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Congressional Record: September 10, 2001 (Senate)
Page S9209-S9246


 
DEPARTMENTS OF COMMERCE, JUSTICE, AND STATE, THE JUDICIARY, AND RELATED 
                   AGENCIES APPROPRIATIONS ACT, 2002

  The PRESIDING OFFICER. Under the previous order, the Senate will now 
proceed to the consideration of H.R. 2500, which the clerk will report.
  The legislative clerk read as follows:

       A bill (H.R. 2500) making appropriations for the 
     Departments of Commerce, Justice, and State, the Judiciary, 
     and related agencies for the fiscal year ending September 30, 
     2002, and for other purposes.

[...]

                           Amendment No. 1538

  Mr. SMITH of New Hampshire. Madam President, on behalf of Senators 
Harkin, Warner, Inhofe, Cochran, and myself, I send an amendment to the 
desk.
  The PRESIDING OFFICER. The clerk will report the amendment.
  The legislative clerk read as follows:

       The Senator from New Hampshire [Mr. Smith], for himself, 
     Mr. Harkin, Mr. Warner, Mr. Inhofe, and Mr. Cochran, proposes 
     an amendment numbered 1538.

  Mr. SMITH Of New Hampshire. Madam President, I ask unanimous consent 
reading of the amendment be dispensed with.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The amendment is as follows:

(Purpose: To provide protection to American Servicemen who were used in 
                      World War II as slave labor)

       At the appropriate place, add the following:
       Sec.  . 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 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.

  Mr. SMITH of New Hampshire. Madam President, there are many things 
that happen in war of which, when we look back, many of us on both 
sides of the aisle are not always proud. But I want to point out that 
sometimes things happen that must be corrected just because it is the 
right thing to do. This amendment I am offering is likely to be 
mischaracterized. There will be a lot of things said about what my 
amendment does not do. I want to make sure everybody understands what 
my amendment does. This concerns something that happened during World 
War II. I want to refer to it before I go to the actual context of the 
amendment.
  There is an article written by Peter Maas I want printed in the 
Record which is entitled ``They Should Have Their Day In Court.'' I ask 
unanimous consent a copy of that article be printed in the Record. It 
is a Parade magazine article.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

                 [From Parade Magazine, June 17, 2001]

                  They Should Have Their Day In Court

                            (By Peter Mass)

       Tears suddenly fill Lester Tenney's eyes. ``I'm sorry,'' he 
     says. ``It's been a long time, but it's still very hard 
     sometimes to talk about.'' All I can do is nod dumbly. Words 
     fail me as I listen to the horror he is describing.
       On April 9, 1942, Tenney, a 21-year-old Illinois National 
     Guardsman, was one of 12,000 American soldiers who 
     surrendered to the Japanese at the tip of Bataan Peninsula, 
     which juts into Manila Bay in the Philippines. Ill-equipped, 
     ill-trained, disease-ridden, they had fought ferociously for 
     nearly five months against overwhelming odds, with no 
     possibility of help, until they ran out of food, medical 
     supplies and ammunition.
       As prisoners of war, Tenney among them, they were taken to 
     a prison camp by the Japanese army on what became infamous as 
     the nine-day, 55-mile-long Bataan Death March, during which 
     1000 of them perished. The atrocities they suffered have to 
     some extent been revealed. But what happened afterward--when 
     they were forced into inhuman slave labor for some of Japan's 
     biggest corporations--remains largely unknown. These 
     corporations, many of which have become global giants, 
     include such familiar names as Mitsubishi, Mitsui, Kawasaki 
     and Nippon Steel.
       Through interviews with former POWs and examinations of 
     government records and court documents, I learned that in 
     1999 Tenney had filed a lawsuit for reparations in a 
     California state court. His suit was followed by a number of 
     others by veterans who had suffered a similar fate. The 
     Japanese corporations, instead of confronting their dark 
     past, went into deep denial. Represented by American law 
     firms, they maintained that, by treaty, they didn't owe 
     anybody anything--not even an apology.
       Surprisingly, the U.S. government stepped in on behalf of 
     the Japanese and not only had these lawsuits moved to federal 
     jurisdiction but also succeeded in getting them dismissed by 
     Vaughn R. Walker, a federal judge in the Northern District of 
     California. In his ruling, Judge Walker declared in essence 
     that the fact that we had won the war was enough of a payoff. 
     His exact words were ``The immeasurable bounty of life for 
     themselves [the POWs] and their posterity in a free society 
     services the debt.'' In applauding the judge's decision, an 
     attorney for Nippon Steel was quoted as saying, ``It's 
     definitely a correct ruling.'' She did not dwell on what 
     these men had gone through.
       What befell Lester Tenney as a POW was by no means unique. 
     He got an inkling of what was to come on that April day in 
     1942 when he surrendered and one of his captors smashed in 
     his nose with the butt end of a rifle. Forced to stumble 
     along a road of crushed rock and loose sand, the men--
     wracked with malaria, jaundice and dysentery--were given 
     no water. Occasionally, they would pass a well. Anyone who 
     paused to scoop up a handful of water was more likely than 
     not bayoneted or shot to death. The same fate awaited most 
     POWs who could no longer walk. ``If you stopped,'' Tenney 
     recalls, ``they killed you.''
       As Tenney staggered forward, he saw a Japanese officer 
     astride a horse, wielding a samurai sword and chortling as he 
     tried, often successfully, to decapitate POWs. During a rare 
     respite, one prisoner was so disoriented that he could not 
     get up. A rifle butt knocked him senseless. Two of his fellow 
     POWs, were ordered to dig a shallow trench, put him in it and 
     bury him while he was still alive. They refused. One of them 
     immediately had his head blown off with a pistol shot. Two 
     more POWs were then ordered to dig two trenches--one for the 
     dead POW, the other for the original prisoner, who had begun 
     to moan. Tenney heard him continue to moan as he was being 
     covered with dirt.
       Tenney was one of 500 POWs packed into a 50-by-50-foot hold 
     of a Japan-bound freighter. The overhead hatches were kept 
     closed except when buckets of rice and water were lowered 
     twice daily. Each morning, four POWs were allowed topside to 
     hoist up buckets of bodily wastes and the corpses of any-one 
     who had died during the night, which were tossed overboard.
       In Japan, the prisoners were sent to a coal mine about 35 
     miles from a city they had never heard of, called Nagasaki. 
     The mine was owned by the Mitsui conglomerate, which is today 
     one of the world's biggest corporations. You see the truck 
     containers it builds on every highway in America. The mine 
     was so dangerous that Japanese miners refused to work in it.
       The Geneva Convention of 1929 specified that the POWs of 
     any nation ``shall at all times be humanely treated and 
     protected'' and explicitly forbade forced labor. Japan, 
     however, never ratified the treaty. That was how it justified 
     putting POWs to work during World War II, freeing up able-
     bodied Japanese men for military service.
       Lester Tenney and his fellow POW slave laborers worked 12-
     hour shifts. Their diet, primarily rice, amounted to less 
     than 600 calories a day. This was subsequently reduced

[[Page S9220]]

