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[Senate Hearing 106-585]
[From the U.S. Government Publishing Office]

                                                        S. Hrg. 106-585
 
         FORMER U.S. WORLD WAR II POW'S: A STRUGGLE FOR JUSTICE

=======================================================================

                                HEARING

                               before the

                       COMMITTEE ON THE JUDICIARY
                          UNITED STATES SENATE

                       ONE HUNDRED SIXTH CONGRESS

                             SECOND SESSION

                                   on

DETERMINING WHETHER THOSE WHO PROFITED FROM THE FORCED LABOR OF 
  AMERICAN WORLD WAR II PRISONERS OF WAR ONCE HELD AND FORCED INTO 
  LABOR FOR PRIVATE JAPANESE COMPANIES HAVE AN OBLIGATION TO REMEDY 
  THEIR WRONGS AND WHETHER THE UNITED STATES CAN HELP FACILITATE AN 
  APPROPRIATE RESOLUTION

                               __________

                             JUNE 28, 2000

                               __________

                          Serial No. J-106-94

                               __________

         Printed for the use of the Committee on the Judiciary

                       COMMITTEE ON THE JUDICIARY

                     ORRIN G. HATCH, Utah, Chairman

STROM THURMOND, South Carolina       PATRICK J. LEAHY, Vermont
CHARLES E. GRASSLEY, Iowa            EDWARD M. KENNEDY, Massachusetts
ARLEN SPECTER, Pennsylvania          JOSEPH R. BIDEN, Jr., Delaware
JON KYL, Arizona                     HERBERT KOHL, Wisconsin
MIKE DeWINE, Ohio                    DIANNE FEINSTEIN, California
JOHN ASHCROFT, Missouri              RUSSELL D. FEINGOLD, Wisconsin
SPENCER ABRAHAM, Michigan            ROBERT G. TORRICELLI, New Jersey
JEFF SESSIONS, Alabama               CHARLES E. SCHUMER, New York
BOB SMITH, New Hampshire

             Manus Cooney, Chief Counsel and Staff Director

                 Bruce A. Cohen, Minority Chief Counsel

                                  (ii)
                            C O N T E N T S

                              ----------                              

                    STATEMENTS OF COMMITTEE MEMBERS

Hatch, Hon. Orrin G., U.S. Senator from the State of Utah........     1
Feinstein, Hon. Dianne, U.S. Senator from the State of California     5
Grassley, Hon. Charles E., U.S. Senator from the State of Iowa...    22
Leahy, Hon. Patrick J., U.S. Senator from the State of Vermont...    23

                    CHRONOLOGICAL LIST OF WITNESSES

Statement of Hon. Jeff Bingaman, U.S. Senator from the State 
  of New Mexico..................................................     3
Panel consisting of David W. Ogden, Acting Assistant Attorney 
  General, Civil Division, U.S. Department of Justice, 
  Washington, DC; and Ronald J. Bettauer, Deputy Legal Adviser, 
  Department of State, Washington, DC............................     6
Panel consisting of Harold W. Poole, former World War II prisoner 
  of war in Japan, Salt Lake City, UT; Frank Bigelow, former 
  World War II prisoner of war in Japan, Brooksville, FL; Maurice 
  Mazer, former World War II prisoner of war in Japan, Boca 
  Raton, FL; Lester I. Tenney, former World War II prisoner of 
  war in Japan, LaJolla, CA; Edward Jackfert, former World War II 
  prisoner of war in Japan, and commander, American Defenders of 
  Bataan and Corregidor, Inc., Wellsburg, WV; and Harold G. 
  Maier, professor of law, Vanderbilt University, Nashville, TN..    28

               ALPHABETICAL LIST AND MATERIALS SUBMITTED

Bettauer, Ronald J.:
    Testimony....................................................    10
    Prepared statement...........................................    14
Bigelow, Frank: Testimony........................................    31
Bingaman, Hon. Jeff: Testimony...................................     3
Jackfert, Edward: Testimony......................................    35
Maier, Harold G.:
    Testimony....................................................    38
    Prepared statement...........................................    39
Mazer, Maurice: Testimony........................................    32
Ogden, David W.:
    Testimony....................................................     6
    Prepared statement...........................................     8
Poole, Harold W.:
    Testimony....................................................    28
    Prepared statement...........................................    29
Tenney, Lester I.: Testimony.....................................    33

                                APPENDIX
                         Questions and Answers

Responses to questions of Senator Hatch from:
    The Department of Justice....................................    47
    Ronald J. Bettauer...........................................    53

                 Additional Submissions for the Record

Text of e-mail message to Senator Hatch from Rabbi Abraham Cooper 
  of the Simon Wiesenthal Center, Berlin, Germany, dated June 26, 
  2000...........................................................    55
Prepared statements of:
    Bruce R. Harder, director, National Security and Foreign 
      Affairs, Veterans of Foreign Wars of the United States.....    55
    Linda G. Holmes..............................................    56
    Chalmers Johnson.............................................    59
    Prime Minister Tomiichi Murayama, dated Aug. 15, 1995........    61
    Michael D. Ramsey............................................    61
    Paul W. Reuter...............................................    65
    John M. Rogers...............................................    67
    Joseph A. Violante...........................................    72
Letters to:
    Senator Hatch from Edward Jackfert, past national commander, 
      American Defenders of Bataan & Corregidor, Inc., dated June 
      20, 2000...................................................    73
    Stuart Eizenstat, Deputy Secretary of the U.S. Treasury, from 
      Michael Engelberg, M.D., the American Center for Civil 
      Justice, dated June 10, 2000...............................    74
    Hiroaki Yano, president, Mitsubishi International Corp., from 
      Michael Engelberg, M.D., the American Center for Civil 
      Justice, dated June 13, 2000...............................    74
    Hiroshi Noda, Kawasaki Heavy Industries U.S.A.), Inc., from 
      Michael Engelberg, M.D., the American Center for Civil 
      Justice, dated June 13, 2000...............................    75
    Senator Hatch from Michael M. Honda, California State 
      Legislature, dated June 30, 2000...........................    75
    Senator Hatch from Gilbert M. Hair, executive director, the 
      Center for Internee Rights, Inc., dated June 22, 2000......    76
        Chart: Information on U.S. POW's held in World War II....    78
    Senator Hatch from John E. Julian, first selectman, Office of 
      Selectman, State of Connecticut............................    79
    Senator Hatch from John F. Sommers, Jr., executive director, 
      the American Legion, dated June 27, 2000...................    79
    Senator Hatch from Charles L. Taylor, AMVETS national 
      commander, dated June 26, 2000.............................    80
    Senator Hatch from Bob Weygand, Member of Congress, House of 
      Representatives, dated June 23, 2000.......................    80
    Senator Hatch from Frank G. Wickersham, III, national 
      legislative director, Military Order of the Purple Heart, 
      dated June 23, 2000........................................    81

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

                         A STRUGGLE FOR JUSTICE

                              ----------                              

                        WEDNESDAY, JUNE 28, 2000

                                       U.S. Senate,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The committee met, pursuant to notice, at 10:33 a.m., in 
room SD-226, Dirksen Senate Office Building, Hon. Orrin G. 
Hatch (chairman of the committee) presiding.
    Also present: Senators Grassley, Sessions, and Feinstein.

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

    The Chairman. I am pleased today to welcome a distinguished 
group of witnesses to enlighten the committee on a very 
important issue, namely the struggle for compensation of 
American POW's once held and forced into labor by and for 
private Japanese companies.
    I apologize for starting this hearing half an hour too 
late, but we had two votes right in a row and that takes 
precedence over everything else. So I apologize to you.
    On April 9, 1942, Allied forces in the Philippines 
surrendered Bataan to the Japanese. Ten to twelve thousand 
American soldiers were forced to march some 60 miles in 
broiling heat, in a deadly trek known as the Bataan Death 
March. Following a lengthy internment under horrific 
conditions, thousands of POW's were shipped to Japan in the 
holds of freighters known as hell ships. Once in Japan, many of 
these POW's were forced into slave labor for private Japanese 
steel mills and other private companies until the end of the 
war. During the war, over 27,465 Americans were captured and 
interned by the Japanese. Only 16,000 of them made it home.
    Let me say at the outset that this is not a dispute with 
the Japanese people and these are not claims against the 
Japanese Government. Rather, this is a hearing, the purpose of 
which is to determine whether those who profited from the slave 
labor of American POW's have an obligation to remedy their 
wrongs, and whether the United States can help to facilitate a 
resolution.
    Let me also say to the veterans who are here today on 
behalf of this committee, the Congress, and the American 
people, we thank you. As has often been expressed, POW's 
experience a wide range of emotions concerning their captivity. 
I am here to tell you today that you are all heroes. You are 
heroes for your bravery on the battlefields and, of course, in 
the prison camps themselves, heroes for the innumerable 
displays of compassion and love for your fellow men, heroes for 
your perseverance through circumstances most of us can barely 
imagine. You are living testaments to the indomitable human 
spirit that is the fabric of this great Nation, the United 
States of America, and everyone here living in freedom owes you 
a tremendous debt of gratitude.
    Unfortunately, global, political, and security needs of the 
time often overshadowed your legitimate claims for justice, and 
you were once again asked to sacrifice for your country. 
Following the end of the war, for example, our Government 
allegedly instructed many of the POW's held by Japan not to 
discuss their experiences and treatment. Some were even asked 
to sign nondisclosure agreements. Consequently, many Americans 
remain unaware of the atrocities that took place and the 
suffering our POW's endured.
    Through the years, various efforts have been made to offer 
some compensation for POW's held in Japan. Under the War Claims 
Act, our Government has made meager payments of $1.00 a day for 
missed meals and $1.50 per day for lost wages. Clearly, in the 
eyes of most, this is inadequate.
    Following the passage of a California statute extending the 
statute of limitations for World War II claims until 2010, and 
the recent litigation involving victims of the Holocaust, a new 
effort is underway by the former POW's in Japan to seek 
compensation from the private companies which profited from 
their slave labor.
    One issue for the committee to examine is whether the POW's 
held in Japan are receiving an appropriate level of advocacy 
from the U.S. Government. In the Holocaust litigation, the 
United States played a facilitating role in the discussions 
between German companies and their victims. The Justice 
Department also declined to file a Statement of Interest in the 
litigation, even when requested by the court. The efforts of 
the administration were entirely appropriate and the settlement 
was an invaluable step toward movement forward from the past.
    Here, in contrast, there has been no effort by our 
Government, through the State Department or otherwise, to open 
a dialog between the Japanese and the former POW's. Moreover, 
in response to a request from the court, the Justice Department 
did, in fact, file a Statement of Interest which was very 
damaging to the claims of the POW's, stating in essence that 
their claims were barred by the 1951 Peace Treaty with Japan 
and the War Claims Act.
    This contrasting treatment raises the legitimate questions 
of whether this administration has a consistent policy 
governing whether and how to weigh in during these World War 
II-era cases. What, if any, are the criteria used to decide 
whether or not to intervene? Have those criteria been fairly 
applied in this case?
    From a moral perspective, the claims of those forced into 
labor by private German companies and private Japanese 
companies appear to be of similar merit. Yet, they have spurred 
different responses from the administration. Why? There may be 
legitimate reasons for the differences, but we need to ask the 
questions.
    The Statement of Interest filed by the Justice Department 
in the lawsuits against Japanese companies also raises a number 
of questions because of its silence concerning a number of 
important treaty provisions and concepts of international law. 
The committee has a duty to ensure the thoroughness of the work 
the Justice Department submits to the court, and we will 
explore some of those issues here today.
    Our first panel of witnesses will address these questions 
to the administration. We are pleased to have representatives 
from the Departments of Justice and State. We are then 
fortunate to have the benefit of hearing from a number of POW's 
themselves who can tell us of their experiences and their 
struggles for recognition and compensation from the private 
companies that held them.
    In the end, I hope we can elevate the discussion concerning 
where we go from here. I am not sure agreement on this issue 
will be easy. What can the United States of America, the 
country these men sacrificed for, do to resolve these matters 
in a fair and appropriate manner?
    Here in the Senate, we are doing what we can. With the help 
of Senator Feinstein, we have moved through the Judiciary 
Committee Senate bill 1902, the Japanese Records Disclosure 
Act, which would set up a commission to declassify thousands of 
Japanese Imperial Army records held by the U.S. Government, 
after appropriate screening for sensitive national security 
information and the like.
    The Senate is also doing what it can to fulfill our 
Government's responsibility to these men by including a 
provision in the DOD authorization bill which would pay a 
$20,000 gratuity to POW's from Bataan and Corregidor who were 
forced into labor. Such payment would be in addition to any 
other payments these veterans may receive under law, and thus 
would not compromise any of the claims asserted in the 
litigation against the Japanese companies.
    Ultimately, I do not know where we will come out on the 
precise meaning of the treaty. Regardless of how the technical 
legal issues are resolved, which the courts will determine in 
light of the moral imperative and interests of simple fairness, 
we must ask ourselves can Congress do more? Can the executive 
branch do more? I am open to ideas and hope that this hearing 
begins a dialog to discuss what can be done in light of all the 
moral, legal, national security, and foreign policy interests 
which are at play.
    We are delighted to have one of our colleagues here today 
from New Mexico, Senator Bingaman, and we will turn to him for 
his testimony at this time. However, I may interrupt at any 
time if the ranking member comes and cares to make a statement 
himself.
    So, Senator Bingaman, we will take your statement at this 
time. I understand that the Honorable Max Cleland may be here 
shortly. If he comes, we will certainly take his statement 
along with yours.

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

    Senator Bingaman. Thank you very much, Mr. Chairman. I will 
just take a very small amount of time here from the committee 
to speak specifically about S. 1806, which is a bill I 
introduced and you referred to. It is now included in the 
defense authorization bill.
    We introduced this last October, with Senators Coverdell 
and Domenici and Hollings and Cleland as cosponsors with me on 
the bill. It would provide an honorarium of $20,000 to 
qualified veterans or their surviving spouses, and by 
``qualified'' I mean those who were made to perform slave labor 
to support the Japanese war effort.
    I introduced the bill for a variety of reasons. You went 
through many of those in your opening statement. Clearly, these 
veterans were not adequately recognized and compensated for 
their contributions. Part of the settlement between the United 
States and the Government of Japan provided for compensation to 
American prisoners of war in 1952. That settlement, however, 
never compensated American prisoners who were made to perform 
slave labor while they were in captivity.
    We sure are well aware, many of our veterans, many 
survivors of the Bataan and Corregidor episodes were shipped on 
so-called death ships to Japan and worked in shipyards, mines, 
and factories to support the Japanese war effort. Some of those 
ships unfortunately were actually sunk by our own forces, who 
were unaware that they had human cargo of Americans on board.
    This came to my attention, frankly, because a good friend 
of mine, Nick Cintas, who is a former prisoner of war, a Bataan 
veteran who lives in my town of Silver City, called it to my 
attention a year or so ago. He pointed out then that he didn't 
think our Government was doing what it should. In particular, 
he pointed to the fact that the Government of Canada had 
recently approved a honorarium to Canadian prisoners of war 
from Hong Kong who were enslaved by the Japanese, and that 
award did not prejudice in any way other attempts to obtain 
compensation. Instead, it was an expression of support and 
appreciation by the Canadian Government. We then put together 
this legislation that I have referred to, with the clear view 
that we should do at least as well by our veterans, our Bataan 
and Corregidor veterans, as the Canadian Government had done.
    Clearly, the heroism of these individuals is well 
documented. There is no question that this is a worthwhile 
effort to compensate them for this slave labor that was 
performed. I wanted to particularly just call the committee's 
attention to this legislation as we continue to work on the 
defense authorization bill on the Senate floor, and solicit 
active support of any additional Senators who are anxious to 
support this.
    I think it would mean a great deal to those who are 
surviving, and there are fewer who are surviving each day. I 
know that there are a great many Bataan veterans who came from 
New Mexico, and the number who still survive is dwindling each 
month. So it is very important that we pass this legislation 
and that we do so this year.
    I commend the committee for having this hearing, and I hope 
that in addition to this legislation, you can find some other 
ways to be of assistance.
    The Chairman. Well, thank you, Senator Bingaman. We 
appreciate you being here and appreciate you taking time out of 
your valuable schedule. Thank you.
    I notice that Senator Feinstein is here. Would you care to 
make opening remarks on behalf of the minority?

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

    Senator Feinstein. Just very quickly, if I might, Mr. 
Chairman, let me begin by thanking you for holding this 
hearing. I am particularly pleased that a constituent of mine, 
Dr. Lester Tenney, was able to come before the committee today 
and share his experiences.
    As many of my colleagues know, Dr. Tenney has written a 
book detailing the brutality experienced by Americans at the 
hands of the Japanese Imperial Army and private Japanese 
companies that ran labor camps. I would like to commend him not 
only for enduring these conditions while held captive in Japan, 
but also for preserving a historical record from which future 
generations can learn.
    Mr. Chairman, the veterans who have joined us today are all 
Americans who have served in Bataan and performed slave labor 
in Japanese mines, shipyards, and factories. As prisoners of 
war, they were subject to deprivation of liberty, to beatings, 
to starvation, and to other atrocities. Their endurance through 
all this symbolizes the sacrifice of all of the brave men who 
served during World War II.
    I am hopeful that measures such as the bill I have 
introduced, the Japanese Imperial Army Disclosure Act, will 
assist in bringing to full disclosure evidence of use of 
chemical and biological agents, as well as atrocities that 
individuals have faced.
    I think it is important that these classified records be 
released much as the German classified Holocaust-related 
records have been released. And I think by airing the light of 
day on much of this, we will be able to put this very terrible 
chapter behind us.
    I thank you, Mr. Chairman. I look forward to the testimony.
    The Chairman. Well, thank you so much, Senator.
    Our first panel--now, if Senator Cleland comes, we will 
interrupt this panel, but on the first panel we are pleased to 
have Acting Assistant Attorney General for the Civil Division 
of the Department of Justice, David Ogden. Mr. Ogden supervised 
the preparation and filing of the Statement of Interest which 
has been filed in the POW litigation.
    Deputy legal adviser at the State Department, Ronald 
Bettauer, also worked on the Statement of Interest, and advised 
Under Secretary of State Thomas Pickering on the legal issues 
involved. We did invite Under Secretary Pickering to appear 
himself to help explain the policy of when the State Department 
decides to intervene in these types of claims. We understand 
that he was the decisionmaker at the State Department on 
whether to file something in this case.
    Unfortunately, he declined our invitation. I think he has 
made a mistake. We will hear from him on this matter because he 
cannot avoid accountability on this matter, so I would like you 
to send that message back to the State Department. We believe 
it is incumbent on something as important as this that people 
come.
    So we are pleased to have the two of you here, and we will 
take your statement first, Mr. Ogden.

 PANEL CONSISTING OF DAVID W. OGDEN, ACTING ASSISTANT ATTORNEY 
     GENERAL, CIVIL DIVISION, U.S. DEPARTMENT OF JUSTICE, 
 WASHINGTON, DC; AND RONALD J. BETTAUER, DEPUTY LEGAL ADVISER, 
              DEPARTMENT OF STATE, WASHINGTON, DC

                  STATEMENT OF DAVID W. OGDEN

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

                  Prepared Statement of David W. Ogden

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

    The Chairman. Thank you, Mr. Ogden.
    Mr. Bettauer.

                STATEMENT OF RONALD J. BETTAUER

    Mr. Bettauer. Thank you very much, Mr. Chairman, Senator 
Feinstein. Good morning. I also appreciate the opportunity to 
appear before you today. I am a Deputy Legal Adviser at the 
Department of State and have been directly involved in both the 
German slave and forced labor negotiations, and the development 
of our position on the class action lawsuits that have been 
brought by former POW's against Japanese private companies in 
California State court.
    Let me begin by expressing the administration's and my own 
personal sympathy to the victims of Japanese wartime aggression 
and our deep gratitude for those veterans who bravely served 
our country in the Pacific theater during World War II. We and 
the American people owe these veterans a great debt.
    I intend to address briefly the 1951 Treaty of Peace with 
Japan and why the State Department asked the Department of 
Justice to file a Statement of Interest in favor of removal of 
the lawsuits to Federal court.
    Article 14(b) of the 1951 Treaty of Peace with Japan 
provides that:

        except as otherwise provided in the * * * Treaty, the 
        Allied powers waive all reparations claims of the 
        Allied powers, other claims of the Allied powers and 
        their nationals, arising out of any action taken by 
        Japan and its nationals in the course of the 
        prosecution of the war.

    The Chairman. Is that the language you are basically 
relying on, then?
    Mr. Bettauer. That is the basic language, yes.
    The Chairman. But how can the Government waive the rights 
of individuals?
    Mr. Bettauer. Well, I will talk a little bit about how this 
occurred.
    The Chairman. I shouldn't have interrupted you. I can see 
how the Government can waive its rights. I can see how it can 
enter into a treaty. I can see how it can do all of that. But 
what bothers me is how can it, without the consent of the 
individual citizens, waive the rights of individual citizens 
who have been mistreated.
    Mr. Bettauer. The Government has had the power to address 
the claims and settle the claims against foreign nations of 
citizens for some 200 years under our system, going all the way 
back, I believe, to the Jay Treaties. There are many cases, 
including Belmont, Dames and Moore, which have upheld the 
espousal power of the United States to take up the claims of 
the citizens and to settle them against----
    The Chairman. That is right, if they actually take up the 
claims of the citizens and actually settle them for the benefit 
of the citizens. And I could see where that would apply, but 
here it seems to me they have just ignored the claims of the 
citizens, other than the $1.50 a day.
    Mr. Bettauer. Well, I think you have to look at what the 
treaty intended to accomplish as a whole.
    The Chairman. Yes, but I looked at the treaty and I don't 
see the language in there that forecloses individual suits for 
reparations. That is where I am having some difficulty. I am 
not trying to give you a rough time. I just want to----
    Mr. Bettauer. This treaty by its terms settles all war-
related claims of the United States----
    The Chairman. So what? So what?
    Mr. Bettauer [continuing]. And its nationals, and precludes 
the possibility of taking----
    The Chairman. You mean our Federal Government can just say, 
to hell with you Bataan death marchers and you people who were 
mistreated, we are just going to waive all your rights because 
we have the almighty power to do so?
    Mr. Bettauer. There was a decision made in the 1950's----
    The Chairman. I don't care about the decision. I am saying, 
can the Federal Government do that?
    Mr. Bettauer. Yes, I think the Federal Government can do 
that.
    The Chairman. Actually take away their rights without 
giving them a chance to be heard?
    Mr. Bettauer. That is, I think, an established authority of 
the Federal Government.
    The Chairman. I don't believe that. I mean, I know that you 
are sincere in expressing that, but I can't believe that under 
our Constitution that that is going to be upheld.
    Mr. Bettauer. I would suggest that it has been upheld many 
times.
    The Chairman. All right, I will listen further.
    Mr. Bettauer. As I said, the treaty then settles the 
claims, in our view, and we think this reading of the treaty is 
in accord with the basic principle of treaty interpretation in 
the 1969 Vienna Convention on the Law of Treaties that a treaty 
shall be interpreted in good faith, in accordance with the 
ordinary meaning to be given to the terms of the treaty in 
their context and in light of its object and purpose.
    The Chairman. Yes, but, look, Mr. Bettauer, I think there 
is a distinction between individual claims arising under 
domestic law versus international law.
    Mr. Bettauer. The treaty language says all claims of the 
powers and other claims of the powers and of their nationals 
arising out of any actions taken by Japan and its nationals. It 
is not limited to claims under----
    The Chairman. Constitutionally, can our Government take 
away the rights of individual citizens just because they have 
put it in a treaty, put language in a treaty? Can you cite a 
case in point, absolutely in point on that issue? Just give me 
a case.
    Mr. Bettauer. There is a good review of the previous 
authorities by the Supreme Court in Dames and Moore v. Reagan. 
This is the case that upheld the Algiers Accords, which was the 
agreement by which the U.S. hostages in Iran were released. At 
that time, we had an agreement that took the claims of those 
hostages out of U.S. courts and sent them to a tribunal in The 
Hague, and which took some of the claims, the claims of the 
people who had actually been hostage--we took claims of 
Americans against Iran and sent them to our tribunal. But the 
claims of the hostages themselves were extinguished, and there 
was litigation about that, too, and that was upheld as well.
    The Chairman. Upheld by whom?
    Mr. Bettauer. The U.S. courts.
    The Chairman. I don't think this case has been really 
tried. I don't think it has been tested. If there is a private 
right of action, isn't that property under the fifth amendment? 
If so, taking that property requires just compensation.
    Mr. Bettauer. Let me go on to how we got there.
    The Chairman. Sure; now, if I could just interrupt you 
again, I have to shuttle between the Finance Committee and here 
because there is a very important markup going on. So if I have 
to leave, I am going to ask you, Senator Feinstein, or if there 
is a Republican here, fine, but if not, I am going to ask you 
to continue this hearing. Both Senator Feinstein and I have, I 
think, very similar interests in this and want to get to the 
bottom of it and see what can be done here.
    But continue, Mr. Bettauer.
    Mr. Bettauer. OK; the fact that the treaty waived all 
claims is unambiguously supported by the negotiating history of 
the treaty, by the broad security objectives of the U.S. 
Government at the time, and by the extensive, often 
excruciatingly painful deliberations that preceded the treaty's 
advice and consent by the Senate. The Senate considered these 
issues.
    The overarching intent of those who negotiated, signed, and 
ultimately ratified the treaty was to bring about a complete 
global settlement of all war-related claims, in order both to 
provide compensation to the victims of the war and to rebuild 
Japan's economy and convert Japan into a strong U.S. ally.
    It was recognized at the time that those goals could not 
have been served had the treaty left open the possibility of 
continued, open-ended legal liability of Japanese industry for 
its wartime actions. In this regard, the negotiators and the 
U.S. Senate were extremely sensitive to the calamitous results 
of the continuing debts that had been imposed on Germany by the 
Treaty of Versailles.
    Another provision of the treaty, article 19(a), similarly 
closed off the possibility of claims being brought by Japanese 
nationals against the United States or its nationals arising 
out of both the war and the subsequent occupation of Japan.
    Our longstanding position is not one that we have reached 
casually or lightly. We have thoroughly examined all of the 
legal arguments that have been advanced, and have undertaken an 
exhaustive amount of historical research. Although we 
sympathize with those who have brought the lawsuits and 
acknowledged that they have suffered great injuries in the 
service of their country, we are convinced that the treaty 
precludes these lawsuits and that we have no legal basis upon 
which to approach Japan or its nationals for additional 
compensation for war claims.
    Our decision to ask the Justice Department to file a 
Statement of Interest, which was specifically solicited by a 
Federal district court, was based not only on our concern for 
upholding our international legal obligations, but also upon 
the fact that the treaty is a duly ratified international 
agreement of the United States that is therefore the supreme 
law of the land.
    The treaty was approved by the U.S. Senate by a strong two-
thirds majority on March 20, 1952, and subsequently ratified by 
President Truman. The records of the hearings of the U.S. 
Senate and the U.S. Senate Foreign Relations Committee indicate 
that the Senate was well aware that article 14(b) settled all 
war-related claims. In fact, the Senate heard testimony from 
several members of the public who were not pleased with this 
provision. The Senate gave its advice and consent by a vote of 
66 to 10, without inserting a single reservation pertaining to 
war claims or article 14(b) in its resolution of ratification.
    Let me emphasize that the Senate's action occurred shortly 
after termination of the hostilities when the horrific wounds 
of World War II were still fresh, emotions still raw, and the 
memories of the war's innumerable tragedies still vivid.
    A large part of the treaty was devoted to the issue of 
reparations. The scheme of the treaty was that each state party 
would compensate its own nationals for their injuries, either 
out of confiscated Japanese public and private assets or 
otherwise. To this end, the United States confiscated 
approximately $90 million worth of assets owned by the Japanese 
Government and Japanese private nationals, including companies, 
and used the proceeds to satisfy the monetary claims of U.S. 
nationals who were victims of Japanese aggression.
    Congress passed an amendment to the War Claims Act of 1948 
to create a new war claims program that would award American 
war victims, including slave and forced laborers, amounts to be 
determined by a war claims commission using the proceeds of 
liquefied Japanese assets. Congress, through its approval of 
the treaty and amendment of the War Claims Act, created an 
exclusive Federal remedy for all American victims of the war.
    Thus, when the United States filed its Statement of 
Interest on May 23, outlining why these lawsuits belong in 
Federal court, we did so not only because of our international 
obligations and our foreign policy concerns, but because we 
believe our stance is true to the intent of the U.S. Congress 
that approved the ratification of the treaty and created a 
comprehensive war claims program. It is consistent with the 
broad, bipartisan consensus that existed in all branches of 
Government in 1952 that this treaty was in the overall best 
interests of the American people and that reparations 
provisions were fair and reasonable.
    For nearly 50 years, the treaty has sustained our security 
interests and supported peace and stability throughout East 
Asia. We believe the treaty leaves no sound legal basis for the 
United States or its nationals to seek further monetary 
recovery against Japanese corporations, and that the treaty 
remains the supreme law of the land.
    Thank you, Madam Chairman.
    [The prepared statement of Mr. Bettauer follows:]

