[Congressional Record Volume 147, Number 154 (Thursday, November 8, 2001)]
[House]
[Pages H7945-H7950]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




  MOTION TO INSTRUCT CONFEREES ON H.R. 2500, DEPARTMENTS OF COMMERCE, 
JUSTICE, AND STATE, THE JUDICIARY, AND RELATED AGENCIES APPROPRIATIONS 
                               ACT, 2002

  Mr. ROHRABACHER. Mr. Speaker, I offer a motion to instruct conferees.
  The Clerk read as follows:

       Mr. Rohrabacher moves that the managers on the part of the 
     House at the conference on the disagreeing votes of the two 
     Houses on the bill, H.R. 2500, be instructed to insist on the 
     language contained in section 626 of the House-passed bill 
     and section 623 of the Senate amendment, prohibiting the use 
     of funds in the bill by the Department of Justice or the 
     Department of State to file a motion in any court opposing a 
     civil action against any Japanese person or corporation for 
     compensation or reparations in which the plaintiff alleges 
     that, as an American prisoner of war during World War II, he 
     or she was used as slave or forced labor.

  The SPEAKER pro tempore. Pursuant to clause 7 of rule XXII, the 
gentleman from California (Mr. Rohrabacher) and the gentleman from New 
York (Mr. Serrano) each will control 30 minutes.
  The Chair recognizes the gentleman from California (Mr. Rohrabacher).
  Mr. ROHRABACHER. Mr. Speaker, I yield myself 6 minutes.
  Mr. Speaker, this motion is highly unusual. It is highly unusual 
because the Parliamentarian's Office has not been able to find another 
instance in the history of this House in which a motion was offered to 
instruct conferees to keep something in a conference report that was 
approved by both the House and the Senate in identical form. In theory, 
such a motion should be completely unnecessary, because under the rules 
of both Houses, this House and the Senate, any provision that has been 
approved by each House in identical form is ``non-conferenceable,'' 
which means it automatically goes to the conference and goes into the 
conference report as it passed both Houses. That is called democracy, 
where the majority of people in both Houses vote for something, and 
then it stays in the bill as the bill goes through the system.

                              {time}  1415

  Unfortunately, the lobbying of Japanese corporations and other very 
powerful interest groups in this city over this period of time has been 
unusually heavy. They have been spreading misinformation about the 
peace treaty with Japan, and it appears that our courageous World War 
II POWs will feel the brunt of this deception. The fact is that private 
companies did use American POWs during World War II as slave laborers.
  In his recent decision, Judge William F. McDonald rejected all 
arguments by the State Department that such a court hearing, in terms 
of a hearing of our own POWs' requests for compensation from these 
Japanese companies that enslaved them, Judge McDonald decided that this 
would not violate the treaty which ended World War II, although what we 
have been hearing over and over and over again in this town is, my 
gosh, we cannot permit our greatest war heroes, the survivors of the 
Bataan Death March to sue the Japanese corporations that used them as 
slave labor in the war, because this would violate the treaty that 
ended the war.
  Well, already we have a judge suggesting, a Federal judge suggesting 
that that argument does not hold water, and a reading of the treaty 
itself suggests that that does not hold water.
  What do we have, then? We have a situation where this judge, a 
neutral party, an American judge, has decided that our POWs under the 
treaty have the right to file a claim in court.
  In the past what has happened, and the reason this legislation is 
necessary, is our greatest American war heroes from World War II, the 
survivors of the Bataan Death March, not only were they left out on 
their own and betrayed by our country in a certain way, at least if not 
betrayed, let down, that we did not come to their rescue; then they 
served as prisoners of war and as slave labor; and then after the war, 
we betrayed them again, we let them down again in that they were told 
that the treaty prevented them from suing the corporations that had 
used them as slave labor.
  Well, as I say, in the treaty there is a provision that says very 
clearly, any rights not granted to American citizens in this treaty 
that are granted to other citizens of other countries in other 
treaties, subsequent treaties, will automatically be the rights of the 
American people as well, and since that time, of course, Japan has 
signed many other treaties and other people have had the right to sue 
these Japanese corporations.
  We are not talking about suing the Japanese Government, we are 
talking about suing Japanese corporations. It is the courts, not the 
executive branch, that will ultimately determine the meaning of what 
this treaty is all about. We already have a court decision.
  The political question is what we need to decide, and that is what is 
happening today, and that is what happened in a decision in this body 
overwhelmingly and a decision in the Senate. Both in this House and the 
Senate, we decided that our American heroes of the Bataan Death March, 
their claims are more important than bending over backwards to try to 
recognize claims of big Japanese corporations that used our people as 
slave labor during the war. The courts have found that factual issues 
exist for the application of our people. That means that our POWs have 
a right to sue, they have an actual, factual claim, and the court has 
decided that the 1951 peace treaty with Japan does not, does not 
prevent the plaintiffs from filing action in the court.
  Now, I would ask my colleagues to vote for this motion, and I would 
ask them to pay particular attention, and the American people to pay 
attention, to what is going on here. What has been voted on on the 
floor, some people are trying to take out behind closed doors in the 
conference. It is the first time in history we have a motion to 
recommit, to insist on language that has been passed in both Houses. I 
think it