     to about 400 calories. When he was taken prisoner, Tenney 
     weighed 185 pounds. When he was liberated in 1945, he weighed 
     97 pounds.
       Vicious beatings by Mitsui overseers at the mine were 
     constant. Tenney's worst moment came when two overseers 
     decided he wasn't working fast enough and went at him with a 
     pickax and a shovel. His nose was broken again. So was his 
     left shoulder. The business end of the ax pierced his side, 
     just missing his hip bone but causing enough internal damage 
     to leave him with a permanent limp.
       Frank Bigelow was a Navy seaman on the island fortress of 
     Corregodor in Manila Bay. It was lost about a month after 
     Bataan fell, so Bigelow escaped the Death March. But he ended 
     up in the same Mitsui coal mine as Tenney. He was in the 
     deepest hard-rock part of the mine when a boulder toppled 
     onto his leg, snapping both the tibia and fibula bones 6 
     inches below the knee. A POW Army doctor, Thomas Hewlett, was 
     refused plaster of Paris for a cast. Hewlett tried to 
     construct a makeshift splint, but it didn't work. Bigelow's 
     leg began to swell and become putrid. Tissue-destroying 
     gangrene had set in.
       With four men holding Bigelow down, Hewlett performed an 
     amputation without anesthesia, using a razor and a hacksaw 
     blade. Bigelow recalls: ``I said, `Doc, do you have any 
     whiskey you could give me?' and he said, `If I had any. I'd 
     be drinking it myself.' '' To keep the gangrenous toxins from 
     spreading, Hewlett packed the amputation with one item 
     readily available in the prison camp--maggots. Bigelow still 
     can't comprehend how he withstood the excruciating pain. 
     ``You don't know what you can do 'till you do it,'' he says.
       Another seaman, George Cobb, was aboard the submarine 
     Sealion in Manila Bay when it was sunk in an air attack three 
     days after Pearl Harbor. Cobb was shipped to a copper mine in 
     northern Japan owned by the Mitsubishi corporate empire. Clad 
     only in gunnysacklike garments, the POWs had to trudge to the 
     mine through 10-foot-snowdrifts in bitter winter cold. Of 10 
     captured Sealion crewmen. Cobb is the sole survivor. ``I try 
     not to remember anything,'' he says. ``I want it to be a 
     four-year blank.''
       One day in August 1945, Lester Tenney and his fellow POWs 
     saw a huge, mushroom-shaped cloud billowing from Nagasaki. 
     None of them, of course, knew it was the atom bomb that would 
     end the war. They found out on Aug. 15 that Japan has 
     surrendered when they were given Red Cross food packages for 
     the first time during their long captivity. They then found a 
     nearby warehouse crammed with similar packages and medical 
     supplies that had never been distributed. They also would 
     learn that the Japanese high command had a master plan to 
     exterminate all the POW slave laborers, presumably to cover 
     up their horrific ordeal.
       After the POWs returned home, they were given U.S. 
     government forms to sign that bound them not to speak 
     publicly about what had been done to them. America was in a 
     geopolitical battle with the Soviet Union and, later, Red 
     China for the hearts and minds of the postwar Japanese and 
     did not want to do anything that might prove offensive to our 
     recent enemy. The State Department's chief policy adviser to 
     Gen. Douglas MacArthur, who headed up the occupation of 
     Japan, rhetorically asked: ``Is it believed that a Communist 
     Japan is in the best interests of the United States?''
       But Tenney, possibly because of his extended 
     hospitalization, never got one of those forms. In 1946 he 
     wrote a letter to the State Department citing his experience 
     and requesting guidance on how to mount claims against those 
     who had beaten, tortured and enslaved him. The State 
     Department replied that it was looking into the matter and 
     advised him not to retain an attorney.
       Hearing nothing further, Tenney, a high school dropout, 
     decided to get on with his life. He eventually earned a Ph.D. 
     in finance and taught at both San Diego State University and 
     Arizona State University. Meanwhile, the U.S. and Japan 
     finalized a peace treaty in 1951.
       Two years ago, Tenney read that the U.S. government not 
     only had successfully worked on behalf of Holocaust victims 
     in Europe but also was brokering an agreement with Germany to 
     compensate those forced into slave labor during the Nazi 
     regime. It was then that he filed his own lawsuit against 
     Mitsui.
       The U.S. State Department and Justice Department intervened 
     for the Japanses corporate defendants on the basis of the 
     1951 treaty, a clause of which purports to waive all future 
     restitution claims. But the treaty contains another clause, 
     which the U.S. government to date has chosen to ignore, 
     stating that all bets would be off if other nations got the 
     Japanese to agree to more favorable terms than our treaty. 
     Eleven nations--including the then Soviet Union, Vietnam and 
     the Philippines--got such terms.
       There is still hope for the surviving POWs, their widows 
     and heirs. Last March, two California Congressmen, Republican 
     Dana Rohrabacher and Democrat Mike Honda, co-sponsored a bill 
     (H.R. 1198) calling for justice for the POWs.
       Notably, Honda is a Japanese-American who, as an infant, 
     was interned by the U.S. with his mother and father during 
     World War II. The U.S. has since paid each surviving internee 
     $20,000 in restitution and, perhaps more important, 
     acknowledged that the internment was wrong. ``I believe,'' 
     Honda told me, ``that these POWs not only fought for their 
     country but survived, and now they are trying to survive our 
     judicial system. They should have their day in court.''

  Mr. SMITH of New Hampshire. Madam President, I think most of us are 
familiar with or have heard discussions about the Bataan Death March. 
That was a terrible experience for a lot of American GIs. But I think 
what happened after the Bataan Death March, to some of those same 
people, and others, is particularly outrageous.
  I want to refer to a couple of paragraphs from this article because 
it certainly sums up why they should have their day in court and what 
exactly we are talking about with regard to these American GIs and 
POWs. Let me read a couple of paragraphs.
  On April 9, 1942, a gentleman by the name of Lester Tenney, one of 
12,000 POWs, American soldiers, surrendered to the Japanese at the tip 
of Bataan Peninsula. They were taken to a prison camp by the Japanese 
Army on what became infamous as the 9-day, 55-mile-long Bataan Death 
March during which 1,000 of them perished. I will not go into all of 
the details, but a few details will show why a day in court is 
justified and is important. The atrocities they suffered--some have 
been revealed; some have not--and what happened afterward, where they 
were forced into slave labor camps for some of Japan's biggest 
corporations, remains largely unknown. Frankly, until I got involved in 
this a few months ago, I didn't know some of this had happened.
  Many of these corporations have become global giants today, including 
some names that would certainly get one's attention: Mitsubishi, 
Matsui, Kawasaki, and Nippon, to name just a few.
  Through interviews with former POWs, we have come to learn a lot. But 
to my amazement, the United States Government stepped in on behalf of 
the Japanese and not only had lawsuits thrown out to get reparations 
for what happened--they moved to Federal jurisdiction--but also 
succeeded in getting them dismissed. I found that particularly 
outrageous. This is all pointed out by Mr. Maas in his article.
  I want to quote one paragraph as to what happened during that march 
and then go into a little bit about what happened after the Bataan 
Death March:
       What befell Lester Tenney as a POW was by no means unique. 
     He got an inkling of what was to come on that April day in 
     1942 when he surrendered and one of his captors smashed his 
     nose with the butt end of a rifle. Forced to stumble along a 
     road of crushed rock and loose sand, the men--wracked with 
     malaria, jaundice and dysentery--were given no water. 
     Occasionally, they would pass a well. Anyone who paused to 
     scoop up a handful of water was more likely than not 
     bayoneted or shot to death. The same fate awaited most POWs 
     who could no longer walk. ``If you stopped,'' Tenney recalls, 
     ``they killed you.''
       As Tenney staggered forward, he saw a Japanese officer 
     astride a horse, wielding a samurai sword and chortling as he 
     tried, often successfully, to decapitate POWs. During a rare 
     respite, one prisoner was so disoriented that he could not 
     get up. A rifle butt knocked him senseless. Two of his fellow 
     POWs were ordered to dig a shallow trench, put him in it and 
     bury him while he was still alive. They refused. One of them 
     immediately had his head blown off with a pistol shot. Two 
     more POWs were then ordered to dig two trenches--one for the 
     dead POW, the other for the original prisoner, who had begun 
     to moan. Tenney heard him continue to moan as he was being 
     covered with dirt.
       Tenney was one of 500 POWs packed into a 50-by-50-foot hold 
     of a Japan-bound freighter. The overhead hatches were kept 
     closed except when buckets of rice and water were lowered 
     twice daily. Each morning, four POWs were allowed topside to 
     hoist up buckets of bodily wastes and the corpses of anyone 
     who had died during the night. . . .

  This is what happened to them after the Bataan Death March. When they 
survived that, they were put on these freighters and taken into these 
coal mines and basically made slaves.
  Vicious beatings by Mitsui overseers at the mine were constant. 
Tenney's worst moment came when two overseers decided he wasn't working 
fast enough and went at him with a pickax and a shovel. His nose was 
broken again. So was his left shoulder. The business end of the ax 
pierced his side, just missing his hip bone but causing enough internal 
damage to leave him with a permanent limp.
  Most of us are familiar enough with stories that came out of the 
Bataan Death March to know what happened there. But to think of 
surviving that 55-mile trek over a 9-day period, basically being 
bayonetted if you helped a

[[Page S9221]]

friend who fell down or beaten or whatever, to survive all of that and 
then be placed into camps, slave labor camps on behalf of these 
corporations by these corporations.
  I want to read the amendment I am offering because it is important to 
understand what the content is. All it says is:

       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 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 a slave or forced labor.

