Update on Litigation and Legislation (2001)
by Edward Jackfert
During the month of July, Congressmen Rohrabacher and Honda
offered an amendment to the appropriations bill (HR 2500) for the Justice
and State departments which prohibits both agencies from using any 2002 funding
against U.S. World War II POWs in court. The amendment was overwhelmingly
adopted by a vote of 395-33. Congressman Honda's message to the press was
as follows: "This House has sent a powerful message to the Bush administration
and the State Department that our POWs, who survived unimaginable horrors
during World War II, should not be forced to survive a judicial system that
is slanted against them to achieve the justice they deserve.
It is shocking that the U.S. government continues to oppose to our veterans'
claims against these Japanese companies, rather than helping them resolve
this matter. We should not allow our own government to use the resources
we appropriate to oppose our former POWs in court." Congressman Rohrabacher
remarked as follows: "The U.S. Congress sent the State Department and these
Japanese multinationals who enslaved our American heroes a message, our veterans
deserve their day in court."
The following Congressmen voted against this amendment: Blumenauer (OR),
Blunt (MO), Callahan (ALA), Cannon (UT), Castle (DEL), Combest (TX), Cox
(CA), Cubin (WY), Dicks (WA), Dreier (CA), Flake (AZ), Gilchrest (MD), Granger
(TX), Hansen (VT), Hastings (FL), Hilliard (ALA), Houghton (NY), Hyde (IL),
Kolbe (AZ), Largent (OK), Meeks (NY), Nethercutt (WA), Payne (NJ), Petri
(WI), Schaffer (CO), Sensenbrenner (WI), Smith (MI), Smith (WA), Souder (IND),
Stump (AZ), Watts (OK), and Young (FL). Those of you who reside in any of
these states, take notice, and contact these Congressmen and request their
assistance in matters relating to prisoner of war legislation.
On July 31, 2001, Senator Orrin G. Hatch introduced S. 1272, titled
"POW Assistance Act of 2001" which is worded to assist United States veterans
who were treated as slave laborers while held as prisoners of war by Japan
during World War II, and for other purposes. This bill was cosponsored by
Senator Dianne Feinstein of California.
In a news release Senator Feinstein related the following: "The POW Assistance
Act of 2001 makes clear that any claims brought in state court, and subsequently
removed to federal court, will still have the benefit of the extended statute
of limitations enacted by the state legislatures. The statute of limitations
should not be permitted to cut off these claims before they can be heard
on their merits. Today's bill does nothing more than ensure that these POWs
receive their fair day in Court." Senator Feinstein further remarked that,
"We in the Senate have a moral obligation to do what we can to ensure that
they are justly compensated. I urge our colleagues on both sides of the aisle
to act quickly in support of this bipartisan bill."
On August 2, Senator Jess Bingaman (NM) along with Senator Orrin Hatch (UT)
introduced S. 1302 "Pacific Veteran's Compensation Act." The purpose of this
piece of legislation is to grant a $20,000 gratuity to those veterans that
were prisoners of war of the Japanese military and were utilized as slave
labor in Japanese industrial plants during World War II. The legislation
states that the Secretary of Veterans Affairs may pay a gratuity to a covered
veteran or civilian internee, or to the surviving spouse of a covered veteran
or civilian internee, in the amount of $20,000.
The bill identifies those covered by the bill as member of the U.S. Armed
forces, civilian employee of the United States, or an employee of a contractor
of the United States during World War II; they must have served in or with
United States combat forces during WWII and were captured and held as a prisoner
of war by Japan, and finally were required by the Imperial Government of
Japan, or one of the Japanese corporations, to perform slave labor during
WWII.
Congressman Robert Stump (AZ) seemed to have some reservations relative to
this piece of legislation. Our membership, survivors, and friends residing
in Arizona and all other areas to telephone, fax, or make personal contact
with their elected official in the House of Representatives and request that
he or she support this important piece of legislation.
We would like to point out that there is continual opposition from Japanese
lobbyists throughout the United States expressing opposition to our efforts
currently being conducted in the legislative field. This is being done through
personal contacts of our elected officials in Washington and also in state
legislatures. The Japanese Consul in New York successfully interceded with
the legislatures in Rhode Island and West Virginia and kept a resolution
somewhat similar to that passed in California from being affirmed.
In each instance there was a strong inference of economic retaliation against
the people in each of these states. In West Virginia the Consul wrote to
the Speaker of the House of Delegates as follows: "As you may already be
aware, during this past decade, Japan and Japan based firms have emerged
as one of the largest foreign investors in your state as well as the second
largest market for West Virginia exports, therefore, I would appreciate it
if you would kindly consider our position on this issue." Thereafter, the
resolution was bottled up in the House Rules Committee.
Let's keep the pressure on our elected officials. We have had wonderful media
coverage in the newspapers and on television. The latest coverage was on
August 8, 2001 on ABC's Nightline program. There was an excellent
coverage of what we currently are attempting to accomplish for the entire
one half-hour program. The program was diverse m coverage and exceptional
in its production from the point of view of the former prisoner of war of
the Japanese military during World War II. For further information on our
litigation and legislation efforts please open up the following web sites:
http://www. justiceforveterans.org and http://pages.prodigy.net/edjackfert.
AN OPEN LETTER
TO THE CONGRESS OF THE UNITED STATES
Outrageous ... Reprehensible Irresponsible!! These are but a few words that
express the feelings of the survivors of the Death March on Bataan, Hell
Ships, Prison Camps, and the slave labor detachments of the Japanese during
World War II.
The Americans who were captured in the Philippine Islands and other areas
of the Pacific by the Japanese during World War II were starved, beaten,
tortured, and forced to become SLAVE laborers of Japan's industrial giants
throughout the entire period of the war.