                Prepared Statement of Ronald J. Bettauer

    Mr. Chairman and Members of the Committee: Good morning. My name is 
Ronald Bettauer. I am a Deputy Legal Adviser at the U.S. Department of 
State. I have been directly involved in both the German forced labor/
slave labor negotiations and the development of our position on the 
class action lawsuits that have been brought by former POW's against 
Japanese private companies in California state courts. Let me begin by 
expressing the Administration's and my own personal sympathy to the 
victims of Japanese wartime aggression, and our gratitude for those 
veterans who bravely served our country in the Pacific theater during 
World War II. We, and the American people, owe these gentlemen a great 
debt.
    I intend to address briefly the 1951 Treaty of Peace with Japan, 
and why the State Department asked the Department of Justice to file a 
Statement of Interest in favor of removal of the lawsuits to federal 
court.
    The 1951 the Treaty of Peace with Japan settles all war-related 
claims of the U.S. and its nationals, and precludes the possibility of 
taking legal action in United States domestic courts to obtain 
additional compensation for war victims from Japan or its nationals--
including Japanese commercial enterprises. Article 14(b) of the Treaty 
provides that, ``[e]xcept as otherwise provided in the * * * Treaty, 
the Allied Powers waive all reparations claims of the Allied Powers, 
other claims of the Allied Powers and their nationals arising out of 
any actions taken by Japan and its nationals in the course of the 
prosecution of the war * * * '' This position is in accord with basic 
principles of treaty interpretation as set forth in the 1969 Vienna 
Convention on the Law of Treaties, i.e., ``[a] treaty shall be 
interpreted in good faith, in accordance with the ordinary meaning to 
be given to the terms of the treaty in their context and in light of 
its object and purpose.''
    This is clear and unequivocal language: all reparations claims 
against Japan and its nationals. This language is unambiguously 
supported by the negotiating history of the Treaty, and by the broad 
security objectives the U.S. Government hoped to achieve with the 
Treaty, and, most important for present purposes, by the extensive, 
often excruciatingly painful deliberations that preceded the Senate's 
advice and consent to ratification of the treaty.
    The overarching intent of those who negotiated, signed, and 
ultimately ratified this Treaty was to bring about a complete, global, 
settlement of all war-related claims, in order both to provide 
compensation to the victims of the war and to rebuild Japan's economy 
and convert Japan into a strong U.S. ally. It was recognized at the 
time that those goals could not have been served had the Treaty left 
open the possibility of continued, open-ended legal liability of 
Japanese industry for its wartime actions. In this regard, the 
negotiators and the U.S. Senate were extremely sensitive to the 
calamitous results of the continuing debts that had been imposed on 
Germany in the Treaty of Versailles. Another provision of the Treaty, 
Article 19(a), similarly closed off the possibility of claims being 
brought by Japanese nationals against the United States or its 
nationals arising out of both the war and the subsequent occupation of 
Japan.
    Our longstanding position is not one that we have reached casually 
or lightly. We have thoroughly examined all of the legal arguments that 
have been advanced by the parties to these lawsuits, and we have 
undertaken an exhaustive amount of historical research. We have also 
discussed the issue with one of the direct participants in the 
negotiations. Although we sympathize with the plaintiffs and 
acknowledge that they suffered great injuries in the service of their 
country, we are convinced that the Treaty precludes these lawsuits, and 
that we have no legal basis upon which to approach Japan and its 
nationals for additional compensation for war claims.
    Our decision to ask the Justice Department to file a Statement of 
Interest, which was specifically solicited by the federal district 
court, was based not only on our concern for upholding our 
international legal obligations, but also upon the fact that this 
Treaty is a duly ratified international agreement of the United States 
that is, therefore, the supreme law of the land. This Treaty was 
approved by the U.S. Senate by a strong two-thirds majority on March 
20, 1952, and subsequently ratified by President Truman.
    The records of the hearings of the U.S. Senate, and the U.S. Senate 
Foreign Relations Committee, indicate that the Senate was well aware 
that Article 14(b) settled all war-related claims, and in fact, heard 
testimony from several members of the public who were not pleased with 
that provision. The Senate gave its advice and consent by a vote of 66 
to 10, without inserting a single reservation pertaining to war claims 
or Article 14(b) in its resolution of advice and consent. Let me 
emphasize, particularly, that the Senate's action occurred only shortly 
after the termination of hostilities, when the horrific wounds of World 
War II were still fresh, emotions still raw, and the memories of the 
war's innumerable tragedies still vivid.
    A very large part of the Treaty was devoted to the issue of 
reparations. The scheme of the Treaty was that each state party would 
compensate its own nationals for their injuries, either out of 
confiscated Japanese public and private assets, or otherwise. To this 
end, the United States confiscated approximately 90 million dollars' 
worth of assets owned by Japan and Japanese private nationals 
(including Japanese companies), and used the proceeds to satisfy the 
monetary claims of U.S. nationals who were victims of Japanese 
aggression. The U.S. Congress amended the War Claims Act of 1948 to 
create new war claims programs that would award American war victims, 
including slave/forced laborers, in amounts to be determined by a War 
Claims Commission, using the proceeds of liquidated Japanese assets. We 
believe that Congress, through its approval of the Treaty and the 
amendment of the War Claims Act, intended to create an exclusive 
federal remedy for all American victims of the war.
    Thus, when the United States filed its Statement of Interest on May 
23 outlining why these lawsuits belong in federal court, we did so not 
only because of our international obligations or our foreign policy 
concerns, but because we believe our stance is true to the intent of 
the U.S. Congress that approved the ratification of this Treaty and 
created a comprehensive war claims compensation program. It is 
consistent with the broad, bipartisan consensus that existed in all 
branches of government in 1952, that this Treaty was in the overall 
best interests of the American people and that the reparations 
provisions were fair and reasonable.
    For nearly 50 years, this Treaty has sustained our security 
interests and supported peace and stability throughout East Asia. We 
believe that the Treaty leaves no sound legal basis for the United 
States or its nationals to seek further monetary recovery against 
Japanese corporations, and that the Treaty remains the supreme law of 
the land.

    Senator Feinstein. Thank you very much.
    Senator Sessions [presiding]. Are you prepared to go 
forward?
    Senator Feinstein. I am prepared.
    Senator Sessions. Senator Feinstein?
    Senator Feinstein. Thank you very much, both gentlemen. Let 
me read article 14(b), if I might:

          Except as otherwise provided in the present Treaty, 
        the Allied powers waive all reparations claims of the 
        Allied powers, other claims of the Allied powers and 
        their nationals, arising out of any actions taken by 
        Japan and its nationals in the course of the 
        prosecution of the war, and claims of all powers for 
        direct military costs of occupation.

    Now, I think, Mr. Bettauer, you referred to that article, 
and let me just read the most-favored-nations clause of article 
26:

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

    Now, my question then is, Has Japan provided more favorable 
terms to other nations in connection with settlements of war 
claims than you now assert were provided in the 1951 treaty?
    Mr. Bettauer. If I may start by focusing on article 26 for 
a second, that provision we do not regard really as providing a 
most-favored-nation-type scheme. John Foster Dulles, who 
personally drafted this treaty, included article 27----
    Senator Feinstein. Twenty-six.
    Mr. Bettauer. Twenty-six, excuse me, and said that the 
purpose of the provision was, and I am quoting one of his 
documents, ``for the protection of Japan so that if other 
countries should make demands upon Japan, Japan would have a 
basis of resisting by pointing to'' that provision. That was a 
key goal because the idea was to pull Japan away from the 
Communist bloc. Dulles designed the provision to deter the 
Japanese from dealing on favorable terms with the Soviet Union 
specifically with regard to its territorial demands.
    So the only time that Dulles raised article 26 was in 1956, 
when Japan and the Soviet Union were negotiating a peace 
settlement. Dulles made a public statement to the effect that 
if Japan recognized the Soviet territorial claims of 
sovereignty, article 26 might open the way for the United 
States to claim comparable benefits.
    He explained publicly that he had exerted article 26 ``for 
the very purpose of trying to prevent the Soviet Union from 
getting more favorable treatment than the United States got,'' 
and that he simply wanted to remind Japan of its existence.
    Dulles then met with the Japanese Ambassador to discuss the 
difficulties Japan was having in the negotiations and stated 
that the United States had no intention of making territorial 
demands itself, but simply to give Japan an argument with the 
Russians. So the contemporaneous construction of article 26 and 
practice under article 26 suggests that it was not really an 
MFN provision in the sense of comparing peace settlements 
dollar for dollar.
    In any event, while certain types of treaties may 
traditionally contain MFN provisions--and these can be 
investment treaties and tariff treaties--this is not so with 
peace treaties. Peace treaties are so complex and entail so 
many different types of obligations that there is really no way 
of measuring whether, on an overall basis, one is more 
advantageous than the other.
    Senator Feinstein. Could I stop you just for one moment?
    Mr. Bettauer. Yes.
    Senator Feinstein. You didn't really answer my question. My 
question is, Has Japan provided more favorable treatment to 
other nations?
    Mr. Bettauer. There are a number of other treaties that 
Japan has with other nations, because this was a multilateral 
peace treaty and Japan was encouraged to conclude peace 
treaties with those who weren't party to it. And there are some 
claim provisions in some of those peace treaties, but looking 
at----
    Senator Feinstein. That are more favorable?
    Mr. Bettauer. No; it is impossible to say because you have 
to know what the claims of the other countries were, what the 
counterclaims of Japan were, what the other provisions of the 
peace treaties were that bear on it. And I don't think we are 
in a position that we can conclude any of those is more 
favorable.
    The Chairman. Well, if I could interrupt, in article 26, it 
seems to me the terms of article 26 appear unconditional and 
automatic. What they say is, Should Japan make a peace 
settlement of war claims settlement with any state granting 
that state greater advantage than those provided by the present 
treaty, those same advantages shall--not ``may,'' ``could,'' 
``would''--but shall be extended to the parties to the present 
treaty?
    Mr. Bettauer. Well, as I just explained, the purpose of 
article 26 was to provide a counterweight to Soviet territorial 
demands.
    The Chairman. Fine; then why shouldn't the claims of these 
American POW's enjoy the same treatment as claims by forced 
laborers from Burma, the Soviet Union, the Netherlands and 
elsewhere, all states that were granted greater advantages 
within the meaning of article 26?
    Mr. Bettauer. Well, I don't think we have concluded, 
Senator, that they have been granted greater advantages.
    The Chairman. I don't see how you can help but conclude 
that they were granted.
    Mr. Bettauer. In addition, we were involved in and 
facilitated the negotiations of many of those treaties, not all 
of them. But, for example, we encouraged the Burma treaty 
negotiation. We pressed Japan to do that, and we never raised 
an article 26 concern at the time. It would be too late now, 40 
years later, to seek to renegotiate the benefits we received 
under the peace treaty because of something that we assisted 
Japan in doing back then.
    Senator Feinstein. Then what was the rationale behind 
article 26?
    Mr. Bettauer. I have just tried to explain that, Senator.
    Senator Feinstein. But it doesn't seem to me to make sense.
    Mr. Bettauer. We have gone through the historical 
documents.
    Senator Feinstein. You say to wean Japan away from the 
Communist bloc, but I don't quite see how this relates to 
weaning Japan away from the Communist bloc.
    Mr. Bettauer. The two documents that are contemporaneous 
that deal with article 26 are a press statement by Dulles and a 
memorandum of a conversation that he had about the article. In 
both of those documents, Dulles asserts that the purpose of 
article 26 is to provide Japan a counterweight to territorial 
demands.
    The language, I know, is broader than that, but after 40 
years, it is too late to raise article 26 issues with Japan, 
particularly since we were aware contemporaneously of all the 
agreements that were under negotiation at the time, and indeed 
facilitated the negotiation of some of them.
    The Chairman. Let me ask you a few questions. Has the State 
Department met with representatives of the Japanese companies 
at issue here or with the Japanese Government concerning this 
matter, or with both, and if so, when and how often?
    Mr. Bettauer. I am not aware of whether we have met with 
representatives of the Japanese companies. We can get that 
information for you for the record.
    The Chairman. Will you get that for us? OK.
    [The information referred to appears in the Appendix, 
Questions and Answers section.]
    Mr. Bettauer. I know that the State Department meets with 
representatives of the Japanese Government frequently, and I 
have been in some meetings.
    The Chairman. On these issues?
    Mr. Bettauer. They are interested and they have asked about 
this issue.
    The Chairman. How many times has the State Department met 
with Mr. Poole or Mr. Bigelow, Mr. Mazer or Mr. Tenney or their 
lawyers?
    Mr. Bettauer. Some of their lawyers are former colleagues 
of mine from the State Department, so I have met with them many 
times.
    The Chairman. I am talking about to discuss these matters.
    Mr. Bettauer. I don't recall that any of their lawyers have 
requested a meeting with me to discuss these matters. I do not 
know if they have met with others in the Legal Adviser's 
Office, and we can supply that information for the record, if 
you like.
    The Chairman. Well, if you would, I appreciate it.
    [The information referred to appears in the Appendix, 
Questions and Answers section.]
    The Chairman. Now, I have to say under article 26, the 
United States again is entitled to the same terms of future 
treaties Japan may enter into which contain more favorable 
disposition of claims than the 1951 treaty. And I repeat again 
that the terms of article 26 appear unconditional and 
automatic:

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

    This language clearly states that the terms should be 
extended, no ifs, ands, or buts. So why shouldn't the claims of 
these American POW's get the same treatment, or at least enjoy 
equal treatment, as claims by forced laborers from Burma who 
received money from Japan? As I understand it, Japan excluded 
claims with the Soviet Union arising before August 1945, and 
there may be other matters that could be interpreted more 
favorably than apparently the State Department is willing to 
interpret right now.
    Mr. Bettauer. Well, as far as I know, the Burma settlement 
with Japan states that Burma will supply by way of 
reparations----
    The Chairman. Japan will supply.
    Mr. Bettauer. Japan will supply Burma by way of reparations 
the services of Japanese people and products, the value of 
which will be on the average equivalent to--it says essentially 
$20 million for a period of 10 years. And Japan also took every 
measure to facilitate economic cooperation.
    Now, I am not sure that $20 million worth of services of 
Japanese people was something equivalent to $90 million actual 
at the time we got it, nor am I aware that that was something 
we would have wished, the United States would have wished at 
the time. Burma was a developing country at the time and it had 
been devastated by the war.
    Japan's settlement with Burma was brought about, as I have 
just said, with the encouragement of Dulles. In September 1954, 
he informed the National Security Council that ``The big 
problem economically for Japan was the question of reparations, 
particularly with the Philippines, Indonesia, and Burma.''
    He added that he told Premier Yoshida to ``try to accept a 
reasonable solution, such as the recent Burmese offer which 
appeared to be a reasonable proposal.'' At the time, the U.S. 
Government was trying to support Burma. The substantial aid 
package that came with the Burma-Japan settlement relieved the 
U.S. taxpayer of a substantial financial burden that would 
otherwise have been borne. This was an advantage to us. So it 
is very hard to conclude that the Burma settlement would 
provide a basis for us now to go back to Japan.
    The Chairman. Well, I have to say that it is wonderful that 
we received some benefits because we didn't have to pay, but 
the fact of the matter is that the treaty says:

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

    Then the next paragraph:

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

    Well, it seems to me that we can go back to one of my 
original questions, and that is how can our Government take 
away the rights of individual citizens to sue individual 
companies, not the Government of Japan, but individual 
companies in Japan, for reparations for having been mistreated 
and having been forced into slave labor? What is the 
justification? I mean, where is the legal justification?
    Show me a case that says that these veterans have no right 
to go against the Japanese companies that exploited them and 
abused them and made them slave laborers. This isn't against 
the Government.
    Mr. Bettauer. No, no; I have mentioned some cases, and I 
think we are at a point where we differ on this.
    The Chairman. Well, I don't know of a case in point that 
says that they have no right to sue those companies.
    Mr. Bettauer. The case in point for this actual treaty is 
currently being litigated, but the precedent is out there 
saying that the United States has the ability to espouse and 
settle claims. And we have done so multiple times over the last 
200 years, often with benefits, and here there are some. 
Although one would always like to see more benefits, there are 
some benefits for former veterans.
    I mean, in the postwar period there are probably 15 or 20 
times that we have done agreements with foreign countries and 
settled claims of U.S. nationals, whether they have liked it or 
not. So this is a well-established authority and it has been 
upheld by the courts, and I am sure you will see some of that 
in the papers that we have filed.
    The Chairman. Well, let me turn to Senator Sessions for any 
questions he might have.
    Senator Sessions. Thank you, Mr. Chairman. If I were 
sitting in an appellate court, I believe I would rule with you 
on this legal debate.
    The Chairman. Well, now, that is a pleasant thought, I will 
tell you.
    Senator Sessions. I was about to ask Mr. Ogden here if he 
would rule with you, too, just as a third party. It does seem 
to me that there is an opportunity for those to make these 
claims and it is not precluded by the plain language of the 
statute.
    I have a friend who survived the Bataan Death March. He has 
shared some of the horrors with me. He speaks occasionally 
still in schools around the State of Alabama, and it was a very 
bad thing. It should not have happened.
    Let me ask, Mr. Bettauer, do you conclude--and I suppose it 
is the State Department that would say this--do you conclude 
that the treatment, let's just say specifically in Japan of 
slave labor, violated the Geneva Accords, the Geneva agreement?
    Mr. Bettauer. My impression is that it did and that there 
were war crimes committed. I am aware that there were war 
crimes trials after the war and Japanese nationals were held 
accountable and executed for their violations of the law of 
war, and indeed that this treaty, the Peace Treaty, compels 
Japan to abide by the war crimes decisions that were made.
    Senator Sessions. With regard to our compensation of 
Japanese-American citizens that were held against our American 
sense of justice, that incarceration was upheld by the courts, 
was it not?
    Mr. Bettauer. You mean the----
    Senator Sessions. Internment in the United States of 
Japanese-American citizens.
    Mr. Bettauer. I believe so, but I am not an expert on that.
    Senator Sessions. Well, I guess my point is we have made 
compensation to them even though it appears that courts have 
held that it was a legal act.
    Would you agree, Mr. Ogden, that it was upheld as a legal 
act?
    Mr. Ogden. Yes, Senator Sessions, that is my understanding.
    Senator Sessions. Has there been any effort by the State 
Department to encourage Japan to compensate these citizens who 
were treated so badly even though there may be a dispute about 
whether they are legally compelled to do so?
    Mr. Bettauer. The agreement settles the claims, Senator. 
And we may have a disagreement about the details of the 
agreement, but we have researched it thoroughly and we have 
gone through the hearings that were held by the Senate Foreign 
Relations Committee at the time of the agreement and it seems 
abundantly clear that there was even discussion of this issue, 
some concern expressed about it, but the decision to settle and 
resolve all the claims.
    Senator Sessions. Well, I would say this, frankly. Settling 
up after a war is not an easy thing.
    Mr. Bettauer. Right.
    Senator Sessions. People have to give and take and reach an 
agreement that is going to bind forever. And nobody can 
anticipate completely what kinds of claims might occur in the 
future, and we are probably in the long run better off 
following the agreement than trying to get around the 
agreement.
    Certainly, our partnership with Japan has been a great 
thing for America, and I believe the world. Their economic 
growth has been good, but my question is could they not be 
urged in the light of their economic progress and strength, 
whether they are legally required or not, to consider 
compensating these people who suffered.
    Mr. Bettauer. Well, I mean it is possible to urge, but our 
treaty commitment and the object and purpose of the treaty was 
to resolve these claims. And it would be trying to find a back 
door to go around the treaty commitment to say, look, we know 
we agreed with you that we have resolved and settled all these 
claims, and yet you should pay some more anyway. That is not in 
keeping with a good-faith abidance by the treaty terms.
    The Chairman. We are not asking the Government to pay. We 
are asking the companies that did the acts to pay, and to pay 
individual American citizens who were abused and mistreated and 
forced into slave labor. Some of these companies are multi-
billion-dollar companies today which might not be multi-
billion-dollar companies today had it not been for forced labor 
during that period of time. That is the difference.
    I would like the State Department to go back and reassess 
this because I think your arguments are ridiculous. You are 
clearly a very bright man and you clearly have been sent up 
here as a sacrificial lamb, it seems to me. I mean, I don't 
know how in the world you can come in here and make these 
arguments like this. Now, if you can show me where the Federal 
Government has a right to just strip people of rights against 
individual private companies that abuse them, that is another 
matter, but I haven't seen anything, nor do I believe there is 
anything that exists. And, Mr. Ogden, I think you ought to 
reassess this because your opinion is very broad, way too 
broad, and frankly it is just not right.
    Look, I am just a poor little country lawyer here, but I 
want you both to go back and I want Mr. Pickering to reassess 
this. I mean, this is ridiculous. Especially in light of what 
is happening in Europe, I mean this is absolutely ridiculous. 
Your opinions, in my opinion, are not accurate. I am trying to 
be nice.
    Senator Sessions. Mr. Chairman, thank you for having this 
hearing and for raising these issues. They are unpleasant, but 
I hope not damaging to our relationship with Japan, but a part 
of a healing process where we can recognize the bad things that 
did happen and we can confront them in this modern age. In the 
long run, I am confident it will make us stronger.
    Thank you.
    The Chairman. Well, thank you.
    Senator Grassley, we will go to you, but you had a comment 
you wanted to make, Mr. Ogden, before I turn to Senator 
Grassley.
    Mr. Ogden. Thank you, Mr. Chairman. What I wanted to say 
was that I appreciated your remarks, and I certainly will go 
back and take another look at the----
    The Chairman. I really want you to do this. Our Japanese 
friends realize this was a terrible set of situations. I mean, 
these companies are not poverty-stricken companies; it is not 
going to bankrupt them. They really ought to, out of good 
faith, reassess this situation. And I think the Justice 
Department ought to reassess it, and certainly the State 
Department lawyers ought to reassess this because I think any 
interpretation of constitutional law flies in the face of what 
you are arguing here today.
    Now, I appreciate your position and I don't mean to pick on 
you unduly, but I do intend to pick on you some more.
    Mr. Bettauer. But I would say that we do take our guidance 
on constitutional law issues from the Justice Department.
    The Chairman. Oh, that is good. Now, we know who is the 
real culprit here. [Laughter.]
    Mr. Bettauer. They talk to us about treaty interpretation 
issues, you see, so we cooperate.
    The Chairman. I understand. You are doing the best you can, 
but it is not good enough. I think you ought to go reassess 
this, I really do.
    Let me turn to Senator Grassley.

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

    Senator Grassley. Well, first of all, I apologize to the 
panel for not being here for your testimony because I, as 
Senator Hatch, had to be for a short period of time in markup 
of the marriage penalty bill down the hall in the Finance 
Committee. But I do feel that in the little time I have been 
here, Senator Hatch has laid out very strongly the position 
that I hold, and I thank him for doing it.
    I would just simply relate that even though there are just 
a small number of these people affected that live in my State 
of Iowa--I understand that we have 33 living former POW's of 
Japan, 18 POW widows or next of kin, 7 civilian internees, and 
1 civilian internee widow--it is still very important that we 
make sure that justice is done.
    These individuals obviously support these hearings because 
they want to see that the United States turns the same scrutiny 
on Japan as we did on Germany. I believe I am in agreement with 
that position even as forcefully as it was expressed by Senator 
Hatch that you review our policy. And I believe that this 
committee does a great service, then, for the people that we 
owe so much to in World War II, particularly those that 
suffered the most by being prisoners, that we would through 
this committee try to redirect U.S. policy in regard to this 
matter and see what we can do to make sure it is consistent.
    I think the issue has already been discussed and so I will 
not be asking any questions. However, I will make a statement 
that I think we need to review our policies; that when we send 
letters in opposition to the position of some victims of World 
War II, those who were slave labor victims in Japan, but not do 
that in the case of slave labor victims in Germany, that we do 
not appear to have a consistent policy. It seems blatantly 
unfair, and not something that makes the American Government 
look good to its citizens. And I am not sure that it even sends 
a very clear signal about our leadership in the world community 
of nations, about the moral leadership that we ought to have.
    Thank you, Mr. Chairman.
    The Chairman. Thank you, Senator.
    Senator Feinstein has another question.
    Senator Feinstein. Thank you, Mr. Chairman. I would like to 
introduce for the record a statement by Senator Leahy.
    The Chairman. Without objection, we will place that in the 
record.
    [The prepared statement of Senator Leahy follows:]

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

    I would like to begin my remarks by thanking all of our witnesses 
for coming today, especially those of you who were taken prisoner 
during the Second World War. All Americans should honor your sacrifice, 
and should be made aware of the inhuman conditions you were forced to 
endure. For that reason alone, I think it is valuable that we have this 
hearing today.
    I am very sympathetic to the claims being advanced by the former 
prisoners of war appearing before us today. They were treated with 
utter contempt and in violation of the laws of war. Having said that, I 
am aware that the litigation raises complex issues involving our 
foreign policy powers and obligations that our courts are in the 
process of resolving. As such, it would be inappropriate for me or for 
this Committee to prejudge the merits of those legal issues. So I will 
simply say that you have my sympathy and my attention.
    I do fear that the majority's concern about this litigation does 
not extend to litigation brought by other Americans looking to redress 
wrongs through our States' civil justice systems. We hold this hearing 
in the midst of our Committee's consideration of the so-called Class 
Action Fairness Act, which would drastically reduce plaintiffs' access 
to State courts, instead forcing them into federal court. It is 
therefore somewhat surprising that the majority has called 
representatives of the Justice and State Departments here this morning 
to answer for their legal opinion that the plaintiffs in these prisoner 
of war lawsuits belong not in State courts but in federal court.
    I also find it somewhat ironic that we are holding this hearing so 
soon after the majority fought so hard against the nomination of Judge 
Richard Paez to the Ninth Circuit Court of Appeals. The U.S. Chamber of 
Commerce, one of Judge Paez's most influential detractors, based its 
opposition to Judge Paez solely on a preliminary ruling he authored in 
the case of John Doe I v. Unocal. In that ruling, Judge Paez merely 
turned down Unocal's motion to dismiss a case brought against it based 
on its activities in Burma, a notorious abuser of human rights. Even 
this early ruling--which still left open the possibility that Unocal 
would win summary judgment in the case--was seen as too ``anti-
business'' and ``pro-human rights'' by the same majority that today 
holds this hearing to show support for the litigation brought by 
plaintiffs protesting human rights abuses by Japanese corporations.
    As legitimate as these concerns are, however, I do not believe that 
they should overshadow the testimony and the experiences of the 
witnesses who are here before us today. I simply hope that we show 
consistent solicitude for others who seek access to our courts.

