Opening Statement of David W. Ogden
Acting Assistant Attorney General
Civil Division
Mr. Chairman and members of the Committee.
I appreciate the opportunity to appear before you to provide additional information concerning the United States' Statement of Interest in Heimbuch, et al. v. Ishihara Sangyo Kaisha, Ltd. et al., a case brought by American prisoners of war of the Japanese against Japanese companies. Based upon the Chairman's letter to the Attorney General and my own discussions with Committee staff, I understand that the Chairman is seeking to ensure that the Justice Department is applying a consistent policy in its treatment of various World War II-related and prisoner of war-related matters, and in particular to assure that the Justice Department fulfilled its professional obligations and based its filing in Heimbuch on a sound, thorough legal and historical analysis. As I will explain, I believe the Department has been both consistent and diligent in its representation of the United States in this matter.
Before turning directly to these questions, I would like to make some preliminary and somewhat personal observations. First, I consider it a singular privilege to represent the United States in our courts, and recognize that this privilege carries substantial obligations. Foremost among these, of course, is the attorney's responsibility to his client ñ to represent the United States' interests faithfully and diligently consistent with the law. Counsel for the United States is also an officer of the Court, and a servant of the American people. As such, there is a particularly strong obligation to help the courts correctly apply the law and do justice in matters affecting the interests of the United States. As acting head of the Civil Division, I have been blessed to have the support of a dedicated and talented group of career attorneys who, day in and day out, meet those high standards and help me to do so.
I have also found that, on occasion, the faithful performance of these duties can be personally painful. That has been true in the Heimbuch case. I have profound respect for, and feel deep personal indebtedness to, the plaintiffs in this case. They, and other great Americans like them, endured the most brutal of conditions in the service of this Nation, and their efforts and suffering were crucial to safeguarding our freedom at a very dark hour. I have not relished the responsibility of submitting legal papers on behalf of this Nation that have opposed their legal claims against entities that, they allege, abused them and benefitted from their enslavement during the War.
Let me turn now to the specifics of the case. In a March 24, 2000 Order in Heimbuch, United States District Judge Alsup of the Northern District of California requested that the United States express its views on whether federal law governs any claims by American soldiers captured and imprisoned by Japan during World War II, where such claims are directed to private Japanese companies for whom such soldiers were forced to work as slaves, and whether removal of such claims to federal court is proper. On May 23, 2000, the Department of Justice, on behalf of the United States, filed a Statement of Interest with respect to those issues, and expressed the position that such claims are governed by federal law and should be heard in federal court. This conclusion was based on the 1951 peace treaty between the United States and Japan, in which the United States expressly waived its own claims, and those of its nationals, against Japan and its nationals, arising from the prosecution of the War. The United States has not been asked to provide, and has not purported to provide, its views with respect to any other aspects of those claims.
Under 28 U.S.C. ß 517, the Department of Justice's role is to represent the positions and policies of the United States in litigation matters. The Department of Justice, as you will undoubtedly understand, tries to be as responsive as possible to judicial requests for the views of the United States in cases in which there is a federal interest. When we receive a request such as the one in Heimbuch, we communicate with the client agency to determine what the appropriate response should be. In this case, the Justice Department acted at the request of the Department of State, which, of course, is the agency responsible for conducting the foreign relations of the United States, including interpreting treaties to which the United States is a party. The State Department asked the Justice Department to file a brief in response to the Court's request in Heimbuch, advising the Court that the 1951 peace treaty preempted any state law claims and required that the matter be heard in federal court.
Our attorneys reviewed the State Department's request carefully and thoroughly and worked closely with lawyers in State's Legal Adviser's office to research the issues and to present the court with a statement responsive to its inquiry that represented the legal and policy views of the United States. As you will see from the Department's written answers to the questions you submitted, it is clear from the language of the 1951 peace treaty and the materials surrounding its negotiation and ratification that the United States intended to waive its claims and those of its nationals against Japan and its nationals. As I have said, we admire and sympathize with these valiant men who were prisoners of war, and condemn the wartime policies of Japan and its industry that forced them into servitude. But in 1951, President Truman and the United States Senate made a carefully considered, national decision that our interests would best be served by a peace settlement that resolved all potential legal claims. For that reason, it was the strong view of the Department of State that, the United States having made this solemn commitment in a treaty, it must honor its obligation. The Statement of Interest was filed in that spirit.
I know that the Chairman is also concerned that, in contrast to the filing in Heimbuch, the United States did not file a Statement of Interest in Gross v. Volkswagen and Rosenfeld v. Volkswagen, litigation in the District of New Jersey involving the claims of individuals who were allegedly enslaved by German entities during the War. In a letter we have attached to our answers to the Committee's questions, I advised United States District Judge John W. Bissell that negotiations between representatives of the plaintiffs and representatives of Germany and German industry were ongoing over creation of a German foundation to compensate victims, and that those negotiations were then at a "very delicate" stage. As I explained, "as a result, we are reluctant to take action now that might interfere with achieving that objective, an achievement we believe the court would welcome." The Department also agreed to update the Court on the progress of the talks and "perhaps suggest a further schedule" for providing the United States' views. Thus, the government's decision not to submit its views to Judge Bissell was done in an effort to facilitate a consensual settlement of the case that might make resolution of the legal issues unnecessary.
The decision not to file a brief in Gross and Rosenfeld was made based upon the recommendation of the Department of State, which has been leading an effort by the United States government to facilitate such a resolution. Its responsibility is to determine the policy interests of the United States in this regard, and the Department of Justice deferred to its policy views with respect to declining to file a Statement of Interest in the district court.
I hope that these remarks, and the written answers we have provided to the Committee's inquiries, are helpful. I would glad to respond to any questions the Committee may have.