The United States government refuses to permit these former prisoners of
war to sue either the government of Japan or its industrial complexes for
reparations. It is contended that the Peace Treaty with Japan denies the
right to sue to all military and civilian persons who were held captive by
Japan.
However, the governments of Canada, Great Britain and New
Zealand, all signators of the very same Peace Treaty have paid their
service personnel, and in some instances, their civilian citizens, who were
prisoners of war of Japan, reparations in the amounts of $28,000, $25,000
and $30,000 respectively in recognition of the horrendous treatment they
suffered at the hands of the Japanese military and Japanese industries for
whom they were forced to perform slave labor.
An added insult is the attached copy of the item appearing in the June 25,
1987 edition of The Arizona Republic.
Is there any reasonable explanation for the outlandish actions described
in that news item?
We, who suffered the most atrocious treatment known to mankind, ask ... where
is the justice???
Ralph Levenberg Major, USAF (Retired)
POW-Japan 3½ Years
U.S. PAID 141 JAPANESE $28 MILLION SEVERANCE
Arizona Republic
6/25/87
(Knight-Ridder)
WASHINGTON -- In an incident that one congressman called "truly fit for Ripley's
Believe It or Not," the Pentagon has paid more than $28 million in severance
pay to 141 Japanese workers, an average of almost $200,000 each, because
their banking work for U.S. military personnel in Japan was terminated.
John Barber, a civilian employee in the Pentagon comptroller's office, told
a House Armed Services subcommittee that the severance payments were in accord
with the Japanese cultural tradition that workers there are guaranteed lifetime
employment.
Lee Middleton, an assistant vice president of American Express Bank Ltd.
in New York, one of two U.S. banks that employed the workers, said that the
payments were "in keeping with market practices in Japan."
But Rep. John Kasich, R-Ohio, took a different view, terming the payments
"insane" and excessive, and saying he soon will introduce legislation to
ban such a practice.
The payments went to the Japanese employees after Chase Manhattan Bank and
American Express Bank Ltd. lost a contract they had with the Pentagon to
supply banking services to American military personnel in Japan, the subcommittee
was told.
War not over for ex-POWs suing Japan firms
By Mark Austin
Daily Yomiuri Staff Writer
September 1, 2001
On Feb. 23, 1942, American and Filipino troops hunkered at the tip of the
Bataan Peninsula, which had been overrun by the Imperial Japanese Army, listened
to U.S. President Franklin Roosevelt tell them in a radio message that "in
every war there are those who must be sacrificed for the benefit of the whole
war effort."
One of those soldiers was 23-year-old Staff Sgt. Lester
Tenney of the Illinois National Guard's
192nd Tank Battalion.
Fifty-eight years later, Tenney told a U.S. Senate Judiciary Committee hearing
on prisoner-of-war victims of the Bataan Death March that "we suddenly realized
(Roosevelt) was talking about us. We were being sacrificed, abandoned for
the benefit of the whole war effort. Well, senators, we were able to live
with 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."
After being taken prisoner on April 9, 1942, and surviving the 88-kilometer
Bataan Death March that claimed the lives of at least 10,000 American and
Filipino soldiers, Tenney was transported to Fukuoka in a "hell ship" and
interned at a work camp. For the next three years, he was turned over to
Mitsui Miike Coal Mine Co. each day and forced to work 12-hour shifts shoveling
coal in the Omuta mines.
Tenney addresses a rally of former U.S. prisoners of war and their supporters
outside the Mitsubishi dealership in San Diego, Calif., Tuesday. The former
POWs were protesting Mitsubishi's use of slave laborers during World War
II.
Tenney was given little food -- his weight dropped from 84 kilograms to 45
kilograms -- and he still suffers from the beatings he received at the hands
of Mitsui employees. "I have very limited motion in my left arm -- they broke
my left scapula with a pickax -- I wear false teeth because my teeth were
all knocked out, I wear a hearing aid because the beatings to my head ruined
my hearing, my nose is still broken -- still looks like it's all over my
face. I limp every so often, when the pain starts to be very severe in my
hips. I still have nightmares. They're bad enough that my wife gets very
concerned when I start screaming," he told The Daily Yomiuri.
Peace at any cost?
The hearing at which Tenney gave evidence was part of Congressional deliberations
on a bill submitted in March by California Reps. Dana Rohrabacher and Mike
Honda that would allow American former POWs to sue Japanese firms in U.S.
state or federal courts for losses and injuries they suffered during the
time they were imprisoned and forced to work as slave laborers.
The bill focuses on two provisions of the 1951 Treaty of Peace with Japan,
informally known as the San Francisco Peace Treaty.
If it is made law, U.S. courts would be prohibited from interpreting Article
14 (b) to mean that the United States has waived claims by its nationals
against Japanese corporations. The courts also would be obligated to invoke
Article 26 of the treaty, known as the "most-favored-nation clause," and
recognize that since the treaty took effect in 1952, Japan has concluded
reparation settlements with at least six other countries on more favorable
terms than those accorded the United States.
A precursor to the bill was a law passed in California in July 1999 that
allows survivors of forced labor during World War II and their heirs to sue
in state courts the firms that used such labor in Axis-controlled territories.
The wording of the law is clearly aimed at firms that aided the Nazi regime,
but since the out-of-court settlement of Holocaust-related slave labor claims
-- last year, the administration of former U.S. President Bill Clinton mediated
an agreement under which German firms set up a $4.5 billion fund to compensate
former slave laborers -- the focus of its application has shifted toward
Japan.