    Senator Feinstein. Let me see if I understand this. If I 
understand this, Mr. Bettauer, you were saying that John Foster 
Dulles apparently made some agreement that there would be no 
prosecution of individual claims. You say that that is binding. 
Now, that may be a policy matter that was handled at the time.
    When Senator Hatch asked you about a case in point, you 
said, well, the case in point is being litigated at the present 
time. From that, I would deduce that the legal question has not 
been finally resolved as to whether this treaty can, in fact, 
prevent any American from exercising their right to litigate 
for damages.
    Mr. Bettauer. If I may, I was trying to say that these 
individual claims are currently being adjudicated. So if you 
ask for something exactly on point, you don't have a decision.
    Senator Feinstein. Right.
    Mr. Bettauer. But there is ample authority for the 
proposition that the executive branch or the President may 
espouse and settle claims of U.S. nationals, and the treaty 
does that and it became U.S. law. It is not just done as a 
policy matter, but it was given advice and consent and 
ratified, and therefore has become part of the law of the 
United States.
    There were hearings on this exact issue before the Senate 
Foreign Relations Committee at the time, and there was a back-
and-forth about whether this was a desirable thing to do. And 
the committee at the time and the Senate at the time decided to 
do that, and therefore the treaty was ratified.
    The Chairman. But isn't it true, Mr. Bettauer, that as a 
matter of law nation states do not own the claims of their 
nationals arising under domestic law? Consequently, how could 
the United States ``waive'' domestic law claims that it did not 
own? In other words, isn't the better reading that the United 
States waived the claims it owned, namely only the 
international claims of its own citizens, not the individual 
claims of the citizens?
    Mr. Bettauer. The treaty says claims against--it says other 
claims of their nationals arising out of any action taken by 
Japan and its nationals.
    The Chairman. I agree it has that language, but----
    Mr. Bettauer. It doesn't limit it to claims arising under 
one or another system of law. When claims have an international 
character, there is precedent. And I mentioned when we 
normalized with the Soviet Union back in 1933, it generated a 
series of cases that said that the United States may take and 
settle claims, and they are very famous cases. This was all 
reviewed in the case that I mentioned concerning the Iran 
hostage crisis. So it is not something that is new.
    The Chairman. I am aware of settling claims against 
countries. What I am talking about is settling claims against 
companies, not countries.
    Senator Feinstein. But if I understand what he is saying, 
he is saying that because the treaty has this language and this 
language was discussed by the Foreign Relations Committee of 
the Senate, and yet the treaty was adopted by the Senate, that 
therefore it absolves any further claims.
    The Chairman. Yes, that is what he is saying.
    Mr. Bettauer. It becomes part of U.S. law, yes. The treaty, 
under the U.S. Constitution, is the supreme law of the land, 
along with statutes.
    The Chairman. That is right, and it doesn't say anything 
about private claims against private companies brought by 
individual citizens who have a right to bring them.
    Mr. Bettauer. Yes, it does, Senator.
    The Chairman. Yes? Point it out to me.
    Mr. Bettauer. I think we are going in circles because I 
think you----
    The Chairman. Well, let me do this. I would like the both 
of you to reassess this. I would like you to assist the 
committee more because I don't see that. I see how you are 
interpreting it in a broad way. I think, Mr. Ogden, your legal 
interpretation is too broad, but I would like you to reassess 
this.
    I also think that it is important for you to meet with the 
representatives of these individual claimants. I think, in all 
fairness, you should meet with the representatives of the 
POW's.
    Mr. Ogden. Mr. Chairman, we would certainly welcome the 
opportunity to do that. We always are willing to meet with 
litigants in matters of this nature, and in this case that 
would be particularly so. We would be pleased to do that.
    I think on the question of the meaning of the treaty, at 
your suggestion, we will go back and take another look. I will 
say that we have not taken this lightly to this point and have 
put an enormous amount of work in.
    The Chairman. But you have taken a broad-brush 
interpretation, but in a very narrow way.
    Mr. Ogden. Our view, having looked at the history and 
reviewed the language, is that it was the intent of the United 
States in the treaty to waive national-against-national claims.
    The Chairman. I don't doubt that, but that doesn't waive 
individual rights. That is the problem.
    Mr. Ogden. You have raised, I think, a further point today, 
which is the question whether, if the United States has done 
that, it was a constitutional act. At least that is what I hear 
your question being, whether it was a taking of property 
without just compensation under the fifth amendment.
    That is a separate issue. It has to do with whether there 
would be claims against the United States arising out of the 
operation of the treaty. I think I will go back and take a look 
at that.
    The Chairman. It is more than just possible claims against 
the United States. It is that if those are property rights, 
then the United States cannot waive them. In other words, these 
people still have the right to bring them, and again not 
against the Government of Japan, which the treaty supersedes--
the treaty is the highest law of the land--but against the 
individual companies that exploited these people.
    Well, you have both agreed to reassess and go back and give 
us the benefit of your wisdom. You are both very bright people. 
I believe you are both very good men, and I would like to have 
you reassess this and I would like Mr. Pickering to reassess 
this. And I think he ought to come when we invite him next 
time. I hope you will send that message to him. We have been 
friends for a long time, but when the Judiciary Committee wants 
witnesses from the State Department, we want them here. And 
unless they have a good excuse, we don't think they just stiff 
the committee.
    Senator Sessions. Mr. Chairman, would he also respond to 
the chairman's inquiry about other nations, that escape valve 
clause and why that wouldn't apply?
    The Chairman. Well, that is right.
    Senator Sessions. If Burma gets special privileges, why not 
American citizens? I would like you to address that question, 
also.
    The Chairman. Well, that is all part of this, and that is a 
very good point that you are making.
    Mr. Ogden. Would you like me to address it now, or are you 
asking us to go back and do it?
    The Chairman. We would like you, in your reassessment, to 
take that into consideration that individual Burmese were 
compensated, and in that particular case, I believe, by the 
treaty and by the government. Under 26, it seems to me that 
opens the door for our POW's as well.
    But we will look forward to getting more advice and counsel 
from you, OK?
    Mr. Bettauer. Yes.
    The Chairman. All right. Well, thank you so much. We 
appreciate both of you being here.
    Mr. Ogden. Thank you.
    The Chairman. I am very pleased to now introduce the 
witnesses on our second panel. We are very fortunate to have a 
distinguished group of former POW's, as well as Prof. Harold 
Maier from the Vanderbilt School of Law.
    Let me say that our panel of POW's is representative. In 
preparing for these hearings, we have heard from many 
remarkable individuals--former POW's, family members, scholars 
and activists who work on veterans issues. The men before us 
today are representatives of all the POW's, their families, and 
those who have struggled on their behalf. I know we have a 
number of former POW's and family members in the audience, some 
of whom traveled great distances to be here today, and we 
deeply appreciate your presence here today.
    Let me introduce the panel. Mr. Harold Poole is from Salt 
Lake City, UT, and served in the 20th Pursuit Squadron of the 
Army Air Corps in the Philippines. Mr. Poole earned a Silver 
Star for valor in combat during the intense fighting that broke 
out after Pearl Harbor. Following his capture and survival of 
the Bataan Death March, Mr. Poole was shipped to Japan and 
forced into labor for Nippon Steel.
    Frank Bigelow currently resides in Brooksville, FL. He is a 
Navy veteran who once served aboard the U.S.S. Arizona. After 
being transferred to the Philippines, he was eventually 
captured by the Japanese in May 1942. Mr. Bigelow survived the 
horrific journey to Japan aboard the hell ships and was 
eventually taken to Omuta Camp 17, where he was forced to work 
in a coal mine operated by the Mitsui Mining Co. Beaten and 
tortured, Mr. Bigelow eventually lost a leg from the dangerous 
conditions of the mine.
    Maurice ``Mo'' Mazer now hails from Boca Raton, FL. After 
surviving the Bataan Death March, Mr. Mazer was shipped to 
Japan and forced to labor for Mitsubishi in copper and smelter 
mines. He has been active in veterans organizations and is a 
former Commander of the American Defenders of Bataan and 
Corregidor.
    Dr. Lester Tenney is a retired professor from Arizona State 
and San Diego State Universities. In 1941, he joined the 
Illinois National Guard and was sent to the Philippines, where 
he was eventually captured. Dr. Tenney was also forced into 
labor in the coal mines of Japan. He has written a fascinating 
book of his experiences entitled ``My Hitch in Hell,'' which is 
an inspiring account of the indomitable human spirit. It 
demonstrates how these remarkable men pulled together and 
helped each other make it through their ordeal. I highly 
recommend it to all of you.
    Ed Jackfert is the National Commander of the American 
Defenders of Bataan and Corregidor, a national veterans 
organization devoted to the men who served there. Mr. Jackfert 
is a veteran of the Army Air Corps and is himself a former POW 
held by the Japanese.
    Finally, we are pleased to have with us a very 
distinguished legal scholar, Prof. Harold Maier, of the 
Vanderbilt School of Law. Professor Maier is an expert in 
international law and has studied the 1951 Peace Treaty with 
Japan.
    We welcome all of you here today. Before we hear opening 
statements from our panel, I would like to recognize some of 
the organizations which are represented here today and who have 
expressed support for the committee's efforts. If you are 
representing a group, please rise at the time I mention your 
name.
    We are pleased to have representatives from the VFW, the 
American Legion, the American Ex-POW's, the American Defenders 
of Bataan and Corregidor, the Center for Internee Rights, 
U.S.S. Houston Survivors, Philippine Scouts Heritage Society, 
Jewish War Veterans, the Disabled American Veterans, and 
Admiral Nimitz Museum. All of you are here. We are grateful to 
have you here and we welcome you before the committee. Thank 
you very much. [Applause.]
    Many other organizations, such as the Simon Wiesenthal 
Center, could not be here today, but have expressed support for 
the committee's efforts, and those statements will be made a 
part of the record.
    So we thank all for your participation here today.
    Let's turn to Mr. Poole at this time.

   PANEL CONSISTING OF HAROLD W. POOLE, FORMER WORLD WAR II 
 PRISONER OF WAR IN JAPAN, SALT LAKE CITY, UT; FRANK BIGELOW, 
FORMER WORLD WAR II PRISONER OF WAR IN JAPAN, BROOKSVILLE, FL; 
 MAURICE MAZER, FORMER WORLD WAR II PRISONER OF WAR IN JAPAN, 
BOCA RATON, FL; LESTER I. TENNEY, FORMER WORLD WAR II PRISONER 
OF WAR IN JAPAN, LaJOLLA, CA; EDWARD JACKFERT, FORMER WORLD WAR 
II PRISONER OF WAR IN JAPAN, AND COMMANDER, AMERICAN DEFENDERS 
 OF BATAAN AND CORREGIDOR, INC., WELLSBURG, WV; AND HAROLD G. 
 MAIER, PROFESSOR OF LAW, VANDERBILT UNIVERSITY, NASHVILLE, TN

                  STATEMENT OF HAROLD W. POOLE

    Mr. Poole. Good morning, Mr. Chairman and members of the 
committee, and thank you, Senator Hatch, for your kind remarks 
in introducing me.
    As previously indicated, my name is Harold Wood Poole. I am 
an 81-year-old widower living in Salt Lake City, UT. I have a 
son and a daughter and nine grandchildren. I retired 20 years 
ago from the U.S. Postal Service, having served 30 years as a 
letter carrier.
    In 1940, I volunteered in the U.S. Army Air Corps. After a 
brief period of training in California, my unit, the 20th 
Pursuit Squadron, was shipped out to the Philippine Islands. I 
was assigned to the armament section and worked on the guns of 
our planes.
    Life in the Philippines was initially quite pleasant until 
war broke out. I was stationed at Clark Field, northwest of 
Manila. Waves of Japanese planes bombed the field, going after 
our planes and munitions. I will simply say, hoping not to 
appear immodest, that I received the Silver Star for valor in 
combat for my action in shooting down a Japanese plane that 
day.
    After holding the invading Japanese at bay for 4 months, 
the decision was made to surrender the U.S. forces. We were cut 
off, out of food, ammunition, medicine, and supplies. I will 
tell you it was a bleak day. Many bleak days followed--3\1/2\ 
years, to be exact. The Japanese guards continually berated us 
as cowards for surrendering, saying that we disgraced our 
country, ourselves, and our families, and didn't deserve to be 
alive.
    They refused us the dignity of the title ``prisoner of 
war.'' Rather, they referred to us as captives, and as such we 
had no rights. There were 200 members in our squadron who 
surrendered, and only 50 of them came home. Out of those 50, 
there are just a couple over 20 left.
    I was shipped to Japan in one of the so-called hell ships. 
Having survived the death march and the hell ships, my greatest 
challenge was still ahead--20 months of forced slave labor for 
Nippon Steel Corp. We worked 7 days a week, 10 hours a day. We 
were starved, beaten, and abused. We suffered disease, 
deprivation, and depression. I nearly died twice, once from 
malaria in the Philippines and the other time from pneumonia in 
Japan.
    We suffered from dysentery, beriberi, scurvy, pellagra, and 
jaundice, and a lot of these diseases were resulting from 
starvation rations which we had to put up with. If you became 
too ill to work, these already meager rations were further cut 
in half. Before the war broke out, I weighed 180 pounds, and 
when we were finally liberated I weighed 97 pounds.
    We worked at Nippon Steel doing heavy labor. Sometimes, we 
unloaded freight cars, worked to supply a blast furnace, or 
unloaded ships. If you didn't work hard or fast enough, you 
were beaten. For a long time, we were not allowed to receive or 
send mail. It was 2 years before my mother even knew whether I 
was dead or alive.
    I mentioned previously that only 50 of us came home from 
the war. I have often wondered why I survived and why so many 
of my buddies did not. Obviously, these are questions whose 
answers are ultimately known only to God, but I attribute my 
survival to Him. I am a religious man and I believe my Heavenly 
Father heard and answered my prayers while I was a prisoner of 
war. My faith in Him and my country gave me the strength to 
hang on when there was nothing else to hold on to.
    Now, over 50 years later, I think I know why my life was 
preserved. I am here today to speak not only for myself, but 
for all those young men who never came home. I am here to ask 
for your help as I seek justice not only for me, but for all of 
us who served and suffered, both living and dead. Justice has 
long been delayed, but it was not be denied.
    I am skipping over a little of it that has been covered 
already, Senator Hatch, by your explanation in your first 
presentation.
    So what I simply ask today, Mr. Chairman, is for your aid 
and assistance in helping us right this wrong. If the United 
States is not going to support us, then for heaven's sake they 
should not oppose us. I have confidence and trust in our 
American system of justice. I know if you will just allow us 
our day in court, our cause will speak for itself. As for me 
and my buddies, I will speak for those who are no longer here 
to speak for themselves. Please help us have that opportunity.
    Thank you. I would be happy to respond at the appropriate 
time to any questions you may have.
    [The prepared statement of Mr. Poole follows:]

                 Prepared Statement of Harold W. Poole

    Good Morning Mr. Chairman, and members of the Committee. And thank 
you Senator Hatch for your kind remarks in introducing me. As 
previously indicated, my name is Harold Wood Poole. I am an 80-year-old 
widower living in Salt Lake City, Utah. I have a son and a daughter, 
and nine grandchildren. I retired 20 years ago from the United States 
Postal Service, having served 30 years as a letter carrier.
    As a young man many years ago, I joined the United States Army in 
1940. After a brief period of training in California, my army air corps 
unit, the 20th Pursuit Squadron, was shipped out to the Philippine 
Islands. I was assigned to the armament section, and worked on the guns 
on our planes. Life in the Philippines was initially quite pleasant 
until war broke out.
    I don't have to tell you anything about Pearl Harbor. It is all 
well known and well documented history. But what is not so well known 
was the Japanese attack on the Philippines the day after Pearl Harbor. 
I know, I was there. I was stationed at Clark Field, northwest of 
Manila. Waves of Japanese planes bombed and strafed the field, going 
after our planes and munitions. I will simply say, hoping not to appear 
immodest, that I received the Silver Star for Valor in Combat for my 
actions in shooting down a Japanese plane that day. But I did not 
receive that medal until after the war, and a lot happened in between. 
That's what I want to tell you about today.
    After holding the invading Japanese at bay for four months, the 
decision was made to surrender the U.S. forces. We were cut off, out of 
food, ammo, medicine and supplies. I will tell you it was a bleak day. 
Many bleak days followed. 3\1/2\ years to be exact. The Japanese guards 
continually berated us as cowards for surrendering, saying that we 
disgraced our country, ourselves, and our families, and didn't deserve 
to be alive. They refused us the dignity of the title, ``Prisoner of 
War.'' Rather, they referred to us as ``captives,'' and as such, we had 
no rights.
    You have all heard about the infamous Bataan Death March. Well, I 
lived it. Six days and nights of pure hell. We were already weak and 
ill before we began. We walked in stifling tropical heat, without 
water, food or adequate rest. We were prodded along by bayonets, and, 
if you failed to move fast enough, you were run through with the 
bayonet. I lost a lot of buddies on the march. I lost a lot more over 
the next 3\1/2\ years. Two hundred members of my squadron surrendered. 
Only 50 ever came home. There are now only about 20 of us left. I was 
shipped to Japan in one of the so-called ``hell ships.'' Having 
survived the Death March and the hell ships, my greatest challenge was 
still ahead. Two years of forced slave labor for Nippon Steel 
Corporation. We worked 7 days a week, 10 hours a day. We were starved, 
beaten and abused. We suffered disease, deprivation and depression. I 
nearly died twice, once from malaria, the other time from pneumonia. We 
suffered from dysentery, beriberi, scurvy and pellagra. Many of these 
diseases resulted from surviving on starvation rations. If you became 
too ill to work, these already meager rations were further cut in half. 
Before the war broke out, I weighed 180 pounds. When we were finally 
liberated I weighed 97 pounds.
    We worked at Nippon Steel doing heavy labor. Sometimes we unloaded 
freight cars, worked to supply a blast furnace, or unloaded ships. If 
you didn't work hard or fast enough, you were beaten. For a long time, 
we were not allowed to receive or send mail. It was several years 
before my mother even knew whether I was dead or alive. But with all 
due respect, most of what we experienced and lived through cannot be 
fully or adequately described. Suffice it to say, you had to be there.
    I mentioned previously that only 50 of us came home from the war. I 
have often wondered why I survived and why so many of my buddies did 
not. Obviously, these are questions whose answers are ultimately known 
only to God. But I attribute my survival to Him. I am a religious man, 
and I believe my Heavenly Father heard and answered my prayers while I 
was a prisoner of war. My faith in Him, and my country, gave me the 
strength to hang on when there was nothing else to hold on to. And now, 
over 50 years later, I think I know why my life was preserved. I am 
here today to speak not only for myself, but also for all those young 
men who never came home. I am here to ask for your help as I seek 
justice not only for me, but for all of us who served and suffered, 
both living and dead. Justice has been long delayed, but it must not be 
denied.
    I am currently a plaintiff in a lawsuit seeking justice. I am not 
alone. Other POW survivors are involved as well. Our lawsuit is not 
against the Japanese Government--nor the Japanese people. I have long 
since forgiven them. Indeed, as a practicing Mormon, I sent my son to 
Japan for two years to serve as a missionary. We are all God's 
children.
    But forgiveness does not eliminate the demands of justice. My 
lawsuit is against Nippon Steel--the corporation which benefited 
directly from my forced slave labor. I want the world to know what 
happened to me and my fellow soldiers who were forced to work under 
such despicable conditions for Nippon Steel.
    I am not a lawyer, but my attorneys tell me that a similar lawsuit 
such as mine was brought in New Jersey by survivors of the Holocaust. 
Many of them were slave laborers as well. In that case, I am told, the 
Department of Justice was requested to submit the position of the 
United States concerning the suit. The Department of Justice took no 
position. But now I am told that the Department of Justice has taken a 
position opposing our right to bring suit and to seek justice for the 
Pacific survivors of forced slave labor. I acknowledge that I am not 
educated in the law--but I think I know what is fair--and what is 
right. And I am here to respectfully tell you that it is neither fair 
nor right for the United States Government to take such a position 
against American soldiers--albeit over 50 years later--who when called 
upon so many years ago--faithfully answered their country's call.
    So what I simply ask today, Mr. Chairman, is your aid and 
assistance in helping us right this wrong. If the United States is not 
going to support us, then for heaven sakes, they should not oppose us. 
I am told that there are very strong legal arguments why we should be 
allowed our day in court. Obviously, I believe there are equally strong 
equitable reasons as well. I have confidence and trust in our American 
system of justice. I know if you will just allow us our day in court, 
our cause will speak for itself. As for me and my buddies, I will speak 
for those who are no longer here to speak for themselves. Please help 
us have that opportunity.
    Thank you. I would be happy to respond at the appropriate time to 
any questions you may have.

    The Chairman. Thank you.
    Mr. Bigelow.

                   STATEMENT OF FRANK BIGELOW

    Mr. Bigelow. I want to thank you for allowing me to speak 
to you today. I want to give special thanks to Senator Hatch, 
from Utah, for his efforts. I am Frank Bigelow, formerly seaman 
second class. I am now 78 years old and residing in 
Brooksville, FL. I am here to speak for the POW's from World 
War II.
    Bullets, exotic diseases, and starvation couldn't kill us. 
Neither could 2 years of slave labor, being beaten, nearly 
beheaded, by the masters we were forced to serve. It is that 
strength that brings me here today. Justice is long overdue for 
the thousands of World War II veterans.
    No doubt, you have heard of Omuta Camp 17, where your 
fathers, sons, and brothers were forced to do hard labor. We 
were defending a beach on Corregidor when thousands of 
Americans and Filipino troops were taken prisoner by the 
Japanese. I knew right then that I was going to make it. When 
they hauled down the American flag, ground it into the Earth, 
urinated on it, it made me sick, and we held a lot of guys back 
to keep them from fighting the Japanese because they would have 
had their heads cut off immediately.
    I loved my flag and I loved my country. I was 20 years old 
and half a world a way from my home in North Dakota. I 
contracted malaria, jaundice, diarrhea, and dysentery all at 
the same time, and I forced myself to eat charcoal to save my 
life.
    After a year, the Japanese asked for 500 POW volunteers to 
go to another camp, and after 3 weeks at sea we found ourselves 
in Omuta, Japan. That was August 1943, Camp 17. Everyday the 
Japanese Army delivered us to a coal mine owned by Mitsui, one 
of the biggest business conglomerates in Japan, and we were 
their slave labor. Mitsui Mining was right up there in front 
and we were told to work or die--long hours, short rations. 
Usually, tiny portions of rice and seaweed soup could barely 
sustain us as we were doing physical, heavy labor. I was skin 
and bones, and at 6 foot, 4 inches, I weighed just 95 pounds.
    We worked as many as 27 days straight and we were beaten 
badly. Since my bones were so brittle from malnutrition, one 
night when a huge rock fell on my leg it broke my bones like 
old dead twigs. There was another American POW, Dr. Thomas 
Hewlett. He improvised with two sharpened bicycle spokes, one 
through my knee and one through my ankle. It didn't work. 
Eventually, I got gangrene, and due to lack of choice, since we 
had no medical supplies, much less surgical supplies, we had to 
do what was called a guillotine operation.
    He had a hacksaw blade and a razor blade, some knives, and 
four guys holding me. He resorted to a primitive method to 
battle the growing infection. He put maggots inside the 
bandage, and when he took them out and pulled out the 
infection, that man saved my life and my leg--the rest of my 
leg, I should say.
    Japan surrendered, and at the age of 24 I left that 
prisoner of war camp thinking only of my freedom in America. 
Former Navy and Marine prisoners of war were shipped to Guam, 
and when we reached Guam Navy intelligence officers took us one 
on one into rooms. We were each handed a paper headed 
``Restricted.'' I have that right here. This subject was 
restricted, ``Publicity in Connection with Liberated Prisoners 
of War.'' We were told to read and sign and keep our mouths 
shut, and I am just putting that politely. We were young, we 
were scared, and yearning to get home. We would have signed 
almost anything to do this.
    And what do I think the company owes us? My leg, a couple 
of years of our lives, and at least miner's wages for what we 
did. Most of all, they owe us an apology. It was war time, and 
as prisoners of war we were supposed to be treated humanely, 
fed, given a decent place to live, and medical treatment. We 
received absolutely none of these.
    If our lawsuits go to trial against the biggest and richest 
companies in the world, Mitsubishi, Nippon and Mitsui among 
them, we hope that photos taken by Terence Kirk will help our 
case. Terence built his own camera and he took six pictures. 
That is all he got away with. We want to use them as evidence 
against the Japanese who enslaved us, industrialists whose 
companies used prisoners of war as slave labor and were never 
tried. The photos were never used. We feel it is only fair to 
hold these companies accountable.
    In closing, may I say protect your freedom and your flag 
with your life, if it is necessary. It is the most important 
thing any American will ever have.
    Thank you.
    The Chairman. Well, thank you, Mr. Bigelow. We appreciate 
your testimony very much.
    We will go to you, Mr. Mazer. We are happy to have you 
here.

                   STATEMENT OF MAURICE MAZER

    Mr. Mazer. Good morning, Senator Hatch.
    The Chairman. Good morning.
    Mr. Mazer. My name is Maurice Mazer. I am one of the 
survivors of the Bataan Death March and 42 months' imprisonment 
in various camps, both in the Philippines and Japan. I was 
proud to serve as the National Commander of the American 
Defenders of Bataan and Corregidor for 1952 and 1953.
    I thank you for holding this hearing on our behalf today to 
call attention to those who served in the Pacific during World 
War II and were captured by the Japanese. We became slave 
laborers of private Japanese companies after our surrender and 
suffered unspeakable torture under our captors. Our Government 
has never recognized our sacrifice, and the Japanese companies 
who enslaved us have never compensated us. Further, we have 
never been compensated by our Government and have not received 
an apology from anyone. We deserve closure.
    I was imprisoned in Hanawa Camp in Japan. Each morning, the 
Japanese soldiers turned me and my fellow prisoners of war over 
to the guards for Mitsubishi Mining, a private company which 
enslaved us for its own profit and forced us to work in its 
copper mines and smelter mines. I was beaten unmercifully by 
the Mitsubishi guards and had my back broken in the mines when 
one of the guards ran a car carrying a mine operative into me, 
slamming me against the wall of the mine. Today, I suffer 
numerous health problems directly attributed to the time I 
spent as a slave laborer.
    It is absolutely unconscionable that our Government has 
awarded reparations to Japanese-American citizens who were in 
the United States relocation camps during World War II, many of 
whom were proven to be spies and Japanese sympathizers, and has 
ignored the plight of its military men and women who were 
enslaved by the Japanese. It is incomprehensible to me that our 
Justice Department has taken a position against our American 
prisoners of war who became slave laborers at the hands of 
private Japanese companies during the war.
    At the same time, the Justice Department made a conscious 
decision not to interfere with claims pending on behalf of the 
Holocaust survivors. Those of us interned by Mitsubishi, 
Mitsui, Nippon, Ishihara Sangyo, and many other Japanese 
companies suffered our own holocaust and this has never been 
recognized. This terrible injustice needs to be rectified as 
soon as possible. We, who are the victims, are old and dying 
off. We have waited too long for our private hell to end. It is 
a time for closure.
    Thank you for having this hearing. I appreciate your 
efforts to rectify injustices that I and those I was imprisoned 
with had to endure. I hope that through your efforts, I and 
those I was enslaved with will find our peace.
    Thank you.
    The Chairman. Well, thank you, Mr. Mazer.
    We have a vote on and there are only about 5 minutes left 
for me to get there. I think what I will do is recess for just 
a few minutes so I can go vote, because I would like to hear 
the whole testimony. Of course, if Senator Sessions comes back, 
he will continue the testimony.
    You will be next, Dr. Tenney, and if you don't mind 
waiting, I don't have any choice; I need to get over there and 
vote. So we will recess until I can get back or Senator 
Sessions gets here.
    [The committee stood in recess from 12:04 p.m. to 12:30 
p.m.]
    The Chairman. I apologize for the delay, but that is the 
best we can do when we have votes around here.
    We will turn to you, Dr. Tenney. I am sorry that you had to 
wait to give your testimony until now.

                 STATEMENT OF LESTER I. TENNEY

    Mr. Tenney. Mr. Chairman, members of the committee, in 
early 1942, along with 12,000 other Americans who were fighting 
and defending our country on the Bataan Peninsula, I was 
promised supplies, food, and reinforcements by our Government. 
As history shows, that promise was never fulfilled.
    During one of President Roosevelt's fireside chats made in 
February 1942, as we sat in our tanks we listened to him say 
that in every war there are those who must be sacrificed for 
the benefit of the whole war effort. We suddenly realized he 
was talking about us. We were being sacrificed and abandoned 
for the benefit of the overall war effort.
    Well, Senators, we were well able to do that. After all, we 
were proud young men and women serving our country, and we took 
an oath to protect our country at all costs. Then on April 9, 
1942, Bataan surrendered. We then found ourselves prisoners of 
war. I would like to take just a moment to share with you what 
it was like being a prisoner of war of the Japanese.
    First of all, you are stripped of every human right you 
thought you had. You are constantly reminded of the fact that 
you are cowards, that you are lower than dogs, that you have no 
rights whatsoever. You are humiliated beyond belief, and your 
faith and morals are challenged on a daily basis. Sickness and 
diseases like dysentery, malaria, beriberi, scurvy, and 
pellagra run rampant in your body. Beatings become an everyday 
occurrence, and you are deprived of adequate food. You can see 
that picture there, Senator. That is what we looked like.
    Well, here we are, 58 years later, and we are once again 
informed that we are being sacrificed and abandoned by our own 
Government, but this time not for the war effort, but instead 
for the benefit of those large Japanese industrial giants who 
profited from our slave labor. I once again feel that I have 
been taken prisoner, but this time by my own country. I have 
been able to take the beatings, but now I have to take the 
beatings with words from our own country.
    How has this come to be? Well, the California legislature, 
as was mentioned earlier, unanimously passed a statute that was 
enacted into law allowing claims for compensation for those 
veterans who were used as slave laborers to go forward in the 
courts, irrespective of the running of the statute of 
limitations. Pursuant to this law, I, along with many of my 
former POW friends who were enslaved by Japanese companies 
during World War II, have since filed lawsuits seeking 
reparations, equality, and justice.
    Shockingly, the U.S. Department of Justice has recently 
filed a court submission, the effect of which would nullify the 
action of the California legislature. Why is it, then, that the 
Justice Department at the same time had taken a hands-off 
position with regard to the same treaty issues as in the German 
Holocaust case?
    The actions of the Justice Department and the State 
Department is incomprehensible to me, to allude to the fact 
that our State Department places more emphasis on the documents 
of the treaty than on the actual treaty itself. I am speaking 
as one of the survivors of the infamous Bataan Death March and 
over 3\1/2\ years as a prisoner of war. Ultimately, I was taken 
to Japan on a hell ship. Once there, I became a slave laborer 
in a Mitsui coal mine. I was forced to shovel coal 12 hours a 
day, 28 days a month, for over 2 years.
    And the reward I received for this hard labor? Beatings by 
the civilian workers in the mine, and the reason for the 
beatings were because I did not work fast enough, did not 
shovel enough coal that day, or because the Americans won an 
important battle. We got to know how the war was progressing by 
the frequency and severity of the beatings. And, of course, the 
beatings were usually with pick axe, hammer, chains, or 
whatever the Mitsui overseer was able to get in their hands.
    Now, I, along with many of my former POW friends, are 
seeking justice from the Japanese companies that placed us into 
servitude, and they took pleasure in our humiliation. Our 
plight for recognition of this wrong has been ignored for the 
past 55 years, and more recently is being denied by our own 
Government. Those of us who were fortunate enough to survive 
are coming to the end of our lives and we would like once and 
for all to see justice done on our behalf.
    We cannot recapture our youth or our health. Frank here 
cannot get his leg back. But we would like to recapture our 
honor and our dignity that was taken away from us. The very 
least our country should do is not stand in the way by 
compounding our servitude. It is not money that motivates us; 
it is a need to remind the world of the importance of basic 
human rights and dignity. A wrong is a wrong, no matter how 
many people are doing it.
    The Justice Department erroneously or negligently issued a 
formal submission to the courts of our Nation, omitting the 
most crucial issue of the San Francisco Peace Treaty, and, in 
effect, took away our rights for recovery. Section 26, known as 
the most-favored-nation clause, states:

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

    The records of our State Department show that at least six 
other nations have been granted more favorable treaty terms 
than those given to the United States. Article 26, when 
properly interpreted, allows victims of forced or slave labor 
to seek recovery for the wrongs perpetrated against former 
prisoners of war during World War II. Yet, the Justice 
Department studiously ignored it in its Statement of Interest 
and mentioned not one word of article 26, even though it had 
been briefed on this issue. I urge you, Senators, to use your 
position within our Government to correct this wrong and have 
our Justice Department turn away from this misguided action.
    Mr. Chairman, Senators, this is not a tirade against Japan 
as a nation. I have no animosity toward the Japanese people. 
However, I and my colleagues who have served the United States 
and fought in Bataan are entitled to compensation and an 
apology from the Japanese companies that enslaved us. I heard 
the statement of Mr. Ron Bettauer. The debt he is talking about 
can be paid by helping us or getting out of our way.
    Thank you, Senators, for listening to my story about honor, 
injustice, and responsibility. We served our country with 
honor, we have had our share of injustice, and now we seek 
responsibility from our Government in allowing us to be heard 
in a court of justice.
    Thank you.
    The Chairman. Thank you, Dr. Tenney. I appreciate your 
great testimony.
    Mr. Jackfert.