  All this says is that no funds will be used to block the right of 
these folks to go to court. It doesn't provide any money to anybody. It 
doesn't assume that anybody is going to win this case. It doesn't do 
any of that. We are probably going to hear that. That is not the case.
  All it says is that the State Department stays out of it, the Justice 
Department stays out of it, and these folks are allowed to have their 
day in court.
  Let me explain why I introduced this amendment. As I said, to go 
through what they went through in the Bataan Death March, and then to 
be put into slave camps by Japanese companies was atrocious. I want to 
make clear what I mean by Japanese corporations. War is a terrible 
reality. I have said that. What happens during war is tragic, and 
sometimes it just happens. There is not a heck of a lot you can do 
about it. What happened in World War II at the hands of these private 
Japanese companies is especially tragic because there has never been 
anything done about it. We are not talking about the Japanese 
Government torturing American prisoners. I want to make that clear. The 
war is over. A treaty was signed. Whatever happened, happened. That is 
behind us.
  What we are talking about is private Japanese corporations, many of 
which exist today, corporations that Americans know and trust, who used 
Americans as slaves, who should have been offered protection under the 
Geneva Convention--not the Japanese Government, please understand, the 
Japanese corporations.
  Out of the 36,000 U.S. soldiers who were captured by the Japanese, 
5,300 roughly are alive today. They are not getting any younger.
  Several of those veterans live in New Hampshire. I was astounded to 
find out that eight or nine of them do actually live in New Hampshire. 
I am sure they can be found in every State in the Union. I met with 
some of those veterans during the August recess. It was a very 
emotional meeting, but the interesting thing about it, there was no 
anger presented to me about what happened in the war. The anger and 
frustration that was expressed to me was what happened with these 
private companies that went beyond what happened in the war.
  Arthur Reynolds from Kingston, NH, spent 3\1/2\ years as a POW, 2 
years of which he spent shoveling coal under unspeakable conditions for 
a private Japanese company. He lost 100 pounds in captivity and weighed 
less than 100 pounds when he was liberated. He survived on barely 500 
calories a day, suffered countless beatings. Now he is being told by 
his Government--not the Japanese Government, the United States 
Government--that they are on the side of the Japanese corporation that 
enslaved him.
  I say to my colleagues, that is just flat out wrong. Whatever happens 
in the courtroom happens in the courtroom. That is why we have lawyers 
on both sides. But what we are talking about here is the right to sue.
  That is what we are talking about--not the right to have a victory 
when you sue, just the right to sue. However you feel, I have some very 
strong feelings that they should win this case and many Americans--
most, I hope--also do. We are not asking for a victory, as much as I 
would like to see it. We are asking for the right to sue.
  Arthur is 85 years old. How much longer is Arthur going to live? 
Manford Dusett from Seabrook, NH, spent 3\1/2\ years as a POW. Like 
Arthur Reynolds, he is a survivor of the Bataan Death March and the so 
called hell ships that transported the prisoners to Japan. He was 
forced to work in a coal mine for 10 to 12 hours a day, with almost no 
food and under the worst imaginable conditions. He suffered a broken 
leg in the mine. Frankly, he is lucky to be alive today. He was able to 
get just enough medical treatment to survive. Manford, as his 
colleague, weighed less than 100 pounds when he was released. There 
were others from New Hampshire. This gentleman in the picture here is 
Roland Stickney from Lancaster. I met with him. There are others from 
New Hampshire: Roland Gagnon from Nashua, Roland Stickney from 
Lancaster, Arthur Locke from Hookset, Wesley Wells from Hillsburo, Bill 
Onufrey from Freedom, Ernest Ouellette of Boscawen, and I am sure I 
missed a few. I tried to find everybody.
  My colleagues who might be familiar with the plight of these 
veterans, I have submitted for the Record the Parade magazine article. 
It is important you read that to understand not only what happened to 
them in the Bataan Death March but, after that, how they survived when 
they were put on those ships. Imagine being taken in those ships to the 
coal mines and other places where they were reported to work as slaves.
  These veterans are seeking compensation through our legal system--
that is all they are doing--from the Japanese corporations that used 
them as slave laborers. That is all they are doing. Yet, believe it or 
not, our Government, the U.S. Government, is trying to stop that. They 
are opposing veterans' efforts to seek proper redress through our 
judicial system. Is that constitutional?
  Should our Government be stopping a private citizen from seeking his 
or her day in court for a grievance? I don't think so. I think it is 
wrong. I am, frankly, ashamed it is happening, which is why I am on the 
floor of the Senate. I am not here to redebate the war, refight the 
war, or bring up and point out the atrocities of the war. That is not 
why I am here. I don't think the veterans would want me to do that. The 
State Department facilitated, ironically, a recent agreement between 
German companies and their victims who were used as slave laborers 
during World War II. I commend them for that. That was the right thing 
to do.
  Last year this body passed S. Con. Res. 158, introduced by my 
colleague and good friend, Senator Hatch, and urged the Secretary of 
State to facilitate discussions between these veterans and the guilty 
corporations. But the State Department chose to ignore this 
recommendation, unlike what they did in the German case. When it comes 
to the Japanese case, they chose to ignore this. In the case of the 
Japanese companies, the State and Justice Departments argued--listen 
carefully--that the private claims of the veterans were waived by the 
1951 peace treaty with Japan. I will repeat that because it is very 
important to the whole discussion of this case. The State and Justice 
Departments argued that the private claims of veterans were waived by 
the 1951 peace treaty with Japan. I am going to say, with the greatest 
respect, that that is flatout wrong. Their rights were not waived. Why 
do they maintain this position then?
  Let me read from the 1951 peace treaty, article 14(b). Let me read 
from article 14(b) in the 1951 peace treaty:
       [E]xcept as otherwise provided in the present Treaty, the 
     Allied Powers waive all reparation claims of the Allied 
     Powers, other claims of the Allied Powers and their nationals 
     arising out of any actions taken by Japan and its nationals 
     in the course of the prosecution of the war and claims of the 
     Allied Powers for direct military costs of occupation.

  If I had only read article 14(b), which I just read, I might have 
agreed--and probably would have--that the claims of these veterans were 
waived by the treaty because that is what it sounds like. But the issue 
is a lot deeper than that. So if someone is going to read article 14(b) 
on the Senate floor and say, therefore, these claims are waived, then 
we have to go beyond that. Let me go beyond that:

       Article 14(b) does not waive private claims against private 
     Japanese companies.

  Don't be mistaken. The State Department knew this in 1951 when the 
treaty was signed. In fact, John Foster Dulles, the chief negotiator 
for the treaty--prior to his being Secretary of State--orchestrated a 
confidential exchange of diplomatic notes between the Japanese and the 
Dutch to address this very issue in 14(b). In short, the Dutch didn't 
want any part of 14(b). They refused to waive the private claims of

[[Page S9222]]

their nationals because, as the United States--remember the fifth 
amendment?--the Dutch were constitutionally barred from doing so 
without due process of law. So they had a constitutional problem like 
we have. They can't waive the private claims. Fortunately, the 
diplomatic notes--and this is what burns me up, frankly, if I may say 
it as nicely as I can. We find so much information classified in 
Government. It is the old cover-your-you-know-what routine. That is why 
we keep it classified. There are legitimate reasons to classify 
materials, but 50 years later we finally get the truth declassified. 
All these guys, for all these years, were being denied their day in 
court when the truth was buried in the classified files. It is just 
absolutely unbelievable. I am not saying I am the first to find it. I 
know lawyers have found it for the others, for those doing this, those 
who are suing. But let me go right at it.
  What did those diplomatic notes say? We have it right here. This is 
September 7, 1951, just declassified in 2000, 50 years later, after all 
these guys have fought all these years trying to get reparations, and 
most of them have died. Only 5,300 remain out of 12,000. Here we are. I 
will read this letter:

       Dear Mr. Prime Minister,
       I beg to draw the attention of Your Excellency to the 
     paragraph in the address to President and Delegates of the 
     Peace Conference I made yesterday, reading as follows:
       ``Some question has arisen as to the interpretation of the 
     reference in article 14(b) to ``claims of Allied Powers and 
     their nationals''--

  It sounded as if we waived everybody's rights--

     which the Allied Powers agree to waive.
       It is my Government's view that article 14(b) as a matter 
     of correct interpretation does not involve the expropriation 
     by each Allied Government of the private claims of its 
     national so that after the Treaty comes into force these 
     claims will be non-existent.
       The question is important because some Governments, 
     including my own, are under certain limitations of 
     constitutional and other governing laws as to confiscating or 
     expropriating private property of their nationals.

  Signed by the Prime Minister of Japan.
  This one is signed by Dirk Stikker, Minister of Foreign Affairs of 
the Netherlands. A copy was sent to the Japanese Government. It says, 
in part:

       Also, there are certain types of private claims by allied 
     nationals, which we would assume the Japanese Government 
     might want voluntarily to deal with in its own way as a 
     matter of good conscience or of enlightened expediency . . . 
     .

  And so forth.
  To get to the fourth chart, this is from the Prime Minister of Japan 
to the Dutch, and I will read this portion outlined:

       With regard to the question mentioned in Your Excellency's 
     note, I have the honor to state as follows:
       In view of the constitutional legal limitations referred to 
     by the Government of the Netherlands, 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 nonexistence.

  The Japanese Government is saying that:

       However, the Japanese Government points out that, under the 
     Treaty, Allied nationals will not be able to obtain 
     satisfaction regarding such claims, although, as the 
     Netherlands Government suggests, there are certain types of 
     private claims by Allied nationals which the Japanese 
     Government might wish to voluntarily deal with.

  These two documents remained classified for 50 years while these guys 
tried for 50 years to get their day in court. Our own Government would 
not give these documents to our own soldiers. What an outrage that is. 
That is an absolute outrage.
  The 1951 peace treaty in no way obligates the Government of Japan to 
pay any private claims. I admit that. It does not obligate them to do 
anything. We are not talking about the Government of Japan.
  At the same time, the treaty does not waive private claims against 
private Japanese companies, as the State and Justice Departments would 
like you to believe, and it is right there in declassified documents 
finally after 50 years.
  How is an exchange of diplomatic notes between the Government of 
Japan and the Government of the Netherlands relevant to the United 
States and its citizens? Good question. The answer lies in article 26 
of the peace treaty, and this is what article 26 says:

       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 of the 
     present treaty.

  In other words, if they make a deal with the Netherlands, it does not 
involve anybody else who has the same constitutional problems. This 
occurred in an exchange of diplomatic notes. Japan made it clear the 
treaty did not waive the private claims of Dutch citizens, and article 
26 automatically extends this to American citizens. Pure and simple. 
End of story.
  This would have been resolved 20 or 30 years ago if somebody had just 
declassified these documents. If somebody can please tell me why these 
documents were classified for 50 years because of national security, I 
will be happy to say we should classify them again.