Recourse to the law
The law was co-authored by Honda, then an assemblyman in the California State
Legislature. During his time in the lower chamber, the third-generation
Japanese-American lawmaker also successfully sponsored a resolution calling
on the Japanese government to issue a "clear and unambiguous apology for
the atrocious war crimes committed by the Japanese military during World
War II" and pay reparations. The resolution split the Japanese-American community
in California, with many fearing it would lead to a "Japan-bashing" backlash
on the scale that occurred during the late 1980s and early '90s, when Japan's
trade surplus with the United States was the bone of contention.
Honda, 59, told The Daily Yomiuri in a recent interview in Washington that
his motivation for introducing POW legislation at the state and national
level was based on his childhood experience as one of about 120,000 Americans
of Japanese ancestry who were forcibly relocated to internment camps in 1942
"just because we looked like the enemy."
Honda played an active part in the redress movement that led to the symbolic
payment by the U.S. government of $20,000 to former internees under the Civil
Liberties Act of 1988.
Fighting alongside him in this struggle to right a historic wrong was John
Tateishi, national executive director of the Japanese American Citizens League.
In a recent interview in San Francisco, Tateishi said he thinks his friend
of 25 years made a bad mistake by sponsoring the POW bill.
"I think it's a terrible bill for him to introduce," Tateishi said. "If this
bill passes, the two provisions that are being waived through this legislation
essentially say that all future treaties are meaningless -- that you can
waive provisions of peace treaties."
Honda disagrees. "In this country, people have the right to have their day
in court," he said. "It's a guarantee."
And that day may be coming sooner than he anticipated. 0n July 18, the House
of Representatives passed 395-33 a budget provision barring the State and
Justice departments from using taxpayers' money to file motions to block
slave-labor suits.
"This looks like it's going to happen," said Associate Prof. Uldis Kruze
of the University of San Francisco's Center for the Pacific Rim. "It means
the Cold War is over, and the U.S. Congressional leadership, more tied to
local feelings, no longer has to protect Japan from its past."
Dulles' realpolitik
Protecting Japan from its past was one of the aims of the architect of the
San Francisco Peace Treaty, John Foster Dulles. Having served as legal counsel
to the U.S. delegation to the Versailles Peace Conference at the end of World
War I, Dulles was determined that the treaty he brokered among the 48 nations
participating in the San Francisco Peace Conference would not contain provisions
as harsh as those set out in the Treaty of Versailles, of which French Marshal
Ferdinand Foch said presciently at the signing ceremony in 1919, "This is
not a peace treaty -- it is an armistice for 20 years."
Unlike the Versailles treaty, the treaty inked on Sept. 8, 1951 contained
no "war guilt" clause and limited reparations to be paid by Japan. With the
Cold War under way and a hot war raging on the Korean Peninsula, U.S. foreign
policy sought to mold Japan as a bulwark against communist encroachment in
Asia from China and Russia. In a quid pro quo deal, Japan agreed to ally
itself with the United States in exchange for a "soft" peace treaty. For
its part, in the 50 years since the treaty was concluded, Washington has
sided with Tokyo and Japanese firms whenever they have been named as defendants
in reparation suits.
Less than a month after the California restitution law was passed, Lester
Tenney filed a suit in the state seeking damages from Mitsui. But following
the submission of a "statement of interest" by the State Department, which
said that invoking Article 26 would be an "act of extreme bad faith," U.S.
District Judge Vaughn Walker threw out Tenney's case, which had been consolidated
into a class action lawsuit filed on behalf of six other former POWs and
25,000 families.
In his ruling on Sept. 21, 2000, Walker said, "While full compensation for
plaintiffs' hardships, in the purely economic sense, has been denied these
former prisoners and countless other survivors of the war, the immeasurable
bounty of life for themselves and their posterity in a free society and in
a more peaceful world services the debt."
When he read the judge's ruling, "I almost threw up," Tenney said; "To have
a jurist, a man on the bench, say such a thing -- it's disgraceful. I will
say this, for those friends of mine, my buddies who were on Bataan with me,
in Corregidor: We surrendered once, in 1942. We're not going to surrender
again."
The case is now on appeal.
State 'foreign policy?'
California, the only U.S. mainland state ever to have been shelled by the
Imperial Japanese Navy, has become ground zero in the World War II reparations
battle. Even before the legislation enacted by Honda and others in the late
1990s, the JACL, headquartered in the state, promoted the cause of the Asian
and European "comfort women" who were forced to provide sexual services for
Japanese servicemen during the war. While questions have been raised over
the constitutionality of moves on the part of a state to create its own "foreign
policy" concerning the interpretation of treaties concluded by the federal
government, there has been a trend in the United States since the war for
state courts to claim jurisdiction to hear cases brought by alleged victims
of violations of international law.
Concerning the POW bill, Uldis Kruze predicts that "the (George W.) Bush
State Department will twist some elbows in the Senate and argue that Japan
is still our key ally in the Pacific and necessary for balance against an
emerging China."
Tokyo University Prof. Nobukatsu Fujioka, founder of the Japanese Society
for History Textbook Reform, said he believes "the Japanese people would
never imagine that President Bush would sign such an unsuitable bill. All
the claims have been definitely settled by the peace treaty."
Fujioka, who believes Japan should stop apologizing for its wartime
transgressions, said the passage of the bill could trigger an anti-U.S. backlash
in Japan and conceivably even the filing of retaliatory suits for the atomic
bombings of Hiroshima and Nagasaki and the firebombing of Tokyo.
Asked to comment on the California law, which places the behavior of Japanese
corporations on a par with that of the Nazi regime, Fujioka said: "I don't
think Japan's wartime (behavior) is comparable to the Nazi crimes against
humanity. Japan never thought of eliminating a nation or a race, but
unfortunately, many people (conflate) Japanese wartime acts and Hitler's
crimes."