                  STATEMENT OF EDWARD JACKFERT

    Mr. Jackfert. Mr. Chairman and members of the Senate 
Judiciary Committee, the American Defenders of Bataan and 
Corregidor, Inc., deeply appreciates this opportunity to speak 
to your committee today.
    My name is Edward Jackfert. I recently completed my second 
term as National Commander of American Defenders of Bataan and 
Corregidor, Inc. This gave me the opportunity to know most of 
the members, the problems they encountered during the war in 
prisoner of war camps, and subsequent mental and physical 
problems that emanated from their internment.
    These heroic defenders of the Philippines, Guam, Wake 
Island, the Dutch East Indies fought with what they had, and no 
army has ever done so much with so little. Upon the surrender 
of the Philippines, many were subjected to a death march and 
horrible prisoner of war camp conditions. They were then 
squeezed into the filthy allotted space in the bowels of the 
hell ships and transported to Japan. Maybe there was still some 
physical strength left in them to work for the Japanese 
industrialists, or perhaps they could serve as barter should 
the Japanese militarists need them for such.
    Devoid of any comforts, without food or water, and not even 
the courtesy to mark the ship as carrying prisoners of war, 
they sailed through the battle-infested waters toward Japan. 
They saw the smack of a torpedo or a bomb as it hit their ship. 
They saw the rushing waters that entered the hold and they felt 
panic that said ``this is it.'' There was terror written in 
deep, gaunt lines on the faces of the men, men that were to the 
breaking point both mentally and physically. Many died aboard 
the hell ships and were buried at sea. We have a record of 
3,632 POW's dying on these hell ships.
    Those that arrived in Japan were assigned to quarters which 
were unfit for human living. They were starved, beaten, and 
then assigned to Japanese industrialists as slave labor to work 
in plants, mines, shipyards, and factories. Many died of 
starvation and severe mistreatment by the Japanese 
industrialists in Japan. There were 27,465 Americans captured 
and interned by the Japanese military during World War II. Of 
these, 11,107 died while they were prisoners of war, and only 
16,358 were returned to military control of the U.S. Armed 
Forces.
    Those who have survived the barbaric treatment in these 
prisoner of war camps suffer immensely today from the residual 
effects of their prisoner of war life. It took our Government 
36 years to recognize by law certain disabilities resulting 
from the atrocious treatment of prisoners of war by the 
Japanese military and industrialists.
    Those few who came home continually looked to their 
Government to seek some redress from the Japanese 
industrialists who used them as slave labor during World War 
II. As of this date, they have found none. What they did 
receive was a peace treaty with Japan that many claim denies 
them compensation for violation of their human rights.
    With the help of a few civic-minded attorneys and other 
individuals in various parts of the United States, the prisoner 
of war community has initiated a drive for justice against 
those Japanese industrialists that used them as slave labor. A 
number of lawsuits have been recently filed in the State of 
California on behalf of these former prisoners of war. These 
complaints were filed against those Japanese firms that 
benefited from their slave labor during World War II. Hopes 
were high that perhaps justice might now prevail for this 
group.
    However, the prisoner of war community has been recently 
informed that the U.S. Department of Justice has issued an 
opinion that supports an incorrect interpretation of the Peace 
Treaty with Japan dated September 8, 1951, which could 
foreclose the rights of POW's under California law.
    This action by the Justice Department is in direct 
contradiction to a letter written by the Justice Department to 
Judge John W. Bissell, Newark, NJ, that requested the 
Department to appear as a friend of the court in two slave 
labor claims on behalf of persons forced to work in German 
factories during World War II. The Civil Division of the 
Department of Justice respectfully declined the request of 
Judge Bissell to become involved in this particular litigation.
    It is very apparent that the Justice Department made a 
determined decision only 6 months ago not to interfere with 
claims pending on behalf of Holocaust slave labor victims, 
whereas in our slave labor cases they have taken a position 
which is detrimental to such claims on behalf of slave labor 
victims of the Japanese industrialists.
    These former prisoners of war are bewildered that the 
Justice Department chose to take such a position which 
interferes with the rights of private citizens to bring claims 
against private Japanese companies. Is this what we fought for? 
Is this what some of our comrades died for? Is this justice? 
Are they using a double standard in their decisions relative to 
Holocaust slave labor victims and the slave labor performed by 
American prisoners of war?
    We have many veterans in the audience here today, members 
of the VFW, the American Legion, DAV, AMVETS, Military Order of 
the Purple Heart Association, American Ex-POW's, Center for 
Internee Rights, U.S.S. Houston Survivors, Jewish War Veterans, 
Philippine Scouts, and a number of other veterans 
organizations. Is this the freedom and justice that they fought 
for?
    I was interned at Tokyo Area Prisoner of War Camp No. 2, 
Kawasaki, Japan. Our camp was in the middle of a highly 
industrial area centered on Tokyo Bay midway between Tokyo and 
Yokohama. I was forced to work for Nippon Steel, Showa Denko, 
Mitsui Co., and Kokosho. Beginning in January 1945, our area 
was subjected to continual heavy bombing by B-29's. On many 
occasions, we had to perform slave labor while bombing raids 
were going on around us, with planes flying right over our 
heads. We were not permitted to construct air raid shelters 
until June 1945.
    On July 25, 1945, our area was subjected to a heavy 
demolition bombing which destroyed our camp and killed 22 of 
our fellow prisoners of war. The next day, we had the task of 
picking up the pieces of flesh of our dead comrades. The memory 
of this haunts us to this day.
    Since the end of World War II, neither the Japanese 
Government nor those private industrial Japanese companies that 
enslaved our soldiers have ever offered to make restitution for 
the abuses and injuries we suffered, much less to offer an 
apology. It is time for the U.S. Government to act honorably 
and quickly to close this dark chapter and afford these former 
prisoners of war the dignity that was taken away from them many 
years ago.
    Once again, I thank you for being able to appear before you 
today.
    The Chairman. Well, thank you, Commander. We are happy to 
have you here.
    Professor Maier, we will take your testimony at this time.

                  STATEMENT OF HAROLD G. MAIER

    Mr. Maier. Thank you. I have a note from Mr. O'Brien 
indicating that you are running short of time, and I am aware 
of that.
    The Chairman. Well, if you could summarize, it would be 
great.
    Mr. Maier. That is exactly what I wanted to do. You have a 
written statement from me, which is much longer than I was 
going to deliver anyway and deals with the same issues.
    The Chairman. We will put your complete statement in the 
record and anything else you care to provide us.
    Mr. Maier. I do have a few comments I would like to make on 
some of the other testimony today. I thought I would just say 
one thing about that which will take about 1 minute.
    The Chairman. Sure.
    Mr. Maier. I was somewhat surprised at Mr. Bettauer's 
testimony from the State Department, although I fully 
understand the problems of international diplomacy and how they 
sometimes tend to run counter to the legal issues with which we 
have to deal. But my concern with it was two-fold--perhaps just 
one.
    I think it is a very dangerous precedent for the Department 
of State to take the position that the plain language of a 
treaty--and I am referring now to the most-favored-nation 
clause--can be interpreted somehow in the light of a single, 
nonstated objective with which that claim was put into the 
treaty. I know of no public position taken like that, and I 
know of no legal support for it.
    When you write it down and you negotiate it, it is just 
like a piece of law, and that is what the Constitution of the 
United States says. The treaty is the supreme law of the land 
and I think we have to interpret it in the way in which we 
normally interpret the supreme law of the land when that is 
written by the Congress and signed by the President. So I was 
concerned about that, and I don't think that that is the way in 
which one interprets this treaty in any event, and I have 
addressed that in the paper.
    I do want to say one other thing. We have also two papers, 
one by Prof. John Rogers of the University of Kentucky, and the 
other by Prof. Michael Ramsey, who is a professor of law at the 
University of San Diego Law School. I have read both of these 
papers and if you do not have them, I would very much like to 
ask that you put those into the record as well.
    The Chairman. Without objection, we will do that.
    Mr. Maier. I have read both of them, and I haven't 
consulted with either of them, but on the basis of my 
experience as a teacher and a scholar I believe that both 
papers are excellent analyses and support conclusions I would 
strongly recommend to this committee.
    [The prepared statements of Prof. Michael D. Ramsey and 
Prof. John M. Rogers appear in the Appendix.]
    Mr. Maier. I guess I ought to say who I am. I am a 
professor of law at Vanderbilt. I hold the David Daniels Allen 
Distinguished Chair there, and I specialize in international 
legal studies, public international law. Constitutional Law of 
the United States and Foreign Relations are the two courses I 
teach that are related to this.
    I was counsel on international law in the Legal Adviser's 
Office at the Department of State in 1983-84, and I continue to 
serve as a consultant on international legal issues for them. I 
am an elected member of the American Law Institute. I do that 
only so that the record will show that I have some expertise in 
the field with which we are dealing.
    If I may say one more thing, my profession gives me always 
the great pleasure to associate with some very distinguished 
people--Members of the Senate, Members of Congress, Members of 
the executive branch, and others in the U.S. Government and 
outside it. But I have never been in the presence of such 
distinguished men as those who are at this table with me today.
    That is all.
    [The prepared statement of Prof. Harold G. Maier follows:]

            Prepared Statement of Professor Harold G. Maier

              i. professional biography and qualifications
    I am Harold G. Maier, Professor of Law at Vanderbilt University, 
Nashville, Tennessee, where I have been a member of the Law School 
faculty since 1965. I received my BA degree in English literature at 
the University of Cincinnati in 1959 and my JD degree in 1963 at the UC 
College of Law. I earned my LLM degree at the University of Michigan in 
1964 with a concentration in international legal studies.
    In 1959-60, I studied German language and history as a Luftbrucke 
Dankstipendiat at the Free University of Berlin, Federal Republic of 
Germany (FRG), and pursued advanced studies concerning the 
international licensing of industrial property rights at the Max Planck 
Institute for Patent, Trademark and Competition Law at the University 
of Munich (FRG) in 1964-65.
    At Vanderbilt, I currently teach courses in International Civil 
Litigation, Constitutional Law of United States Foreign Relations, and 
Conflict of Laws and have also taught Public International Law, 
Comparative Law, Civil Procedure, U.S. Constitutional Law, Patents, 
Trademarks and Unfair Competition and Immigration Law, as well as 
seminars on various related subjects.
    In 1983-84, I served as Counselor on International Law to the Legal 
Adviser of the United States Department of State and am presently a 
member of the State Department's Advisory Committee on Private 
International Law. I was special liaison between the Office of the 
Legal Adviser and the committee of Reporters for the ALI's Restatement 
(Third) of Foreign Relations Law of the United States, 1984-88, and was 
consultant to the Office of the Assistant Secretary of the Army for the 
Panama Canal Treaty Negotiations, 1976-77.
    I served as an expert witness for the United States government in 
the Cuban Mariel Boat Lift cases (see, e.g., Fernandez-Roque v. Smith, 
622 F. Supp. 887 (N.D.Ga., 1985) and was a member of American Branch of 
the International Law Association's ad hoc Committee on International 
Law in Municipal Courts, report published November 16, 1993.
    I have been a visiting professor at law schools at the Universities 
of Pennsylvania, George Washington, North Carolina and Georgia and in 
summer law programs in Aix-en-Provence, France, and London, England. 
For the academic year 2000-2001, I have been appointed Straus Visiting 
Distinguished Professor of Law at Pepperdine University Law School in 
Malibu, California.
    I am a member of the American Society of International Law and of 
the American Society of Comparative Law. I served on the board of 
editors of the American Journal of International Law in 1984-88, and 
have been a member of the editorial board of the American Journal of 
Comparative Law since 1997.
    I was elected to membership in the American Law Institute (ALI) in 
1984 and served on the Committee of Consultants for the ALI's Complex 
Litigation Project, 1988-1993. In 1975-1976, I was a Guest Scholar at 
the Brookings Institution, Washington, D.C., studying the role of the 
separation of powers principle in the conduct of United States foreign 
policy.
                     ii. context of this testimony
    I have been requested by United States nationals who were held as 
prisoners of war by the Government of Japan during the Second World War 
to consider the application of international and constitutional legal 
principles in United States courts in the context of claims filed by 
those nationals against certain Japanese corporations and their United 
States subsidiaries. I have been asked to assume that the Japanese 
corporate defendants used these American war prisoners as slave or 
forced laborers without pay, tortured them and committed other acts of 
gross inhumanity against them, all in violation of international and 
Japanese legal standards for treatment of prisoners of war.
         iii. commentary on the legal substance of these claims
    I have been advised that both the Japanese parent juridical 
entities and their United States subsidiaries have invoked the 1951 San 
Francisco Peace Treaty between the United States and Japan \1\ (and 
particularly Article 14(b) of that treaty) as a defense to these 
actions by American citizens who were Japanese Prisoners of War held in 
Japan during World War II. It is my opinion that none of the terms of 
that Treaty precludes these legal actions by American citizens who were 
former prisoners of war.
---------------------------------------------------------------------------
    \1\ Treaty of Peace with Japan of September 8, 1951, 3 U.S.T. 3169 
(hereinafter Peace Treaty).
---------------------------------------------------------------------------
    There are several reasons why the 1951 Peace Treaty does not 
preclude these claims. First, the language of Article 14 and the 
publicly articulated purposes of the Treaty indicate only that it 
intended to do more than address the limited questions of what should 
be done with Japanese-owned assets which in 1951 were under the control 
of the United States and the other Allied Powers. In this respect, the 
1951 Treaty does not include terms of exclusivity of remedy with 
respect to all Japanese violations of individual rights of American 
citizens that occurred during world War II. Article 14(a)(2) of the 
Treaty gave the United States and it Allies only the right to seize and 
dispose of Japanese assets within their control. Section 14(a)(2) makes 
no comprehensive reference to any limitations on future remedial 
measures on behalf of United States nationals (for example, nothing in 
the Treaty addresses or purports to precludes U.S. nationals from 
seeking future remedies against assets or property of private Japanese 
nationals located in Japan).
    Moreover, the mechanism selected for paying compensation (e.g., the 
confiscation of Japanese-owned assets then under the control of the 
United States for conversion into assets suitable for paying 
compensation claims to persons illegally injured by the Japanese 
Government) was agreed to by the Allied Powers in explicit recognition 
that, at that point in time, Japan could not develop a viable postwar 
economy if it were required to pay immediately all valid claims. This 
policy basis for Article 14(a)(2) excludes any reference, pro or con, 
to future claims filed by individuals to recover for injuries at the 
hands of the Government of Japan or Japanese nationals when the 
Japanese economy no longer needed protection from the necessary results 
of its inhumane wartime policies. As such, there is no evidence in the 
Treaty's language or purpose that the Allied Powers agreed to excuse 
the Government of Japan or Japanese nationals from future private 
claims to recover for these injuries.
    Lacking the evidence of any clear intention to nullify the future 
rights of these former prisoners now seeking compensation, the public 
statements of the United States' negotiators at most suggest the Peace 
Treaty was specifically intended to address only the use of Japanese 
assets then located within the United States. Thus, for example, I 
would direct the attention of the Committee to Secretary of State 
Dulles' explanation of the Treaty's terms and intent before the Senate 
Foreign Relations Committee, in which he stated,

        The United States gets, under this treaty, the right to use 
        Japanese assets in this country to satisfy whatever claims 
        Congress feels should be satisfied. We have taken under that 
        provision approximately $90 million of Japanese assets in this 
        country. Approximately $20 million have been used to take care 
        of claims which have been approved by the Congress on behalf of 
        internees, civilians and prisoners of war, and it remains for 
        Congress to decide what it wants to do with the balance.\2\
---------------------------------------------------------------------------
    \2\ Emphasis added.

    Nothing in this statement suggests that future claims of United 
States nationals were intended to be nullified by operation of the 
Peace Treaty, or that the United States had precluded any U.S. 
nationals from pursuing future claims. Secretary Dulles' comments refer 
only to claims to be satisfied out of Japanese assets then located 
within the United States and to the role of Congress in distributing 
the balance of these particular assets. This interpretation makes 
especially good sense in the light of the stated purpose of the United 
States to prevent the economic collapse of post-war Japan by 
restricting recovery to those assets then under United States control. 
It has no bearing on the continued existence of claims if and when 
Japan's, economy might recover or if Japan demonstrated its ability to 
provide further compensation.
    Second, the structure of the text of the Peace Treaty provided many 
provisions in which the United States could declare explicitly that the 
remedies referred to in the Treaty were exclusive (or preclusive) with 
respect to all claims brought by private U.S. citizens. As even the 
most cursory examination of the text of the Treaty would disclose, no 
such explicit limitation is contained in the Treaty. Despite this, I am 
advised that an assertion to the contrary has been made by the 
Defendant corporations (and presumably by the Government of Japan) 
based on Article 14(b) which, by its terms, waives:

        * * * all reparations claims of the Allied Powers, [and] other 
        claims of the Allied Powers and their nationals, arising out of 
        any actions taken by Japan and its nationals in the course of 
        the prosecution of the war. * * * \3\
---------------------------------------------------------------------------
    \3\ Art. 14(b), Peace Treaty differs from that in which the United 
States government has espoused a claim and then decides to settle that 
claim without the consent of the claim's original private owner. In 
those circumstances, once the United States government has espoused the 
claim, it has put the claim settlement process into the diplomatic 
realm. Private rights cannot limit the ability of the United State's 
government to carry on effective diplomacy by agreeing with another 
government to compromise a claim once that claim has been espoused.

    Under international law and practice, this provision does not 
operate in the manner asserted by these Defendants. To the contrary, 
the most reasonable interpretation of the wording used in this 
provision is that the Allied Powers (including the United States) 
waived their respective rights to espouse in the future the claims of 
their respective nationals arising out of the prosecution of the war. 
Without such espousal, no claims based on private injuries and arising 
under international law exist for the Allied Powers to pursue against 
the Government of Japan. If this were not the intent of the waiver, the 
Allied Powers--including the United States--would have put themselves 
in the position of waiving unespoused claims in which they had no 
valid, legally recognized interest. Under international law, an injured 
national's government has no recognized legally enforceable interest, 
and, therefore, no interest to ``waive,'' until the government espouses 
the injured individual's claim.
    This rule has particular significance for the United States. Under 
domestic law, the United States government cannot waive a claim that it 
does not ``own,''--that it has not espoused--without the consent of the 
owner of the claim. I am not aware of any indication that the former 
U.S. prisoners of war waived their claims, nor any evidence that the 
United States ever proposed espousal of these claims or formally 
espoused these claims. The fact that the former POW's have filed this 
law suit suggests precisely the opposite conclusion.
    Third, even if the Treaty could be construed to preclude private 
claims by United States nationals against Japanese nationals, this 
preclusive effect would have been overtaken by operation of the Most 
Favored Nation provision embodied in Article 26. Under that Article, 
Japan has extended unconditionally to every Allied Power (including the 
United States) the right to claim the same treatment from the Japanese 
government that Japan gives other nations with respect to war claims, 
regardless of any limitation that might be read into the original terms 
of the 1951 Treaty. This most-favored-nation clause, which is 
commonplace in treaties, is unconditional and unqualified. It operates 
automatically to give the United States and any other Allied Powers 
rights of any other nation to which the Japanese government might give 
more favorable treatment with respect to war claims than it gave to the 
parties to the Peace Treaty. Under standard practice in international 
law, the United States need take no formal action to avail itself of 
such more favorable terms. Furthermore, the time at which such more 
favorable terms might be granted to another nation is irrelevant to the 
rights of the United States to claim the benefit of those terms. The 
United States need not enter into additional negotiations with Japan in 
order to claim its most-favored-nation rights. The failure of the 
United States or any other Treaty party to take any formal or official 
steps to invoke its rights under the most-favored-nation clause does 
not, of itself, constitute a waiver of those rights, nor does such 
failure create an estoppel against the assertion of such rights.
    While I have not reviewed the totality of all treaties into which 
Japan has entered since World War II, I have reviewed at least eight in 
which the Japanese government has extended ``more'' favorable treatment 
to other nations than it did to the United States with respect to 
United States claims on behalf of its injured nationals. For example, 
Japan agreed in its peace treaty with Denmark to make payment for 
claims for injury to Danish nationals, without requiring release of 
claims against Japanese nationals as Japan required in the Peace Treaty 
with the United States. Similarly, Japan has paid claims of foreign 
nationals without requiring the release of claims against Japanese 
nationals, the quid pro quo that its nationals now seek to invoke 
through the strained interpretation of the 1951 treaty with the United 
States, discussed above. (See Japanese Treaties with Sweden, 
Switzerland, Spain, and The Netherlands.) Further, in their war claims 
settlement agreement, Japan agreed with Burma to reopen both the scope 
of waiver and the amount of payment that Japan was to make to settle 
claims against Japan by Burma. Japan has made no such offer to the 
United States. And, in its settlement with the Soviet Union, Japan 
agreed to limit the scope of its release of claims to those that arose 
after August 9, 1945. I am advised that the claims at issue in the 
suits brought by U.S. nationals against Japan arose before that date.
    In the light of these subsequent war claims agreements on terms 
more favorable to foreign nationals than those extended to nationals of 
the United States in the Peace Treaty, Japan must now be treated as 
having extended that same favorable treatment to claims by United 
States nationals. Those terms do not include any basis to assert that 
claims by United States nationals against Japanese nationals have been 
``waived'' in any respect. Thus, I reiterate that, even if the Treaty 
could be construed to preclude private claims by United States 
nationals against Japanese nationals, this preclusive effect would have 
been overtaken by operation of the Most Favored Nation provision 
embodied in Article 26.
                             iv. conclusion
    For all these reasons, I conclude that, in accordance with 
international law and practice, the 1951 Treaty should not, and cannot, 
be interpreted to preclude private actions by U.S. nationals against 
private Japanese nationals, and that Article 14(b) of that Treaty does 
not operate to effect any contrary rule.

    The Chairman. Well, thank you, professor. I think that is a 
nice way of summing up. I feel very honored to be with you 
gentlemen and your friends in the audience here today myself.
    I am way over time, but let me just have each of you answer 
these three questions. Tell us what it meant to you to serve 
your country, and I think most of you have already indicated 
that, but if you would care to make any additional comments, 
and how has your Government's response to your cases affected 
you. Some may say that this litigation is all about money. 
Please tell us what asserting these claims means to you and 
what really do you want from these companies that had you work 
in slave labor.
    You don't have to answer all four of them, but why don't we 
start with you, Mr. Poole, and then go right across the table.
    Mr. Poole. Thank you, Senator. I would like to respond to 
the question about why and what it is we are looking for out of 
this case. For myself, justice is at the top of the list, and 
also I would like the information and the account of this to be 
incorporated in our history books so that my great-grandkids 
and those that follow will be able to read and know what really 
happened to us there. And also it might be a deterrent for any 
of this happening again in the event that the situation arises 
with different nations. It might help out and give them a 
little more of a guideline to follow rather than what happened 
to us.
    The Chairman. Thank you.
    Mr. Bigelow.
    Mr. Bigelow. The primary thing I am looking for, sir, is 
justice, but I would like to say that the thing I think should 
happen in this country more than anything else is that our 
children and our young people should be taught what happened 
and why it happened, and maybe the future leaders of our 
country won't make this same mistake. That is all.
    The Chairman. Thank you.
    Mr. Tenney.
    Mr. Tenney. What I would like is that I want not only the 
justice that we are talking about, but by getting this justice 
I think we will also have an opportunity to let the citizens of 
Japan know once and for all what really happened. They are 
ignorant of what has happened because the Japanese Government 
refuses to tell them, the Japanese Government refuses to put it 
in their textbooks, and the people there do not know what 
happened.
    And so by seeking justice, by getting this apology that can 
be a national issue--remember that in 55 years they have done 
nothing, no apology, and the Japanese companies have done 
absolutely nothing. But by issuing a formal apology, I think 
that will not only help our own country, but will educate the 
Japanese people to what really happened. And it is through 
education that we can stop this from ever happening again.
    It is not a case of money. It is a case of what is right, 
it is a case of having what is right given to us. And if that 
means an apology, that is fine. If it means money, then let the 
courts decide on that. But I don't want that. I want the 
apology and I want the Japanese people to all know what 
happened.
    The Chairman. Thank you, Mr. Tenney.
    Mr. Mazer.
    Mr. Mazer. The only thing I want out of this is justice. We 
are having our laws in the United States, and we who fought and 
came back sick, and some are still sick, we want someone to 
tell us why it happened, why we didn't get the help that we 
should have had. But I have nothing against the Japanese 
people. This is Mitsubishi. They took me and they harmed me, 
and I would like to see that they pay for that.
    The Chairman. Well, thank you, Mr. Mazer.
    Mr. Jackfert.
    Mr. Jackfert. Senator, we all know that we live in the 
greatest country in the world. There is no doubt about that, 
but we were all professional soldiers. We willingly would have 
died for our country and freedom. Freedom is what it is all 
about. That is why we are here.
    And as far as justice goes, I think that perhaps in our 
country we have the greatest jury system in the world. Let a 
jury decide what justice is for us. It is not money; it is what 
we went through. Hopefully, perhaps someday the people of the 
United States will realize--our story has never really been 
told. You have heard these veterans here tell you about what 
they went through, but they cannot tell you what they went 
through. You had to be there; you had to feel the cold, the 
bugs, all this. This is a part of what we went through. It is 
impossible.
    So it is not money, it is justice, and that is all we seek. 
We want these companies that are responsible for making us 
slave laborers responsible for what we went through.
    The Chairman. Thank you, Mr. Jackfert.
    Professor Maier, we do have a number of legal questions we 
would like to ask, but in the interests of time I think it is 
best to submit those to you in writing and make your responses 
part of the formal record here.
    Mr. Maier. Thank you very much, Senator.
    The Chairman. Your responses will be very important to us, 
so we would like those back as soon as you can, but we would 
like them to be as fully stated as possible.
    Mr. Maier. I will be glad to do that.
    The Chairman. I would like to thank all of the witnesses 
who have appeared today and all of the organizations and 
individuals who have submitted statements or materials to be 
included in the record. Your input has been very valuable; in 
fact, let me say it has been invaluable.
    I want to express my special thanks to the many former 
POW's and their family members who are here today. Your 
personal stories and experiences are powerful reminders that 
freedom is not free. You have paid a heavy price for the 
liberty that all of us enjoy and take for granted. We are 
forever in your debt.
    I am also pleased that the Judiciary Committee has been 
able to provide a forum for these important issues to be raised 
and discussed. Obviously, there are some difficult legal issues 
to be raised that have been raised. There are difficult legal 
and diplomatic questions that must be answered and addressed.
    We are going to continue to help ensure that your stories 
are told and that the public becomes educated about this part 
of history. We will continue to push for the disclosure of 
records and the information that should rightfully be in the 
public domain. We also will fight for passage of compensation 
for you from our Government.
    Finally, regardless of how the technical legal issues of 
the treaty are resolved, which the courts are going to have to 
determine, we will continue to explore how else this committee 
and others in Congress might be appropriately helpful. I am 
open to ideas, and hope that this hearing begins a dialog to 
discuss what can be done in light of all the moral, legal, 
national security, and foreign policy interests that are at 
play in this matter.
    Now, to commemorate your appearances here today, I am going 
to personally have flags flown over the Capitol and sent to 
your homes, flags just like this one right here. We will send 
them to your homes, and I would like you to please accept those 
as a token of the Judiciary Committee's gratitude for your 
service to our country.
    In addition, some of you may have heard that I write music. 
Well, we just finished our second patriotic CD and it is called 
``Heal Our Land.'' Mr. Bigelow, the first CD, which I am going 
to send to you as well, because of your feelings for the flag, 
has the song in it ``I Love Old Glory.'' And I presume all of 
you have similar feelings.
    But in this second patriotic CD, I wrote a song for my 
brother, who was killed in the Second World War in the Plesty 
Oil Raid, the one that knocked out Hitler's Vienna, Austria, 
oil fields. He was missing in action for 2 years and then 
finally they found him and brought him home, so we had to go 
through it all again.
    I also have in there the song that we wrote for John 
McCain's friend who gathered little bits of cloth and made a 
flag that they would salute and pledge allegiance to every 
night that kept them sane. And when they found that he had this 
flag inside his shirt, the Hanoi soldiers took him outside and 
beat him within an inch of his life and threw him back in on 
this cement slab in the middle of the compound all bloody and 
broken and beaten.
    John said they cleaned him up as best they could, and he 
said that they had four incandescent bulbs on all hours of the 
day and night so there was always some light in the compound. 
So what they did is they went to sleep, and for some reason 
John woke up in the middle of the night and here was Mike 
Christian, this fellow who had before used a bamboo needle to 
fashion little bits of cloth into a flag, eyes all puffed up 
and bloodshot, broken and beaten and bloody, sitting with a 
bamboo needle starting all over again to make another U.S. 
flag. You folks understand that. You have been through that. 
You have suffered for us. You have been willing to give your 
lives, and to a large degree you have given a large part of 
your lives for us.
    I hope that the Justice Department and the State Department 
will review this matter. I suggest to our friends in the 
Government of Japan that they look at this matter carefully 
because there needs to be some reparation here. I suggest to 
the people who run these major corporations that are, I think, 
in every case very successful that they realize they have some 
responsibilities here, too. I am hopeful that this hearing will 
move us all down that road, in those directions.
    I want you to keep sending materials to us and help us to 
understand. We will follow these matters with a great deal of 
interest, and let's hope that much good will come from this 
hearing. I think already much good has come just because of the 
testimony that you gentlemen have given here today, because 
people all over this country are seeing this on C-SPAN and will 
see it again on C-SPAN, and many of us who lived through those 
years will recollect what you went through.
    And for those who are younger who really don't have much of 
a recollection at all of the sacrifices that were made so that 
they could have freedom, this particular hearing, I think, will 
open their minds and their hearts to realize that there are 
great human beings who gave their lives for us. There are great 
human beings who suffered for us, and you are among them and 
the leaders of those great human beings.
    So I am very grateful to have been able to sit through this 
hearing today. I feel like this has been one of the great 
hearings that we have had on Capitol Hill in recent years, and 
I just want to personally thank each and every one of you and 
all of those of you in the audience for the sacrifices you have 
made for me, for my family, for our friends, for our neighbors, 
for our fellow citizens, and really for the whole world, 
because without you this world would be a very, very different 
place than it is today. So God bless each and every one of you.
    With that, we will recess until further notice.
    [Whereupon, at 1:01 p.m., the committee was adjourned.]
                            A P P E N D I X

                              ----------                              

                         Questions and Answers

                              ----------                              

 Responses of the Department of Justice to Questions From Senator Hatch

    Question 1. In connection with the Holocaust Cases, the Department 
was requested by the court to submit a statement of interest as to 
whether the private lawsuits were precluded under international law or 
constitutional principles, but declined, having concluded that these 
actions were not barred from proceeding. In other words, where its 
views were consistent with the position of U.S. nationals and contrary 
to the views of foreign interests, the Department withheld submission 
of its views. Now, having concluded that its views are contrary to the 
views of U.S. nationals and consistent with the views of a foreign 
interests, the Department has submitted its views. Please explain the 
policy considerations that went into the decision not to submit a 
statement of interest in the Holocaust Cases while submitting views in 
these cases.
    Answer 1. The premise of this question is incorrect. It is true 
that the Department of Justice was invited by District Judge John W. 
Bissell to state the views of the United States concerning the impact 
of various post-war treaties with Germany on the cases pending before 
him brought by World War II era slave and forced laborers against 
German companies. The United States did not, however, as the question 
posits, decline the court's invitation on the basis of a conclusion 
``that these actions were not barred from proceeding.'' The United 
States has taken no position on the interpretation of the treaties. As 
we advised Judge Bissell, the negotiations over creation of a German 
foundation to compensate victims were then at a ``very delicate'' 
stage, and the United States negotiators were hopeful that the talks 
could reach fruition shortly. If successful, of course, a settlement 
would render resolution of the legal issues unnecessary. The 
Department's letter (copy attached) went on to say that, ``as a result, 
we are reluctant to take action now that might interfere with achieving 
that objective, an achievement we believe the court would welcome.'' 
(Tab 1). The Department also agreed to update the court on the progress 
of the talks and ``perhaps suggest a further schedule'' for providing 
the United States' views. These positions were taken at the request of 
the Department of State, who had the lead in conducting the 
negotiations in question, and the policy lead for the United States on 
these issues. Thus, the State Department's judgment that the United 
States should not submit its views to Judge Bissell was based on a 
judgment that filing could interfere with negotiations that hold out 
the hope of payments to slave and forced labor survivors, including 
perhaps 100,000 or more American citizens. If the final settlement is 
reached, as the State Department anticipates, these cases will be 
dismissed voluntarily, obviating the need to resolve the legal issues 
or for the United States to opine on them.
    In contrast, the foreign policy agencies of the United States are 
not involved in any negotiations concerning the claims of American 
prisoners of war in Japan, and the decision to file in the Heimbuch 
case, at the request of and in close consultation with the State 
Department, stemmed from the United States' obligation to carry out 
what it believes are clear treaty commitments.' Having waived World War 
II claims of U.S. nationals against Japanese nationals, in a treaty 
made by the President with the advice and consent of the Senate almost 
fifty years ago, the State Department concluded that United States had 
an obligation to its treaty partner to see that the provisions of that 
agreement are faithfully executed, and that this required the filing of 
the Statement of Interest. After careful analysis of the law and 
posture of the case, the Department of Justice deferred to that 
judgment.