  The Departments of State and Justice are on the side of Japanese 
corporations. That is what this amendment is about: Are you on the side 
of our Justice Department and State Department that are on the side of 
the Japanese corporations that did this to our Americans, against the 
intent of that treaty, or are you on the side of the American GIs and 
POWs who for 50 years have been denied their day in court?
  That is it. There is nothing complicated about my colleagues' vote on 
this one. That is it: You are either for the American GIs who served 
and were prisoners and were slaves or you are on the side of the 
Japanese corporations that put them in slave camps and your own Justice 
Department and State Department which kept the documents classified for 
50 years so they could not get their day in court. Whose side are you 
on? That is it. There is nothing complicated about it.
  What has happened is wrong. It goes against the historical record, 
and my amendment simply prevents the unnecessary interference of the 
Departments of State and Justice in this case. I repeat, because it is 
very important to understand, I do not predetermine the outcome with my 
amendment.
  Before I yield the floor, I want to repeat what the amendment says so 
that everybody understands it:

       None of the funds made available in this act--

  The underlying legislation, the Departments of Commerce, Justice, 
State--

       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 any court opposing a civil action . . . .

  In other words, we do not want Justice and State to come in now and 
oppose the action of this court, of these men, mostly men. Why? Because 
for 50 years these documents were classified and they did not even have 
the opportunity to do it. We did them a disservice. These are men who 
fought and suffered horribly in a terrible war.
  I urge my colleagues to please read my amendment when you come down 
to the Chamber to vote to give these men--brave men, heroes--the 
opportunity to go to court under the terms of the 1951 treaty, and give 
them an opportunity to be heard. That is all we are doing.
  I also want to point out in all that--I did not say it at the time, 
but to give a little bit more credence to the argument, guess who 
drafted the memos we are talking about between the Dutch and the 
Japanese. Who was involved in that draft? None other than John Foster 
Dulles. That is the great tragedy of this. John Foster Dulles himself 
participated in the draft of those documents. We have all the evidence 
to that as well.
  I hope my colleagues in the Senate will say to Justice and State: 
Step aside; it is the right thing to do. You kept this secret all these 
years by classifying documents and did not allow our guys a day in 
court. Step aside; do the decent thing and let these men go to court, 
as it is determined under the treaty we now know, and allow them to 
sue. If they lose, they lose. If they win, they win, but just let them 
go to court.
  Madam President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Iowa.

[[Page S9223]]

  Mr. HARKIN. Madam President, I thank my colleague and friend, the 
Senator from New Hampshire, Mr. Smith, for proposing this important 
legislation and for offering this amendment today, which I am proud to 
cosponsor.
  Before I get into the need for the amendment and perhaps repeat some 
of the facts that the Senator from New Hampshire brought up, let me 
take a minute to summarize what happened in the Philippines and Japan 
between 1942 and 1945.
  On March 11, 1942, Gen. Douglas MacArthur reluctantly left behind 
thousands of American troops in the Philippines. Arriving in Melbourne, 
Australia, he pledged, of course, those famous words: ``I shall 
return.''
  General MacArthur did return. He liberated the Philippines and rolled 
back the forces of imperial Japan. Sadly, MacArthur was too late for 
the hundreds who had died in the infamous Bataan Death March. In that 
3-day forced march, American troops were denied food and water, beaten 
and bayoneted if they fell to the ground. As many as 700 Americans lost 
their lives in those 3 days.
  It also was too late for the thousands who lost their lives on the 
so-called hell ships that transported surviving POWs to Japan and 
Japanese-occupied territories. Packed into cargo holds, American POWs 
struggled for air, as temperatures reached 125 degrees. Almost 4,000 
American servicemen would lose their lives just on these journeys in 
these cargo ships.
  Those who survived Bataan and the hell ships would find little rest 
as Japanese POWs. For more than 3 years, they would serve as slave 
labor for private Japanese companies, the same companies whose names we 
revere today and whose products we buy daily, weekly, and monthly in 
the United States: Matsui, Mitsubishi, Nippon, and others.
  Throughout the war, Americans worked in the mines of these companies, 
their factories, their shipyards, their steel mills. They labored every 
day for 10 hours or more a day in dangerous working conditions. Some of 
those who went into the mines were sent into the mines because it was 
too dangerous for Japanese to work in them. So they sent the American 
POWs into the coal mines to dig the coal. They were beaten on a regular 
basis.
  Frank Exline of Pleasant Hill, IA, was one of those POWs. A Navy 
seaman who was captured April 9, 1942, Frank spent 39 months working 
for Japanese companies in Osaka, Japan. He began on the docks unloading 
rock salt and keg iron. Later, he found himself toiling in the rice 
fields. He was fed two rice bowls a day and given very little water.
  During his time with these Japanese companies, Frank was tortured and 
beaten, once for stealing a potato. Upon being caught, the potato was 
shoved in his mouth as he was forced to stand at rigid attention 
directly in the sun for 45 minutes. If he moved or even blinked, he was 
hit in the face.
  Then there is Frank Cardamon of Des Moines, a marine who was 
stationed in China. His ship was sent back to the U.S. to get more 
supplies. When it stopped in the Philippines, of course, the ship was 
attacked and captured. Frank was captured at Corregidor and sent to 
Japan to work in an auto parts factory and then in the lead mines.
  He was never paid for his work, fed two cups of rice a day, and went 
from 160 pounds to 68 pounds in his 3 years of capture. These men tell 
me they survived on sheer will, not on the food.
  Last month in Iowa, as Senator Smith did in New Hampshire, I met with 
three other POWs and their families on this issue. I met with William 
McFall of Des Moines, who received a Purple Heart and numerous other 
medals. He worked in the coal mines and told me about how dangerous it 
was working in the coal mines.
  I met with the sisters of Jon Hood, a Navy seaman forced to work on 
the shipping docks. I met with Gene Henderson of Des Moines. He 
actually was not in the military. He was a civilian employee at the 
Pacific Naval Air Base on Wake Island. Gene Henderson was captured and 
sent to China to work on Japanese artillery ranges before he was sent 
to work in the iron ore pits in Japan.
  Although she could not attend the meeting I held, Margaret Baker of 
Oelwin, IA, wrote me a letter in June about her late husband Charles 
Baker. Charles Baker, who was an Army private, survived the Bataan 
Death March before he was sent to work in the mines in Japan for 3 
years. He died at age 54 in 1973. In her letter she wrote:

       He suffered many injuries and hunger on the Death March 
     during his imprisonment. We feel that his early death was 
     caused by the suffering that he endured while working long 
     hours in the mines, without food, rest and clothing.

  I speak for this amendment and support it on behalf of these veterans 
and their families. These men and 700 of their fellow prisoners of war 
and their families are now seeking long delayed justice. They have gone 
to court to ask for compensation from the Japanese companies that used 
them as slave laborers during the war.
  They deserve their day in court. Yet as the Senator from New 
Hampshire has pointed out, our own State Department has come down on 
the side of the Japanese companies, not our POWs. The State Department 
has taken the view that the peace treaty signed in 1951 prohibits 
reparations from private Japanese companies for survivors such as Frank 
Cardamon or Gene Henderson. In fact, State Department officials have 
submitted statements to the Court in support of the view of the 
Japanese companies. I do not think that is right. I do not think it is 
fair. That is why I am a cosponsor of Senator Smith's amendment that 
would stop the State Department and the Department of Justice from 
using taxpayer dollars to defend the interests of these Japanese 
companies.
  I might add, the House passed this amendment in July by an 
overwhelming 393-to-33 vote, an amendment stating the State Department 
should not be allowed to use our tax dollars to fight against our 
American POWs in court. Now again, as Senator Smith said, I am sure 
while we both believe the Japanese companies ought to pay reparations 
and ought to pay these POWs for the slave labor they provided during 
the war, that is not what our amendment says. Our amendment simply says 
let them go to court; let them make their case; let the Japanese 
companies come in and defend themselves, if they will.
  That is all we are asking. We are not preconditioning the outcome. We 
are not setting up any kind of a standard by which they will be held in 
one view over the Japanese companies. We are simply saying let them 
have their day in court. We are saying our State Department should not 
be intervening in State or Federal courts against these POWs. Let the 
POWs have their own arguments and their day in court, and let us keep 
our State Department out of it.