Not so, claims Kruze.
"Slave labor was slave labor, in Japan or Germany, no matter what the religious
beliefs of the oppressed were or weren't," he said. "What slave labor was
about was brutality and death -- for millions. It's a miracle that there
are still people alive today who can provide eyewitness testimony to the
brutalities of that type of inhuman treatment."
Kruze believes the Japanese firms named in reparation suits should follow
the lead of their European counterparts. "I would suggest that Mitsubishi
and the other corporations get a fund together and study what the Germans
did in their situation," he said.
But for Tenney, compensation is of secondary importance. "I want an apology
first," he said. "This is not about money. Our lawsuit is a lawsuit about
honor. It's a lawsuit about respectability. It's a lawsuit about responsibility."
Copyright 2001 The Yomiuri Shimbun
Source: http://www.yomiuri.co.jp/ties/ties023.htm
WWII POWs to get apology from Tanaka
Gaku Shibata
Yomiuri Shimbun Correspondent
September 9, 2001
SAN FRANCISCO -- Foreign Minister Makiko Tanaka, in a pair of speeches to
have been given Saturday in San Francisco was expected to praise cooperation
between Japan and the United States and apologize to former prisoners of
war for hardships they suffered during World War II.
Tanaka was expected to vow to strengthen Japan-U.S. cooperation over the
next 50 years in a speech at a ceremony to commemorate the 50th anniversary
of the signing of the Japan-U.S. security treaty, which is organized by the
Japanese and U.S. governments.
The foreign minister will stress that during the last 50 years, the Japan-U.S.
security treaty played a major role in maintaining peace in the Asia-Pacific
region and reveal a plan to increase security talks to strengthen the alliance.
At another ceremony to commemorate the 50th anniversary of the signing of
the San Francisco Peace Treaty, which is organized by the Northern California
Japan Society and The Yomiuri Shimbun, Tanaka will apologize to former U.S.
POWs.
Tanaka will speak about the incurable scars left on many people, including
POWs, by World War II.
By humbly accepting the historical facts, she was to echo the grave reflection
and sincere apology contained in a 1995 speech delivered by then Prime Minister
Tomiichi Murayama.
Copyright 2001 The Yomiuri Shimbun
Source: http://www.yomiuri.co.jp/newse/20010909wo42.htm
Japan apologizes to WWII prisoners
CNN.com
September 10, 2001
SAN FRANCISCO, U.S. -- Japan has marked the fiftieth anniversary of the treaty
ending World War II by apologizing to prisoners of war taken during the Japanese
march across Asia.
Though a Japanese prime minister made a similar apology in 1995, Foreign
Minister Makiko Tanaka's apology was the first such gesture on U.S. soil
that singled out POWs.
"The war has left incurable scars on many people, including former prisoners
of war," Tanaka said. "I reaffirm today our feelings of deep remorse and
heartfelt apology," Reuters news agency quoted Tanaka as saying.
Tanaka and Secretary of State Colin Powell spent the day shuttling between
commemorative ceremonies and meeting to discuss security and economic issues.
On September 8, 1951, delegates gathered in San Francisco to sign treaties
reinstating Japanese sovereignty and cementing a defense pact that remains
a cornerstone of U.S. foreign policy.
"Our alliance is a living, breathing reality," Powell said in a speech at
the War Memorial Opera House, where the one-time enemies gathered to sign
the peace treaty.
"Japan is our Pacific anchor," he said.
Protesters demand more
Tanaka spoke before him, offering the carefully worded apology. Her statement
did not mollify members of Veterans for Justice, a group seeking reparations
from Japanese companies.
"'Deeply remorseful' is not saying, 'Hey, I apologize,"' said Lester Tenney,
who worked in a Japanese coal mine after his capture. "You know what, I am
deeply remorseful also."
Outside the Opera House, hundreds of protesters chanted, banged drums and
held signs calling for Japanese apologies and reparations.
They represented Chinese whose families were slaughtered during Japanese
occupation and Asian women forced into sexual slavery.
Under the San Francisco Peace Treaty, Japan was not required to compensate
the nations it attacked. American negotiators agreed to those terms because
they wanted Japan to develop as an ally against communism in East Asia.
Legal action
American POWs have sued Japanese companies, seeking compensation for their
forced labor.
The State Department has argued in U.S. courts that the treaty precludes
Japan from compensating American prisoners of war. Powell reiterated that
position to Tanaka over a working lunch.
"The treaty dealt with this matter 50 years ago ... it's a position we have
to defend," Powell told reporters. "At the same time, we have the utmost
compassion for these veterans."
Both sides hailed the treaties as remarkable economic and political successes.
Japan has become the world's second largest economy and an important U.S.
export market.
Despite a prolonged recession, Japanese firms have invested heavily in the
United States.
While the economic ties still bind, Japanese leaders have begun to question
other aspects of the relationship.
There is growing debate in Tokyo over revising the U.S.-written constitution
to loosen the limitation that Japan cannot field anything more than a
Self-Defense Force.
Japanese officials also increasingly criticize the U.S. military presence
on the island of Okinawa, where in June another in a string of servicemen
was accused of raping a local woman.
Powell said U.S. Marines on Okinawa must be better guests. Japan is host
to about 47,000 U.S. military service people under a separate treaty.
"We can always work to make the lives of our gracious hosts as little interrupted
as possible," he said.
© 2001 Cable News Network LP, LLLP.
Source: http://www.cnn.com/2001/WORLD/asiapcf/east/09/09/japan.apology/
American POW wants apology
from Japanese firms
Masayuki Kitano
Japan Today
October 16, 2001
Monday, October 15, 2001 at 09:30 JST TOKYO "He survived the Bataan Death
March and was forced to spend over two years shovelling coal in a mine operated
by a Japanese firm.
