artillery barrels visible under the canvas canopy. The ship flew the flag of a Hospital ship and carried troops while we traveled in a targeted ship to Japan. Five or six bodies were off loaded while at anchor, presumably from the aft hold. Our transport had two holds, the fore hold held 400 POW's and the aft hold held 480 POW's. The only contact between men in these holds occurred when men were dispatched to carry food and water to the individual holds.

Our trip to Mogi was quick but horrendous travel. With a heavy weather, stormy ocean the ship headed on a direct route to Mogi because hunting submarines could not operate in such stormy weather. Many other Hell ships carrying POW's to Japan were forced to hug coastlines, travel in convoy, do defensive sailing maneuvers, dodge torpedoes and submarines; all of these forcing long days on the water and causing many deaths from the maltreatment. On three of these Hell ships over 4000 American POWs lost their fives, but deaths and casualties were rampant on many other ships taking POWs to Japan for continued labor.

On arrival at Mogi the fore hold POWs were fined up and marched to the railroad station, boarded a train and after an overnight trip arrived at Hirahata, a town on the inland sea, opposite Shikoko Island, in the Osaka Protectorate and about 35 miles southeast of Osaka. Our group of 400 joined the 80 Marine and Navy personnel from Wake and Guam Islands already in the camp. We began work at the steel mill operated by Seitetsu Steel the next day. The mill was located about two miles from the camp and the town of Hirahata, on a road that lead directly to the mill. We marched that road, sometimes jogged, every day under the charge of civilian steel company overseers who also assigned jobs, set completion levels, and administered physical punishment, sometimes without reason, as at those times when language differences defied communication.

My first assignment was in a machine shop as operator of a Shaper, or horizontal lathe, a device that I was totally unfamiliar with. After operating this Shaper for six months I was observed committing an unauthorized act, which resulted in a beating by the military commander, and banishment from the machine shop detail. The majority of POWs worked the yard detail which included jobs such as lifting, carrying, chipping, shoveling, stevedoring, etc., all necessary around a steel mill. This mill was a large steel producer and the site contained a large coke and gas central for the nearby area which contained many mills and factories in either direction along the coast.

The work on yard details was strenuous and energy draining. Surviving three and a half years on drastically reduced diets, when daily calorie intake measured well under 1000 calories, and forced to perform a required quantity of work under primitive, hazardous conditions without the use of safety equipment resulted in terribly malnourished underweight bodies. At the outset of the war my weight was 208 pounds. At Hirahata my weight reached 130 pounds. We worked as stevedores unloading coal ships, iron ore ships, loading slag, unloading pig iron from the foundry (a full pig weighed 145 pounds) placing the pigs in stacks, loading the pigs into rail cars for furnace use, unloading rail cars of white rock, chipping large bricks for furnace lining, unloading coal rail cars at the coke plant and loading benzine onto rail boxcars.

The barracks were terrible and unheated, baths were available about twice per month, meals were usually a cup of rice in the morning, another cup on the job around noon and rice plus soup or diacon, or occasionally tofu or dried fish or silkworms soaked in brine. We received two Red Cross packages in the two years at the camp. Upon arrival we were fed under the civilian ration of 750 calories per day which proved too little intake for large American frames. After a few months the effect of our deteriorating condition and low work effort caused the Japanese to put Americans on the military ration of 850 calories per day.

The camp was governed by Japanese military. A Lieutenant, a noncom, a medic and perimeter and gate soldiers were all of the military. Workers were turned over to company overseers who marched us to work, gave out work assignments, administered punishment, and returned us to the camp at night. We received a day off about every three weeks, to clean ourselves and launder clothes. We did not receive pay, as such, although the Japanese said they were paying us. There were two versions of our pay status; the first explanation was that the mill paid for our food and lodging and this amount equaled the pay we would have received. This method meant we worked only for the opportunity to survive. This system is borne out in that we worked under the edict ``no work, no eat'' so all workers able to walk to the mill, made the trip. We POWs disregarded this system and everyone shared alike.

The second method of payment for our work also resulted in zero transfer of money. Under this method monies earned were deposited, by individual name, in a Postal Savings Account. However, no books were kept and no POW has ever benefited from such an account.

Some of my fellow POW friends swear that a Code of Silence has been imposed upon them which prevents them from discussing their experiences while a prisoner of war of the Japanese. Other former military members and civilians who, during the period immediately following the surrender of Japan, participated in the discovery, examination, analysis and prosecution of Japanese involved in biological warfare and inhuman medical experiments have, without divulging classified material, made remarks very disturbing to the POW's. Remarks such as: ``I am sorry we did not tell the men what was happening to them, or at least we should have told the VA''., and, ``Each Japanese POW should have an extensive blood serology examination''. and, ``Americans were used in Unit 731 experiments.''. At Hirahata, in the two year stay, three times Medical personnel came to our camp, lined everyone up, and injected some undisclosed material into the left nipple. One wonders, Why always the left nipple? and, Why not inform our Doctor about the medication?

Secrets are necessary to proper functioning of the military and foreign service in their dealing in other entities, but secrets involving the feeding, medicating, treatment and anything affecting the well being of individuals should not be kept secret, especially to the individual who is now and has been hurt by the authorities not divulging information pertinent to the individuals life. The President has opened many of the files relating to the World War Two European campaign and treatment administered by the Nazi regime. Why keep the files on Japans actions relating to their war effort and culpability in unauthorized acts toward Asian and American closed after sixty years have past? Cannot the Judiciary Committee recommend such a move?

I Love my country. I fought for my country, willingly and aggressively without expectations. It is time for my country to level with me about the WHY of the deleterious actions which affect me and concern me.

I call upon the Senate Judiciary Committee to fully support the Bataan-Corregidor compensation entered by Sens. Bingaman and Domenici.

In conclusion, let me be the first Japan held POW to call upon President Clinton to declassify World War Two records thru the Treaty date in 1952.