[[Page H7946]]

is vitally important for us to pay attention to this, because I can see 
when these things happen why people lose faith in democracy.
  Let me also note that the gentleman from California (Mr. Cox) has a 
bill just to provide $20,000 as compensation from the United States 
Government to these American heroes. One would think that at the very 
least, the Cox bill would be implemented if they were going to try to 
take out the legislation that we passed in both Houses. But no. Again, 
our POWs are not being treated justly.
  I would ask my colleagues to join me in supporting this motion to 
direct the conferees.
  Mr. Speaker, I reserve the balance of my time.
  Mr. SERRANO. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I certainly know of the passion with which the gentleman 
from California speaks. He is very much committed to this issue. I 
would love to correct him, just momentarily, on the fact that some 
things, when they leave the House Floor, somehow end up in conference a 
little different than when they left the House Floor, so this may not 
be the only time that this has been changed.
  But we do understand how serious he and other Members are about this 
issue. There are some concerns, but as we go into conference later 
today, we know that his concerns will be seriously taken into 
consideration.
  Mr. Speaker, I yield such time as he may consume to the gentleman 
from Virginia (Mr. Wolf), my chairman.
  (Mr. W0LF asked and was given permission to revise and extend his 
remarks, and include extraneous material.)


                             General Leave

  Mr. WOLF. Mr. Speaker, I ask unanimous consent that all Members may 
have 5 legislative days within which to revise and extend their remarks 
on this motion to instruct conferees on H.R. 2500 and that I may 
include tabular and extraneous material.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Virginia?
  There was no objection.
  Mr. WOLF. I thank the gentleman for yielding me time.
  Mr. Speaker, first of all, on the Rohrabacher amendment, the whole 
concept behind it I support and agree with, and I think it is fair to 
say that most Members agree with it.
  Secondly, if we are going to do this, we ought to be suing the 
Japanese Government as well as the corporations; and we do not sue the 
government and, therefore, it is flawed.
  Thirdly, we have a legal opinion. When this came up, we asked the 
Congressional Research Service to give us a legal opinion of the 
Rohrabacher amendment. I would like to insert the entire opinion into 
the Record, but I will read one sentence. It says, ``The Rohrabacher 
amendment is likely to have more of a symbolic effect and not likely to 
have a substantive effect on the legal interpretations and posture of 
the peace treaty with Japan under U.S. law and international law.''
  It is a symbolic thing.
  I think the gentleman is correct in what he said with regard to the 
Cox language. If we want to do something substantive rather than just a 
symbolic act, then we ought to pass the Cox language which is in the 
authorizing language.
  Lastly, the conference report will carry language, if it is approved, 
that says the following: ``The conference agreement does not include 
language proposed in both House and Senate bills regarding the civil 
actions against Japanese corporations for compensation in which the 
plaintiff alleges that as an American prisoner of war during World War 
II, he or she was used as slave or forced labor. The conferees 
understand that the administration opposes this language and is 
concerned that the inclusion of such language in the act would be 
detrimental to the ongoing effort to enlist multilateral support for 
the campaign against terrorism.''
  It ends by saying, ``The conferees strongly agree that the 
extraordinary suffering and injury of our former prisoners of war 
deserve further recognition and acknowledge the need for such 
additional consideration.''
  We are at war. You shook your head no, that we are not at war? I said 
we are at war and you shook your head no.
  We are at war. There were 27 families in my congressional district 
that died as a result of what took place at the Pentagon, and the Bush 
administration is trying to put together a multilateral, broad-based 
coalition effort. Right now, the Japanese Government has offered, with 
regard to military troops, to help them participate. And I would think 
sincerity ought to be questioned, and then take the language, and when 
the Cox language went in and the International Relations bill comes up, 
offer the language at that time. Offer it there and I will vote for it, 
but not with regard to an appropriations bill.
  Lastly, this language says, ``It is likely to have more of a symbolic 
effect and not likely to have a substantive effect on the legal 
interpretation and posture of the peace treaty with Japan under U.S. 
law and international law.''


                               Congressional Research Service,

                                  Washington, DC, October 2, 2001.
     To: Hon. Frank R. Wolf, Attention: Geoff Gleason.
     From: Margaret Mikyung Lee, Legislative Attorney, American 
         Law Division.
     Subject: Analysis of H. Amdt. 188, the Rohrabacher amendment 
         to the Commerce, Justice, State Appropriations Act, 2002, 
         H.R. 2500.