But more than half a century after his ordeal as one of Japan's prisoners
of war (POWs) ended, American Lester Tenney, 81, says he no longer harbours
anger towards the country or its people in general.
Instead, Tenney, who worked as a forced labourer from 1943 in the Mitsui
Miike mine operated by Mitsui Mining Co Ltd in Omuta, southern Japan, wants
an apology for the harsh treatment he received and to be paid for his work.
"These companies that beat us, didn't feed us and didn't give us medical
care. These are the ones that we are interested in. No one else," he said
in an interview in Tokyo.
Tenney was taken prisoner in the Philippines and survived the infamous Bataan
Death March of April 1942 before being sent to Japan in a cramped, disease-ridden
ship.
More than 36,000 U.S. soldiers, sailors, marines, airmen and civilian
construction workers are said to have been forced into slave labour in Japan
during the war. About 10,000 died in captivity and thousands more suffered
malnutrition and serious illness.
"I think it's time to get this thing over with," said Tenney, who was in
Japan to speak to college students and schoolchildren about his wartime
experiences.
Dozens of lawsuits have been filed in the United States seeking compensation
from Japanese firms.
But ex-POWs such as Tenney suffered a setback in September last year, when
U.S. District Judge Vaughn Walker dismissed a series of suits seeking reparations
for thousands of former U.S. and other Allied prisoners of war.
A suit filed by Tenney against Mitsui Mining, Mitsui & Co Ltd and their
U.S. subsidiaries was thrown out by Walker along with suits against other
major Japanese firms including Nippon Steel Corp and Mitsubishi Corp.
Mitsui & Co was named in Tenney's suit due to its pre-war ties to Mitsui
Mining, said Bonnie Kane, a lawyer representing Tenney.
Tokyo and Washington as well as Japanese firms such as Mitsui Mining have
maintained that claims against the Japanese government or nationals were
settled by the 1951 San Francisco Peace Treaty, a position that Walker upheld
in his ruling.
Tenney appealed unsuccessfully against the federal court ruling. However,
Kane said she expects to file another appeal.
Apologizing and paying wages are the only things Japanese companies that
used POWs as forced laborers can do to make up for the past, Tenney says.
"In the year 2001, they can do nothing today about not having given us food,
about medical care, or about stopping the beating," he said.
A spokesman for Mitsui Mining said a "certain number" of Allied POWs were
used as laborers at the Mitsui Miike mine, which the company acquired from
the Japanese government in 1889 and stopped operating in March 1997.
"Our company provided a place for Allied POWs to work, but this occurred
under the jurisdiction of the military," said Mitsui Mining spokesman Minoru
Sasaki, adding that the company did not know the exact number of POWs who
worked in the mine.
Tenney says he was often beaten with a hammer or a pickaxe when he failed
to work fast enough to satisfy the Japanese operators of the mine.
He says he is not seeking a specific amount of money, and that receiving
an apology "to give us back our honor" is the most important thing for former
POWs.
In the wake of the court's rejection, an initiative to support POWs has emerged
in Congress.
Two Californian members of the House of Representatives, Republican Dana
Rohrabacher and Democrat Michael Honda, have proposed a bill that would let
former POWs pursue compensation in U.S. courts.
But strong opposition exists in some quarters, as reflected in an opinion
article written by three former U.S. ambassadors to Japan that appeared in
the Washington Post late last month.
Walter Mondale, Thomas Foley and Michael Armacost said they were "extremely
concerned" that Congress was considering passing legislation that would require
courts to entertain former POWs' lawsuits.
Such measures would undermine U.S. relations with key ally Japan, and have
"serious, and negative, effects" on national security by abrogating the San
Francisco Peace Treaty, they said.
The current U.S. envoy to Japan, Howard Baker, said he agreed with his three
predecessors.
"I can say that it will remain the position of the U.S. government that all
such issues were liquidated by the treaty itself," Baker said. (Reuters News)
© Reuters 2001
EDITORIAL
October 3, 2001
GI war claims
Clarence M. Graham, an
80-year-old World War II veteran, spent three-and-a-half years as a prisoner
of the Japanese. He was among tens of thousands of American GIs who wound
up as slave laborers in Japan. His worst experience was working in a condemned
coal mine near the city of Omuta, Japan.
"We were taken prisoners by the Japanese and were used as slaves, tortured
in various ways and maintained on starvation rations," Graham told Tom Brokaw,
who reported his recollections in The Greatest Generation Speaks.
"Many were murdered. Many died of diseases and starvation."
"It was very hot work, and very deep. The air was quite bad in there. The
dust was terrible because it was a soft bituminous coal, and it filled the
air and there were no currents and we had to breathe it. You had to keep
your wits about you to stay alive because one false move, and your life was
nothing in that country. They’d kill you in an instant if you disobeyed.
"I had a little belt on my waist, and all we wore was a loincloth. Sometimes
I got to coughing so bad that I would take off my whole wardrobe and wrap
it around my face so I could breathe." We had a cigar box with rice in it
and that would be our ration for a 12-hour shift."
Graham considered himself lucky, however, because, unlike some others, "I
had a battery light that didn’t leak on me and get acid on my skin."
Another GI, Lester Tenney, spent two years in a Mitsui coal mine,
working more than 12 hours a day on meager rations of rice and water, as
The Hill’s Melanie Fonder reported. In 1999, he sued the company, but
the U.S. State and Justice departments blocked the suit on the grounds that
it violated the U.S.-Japan peace treaty.