Prepared Statement of John M. Rogers

I am the Lewis Professor of Law at the University of Kentucky College, of Law. I have taught public international law regularly since 1979 and U.S. constitutional law since 1982. I have also taught international law as a Fulbright Professor for a year at the Foreign Affairs College in Beijing, China, as a Fulbright Professor for a year at Zhongshan University in Guangzhou, China, and as visiting professor at the University of San Diego Law School. My research scholarship has focused to a large extent on the relation between domestic and international legal systems. I recently published a book describing and justifying the accepted, albeit limited, role of public international law in U.S. law. Before becoming a professor, I engaged in appellate litigation practice for the Civil Division of the United States Department of Justice, for four years. Later, as Visiting Professor at the Department of Justice in 1983-85, I represented the Department of State, the Immigration and Naturalization Service, the Defense Department, the Treasury Department, the Federal Reserve Board, and other federal agencies in a number of federal courts appeals involving foreign affairs law and international law.

I have been requested by counsel for United States nationals who were held by the Government of Japan during the Second World War as Prisoners of War to consider the application of international legal principles in the context of the pursuit by those nationals of certain claims. In particular, I am advised that these nationals are pursuing claims in the state and federal courts of the United States against entities organized under the laws of Japan which, during the Second World War, directly employed these Prisoners of War as laborers, allegedly failed to pay them wages required under international and Japanese law, and allegedly tortured them or committed acts of gross inhumanity, all in violation of international and Japanese law standards. In addition, I am advised that California law allows such actions also to be pursued against subsidiaries of these entities operating in the United States and that such subsidiaries are also defendants in the pending litigation.

I have been advised that the defendants have invoked the terms of the 1951 Treaty of Peace with Japan (and particularly Article 14(b) of that Treaty) as a defense to these actions. After review of the Treaty and materials available from public sources, as well as the memoranda regarding Article 14 submitted in these cases, I have reached an opinion that Article 14(b) does not preclude actions brought by United States nationals in United States courts under domestic (i.e., Japanese or United States) law.

The plain meaning of the language of Article 14(b) of the Treaty of Peace with Japan in which ``the Allied Powers waive * * * claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war'' is that it extends only to international claims in respect of nationals. Such claims are well understood to be governed by the international legal system even though they arise by virtue of harms to individuals. States of nationality of the victim have complete control ever such claims, and may settle them over the objection of the victims. The Peace Treaty's use of the word ``waive'' indicates unmistakably that such international claims are contemplated. Domestic law claims, in contrast, are subject to national or local law, even though international matters may be involved. A private individual's claim under domestic law cannot be ``waived'' by the state, because it is not the state's claim under the domestic legal system.

A clear understanding of the distinction between international law claims and domestic law claims makes the above conclusion inescapable. The two different types of claims arise under different law, with different fora, different enforcement mechanisms, and usually with different parties. An international claim in its purest form is a claim between nation-states. The Statute of the International Court of Justice reflects this by providing that only states may be parties before the Court. I.C.J. Stat. art. 34(1). The body of law that applies to an international claim is found in international treaty and custom, and not generally from the tort or contract law of particular states, which may after all be different. International claims are typically resolved by diplomacy, but may be subject to international arbitration, or even submitted to international courts like the International Court of Justice. The law applied in such fora is treaty law and customary international law, and not the domestic law of the states parties. (E.g., I.C.J. Stat. art. 38(1); General Claims Convention (Mexico-U.S.), Sept. 8, 1923, art. II, reprinted in 4 U.N. Repts.. of Intl. Arb. Awards 11, 12.) Enforcement of such claims proceeds the way any treaty obligation is enforced. That is, states presumably obtain advantage from being seen as complying with international obligations, and therefore make good on international claims accepted as valid within the international legal system.

An international claim can be on ``individual'' claim in the sense that state A owes State B an obligation not to mistreat a national of State B in a certain way. This occurs also when State A fails to give the national of State B the protection that international law requires. For instance, Iran violated the international law rights (under treaty law and customary international law) of the United States by not protecting individual U.S. diplomats from Iranian mobs (see Case Concerning United States Diplomatic and Consular Staff in Tehran (U.S. v. Iran), 1990 I.C.J. 3, 31-33), and the United States in 1891 violated the international law rights of Italy by permitting a mob to lynch Italians in New Orleans (see Lynching of Italians at New Orleans and Elsewhere, 6 J. B. Moore, Digest of International Law Sec. 1026, at 837 (1906)). In these situations the harm to an individual violated an international obligation defined by international treaty and international customary law. The claim is an individual one in the sense that harm to an individual is the basis for the claim, and the individual often must have exhausted local remedies before the international claim way be upheld. And when a claim is paid to the claiming state, it is normally turned over by that state to the injured individual. But in concept the international claim is one brought by, and under the control of, the state of nationality of the individual victim. A state may settle or waive such claims since it is the party making the claim, and need not get the approval of the individual victim. See 8 M. Whiteman, Digest of International Law 1216 (1963).

In contrast, a domestic law claim is brought under domestic (i.e,national or local) law, such as common law contract or tort law, or statutory antitrust or employment discrimination law. The parties are typically private individuals and corporations (but may include states and government agencies, to the extent that they have personality within the domestic legal system). The forum is generally a court or adjudicative agency of the nation's government or its subdivisions. The enforcement mechanism is the executive arm of the government, which insures that judgments are enforced. Of course the government can affect the rights and obligations of parties to domestic law claims, for instance by legislating to change the law applicable to such a claim. But such a change of rights or obligations would only in the most puzzling fashion be called a ``waiver.'' The government may not waive the claim of its national under domestic law, since it does not represent that individual, nor does it own the claim in any sense even remotely like it owns individual claims under international law.

The law of one system may refer to, and sometimes even incorporate, the law of the other. A treaty may, for instance, refer to the domestic law of the parties. In the other direction, a statute may refer to, or incorporate, treaty language. My recent book is largely a survey of the various ways in which domestic law refers to international law. International Law and United States Law, Ashgate Press, 1999 (hereinafter ``IL&USL''). But international claims remain something very distinct from domestic law claims. Under domestic law, for instance, the Constitution as interpreted by the Supreme Court is the highest domestic law of the United States, regardless of what any treaty says. See Reid v. Covert, 354 U.S 1, 15-18 (1957) (plurality opinion). Under international law, in contrast, a valid treaty is higher than anything in the U.S. Constitution. See Vienna Convention on the Law of Treaties, art. 27, 1155 U.N.T.S. 331.