       This memorandum is in response to your request for an 
     analysis of H. Amdt. 188, the Rohrabacher Amendment to the 
     Commerce, Justice, State Appropriations Act, 2002, H.R. 2500, 
     which would prohibit the use of funds by the Departments of 
     State and Justice to oppose a civil suit brought by a former 
     American prisoner of war against a Japanese person or 
     corporation for reparations or compensation for forced labor. 
     This provision became Sec. 626 of H.R. 2500 as passed by the 
     House of Representatives and Sec. 623 in the version of H.R. 
     2500 passed by the Senate. In light of the terrorist attacks 
     of September 11, 2001, some opponents of this provision have 
     criticized it as jeopardizing foreign policy objectives of 
     the United States in seeking the support and solidarity of 
     Japan and other nations in its antiterrorism efforts by 
     calling into question the reliability of the United States in 
     abiding by its international obligations. Although Japan may 
     look askance at Congress' revisitation of this issue and in 
     direct expression of support for the lawsuits, the 
     Rohrabacher Amendment is likely to have more of a symbolic 
     effect, and not likely to have a substantive effect on the 
     legal interpretation and posture of the Peace Treaty with 
     Japan under U.S. law and international law.
       This provision apparently is a reaction to the submission 
     of statements of interest by the Department of Justice on 
     behalf of the United States in In Re World War II Era 
     Japanese Forced Labor Litigation. The United States filed two 
     statements of interest in that case. Although the plaintiffs 
     filed suit in California state courts and only alleged claims 
     under a California state statute, some cases were removed to 
     the federal courts and then consolidated before the 
     District Court for the Northern District of California. 
     These cases resulted in three separate decisions 
     dismissing three separate subclasses of the cases 
     concerning the plaintiffs who were U.S. nationals, those 
     who were Korean and Chinese nationals, and those who were 
     Filipino nationals. This memorandum will discuss below the 
     decisions concerning the U.S. nationals and Korean or 
     Chinese nationals respectively. The first statement of 
     interest stated that the cases were controlled by federal 
     law and thus should be heard in federal court. The federal 
     law was the international agreement embodying the peace 
     settlement between Japan and the major Allied Powers, 
     including the United States, which was intended to 
     constitute the final disposition of claims between the 
     Allied Powers and its nationals against Japan and its 
     nationals arising from actions in the course of the 
     prosecution of the war. The United States later filed a 
     second statement of interest setting out in detail its 
     position that it had lawfully espoused and settled the 
     claims of U.S. nationals against Japan and its nationals 
     arising out of the war; that this settlement had been 
     carried out through the compensation system established by 
     the War Claims Act of 1948, which disbursed compensation 
     funded by the liquidation of Japanese assets confiscated 
     by the Allied Powers pursuant to the peace treaty with 
     Japan; and that the California state law claims were 
     preempted by the 1951 Peace Treaty with Japan and the War 
     Claims Act in accordance with the Supremacy Clause of the 
     Constitution, which provides that ``[t]his Constitution, 
     and the Laws of the United States which shall be made in 
     Pursuance thereof; and all Treaties made, or which shall 
     be made, under the Authority of the United States, shall 
     be the supreme Law of the Land; and the Judges in every 
     State shall be bound thereby, any Thing in the 
     Constitution or Laws of any State to the Contrary 
     notwithstanding.''
       When the District Court of the Northern District of 
     California dismissed the cases with regard to the plaintiffs 
     who were U.S. nationals or military veterans of the Allied 
     Powers, it found that the Treaty by its terms constituted a 
     comprehensive and exclusive settlement plan and that Article 
     14(b) of the

[[Page H7947]]