Last July, Graham, Tenney and other World War II veterans who were slave
laborers in Japan won a major victory when the House voted 395-33 to bar
the U.S. government from preventing them from suing Japanese companies for
reparations. Reps. Dana Rohrabacher (R-Calif.) and Mike Honda (R-Calif.)
are leading sponsors of the bill.
Last month, the bill was opposed by three former ambassadors to Japan: former
Vice President Walter F. Mondale (D-Minn.), former Speaker Thomas S. Foley
(D-Wash.) and Michael H. Armacost, now president of the Brookings Institution.
In a morally obtuse op-ed page article in The Washington Post, they argued
that such lawsuits were barred by the U.S.-Japanese peace treaty. They also
noted that Americans imprisoned by the Japanese were paid more than $90 million
in assets seized from Japan, which came to about $3,000 a prisoner, which
amounts to about $23,000 today.
Mitsubishi was among the biggest employers of American slave labor. Foley
is a member of a Mitsubishi Corporation advisory panel that meets once a
year to give strategic advice to the company. Although it is a paid position,
Foley assured The Hill that this role had nothing to do with his opposition
to the veterans’ lawsuit. He said he was merely supporting State Department
policy. Former Rep. Robert Michel of Illinois, who was the Republican leader,
has joined forces with the former ambassadors.
It is inconceivable that, as members of Congress, they would have supported
Japanese war criminals at the expense of former GIs.
The Japan-U.S. peace treaty indeed states that the signatories waived "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." Steven C. Clemons pointed out
in an op-ed article in The New York Times that America’s principal
negotiator, John Foster Dulles, feared that heavy reparations burdens would
cripple Japan, make it vulnerable to communist domination and prevent it
from rebuilding.
However, Article 26 of the treaty states that, "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."
Japan did, in fact, grant other states, including the Netherlands, the right
to have nationals sue Japanese corporations for reparations. Therefore, U.S.
veterans who were slave laborers also have that right, according to Article
26.
As for the argument that the veterans already had received $3,000 ($23,000
in today’s dollars), that hardly seems to compensate for their years
in hell. Why not let a judge and jury decide what constitutes adequate
reparation?
But the veterans are not only on solid legal ground (as if the State Department
had not looked the other way at innumerable breaches of laws and treaties),
they are also on high moral ground. It is nothing short of shocking to see
men who once occupied positions of great importance and trust in our government
opposing GIs who were victims of such atrocities.
The Senate should ignore those who pander to war criminals and give this
bill another veto-proof show of support.
POW Forced-Labor Lawsuits:
Four Years Later
by Kinue Tokudome
Translated from the Japanese monthly, Ronza, September 2003 issue
It has been four years since former American POWs filed lawsuits against
almost sixty Japanese companies, seeking an apology and back wages for their
wartime forced labor. After a series of pre-trial motions, these lawsuits
are still far from being resolved. This article chronicles the recent
developments surrounding these lawsuits and examines the issues that these
lawsuits present beyond their legal implications.
Developments in the Court
Pre-trial motions for POW forced-labor lawsuits have been made at both federal
and California state courts. Those cases which were heard by the federal
court were all dismissed in January of 2003 by the Ninth Circuit Court of
Appeals. It is reported that plaintiffs plan to appeal to the U.S. Supreme
Court.
At the California state courts, POW cases against Mitsui and Mitsubishi,
and a Korean-American case against Taiheiyo Cement, were both allowed to
proceed to the trial stage. The defendants filed a petition with the California
Court of Appeal to vacate the lower courts' decisions. The Taiheiyo case
was again allowed by the Court of Appeal to proceed in January of 2003 while
a different panel dismissed the POW case in February of 2003. Here are some
of the highlights of that ruling.
The Judge first wrote that this was a remarkable case. After having declared
that the Peace Treaty simply precludes this lawsuit from going forward, the
opinion devoted considerable space for the description of POWs' sufferings.
It explained, "The very process of explaining the effect of the treaty also
requires that we recognize the sacrifice of these plaintiffs. That sacrifice
deserves to be explicitly recognized by the judiciary of this country, regardless
of the validity of the legal claims they are now making..." It continued:
Most of the plaintiffs were taken prisoner in the spring after the surrender
of Bataan in April 1942. Then came the infamous "Bataan Death March," where
prisoners, most weak and ill, were prodded by bayonets to march in the tropical
heat for six days and nights without hardly any food and water. If they failed
to keep up they were run through.
The prisoners were eventually put into "hell ships" to be taken to Japan.
POW ships are supposed to be marked, so that one side does not attack its
own nationals. The hell ships, however, were unmarked, and in fact a number
were sunk by American submarines en route to Japan...
The conditions were horrendous, and bespoke gratuitous cruelty. The prisoners
were packed like sardines into hatches, which were always sealed; sick prisoners
could not get air...
Once in Japan, the prisoners were forced into slave labor for private Japanese
companies (usually mining) that supplied the Japanese war effort. As the
plaintiffs themselves now point out, the use of that forced labor was contrary
to clearly established international law regarding the use of the labor of
prisoners of war...
The experience of Frank Bigelow, a veteran of Corregidor, was typical:
"Everyday the Japanese Army delivered us to a coal mine owned by Mitsui...
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."
There were constant beatings, which would increase whenever the United States
won an important battle. Over 11,000 of the 27,000 some Americans captured
and interned by the Japanese military during World War II died.
The California Court of Appeal, although describing POWs' sufferings in detail,
explained that the Peace Treaty waived their claims so as not to repeat the
failure of the Versailles treaty and to rebuild Japan and its economy as
quickly as possible. As for the individual claims, which POWs argued were
not waived, it said, "...even allowing POWs to pursue private claims against
the large Japanese companies who had exploited their labor would be ruinous
as well. An economy dominated by these 'zaibatsu' would suffer greatly if
they could be subjected to such claims."