It is also true that one action may result in both an international claim and a domestic law claim. The categories actually overlap in this sense, but an international claim is often not sufficient to raise a domestic law claim, and a domestic law claim is often not sufficient to be an internation law claim. For instance, an attack on a diplomat--not prevented by local authorities--could give rise to a tort claim for battery by the diplomat against the attacker under California law, and to an international law claim by the sending state against the United States. But many tort and contract claims, even against foreign nationals, and even against foreign states, are not sufficient for the United States to raise an international law claim. Indeed, the United States generally refrains from raising contract claims at the international level, unless there has been something like a state refusal to provide a fair forum. 8 M. Whiteman, Digest of United States Practice International Law 906 (1963); 1975 Digest of United States Practice in International Law 485. And many international claims do not raise the possibility of a domestic law claim. For instance, if the United States were to pass legislation permitting violation of a binding UN Security Council resolution embargoing some rogue regime, no claim would lie under U.S. law against an individual selling goods in violation of the embargo, even though a valid international claim could presumably be brought against the United States (see Diggs v. Shultz, 470 F.2d 461 (D.C. Cir. 1972)).

The overlap is in a very rough way analogous to the overlap of tort law and criminal law within the United States domestic legal system. Tort law and criminal law are different bodies of law, with generally different purposes and different parties. Mere negligence resulting in injury may be tortious but not criminal. And driving recklessly without hurting anyone may be criminal but not tortious. But careless driving may in some cases be both a crime and a tort. It does not follow, though, that the tort claim can be waived by the criminal prosecutor. The government is the party in interest bringing a criminal case, it brings the case in the interest of the public, even though the victim is an individual. The government can settle, criminal claims, even over the objection of the victim, in the greater interest of the general public. It can be said to ``waive'' future prosecution. But the government is not the party in interest in a civil tort suit, and it would be a puzzling use of words for a government prosecutor to ``waive'' future tort litigation brought by the victim. Until the O.J. Simpson case, many non-lawyers may not have clearly understood the way in which resolution of a criminal case does not control resolution of a civil case. But the difference was always there. Similarly, many lawyers misapprehend the clear difference between an international law claim and a domestic law claim, but the difference still there.

As. pointed out in paragraph 7, a government may of course change domestic law, and thereby change the content of domestic law rights and duties. Typically this is done by legislation, but in the United States it can also be done by self-executing treaty provision (President plus \2/3\ Senate approval), by congressionally approved executive agreement (President with statutory authorization), and (in a limited category of cases) by executive agreement without explicit congressional authorization (see United States v. Pink, 315 U.S. 203 (1942)). For instance, the self-executing treaty provision at issue in the famous case of Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), changed the domestic law rights of private parties contesting the ownership of real property in Virginia. See Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603 (1813). And the executive agreement upheld in Darnes & Moore v. Regan, 453 U.S. 654 (1981), changed the domestic law rights of private contractors raising domestic law contract claims against instrumentalities of the Iranian government.

Article 14(b) of the Treaty of Peace with Japan by its plain terms contemplates resolution of international law claims against Japan. This is because of the use of the word ``waive.'' The United States can waive individual claims under international law, because such claims are claims of the United States in important and legally relevant ways. It would make no sense for the United States government to ``waive'' claims of individuals under domestic law. In order to extinguish (or even to affect) domestic law claims, some different language would be required. ``Waive'' means give up, relinquish, or surrender. To extinguish domestic law claims, in contrast, one would expect language like ``extinguish,'' ``suspend,'' ``invalidate,'' ``nullify,'' or the like. Thus, the executive agreement upheld in Dames & Moore v. Regan, 453 U.S. 654 (1981), provided that the United States was obligate to terminate all legal proceedings in United States courts involving claims of United States persons and institutions against Iran and its state enterprises, to nullify all attachments and judgments obtained therein, to prohibit all further litigation based on such claims, and to bring about the termination of such claims through binding arbitration. 453 U.S. at 665, quoting directly from the executive agreement. Or instead of prohibiting domestic litigation, a self-executing treaty might directly change domestic law obligations. For instance, the following treaty provisions changed what otherwise would have been the domestic law rights or obligations of private parties in the United States courts:

The citizens [of the Parties] shall have liberty to * * * carry on trade * * * upon the same terms as native citizens or subjects. (Asakura v. City of Seattle, 265 U.S. 332, 340 (1924).)

A national of the other state `shall be allowed a term of three years in which to sell [certain inherited real] property * * * and withdraw the proceeds * * *' free from any discriminatory taxation. (Clark v. Allen, 331 U.S. 503, 507-508 (1947).)in case real estate situated within the territories of one of the contracting parties should fall to a citizen of the other party, who, on account of his being an alien, could not be permitted to hold such property in the State * * * in which it may be situated, there shall be accorded to the said heir, or other successor, such term as the laws of the State * * * will permit to sell such property, he shall be at liberty at all times to withdraw and export the proceeds thereof without difficulty. * * * (Hauenstein v. Lynham, 100 U.S. 483, 486-490 (1879).)

no higher or other duties, charges, or taxes of any kind, shall be levied by one country on removal of property therefrom by citizens of the other country `than are or shall be payable in each State, upon the same, when removed by a citizen or subject of such state respectively'. (Nielsen v. Johnson, 279 U.S. 47, 50 (1929).)

Article 14(b) of the Treaty of Peace with Japan contains no such language, The article simply does not refer in any plain way to domestic law rights, obligations, or claims. Instead, it waives claims of the United States government, including both claims by the nation as a whole, and international law claims of the United States in respect of nationals.