     Treaty unambiguously waived any further claims. Even if the 
     language of the Treaty were ambiguous, the court found that 
     the context of the Treaty, the history of the negotiations, 
     and the Senate debate over its ratification supported the 
     view that Article 14(b) waived any further claims by U.S. 
     nationals against Japanese nationals, and that U.S. nationals 
     must look to the Congress for relief of claims not 
     compensated by the Treaty. Furthermore, and most 
     significantly for the Rohrabacher Amendment, the court found 
     that the position of the United States, expressed by the 
     Department of State and the statements of interest in the 
     instant case, carried ``significant weight.'' However, the 
     court also noted that the ``government's position also 
     comports entirely with the court's own analysis of the treaty 
     and its history.'' This indicates that even in the absence 
     of a contemporary brief filed by the United States, the 
     court would have reached the same conclusion.
       The court also addressed and dismissed several other 
     arguments proffered by the plaintiffs, including the 
     contentions that the suits represent a private dispute 
     between parties which arose from activities distinguishable 
     from those in pursuit of the war effort, that the waiver of 
     individual claims in the Peace Treaty was unconstitutional 
     and invalid, and that subsequent peace agreements between 
     Japan and other countries revived the plaintiffs' claims 
     under Article 26 of the Peace Treaty. Article 26 of the Peace 
     Treaty provides that ``should Japan make a . . . 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.'' With regard to that argument, the court 
     held that Article 26 of the Peace Treaty only conferred 
     rights on the states parties to the Treaty, and therefore 
     only the United States, and not the plaintiffs, could seek to 
     raise the issue of more favorable terms. Were the United 
     States to espouse the interpretation of Article 26 sought by 
     the plaintiffs in court, Japan would likely dispute an 
     interpretation which would permit further claims by 
     individual nationals; under Article 22 of the Peace Treaty 
     any dispute concerning the interpretation and execution of 
     the Treaty must be referred to the International Court of 
     Justice.
       The District Court for the Northern District of California 
     also dismissed a case involving Korean and Chinese nationals 
     finding, inter alia, that the California statute creating the 
     cause of action is an unconstitutional infringement on the 
     Federal Government's exclusive power over foreign affairs. 
     The court had concluded that the Treaty could not be read as 
     waiving claims of Korean and Chinese nationals brought under 
     California statutes and the federal Alien Tort Claims Act 
     since neither China nor Korea were signatories to the Treaty. 
     It then concluded that the California statute creating a 
     cause of action for World War II prisoners of war against 
     Japanese nationals was unconstitutional. It further concluded 
     that forced or slave labor was a violation of the customary 
     international law of human rights and therefore a suit could 
     be brought under the Alien Tort Claims Act, but for the fact 
     that the applicable statute of limitations barred the suit. 
     Finally, the California statute of limitations barred any 
     claims under California statutes concerning false 
     imprisonment, forced labor, assault and battery, etc.
       With regard to the impact the Rohrabacher Amendment might 
     have on the Treaty and U.S. relations with Japan, it appears 
     that the only U.S. court to have ruled on the reparations 
     issue and the interpretation of the Peace Treaty with Japan 
     would have dismissed the claims of U.S. prisoners of war 
     concerning forced labor compensation even if the United 
     States had not filed briefs opposing the claims. There 
     apparently are appeals pending in this litigation which have 
     not yet been decided, and there are apparently other similar 
     lawsuits pending. It is uncertain whether the ultimate 
     disposition in any of these cases might be a ruling in favor 
     of the plaintiffs. However, the Japanese government may not 
     necessarily view the silence of the United States in these 
     other cases negatively since the United States is already on 
     the historic and contemporary record as having the same 
     position as that espoused by Japan, that further claims 
     are waived by the Treaty. On the other hand, a diplomatic 
     note transmitted from Japan to the United States on August 
     8, 2000, stated that ``recent efforts to seek further 
     compensation in United States courts for actions taken by 
     Japanese nationals during World War II would be 
     inconsistent with both the letter and the spirit of the 
     Peace Treaty, and would necessarily be detrimental to 
     bilateral relations between our two countries.''
       The Restatement (Third) of the Foreign Relations Law of the 
     United States notes that an ``international agreement is to 
     be interpreted in good faith in accordance with the ordinary 
     meaning to be given to its terms in their context and in the 
     light of its object and purpose'' and that the ``President 
     has authority to determine the interpretation of an 
     international agreement to be asserted by the United States 
     in its relations with other states. . . . Courts in the 
     United States have final authority to interpret an 
     international agreement for purposes of applying it as law in 
     the United States, but will give great weight to an 
     interpretation made by the Executive Branch.'' The 
     Restatement further observes than the courts have given 
     ``great weight'' to the interpretation of a treaty by the 
     executive branch, giving more deference perhaps to an 
     executive branch interpretation which is contemporaneous with 
     the negotiation of the treaty than to one adopted by the 
     executive branch in a case before the courts, in the interest 
     of ensuring that the United States speaks with one voice in 
     conducting its international relations. In the Japanese 
     Forced Labor Litigation cases discussed above, the court 
     found that the historical and contemporaneous interpretation 
     of the Peace Treaty expressed the same view with regard to 
     the waiver of further claims. The Restatement also notes that 
     although the Senate's contemporaneous interpretation of a 
     treaty to which it gives consent is binding, later 
     interpretations by the Senate have no special authority. In 
     light of the decisions from the only court to rule on the 
     interpretation of the Treaty and the Restatement's 
     description of the principles of foreign relations law for 
     the United States, it seems likely that other courts would 
     arrive at similar conclusions.
       If you need further assistance, please contact us.