    Question 2. The Statement of Interest asserts, without any analysis 
or citation of authority, that ``the United States created an exclusive 
remedy for claims by its nationals against Japan and its nationals 
arising out of WW II through the Treaty of Peace with Japan and the War 
Claims Act.'' Please cite any provision of the War Claims Act that 
precludes causes of action by U.S. nationals against Japanese 
nationals, or provides that the War Claims Act is an exclusive remedy 
for any claims by U.S. nationals against Japanese nationals. In 
addition, please cite and provide any document (including but not 
limited to negotiating history) or citation to any other 
contemporaneous authority or precedent that the Treaty clearly, 
intentionally, and unmistakably excluded or precluded lawsuits by U.S. 
nationals against Japanese nationals?
    Answer 2. There is significant public record material concerning 
the negotiating and drafting history and Senate ratification of the 
Treaty of Peace. We discuss this history below and have provided copies 
of pertinent materials as attachments to these answers.
    Article 14(b) of the 1951 Peace Treaty states that, ``[e]xcept as 
otherwise provided in the present Treaty, the Allied Powers waive all 
reparations claims of the Allied Powers, other claims of the Allied 
Powers and their nationals arising out of any actions taken by Japan 
and its nationals in the course of the prosecution of the war.'' 33 
U.S.T. 3169 (Tab 2). On its face, Article 14(b) waives not only claims 
against the Government of Japan, but all claims arising out of the 
prosecution of the war, whether such claims are based on actions of the 
Government of Japan or actions of Japanese private nationals. The Peace 
Treaty defines ``nationals'' to include ``juridical persons,'' and 
juridical persons includes business corporations. Article 4(a). Nor, by 
its terms, is the waiver limited to claims that would fall within a 
strict definition of ``reparations.'' Article 14(b) specifically waives 
reparations claims of the Allied Powers, and all other war-related 
claims of the Allied Powers and their nationals.
    We think it clear that the treaty means what it says. The 
contemporaneous documentary record further demonstrates that both the 
Executive and Legislative Branches understood and intended that all 
claims, including national-to-national claims, would be waived. As is 
reflected in the papers of the State Department and the congressional 
record, both Branches were concerned that imposing heavy burdens on the 
Japanese economy could result in a weak Japan and, as a result, an 
expansion of Soviet influence. Thus, in furtherance of critical 
national security and other interests, the United States and the other 
Allied Powers sought to achieve a peace that would permit Japan to 
recover economically, and join Western nations. Waiving reparations and 
other claims against the Government of Japan and Japanese nationals was 
intended to advance this policy goal. In 1950, President Truman 
appointed John Foster Dulles as a special Foreign Policy Adviser to the 
Secretary of State, and assigned him the specific task of negotiating a 
multilateral peace treaty with Japan. Dulles fully recognized the 
possibility that Japan someday would be in a better economic position, 
and then might be able to afford to pay the legal claims of its 
countless victims. Nonetheless, in a draft statement he wrote for 
Secretary of State Acheson to deliver to the President of the 
Philippines in August 1951, Dulles noted that ``only vigorous effort 
and industry by the Japanese will enable them to earn enough foreign 
exchange to import what they need to live in decency.'' Memorandum by 
the Secretary of State (Acheson) to the President, Washington, August 
7, 1951, reprinted in Foreign Relations of the United States 1951, Vol. 
VI, Asia and the Pacific, at 1245 (1977) (enclosing Draft Proposed 
Statement to the Philippine Government drafted by Dulles) (Tab 3). 
Dulles further observed:

          This would be impossible if the Treaty kept alive the right 
        of the Allies to demand monetary reparation payments. That 
        would so impair public and private credit as to make essential 
        capital developments impossible and so contract Japanese 
        ability to finance exports and imports as to endanger Japan's 
        survival as a member of the free world. It would destroy 
        Japanese initiative because the Japanese would know that the 
        greater was their exertion the more would be taken from them.
          It may be argued that no one can predict the future with 
        certainty, and that events not now foreseen might give Japan a 
        future ability to pay monetary reparation. That is true. But it 
        is also true that if an economy is set up so that it must bear 
        all unfavorable developments while deprived of the benefit of 
        all favorable developments, there is lacking the balance needed 
        to produce endeavor and to sustain credit, and disaster occurs 
        which is not limited to the area dealt with.
          All of these lessons were taught by the Treaty of Versailles. 
        Under it reparations claims destroyed German credit and will to 
        work. The claims were sought to be enforced by the most 
        determined effort that history records. Certain Allied armies 
        occupied the industrial heart of Germany, they arrested the 
        German industrialists for allegedly sabotaging reparations, and 
        they operated mines and factories for reparation account. But 
        the Treaty and all the efforts to enforce it produced no 
        appreciable reparations, but did create grave divisions as 
        between the principal allies and set in motion inflationary 
        forces, first in Germany, and then on a world-wide scale which 
        many observers believe were largely responsible for the tragic 
        economic collapse which began in 1929 and lasted until World 
        War II.

Id.

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

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

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

    The Senate Committee on Foreign Relations (``Committee'') 
unanimously recommended that the Senate give its advice and consent to 
ratification of the 1951 Treaty of Peace with Japan. See S. Exec. Rep. 
No. 82-2, at 4 (1952) (Tab 5). The Senate specifically focused on the 
wisdom of waiving legal claims. In its recommendation, the Committee 
warned that requiring payment of reparations and other war-related 
claims ``in any proportion commensurate with the claims of the injured 
countries and their nationals'' would be ``contrary to the basic 
purposes and policy of the free nations, the Allied Powers, and the 
United States in particular'' in the Far East. Id. at 12. The Committee 
described Article 14(a) as containing ``the unequivocal provision that 
Japan should pay reparations to the Allied Powers for the damage and 
suffering it caused during the War,'' but recognized that, ``[a]t the 
same time, article 14(b) states that except as otherwise provided, the 
Allied Powers waive all reparations and claims against Japan.'' Id. In 
recommending that the Senate give its advice and consent to 
ratification of the Treaty, including the waiver provisions, the 
Committee emphasized Japan's willingness otherwise to ``shoulder'' 
reparations, and the unprecedented magnitude of reparations it had 
already paid. Id. at 12, 14.
    The Committee informed the Senate that the Treaty's ``provisions do 
not give a direct right of return to individual claimants except in the 
case of those having property in Japan.'' S. Exec. Rep. No. 82-2, at 
13; see also Japanese Peace Treaty and Other Treaties Relating to 
Security in the Pacific: Hearings Before the Senate Comm. on Foreign 
Relations, 82nd Cong. 144-45 (1952) (``Committee Hearings'') (the 
Treaty's waiver provision ``closes'' and ``locks'' the gate on all 
avenues of recovery) (Tab 6). In fact, the Committee held extensive 
public hearings in January 1952 on the specific issue of war claims. 
The records of these hearings confirm that the Senate was aware that 
all individual claims were being waived by Article 14(b), and that such 
claims would be dealt with exclusively through legislation. Committee 
Hearings at 133-45.
    During the hearings, various objections and questions were raised 
concerning compensation for individual claims and specific objections 
were made to the waiver of these claims. See, e.g., id. One legislator 
even attempted to limit the effect of Article 14(b) by proposing a 
reservation to the Treaty stating that ``nothing contained in this 
Treaty shall be construed to abrogate the * * * just and proper claims 
of private citizens of the United States.'' See 98 Cong. Rec. S2365, 
2567-71 (1952) (Tab 7). In a memorandum, Adrian S. Fisher, the Legal 
Adviser for the U.S. Department of State, informed Secretary of State 
Acheson that this proposed reservation was ``in direct conflict with 
Article 14(b),'' and that, if this reservation were added to the Treaty 
during the ratification process, ``a renegotiation of the Treaty 
Article would unquestionably ensue.'' Memorandum to The Secretary from 
Mr. Fisher (the Legal Adviser), dated March 19, 1952, at 4 (Tab 8).
    In lieu of such a provision, the State Department recommended that 
Congress adopt the War Claims Commission's suggestion that Congress 
amend the War Claims Act of 1948 ``to provide for the receipt, 
adjudication and payment of claims * * * resulting from mistreatment, 
personal injury, disability, or impairment of health caused by the 
illegal actions of any enemy government during World War II.'' 
Committee Hearings at 147. Congress eventually accepted this 
invitation, and amended the War Claims Act to ``create[] a domestic 
mechanism for distributing captured Japanese assets,'' which entitled 
members of the putative class ``to detention benefits for the period of 
imprisonment in Japan.'' Aldrich v. Mitsui & Co. (USA), Case No. 87-
912-Civ-J-12, slip op. at 3 (M.D. Fla. Jan. 20,1988) (citing 50 U.S.C. 
App. Sec. Sec. 2004 and 2005 (1994)) (Tab 9).
    Consistent with this position, the Senate gave its advice and 
consent to the Treaty on March 20, 1952, by a vote of 66 to 10, without 
adding a reservation pertaining to war claims in its resolution of 
advice and consent. See 98 Cong. Rec. S2594 (1952) (Tab 10). Advice and 
consent was considered and approved as part of a package with three 
additional security treaties relating to the Pacific region, reflecting 
the United States' view of the Treaty as an integral part of its 
political and foreign relations goals in that region. See, e.g., Cong. 
Rec. S2327, 2361, 2450, 2462 (1952) (Tab 11).
    Article 14(b)'s waiver provision did not, however, mean that 
victims who had claims against the Japanese government and Japanese 
nationals would not be compensated. A key feature of the Treaty was the 
system for the payment of war-related claims it established to provide 
compensation for ``the damage and suffering'' inflicted by Japan and 
its nationals ``during the war.'' Treaty, Art. 14(a). Private Japanese 
nationals--primarily corporations--who had property or other assets 
located outside Japan, paid a heavy price under the 1951 Peace Treaty 
to satisfy the requirements of this system. The Government of Japan 
volunteered the use of those assets to satisfy war claims.\2\ Pursuant 
to that Article and Article 16 of the Treaty, assets located in Allied 
territory valued at approximately $4 billion were confiscated by Allied 
governments, and their proceeds distributed to Allied nationals in 
accordance with domestic legislation. See Comments on British Draft, 
Memorandum by the Officer in Charge of Economic Affairs in the Office 
of Northeast Asian Affairs (Hemmendinger) to the Deputy to the 
Consultant (Allison), April 24, 1951, reprinted in Foreign Relations of 
the United States 1951, Vol. VI, Asia and the Pacific, at 1016 (1977) 
(Tab 12). The total value of Japanese-owned assets located in U.S. 
territory (including the Philippines) was estimated in 1952 to be worth 
more than $90 million. See Japanese Peace Treaty Negotiations, Feb. 5, 
1952, reprinted in Executive Sessions of the Senate Foreign Relations 
Committee (Historical Series), Vol. IV, 82nd Cong., 2nd Session, 1952, 
at 121-22 (1976) (Tab 13).
---------------------------------------------------------------------------
    \2\ [E]ach of the Allied Powers shall have the right to seize, 
retain, liquidate or otherwise dispose of all property, rights and 
interests of

---------------------------------------------------------------------------
      (a) Japan and Japanese Nationals,

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

      (c) Entities owned or controlled by Japan or Japanese 
      nationals.

Treaty, Art. 14(a)(2).

    Following the war, these assets were seized by the Office of Alien 
Property (an office within the U.S. Department of Justice), liquidated, 
and the proceeds placed into a War Claims Fund, for ultimate 
distribution to POWs and other claimants. As Ambassador Dulles 
explained:

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

Id. Funds to pay reparations mostly were provided from the confiscation 
of assets of Japanese businesses, in accordance with United States and 
Allied policy.\3\
---------------------------------------------------------------------------
    \3\ As an expression of its desire to indemnify those members of 
the armed forces of the Allied Powers who suffered undue hardships 
while prisoners of war of Japan, Japan will transfer its assets and 
those of its nationals * * * for the benefit of former prisoners and 
their families.'' Treaty, Art. 16 (emphasis added).4
---------------------------------------------------------------------------
    Using these confiscated funds, the Senate Committee on Foreign 
Relations recognized that it ``is the duty and responsibility of each 
[Allied] government to provide such compensation for persons under its 
protection as that government deems fair and equitable, such 
compensation to be paid out of reparations that may be received from 
Japan or from other sources.'' S. Exec. Rep. No. 82-2, at 12-13. 
Following the recommendation of the State Department, Congress amended 
the War Claims Act of 1948, 50 U.S.C. App. Sec. Sec. 2001-2017 (1994), 
to afford additional compensation to those taken prisoner of war by the 
Japanese. 50 U.S.C. App. Sec. 2005(d) (1994).
    Originally enacted immediately after the war, the War Claims Act 
had established a system of compensation for prisoners of war like 
Plaintiffs and certain other victims of World War II. The Act 
established a War Claims Commission (now the Foreign Claims Settlement 
Commission), which initially was authorized to adjudicate claims 
``filed by any prisoner of war for compensation'' for specified 
violations of the Geneva Convention of July 27, 1929, suffered while a 
prisoner of war, including claims for violations ``relating to labor of 
prisoners of war.'' 50 U.S.C. App. Sec. 2005 (1994). These claims 
covered inadequate food, inhumane treatment, and certain types of 
forced labor. The Act was prompted by Congress' desire ``to facilitate 
the giving of immediate relief to those American citizens who were 
imprisoned by the enemy during the war.'' S. Rep. No. 80-1742, at 7 
(1948) (Tab 14).
    At that time, however, Congress acknowledged that ``the question of 
war claims * * * is too complex to be approached by the Congress on a 
piecemeal basis and that the subject in its entirety must be studied 
thoroughly before any intelligent action can be taken.'' H.R. Rep. No. 
80-976, at 4 (1947) (Tab 15). Therefore, Congress charged the 
Commission with recommending types of claims to be accepted, adopting 
the procedures for considering claims, and establishing uniform 
standards for handling such claims. See 50 U.S.C. App. Sec. 2007 
(1994); 94 Cong. Rec. H564-69 (1948) (Tab 16). Congress anticipated 
that the Commission would ensure ``the claims [would] be handled in 
accordance with priorities, priorities to be established for, we will 
say, the veterans of Bataan and others who have suffered similarly, as 
being No. 1 for consideration.'' 94 Cong. Rec. H566 (1948).
    Congress rejected a proposal that would have allowed federal courts 
to adjudicate war compensation claims, because of the complexity of the 
issues and the need to have the claims ``classified by experts who are 
qualified so to do'' in order to ``get some rationality out of this 
situation [and] to determine the categories of claims that should be 
allowed.'' 94 Cong. Rec. H564 (1948). It is clear that Congress did not 
want claims within the Commission's jurisdiction to be adjudicated by 
the courts, because it barred judicial review of the Commission's 
decisions ``by mandamus or otherwise.'' 50 U.S.C. App. Sec. 2010 
(1994).

    Question 3. At no point in the Statement of Interest does the 
Department provide any analysis of the language of Article 14(b) of the 
Treaty which limits the scope of any waiver to ``actions taken by Japan 
and its nationals in the course of the prosecution of the war.'' Please 
explain the meaning of this limitation, and identify and provide all 
contemporaneous documents upon which the Department relies in that 
interpretation. Please explain how the failure by private Japanese 
companies to pay U.S. nationals for commercial labor at commercial-
level wages is conduct arising ``in the course of the prosecution of 
the war.''
    Answer 3. Everything known about the drafting of the phrase ``in 
the course of the prosecution of the war'' indicates that it was 
intended to have a very broad scope.\4\ The phrase first appeared in a 
proposed revision to Article 19(a) of the U.S.-U.K. draft of the 
Treaty. Japanese Peace Treaty: Working Draft and Commentary Prepared in 
the Department of State, Washington, June 1, 1951, reprinted in Foreign 
Relations of the United States 1951, Vol. VI, Asia and the Pacific, at 
1093-94 (1977) (Tab 4). Article 19(a) is a reciprocal provision to 
Article 14(b) that waives all claims by Japan and its nationals against 
the U.S. and its nationals. The revision was proposed by the United 
Kingdom along with the alternative phrase ``or in the exercise or 
purported exercise of belligerent rights.'' Id. The United States 
preferred the language in ``the course of the prosecution of the war'' 
because it was more comprehensive. Id. The phrase was later inserted 
into Article 14(b).
---------------------------------------------------------------------------
    \4\ The phrase ``in the course of the prosecution of the war'' is 
not a specific term of art under the laws of war. We have only found 
the phrase in one other international agreement, a 1972 agreement, 
Union of Soviet Socialist Republics Settlement of Lend Lease, 
Reciprocal Aid and Claims, 23 U.S.T. 2910.
---------------------------------------------------------------------------
    In their complaint, Plaintiffs allege substantial and active 
participation by the Japanese Government in subjecting American 
prisoners of war to forced labor. Compl. para. para. 10, 12, 13, 43, 46 
(Tab 17). According to the allegations in the complaint, the conduct 
that forms the basis of Plaintiffs' claims was the direct result of 
laws and policies toward POWs adopted by the Government of Japan to aid 
its war effort. Compl. para. para. 10, 12, 13, 41.\5\ Indeed, almost 
all of the allegations in the complaint deal with the actions of Japan 
and its policies in prosecuting the war. The allegations of actions 
taken by Japan and those taken by defendant companies are mingled, and 
clearly were taken ``in the course of the prosecution of the war.''
---------------------------------------------------------------------------
    \5\ Article 28 of the Geneva Convention of July 27, 1929, provides 
that ``[t]he detaining Power shall assume entire responsibility for the 
maintenance, care, treatment and payment of wages of prisoners of war 
working for the account of private persons.'' 6 U.S.T. 3316 (1929).
---------------------------------------------------------------------------
    The war-time Japanese economy was an integral part of Japan's 
mobilization for ``total war.'' See John W. Dower, Embracing Defeat: 
Japan in the Wake of World War II, 529-30 (1999). ``The complexities of 
mobilizing an industrialized nation for total war required them [the 
military] to take Japan's other vested interests into partnership. They 
enlisted the aid of the leaders of big business, whose expertise was 
crucial in exploiting the resources of the Japanese Empire and in 
designing and building new weaponry.'' Meirion and Susie Harries, 
Sheathing the Sword: The Demilitarization of Japan, 4 (1987). By the 
late 1930s, industry, commerce and finance in Japan were dominated by 
an interlocking series of monopolistic combines called zaibatsu. Id. at 
5. The zaibatsu rose to positions of prominence by collaborating 
closely with the military. Dower, at 529-30. ``The zaibatsu factories 
were called upon to provide equipment, their shops to provide 
transport, their banks for finance, and their overseas branches were 
useful bases for intelligence-gathering.'' Harries, at 53. The military 
and zaibatsu cooperated to create an economy devoted to the pursuit of 
the war, and it is clear from plaintiffs' complaint that the very 
purpose of pressing prisoners of war into forced labor was to shore up 
industrial support for this total war effort.

    Question 4. Has the Department attempted to determine whether Japan 
has entered into any war claims settlement or other agreements through 
which, pursuant to Article 26 of the Treaty, more advantageous terms 
must be extended to the United States by Japan? Attached are copies of 
relevant portions of other treaties entered into by Japan. Please 
explain why the United States should not now invoke the equivalent 
rights extended to Burma by Japan, particularly in light of the 
determination of the United Kingdom that that Agreement triggered 
rights of the Allied Powers under Article 26. Please explain why, in 
light of Japan's War Claims Agreement with the Soviet Union, the United 
States should not take the position that Article 14(b) applies only to 
claims of U.S. nationals arising after August 8, 1945. Please explain 
why the terms of Japan's War Claims Settlements with other countries 
which do not require the waiver of claims by nationals or against 
Japanese nationals should not be extended to the United States by 
operation of Article 26. Please provide all analyses supporting these 
views and all documents on which they rely.
    Answer 4. Article 26 does not provide any rights to private 
litigants who may claim that they should have the benefit of a treaty 
signed by other sovereign nations. There is no private right to invoke 
Article 26 of the Treaty--only the United States Government has rights 
under Article 26. ``International treaties are not presumed to create 
rights that are privately enforceable.'' Goldstar (Panama) S.A. v. 
United States, 967 F.2d 965, 968 (4th Cir.), cert. denied, 506 U.S. 955 
(1992); see also United States v. Li, 206 F.3d 56, 670 (1st Cir. 2000) 
(en banc) (``treaties do not generally create rights that are privately 
enforceable in the federal courts''); Tel-Oren v. Libyan Arab Republic, 
726 F.2d 774, 808 (D.C. Cir. 1984) (Bork, J., concurring) (same), cert. 
denied, 470 U.S. 1003 (1985); Restatement Sec. 907 comment a 
(``[international agreements, even those directly benefitting private 
persons, generally do not create private rights or provide for a 
private cause of action in domestic courts * * *.''). As the Supreme 
Court said well over 100 years ago in the Head Money Cases: ``A treaty 
is primarily a compact between independent nations. It depends for the 
enforcement of its provisions on the interest and the honor of the 
governments which are parties to it.'' 112 U.S. 580, 598 (1884). To be 
sure, the presumption against a private right of action may be overcome 
where a treaty confers rights on private parties, and the treaty 
partners intend that those rights be judicially enforceable. See Diggs 
v. Richardson, 555 F.2d 848, 851 (D.C. Cir. 1976). But that is not the 
case here. See id.; cf. Li, 206 F.3d at 63 (noting State Department 
distinction between a treaty that creates ``state-to-state'' rights and 
one that creates individual rights).
    Only the United States may invoke Article 26 in appropriate 
circumstances. Whether to invoke the rights embodied in Article 26 is a 
mixed question of law and diplomatic policy entrusted in the first 
instance to the Department of State. Article 26 has been mentioned 
publicly by United States officials only once, to deter the Japanese 
from granting sovereignty over the Kurile Islands to the Soviet Union. 
See Secretary Dulles' News Conference of August 28, 1956, Department of 
State Press Release No. 450 (Tab 18). Absent invocation of Article 26, 
there is no current basis for altering or construing the Treaty of 
Peace to conform to the terms of other nations' treaties with Japan.

    Question 5. In determining the position that the 1951 Treaty 
necessarily and unmistakably waived the claims of private U.S. 
nationals against private Japanese nationals, did the Department make 
any independent review of the negotiating history? Please explain how 
the position of the Department is consistent with the exchanges between 
Japan and the Netherlands, which are attached. Did the Department 
consult with the Japanese Government regarding public reports (some 
quoting the Japanese Prime Minister) that the official position of the 
Japanese Government was that the 1951 Treaty did not waive national 
versus national claims?
    Answer 5. The Department of Justice made an exhaustive review of 
the drafting and negotiating history of the Treaty prior to submitting 
the Statement of Interest. We also held appropriate consultations with 
the Japanese Government and are confident that the official positions 
of the United States and Japanese Governments as to whether these 
claims can be brought under the Treaty are consistent. Our answer to 
question 2, above, reflects our review of the negotiating history.
    The exchanges between the Governments of the Netherlands and Japan 
do not alter the United States' understanding of the treaty. The 
exchanges between the Governments of the Netherlands and Japan make 
clear that, under the Treaty of Peace, Dutch nationals would not be 
able to obtain satisfaction for their claims from Japan or Japanese 
nationals. The claims of Dutch nationals, as with all other Allied 
nationals, would continue to exist and could be satisfied through 
compensation by their own government (similar to what the United States 
provided through the War Claims Act) or through voluntary agreement by 
the Japanese government. See Memorandum of Conversation, by the Deputy 
Director of the Office of British Commonwealth and Northern European 
Affairs (Satterthwaite), San Francisco, September 4, 1951, reprinted in 
Foreign Relations of the United States 1951, Vol. VI, Asia and the 
Pacific, at 1332-33 (1977) (Tab 19).

    Question 6. In preparing the Statement of Interest, did the 
Department (or the State Department) consult with any scholars or 
experts on international law or treaty interpretation? Did either 
Department discuss any of the above-mentioned issues with any person 
involved in the negotiation or contemporaneous application of the 1951 
Treaty? In the event of an affirmative answer to either question, 
please provide the name of such person and any document memorializing 
the substance of the discussion or consultation.
    Answer 6. In preparing the Statement of Interest, the Department of 
Justice consulted with and relied on the legal and policy expertise of 
the Department of State. It is the Department of State, not outside 
scholars and/or experts on international law, that is responsible for 
the foreign policy of the United States, including the interpretation 
of its treaties and obligations under international law.
                               __________

    Responses of Ronald J. Bettauer to Questions From Senator Hatch

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

    Question 2. How often has the Department of State met with the 
plaintiffs (the POWs) or their attorneys?
    Answer 2. The Department of State has not met with the plaintiffs. 
The plaintiffs themselves never initiated contact with the State 
Department, nor did their legal representatives ever indicate to the 
Department that their clients wished to meet with State Department 
officials. The State Department never initiated contact with the 
plaintiffs, as it would have been unethical (under legal ethics rules) 
to contact parties directly who are being represented by counsel. 
Department of State attorneys, however, had a number of telephone 
conversations with legal representatives for the plaintiffs. These 
conversations were of a similar nature to the conversations that 
government attorneys had with defendants' attorneys.
    Significantly, however, on February 15, 2000, representatives for 
the plaintiffs met--at their request--with Deputy Secretary of the 
Treasury Stuart E. Eizenstat, who was acting in his capacity as the 
Special Representative of the President and the Secretary of State on 
Holocaust Issues. Also present at the meeting was a representative from 
the State Department's East Asian and Pacific Affairs Bureau. At this 
meeting, plaintiffs' attorneys presented a list of legal points in 
support of their presentation. Mr. Eizenstat committed to pass these 
points to Department of State attorneys, and he promptly did so. These 
points were given serious attention by Department of State and Justice 
attorneys in their internal deliberations.
    After the U.S. Government announced its decision to file its 
Statement of Intent, legal representatives for the plaintiffs sent most 
of their comments, inquiries and correspondence to the Department of 
Justice.

                 Additional Submissions for the Record

                              ----------                              

                                    Berlin, Germany, June 26, 2000.