This conclusion says nothing about whether Article 14(b) is ``self-executing.'' Whether a treaty provision is self-executing determines whether the provision changes domestic law without implementing legislation by Congress. Only it Article 14 obligated the United States to extinguish a category of domestic law claims, or to change domestic law rights or obligations, and no legislation implemented the obligation, would a court have to determine whether the obligation was self-executing as a matter of United States law. See IL&USL at 76-87. But where a treaty provision does not obligate the United States to change its domestic law in the first place, it is a question of the most conjectural sort to ask whether, if it did, it would be self-executing. Accordingly, no authorities dealing with whether a treaty provision is self-executing are relevant to the conclusion that the provision simply does not extend to domestic law claims.

That Article 14(b) does not extend to domestic law claims of nationals is directly supported by the contemporaneous Stikker-Yoshida correspondence of 1951. By note of September 7, 1951. Netherlands Minister of Foreign Affairs Dirk Stikker drew the attention of the Prime Minister of Japan to Foreign Minister Stikker's words addressed to the Peace Conference on the previous day:

It is my Government's view that article 14(b) as a matter of correct interpretation does not involve the expropriation by each Allied Government of the private claims of its nationals so that after the Treaty comes into force these claims will be non-existent.

The question is important because some Governments, including my own, are under certain limitations of constitutional and other governing laws as to confiscation or appropriating private property of their nationals. Also, there are certain types of private claims by allied nationals, which we would assume the Japanese Government might want voluntarily to deal with in its own way as a matter of good conscience or of enlightened expediency.

This statement, is perfectly consistent with reading the waiver with respect to nationals found in Article 14(b) to extend only to international law claims of states in respect of individuals, and not to claims of nationals under domestic legal systems, Indeed, it is otherwise difficult to make sense of the Netherlands Foreign Minister's statement.

That Article 14(b) does not extend to domestic law claims of nationals is further supported by a law review article by the Counselor, at the time of writing, of the Japanese Embassy in London. Tetsuo Ito, Japan's Settlement of the Post-World War II Reparations and Claims, 34 Japanese Annual of International Law 38 (1994). Mr. Ito's analysis, though it is his own and does not purport generally to represent official Japanese government opinion, has particular weight inasmuch as Mr. Ito is a former director of the Legal Affairs Division of the Treaties Bureau of the Japanese Foreign Ministry. At the end of a clear two-page discussion of the nature of international claims in respect of individual nationals, id. at 67-69. Mr. Ito reaches the following conclusion, describing it as the position of the Japanese

Government: [I]t seems the following view of the Japanese Government is persuasive: ``the waiver by a state of claims of its nationals,'' provided for in treaties concerned, does not mean the renounciation of the right to claims themselves, which its nationals possess, or, at least, can claim to possess, on the basis of its municipal laws, but means the renounciation of the right of diplomatic protection, which the state possesses, in respect of the claim of its nationals, under international law. Therefore, after waiving the claims of its nationals in treaties, the state can not take up the issue of such claims on an intergovernmental basis, even if its individuals request to do so. Id. at 68-69.

Finally, the Statement of Interest by the United States is remarkably bare of support for its apparently contrary analysis. It is true that courts defer to the opinion of the Executive Branch. The Statement of Interest filed on May 23, 2000, however, fails to provide any support far its conclusion that the Treaty of Peace aid the War Claims Act created a remedy that excluded domestic law claims of U.S. nationals. The Statement of Interest states repeatedly (at 2, 4, 6, 10, 12, 13) that the Peace Treaty, along with the War Claims Act that provided for distribution of funds obtained by the United States pursuant to the treaty, created an exclusive remedy for compensation for prisoners of war. But nothing in the Statement of Interest actually supports this conclusion. First, Congress's desire that claims within the War Claims Commission's jurisdiction not be adjudicated by courts (Statement of Interest at 6) by its terms extends only to claims against the funds that the War Claims Commission was to distribute, i.e., funds obtained for international legal claims. It is perfectly consistent with that intent for domestic law claims between nationals of the two states to survive. Second, contrary to the Statement of Interest (at 10), the plain meaning of Article 14(b) does not support the argument that domestic law claims are, extinguished The plain meaning of ``waive'' is to the contrary, See paragraph 12, supra. Third, the discussion of the federal preemption doctrine (at 11-13) relies upon the treaty interpretation of Article 14(b) that domestic law claims are extinguished, but does nothing to support that underlying premise. All of the authorities cited in the Statement of Interest are fully consistent with the natural reading of Article 14(b), that the Allied Powers waived their international law claims. The Statement of Interest fails entirely to deal with the accepted distinction between international law claims and domestic law claims. The Statement of Interest fails to explain how language of ``waiver'' somehow means extinguishment. It fails to explain either the Stikker-Yoshida correspondence, or the Japanese Government views described in the Ito article. Accordingly, with respect to Article 14(b), the Statement of Interest contains no more than repeated governmental ipse dixit that domestic law claims of U.S. nationals have been excluded by a treaty, a treaty that simply does not say as much.

It should be added that domestic law claims of the United States government are also conceivably waived by Article 14(b), since it is possible that the United States gave up its right to pursue a class of claims in the domestic courts of Japan or the United States, in addition to waiving its international law claims. But with respect to domestic law claims of U.S. nationals, it is an entirely strained and unnatural reading of the words ``the Allied Powers waive'' to interpret it to mean the Allied Powers ``take away'' or ``extinguish'' claims of their nationals in domestic courts under domestic law. Under no accepted concept are such claims--in contrast with international law claims--theirs to ``waive.''

Prepared Statement of Joseph A. Violante

Mr. Chairman and Members of the Committee: On behalf of the more than one million members of the Disabled American Veterans (DAV) and its Auxiliary, I am pleased to provide DAV's remarks for the record on the plight of former World War II American Prisoners of War (POWs) captured in the Pacific, and their struggle for justice.

The DAV is made up of men and women disabled in our nation's defense. The DAV was founded in 1920 and chartered by Congress in 1932 as the primary advocate for America's service-connected disabled veterans, their dependents and survivors. Since its inception, the DAV has been dedicated to one, single purpose: building better lives for our nation's disabled veterans and their families. During the past 80 years, the DAV has never wavered in its commitment to serve our nation's service-connected disabled veterans, their dependents and survivors.