  Mr. ROHRABACHER. Mr. Speaker, I yield myself 2 minutes.
  Mr. Speaker, let us be very clear about what is going on here. The 
American POWs from World War II, the survivors of the Bataan Death 
March were used as slave labor during the war, and after the war, they 
were told that they did not even have a right to sue these Japanese 
corporations that had used them as slave labor.
  Let us note that German corporations have paid reparations, even 
Japanese corporations in Japan have paid reparations, but our own 
people, our greatest heroes, have been denied that right. Whether or 
not this is symbolic or not, I think that is a matter for the lawyers 
to determine.
  But what we should do as legislators is bend over backwards to watch 
out for the interests of our great American heroes, the survivors of 
the Bataan Death March and not try to give the benefit to Japan or the 
Japanese corporations that use them as slave labor. A court will 
decide, and already we have an opinion, as I said, in one court that 
has decided that this is much more than symbolic.
  Now, how about the argument that because we are now at war, we should 
not do right by the heroes of World War II? I do not think so. I do not 
think that is the way that we send a good message to those people 
serving this country. I think it is just the opposite.
  The fact is, Japan needs to close the books on this incident, that 
these Japanese corporations do not want to admit that they used our 
people as slave labor and they tortured people and committed crimes. I 
am sorry. They did. And it is time, like the Germans did, to just 
recognize it and close the book.
  That does not mean that we are not going to work with the Japanese 
anymore, and they may be angry. But it is time for us to stand up for 
our own people. If there is any message we need to send in a war, it is 
that our soldiers who fight and die for us or are taken prisoner, we 
are going to watch out for them and they are our number one priority 
afterwards.
  Mr. Speaker, I yield 5 minutes to the gentleman from California (Mr. 
Honda), who is actually the coauthor of this bill and has been my 
partner in this gallant effort.
  Mr. HONDA. Mr. Speaker, I thank the distinguished gentleman from 
California for the time. I would like to associate myself with his 
words also.
  Mr. Speaker, I rise today to voice my strong support for this motion 
to instruct. Before I address the reasons for my support, I would like 
to take a moment to thank the gentleman from California for his 
tireless advocacy on behalf of our men and women in our Armed Forces 
and our veterans.
  We in Congress always talk about our strong support for the men and 
women who currently serve and have served in our armed services, and I 
have no doubt in my mind that this support is genuine. The support we 
show our soldiers, past and present, is especially timely in light of 
the Veterans Day celebration we would be celebrating this weekend. The 
efforts of my colleague from California go well beyond most people's 
efforts in this regard.
  On the issue of justice for our prisoners of war during World War II, 
I am proud to be working with my good friend from California, and I 
thank him for his leadership on this important matter.
  Mr. Speaker, the instructions we give today are straightforward and 
are

[[Page H7948]]

worth repeating. None of the funds made available in this act may be 
used by the Department of Justice or the Department of State to file a 
motion in this court opposing the civil action against any Japanese 
person or corporations for compensation or reparations in which the 
plaintiff alleges that as an American prisoner of war during World War 
II, he or she was used as slave or forced labor.

                              {time}  1430

  On July 18, the House voted by an overwhelming 395 to 33 margin to 
include language in the bill that comports with these instructions, and 
on September 10, the other body included identical language in their 
version of the bill.
  Clearly, it is the desire of both Houses of Congress to have this 
language included in the final conference report. No one can deny that 
our brave veterans who were prisoners of war in Japan and forced into 
slave labor deserve to have their day in court. They should not have to 
fight their own government to get a fair hearing.
  Some of those who opposed that amendment are claiming that somehow 
the peace treaty with Japan will be abrogated should this amendment 
pass. Well, this is simply not the case. Article 26 of the treaty 
clearly states, and I quote, ``Should Japan make a peace settlement or 
war claims settlement with any state granting the state greater 
advantages than those provided by the present treaty, then those same 
advantages shall be extended to the parties to the present treaty.''
  Since other countries such as Denmark, Sweden, and Spain subsequently 
signed peace treaties with Japan that did not attempt to preclude the 
rights of their citizens to sue, the rights of our own citizens to seek 
justice are actually preserved by the terms of the treaty.
  Indeed, in cases involving Holocaust survivors, the State Department 
has maintained the U.S. Government does not even have the authority to 
conclude treaties that bar losses by U.S. citizens against foreign 
corporations.
  Mr. Speaker, I include for the Record a very insightful piece from 
the New York Times outlining the diplomatic two-step that took place 
giving the impression that certain rights were waived when, in fact, 
they were not.
  The material referred to is as follows:

                [From the New York Times, Sept. 4, 2001]

               Recovering Japan's Wartime Past--and Ours

                         (By Steven C. Clemons)