  These men courageously served our country. They endured unspeakable, 
wretched conditions as slave laborers for these Japanese companies. 
MacArthur was forced to leave them behind in 1942. In 2001, let us not 
leave them behind one more time. Let us give them their day in court.
  My colleague has given all of the arguments. He has outlined what the 
treaty said in article 14(b). He laid out very cogently and clearly the 
side agreements that had been done by John Foster Dulles, at that time 
the chief negotiator for the allied nations, whose letters and side 
agreements were not brought to light until April of last year. So for 
all of these years these POWs and their lawyers really perhaps did not 
have a leg to stand on because of this treaty, but then after April of 
2000 we found out the Japanese had made an agreement with the 
Government of the Netherlands to allow the private citizens of the 
Netherlands to pursue their private claims.
  Then article 26 of the 1951 peace treaty sort of trumps article 
14(b). Now article 14(b), as Senator Smith pointed out, basically said: 
The allied powers waive all reparation 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.
  On its face, that ends it. That ends it right there. For all of these 
years, that is what sort of the basis in court was. Article 26 did 
state, 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

[[Page S9224]]

same advantages shall be extended to the parties to the present treaty.
  We did not know until April 2000 that the Japanese Government had 
indeed made a war claims settlement with another state granting greater 
advantages to the nationals of that state, and that was, of course, the 
Dutch citizens because the diplomatic note to the Japanese Prime 
Minister from the Dutch Foreign Minister--again which was read by the 
Senator from New Hampshire, and I just repeat it for emphasis sake--it 
said that: It is my Government's view--that is, the Government's view 
of the Government of the Netherlands--that article 14(b), as a matter 
of correct interpretation, does not involve the expropriation by each 
allied government of the private claims of its nationals. So that after 
the treaty comes into force, these claims will be nonexistent.
  In other words, the Dutch Minister said: It is my Government's view 
that 14(b) does not prohibit private claims of the nationals of the 
Netherlands.
  The Japanese Prime Minister responded:

       In view of the constitutional legal limitations referred to 
     by the government of the Netherlands, 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 nonexistent.

  Taken out of international State Department legalese, what that 
basically says is the Government of Japan has said to the Government of 
Netherlands that just signing this treaty does not mean you take away 
from your citizens their right of private claims against the Government 
of Japan or the nationals of the nation of Japan.
  This is the document we did not know about until April of 2000. So we 
know that article 26 of the treaty of 1951 now comes into full force 
and play, and because Japan made a war claims settlement with the 
Netherlands that gives them greater advantages than those provided in 
the present treaty, those same advantages should be extended to all of 
the parties of the present treaty. Therefore, we believe very strongly 
that our private citizens, our POWs who worked as slave laborers, have 
every right to pursue their claims in whatever courts they can find to 
take up those claims.
  Unfortunately, the Departments of State and Justice are not on the 
side of our POWs. They convinced a Federal judge to dismiss these 
lawsuits. This is fundamentally unfair. This amendment would correct 
this injustice. I do not know whether or not in a court of law these 
POWs will be able to prevail. I don't know all of the legal 
implications. I do know they should have their day in court to argue 
their claims against these private companies. It is not as if 
Mitsubishi, Matsui, and Nippon are bankrupt. These are multinational 
corporations. They are big.

  As the Senator from New Hampshire said, our POWs are getting older 
and not that many remain. It seems to me this is the fair and right 
thing to do, to make final these reparations, and without interference 
from the executive branch of the Government.
  I am constrained to say I hope no one interprets this amendment or 
our support for this amendment as somehow trying to bring up again 
World War II or bringing up in a way that would be detrimental to the 
present Government of Japan the actions taken during World War II. That 
is not our intention at all. We all recognize the Government of Japan 
is one of the great, strong democracies of our present world. They have 
a system of free government and free enterprise in Japan that is the 
envy of many places in the world.
  For a year and a half I was privileged to serve my country as a Navy 
pilot stationed at Atsugi airbase in Japan in the mid to late 1960's. I 
spent a year and a half living on the Japanese economy. I worked every 
day with men and women who worked for the Nippon Aircraft Corporation. 
I was one of their test pilots. I worked with them every day. During my 
year and a half there, I can honestly say I became an admirer of the 
Japanese people and an admirer of many of the things they have done 
after World War II. I don't for one minute admire anything they did 
during World War II, what the warlords did, what they did to lead that 
nation into World War II. The atrocities they committed during World 
War II are a definite blot on their history.
  Today, the Japanese Government stands as a beacon of democracy and 
representative government. The Japanese people, I think, have expunged 
themselves of this terrible legacy of World War II. I am saying this 
because I don't want anyone to interpret that we are using this 
amendment or offering this amendment as if making a detrimental 
statement about the present Government of Japan. That is not so.
  We are saying we believe in the rule of law, just as the Japanese 
Government, since World War II, believes in the rule of law. This rule 
of law we adhere to, that we believe in so strongly, says that people 
who are wronged, people who believe they have a claim against another 
person or a government, ought to have their day in court. That is all 
we are saying. Let them make their case. If the Japanese companies want 
to defend themselves and say they have already paid reparations, they 
have already paid in full for all of this, let them come to court and 
show us. That is all we are saying.
  The administration argues this amendment violates our Constitution 
regarding the separation of powers. This type of restriction we are now 
placing on appropriations by the participation of the Attorney General 
in private litigation has been enacted in Congress before and has been 
accepted and complied with by the executive branch. There was an 
example offered by Warren Rudman, another Senator from New Hampshire, 
passed in 1983 that barred the Justice Department from intervening in 
certain types of private antitrust lawsuits. We have done that many, 
many times in the past. I don't think the argument that somehow this 
violates our separation of powers holds any water.
  I thank my colleague from New Hampshire for his leadership on this 
issue, for sticking up for our POWs and for offering this amendment. I 
hope it is passed overwhelmingly so we can coordinate with the House, 
which passed it overwhelmingly, and permit these lawsuits to move ahead 
and give POWs their long overdue day in court. They may have been left 
behind in 1942 by General MacArthur; let's not leave them behind one 
more time.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Bayh). The Senator from Hawaii.
  Mr. INOUYE. Mr. President, two of my most distinguished colleagues, 
the Senator from New Hampshire, Mr. Smith, and the Senator from Iowa, 
Mr. Harkin, have offered this amendment to the measure before the 
Senate. I will share my thoughts on this amendment and the reasons why 
I oppose it.
  While listening to my colleagues' speak, I was reminded that a few 
days ago I was called upon by one of my dear friends in the Senate, 
advising me that I should not be involved in this matter; that it would 
be, without question, an amendment of high emotions, and that it would 
revive memories of a distant past, black memories.
  Like some of my colleagues, I am old enough to recall those dark days 
in our history. Like some Members, I was involved in that ancient war, 
World War II. Sometimes I have my personal nightmares.
  There is no question that none of us here would ever condone any of 
the actions taken by the Japanese in the Bataan death march. Being of 
Japanese ancestry becomes a rather personal matter. Who knows, one of 
my cousins could have been the one with the bayonet and rifle. I have 
no way of knowing. But those men who mistreated our men were of the 
same ancestry.
  Therefore, I stand before the Senate not with any great pleasure but 
because I feel it must be done. Two days ago, officials of our Nation 
and the high officials of Japan gathered in the city of San Francisco 
to commemorate the 50th anniversary of the signing of the Treaty of San 
Francisco which ended the hostilities of Japan in World War II. This 
treaty was a farsighted document designed very deliberately to 
eliminate the possibility of further Japanese aggression by paving the 
way for an enduring peace between our two countries.
  Central to this goal was the recognition by the United States that it 
had a responsibility to rebuild war-torn Japan so that it could regain 
its economic self-sufficiency. The economic abandonment of Germany 
after World War I by the victorious nations of Europe and its horrific 
consequences were

[[Page S9225]]

enough to convince the President and the Congress of the United States 
to avoid inviting a repetition in the Pacific. Accordingly, the 
provisions of the San Francisco treaty were specifically aimed at 
protecting the recovering economy of Japan, and among the most 
important of these was article 14(b) of that treaty. I think we should 
read this article 14(b) once again:

       [E]xcept as otherwise provided in the present Treaty, the 
     Allied Powers waive all reparations claims of the Allied 
     Powers, other claims of the Allied Powers and their nationals 
     arising out of any actions taken by Japan and its nationals 
     in the course of the prosecution of the war[.]

  It was clear that this language was intended to waive, unless 
otherwise provided in the treaty, all claims of the United States and 
allied nationals against Japan and Japanese nationals arising from 
World War II.
  No one can deny the pain and the atrocities suffered by American 
citizens who were prisoners of war in Japan, and by agreeing to article 
14(b), our Nation did not intend to turn its back on its own citizens.
  I have had the privilege and the great honor of serving in the 
Congress now for nearly 42 years and during that time I believe my 
record is very clear when it comes to the support of the men and women 
in uniform. At this moment, I find myself in some disagreement with the 
great leaders of this Senate as to how the Defense Appropriations 
Subcommittee's bill should be handled. I have always maintained that we 
cannot do enough for men and women in uniform. Less than one-half of 1 
percent of this Nation has stepped forward to indicate to the rest of 
us that they are willing to stand in harm's way and, if necessary, at 
the risk of their lives. How can anyone say this is not something 
worthy of our support? So my support for the men in uniform, I hope, 
will not be questioned by any one of my colleagues.
  When we signed the treaty and when we passed the War Claims Act of 
1948 soon thereafter, our Nation assumed the responsibility of making 
reparations to our people using the proceeds of Japanese assets ceded 
by Japan under the treaty. We thought it was important enough at that 
moment in our history to take over that responsibility.
  I do not stand before you to present any rationale or apology for 
Japanese war crimes because history has shown that during the war, as 
in many great wars, officers and men of competing armies oftentimes 
resort to treatment of prisoners so cruel and inhumane as to seem 
barbaric. There are no good people in a war.
  Those of us on the committee, the Defense Appropriations 
Subcommittee, have one thing in mind--to prevent wars--because many of 
us have seen what war can do. There is no question that American 
prisoners in the hands of the Japanese suffered much. I think the 
evidence is rather clear, as pointed out by the Senator from New 
Hampshire and the Senator from Iowa. However, when the officials of our 
nations met with representatives of the defeated nation, Japan, these 
atrocities were recognized and taken into account in the consideration 
and ratification of the treaty of San Francisco.
  Moreover, the Government of Japan has acknowledged the damage and 
suffering it caused during World War II. Last Saturday, September 8, 
the Minister for Foreign Affairs, Mr. Tanaka, reaffirmed Japan's 
feelings of deep remorse and heartfelt apologies that had been 
previously expressed in 1995 by then-Prime Minister Murayama.