The DAV has a narrow legislative focus defined by its Congressional charter and our Constitution and Bylaws. We are charged with advancing the interests of wartime disabled veterans and their dependents concerning certain federal veterans' benefits and services. These benefits and services have, as part of their eligibility criteria, the establishment of a service-connected disability as a result of wound, injury, or disease that occurred during active duty. Our major policy positions are determined by our membership passing certain resolutions at our annual National Conventions. These resolutions must be in keeping with the guidelines of our charter, as well as our Constitution and Bylaws.

In recognition of the fact that former POWs suffered cruel and inhumane treatment and nutritional deprivation at the hands of their captors, which resulted in long-term adverse health effects, our membership has consistently supported legislation that would expand POW presumptions.

Although no resolution was submitted for DAV to consider supporting the efforts of former World War II American POWs in the Pacific in their efforts to seek legal action against those Japanese companies who used American POWs as slave labor, the DAV is seriously concerned about our government's position opposing this litigation. It is inconceivable that our government would take a neutral position with regards to similar issues affecting reimbursement from German companies, and oppose claims directed to private Japanese companies for whom former POWs were forced to work as slaves.

Sadly, our nation has chosen to continue to ignore its commitment to those brave men and women who have defended the freedoms all Americans, and many citizens around the world, cherish. It is hard to imagine a group of men and women more deserving than those former POWs who endured months and years of cruel and inhumane treatment, brutality, nutritional deprivation, and adverse health effects at the hands of their captors, especially those captured in the Pacific theater.

The DAV strongly believes that our nation has a sacred obligation--a duty--to ensure that the defenders of our freedom are adequately cared for, compensated, rehabilitated, and returned to gainful civilian employment, whenever possible. In many cases, it is impossible to erase the physical and mental traumas of war suffered by those valiant warriors who sacrificed, and gave their all, no questions asked, in defense of freedom.

There is a common bond among veterans, forged by their shared experiences that have molded their character and their values. Although their lives have been forever changed, their values have not, and their commitment to this nation remains strong, even though our government too often reneges on its commitment to them.

In return for sacrificing their lives, their limbs, and mental and physical well-being, the only thing that veterans have ever asked in return is that our government honors its commitment to help them and their families in their hour of need. This sacred covenant between our nation and its citizen soldiers has been both implied and implicit since our nation was founded.

We must never forget how blessed we are to live in a free society, nor forget the price that was paid for our freedom, especially by those deprived of all human dignity by their captors. We must, therefore, honor and care for those who distinguish their lives in defense of freedom--whatever the cost.

The only thing that these former World War II American POWs of the Pacific Theater ask is for the right to receive just and fair compensation from private Japanese companies who profited from their slave labor, without interference from our government. At the very least, our government should remain neutral and not oppose their legal action--they deserve nothing less.

Mr. Chairman, this completes my testimony. Thank you for allowing the DAV the opportunity to discuss its concerns about our government's opposition to the legal claims of former World War II American POWs against private Japanese companies.

American Defenders of Bataan & Corregidor, Inc.,
Wellsburg, WV, June 20, 2000.

Senator Orrin Hatch,
Dirksen Senate Office Building, Washington, DC.

Dear Senator Hatch: We were squeezed into the filthy allotted space in the bowels of the hell ships, and were locked in for safe-keeping.

Maybe there was still some physical strength left for work or perhaps they would serve as barter should the Japanese militarists need them for such. Devoid of any comforts, without food or water and not even the courtesy to mark the ship as carrying prisoners of war, we sailed through the battle infested waters toward Japan. We saw the smack of atorpedo or bomb as it hit the ship, we saw the rushing water as it entered the hold and we felt panic that said ``This is it''. There was terror written in deep gaunt lines on the faces of the men. Men that were then to the breaking point. We arrived in Japan and were assigned to quarters which were unfit for human living, starved, beaten and then assigned to Japanese industrialists as slave labor to work in plants to manufacture and handle war materials which would be used against our own country men for almost three and one half years. thousands died from starvation and severe mistreatment by the Japanese military. Today we suffer immensely from the residual effects of our prisoner of war life. It took 36 years for our government (PL 97-37) to recognize the physical and mental disabilities of this group of veterans.

Those few who came home continually looked to their government to seek some compensation from the Japanese government and industrialists who used them as slave labor during World War II. As of this date they have found none. What we did receive is, a peace treaty with Japan, that many of us claim denies us redress for violation of our basic human rights. With the help of a few civic minded attorneys and other individuals in various parts of the United States, the prisoners of war community has initiated a drive for justice against those Japanese industrialists that used us as a slave labor in plants that produced war goods which were used against those gallant and brave armed forces who were island hopping in the South Pacific to free them from the tyrannical hands of the Japanese government. A number of law suits have recently been filed in the state of California on behalf of these former prisoners of war. These complaints were filed against those Japanese firms that benefited from their slave labor during World War II. Currently, there are almost eighty attorneys assisting in the litigation against the Japanese industrialists.

Hopes were high that perhaps justice might now prevail for this group. However, the prisoner of war community has recently been informed that the United States Department Of Justice, pursuant to a court's order requesting such, has issued an opinion that supports the Peace Treaty with Japan dated September 8, 1951. The opinion states that a claim relying on state law is considered one ``arising under'' federal law and may be removed to federal court, The opinion states that the Peace Treaty along with the War Claims Act of 1948 preempts state law claims as shown in Raymond Heimbuch et al against Ishihara Sangyo Kaisha Ltd. for remanding the litigation to a state court.

This action by the Justice Department is in direct contradiction to a letter by Judge John W. Bissell that requested the department to appear as ``amicus curiae'' (commonly known as friend of the court) in two slave labor claims on behalf of persons forced to work in German factories during World War II. The Civil Division of the Department of Justice respectfully declined the request of Judge Bissell to become involved in this particular litigation.

It is very apparent that the Justice Department made a determined decision only six months ago not to interfere with claims pending on behalf of Holocaust slave tabor victims, whereas in the Raymond Heimbuch et al litigation, they have taken a position which is detrimental to such claims on behalf of slave labor victims of the Japanese industrialists. These former prisoners of war are bewildered that the Department Of Justice chose to take such a position which interferes with the rights of a private citizens to bring claims against private companies. These plaintiffs are particularly concerned that the effect of this opinion could nullify the action of theCalifornia legislature in seeking to open up State courts for American POW's pursuing fair compensation for slave labor performed during World War II.