       Washington.--Celebrations this Saturday of the 50th 
     anniversary of the San Francisco Treaty of Peace, which 
     established the postwar relationship between Japan and the 
     world, will focus on Japan's emergence as a pacifist market 
     economy under the tutelage of its conqueror and later ally, 
     the United States. Little attention will be paid to questions 
     of historical memory or of liability for Japan's behavior 
     during the war. The 1951 treaty, largely through the efforts 
     of America's principal negotiator, John Foster Dulles, sought 
     to eliminate any possibility of war reparations. This 
     undoubtedly cemented Japan's alliance with the United States 
     and helped its economic rebirth. But Dulles's and Japan's 
     strategy also fostered a deliberate forgetfulness whose 
     consequences haunt us today.
       Dulles had been a United States counsellor at the Paris 
     Peace Conference in 1919, with special responsibility for 
     reparations. He had opposed, without much success, the heavy 
     penalties imposed by the Allies on Germany. These payments 
     were widely seen as responsible for the later collapse of 
     Germany's economy and, if obliquely, for the rise of Nazism. 
     After World War II, Dulles feared that heavy reparations 
     burdens would similarly cripple Japan, make it vulnerable to 
     Communist domination and prevent it from rebuilding. It was 
     crucial to Dulles that Japan not face claims arising from its 
     wartime conduct. The San Francisco Treaty has been used to 
     this day, by Japan and America, as a shield against any such 
     claims.
       Nonetheless, when he had to, Dulles allowed an exception, 
     one that has remained largely hidden. The signatories to the 
     San Francisco Treaty 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.'' But 
     recently declassified documents show that Dulles, in 
     negotiating this clause, also negotiated a way out of it.
       Dulles had persuaded most of the Allied powers to accept 
     the treaty. One major nation that refused to sign was Korea, 
     because of its enmity against Japan for colonizing the Korean 
     Peninsula. India, China and the Soviet Union also declined to 
     sign.
       For a brief while it appeared that the Netherlands would do 
     likewise. Only days before the treaty was to be signed, the 
     Dutch government threatened to walk out of the convention 
     because it feared that the treaty ``expropriated the private 
     claims of its individuals'' to pursue war-related 
     compensation from Japanese private interests. Tens of 
     thousands of Dutch civilians in the East Indies had lost 
     their property to Japanese companies, which had followed 
     Japan's armies to the Indies. They wanted compensation, and 
     they had political power in Holland.
       European opinion mattered to Dulles, who feared that a 
     Dutch exodus might lead the United Kingdom, Australia and New 
     Zealand to drop out as well. On the day before and the 
     morning of the signing ceremony, Dulles orchestrated a 
     confidential exchange of letters between the minister of 
     foreign affairs of the Netherlands, Dirk Stikker, and Prime 
     Minister Shigeru Yoshida of Japan. Yoshida pledged that ``the 
     Government of Japan does not consider that the Government of 
     the Netherlands by signing the Treaty has itself expropriated 
     the private claims of its nationals so that, as a 
     consequence thereof, after the Treaty comes into force 
     these claims would be non-existent.''
       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.'' This is why the 
     letters had to be confidential: they preserved the rights of 
     some Allied private citizens, in this case Dutch citizens, to 
     pursue reparations.
       Such an agreement, if publicized, could have opened the way 
     for other claims--reparations was a huge and emotional issue 
     after the war. These letters were not declassified until 
     April 2000, by which time most potential claimants were 
     probably dead.
       In 1956, the Dutch did successfully pursue a claim against 
     Japan on behalf of private citizens. Japan paid $10 million 
     as a way of ``expressing sympathy and regret.'' Japan had 
     been slow about making its deal with the Netherlands, and the 
     United States had to remind the Japanese that, as a 
     declassified State Department document puts it, the United 
     States had ``exerted considerable pressure on the Netherlands 
     representatives with a view to their signing the Peace 
     Treaty,'' and ``one of the arrangements was assurance that 
     the terms of the Yoshida-Stikker letters would be honored.''
       A year before the British noted two other instances in 
     which governments had made deals with Japan for reparations: 
     a settlement with Burma that provided reparations, services 
     and investments amounting, over 10 years, to $250 million; 
     and an agreement with Switzerland that provided 
     ``compensation for maltreatment, personal injury and loss 
     arising from acts illegal under the rules of war.''
       The British Foreign Ministry elected not to take any action 
     on behalf of British nationals--and chose not to publicize 
     the information. The United States concurred, with one 
     official commenting, ``Further pressure would be likely to 
     cause the maximum of resentment for the minimum of 
     advantage.'' Nonetheless, the Stikker-Yoshida letters and the 
     Burmese and Swiss agreements could all be used to make Japan, 
     under Article 26 of the San Francisco Treaty, offer similar 
     terms to the treaty's 47 signatories.
       The price Japan might have paid, in 1951 or later, as 
     atonement for its crimes would, presumably, have been high. 
     Perhaps Dulles's public policy was best. But it may also be 
     that Japan, and even the United States, are paying a 
     different sort of price for the amnesia and secrecy that both 
     countries chose after the war. An American group of former 
     prisoners of war, for example, has pledged to protest the 
     conferences and commemorative galas. These veterans are 
     pursuing financial relief for having been enslaved in wartime 
     by Japanese corporations, notably Mitsui and Mitsubishi. The 
     P.O.W.'s have already lost one case in California. The judge, 
     Vaughn Walker, decided that because of the success of the San 
     Francisco Peace Treaty and of Japan in becoming a strong ally 
     and partner of the United States, the waiver of individual 
     rights to pursue to private parties in Japan was justified. 
     This has been the argument in the dozens of suits brought in 
     Japan and a smaller number of cases in American courts. And 
     the argument has so far prevailed.
       Judge Walker did recognize that Japan's reparations deals 
     with some countries might present the opportunity for the 
     signatory nations of 1951 to bring their own claims, as 
     provided for in Article 26 of the treaty. However, ``the 
     question of enforcing Article 26,'' he wrote, is ``for the 
     United States, not the plaintiffs, to decide.''
       The failure to support war claims is one of the reasons 
     Japan is still struggling with other nations over its 
     history. The Germans--at least, West Germans--have engaged in 
     five decades of public debate about Hitler and the Holocaust. 
     And Germany and other European countries have accepted the 
     need, for their governments or their corporations, to pay 
     reparations for crimes very similar to those committed by 
     Japan and Japanese companies in the same period.
       The Japanese, however, have not witnessed the court cases 
     and public debates that would help shape a shared 
     understanding of history among Japanese and their neighbors. 
     Prime Minister Junichiro Koizumi's visit last month to the 
     Yasukuni shrine--which honors the souls of Japan's war dead, 
     including the souls of war criminals--and the relentless 
     efforts of some Japanese textbook writers to minimize Japan's 
     wartime aggression against Korea and China have further