  Unfortunately, the amendment presented by my two distinguished 
colleagues attacks a central provision of the treaty by making it 
difficult, if not impossible, for the Departments of Justice and State 
to intervene in reparations suits and assert article 14(b) of the 
treaty.
  I think we should remind ourselves that article II of the 
Constitution of the United States makes it very clear that it is the 
President of the United States who has the responsibility of 
negotiating treaties and making certain that the provisions of the 
treaties are carried out. It is not the right of any State or any 
individual, nor is it the right of this Congress.
  Thus, if this amendment is approved by both Houses of Congress and 
signed into law by the President, it would announce our intention to 
abrogate a central term of the treaty of San Francisco. This action 
will abrogate that treaty. Some have suggested it might be a slap in 
the face of the Japanese. Yes, it might be, but, more importantly, it 
will abrogate a treaty.
  We who have stood on this floor time and again condemning other 
nations for slight deviation of their treaties are now coming forth 
deliberately to say that we are prepared to abrogate this treaty. This 
would be contrary to U.S. foreign policy because it would signal to the 
world that the United States cares little for its treaty obligations. 
It would be also contrary to U.S. national security policy because the 
San Francisco treaty is the cornerstone of U.S. security arrangements 
in the Asia-Pacific region.
  In addition to the foreign and security policy considerations, this 
amendment might also encourage other nations to facilitate lawsuits 
against the United States, and against U.S. companies and the U.S. 
Government and its officials for actions by U.S. military and those who 
support such actions.
  This is not farfetched. It could expose our Nation and our Nation's 
citizens to millions, if not billions, of dollars in claims. The 
administration of President Bush, in its policy statement issued 
through the Department of State, concurs with this analysis and 
strongly opposes the amendment.
  Indeed, the administration additionally objected to the amendment 
because it would impair the executive branch's ability to carry out its 
core constitutional responsibility relating to treaties, article II of 
the Constitution. Accordingly, reopening this issue as the amendment 
now proposes would have very serious negative consequences for United 
States-Japan relations, and, sadly, would sow doubt about America's 
word among other allies.
  Therefore, I oppose the amendment and I hope all of my colleagues 
will carefully consider the points that I have raised.
  I thank the Chair.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. Mr. President, I want to respond to my great friend--he 
is my great friend--and colleague from Hawaii. There is no one with 
whom I have greater respect and admiration in the Senate for all the 
years I have been here than the senior Senator from Hawaii, Mr. Inouye. 
Certainly, I commend him for his statement and the courage he has shown 
to take his position on this matter. No one should in any way 
misinterpret the action taken by Senator Inouye in opposing this 
amendment. I know he comes at it with conscience and with his own 
feeling of what is right.
  I may not agree with his position on it, and let no one think that in 
any way Senator Inouye now or at any time has let down our country, or 
our veterans, or our military establishment. By his own life and by his 
own example, Senator Inouye has shown what it means to be a patriot and 
to put himself in harm's way and possibly give one's life for his 
country. He did that during World War II.
  No one could have been more proud than all of us here when President 
Clinton finally recognized his efforts, his dedication, and his 
sacrifice during war in finally granting Senator Inouye the 
Congressional Medal of Honor. It was a recognition that was long 
overdue.
  I hope that no one misinterprets what the Senator said in his opening 
statement about taking his position. I certainly don't, and no one else 
should.
  As I said, we have a disagreement. And, quite frankly, I am hard 
pressed to think of the last time I disagreed with the Senator from 
Hawaii because I have high regard for him in matters pertaining to our 
military, to our veterans, and the defense of our country. But I just 
happen to have a disagreement on this one issue.
  Again, I point out that all we are trying to do is give the day in 
court for our rule of law. I believe we can do so without in any way 
abrogating a treaty or harming our relations with Japan. As I said 
earlier, I have the highest esteem for Japan and the people of Japan. I 
would want nothing in any way to be misinterpreted that we are in any 
way trying to bring up the dark days of World War II again. But I 
believe just as strongly that our rule of law commands us not to do 
otherwise.

[[Page S9226]]

 We must permit them to have their day in court. It is their right.
  Again, I thank the Senator from New Hampshire for offering the 
amendment.
  I particularly want to thank Senator Inouye for his years of 
dedication to our country, for his leadership during World War II, and 
for his 42 years of leadership in the Senate. I am sorry I have to 
disagree with him on this issue.
  Thank you, Mr. President.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SMITH of New Hampshire. Mr. President, I want to associate myself 
with every single word the Senator from Iowa just said regarding our 
colleague, Senator Inouye. I want to state for the record that Senator 
Inouye has earned the right to say anything he wishes on the floor of 
the Senate with his distinguished service to our country. I think we 
have a difference of opinion on what the treaty said or didn't say. 
That is it as far as I am concerned, to make the record clear.
  I want to respond to the point on the abrogation of treaties because 
I think it is important we understand that, in my view--and I think in 
the view of many--it doesn't abrogate the treaty at all. It limits the 
State and the Justice departments from interfering. That is all. The 
courts will decide the true intent of the treaty. That is what courts 
are supposed to do. But they should be able to do so without what I 
would consider unnecessary meddling.
  Article 26 of the treaty makes it very clear that the Japanese 
entered into a more advantageous agreement than those terms apply to 
all the signatories of the treaty.
  We are not abrogating the treaty. We are fulfilling the treaty.
  I think it is very important to understand those points that were 
made in the exchange between the Japanese Government and the Dutch 
Government and article 26 in the sense that the person who offered 
those documents, John Foster Dulles, made it very clear that we don't 
want to deny individuals under a constitutional government the right to 
have their constitutional rights fulfilled.
  I would respond quickly to three or four points that were made by the 
opponents and then yield the floor.
  We just talked about those who say it undermines the treaty 
obligations. It merely prevents the State and the Justice departments 
from distorting the true facts. I am not saying the State and Justice 
departments in any way directly are responsible for holding back 
documents. The truth is our own Government for 50 years never released 
these documents. Had these documents been available 50 years ago, I 
think this matter would have been resolved.
  For all these years our veterans never had the opportunity to have 
this information and take it to court.
  The judicial branch is perfectly capable and within its rights to 
interpret treaties without any assistance from or deference to the 
views of the executive branch or frankly, the legislative branch. This 
is law. That is how things are settled.
  In any event, the amendment does not prevent the executive branch 
from executing the treaty. I want to make that very clear. It does not 
prevent the executive branch from executing the treaty. It merely 
prevents the executive branch from advocating a certain interpretation 
in court.
  All we are doing with my amendment and that of Senator Harkin and 
others who cosponsored it is to say we are not going to provide 
taxpayer dollars to allow that argument to be fought. Let it go to 
court. That is all. I think it is very important that we understand 
that.
  Some say the amendment impairs the ability of the courts to interpret 
treaties. The courts are perfectly capable of interpreting treaties 
without the assistance of the executive branch. They are not bound by 
executive interpretation. In fact, the Supreme Court noted in one of 
its opinions that the courts interpret treaties for themselves. The 
courts remain the final arbiter of a treaty's meaning and have the 
right to interpret a treaty.
  The courts observed that the views of the executive branch regarding 
a treaty are entitled to no deference of any type when they appear to 
have been adopted either solely for political reasons or in the context 
of any particular litigation. I believe we are dealing with the latter 
in this case.
  Let me also get to the point of damaging relations with Japan. No one 
wants to do that. I want to make it very clear that I believe Japan is 
a valuable ally in the Far East and that they are very important to us, 
especially as we look at the emergence of China and the threat of the 
Chinese. This is not about the Japanese Government. It is not about 
replaying the war. It is about interpreting a treaty the way it was 
intended and allowing people to have their day in court without losing 
their constitutional rights. That is for all of us.
  It should not change our relationship with Japan. I do not know of 
anybody who wants to do that. We are strong allies. We are close 
friends. We are going to continue to be close friends after this. This 
should not, in any way, be construed as an unfriendly act. Secretary 
Powell, I think, recently called Japan our Pacific anchor. I think he 
is right. But it does send a serious message that as long as these 
veterans are with us, this is going to be an area of contention.
  Frankly, I think it is better for Japanese-American relations to get 
it behind us. Let's move on. And the best way to do it is to allow 
these men to come to court without the interference of the Justice and 
State Departments; let them come to court, have their day in court, and 
get a decision. That was the right thing to do when the State 
Department did that in relation to the activities in the German case, 
and I think it is the right thing to do in this case.
  Last year, again, as I said earlier in my statement, this body passed 
S. Con. Res. 158, offered by Senator Hatch, which urged the Secretary 
of State to facilitate discussions between the veterans and the 
Japanese. Unfortunately, though, the State Department chose to ignore 
that. All we are trying to do is to move forward and not have it hang 
out there any longer.
  Again, this is an issue between private Japanese companies and 
private United States citizens who have been wronged by those 
companies. It is also important to remind people that we do have a 
Constitution and every single one of us has constitutional rights.
  Under the fifth amendment: ``No person shall . . . be deprived of 
life, liberty, or property, without due process of law; nor shall 
private property be taken for public use, without just compensation.''
  The Supreme Court has ruled that the Federal Government can take or 
espouse private claims of United States citizens against foreign 
governments and their agents, but this case involves private claims 
against private corporations that are not agents of the Japanese 
Government. There are no constitutional or legal precedents for the 
Federal Government to take or espouse the private claims of its 
citizens against private foreign entities.
  In fact, if you read article 14(b), which we have done a couple 
times, to mean ``private versus private claims,'' this raises very 
serious fifth amendment concerns. The Federal Government does not have 
the right to espouse private versus private claims. There is an 
important difference between the private versus Government claims, 
which the Federal Government can espouse, and the private versus 
private claims, which the Federal Government cannot espouse. That is a 
big difference.
  Just like the United States Government, the Dutch were faced with the 
same problem. The Dutch had a constitutional issue, which is why they 
raised the issue at the time, which is why article 26 was written. John 
Foster Dulles certainly had a hand in writing both of those letters and 
the exchange of letters between the Japanese and the Dutch. He 
understood both sides of it. And he understood it completely. That is 
why the letters were written and why the Dutch raised the question. And 
that is why they made certain that if another country raised similar 
objections, such as the United States, they would have the opportunity 
to have their citizens have their day in court.
  So I hope that as we get to whatever point the leadership decides to 
call a vote on this, we understand that this is not about bringing up 
some old war stories or replaying the war or anything at all. It is 
simply about the right of an American citizen, who happened to be a 
POW, to get his or her