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

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

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

    Mr. Chairman and Members of the Committee: The Veterans of Foreign 
Wars of the United States is pleased to be able to make a written 
statement for the record on behalf of those American veterans who were 
prisoners of war in the Pacific during World War II.
    This statement is the written testimony of the Veterans of Foreign 
Wars of the United States. We understand that the purpose of today's 
hearing is to explore the historical, legal, and practical issues 
surrounding the plight of the former POWs.
    This written testimony presents the VFW leadership's views on this 
issue. We want to make it clear that we strongly support the right of 
these veterans who are former Prisoners of War (POWs) to receive fair 
and just compensation for the injuries they suffered at the hands of 
their Japanese captors, and the slave labor they were forced to perform 
by private Japanese Companies during World War II.
    It is a well-documented fact that during World War II, thousands of 
Americans were taken as POWs in the Pacific Theater and many were 
forced into slave labor. According to our sources, over 33,000 U.S. 
military personnel were captured in the Pacific Theater and interned by 
the Japanese. Of this total, over 12,500 of them died in captivity. The 
percentage of those who died in captivity gives a good indication of 
the horrid conditions that existed in the POW camps administered by the 
Japanese. These POWs suffered from a lack of adequate food, clothing, 
shelter, and medical care, suffered interrogation and torture, endured 
unthinkable abuse and brutality under the hands of their captors, and 
had their rights under the Geneva Conventions routinely violated. In 
addition, many of these POWs were transported to mainland Japan, and 
were required to work for private Japanese companies as slave laborers 
under horrible conditions. Here as well they were subjected to severe 
beatings and many different types of human rights abuses. When the war 
ended, the survivors returned home, but have never received fair 
compensation for their injuries and labor.
    In fact, the only compensation most of these POWs received was 
standard Veterans Administration/Affairs benefits including medical 
care, and one dollar from the U.S. government for every day they spent 
in enforced labor while enslaved to private Japanese companies. After 
the war, peace treaty considerations kept them from legally pursuing 
larger reparations from the Japanese government or companies. On the 
other hand, the Japanese companies who profited from the enslavement of 
these American POWs have never compensated their American victims in 
any way nor have they offered so much as an apology for the way our 
POWs were abused and exploited. We think these former American POWs 
have a right to be adequately compensated from the private Japanese 
companies for their suffering and sacrifice.
    Recently, we received a letter from former POW, Robert M. Shrum who 
was held as a POW by Japan for three and a half years during World War 
II. A life member of the American Defenders of Bataan and Corregidor 
and the Veterans of Foreign Wars of the United States and other 
veterans organizations, Mr. Shrum was captured in the Philippines in 
April 1942 following the fall of Bataan and Corregidor. A survivor of 
the Bataan Death March, Mr. Shrum recently wrote a letter to President 
and in it he said:

          After World War II ended in the Pacific, neither the Japanese 
        government or the private Japanese companies who worked us as 
        slave laborers, has ever offered to make restitution for the 
        work, lack of food, abuse, unbearable living conditions, 
        suffered injuries, tortured and killings; and have not even 
        offered an apology.
          Most distressing to us, the U.S. government has continued to 
        ignore us during these same intervening years. Our government 
        has never supported us to have fair compensation and 
        restitution paid to us who were brutally enslaved and deprived 
        of all human dignity. To me this is incomprehensible especially 
        as in recent years our government has awarded reparations to 
        Japanese American citizens who were interned in U.S. camps 
        during World War II, as well as diligently worked to resolve 
        claims by victims of German atrocities during the Holocaust. 
        Both of these injustices deserve to be remedied and finally 
        achieved--but we former Pacific prisoners-of-war slave laborers 
        continue to be ignored by the U.S. government and Japanese 
        government.

    If the Japanese are willing apologize and pay restitution for 
crimes committed by their own soldiers against the former ``comfort 
women'' of the Republic of Korea, then why should they not do the same 
for American POWs who also ruthlessly abused and enslaved during World 
War II. We believe that private Japanese companies have a similar 
obligation to provide just and equitable compensation to American 
former POWs.
    On May 12, 2000, the Executive Director of the VFW Washington 
Office sent letters to both Attorney General Janet Reno and Secretary 
of State Madeleine K. Albright pointing out that our own government had 
turned its back on our former POWs and did not pursue compensation from 
those companies for the injuries these veterans sustained. In addition, 
his letters urging both Attorney General Reno and Secretary Albright to 
stand up for these former prisoners of war whose claims are not against 
our government or the government of Japan, but on the private companies 
that brutally enslaved them and profited form their labor. 
Unfortunately, to date, our letters have gone unanswered.
    Recently, we were distressed to learn that the United States 
Department of Justice publicly stated a position that is adverse to the 
efforts of the former POWs who seek redress from private Japanese 
corporations. Frankly, we are outraged that the Department of Justice 
has found it necessary to take such a position against our own former 
POW veterans.
    The VFW believes it is time that our government showed compassion 
for these brave men and support their claims for just and equitable 
compensation. Our veterans seek only fairness and equitable restitution 
for injuries suffered in defense of our great country and all that it 
represents. Now is the time for the U.S. government to act honorably to 
afford the former POWs the fairness and dignity they deserve.
    Therefore, we urgently request that the Congress of the United 
States thoroughly investigate this matter and intervene on behalf of 
our veterans to ensure that justice is done before it is too late.
    Mr. Chairman and Members of the committee, thank you for this 
opportunity to present the views of the Veterans of Foreign Wars of the 
United States on this issue.
                               __________

                 Prepared Statement of Linda G. Holmes

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

    Shimon Peres recently referred to Japan's conquest of East and 
Southeast Asia as ``The other Holocaust.'' When I asked him to clarify 
the context of his remark, he wrote to me: ``What I mean is that 
although one can in no way compare the atrocities perpetrated by the 
Nazis to any other atrocities, nevertheless the damage caused by the 
Japanese attacks during the war was similar in character to that of a 
holocaust.'' And indeed it was.
    After feeling entitled to slaughter millions of Chinese and to 
subjugate the people of Korea to a brutal occupation, Japan's military 
forces began implementing their primary goal of what its leaders termed 
``The Greater East Asian Co-Prosperity Sphere'': to eliminate white 
people from Asia, forever. Between 1941 and 1945, its occupying troops 
systematically worked to do just that. And they had standing orders, 
issued in 1942, to kill all white people in custody if surrender were 
imminent. Only the abrupt, atomic end of the Pacific War prevented this 
mass execution, which would have annihilated nearly 300,000 white 
families and military prisoners scattered in internment camps and 
company worksites all over occupied Asia and the home islands of Japan.
    Within weeks of the attack on Pearl Harbor, Japanese army and navy 
personnel rounded up every white man, woman and child in Asia, 
including almost 14,000 Americans. A few--a very few--were released, if 
they were lucky enough to be married to an Asian or a national from an 
Axis country; or if they were one of the 3000 civilians exchanged for 
Japanese civilians living in the Americas. After three months, when our 
government saw that the Japanese intended to keep nearly all of our 
citizens incarcerated, we began rounding up Japanese living in the 
United States, primarily those on the West Coast. The delayed timing of 
this relocation is often overlooked; it followed weeks of frantic 
diplomacy. We had been Japan's protector nation in three previous wars, 
including World War I; and Washington officialdom couldn't believe the 
government of Japan was not prepared to return the favor. We had no 
idea how deep the resentment of ``white colonials'' was throughout 
Asia; it had been building for a long time.
    Before sundown on December 8, 1941, Japanese forces began taking 
American military personnel prisoner in various outposts and embassies. 
By Christmas Eve, nearly 1200 civilian construction workers on Wake 
Island found themselves prisoners of war, along with the Marine 
garrison there. And before six months had passed, General Douglas 
MacArthur's entire Army of the Pacific had been either killed or 
captured. By May 1942, over 25,000 Americans were prisoners of war; 
their number would eventually swell to 36,000+. Nearly half died in 
captivity, as compared to just 1.1 percent of military POW who perished 
in German military stalags, or fixed POW camps. Over 3,600 Americans 
died at sea in unmarked merchant ships transporting them to the 
Japanese home islands for use as slave laborers in war production at 
factories, mines and shipyards. Nine out of 10 POW who died in World 
War II perished in Japanese, not German custody.
    All of our prisoners of war performed slave labor, under brutal 
conditions, for the next three and a half years, even when they were so 
sick they could hardly stand. Theirs was the longest captivity anywhere 
during World War II, and it was marked by slow starvation, disease, 
medical experimentation at many POW camps, and the deliberate 
withholding of medical supplies, relief packages, mail and even soap or 
toilet paper.
    Much has been made of the fact that the Japanese Diet [parliament] 
failed to ratify the 1929 Geneva conventions relating to prisoners of 
war, which their delegate had signed. But the Diet did ratify the 
conventions of the International Red Cross, which were a part of that 
same 1929 gathering. So the fact that the Japanese refused to 
distribute Red Cross packages which arrived weekly at company worksites 
and POW camps throughout occupied territory--constituted a separate 
category of war crime. The Japanese government also declared all of its 
occupied territory a war zone, and refused to let Swiss inspectors 
inspect POW camps and civilian internee centers within the ``war 
zone.'' Japanese authorities refused to cooperate with the 
International Committee of the Red Cross in supplying names of those 
held captive; for most American families, a year or more went by with 
no confirmation of the status of their sons, husbands, brothers. And 
our civilians in internment centers were slowly being starved to death 
as well; visits from Red Cross or Swiss government representatives were 
rare events; most internees or POW never saw a Red Cross representative 
and can only remember one or two Red Cross boxes being given out during 
nearly four years of captivity. Perhaps the most egregious interference 
with relief was the withholding by the Japanese government of 98 
million swiss francs in relief funds contributed by the United States, 
Great Britain and The Netherlands, in a secret bank account set up 
through the Swiss National Bank, which the Japanese government had 
pledged to release so Swiss workers could buy extra supplies for POW 
and internees. Instead, the money sat in the Yokohama Specie Bank till 
war's end. Over $6.2 million, worth $54 million today, was from the 
U.S. Treasury; we never asked for a dime of it to be returned.
    Although it was a clear violation of international law to do so, 
Japanese company heads asked for the use of white prisoners; paid the 
government two yen per day for the use of each prisoner; agreed to pay 
the prisoners Japanese soldier's pay, and were required to house them 
on company property. Most prisoners never saw any money; all came home 
empty-handed and sick. None ever regained full health; all still suffer 
nightmares, PTSD, and many residual, compounded health problems.
    After the war ended, Japan's major industrialists were named as 
suspected war criminals, but the indictments were dropped for lack of 
evidence (no clear paper trails could be found in time for the trials' 
opening date; and very, very few members of the trial teams could speak 
or read Japanese.) A policy decision was made to avoid mentioning the 
names of companies during the trials, according to a member of the 
prosecution team. After a high-profile trial which seemed to drag 
endlessly, 25 Japanese Class A [top leaders] criminals were sentenced. 
Seven were executed; 16 received life sentences; one died in prison 
before sentencing and another was declared insane. The rest were 
released, and further investigations of Class A criminals were abruptly 
halted.
    Although several hundred Japanese military and civilian war 
criminals were convicted of sentences ranging from death to life 
imprisonment to 25 years or more, most death sentences were commuted, 
and no convicted Japanese served more than ten years. The majority were 
released when our occupation officially ended in 1952; by 1958 all had 
been released and Sugamo Prison was closed because it was empty.
    Surviving American ex-POW were allowed to file claims under the War 
Claims Act of 1948 to receive $1.00 per day times the number of days 
held captive for ``missed meals,'' with a cap of $1500 per claimant. 
After the 1951 Treaty of Peace was signed, and our ex-POW were 
prevented from filing further claims, Congress passed the War Claims 
Act of 1952, allowing ex-POW to apply for $1.50 per day for ``forced 
labor and/or mistreatment'' while in custody. The payment funds came 
from $280 million in frozen Japanese and other Axis assets seized in 
the United States between 1942 and 1946.
    But no one at that time could predict how severe the residual 
effects of prolonged malnutrition and the diseases which accompany it 
would be for these survivors. The effects of their captivity have 
continued to compound throughout their lifetimes. Many have fought for 
50 years to receive full disability payments from the Veterans 
Administration; some were granted full allowances as recently as 1998 
or 1999. Information about their treatment by the Japanese had been so 
suppressed both during and after the war, that many medical personnel 
at VA centers have had a hard time grasping the long-term effects of 
severe malnutrition, or to understand the types of injuries these men 
sustained during their captivity.
    It is worth noting that the official Japanese government report on 
the wartime use of POW labor was not issued until December 1955, long 
after the conclusion of the Tokyo War Crimes Trials and the drawing up 
of the 1951 Treaty of Peace. This report is based in turn on the 
periodic reports Japanese companies were required to file, showing 
compliance with the regulations on payment of POW and other matters 
involving care etc. of POW. The companies apparently stated that 
payments had been made to POW and backed up these reports with pay 
sheets some POW say they were forced to sign, despite not receiving the 
stated pay. Also, the companies reported receipt of relief supplies 
(Red Cross) but failed to mention that they did not distribute the 
packages to the POW.
    So it is possible that the Japanese Government, and for that matter 
our own Government, may have been under the impression that our POW 
were in fact paid, housed and cared for to a degree that in fact 
rarely, if ever, occurred. Red Cross reports show an acute awareness of 
this fact (misleading information from Japanese authorities.)
    In other words, the Japanese government may be basing its position 
on these rather misleading reports which formed the basis if its 
government's 1955 official report. However, I have no evidence one way 
or the other to suggest that our own government officials were aware 
of, or read, the 1955 Japanese government report.
    Adequate compensation for the suffering and slave labor endured by 
our prisoners remains the largest unresolved issue of the Pacific War. 
It is hoped that the hearing conducted by the Senate, Committee on the 
Judiciary today will bring forth further discussion and documentation 
to illuminate the full intention of the San Francisco Peace Treaty, and 
of the framers who drafted it. Such illumination may at last bring some 
closure to those who became what their Japanese captors liked to refer 
to as ``guests of the emperor.'' Meanwhile, the ashes of thousands of 
Americans have long since been scattered to the winds which blow across 
Japanese company properties.
    I respectfully request that this statement become part of the 
record of the hearing conducted by the Senate Committee on the 
Judiciary June 28, 2000.

                 Prepared Statement of Chalmers Johnson

    In December 1937, when the invading Japanese army captured the city 
that was then the capital of China, Nanjing, it proceeded to rape, 
torture, and execute many thousands of Chinese civilians and unarmed 
prisoners of war. The facts of this atrocity are not in dispute, 
although controversy still surrounds the absolute numbers of Japan's 
victims. Survivors of this and other instances of Japan's brutality 
toward civilians and prisoners during wartime--in violation of 
international treaties to which Japan was a signatory-have repeatedly 
sought compensation from the Japanese government for their suffering. 
On September 22, 1999, in Tokyo, the chief judge of the Tokyo District 
Court dismissed the most important case concerning the Nanjing massacre 
on grounds that individuals do not have a right to sue the Japanese 
government.
    It is in part because the Japanese courts have never once ruled in 
favor of Japan's victims that California and other American states have 
recently passed laws allowing former prisoners of war to sue American 
branches of Japanese corporations for compensation for their suffering. 
On August 26, 1999, the California legislature passed a resolution 
calling on Japan to pay reparations to ``United States military and 
civilian prisoners of war, * * * the survivors of the `Rape of Nanking' 
[Nanjing], * * * and the women who were forced into sexual slavery and 
known by the Japanese military as `comfort women.''' The California 
Legislature also extended the statute of limitations for World War II 
lawsuits to the end of 2010, in another piece of legislation, Senate 
Bill 1245.
    During World War II, some 33,587 United States military and 13,966 
civilian prisoners of the Japanese military were confined in prison 
camps, where many were subjected to forced labor. On August 11, 1999, 
the first individual lawsuit in California was filed on behalf of Dr. 
Lester Tenney, against Mitsui & Co., Ltd. and related entities for the 
slave labor that Dr. Tenney endured in Mitsui's coal mines. Since then 
a number of suits have been filed against companies such as Mitsubishi 
International Corp., Mitsubishi Materials Corporation, Mitsui Mining 
Co., Ltd., Nippon Steel, Japan Energy, Ishihara Sangyo, Ishikawajima 
Harima Heavy Industries, Ltd., Sumitomo Heavy Industries, Nippon 
Sharyo, Ltd. and other Japanese companies.
    These lawsuits are likely to be much more damaging to Japanese-
American relations than any genuine governmental apology and the 
payment of token compensation. Thus far Japan's official response has 
been to stonewall and to argue that the peace treaty of 1952 settled 
all claims arising from the war. There is a possible Japanese defense 
against these lawsuits, but this is assuredly not it. International law 
has now progressed to where claims by an individual against a state are 
recognized. Moreover, Germany has already agreed to pay large sums to 
compensate its forced laborers-in addition to the billions it has paid 
to Israel and other survivors of the Nazi genocide against the Jews.
    Relying on the peace treaty is not a good defense for several 
reasons. First, the suits are not against the Japanese government but 
against private Japanese corporations. Second, the United States 
required that Japan pay only minimal reparations after the war because 
it was trying to integrate Japan into the U.S.'s Cold War structure. 
Third, the reparations Japan did pay went primarily to corrupt 
dictators in places like the Philippines, Indonesia, and Burma, not to 
individuals who had truly suffered at Japan's hands. Fourth, the 
precedent of holding Germany, Switzerland, and American corporations 
such as the Ford Motor Co. responsible for their wartime activities is 
clearly applicable to Japan.
    Japanese government officials acknowledge that Japan paid 
considerably less in reparations after the war than other Axis powers 
and that this favorable treatment of Japan came about because of the 
strategy the United States pursued in the Cold War in east Asia. Thus, 
for example, Tetsuo Ito of Japan's Ministry of Foreign Affairs writes 
in The Japanese Annual of International Law (No. 37, 1994):

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

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

    Article 14(b) of the ``Multilateral Treaty of Peace with 
Japan,''signed at San Francisco September 8, 1951, and in effect from 
April 28, 1952, stipulates that ``Except as otherwise provided in the 
present Treaty, the Allied Powers waive all reparations claims by the 
Allied Powers, other claims of the Allied Powers and their nationals 
arising out of any actions taken by Japan and its nationals in the 
course of the prosecution of the war, and claims of the Allied Powers 
for direct military costs of occupation.'' This is the article on which 
the Japanese government relies in rejecting all claims by former 
P.O.W.s and internees that they be compensated for their illegal 
treatment at the hands of the Japanese during the war. But there are 
legal problems with this defense, in addition to the political ones 
already mentioned. One is described by Tetsuo Ito of the Japanese 
Ministry of Foreign Affairs as follows: ``The waiver of `claims of its 
nationals' can not mean the renunciation of such claims by a state in 
rigid legal terms, * * * because a state can not theoretically waive 
the right of a third person, without its consent, who is not a party to 
the treaty concerned, regardless of whether it is a state or an 
individual'' [J.Ann. Int. Law, No. 37, 1994, p. 68]. Individuals always 
retain the right to enter a claim based on their municipal law.
    The more serious problem of relying on article 14(b) is its opening 
clause, which reads ``Except as otherwise provided in the present 
Treaty.'' Article 26 of the same Treaty overrides it: ``Should Japan 
make a peace settlement or war claims settlement with any State 
granting that State greater advantages than those provided by the 
present Treaty, those same advantages shall be extended to the parties 
to the present Treaty.'' In treaties with the Netherlands, Denmark, 
Sweden, and Spain, Japan accepted a release of claims only against the 
Government of Japan, not by nationals of those countries against 
Japanese nationals. The Netherlands treaty was signed May 13, 1956. 
Since that time article 26 has superseded article 14(b) with regard to 
claims by foreigners against Japanese civilians for their actions 
during the war.
    Japan's only real defense would be that it was the United States 
government that refused to press the claims of its own citizens against 
Japan. General MacArthur decided to exonerate the Emperor from any 
responsibility for the war-thereby causing most Japanese to believe 
that if the head of state was not responsible, then ordinary people and 
companies were certainly blameless. The surviving American prisoners of 
war thus could make as good a case against their own government's 
indifference to their suffering as against Japanese corporations today.
    Instead of stonewalling, the Japanese government would be wise to 
take these suits as an opportunity to deal with some of the unfinished 
business of World War II. Perhaps it should seek to create a joint 
Japanese-American foundation that could compensate the survivors and 
also offer to them a sincere apology for their shabby treatment by both 
governments a half century ago. Thanks to the Cold War, Japan enjoyed a 
long period in which the United States blocked all private claims 
against it. Today, most of the plaintiffs in these cases are very 
elderly. It would be easy for Japan to pay them. Since World War II, 
the only two countries that have ever indicted their own citizens for 
war crimes are Germany and France. But this is not something that 
either Japan or the United States should be proud of. A trial like that 
in France in 1997 of Maurice Papon, the wartime mayor of Bordeaux, for 
collaborating in the deportation of Jewish civilians to Germany and his 
recent recapture after he fled to Switzerland is simply unimaginable in 
Japan. That is what is fueling these lawsuits as much as monetary 
claims.
    Chalmers Johnson's latest book is ``Blowback: The Costs and 
Consequences of American Empire'' (Metropolitan Books, 2000). He is 
also the editor of ``Okinawa: Cold War Island,'' published by the Japan 
Policy Research Institute, of which he is president. He is an emeritus 
professor of international relations and a specialist on the political 
history of East Asia at the University of California, San Diego.
                                    (Translation), August 15, 1995.

         Prepared Statement of Prime Minister Tomiichi Murayama

    The world has seen fifty years elapse since the war came to an end. 
Now, when I remember the many people both at home and abroad who fell 
victim to war, my heart is overwhelmed by a flood of emotions.
    The peace and prosperity of today were built as Japan overcame 
great difficulty to arise from a devastated land after defeat In the 
war. That achievement is something of which we are proud, and let me 
herein express my heartfelt admiration for the wisdom and untiring 
effort of each and every one of our citizens. Let me also express once 
again my profound gratitude for the indispensable support and 
assistance extended to Japan by the countries of the world, beginning 
with the United States of America. I am also delighted that we have 
been able to build the friendly relations which we enjoy today with the 
neighboring countries of the Asia-Pacific region, the United States and 
the countries of Europe.
    Now that Japan has come to enjoy peace and abundance, we tend to 
overlook the pricelessness and blessings of peace. Our task is to 
convey to younger generations the horrors of war, so that we never 
repeat the errors in our history. I believe that, as we join hands 
especially with the peoples of neighboring countries, to ensure true 
peace in the Asia-Pacific region--indeed, in the entire world--it is 
necessary, more than anything else, that we foster relations with all 
countries based on deep understanding and trust. Guided by this 
conviction, the Government has launched the Peace, Friendship and 
Exchange Initiative, which consists of two parts promoting: support for 
historical research into relations in the modern era between Japan and 
the neighboring countries of Asia and elsewhere; and rapid expansion of 
exchanges with those countries. Furthermore, I will continue in all 
sincerity to do my utmost in efforts being made on the issues arisen 
from the war, in order to further strengthen the relations of trust 
between Japan and those countries.
    Now, upon this historic occasion of the 50th anniversary of the 
war's end, we should bear in mind that we must look into the past to 
learn from the lessons of history, and ensure that we do not stray from 
the path to the peace and prosperity of human society In the future.
    During a certain period in the not too distant past, Japan, 
following a mistaken national policy, advanced along the road to war, 
only to ensnare the Japanese people in a fateful crisis, and, through 
its colonial rule and aggression, caused tremendous damage and 
suffering to the people of many countries, particularly to those of 
Asian nations. In the hope that no such mistake be made in the future, 
I regard, In a spirit of humility, these Irrefutable facts of history, 
and express here once again my feelings of deep remorse and state my 
heartfelt apology. Allow me also to express my feelings of profound 
mourning for all victims, both at home and abroad, of that history.
    Building from our deep remorse on this occasion of the 50th 
anniversary of the end of the war, Japan must eliminate self-righteous 
nationalism, promote international coordination as a responsible member 
of the international community and, thereby, advance the principles of 
peace and democracy. At the same time, as the only country to have 
experienced the devastation of atomic bombing, Japan, with a view to 
the ultimate elimination of nuclear weapons, must actively strive to 
further global disarmament in areas such as the strengthening of the 
nuclear non-proliferation, regime. It is my conviction that in this way 
alone can Japan atone for its past and lay to rest the spirits of those 
who perished.
    It is said that one can rely on, good faith. And so, at this time 
of remembrance, I declare to the people of Japan and abroad my 
intention to make good faith the foundation of our Government policy, 
and this is my vow.
                               __________

                Prepared Statement of Michael D. Ramsey

    My name is Michael D. Ramsey and I am a Professor of Law at the 
University of San Diego Law School. I teach and write in the area of 
foreign affairs law, including the law of treaties. Among other 
matters, I specialize in the legal aspects of international claims 
against foreign governments and foreign nationals. I am submitting this 
statement for the record in a Hearing to be held by the Senate 
Judiciary Committee scheduled for June 28, 2000, regarding the legal 
status of claims against and Japanese nationals by former U.S. 
Prisoners of War (POW's).
    I have been asked to assume that the POW's were held and forced to 
labor for private companies in Japan, that such companies were never 
``mobilized'' under Japanese law, to operate as a part of the war 
effort under the daily control of the Japanese military; that by treaty 
such labor could only serve commercial purposes (and could not promote 
the war effort of Japan); and that these companies were obligated to 
pay wages to these laborers at private, commercial rates, but did not 
do so.
    The following sets forth my views on the question whether the 1951 
Peace Treaty, signed in San Francisco between Japan and various allied 
powers including the United States (the ``Treaty''), waives the claims 
of individual U.S. citizens against private Japanese entities for 
injuries suffered during World War II. I should note that my views are 
not based on an exhaustive review of the history and context of the 
Treaty, but only upon my general knowledge of treaty and constitutional 
law and practice. For the reasons set forth below, I conclude that the 
Treaty should not be read to waive private claims alleged against 
individuals or entities who were not acting as agents of the Japanese 
government.
    At the outset I think it critical to distinguish among three types 
of claims by U.S. citizens: (1) claims against the Japanese government; 
(2) claims against individual Japanese nationals and Japanese entities 
acting as agents of the Japanese government; and (3) claims against 
individual Japanese nationals and private Japanese entities not acting 
as agents of the Japanese government. I propose to discuss only the 
third type of claim, and my conclusions with respect to the treaty are 
limited to this category of claims, which I shall hereafter call 
``private claims''.
    The relevant language of the Treaty is Article 14(b), which states:

        [T]he Allied Powers waive all reparations claims of the Allied 
        Powers, [and] other claims of the Allied Powers and their 
        nationals arising out of any actions taken by Japan and its 
        nationals in the course of the prosecution of the war * * * 
        (emphasis added).