[[Page H7949]]

     aggravated regional tension over Japan's official history. 
     Because Japan is so ill at ease with debate about its past, 
     other nations understandably distrust a more powerful Japan.
       What we know only today is that the State Department 
     arranged a deal that arguably allows Americans and others to 
     pursue personal claims against Japan or Japanese firms--but 
     tried to keep the agreement quiet. The State Department even 
     filed briefs in the California court against the former 
     American prisoners of war. Of course, it was the State 
     Department that once advanced the claims of Dutch citizens.
       Japan clearly deserves criticism for its inability to 
     debate its past openly. However, the United States, as 
     evidenced by the emerging controversy about the terms of the 
     San Francisco Treaty, has also played a role in Japan's 
     historical amnesia. By withholding documents on American 
     foreign policy, the United States has contributed to a 
     failure of memory that will continue to have consequences for 
     all of us.

  Mr. Speaker, I think it is critical that we address historical 
injustices and not sweep them under the rug. Brave men such as Dr. 
Lester Tenney, Frank Bigelow, George Cobb, just to name a few, are part 
of this Nation's greatest generation and deserve their day in court 
without interference from our own government.
  I am very sensitive to the fact that today more than ever the 
relationship between the U.S. and Japan is crucial in the international 
arena, and the U.S. and Japan have had and currently have strong 
friendships for these many decades. Nothing we do in this provision 
will undermine the friendship we now have with Japan. But we cannot 
have a true and honest relationship with Japan if we ignore the past.
  On a cautionary note, I would emphasize that anyone who would use 
this effort on behalf of our POWs to further an agenda that fosters 
anti-Asian sentiments and racism or Japan-bashing, or otherwise fails 
to distinguish between Japan's war criminals and Americans of Japanese 
ancestry, or Japan's current population, for that matter, should be 
severely admonished.
  Mr. Speaker, I urge all Members to support this important motion, and 
I yield back the balance of my time.
  Mr. ROHRABACHER. Mr. Speaker, I yield myself 4 minutes.
  Mr. Speaker, for those reading the Congressional Record or those 
listening to this debate, let us understand exactly what is going on 
here.
  Before the Second World War, America sent thousands of troops to the 
Philippines in order to defend that country and to deter war with 
Japan. During the war, of course, Japan attacked and occupied the 
Philippines and took tens of thousands of American troops into custody, 
and it was one of the most brutal incarcerations and treatment of 
prisoners in the history of humankind.
  In fact, it resulted in what was called the Bataan Death March, where 
these men, these Americans who had fought and been in our uniform, they 
were just marched for days and days without water and food, and 
thousands of them died along the way in the most brutal type of 
conditions.
  The United States has let those men down. We have told them if they 
held out in the Bataan Peninsula, that we would come and rescue them. 
We could not do it during the war because the Japanese had attacked 
Pearl Harbor and we did not have the military strength to do it, so we 
let them down.
  Then, after they were incarcerated, they were sent to work camps and 
slave labor camps and concentration camps in Japan and in Manchuria. 
They were worked like slaves where, again, many of them died under the 
worst possible conditions.
  As the war ended and we put together a peace treaty with Japan, we 
let them down again. In the treaty, we put some provisions that sounded 
like we were waiving their rights to sue those Japanese corporations 
that had tortured them and used them as slave labor. But there was a 
provision in the treaty that said if Japan signs another treaty with 
another country that grants more rights to those citizens than our 
citizens have in the treaty we signed, those rights automatically 
become American citizens' rights, as well.
  So the Japanese, guess what, have signed other treaties, and other 
people have been permitted to sue those Japanese corporations.
  Are we going to let these American heroes down again out of 
consideration of some huge Japanese corporations who do not want to 
apologize or to give them some just compensation? I do not think so. 
This body voted overwhelmingly for that, on the side with our great 
heroes, overwhelmingly, and the Senate voted for it in a heated debate.
  All we are saying today is we are demanding that our conferees not 
take out this provision behind closed doors. The gentleman from 
California (Mr. Cox) has a measure that suggests that our government 
pay $20,000 apiece. At the very least, if they are not going to give 
the right to sue, they should at least come up with the $50 million 
needed to pay our people off by ourselves.
  Mr. Speaker, the bottom line is, our American POWs deserve truth and 
justice. They deserve their day in court. They do not deserve just a 
stipend from us. We did let them down, but we were not the ones who 
tortured them and worked them as slave laborers. They deserve their day 
in court, they deserve an honest opinion, they deserve an apology from 
Japan, and yes, they deserve compensation from those Japanese companies 
that worked them as slave labor.
  These are our greatest heroes. This is the message to send to our 
defenders: We will never let you down again; and those people who march 
off to defend this country, whether it is against them, the terrorists, 
or wherever it is, they will know that the American people will not let 
them down because they have not let us down.
  Mr. Speaker, let me just suggest to the gentleman from California 
(Mr. Honda), he has worked so hard on this and I deeply admire him for 
this, because he could have taken some personal criticism from people 
who tried to make this into a racial issue.
  This is not a racial issue. I lived in Japan as a young man myself, 
and we think nothing but good thoughts and goodwill toward the people 
of Japan. Most of the people in Japan, as we know, had nothing to do 
with this, but those Japanese corporations that did, they deserve to be 
held accountable.
  The patriotism of the gentleman from California (Mr. Honda) and his 
stepping forward and his courage at a time like this are deeply 
appreciated because it helps define the issue in the way it should be. 
I thank the gentleman very much.
  Mr. SERRANO. Mr. Speaker, I yield myself such time as I may consume.
  Mr. Speaker, I think the gentleman should pay close attention to what 
the gentleman from Virginia (Chairman Wolf) said. We are not debating, 
perhaps, the merits of this issue. What we are concerned about is, on 
an appropriations bill, at this time that our country finds itself in, 
trying to rally support throughout the world, to bring up issues that 
may only serve to create difficulties.
  The gentleman from California (Mr. Honda) brought up a subject that 
was on my mind and that, in all honesty, I did not want to bring up. I 
can tell the Members that, as a Hispanic American, we are living 
through a time now where a lot of people in this country are taking the 
opportunity to be nervous about anyone who does not look or act like a 
``typical American'' because of what we are going through. So if one is 
from a group in this country that makes some folks nervous, people are 
paying too much attention to that and making people's lives a little 
uncomfortable.
  I am also concerned, as he was mentioning it, that some folks would 
take the opportunity of this discussion to begin to point fingers and 
be nervous about other groups.
  That is our concern. Our concern is not about the merits of the 
gentleman's presentation; that, we agree with and we understand that is 
a very serious concern.
  Mr. Speaker, I yield back the balance of my time.
  Mr. ROHRABACHER. Mr. Speaker, I yield myself such time as I may 
consume.
  Mr. Speaker, again, we need to take a look at what this is all about. 
The House and Senate voted overwhelmingly in the House, and yes, with a 
solid majority in the Senate, to make sure that the survivors of the 
Bataan Death March, our greatest American heroes, were able to sue 
those Japanese corporations that worked them as slave labor.
  After the war, there was a provision put in the treaty which 
prevented them from suing these Japanese corporations until the 
situation changed, which it