[[Page S9227]]

day in court against a private company in another country and not be 
interfered with by our own Government.

  All our amendment does is say that no funds under this act shall be 
used by our country or our Government to interfere with that claim. 
That is it.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from Hawaii.
  Mr. INOUYE. Point of inquiry: Will this matter be voted upon at 5:30?
  Mr. HOLLINGS. I think so. We are ready to make that request, but I 
want to say a word in debate.
  Mr. INOUYE. Fine.
  Mr. REID. Mr. President, will the Senator yield?
  The PRESIDING OFFICER. The Senator from Nevada.
  Mr. REID. Mr. President, I ask unanimous consent that the time until 
3:15 p.m. be for debate with respect to the Smith amendment No. 1538; 
that at 3:15 p.m. the amendment be set aside to recur at 5 p.m. today, 
with all time equally divided and controlled between Senators Smith of 
New Hampshire and Hollings or their designees; that a vote in relation 
to the amendment occur at 5:30 p.m. today, with no second-degree 
amendments in order prior to a vote in relation to the amendment; 
further, that at 3 p.m. Senator Dorgan be recognized to offer an 
amendment relating to TV Marti.
  Mr. HOLLINGS. You mean 3:15.
  Mr. REID. Yes, 3:15.
  The PRESIDING OFFICER. Is there objection?
  The Chair hears none, and it is so ordered.
  Mr. REID. Mr. President, I extend my appreciation to the Senator from 
Idaho, who is not in the Chamber, for allowing us to move forward on 
this even though his amendment is pending.
  Mr. HOLLINGS. Mr. President, I thank the distinguished Senator from 
Nevada, who keeps the trains running--and on time --and, incidentally, 
is fully informed on what is on that train. That is really the point to 
be made with Senator Harry Reid.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. Mr. President, there is no question when the chorus is 
formed to praise our distinguished senior colleague from Hawaii, I am 
going to be in that chorus. There is no one I admire more.
  I remember the debate with respect to the reparations, and I was 
moved by our other wonderful Senator from Hawaii, Mr. Matsunaga. But 
mind you me, that was a very different situation.
  Here is an individual of Japanese descent, Daniel Inouye of Hawaii, 
who fought for over a year to try and gain acceptance as a soldier in 
the cause of the United States in World War II. And having done that--
because I was in that particular theater--to go forward in Italy with 
the Nisei fighters, even after the armistice peace had been signed with 
Italy, with his arm gone and 22 slugs in his body.
  He only got the Distinguished Service Cross. It hit my conscience 
that here was an individual, just because he was alone, and not 
recognized at that time, who only received the Distinguished Service 
Cross. And that was repaired last year when he, and others of those 
brave Nisei fighters, received the Medal of Honor. So the record has 
been made.
  But this isn't on account of Senator Inouye's courage. I really am 
grateful, managing this bill myself, that he has taken this position 
that does take courage in one sense of the word. But under the 
Constitution, which the distinguished Senator from New Hampshire points 
out, there is no other course than to kill this particular amendment.
  Let me speak again of my high regard for the Senator from New 
Hampshire and the Senator from Iowa in their feeling for the veterans, 
particularly those who suffered under that death march from Bataan, 
because I was dragged into this thing myself in May of 1942, when 
others just ahead of me got caught up not only in the Bataan march but 
served as prisoners of war under such treatment that has been described 
by the distinguished Senators from New Hampshire and Iowa.
  I think of Jack Leonard. I think of other classmates who suffered in 
that period of the war. So I share the feeling of the Senator from New 
Hampshire. You cannot be more devastated and defaced and tortured than 
these Japanese prisoners of war. They deserve every bit of 
consideration they can get under the Constitution. But if we are going 
to be a body of laws, there isn't any question about whose side--I was 
taken by the Senator from New Hampshire who said you are either on the 
side of the private Japanese corporations or you are on the side of the 
veterans. Not at all. You are either on the side of the Constitution or 
you are not. And our Constitution says: The treaty made duly ratified 
is the law of the land. That terminated any particular claims or their 
day in court.

  To understand, read this amendment, not agreeing, if you please, with 
the Senator from New Hampshire, not agreeing, if you please, with the 
Senator from South Carolina, but it says:

       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 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 a slave or forced labor.

  It says that the Department of Justice and the Department of State 
cannot function as a Department of Justice and a Department of State. 
Certainly, they don't want to do that. If it is to be that they have a 
right or day in court--and certainly nothing we vote on this afternoon 
will take away that right or day in court--it has been had, this time 
last year in the California court. The judge found it and studied it 
and objectively looked at it in every particular regard and found 
otherwise. Nothing that we vote on today one way or the other is going 
to take away their right in court.
  But there is a right and a duty and a responsibility of the 
Department of State and the Department of Justice to defend the 
position of the United States. And we think that the position of the 
United States is under article 14 of that particular treaty with Japan, 
ratified in 1952 by an overwhelming vote that was entered into by 
President Truman, ratified by a 66-10 bipartisan vote in the U.S. 
Senate. If I raise my hand as a Senator, I hereby pledge to preserve, 
protect, and defend. So it is not the side of the corporation or the 
side of the veteran. It is the position under the Constitution. You 
have to defend the laws of the land.
  Certainly, I am not totally familiar with this particular issue, 
certainly not as much so perhaps as the distinguished Senator from New 
Hampshire. But there have been others who have studied it very 
thoroughly.
  I have a letter from a distinguished former Secretary of State. This 
is in June. He writes to the House chairman of Foreign Relations, I 
take it, at that particular time. I want to read from this letter from 
George P. Shultz:

       Dear Mr. Chairman: I am writing to you to express my deep 
     reservations about H.R. 1198, the Justice for the U.S. 
     Prisoners of War Act of 2001.

  This was passed overwhelmingly, incidentally, in the House of 
Representatives. We have too many pollsters in Government. My pollster, 
my political consultant said: Why don't you keep your mouth shut. Let 
Danny Inouye defend it and you don't have to say anything. And then in 
the next election, you won't have to explain how the veterans now are 
all against you.
  Life is too short for that kind of nonsense. You have to take 
positions here. Let me go ahead with Secretary Shultz's letter:

       I express my opposition to the bill against the background 
     of tremendous sympathy for the problems of the United States' 
     citizens who have in one way or another been harmed, many 
     severely, in the course of war and its sometimes dehumanizing 
     impact.
       But the bill in question would have the effect of voiding 
     the bargain we made and explicitly set out in the Treaty of 
     Peace between Japan, the United States, and forty-seven other 
     countries. President Truman with the advice and consent of 
     the Senate ratified the treaty and it became effective April 
     28, 1952.
       The Treaty has served us well in providing the fundamental 
     underpinning for the peace and prosperity we have seen, for 
     the most part, in the Asia Pacific region over the past half-
     century.
       The Treaty addresses squarely the issue of compensation for 
     damages suffered at the hands of the Japanese. Article 14 in 
     the treaty sets out the terms of Japanese payment ``for the 
     damage and suffering caused by it during the war.'' The 
     agreement provides:
       1. a grant of authority to Allied Powers to seize Japanese 
     property within their jurisdiction at the time of the 
     treaty's effective date;

[[Page S9228]]

       2. an obligation of Japan to assist in the rebuilding of 
     territory occupied by Japanese forces during the war; and
       3. waiver of all ``other claims of the Allied Powers and 
     their nationals arising out of any action taken by Japan and 
     its nationals of the war.''