Why are former prisoners of war who were forced to perform slave labor for the Japanese companies being treated differently from persons who performed as slave labor for German companies during World War II? Why did the Department of Justice publicly state a position that is adverse to the former prisoners of war who seek redress from private Japanese companies? It should be noted that many of the Holocaust slave labor victims and their representatives have been actively involved in supporting legislation against Japanese companies and are doing everything they can to right the injustices which occurred in the Pacific during World War II. We would appreciate your help on this matter.

Respectfully yours,

Edward Jackfert,
Past National Commander, American Defenders Of Bataan & Corregidor

The American Center for Civil Justice,
Brooklyn, NY, June 10, 2000.

Stuart Eizenstat,
Deputy Secretary of the U.S. Treasury,
U.S. Treasury Department, Washington, DC.

Dear Mr. Eizenstat: The American Center for Civil Justice, an advocacy group, has been responsible for the public awareness that has spawned the more than thirty present lawsuits against Japanese Corporations for the enslavement of American ex-POWs during World War II.

The Center provided the initial and essential historical and legal research to enable these claims to move forward. The Center has also corresponded with some of the Japanese Corporations that maintain headquarters in the United States.

The Center's primary goal and commitment has been to establish a quick and early closure to this issue of compensation that has been ignored for half a century.

The Center is presently proposing a direct settlement between the companies and the claimants, that will be fair to the victims without harming the corporations involved.

The Center believes this approach is in the best interest of all parties and in the national interest of both Countries.

The Center represents the majority of living American claimants and has the ability to reach out to all American victims within a reasonable period of time.

The Center has no financial interest in this claim or settlement and has made every effort in preventing this issue from becoming a new found source of revenue for the legal industry,

This proposal and your response to it are destined to become part of the history of this affair, and such intervention would seem to be within your official capacity.

I would be available to meet with you at the earliest possible opportunity.

Sincerely,

Michael Engelberg, MD

The American Center for Civil Justice,
Brooklyn, NY, June 13, 2000.

Mr. Hiroaki Yano,

President, Mitsubishi International Corp., NY, NY.

Dear Mr. Yano: The American Center for Civil Justice, an advocacy group, is authorized to represent 600 American ex-POWs of alleged Japanese slave labor, the largest group seeking redress for enslavement.

Since our last correspondence in December, approximately thirty new lawsuits have been filed against Japanese industries and the United States legal system is being used as a tool to pursue these claims.

The Center which was the original advocate of this issue and was responsible for making it public, proposes a swift and direct settlement, which will remove this claim from the courts. By immediately addressing these claims, this issue, that will affect American and Japanese relations, and may affect the future of your company, would be resolved in a sensible and just manner.

The Center will be able to reach out to all American victims within a reasonable period of time.

In continuing to defend these mushrooming claims in U.S. Courts, your legal and public relations cost could possibly exceed a total settlement cost while not bringing closure to either plaintiff or defendant.

This is a serious offer of good faith on behalf of the victims and the Center will have no financial interest in this claim or settlement.

The Center believes this approach is in the best interest of all the concerned parties and is in the national interest of both of our countries. While it is unfortunate that the Center's December correspondence and its recommendations was not acted upon, no action on your part will initiate further law suits which will elevate the expenses and public profile of this unfortunate matter.

Your response to this offer, which is being made on behalf of the elderly and frail American surviving victims, will for posterity, reflect your attitude and approach towards correcting an historical injustice.

If you would like to explore the framework and details of this recommendation, I will be available to meet with you or your representative at the earliest possible opportunity.

Sincerely,

Michael Engelberg, MD

The American Center for Civil Justice,
Brooklyn, NY, June 13, 2000.

Mr. Hiroshi Noda,
Kawasaki Heavy Industries (U.S.A.), Inc., NY, NY.

Dear Mr. Noda: The American Center for Civil Justice, an advocacy group, is authorized to represent 600 American ex-POWs of alleged Japanese slave labor, the largest group seeking redress for enslavement.

Since our last correspondence in December, approximately thirty new lawsuits have been filed against Japanese industries and the United States legal system is being used as a tool to pursue these claims.

The Center which was the original advocate of this issue and was responsible for making it public, proposes a swift and direct settlement, which will remove this claim from the courts. By immediately addressing these claims, this issue, that will affect American and Japanese relations, and may affect the future of your company, would be resolved in a sensible and just manner.

The Center will be able to reach out to all American victims within a reasonable period of time.

In continuing to defend these mushrooming claims in U.S. Courts, your legal and public relations cost could possibly exceed a total settlement cost while not bringing closure to either plaintiff or defendant.

This is a serious offer of good faith on behalf of the victims and the Center will have no financial interest in this claim or settlement.

The Center believes this approach is in the best interest of all the concerned parties and is in the national interest of both of our countries. While it is unfortunate that the Center's December correspondence and its recommendations was not acted upon, no action on your part will initiate further law suits which will elevate the expenses and public profile of this unfortunate matter.

Your response to this offer, which is being made on behalf of the elderly and frail American surviving victims, will for posterity, reflect your attitude and approach towards correcting an historical injustice.

If you would like to explore the framework and details of this recommendation, I will be available to meet with you or your representative at the earliest possible opportunity.

Sincerely,

Michael Engelberg, MD

Assembly California Legislature,
Sacramento, CA, June 30, 2000.

RE: Senate Hearing on ``Former U.S. World War II POWs: A Struggle for Justice''

Hon. Orrin Hatch,
Chair, Honorable Members of the Senate Judiciary Committee,
U.S. Senate Committee on the Judiciary, Dirksen Senate Office Building,
Washington, DC.

Dear Chair and Judiciary Committee Members: I write to you as a co-author of California State Senator Tom Hayden's legislation (Senate Bill 1245 of 1999) which grants former prisoners of war a basis to pursue claims against Japanese companies doing business in California. I am also the author of Assembly Joint Resolution 27 of 1999, which calls for Japan to formally apologize and pay reparations for war crimes.