Upon hearing this ruling, plaintiffs filed a petition for review with the
California Supreme Court. Although the Supreme Court very rarely grants such
a review, it granted review on April 30, 2003 for both the POW case and the
Taiheiyo case. Therefore, forced-labor lawsuits against Japanese companies
are back to square one after four years since the first filing. The main
focus of the review will most likely be on the constitutionality of the
California statute that made these lawsuits possible. It will probably take
6-12 months before the Court issues a ruling.
Developments Outside the Courts
On September 25 2002, House of Representatives Subcommittee on Immigration,
Border Security and Claims, Committee on the Judiciary held a hearing on
POW forced-labor lawsuits. Committee members asked the government officials
what actions the administration took since the joint resolution, which called
for the U.S. government to play a facilitating role in these lawsuits, had
been passed in December of 2000. William Taft, State Department's legal advisor,
answered:
We have been in touch with the Japanese Government and with some of the
companies, and I would have to say that we have not been encouraged... We
have not been encouraged that they are prepared to settle these suits...
We have tried to tell them that this is something that we would like them
to be more forthcoming on, but we have not gotten a response.
About this testimony by Taft, Japanese House of Councilors member Mitsuru
Sakurai submitted a written question to Prime Minister Koizumi in December
of 2002 asking, "Who from the Japanese side responded, and how and when?"
Prime Minister Koizumi responded in a written answer:
We have indeed been contacted by the U.S. side as Mr. Taft testified, but
I would rather not reveal the details of our exchange because they were of
diplomatic nature between Japan and the United States.
The U.S. media have been consistently sympathetic towards POWs. Just this
past June, Reader's Digest, which has a circulation of 17 million across
the U.S., ran an article entitled, "Vets vs. Uncle Sam: Don't make them fight
twice," written by CNN commentator Tucker Carlson. He chronicled the wartime
sufferings of Dr. Lester Tenney who is one of the plaintiffs in the
POW forced-labor lawsuits. He concluded, "Whoever has the strongest legal
case, it's clear who has the moral high ground..."
Dr. and Mrs. Tenney with Vice Speaker of the Upper House, Mr. Shoji Motooka,
and Upper House member, Ms. Tomiko Okazaki
Dr. Tenney has been featured in the U.S. media countless times and his enduring
spirits and humanity touched many hearts of American people. He has become
the poster boy of sort for all POW forced-labor lawsuits. His message of
reconciliation through "forgiveness" and "responsibility" reached Japan last
March. The Japanese edition of his memoir My Hitch in Hell was translated
by volunteers and published in Japan. During his visit to Tokyo on the occasion
of the publication of his book, he was greeted warmly by many Japanese people
including more than a dozen National Diet members. Dr. Tenney spoke in front
of them:
A Japanese industrial giant, a corporation, allowed its employees to physically
abuse me on a daily basis any time I didn't work fast enough, didn't work
hard enough, or if the Japanese lost an important battle. That experience
alone was, by far, the worst of all my experiences as a prisoner of war.
But we must learn to forgive, and those who committed these atrocities to
humanity must come forward and accept responsibility for their actions. I
hope that with dignity and responsibility we can continue building our future
together.
Copies of his memoir were presented to 200 members of the Japanese Diet who
belonged to the Foreign Relations and Security Committees of both houses.
Dr. Tenney also met Mr. Koichi Ikeda, a former Japanese POW who was forced
to work in Siberia after WWII and with whom he had exchanged emails. Dr.
Tenney embraced Mr. Ikeda telling him, "I know what you went through and
share your pain."
Questions that POW lawsuits pose for Japan
For the defendant companies, not only has the four years of legal battle
failed to bring a resolution to POW forced-labor lawsuits, but it has also
not improved their company image due to the media coverage on the lawsuits.
What questions do these developments pose for Japan? Is fighting these lawsuits
all the way by insisting that the Peace Treaty resolved the issue the best
course of action even if defendant companies can prevail in the court in
the end? Shouldn't Japan take these lawsuits as an opportunity to finally
start a process of "facing the past," not for the passive purpose of shedding
the image of a nation that does not learn from the past, but for the purpose
of actively reaching out to former victims of its past wrongdoings in order
to achieve reconciliation while the former POWs are still alive?
Recently, three persons enhanced my belief by sharing their own views.
 The
first was my friend Mr. Clay Perkins, who offered to purchase 200
copies of the Japanese edition of Dr. Tenney's book. Having been deeply moved
by the original edition, he told me that I could use the 200 copies the way
I thought was best. When I let him know that we would donate them to Japanese
Diet members, he sent me a message to accompany with each copy. It read:
It has been fifty-seven years since the end of the war. Japan and the United
States have gone from bitter enemies to the best of friends. It is in that
new spirit that I address you -- as a friend. I want to share our common
history so that we can be closer as human beings.
I am proud to call Dr. Tenney my friend. In spite of his prison experience,
he bears no ill will against Japan or the Japanese people. I hope that you
too will find in this book his well-tempered faith in humanity.
Next, I attended the annual convention of the American Defenders of Bataan
and Corregidor held in Albuquerque this May. More than 300 former POWs of
the Japanese, most of whom are now in their 80s, were gathered there along
with their families. They reaffirmed their
 determination
in fighting their legal battle against Japanese companies. There I met with
some of the children whose fathers were POWs and did not survive. One of
them was Mr. Duane Heisinger, a retired Navy captain, who just published
a book about his father entitled, Father Found. In it he chronicles
the life of his father who died on a POW transport "hellship." Captain Heisinger
searched for the former POWs who were with his father during the war, listened
to their stories, and "found" his father 58 years after his death. The voyage
of the particular hellship that his father was put into was one of the cruelest
-- only about 300 out of 1,600 POWs who were on board survived. Captain Heisinger
movingly described what his father might have said to his children with his
last breath. After I came home, he wrote to me:
My desire is to find mutual understanding and perhaps reconciliation among
those of us, Japanese and Americans, who lost fathers during the WWII days,
by learning together more of the historic events. That is where my heart
is.
