[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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