    I assume for purposes of this discussion that the initial part of 
the Article 14(b) language--that is, the waiver of claims of the Allied 
Powers and their nationals arising out of any action taken by Japan and 
its nationals--could be read to encompass all of the above categories 
of claims, including the private claims. I have not been asked to 
consider this issue, and express no opinion on it one way or the other. 
However, even if this part of Article 14(b) does include private 
claims, for the waiver to apply the second part of the relevant article 
requires that the claims aris[e] * * * in the course of the prosecution 
of the war. It is not at all clear that this language includes the 
private claims and in my opinion that is not the best reading of the 
language.
    To be sure, one might argue that the phrase ``in the course of the 
prosecution of the war'' encompasses all actions by whatever parties 
that directly or indirectly aided the Japanese war effort. I assume 
that those who would find a waiver of the private claims in Article 
14(b) are relying on such a reading. This is quite a broad reading, as 
it would encompass, in effect, any action taken during wartime that 
benefited Japan or weakened the United States, as any such action would 
contribute to Japan's war effort. But there is also a narrower reading 
available: specifically, that since only the government ``prosecutes'' 
(that is, carries into execution) a war, only actions of the government 
and its agents related to the war effort would be included, and not all 
private actions occurring during the war. Thus, the phrase ``in the 
course of the prosecution of the war'' is at least ambiguous as to 
whether it encompasses actions of purely private parties not acting 
under the direction of the Japanese government.
    I believe that the narrower reading is not only plausible, but is 
the preferred reading of the relevant language. This is based on four 
factors, as set forth below: (1) historical practice; (2) 
constitutional considerations; (3) ordinary usage, and (4) other 
portions of the Treaty.
    First, with respect to historical practice, agreements settling 
claims between the United States and foreign nations are of course 
quite common, dating to the earliest days of the Republic. However, it 
is highly unusual for a claims settlement treaty to waive purely 
private claims. Most, if not all, claims settlement agreements to which 
the United States is a party waive claims of the United States and of 
U.S. nationals against a foreign government and (sometimes) against 
agents of the foreign government. Although I have not undertaken a 
comprehensive study, I am generally familiar with claims settlement 
agreements entered into by the United States and I personally am not 
aware of any claims settlement agreement of the United States that 
manifestly waives claims between private U.S. nationals and private 
foreign nationals for purely private conduct. At best, such a waiver 
would have to be viewed as highly unusual. The claims settlements that 
have been extensively litigated, such at those considered by the U.S. 
Supreme Court in the Pink and Belmont cases and more recently in Dames 
& Moore v. Regan, only waived or adjusted claims by private U.S. 
individuals against the foreign government itself and individual and 
corporate agents of the foreign government. In Dames & Moore, for 
example, the Court referred to the settlement power as the ``sovereign 
authority to settle the claims of its [the U.S.'s] nationals against 
foreign countries.'' Dames & Moore v. Regan, 453 U.S. 654 (1981).
    As I have indicated, reading Article 14(b)'s phrase ``in the course 
of the prosecution of the war'' broadly to include private wartime 
activities would result in an extensive waiver of claims by private 
individuals against private individuals. That is entirely contrary to 
historical practice, which is not to include such claims within 
negotiated intergovernmental claims settlement agreements. On the other 
hand, reading ``in the course of the prosecution of the war'' narrowly 
to refer to only governmental activities would make the 1951 Treaty 
accord with historical practice of limiting intergovernmental 
settlements to claims against the foreign government and its agents.
    Second, a broad reading of the phrase ``in the course of the 
prosecution of the war'' leads to serious constitutional difficulties, 
while a narrow reading of the phrase is somewhat less constitutionally 
problematic. The relevant constitutional provision is the Fifth 
Amendment, which among other things prohibits the U.S. government from 
taking private property without just compensation. It is certainly 
arguable that a private legal claim is ``property'' within the meaning 
of this clause. Indeed, at least one court of appeals, relying on 
Supreme Court precedent, has squarely declared that ``There is no 
question that claims for compensation are property interests that 
cannot be taken for public use without compensation.'' In re Air Crash 
in Bali, Indonesia, 684 F2d 1301 (9th Cir. 1982). Under this reading, 
if the U.S. government waived private claims in Article 12(b) of the 
Treaty, that was a taking of private property. It is also certainly 
arguable that the owners of that property never received adequate 
compensation for it. Indeed, Article 14(a) of the Treaty seems to 
acknowledge that the United States is settling claims against Japan for 
far less than they are worth in order to support Japan's economy. Thus 
the Treaty, if read broadly, appears to take private property without 
just compensations, contrary to the Fifth Amendment.
    It is true that a similar argument could be raised against a waiver 
of claims of U.S. citizens against Japan and its agents. These too, it 
might seem, are property interests worthy of constitutional protection; 
indeed this was suggested by Justice Powell in his dissenting opinion 
in Dames & Moore, 453 U.S. at 691. However, courts that have addressed 
similar claims since Dames & Moore have treated them differently than, 
for example, the Ninth Circuit treated purely private claims in the 
Bali case. The case of Shanghai Power Co. v. United States, 4 Cl. Ct. 
237 (1983), affirmed without opinion, 765 F.2d 159 (Fed. Cir. 1985), is 
illustrative. Decided by Judge Kozinski, then on the court of claims 
and now an intellectual leader of the Ninth Circuit, the Shanghai Power 
case involved President Carter's claims settlement with China. The 
plaintiff, Shanghai Power, had a claim against an instrumentality of 
the Chinese government which the agreement settled for a fraction of 
its value, and Shanghai Power alleged a violation of its rights under 
the Fifth Amendment. The court agreed that Shanghai Power's legal claim 
was property, but held that no compensable taking had occurred, 
essentially on two grounds: (1) the unique nature of claims against 
foreign governments, and (2) the longstanding historical practice of 
the U.S. government settling claims against foreign governments without 
the affected parties' consent. Similarly, in Marks v. United States, 15 
Cl. Ct. 609 (1988), the court of claims rejected an alleged 
unconstitutional taking based on the U.S. government's settlement of 
private claims against the government of Iran and its agents.
    Of course, the decisions in Shanghai Power and Marks may not be 
correct, as the Supreme Court appeared to leave that question open in 
the Dames & Moore decision and has not definitely ruled on it since 
then. However, at a minimum there appears to be some support for the 
proposition that the courts would not find a constitutional violation 
where the U.S. government settles individual claims against a foreign 
government it and its agents without the consent of the claimholder, 
even though in general abrogation of private legal claims is 
constitutionally problematic under the Fifth Amendment. As a result, a 
narrow reading of Article 14(b) of the 1951 Treaty would likely render 
the Treaty constitutional, if the rule of Shanghai Power were applied. 
On the other hand, a broad reading of Article 14(b)--such that it 
extended to claims between private parties--would raise serious 
constitutional difficulties under the Bali case. The reasoning that 
allowed the Shanghai Power court to avoid finding a constitutional 
violation would not be available with respect to the 1951 Treaty if 
Article 14 (b) is read broadly to apply to private claims. This again 
suggests that the narrow reading should be preferred.
    A third reason for preferring the narrow reading of the phrase ``in 
the course of the prosecution of the war'' is that even in isolation, 
that is the better reading of the language. The relevant dictionary 
definition of ``to prosecute'' is ``to carry on''. War is a public act, 
carried on (``prosecuted'') by a government through its agents. There 
is no such thing as a ``private'' war. Individuals not in government 
service do not ``carry on'' a war. They may support the war, but they 
do not ``prosecute'' it, if ``prosecution'' is read, as the dictionary 
says it should be, to mean mean ``carrying on''. Thus claims do not 
arise from the ``carrying on'' of war unless they arise from the 
activities of those who are carrying it on--namely the government, 
acting through its agents. To put it in practical terms, if an 
individual Japanese national living in a neutral country murdered an 
individual U.S. national in that neutral country, even during wartime, 
this would not be considered part of the war effort because it is not 
endorsed by the Japanese government. Rather, it would be treated as a 
simple murder. It makes little sense to speak of this as part of the 
``prosecution'' of the war, even if the reason for the murder was that 
the Japanese citizen was motivated by patriotic zeal, and even if it 
indirectly benefited the Japanese government in some way. On the other 
hand, if the murder was committed by a Japanese government agent, for 
some purpose connected to the war, that clearly seems to be a 
``prosecution'' of the war. The difference is the government agency, 
because governments, and not private citizens, ``prosecute'' wars.
    This ordinary usage is confirmed by the way the phrase 
``prosecution of the war'' is used in U.S. statutes. When used in U.S. 
statutes, it plainly refers to the U.S. government's war effort, not to 
all private activities that assist or relate to the war effort in some 
way. For example, the Wartime Suspension of Limitations Act, 18 U.S.C. 
3287, provides that ``When the United States is at war the running of 
any statute of limitations applicable to any offense * * * committed in 
connection with * * * any contract, subcontract, [or] purchase order 
which is connected with or related to the prosecution of the war * * * 
shall be suspended.'' As its context makes clear, the Act intended by 
this language to suspend the statute of limitations on a narrow class 
of actions: specifically, fraud in wartime government procurement 
contracts. See Bridges v. United States, 346 U.S. 209 (1953) (noting 
that the general purpose of the statute was to safeguard U.S. treasury 
from wartime fraud); United States v. Grainge, 346 U.S. 235 (1953) 
(discussing the Act as applying to fraud in government contracts). The 
Act did not create a general suspension of the statute of limitations 
in private contract cases during wartime, and to my knowledge no court 
has suggested such an interpretation. The obviously limited scope of 
the Act necessitates a narrow reading of the phrase ``prosecution of 
the war'' encompassing only the government's war effort. If 
``prosecution of the war'' included purely private conduct during 
wartime that had some connection with or benefit to the war effort, 
then the language of the Act would suspend the statute of limitations 
with respect to much purely private activity that occurred during the 
war--a reading that has never occurred to anyone, interpreting the 
statute. Thus reading ``prosecution of the war'' in the 1951 Treaty 
narrowly to refer to war-related activities of the Japanese government 
is consistent with that phrase's statutory usage, while a broader 
reading of the language is not.
    Finally, evidence from other parts of the Treaty confirms that the 
narrow reading is the correct one. First, there is an official French 
version of the Treaty, as well as the official English version. The 
French version of Article 14(b) renders ``the prosecution of the war'' 
as ``la conduite de la guerre''. The relevant French dictionary 
definition of ``conduite'' is ``conduct; * * * direction; 
supervision.'' Thus the French version of the Treaty waives claims 
arising from the ``conducting, direction or supervision of the war.'' 
These words clearly refer to actions of one who has control over the 
war effort, which can only be the government and its instrumentalities. 
Even if the word ``prosecution'' is thought ambiguous, surely 
``conduct'', ``supervision'' and ``direction'' are not: governments and 
government agents (but not purely, private individuals), ``conduct'' 
war or ``direct'' war or ``supervise'' war. In short, the French 
version (``conduite'') plainly limits itself to the government's war 
effort, and does not encompass private activities. This suggest that 
the English version, ``prosecution'', should be read equivalently--that 
is, as not encompassing purely private activity.
    That reading is confirmed by other parts of the Treaty, 
specifically two sections of Article 19. When the parties to the Treaty 
intended a broad waiver of claims, they used broader language than 
Article 14(b). In Article 19(a), Japan ``waives all claims of Japan and 
its nationals against the Allied Powers and their nationals arising out 
of the war * * *'' While it is not obvious what claims this 
encompasses, it certainly seems broader than claims ``arising out of * 
* * the course of the prosecution of the war'' (else the phrase ``the 
course of the prosecution of the war'' would be superfluous). It seems 
likely that the parties intended for Japan (but not the Allies) to make 
a broad waiver, extending to at least some private claims having a 
close link to the war. In addition, in Article 19(a), Japan waived 
``all claims (including debts) against Germany and German nationals on 
behalf of the Japanese government and Japanese national * * * for loss 
or damage sustained during the war''. This appears to be an even 
broader waiver encompassing essentially everything that happened in the 
war years. These three distinct ways of expressing waiver of claims 
suggested that each should be given a distinct meaning, and the only 
reasonable way to do this is to read ``prosecution of the war'' 
narrowly so that it does not swallow the other two categories.
    In summary, I conclude that even assuming Article 14(b) of the 
Treaty extends to individual claims against Japanese nationals in some 
instances, it would only apply to those situations in which the 
defendant was acting as an agent of the Japanese government in carrying 
on the war effort. (Thus a U.S. national could, under this reading, not 
sue a Japanese military officer in his individual capacity for 
battlefield atrocities). Only these cases are properly viewed as being 
part of the ``prosecution of the war'' as required for the Article 
14(b) waiver. Private parties do not ``prosecute'' a war, so purely 
private claims do not arise out of actions taken ``in the course of the 
prosecution of the war.'' This reading is consistent with the ordinary 
meaning of the phrase ``to prosecute"; with other evidence from the 
treaty itself, including the French version and the phrasing of the 
Article 19 waivers; with historical practice, in which 
intergovernmental waiver of purely private claims without consent of 
the claimholder is at best unusual; and with constitutional 
requirements, which would find waiver of purely private claims to be 
constitutionally suspect. On the other hand, the broader reading that 
would encompass all private claims within the Article 14(b) waiver is 
not consistent with the most natural reading of the relevant phrase, 
creates tensions with other parts of the document, and is historically 
anomalous and constitutionally suspect, For these reasons, I conclude 
that the best reading of the Article 14(b) waiver is that it does not 
extend to purely private claims.
                               __________

                  Prepared Statement of Paul W. Reuter

    I wish to thank Chairman Hatch and the Committee of the Judiciary 
for the opportunity to present these comments regarding the 
maintenance, treatment, transfer and slave labor conditions suffered by 
American Prisoners of War while held captive by the Imperial Japanese 
Military Forces during World War Two.
    Ten and one-half hours after the attack upon the Hawaiian Islands, 
the Japanese military bombed Clark Field in the Philippines, destroying 
50 percent of the US Army Air Corps heavy bombardment offense inventory 
in the Far East area. Lack of operational aircraft plus superior 
Japanese air power forced trained airmen and associated military 
personnel into front line duties usually employed by Infantry and 
Artillery units. Facing overwhelming odds, extreme shortages of food, 
medicines, defective ordinance, personal maintenance equipment and an 
unfamiliar leadership situation; a surrender to the enemy was made on 9 
April 1942.
    Surrender was followed by the Bataan Death March and incarceration 
at Camp O'Donnell in Tarlac Province on Luzon. Extreme shortage of 
food, water, medical attention, plus the severe weather conditions of a 
hot tropical climate suffered under the Japanese captors rules, 
resulted in the death of many hundreds of men.
    The Japanese sent work details from Camp O'Donnell, and later 
Cabanatuan, to areas on Luzon Island such as the Tayabas Road Detail, 
the Nichols Field runway detail, Bataan Peninsula detail to reclaim 
Army ordinance, Pier 7 stevedore detail plus a large farm detail to 
Davao Penal Colony on Mindanao. In late Summer, 1942, drafts of POW's 
by the thousands were shipped to the Japanese home islands to support a 
severe labor shortage caused by the drain of manpower to sustain combat 
efforts against the approaching Allied armies.
    The transports used for POW transit to Japan were derelict tramp 
steamers of aged and uncertain vintage. Most were two hold cargo ships 
having one or two cargo decks below the main deck. Many had hauled 
horse drawn artillery South from Japan, then modifying the lower deck 
to accommodate men where stalls had held horses. A stall five feet wide 
would contain two horses, but with a shelf built five feet above the 
deck it held ten POW's cramped together and limiting lateral space to a 
cramped twelve inches. Food and water were lowered from the hatch 
opening in five gallon cans when weather permitted moving across the 
main deck to deliver the foodstuffs.
    Cans were lowered to serve as latrine vessels but these filled 
rapidly and were not emptied soon enough to prevent overflow of waste 
products. On our ship the Corol Maru a wooden latrine containing five 
holes, or seats, hung over the forward rail in a position where the 
user of the latrine was hanging off the side of the ship with nothing 
but the Ocean beneath. Food consisted of rice (about one cup) twice a 
day, and, weather and ship movement permitting, some sort of thin soup. 
Water was lowered by cans into the hold to be dispensed to POW's below, 
usually by tablespoons full per man and never enough to satisfy. When 
the weather turned foul, and lasted the full trip from Formosa to the 
port of Mogi on the Island of Hokioda, the hatch cover was closed and, 
on occasion, the canvas cover was battened down leaving the hold in 
pitch black darkness.
    Our ship left Manila for Formosa on 21 September 1943. We stayed a 
few days at anchor in a locked in harbor on Formosa, about fifty feet 
from another ship painted white and sporting large green crosses but 
with artillery barrels visible under the canvas canopy. The ship flew 
the flag of a Hospital ship and carried troops while we traveled in a 
targeted ship to Japan. Five or six bodies were off loaded while at 
anchor, presumably from the aft hold. Our transport had two holds, the 
fore hold held 400 POW's and the aft hold held 480 POW's. The only 
contact between men in these holds occurred when men were dispatched to 
carry food and water to the individual holds.
    Our trip to Mogi was quick but horrendous travel. With a heavy 
weather, stormy ocean the ship headed on a direct route to Mogi because 
hunting submarines could not operate in such stormy weather. Many other 
Hell ships carrying POW's to Japan were forced to hug coastlines, 
travel in convoy, do defensive sailing maneuvers, dodge torpedoes and 
submarines; all of these forcing long days on the water and causing 
many deaths from the maltreatment. On three of these Hell ships over 
4000 American POWs lost their fives, but deaths and casualties were 
rampant on many other ships taking POWs to Japan for continued labor.
    On arrival at Mogi the fore hold POWs were fined up and marched to 
the railroad station, boarded a train and after an overnight trip 
arrived at Hirahata, a town on the inland sea, opposite Shikoko Island, 
in the Osaka Protectorate and about 35 miles southeast of Osaka. Our 
group of 400 joined the 80 Marine and Navy personnel from Wake and Guam 
Islands already in the camp. We began work at the steel mill operated 
by Seitetsu Steel the next day. The mill was located about two miles 
from the camp and the town of Hirahata, on a road that lead directly to 
the mill. We marched that road, sometimes jogged, every day under the 
charge of civilian steel company overseers who also assigned jobs, set 
completion levels, and administered physical punishment, sometimes 
without reason, as at those times when language differences defied 
communication.
    My first assignment was in a machine shop as operator of a Shaper, 
or horizontal lathe, a device that I was totally unfamiliar with. After 
operating this Shaper for six months I was observed committing an 
unauthorized act, which resulted in a beating by the military 
commander, and banishment from the machine shop detail. The majority of 
POWs worked the yard detail which included jobs such as lifting, 
carrying, chipping, shoveling, stevedoring, etc., all necessary around 
a steel mill. This mill was a large steel producer and the site 
contained a large coke and gas central for the nearby area which 
contained many mills and factories in either direction along the coast.
    The work on yard details was strenuous and energy draining. 
Surviving three and a half years on drastically reduced diets, when 
daily calorie intake measured well under 1000 calories, and forced to 
perform a required quantity of work under primitive, hazardous 
conditions without the use of safety equipment resulted in terribly 
malnourished underweight bodies. At the outset of the war my weight was 
208 pounds. At Hirahata my weight reached 130 pounds. We worked as 
stevedores unloading coal ships, iron ore ships, loading slag, 
unloading pig iron from the foundry (a full pig weighed 145 pounds) 
placing the pigs in stacks, loading the pigs into rail cars for furnace 
use, unloading rail cars of white rock, chipping large bricks for 
furnace lining, unloading coal rail cars at the coke plant and loading 
benzine onto rail boxcars.
    The barracks were terrible and unheated, baths were available about 
twice per month, meals were usually a cup of rice in the morning, 
another cup on the job around noon and rice plus soup or diacon, or 
occasionally tofu or dried fish or silkworms soaked in brine. We 
received two Red Cross packages in the two years at the camp. Upon 
arrival we were fed under the civilian ration of 750 calories per day 
which proved too little intake for large American frames. After a few 
months the effect of our deteriorating condition and low work effort 
caused the Japanese to put Americans on the military ration of 850 
calories per day.
    The camp was governed by Japanese military. A Lieutenant, a noncom, 
a medic and perimeter and gate soldiers were all of the military. 
Workers were turned over to company overseers who marched us to work, 
gave out work assignments, administered punishment, and returned us to 
the camp at night. We received a day off about every three weeks, to 
clean ourselves and launder clothes. We did not receive pay, as such, 
although the Japanese said they were paying us. There were two versions 
of our pay status; the first explanation was that the mill paid for our 
food and lodging and this amount equaled the pay we would have 
received. This method meant we worked only for the opportunity to 
survive. This system is borne out in that we worked under the edict 
``no work, no eat'' so all workers able to walk to the mill, made the 
trip. We POWs disregarded this system and everyone shared alike.
    The second method of payment for our work also resulted in zero 
transfer of money. Under this method monies earned were deposited, by 
individual name, in a Postal Savings Account. However, no books were 
kept and no POW has ever benefited from such an account.
    Some of my fellow POW friends swear that a Code of Silence has been 
imposed upon them which prevents them from discussing their experiences 
while a prisoner of war of the Japanese. Other former military members 
and civilians who, during the period immediately following the 
surrender of Japan, participated in the discovery, examination, 
analysis and prosecution of Japanese involved in biological warfare and 
inhuman medical experiments have, without divulging classified 
material, made remarks very disturbing to the POW's. Remarks such as: 
``I am sorry we did not tell the men what was happening to them, or at 
least we should have told the VA''., and, ``Each Japanese POW should 
have an extensive blood serology examination''. and, ``Americans were 
used in Unit 731 experiments.''. At Hirahata, in the two year stay, 
three times Medical personnel came to our camp, lined everyone up, and 
injected some undisclosed material into the left nipple. One wonders, 
Why always the left nipple? and, Why not inform our Doctor about the 
medication?
    Secrets are necessary to proper functioning of the military and 
foreign service in their dealing in other entities, but secrets 
involving the feeding, medicating, treatment and anything affecting the 
well being of individuals should not be kept secret, especially to the 
individual who is now and has been hurt by the authorities not 
divulging information pertinent to the individuals life. The President 
has opened many of the files relating to the World War Two European 
campaign and treatment administered by the Nazi regime. Why keep the 
files on Japans actions relating to their war effort and culpability in 
unauthorized acts toward Asian and American closed after sixty years 
have past? Cannot the Judiciary Committee recommend such a move?
    I Love my country. I fought for my country, willingly and 
aggressively without expectations. It is time for my country to level 
with me about the WHY of the deleterious actions which affect me and 
concern me.
    I call upon the Senate Judiciary Committee to fully support the 
Bataan-Corregidor compensation entered by Sens. Bingaman and Domenici.
    In conclusion, let me be the first Japan held POW to call upon 
President Clinton to declassify World War Two records thru the Treaty 
date in 1952.
                               __________

                  Prepared Statement of John M. Rogers

    I am the Lewis Professor of Law at the University of Kentucky 
College, of Law. I have taught public international law regularly since 
1979 and U.S. constitutional law since 1982. I have also taught 
international law as a Fulbright Professor for a year at the Foreign 
Affairs College in Beijing, China, as a Fulbright Professor for a year 
at Zhongshan University in Guangzhou, China, and as visiting professor 
at the University of San Diego Law School. My research scholarship has 
focused to a large extent on the relation between domestic and 
international legal systems. I recently published a book describing and 
justifying the accepted, albeit limited, role of public international 
law in U.S. law. Before becoming a professor, I engaged in appellate 
litigation practice for the Civil Division of the United States 
Department of Justice, for four years. Later, as Visiting Professor at 
the Department of Justice in 1983-85, I represented the Department of 
State, the Immigration and Naturalization Service, the Defense 
Department, the Treasury Department, the Federal Reserve Board, and 
other federal agencies in a number of federal courts appeals involving 
foreign affairs law and international law.
    I have been requested by counsel for United States nationals who 
were held by the Government of Japan during the Second World War as 
Prisoners of War to consider the application of international legal 
principles in the context of the pursuit by those nationals of certain 
claims. In particular, I am advised that these nationals are pursuing 
claims in the state and federal courts of the United States against 
entities organized under the laws of Japan which, during the Second 
World War, directly employed these Prisoners of War as laborers, 
allegedly failed to pay them wages required under international and 
Japanese law, and allegedly tortured them or committed acts of gross 
inhumanity, all in violation of international and Japanese law 
standards. In addition, I am advised that California law allows such 
actions also to be pursued against subsidiaries of these entities 
operating in the United States and that such subsidiaries are also 
defendants in the pending litigation.
    I have been advised that the defendants have invoked the terms of 
the 1951 Treaty of Peace with Japan (and particularly Article 14(b) of 
that Treaty) as a defense to these actions. After review of the Treaty 
and materials available from public sources, as well as the memoranda 
regarding Article 14 submitted in these cases, I have reached an 
opinion that Article 14(b) does not preclude actions brought by United 
States nationals in United States courts under domestic (i.e., Japanese 
or United States) law.
    The plain meaning of the language of Article 14(b) of the Treaty of 
Peace with Japan in which ``the Allied Powers waive * * * claims of the 
Allied Powers and their nationals arising out of any actions taken by 
Japan and its nationals in the course of the prosecution of the war'' 
is that it extends only to international claims in respect of 
nationals. Such claims are well understood to be governed by the 
international legal system even though they arise by virtue of harms to 
individuals. States of nationality of the victim have complete control 
ever such claims, and may settle them over the objection of the 
victims. The Peace Treaty's use of the word ``waive'' indicates 
unmistakably that such international claims are contemplated. Domestic 
law claims, in contrast, are subject to national or local law, even 
though international matters may be involved. A private individual's 
claim under domestic law cannot be ``waived'' by the state, because it 
is not the state's claim under the domestic legal system.
    A clear understanding of the distinction between international law 
claims and domestic law claims makes the above conclusion inescapable. 
The two different types of claims arise under different law, with 
different fora, different enforcement mechanisms, and usually with 
different parties. An international claim in its purest form is a claim 
between nation-states. The Statute of the International Court of 
Justice reflects this by providing that only states may be parties 
before the Court. I.C.J. Stat. art. 34(1). The body of law that applies 
to an international claim is found in international treaty and custom, 
and not generally from the tort or contract law of particular states, 
which may after all be different. International claims are typically 
resolved by diplomacy, but may be subject to international arbitration, 
or even submitted to international courts like the International Court 
of Justice. The law applied in such fora is treaty law and customary 
international law, and not the domestic law of the states parties. 
(E.g., I.C.J. Stat. art. 38(1); General Claims Convention (Mexico-
U.S.), Sept. 8, 1923, art. II, reprinted in 4 U.N. Repts.. of Intl. 
Arb. Awards 11, 12.) Enforcement of such claims proceeds the way any 
treaty obligation is enforced. That is, states presumably obtain 
advantage from being seen as complying with international obligations, 
and therefore make good on international claims accepted as valid 
within the international legal system.
    An international claim can be on ``individual'' claim in the sense 
that state A owes State B an obligation not to mistreat a national of 
State B in a certain way. This occurs also when State A fails to give 
the national of State B the protection that international law requires. 
For instance, Iran violated the international law rights (under treaty 
law and customary international law) of the United States by not 
protecting individual U.S. diplomats from Iranian mobs (see Case 
Concerning United States Diplomatic and Consular Staff in Tehran (U.S. 
v. Iran), 1990 I.C.J. 3, 31-33), and the United States in 1891 violated 
the international law rights of Italy by permitting a mob to lynch 
Italians in New Orleans (see Lynching of Italians at New Orleans and 
Elsewhere, 6 J. B. Moore, Digest of International Law Sec. 1026, at 837 
(1906)). In these situations the harm to an individual violated an 
international obligation defined by international treaty and 
international customary law. The claim is an individual one in the 
sense that harm to an individual is the basis for the claim, and the 
individual often must have exhausted local remedies before the 
international claim way be upheld. And when a claim is paid to the 
claiming state, it is normally turned over by that state to the injured 
individual. But in concept the international claim is one brought by, 
and under the control of, the state of nationality of the individual 
victim. A state may settle or waive such claims since it is the party 
making the claim, and need not get the approval of the individual 
victim. See 8 M. Whiteman, Digest of International Law 1216 (1963).
    In contrast, a domestic law claim is brought under domestic (i.e, 
national or local) law, such as common law contract or tort law, or 
statutory antitrust or employment discrimination law. The parties are 
typically private individuals and corporations (but may include states 
and government agencies, to the extent that they have personality 
within the domestic legal system). The forum is generally a court or 
adjudicative agency of the nation's government or its subdivisions. The 
enforcement mechanism is the executive arm of the government, which 
insures that judgments are enforced. Of course the government can 
affect the rights and obligations of parties to domestic law claims, 
for instance by legislating to change the law applicable to such a 
claim. But such a change of rights or obligations would only in the 
most puzzling fashion be called a ``waiver.'' The government may not 
waive the claim of its national under domestic law, since it does not 
represent that individual, nor does it own the claim in any sense even 
remotely like it owns individual claims under international law.
    The law of one system may refer to, and sometimes even incorporate, 
the law of the other. A treaty may, for instance, refer to the domestic 
law of the parties. In the other direction, a statute may refer to, or 
incorporate, treaty language. My recent book is largely a survey of the 
various ways in which domestic law refers to international law. 
International Law and United States Law, Ashgate Press, 1999 
(hereinafter ``IL&USL''). But international claims remain something 
very distinct from domestic law claims. Under domestic law, for 
instance, the Constitution as interpreted by the Supreme Court is the 
highest domestic law of the United States, regardless of what any 
treaty says. See Reid v. Covert, 354 U.S 1, 15-18 (1957) (plurality 
opinion). Under international law, in contrast, a valid treaty is 
higher than anything in the U.S. Constitution. See Vienna Convention on 
the Law of Treaties, art. 27, 1155 U.N.T.S. 331.
    It is also true that one action may result in both an international 
claim and a domestic law claim. The categories actually overlap in this 
sense, but an international claim is often not sufficient to raise a 
domestic law claim, and a domestic law claim is often not sufficient to 
be an internation law claim. For instance, an attack on a diplomat--not 
prevented by local authorities--could give rise to a tort claim for 
battery by the diplomat against the attacker under California law, and 
to an international law claim by the sending state against the United 
States. But many tort and contract claims, even against foreign 
nationals, and even against foreign states, are not sufficient for the 
United States to raise an international law claim. Indeed, the United 
States generally refrains from raising contract claims at the 
international level, unless there has been something like a state 
refusal to provide a fair forum. 8 M. Whiteman, Digest of United States 
Practice International Law 906 (1963); 1975 Digest of United States 
Practice in International Law 485. And many international claims do not 
raise the possibility of a domestic law claim. For instance, if the 
United States were to pass legislation permitting violation of a 
binding UN Security Council resolution embargoing some rogue regime, no 
claim would lie under U.S. law against an individual selling goods in 
violation of the embargo, even though a valid international claim could 
presumably be brought against the United States (see Diggs v. Shultz, 
470 F.2d 461 (D.C. Cir. 1972)).
    The overlap is in a very rough way analogous to the overlap of tort 
law and criminal law within the United States domestic legal system. 
Tort law and criminal law are different bodies of law, with generally 
different purposes and different parties. Mere negligence resulting in 
injury may be tortious but not criminal. And driving recklessly without 
hurting anyone may be criminal but not tortious. But careless driving 
may in some cases be both a crime and a tort. It does not follow, 
though, that the tort claim can be waived by the criminal prosecutor. 
The government is the party in interest bringing a criminal case, it 
brings the case in the interest of the public, even though the victim 
is an individual. The government can settle, criminal claims, even over 
the objection of the victim, in the greater interest of the general 
public. It can be said to ``waive'' future prosecution. But the 
government is not the party in interest in a civil tort suit, and it 
would be a puzzling use of words for a government prosecutor to 
``waive'' future tort litigation brought by the victim. Until the O.J. 
Simpson case, many non-lawyers may not have clearly understood the way 
in which resolution of a criminal case does not control resolution of a 
civil case. But the difference was always there. Similarly, many 
lawyers misapprehend the clear difference between an international law 
claim and a domestic law claim, but the difference still there.
    As. pointed out in paragraph 7, a government may of course change 
domestic law, and thereby change the content of domestic law rights and 
duties. Typically this is done by legislation, but in the United States 
it can also be done by self-executing treaty provision (President plus 
\2/3\ Senate approval), by congressionally approved executive agreement 
(President with statutory authorization), and (in a limited category of 
cases) by executive agreement without explicit congressional 
authorization (see United States v. Pink, 315 U.S. 203 (1942)). For 
instance, the self-executing treaty provision at issue in the famous 
case of Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), 
changed the domestic law rights of private parties contesting the 
ownership of real property in Virginia. See Fairfax's Devisee v. 
Hunter's Lessee, 11 U.S. (7 Cranch) 603 (1813). And the executive 
agreement upheld in Darnes & Moore v. Regan, 453 U.S. 654 (1981), 
changed the domestic law rights of private contractors raising domestic 
law contract claims against instrumentalities of the Iranian 
government.
    Article 14(b) of the Treaty of Peace with Japan by its plain terms 
contemplates resolution of international law claims against Japan. This 
is because of the use of the word ``waive.'' The United States can 
waive individual claims under international law, because such claims 
are claims of the United States in important and legally relevant ways. 
It would make no sense for the United States government to ``waive'' 
claims of individuals under domestic law. In order to extinguish (or 
even to affect) domestic law claims, some different language would be 
required. ``Waive'' means give up, relinquish, or surrender. To 
extinguish domestic law claims, in contrast, one would expect language 
like ``extinguish,'' ``suspend,'' ``invalidate,'' ``nullify,'' or the 
like. Thus, the executive agreement upheld in Dames & Moore v. Regan, 
453 U.S. 654 (1981), provided that the United States was obligated

        to terminate all legal proceedings in United States courts 
        involving claims of United States persons and institutions 
        against Iran and its state enterprises, to nullify all 
        attachments and judgments obtained therein, to prohibit all 
        further litigation based on such claims, and to bring about the 
        termination of such claims through binding arbitration.