Lastly, I had an opportunity to exchange emails with Mr. Hampton Sides,
the author of Ghost
 Soldiers
whose Japanese edition was just published by Kobunsha. His book on the rescue
mission of American POWs in the Philippines in 1945 became a bestseller in
the U.S. two years ago, and a Hollywood motion picture based on the book
will be released early next year. The book starts with a chapter describing
the Palawan massacre where Japanese soldiers herded 150 American POWs into
air raid shelters and burned them to death. Mr. Sides wrote to me:
I can only hope that my book will bring to Japanese readers a rich and vivid
sense of the times, and that it may also help explain why so many ex-prisoners
of Japan still harbor such intense animosity toward their captors. No one
in the United States should be allowed to forget what these men endured.
My book is in no way intended to be an attack on the Japanese -- indeed,
I spent four months living in Japan with my family researching the book and
had a fabulous and unforgettable experience and made many friends. But in
the end, I think the Japanese public will only benefit from knowing the truth
about how its army treated captives during the war.
Shouldn't we listen humbly to these people who are in no way anti-Japanese?
What they are trying to say is based on a deep human desire of "telling and
sharing the truth." It will never disappear even after the perpetrators win
in the court or all victims have passed away. It is fortunate for Japan that
former POWs express their willingness to forgive if their former captors
acknowledge the fact of forced labor and take full responsibility for it.
To refuse it by saying "they must be after money" is to deny their human
dignity yet again.
Achieving a meaningful reconciliation, however, requires the full disclosure
of historical records. Stuart Eizenstat, who played a central role in the
U.S. mediation between the German government/companies and their wartime
slave/forced-labor victims, wrote in his book, Imperfect Justice,
"I believe the most lasting legacy of the effort I led was simply the emergence
of the truth." He went on to write that at the encouragement of the U.S.,
twenty-one countries established historical commissions. Many countries decided
to squarely face their wartime histories and record them accurately for their
future generations.
But Japan still has not started such a task. The Japanese companies that
used POWs as slaves have yet to acknowledge their involvement and to open
their company archives. This is in stark contrast with efforts made by German
companies such as Volkswagen, whose history project includes opening the
company record on wartime slave labor to the public, building a memorial
within the company site, and publishing memoirs of victims. The excuse made
by some Japanese, "The Holocaust and what Japan did during WWII were different,"
sounds hollow.
Japan should also recognize how important it is for the victims that those
who were responsible for their sufferings acknowledge their wrongdoings and
offer a sincere apology. Eizenstat described a moving scene where German
President Rau acknowledged the sufferings of former slave/forced laborers
before them, begging forgiveness on behalf of the German people. One survivor
was so moved that he spontaneously leaped from the audience to the president's
microphone and cried, "This is what we wanted to hear." The Japanese government
and defendant companies will be well advised to think how much this exchange
meant not only to the victims, but also to the future generations of Germany.
Mr. Eizenstat wrote me saying that he agreed with the conclusion of the op-ed
piece I published in the Asahi Shimbun where I essentially wrote:
Now is the time for the Japanese defendant companies and the government of
Japan to recognize the historical fact of POW forced labor, offer a sincere
apology and try to find a way, through consultation with the U.S. government,
to compensate the victims.
Being a lawyer, he could not have agreed with my conclusion without realizing
its implication to the Peace Treaty. Congressman Christopher Cox, who strongly
opposed Congressional support for POW lawsuits, also wrote to me on one occasion,
"Voluntary compensation would not abrogate the San Francisco Peace Treaty."
Dr. Tenney recently told me:
What we need is for the Japanese Government, along with those Japanese companies
that used POW labor, to come forward and offer to share in a fund for the
benefit of all mankind, including the former POWs who were enslaved by the
various Japanese companies, through education and a lecture series. Education
and communication is the only way the countries of the world will ever be
able to get along.
 Lastly,
the office of Senator Orrin Hatch, chairman of the Senate Judiciary
Committee, sent me the following message:
Chairman Hatch remains fully committed to continuing to fight for justice
for these POWs and continues to explore legislative options. We hope that
any obstacles we have encountered in past efforts will be surpassed, and
Chairman Hatch hopes to gain the necessary support from his colleagues on
both sides of the aisle to finally obtain justice for the victims of this
horrible ordeal.
True to his words, Senator Hatch introduced on July 17, 2003, a "Resolution
of Claims of American POWs of the Japanese Act of 2003," which would
authorize the U.S. Government to pay $10,000 to each surviving POW who
was held and forced into slave labor for private Japanese companies during
World War II. It passed in the Senate on the same day.
It is high time Japan should also make efforts to achieve meaningful
reconciliation by showing sincerity.
* Kinue Tokudome is a Japanese journalist who lives in Irvine, CA.
* Ronza is a Japanese monthly magazine published by the Asahi Shimbun.
* All photos used by permission.
High Court Rejects WWII POW Labor Case
By ANNE GEARAN, Associated Press Writer
October 6, 2003, 11:20 AM EDT
Read
full article here
The following articles deal with Chinese forced
labor during WWII and subsequent legal issues, and shed much light on
the background of the Japanese Government stance regarding POW compensation
over the last sixty years:
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