In 1670, Benedict Spinoza wrote in his Theological-Political Treatise:

Peace is not an absence of war, it is a virtue, a state of

mind, a disposition for benevolence, confidence, justice. For former slave laborers, the war is over, but there is no peace. In an effort to bring closure to a heroic community of Americans, the State of California has granted former prisoners of war who were forced to work as slave laborers a right to seek compensation. I urge you to do all within your power to allow these Americans to have their day in court.

The Justice Department has interpreted the San Francisco Peace Treaty of 1951 as barring these claims. The Justice Department opinion passively restates the position of the State Department, but is void of any apparent common sense of justice. It fails to recognize that a true peace is more than the absence of war.

While I value the work of the Justice Department, I recall that the Justice Department successfully opposed the initial claims of Japanese-Americans seeking redress for their internment. In this instance, as in the past, there are persuasive legal arguments contrary to the position of the State Department. These arguments must be aired in a court of law.

This is truly a test of our democracy. I urge you and every member of Congress assist these valiant Americans by securing their day in court--they deserve nothing less. To deny them a day in court is, at this point, to deny them justice and their only remaining opportunity for true peace.

Sincerely,

Michael M. Honda,
California State Legislature, 23rd Assembly District

The Center for Internee Rights, Inc.,
Miami Beach, FL, June 22, 2000.

Senator Orrin Hatch,
Senate Judiciary Committee, U.S. Senate,
Washington, DC.

Dear Chairman Hatch, On behalf of our fifty thousand members representing former POWs and civilian internees of Japan in World War II let me thank you for taking an interest in the plight of these poor souls who were so brutalized by Japan in WWII.

Frankly, we are shocked and disappointed on the recent decision issued by the Department of Justice relating to American POWs used by private Japanese companies as slave labor in WWII. California took the initiative and did the right thing by passing laws to allow slave laborers to sue the companies that used them illegally and who never paid them. The issue is not a sovereign nation to sovereign nation issue but one of an individual citizen suing a private company. Why people keep bringing up the San Francisco Peace Treaty as blocking the ability of these lawsuits to progress is beyond me.

Frankly, Senator Hatch, the San Francisco Peace Treaty ought to be looked at very carefully for it specifically did not end the issue of compensation for the victims of Japan. The history of the Treaty is certainly flawed with ominous political reckoning and the victims were mostly ignored by their own Government. Germany on the other hand has stepped forward and faced their transgressions in WWII in a just and honorable way. The US Government has strongly supported the effort both private and governmental in settling compensation issues for those who suffered under the Nazi German Regime. Why then is there a dual standard when it comes to the same type of victims who suffered under the Japanese?

I can tell you this, having been a former internee of the Japanese in WWII, those captured by Japan suffered unspeakable and inhumane treatment by Japan. The US on the other hand treated the Japanese, Japanese-Americans, Italians and Germans who were interned in the United States during the war with kindness, respect and far beyond the parameters of the Geneva and Hague Convention. That is the American way and we can be proud that we treated enemies at time of war in such a benevolent fashion.

The Japanese Government will continue to hide behind the San Francisco Peace Treaty until the United States Government faces the fact that they themselves were involved in an unjust Treaty that fully overlooked the plight of the American citizens captured and interned by Japan.

It is our hope, Senator Hatch, that your Hearings will expose the US Government's calloused and uncaring attitude toward the American citizens who sacrificed all in the pursuit of freedom and democracy that we are privileged to enjoy today. In the spirit of our great nation your Committee can resolve the situation. it is time to do the right thing.

Respectfully,

Gilbert M. Hair (Santo Tomas Internee),
Executive Director,
Life Member--ADBC, AXPOW, DAV, AMERICAN LEGION, CORMV.

[Editor's note: The attachment of an article from the Veterans' Journal, October 1999 Issue, Volume 2, Number 10, ``Massacres and Atrocities of World War II,'' is retained in Committee files.]

Office of Selectman,
State of Connecticut,
Stafford Springs, CT, June 20, 2000.

Senator Orrin Hatch,
Chairman, Senate Judiciary Committee, Washington, DC.

Dear Mr. Hatch, A resident of our community, Darrell Stark was captured in the Philippines by the Japanese as a young man at the onset of World War II.

While most of the men in his unit died either while being transported or in captivity, Mr. Stark survived. He was transferred to Japan and forced to work as a slave laborer for three years.

He feels strongly that like his counterparts who were forced to do slave labor for the Germans, that he should be able to bring Civil Actions against the Japanese companies that profited from his labor in the United States Courts.

We understand that people, who were enslaved in the European Theater, are permitted to bring suit, but those people used in this fashion in Asia are not. The concept that some former service men and women can bring suit and others can't is difficult to understand.

We understand that vital social and governmental issues may be involved with their decision but the overriding human consideration should be that federal legislation should be enacted to permit our former slave laborers to be compensated for their suffering and their work.

Your swift attention to this matter will be appreciated not only by Darrell Stark but also by the thousands of other former service men and women who suffered the same fate.

Very truly yours,

John E. Julian,
First Selectman

The American Legion,
Washington, DC, June 27, 2000.

Hon. Orrin Hatch,
Chairman Senate Judiciary Committee,
Dirksen Senate Office Building, Washington, DC.

Dear Chairman Hatch: On behalf of the 2.8 million members of The American Legion, I want to express our sincere thanks to you for scheduling the Judiciary Committee hearing on June 28 on the subject of compensation for Bataan POWs. We welcome and appreciate your leadership on this issue and trust that the hearing will help bring closure and justice to the survivors of Bataan who have been waiting for this for over fifty years.

Bataan survivor compensation has been a concern of The American Legion for many years. We have two longstanding resolutions that speak to this specific issue. Our steadfast position remains that the Japanese government must:

(1) Render an official and unequivocal apology for the pain, suffering and death inflicted on American POWs and

(2) Pay $20,000 to the surviving service members who were involved in the Bataan Death March and to the Families of the non-surviving service members.