453 U.S. at 665, quoting directly from the executive agreement. Or 
instead of prohibiting domestic litigation, a self-executing treaty 
might directly change domestic law obligations. For instance, the 
following treaty provisions changed what otherwise would have been the 
domestic law rights or obligations of private parties in the United 
States courts:

        The citizens [of the Parties] shall have liberty to * * * carry 
        on trade * * * upon the same terms as native citizens or 
        subjects. (Asakura v. City of Seattle, 265 U.S. 332, 340 
        (1924).)
        A national of the other state `shall be allowed a term of three 
        years in which to sell [certain inherited real] property * * * 
        and withdraw the proceeds * * *' free from any discriminatory 
        taxation. (Clark v. Allen, 331 U.S. 503, 507-508 (1947).)
        in case real estate situated within the territories of one of 
        the contracting parties should fall to a citizen of the other 
        party, who, on account of his being an alien, could not be 
        permitted to hold such property in the State * * * in which it 
        may be situated, there shall be accorded to the said heir, or 
        other successor, such term as the laws of the State * * * will 
        permit to sell such property, he shall be at liberty at all 
        times to withdraw and export the proceeds thereof without 
        difficulty. * * * (Hauenstein v. Lynham, 100 U.S. 483, 486-490 
        (1879).)
        no higher or other duties, charges, or taxes of any kind, shall 
        be levied by one country on removal of property therefrom by 
        citizens of the other country `than are or shall be payable in 
        each State, upon the same, when removed by a citizen or subject 
        of such state respectively'. (Nielsen v. Johnson, 279 U.S. 47, 
        50 (1929).)

Article 14(b) of the Treaty of Peace with Japan contains no such 
language, The article simply does not refer in any plain way to 
domestic law rights, obligations, or claims. Instead, it waives claims 
of the United States government, including both claims by the nation as 
a whole, and international law claims of the United States in respect 
of nationals.
    This conclusion says nothing about whether Article 14(b) is ``self-
executing.'' Whether a treaty provision is self-executing determines 
whether the provision changes domestic law without implementing 
legislation by Congress. Only it Article 14 obligated the United States 
to extinguish a category of domestic law claims, or to change domestic 
law rights or obligations, and no legislation implemented the 
obligation, would a court have to determine whether the obligation was 
self-executing as a matter of United States law. See IL&USL at 76-87. 
But where a treaty provision does not obligate the United States to 
change its domestic law in the first place, it is a question of the 
most conjectural sort to ask whether, if it did, it would be self-
executing. Accordingly, no authorities dealing with whether a treaty 
provision is self-executing are relevant to the conclusion that the 
provision simply does not extend to domestic law claims.
    That Article 14(b) does not extend to domestic law claims of 
nationals is directly supported by the contemporaneous Stikker-Yoshida 
correspondence of 1951. By note of September 7, 1951. Netherlands 
Minister of Foreign Affairs Dirk Stikker drew the attention of the 
Prime Minister of Japan to Foreign Minister Stikker's words addressed 
to the Peace Conference on the previous day:

          It is my Government's view that article 14(b) as a matter of 
        correct interpretation does not involve the expropriation by 
        each Allied Government of the private claims of its nationals 
        so that after the Treaty comes into force these claims will be 
        non-existent.
          The question is important because some Governments, including 
        my own, are under certain limitations of constitutional and 
        other governing laws as to confiscation or appropriating 
        private property of their nationals. Also, there are certain 
        types of private claims by allied nationals, which we would 
        assume the Japanese Government might want voluntarily to deal 
        with in its own way as a matter of good conscience or of 
        enlightened expediency.

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

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

Id. at 68-69.

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

                Prepared Statement of Joseph A. Violante

    Mr. Chairman and Members of the Committee: On behalf of the more 
than one million members of the Disabled American Veterans (DAV) and 
its Auxiliary, I am pleased to provide DAV's remarks for the record on 
the plight of former World War II American Prisoners of War (POWs) 
captured in the Pacific, and their struggle for justice.
    The DAV is made up of men and women disabled in our nation's 
defense. The DAV was founded in 1920 and chartered by Congress in 1932 
as the primary advocate for America's service-connected disabled 
veterans, their dependents and survivors. Since its inception, the DAV 
has been dedicated to one, single purpose: building better lives for 
our nation's disabled veterans and their families. During the past 80 
years, the DAV has never wavered in its commitment to serve our 
nation's service-connected disabled veterans, their dependents and 
survivors.
    The DAV has a narrow legislative focus defined by its Congressional 
charter and our Constitution and Bylaws. We are charged with advancing 
the interests of wartime disabled veterans and their dependents 
concerning certain federal veterans' benefits and services. These 
benefits and services have, as part of their eligibility criteria, the 
establishment of a service-connected disability as a result of wound, 
injury, or disease that occurred during active duty.
    Our major policy positions are determined by our membership passing 
certain resolutions at our annual National Conventions. These 
resolutions must be in keeping with the guidelines of our charter, as 
well as our Constitution and Bylaws.
    In recognition of the fact that former POWs suffered cruel and 
inhumane treatment and nutritional deprivation at the hands of their 
captors, which resulted in long-term adverse health effects, our 
membership has consistently supported legislation that would expand POW 
presumptions.
    Although no resolution was submitted for DAV to consider supporting 
the efforts of former World War II American POWs in the Pacific in 
their efforts to seek legal action against those Japanese companies who 
used American POWs as slave labor, the DAV is seriously concerned about 
our government's position opposing this litigation. It is inconceivable 
that our government would take a neutral position with regards to 
similar issues affecting reimbursement from German companies, and 
oppose claims directed to private Japanese companies for whom former 
POWs were forced to work as slaves.
    Sadly, our nation has chosen to continue to ignore its commitment 
to those brave men and women who have defended the freedoms all 
Americans, and many citizens around the world, cherish. It is hard to 
imagine a group of men and women more deserving than those former POWs 
who endured months and years of cruel and inhumane treatment, 
brutality, nutritional deprivation, and adverse health effects at the 
hands of their captors, especially those captured in the Pacific 
theater.
    The DAV strongly believes that our nation has a sacred obligation--
a duty--to ensure that the defenders of our freedom are adequately 
cared for, compensated, rehabilitated, and returned to gainful civilian 
employment, whenever possible. In many cases, it is impossible to erase 
the physical and mental traumas of war suffered by those valiant 
warriors who sacrificed, and gave their all, no questions asked, in 
defense of freedom.
    There is a common bond among veterans, forged by their shared 
experiences that have molded their character and their values. Although 
their lives have been forever changed, their values have not, and their 
commitment to this nation remains strong, even though our government 
too often reneges on its commitment to them.
    In return for sacrificing their lives, their limbs, and mental and 
physical well-being, the only thing that veterans have ever asked in 
return is that our government honors its commitment to help them and 
their families in their hour of need. This sacred covenant between our 
nation and its citizen soldiers has been both implied and implicit 
since our nation was founded.
    We must never forget how blessed we are to live in a free society, 
nor forget the price that was paid for our freedom, especially by those 
deprived of all human dignity by their captors. We must, therefore, 
honor and care for those who distinguish their lives in defense of 
freedom--whatever the cost.
    The only thing that these former World War II American POWs of the 
Pacific Theater ask is for the right to receive just and fair 
compensation from private Japanese companies who profited from their 
slave labor, without interference from our government. At the very 
least, our government should remain neutral and not oppose their legal 
action--they deserve nothing less.
    Mr. Chairman, this completes my testimony. Thank you for allowing 
the DAV the opportunity to discuss its concerns about our government's 
opposition to the legal claims of former World War II American POWs 
against private Japanese companies.
                               __________
           American Defenders of Bataan & Corregidor, Inc.,
                                      Wellsburg, WV, June 20, 2000.
Senator Orrin Hatch,
Dirksen Senate Office Building, Washington, DC.
    Dear Senator Hatch: We were squeezed into the filthy allotted space 
in the bowels of the hell ships, and were locked in for safe-keeping. 
Maybe there was still some physical strength left for work or perhaps 
they would serve as barter should the Japanese militarists need them 
for such. Devoid of any comforts, without food or water and not even 
the courtesy to mark the ship as carrying prisoners of war, we sailed 
through the battle infested waters toward Japan. We saw the smack of a 
torpedo or bomb as it hit the ship, we saw the rushing water as it 
entered the hold and we felt panic that said ``This is it''. There was 
terror written in deep gaunt lines on the faces of the men. Men that 
were then to the breaking point. We arrived in Japan and were assigned 
to quarters which were unfit for human living, starved, beaten and then 
assigned to Japanese industrialists as slave labor to work in plants to 
manufacture and handle war materials which would be used against our 
own country men for almost three and one half years. thousands died 
from starvation and severe mistreatment by the Japanese military. Today 
we suffer immensely from the residual effects of our prisoner of war 
life. It took 36 years for our government (PL 97-37) to recognize the 
physical and mental disabilities of this group of veterans.
    Those few who came home continually looked to their government to 
seek some compensation from the Japanese government and industrialists 
who used them as slave labor during World War II. As of this date they 
have found none. What we did receive is, a peace treaty with Japan, 
that many of us claim denies us redress for violation of our basic 
human rights. With the help of a few civic minded attorneys and other 
individuals in various parts of the United States, the prisoners of war 
community has initiated a drive for justice against those Japanese 
industrialists that used us as a slave labor in plants that produced 
war goods which were used against those gallant and brave armed forces 
who were island hopping in the South Pacific to free them from the 
tyrannical hands of the Japanese government. A number of law suits have 
recently been filed in the state of California on behalf of these 
former prisoners of war. These complaints were filed against those 
Japanese firms that benefited from their slave labor during World War 
II. Currently, there are almost eighty attorneys assisting in the 
litigation against the Japanese industrialists.
    Hopes were high that perhaps justice might now prevail for this 
group. However, the prisoner of war community has recently been 
informed that the United States Department Of Justice, pursuant to a 
court's order requesting such, has issued an opinion that supports the 
Peace Treaty with Japan dated September 8, 1951. The opinion states 
that a claim relying on state law is considered one ``arising under'' 
federal law and may be removed to federal court, The opinion states 
that the Peace Treaty along with the War Claims Act of 1948 preempts 
state law claims as shown in Raymond Heimbuch et al against Ishihara 
Sangyo Kaisha Ltd. for remanding the litigation to a state court.
    This action by the Justice Department is in direct contradiction to 
a letter by Judge John W. Bissell that requested the department to 
appear as ``amicus curiae'' (commonly known as friend of the court) in 
two slave labor claims on behalf of persons forced to work in German 
factories during World War II. The Civil Division of the Department of 
Justice respectfully declined the request of Judge Bissell to become 
involved in this particular litigation.
    It is very apparent that the Justice Department made a determined 
decision only six months ago not to interfere with claims pending on 
behalf of Holocaust slave tabor victims, whereas in the Raymond 
Heimbuch et al litigation, they have taken a position which is 
detrimental to such claims on behalf of slave labor victims of the 
Japanese industrialists. These former prisoners of war are bewildered 
that the Department Of Justice chose to take such a position which 
interferes with the rights of a private citizens to bring claims 
against private companies. These plaintiffs are particularly concerned 
that the effect of this opinion could nullify the action of the 
California legislature in seeking to open up State courts for American 
POW's pursuing fair compensation for slave labor performed during World 
War II.
    Why are former prisoners of war who were forced to perform slave 
labor for the Japanese companies being treated differently from persons 
who performed as slave labor for German companies during World War II? 
Why did the Department of Justice publicly state a position that is 
adverse to the former prisoners of war who seek redress from private 
Japanese companies? It should be noted that many of the Holocaust slave 
labor victims and their representatives have been actively involved in 
supporting legislation against Japanese companies and are doing 
everything they can to right the injustices which occurred in the 
Pacific during World War II. We would appreciate your help on this 
matter.
            Respectfully yours,
                                           Edward Jackfert,
Past National Commander, American Defenders Of Bataan & Corregidor.
                               __________
                     The American Center for Civil Justice,
                                       Brooklyn, NY, June 10, 2000.
Stuart Eizenstat,
Deputy Secretary of the U.S. Treasury,
U.S. Treasury Department, Washington, DC.
    Dear Mr. Eizenstat: The American Center for Civil Justice, an 
advocacy group, has been responsible for the public awareness that has 
spawned the more than thirty present lawsuits against Japanese 
Corporations for the enslavement of American ex-POWs during World War 
II.
    The Center provided the initial and essential historical and legal 
research to enable these claims to move forward. The Center has also 
corresponded with some of the Japanese Corporations that maintain 
headquarters in the United States.
    The Center's primary goal and commitment has been to establish a 
quick and early closure to this issue of compensation that has been 
ignored for half a century.
    The Center is presently proposing a direct settlement between the 
companies and the claimants, that will be fair to the victims without 
harming the corporations involved.
    The Center believes this approach is in the best interest of all 
parties and in the national interest of both Countries.
    The Center represents the majority of living American claimants and 
has the ability to reach out to all American victims within a 
reasonable period of time.
    The Center has no financial interest in this claim or settlement 
and has made every effort in preventing this issue from becoming a new 
found source of revenue for the legal industry,
    This proposal and your response to it are destined to become part 
of the history of this affair, and such intervention would seem to be 
within your official capacity.
    I would be available to meet with you at the earliest possible 
opportunity.
            Sincerely,
                             Michael Engelberg, MD.
                               __________
                     The American Center for Civil Justice,
                                       Brooklyn, NY, June 13, 2000.
Mr. Hiroaki Yano,
President, Mitsubishi International Corp., NY, NY.
    Dear Mr. Yano: The American Center for Civil Justice, an advocacy 
group, is authorized to represent 600 American ex-POWs of alleged 
Japanese slave labor, the largest group seeking redress for 
enslavement.
    Since our last correspondence in December, approximately thirty new 
lawsuits have been filed against Japanese industries and the United 
States legal system is being used as a tool to pursue these claims.
    The Center which was the original advocate of this issue and was 
responsible for making it public, proposes a swift and direct 
settlement, which will remove this claim from the courts. By 
immediately addressing these claims, this issue, that will affect 
American and Japanese relations, and may affect the future of your 
company, would be resolved in a sensible and just manner.
    The Center will be able to reach out to all American victims within 
a reasonable period of time.
    In continuing to defend these mushrooming claims in U.S. Courts, 
your legal and public relations cost could possibly exceed a total 
settlement cost while not bringing closure to either plaintiff or 
defendant.
    This is a serious offer of good faith on behalf of the victims and 
the Center will have no financial interest in this claim or settlement.
    The Center believes this approach is in the best interest of all 
the concerned parties and is in the national interest of both of our 
countries. While it is unfortunate that the Center's December 
correspondence and its recommendations was not acted upon, no action on 
your part will initiate further law suits which will elevate the 
expenses and public profile of this unfortunate matter.
    Your response to this offer, which is being made on behalf of the 
elderly and frail American surviving victims, will for posterity, 
reflect your attitude and approach towards correcting an historical 
injustice.
    If you would like to explore the framework and details of this 
recommendation, I will be available to meet with you or your 
representative at the earliest possible opportunity.
            Sincerely,
                             Michael Engelberg, MD.
                               __________
                     The American Center for Civil Justice,
                                       Brooklyn, NY, June 13, 2000.
Mr. Hiroshi Noda,
Kawasaki Heavy Industries (U.S.A.), Inc., NY, NY.
    Dear Mr. Noda: The American Center for Civil Justice, an advocacy 
group, is authorized to represent 600 American ex-POWs of alleged 
Japanese slave labor, the largest group seeking redress for 
enslavement.
    Since our last correspondence in December, approximately thirty new 
lawsuits have been filed against Japanese industries and the United 
States legal system is being used as a tool to pursue these claims.
    The Center which was the original advocate of this issue and was 
responsible for making it public, proposes a swift and direct 
settlement, which will remove this claim from the courts. By 
immediately addressing these claims, this issue, that will affect 
American and Japanese relations, and may affect the future of your 
company, would be resolved in a sensible and just manner.
    The Center will be able to reach out to all American victims within 
a reasonable period of time.
    In continuing to defend these mushrooming claims in U.S. Courts, 
your legal and public relations cost could possibly exceed a total 
settlement cost while not bringing closure to either plaintiff or 
defendant.
    This is a serious offer of good faith on behalf of the victims and 
the Center will have no financial interest in this claim or settlement.
    The Center believes this approach is in the best interest of all 
the concerned parties and is in the national interest of both of our 
countries. While it is unfortunate that the Center's December 
correspondence and its recommendations was not acted upon, no action on 
your part will initiate further law suits which will elevate the 
expenses and public profile of this unfortunate matter.
    Your response to this offer, which is being made on behalf of the 
elderly and frail American surviving victims, will for posterity, 
reflect your attitude and approach towards correcting an historical 
injustice.
    If you would like to explore the framework and details of this 
recommendation, I will be available to meet with you or your 
representative at the earliest possible opportunity.
            Sincerely,
                             Michael Engelberg, MD.
                               __________
                           Assembly California Legislature,
                                     Sacramento, CA, June 30, 2000.
RE: Senate Hearing on ``Former U.S. World War II POWs: A Struggle for 
Justice''

Hon. Orrin Hatch,
Chair, Honorable Members of the Senate Judiciary Committee,
U.S. Senate Committee on the Judiciary, Dirksen Senate Office Building, 
        Washington, DC.
    Dear Chair and Judiciary Committee Members: I write to you as a co-
author of California State Senator Tom Hayden's legislation (Senate 
Bill 1245 of 1999) which grants former prisoners of war a basis to 
pursue claims against Japanese companies doing business in California. 
I am also the author of Assembly Joint Resolution 27 of 1999, which 
calls for Japan to formally apologize and pay reparations for war 
crimes.
    In 1670, Benedict Spinoza wrote in his Theological-Political 
Treatise:

          Peace is not an absence of war, it is a virtue, a state of 
        mind, a disposition for benevolence, confidence, justice.

    For former slave laborers, the war is over, but there is no peace. 
In an effort to bring closure to a heroic community of Americans, the 
State of California has granted former prisoners of war who were forced 
to work as slave laborers a right to seek compensation. I urge you to 
do all within your power to allow these Americans to have their day in 
court.
    The Justice Department has interpreted the San Francisco Peace 
Treaty of 1951 as barring these claims. The Justice Department opinion 
passively restates the position of the State Department, but is void of 
any apparent common sense of justice. It fails to recognize that a true 
peace is more than the absence of war.
    While I value the work of the Justice Department, I recall that the 
Justice Department successfully opposed the initial claims of Japanese-
Americans seeking redress for their internment. In this instance, as in 
the past, there are persuasive legal arguments contrary to the position 
of the State Department. These arguments must be aired in a court of 
law.
    This is truly a test of our democracy. I urge you and every member 
of Congress assist these valiant Americans by securing their day in 
court--they deserve nothing less. To deny them a day in court is, at 
this point, to deny them justice and their only remaining opportunity 
for true peace.
            Sincerely,
                                          Michael M. Honda,
              California State Legislature, 23rd Assembly District.
                               __________
                      The Center for Internee Rights, Inc.,
                                    Miami Beach, FL, June 22, 2000.
Senator Orrin Hatch,
Senate Judiciary Committee, U.S. Senate,
Washington, DC.
    Dear Chairman Hatch, On behalf of our fifty thousand members 
representing former POWs and civilian internees of Japan in World War 
II let me thank you for taking an interest in the plight of these poor 
souls who were so brutalized by Japan in WWII.
    Frankly, we are shocked and disappointed on the recent decision 
issued by the Department of Justice relating to American POWs used by 
private Japanese companies as slave labor in WWII. California took the 
initiative and did the right thing by passing laws to allow slave 
laborers to sue the companies that used them illegally and who never 
paid them. The issue is not a sovereign nation to sovereign nation 
issue but one of an individual citizen suing a private company. Why 
people keep bringing up the San Francisco Peace Treaty as blocking the 
ability of these lawsuits to progress is beyond me.
    Frankly, Senator Hatch, the San Francisco Peace Treaty ought to be 
looked at very carefully for it specifically did not end the issue of 
compensation for the victims of Japan. The history of the Treaty is 
certainly flawed with ominous political reckoning and the victims were 
mostly ignored by their own Government. Germany on the other hand has 
stepped forward and faced their transgressions in WWII in a just and 
honorable way. The US Government has strongly supported the effort both 
private and governmental in settling compensation issues for those who 
suffered under the Nazi German Regime. Why then is there a dual 
standard when it comes to the same type of victims who suffered under 
the Japanese?
    I can tell you this, having been a former internee of the Japanese 
in WWII, those captured by Japan suffered unspeakable and inhumane 
treatment by Japan. The US on the other hand treated the Japanese, 
Japanese-Americans, Italians and Germans who were interned in the 
United States during the war with kindness, respect and far beyond the 
parameters of the Geneva and Hague Convention. That is the American way 
and we can be proud that we treated enemies at time of war in such a 
benevolent fashion.
    The Japanese Government will continue to hide behind the San 
Francisco Peace Treaty until the United States Government faces the 
fact that they themselves were involved in an unjust Treaty that fully 
overlooked the plight of the American citizens captured and interned by 
Japan.
    It is our hope, Senator Hatch, that your Hearings will expose the 
US Government's calloused and uncaring attitude toward the American 
citizens who sacrificed all in the pursuit of freedom and democracy 
that we are privileged to enjoy today. In the spirit of our great 
nation your Committee can resolve the situation. it is time to do the 
right thing.
            Respectfully,
            Gilbert M. Hair (Santo Tomas Internee),
                                        Executive Director,
             Life Member--ADBC, AXPOW, DAV, AMERICAN LEGION, CORMV.

    [Editor's note: The attachment of an article from the Veterans' 
Journal, October 1999 Issue, Volume 2, Number 10, ``Massacres and 
Atrocities of World War II,'' is retained in Committee files.]
[GRAPHIC] [TIFF OMITTED] T5766.001

                               Office of Selectman,
                                      State of Connecticut,
                               Stafford Springs, CT, June 20, 2000.
Senator Orrin Hatch,
Chairman, Senate Judiciary Committee, Washington, DC.
    Dear Mr. Hatch, A resident of our community, Darrell Stark was 
captured in the Philippines by the Japanese as a young man at the onset 
of World War II.
    While most of the men in his unit died either while being 
transported or in captivity, Mr. Stark survived. He was transferred to 
Japan and forced to work as a slave laborer for three years.
    He feels strongly that like his counterparts who were forced to do 
slave labor for the Germans, that he should be able to bring Civil 
Actions against the Japanese companies that profited from his labor in 
the United States Courts.
    We understand that people, who were enslaved in the European 
Theater, are permitted to bring suit, but those people used in this 
fashion in Asia are not. The concept that some former service men and 
women can bring suit and others can't is difficult to understand.
    We understand that vital social and governmental issues may be 
involved with their decision but the overriding human consideration 
should be that federal legislation should be enacted to permit our 
former slave laborers to be compensated for their suffering and their 
work.
    Your swift attention to this matter will be appreciated not only by 
Darrell Stark but also by the thousands of other former service men and 
women who suffered the same fate.
            Very truly yours,
                                            John E. Julian,
                                                   First Selectman.
                               __________
                                       The American Legion,
                                     Washington, DC, June 27, 2000.
Hon. Orrin Hatch,
Chairman Senate Judiciary Committee,
Dirksen Senate Office Building, Washington, DC.
    Dear Chairman Hatch: On behalf of the 2.8 million members of The 
American Legion, I want to express our sincere thanks to you for 
scheduling the Judiciary Committee hearing on June 28 on the subject of 
compensation for Bataan POWs. We welcome and appreciate your leadership 
on this issue and trust that the hearing will help bring closure and 
justice to the survivors of Bataan who have been waiting for this for 
over fifty years.
    Bataan survivor compensation has been a concern of The American 
Legion for many years. We have two longstanding resolutions that speak 
to this specific issue. Our steadfast position remains that the 
Japanese government must:

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

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

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

    As you are well aware, the American prisoners held by the Japanese 
were subjected to conditions and deliberate abuse that were beyond 
belief. Upwards of 10,000 American prisoners died as a result of 
Japanese brutality during their occupation of the Philippines. Seeing 
that Germany has apologized for its injustices during World War II and 
reparations have been paid to Japanese-Americans who were forced into 
internment camps, positive steps from Japan are long past due.
    The American Legion was certainly pleased to see the recent 
introduction of H. Con. Res. 357 that expresses the sense of Congress 
concerning war crimes committed by the Japanese military during World 
War II. This resolution closely mirrors American Legion positions and 
calls for both an apology and the payment of reparations to surviving 
POWs, by the Japanese. We strongly support H. Con. Res. 357 and urge 
the U.S. Government to exact pressure on the Japanese government and 
commercial interests to make an apology and make payment of reparations 
a reality.
    We are also aware of section 655 of S. 2549, the National Defense 
Authorization Act for fiscal year 2001, which if enacted will pay a 
gratuity through the Secretary of Veterans Affairs to eligible veterans 
or their surviving spouses. This provision would pay $20,000 to 
veterans of Bataan or Corregidor who were POW's forced to preform slave 
labor in Japan during WWII. The American Legion would support this 
proposal only after all attempts diplomatic, administrative and 
Congressional in nature for payment by the Japanese government or 
Japanese commercial interests have been exhausted.
    The American Legion applauds the Committee's actions to expose and 
address the heinous activities of the Japanese during World War II. 
While Japan can never fully atone for these actions, the Japanese most 
assuredly should take steps to apologize and provide a sense of justice 
to the Bataan survivors and their families.
            Sincerely,
                                       John F. Sommer, Jr.,
                                                Executive Director.
                               __________
                                                    AMVETS,
                                         Lanham, MD, June 26, 2000.
The Hon. Orrin Hatch,
U.S. Senate Washington, DC.
    Dear Senator Hatch: As AMVETS National Commander, I am pleased to 
support the efforts of the Senate Judiciary Committee to examine the 
plight of the U.S. POW's and civilian internees who were captured, 
interned and brutalized by Japan during WWII.
    It is important that we as a nation investigate the service of 
American POW's forced to endure long hours of hard labor for Japanese 
businesses during their capture and recognize and compensate those 
brave veterans. This issue is of great concern to the AMVETS 
membership. This August, at our 56th National Convention, delegates 
will consider an organizational resolution that requires AMVETS to 
support all efforts to investigate and resolve the claims of slave 
labor by the Japanese during WWII.
    Thank you for the opportunity to express our support for this 
important issue. AMVETS is proud of your efforts in helping to secure 
the benefits of America's veterans.
            Yours in loyalty and service,
                                         Charles L. Taylor,
                                         AMVETS National Commander.
                               __________
                                  House of Representatives,
                                     Washington, DC, June 23, 2000.
The Hon. Orrin G. Hatch,
Chairman, Senate Judiciary Committee, Washington, DC.
    Dear Mr. Chairman: It has come to my attention that you are 
considering holding hearings on the ability of American Prisoners of 
War (POWs) held by the Japanese during WWII to sue, in federal court, 
for the injuries, back wages, and damages resulting from the POW's 
imprisonment and forced labor. I write to express my strong support of 
your holding hearings to look into this matter.
    Several thousand American soldiers were held as POW's and performed 
slave labor which, in large part, contributed to the wealth and success 
of many private Japanese corporations. These POW's endured unspeakable 
horrors, were beaten often, and poorly fed while working in mills 10 to 
15 hours per day. We, in the Federal Government, have an obligation to 
ensure that the soldiers, who were imprisoned as they fought to protect 
and preserve our freedom and democracy, receive the just compensation 
to which they are entitled.
    As you know, similar cases involving Nazi Germany have arisen. 
However, there seem to be inconsistencies in how the Department of 
Justice has responded to certain courts which have sought the opinion 
of the United States regarding cases involving POW's held by Japan and 
Germany. As such, I believe that a hearing is appropriate and the 
Senate is best suited to conduct hearings on how best to resolve this 
situation as any action on this issue would involve or be impacted by 
the treaties that ended WWII.
    You may also know that the State of Rhode Island is currently 
considering legislation that would allow former POW's and their kin to 
sue, in Superior court, Japanese corporations that profited greatly 
from the slave labor of these prisoners. That legislation unanimously 
passed the Rhode Island State Senate and is expected to pass the House.
    Thank you for your attention to this matter and please feel free to 
contact me if you have any questions or if I can provide any additional 
information.
            Sincerely,
                                               Bob Weygand,
                                                Member of Congress.
                               __________
                        Military Order of the Purple Heart,
                                    Springfield, VA, June 23, 2000.
The Hon. Orrin G. Hatch,
Chairman, Committee on the Judiciary, U.S. Senate,
Dirksen Senate Office Building, Washington, DC.
    Senator Hatch: The Military Order of the Purple Heart, a 
Congressionally chartered organization dedicated to protecting and 
advancing the rights and interests of our Nation's Combat Wounded 
Veterans, supports the request for equitable and fair treatment made by 
our former Japanese-held World War II Prisoners of War. Specifically, 
these POWs are requesting that the U.S. Government support, by all 
appropriate means, their claims for redress from private Japanese 
companies that used them as slave labor during the course of their 
imprisonment.
    The Military Order of the Purple Heart. requests that the Senate 
Committee on the Judiciary investigate and explore the historical, 
legal, and practical issues involved with the claims for equitable 
compensatory action made by these gallant veterans and former POWs. We 
would especially ask that the following specific concerns of these 
veterans be addressed:

   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.
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