[[Page H7950]]

did when Japan had agreements with other countries that permitted those 
countries and the citizens from those countries to sue.
  So what we have now is a situation that even after the status of 
their case and their ability to sue had changed, our State Department 
became the biggest block to having these heroes from the Bataan Death 
March exercise their right, because our State Department would 
intercede in their court cases and undermine their right to sue in 
court.
  What this bill does and why it is necessary to put it on this 
appropriations bill is, it prevents the State Department from using its 
resources or its people to interfere with the rights of those American 
POWs and interfere with their right to take their case to court.
  That is why it was important for us to get it on this bill. This was 
the vehicle. It was written in a way that was ruled in order, so the 
provision was ruled in order by the Parliamentarian.
  This gives us an opportunity to bring justice to these men. They are 
dying every day. Every day there is another survivor of the Bataan 
Death March who passes away. All of us have family members who were in 
World War II, and we are seeing them pass away, at great pain to us. We 
need to make sure that when they die, they know their country has done 
right by them.
  That is what this is all about. Every day that we postpone this, 
another number of these men pass into eternity. Let us let them go 
knowing their country backed them up and appreciated what they did.
  Mr. Speaker, I yield back the balance of my time.
  The SPEAKER pro tempore (Mr. Otter). Without objection, the previous 
question is ordered on the motion to instruct.
  There was no objection.
  The SPEAKER pro tempore. The question is on the motion to instruct 
offered by the gentleman from California (Mr. Rohrabacher).
  The question was taken; and the Speaker pro tempore announced that 
the ayes appeared to have it.
  Mr. ROHRABACHER. Mr. Speaker, on that I demand the yeas and nays.
  The yeas and nays were ordered.
  The SPEAKER pro tempore. Pursuant to clause 8 of rule XX, further 
proceedings on this motion will be postponed.

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