We feel that this is the very least the Japanese can do to right one of the most egregious wrongs of the 20th Century.

As you are well aware, the American prisoners held by the Japanese were subjected to conditions and deliberate abuse that were beyond belief. Upwards of 10,000 American prisoners died as a result of Japanese brutality during their occupation of the Philippines. Seeing that Germany has apologized for its injustices during World War II and reparations have been paid to Japanese-Americans who were forced into internment camps, positive steps from Japan are long past due.

The American Legion was certainly pleased to see the recent introduction of H. Con. Res. 357 that expresses the sense of Congress concerning war crimes committed by the Japanese military during World War II. This resolution closely mirrors American Legion positions and calls for both an apology and the payment of reparations to surviving POWs, by the Japanese. We strongly support H. Con. Res. 357 and urge the U.S. Government to exact pressure on the Japanese government and commercial interests to make an apology and make payment of reparations a reality.

We are also aware of section 655 of S. 2549, the National Defense Authorization Act for fiscal year 2001, which if enacted will pay a gratuity through the Secretary of Veterans Affairs to eligible veterans or their surviving spouses. This provision would pay $20,000 to veterans of Bataan or Corregidor who were POW's forced to preform slave labor in Japan during WWII. The American Legion would support this proposal only after all attempts diplomatic, administrative and Congressional in nature for payment by the Japanese government or Japanese commercial interests have been exhausted.

The American Legion applauds the Committee's actions to expose and address the heinous activities of the Japanese during World War II. While Japan can never fully atone for these actions, the Japanese most assuredly should take steps to apologize and provide a sense of justice to the Bataan survivors and their families.

Sincerely,

John F. Sommer, Jr.,
Executive Director

AMVETS,
Lanham, MD, June 26, 2000.

The Hon. Orrin Hatch,
U.S. Senate Washington, DC.

Dear Senator Hatch: As AMVETS National Commander, I am pleased to support the efforts of the Senate Judiciary Committee to examine the plight of the U.S. POW's and civilian internees who were captured, interned and brutalized by Japan during WWII.

It is important that we as a nation investigate the service of American POW's forced to endure long hours of hard labor for Japanese businesses during their capture and recognize and compensate those brave veterans. This issue is of great concern to the AMVETS membership. This August, at our 56th National Convention, delegates will consider an organizational resolution that requires AMVETS to support all efforts to investigate and resolve the claims of slave labor by the Japanese during WWII.

Thank you for the opportunity to express our support for this important issue. AMVETS is proud of your efforts in helping to secure the benefits of America's veterans.

Yours in loyalty and service,

Charles L. Taylor,
AMVETS National Commander

House of Representatives,Washington, DC, June 23, 2000.

The Hon. Orrin G. Hatch,

Chairman, Senate Judiciary Committee, Washington, DC.

Dear Mr. Chairman: It has come to my attention that you are considering holding hearings on the ability of American Prisoners of War (POWs) held by the Japanese during WWII to sue, in federal court, for the injuries, back wages, and damages resulting from the POW's imprisonment and forced labor. I write to express my strong support of your holding hearings to look into this matter.

Several thousand American soldiers were held as POW's and performed slave labor which, in large part, contributed to the wealth and success of many private Japanese corporations. These POW's endured unspeakable horrors, were beaten often, and poorly fed while working in mills 10 to 15 hours per day. We, in the Federal Government, have an obligation to ensure that the soldiers, who were imprisoned as they fought to protect and preserve our freedom and democracy, receive the just compensation to which they are entitled.

As you know, similar cases involving Nazi Germany have arisen. However, there seem to be inconsistencies in how the Department of Justice has responded to certain courts which have sought the opinion of the United States regarding cases involving POW's held by Japan and Germany. As such, I believe that a hearing is appropriate and the Senate is best suited to conduct hearings on how best to resolve this situation as any action on this issue would involve or be impacted by the treaties that ended WWII.

You may also know that the State of Rhode Island is currently considering legislation that would allow former POW's and their kin to sue, in Superior court, Japanese corporations that profited greatly from the slave labor of these prisoners. That legislation unanimously passed the Rhode Island State Senate and is expected to pass the House.

Thank you for your attention to this matter and please feel free to contact me if you have any questions or if I can provide any additional information.

Sincerely,

Bob Weygand,
Member of Congress

Military Order of the Purple Heart,
Springfield, VA, June 23, 2000.

The Hon. Orrin G. Hatch, Chairman, Committee on the Judiciary, U.S. Senate, Dirksen Senate Office Building, Washington, DC.

Senator Hatch: The Military Order of the Purple Heart, a Congressionally chartered organization dedicated to protecting and advancing the rights and interests of our Nation's Combat Wounded Veterans, supports the request for equitable and fair treatment made by our former Japanese-held World War II Prisoners of War. Specifically, these POWs are requesting that the U.S. Government support, by all appropriate means, their claims for redress from private Japanese companies that used them as slave labor during the course of their imprisonment.

The Military Order of the Purple Heart. requests that the Senate Committee on the Judiciary investigate and explore the historical, legal, and practical issues involved with the claims for equitable compensatory action made by these gallant veterans and former POWs. We would especially ask that the following specific concerns of these veterans be addressed:

That certain key language in the San Francisco Peace Treaty of 8 September 1951 is not operative in light of Article 26, the Most Favored Nation Clause, of that treaty.

That the language of Article 14(b) of the Treaty does not encompass current U.S. POW claims.

That the Treaty does not operate to waive national versus national claims.

That the U.S. Justice Department's Statement of interest of the United States on the Plaintiffs Motion to Remand in Heimbuch v. Ishihara & Co., Ltd., Case No. COO-0064 WHA, (N.D.

Cal. Mar. 23, 2000) (J. Alsup) dated 23 May 2000 is inequitable in light of the U.S. position taken on litigation (Gross v. Volkswagen and Rosenfeld v. Volkswagen) involving German Holocaust victims.

I thank you in advance for your interest and consideration of this request.

Yours in patriotism,

Frank G. Wickersham, III
National Legislative Director, MOPH.