  Let me divert from the reading of this letter. One says ``to seize 
the property.'' That was done. Japanese property was seized. You 
constantly hear in the presentation that this is against private 
corporations. The treaty was against private corporations and their 
property and was distributed to the prisoners of war. It wasn't done 
enough; you and I both agree on that in a flash. I sympathize with the 
motivation of the distinguished Senator from New Hampshire, but we did 
seize the property. And we did distribute it as reparations. That ended 
all claims of all nationals.
  The waiver of all other claims of the allied powers and their 
nationals, that ended it. It didn't say whether 50 years from now we 
can find some memo with respect to the Netherlands and whether or not 
they had constitutional authority. There isn't any question that our 
Secretary of State, John Foster Dulles, had authority. There isn't any 
question that the President of the United States who signed the treaty, 
the Congress itself, the U.S. Senate that ratified that treaty, had its 
authority. This is by the board what was found 50 years later by the 
Netherlands. Let's find out what was found by the United States of 
America, its President and its Senate as constitutionally binding under 
the treaty.
  Let me go back to the letter from George P. Shultz:

       The interests of Allied prisoners of war are addressed in 
     Article 16, which provides for transfer of Japanese assets in 
     neutral or even me jurisdictions to the International Red 
     Cross for distribution to former prisoners and their 
     families.
       H.R. 1198 challenges these undertakings head on, as it 
     says, ``In any action in a Federal court . . . the court . . 
     . shall not construe section 14(b) of the Treaty of Peace 
     with Japan as constituting a waiver by the United States of 
     claims by nationals of the United States, including claims by 
     members of the United States armed forces, so as to preclude 
     the pending action.''

  I read further:

       I have read carefully an opinion of Judge Vaughn R. Walker 
     of the U.S. District Court in California rendered on July 21, 
     2000 . . .

  I ask unanimous consent that the opinion be printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

      H.R. 1198--THE JUSTICE FOR U.S. PRISONERS OF WAR ACT OF 2001


   In Re World War II Era Japanese Forced Labor, September 21, 2000, 
     Decision by Judge Vaughn R. Walker, U.S. District Court, N.D. 
                               California

     UNITED STATES DISTRICT COURT, NORTHERN DISTRICT OF CALIFORNIA

       Master File No MDL-1347.
       In Re: World War II Era Japanese Forced Labor Litigation.
       This Document Relates To:

     Alfano v. Mitsubishi Corp, CD Cal No 00-3174
     Corre v. Mitsui & Co., CD Cal No 00-999
     Eneriz v. Mitsui & Co, CD Cal No 00-1455
     Heimbuch, et al. v. Ishihara Sangyo Kaisha, Ltd, ND Cal No 
         99-0064
     Hutchison v. Mitsubishi Materials Corp, CD Cal No 00-2796
     King v. Nippon Steel Corp., ND Cal No 99-5042
     Levenberg v. Nippon Sharyo, Ltd, ND Cal No 99-1554
     Levenberg v. Nippon Sharyo, Ltd, ND Cal No 99-4737
     Poole v. Nippon Steel Corp., CD Cal No 00-0189
     Price v. Mitsubishi Corp., CD Cal No 00-5484
     Solis v. Nippon Steel Corp., CD Cal No 00-0188
     Titherington v. Japan Energy Corp., CD Cal No 00-4383
     Wheeler v. Mitsui & Co., Ltd., CD Cal No 00-2057

       On December 23, 1941, after mounting a brave resistance 
     against an overwhelming foe, the small American garrison on 
     Wake Island in the South Pacific surrendered to Imperial 
     Japanese forces. James King, a former United States Marine, 
     was among the troops and civilians taken prisoner by the 
     invaders. He was ultimately shipped to Kyushu, Japan, where 
     he spent the remainder of the war toiling by day as a slave 
     laborer in a steel factory and enduring maltreatment in a 
     prison camp by night. When captured, King was 20 years old, 5 
     feet 11 inches tall and weighed 167 pounds. At the conclusion 
     of the war, he weighed 98 pounds.
       James King is one of the plaintiffs in these actions 
     against Japanese corporations for forced labor in World War 
     II; his experience, and the undisputed injustice he suffered, 
     are representative. King and the other plaintiffs seek 
     judicial redress for this injustice.

                                   I

       These actions are before the court for consolidated 
     pretrial proceedings pursuant to June 5, 2000, and June 15, 
     2000, orders of transfer by the Judicial Panel on 
     Multidistrict Litigation. On August 17, 2000, the court heard 
     oral argument on plaintiffs' motions for remand to state 
     court and defendants' motions to dismiss or for judgment on 
     the pleadings.
       This order addresses, first, all pending motions for 
     remand. For the reasons stated below, the court concludes 
     that notwithstanding plaintiffs' attempts to plead only state 
     law claims, removal jurisdiction exists because these actions 
     raise substantial questions of federal law by implicating the 
     federal common law of foreign relations.
       Second, the court addresses the preclusive effect of the 
     1951 Treaty of Peace with Japan on a subset of the actions 
     before the court, namely, those brought by plaintiffs who 
     were United States or allied soldiers in World War II 
     captured by Japanese forces and held as prisoners of war. 
     The court concludes that the 1951 treaty constitutes a 
     waiver of such claims.
       This order does not address the pending motions to dismiss 
     in cases brought by plaintiffs who were not members of the 
     armed forces of the United States or its allies. Since these 
     plaintiffs are not citizens of countries that are signatories 
     of the 1951 treaty, their claims raise a host of issues not 
     presented by the Allied POW cases and, therefore, require 
     further consideration in further proceedings.

                                   II

       Defendants may remove to federal court ``any civil action 
     brought in a State court of which the district courts of the 
     United States have original jurisdiction.'' 28 USC 
     Sec. 1441(a). ``The propriety of removal thus depends on 
     whether the case originally could have been filed in federal 
     court.'' Chicago v. International College of Surgeons, 522 US 
     156, 163 (1997).
       Federal courts have original jurisdiction over cases 
     ``arising under the Constitution, laws or treaties of the 
     United States.'' 28 USC Sec. 1331. For purposes of removal, 
     federal question jurisdiction exists ``only when a federal 
     question is presented on the face of the plaintiff's properly 
     complaint.'' Caterpillar Inc v. Williams, 482 US 386, 392 
     (1987). Since a defense is not part of a plaintiff's properly 
     pleaded statement of his claim, a case may not be removed to 
     federal court on the basis of a federal defense. Rivet v. 
     Regions Bank of La, 522 US 470, 475 (1998).
       Defendants' assertion of the Treaty of Peace with Japan as 
     a defense to plaintiffs' state law causes of action does not, 
     therefore, confer federal jurisdiction. Recognizing this, 
     defendants rely on a line of cases committing to federal 
     common law questions implicating the foreign relations of the 
     United States.
       In Banco Nacional de Cuba v. Sabbatino, 376 US 398, 425 
     (1964), a case in which federal jurisdiction was based on 
     diversity of citizenship, the Supreme Court held that 
     development and application of the act of state doctrine was 
     a matter of federal common law, notwithstanding the general 
     rule of Erie R Co v. Thompkins, 304 US 64, 78 (1938), that 
     federal courts apply state substantive law in diversity 
     cases. The court reasoned that because the doctrine concerned 
     matters of comity between nations, ``the problems involved 
     are uniquely federal in nature.'' Id at 424. Although the 
     applicable state law mirrored federal decisions, the Court 
     was ``constrained to make it clear that an issue [involving] 
     our relationships with other members of the international 
     community must be treated exclusively as an aspect of federal 
     law.'' Id at 425.
       Under Banco Nacional, federal common law governs matters 
     concerning the foreign relations of the United States. See 
     Texas Indus, Inc v. Radcliffe Materials, Inc,  451 US 630, 
     641 (1981). ``In these instances, our federal system does not 
     permit the controversy to be resolved under state law, either 
     because the authority and duties of the United States as 
     sovereign are intimately involved or because the * * * 
     international nature of the controversy makes it 
     inappropriate for state law to control.'' Id.
       If an examination of the complaint shows that the 
     plaintiff's claims necessarily require determinations that 
     will directly and significantly affect United States foreign 
     relations, a plaintiff's state law claims should be removed. 
     Republic of Phillipines v. Marcos, 806 F2d 344, 352 (2d Cir 
     1986). This doctrine has been extended to disputes between 
     private parties that implicate the ``vital economic and 
     sovereign interests'' of the nation where the parties' 
     dispute arose. Torres v. Southern Peru Copper Corp, 113 F3d 
     540, 543 n8 (5th Cir 1997).
       The court concludes that the complaints in the instant 
     cases, on their face, implicate the federal common law of 
     foreign relations and, as such, give rise to federal 
     jurisdiction. Plaintiffs' claims arise out of world war and 
     are enmeshed with the momentous policy choices that arose in 
     the war's aftermath. The cases implicate the uniquely federal 
     interests of the United States to make peace and enter 
     treaties with foreign nations. As the United States has 
     argued as amicus curiae, these cases carry potential to 
     unsettle half a century of diplomacy.
       After a thorough analysis, Judge Baird in the Central 
     District of California denied remand in one of the cases now 
     before the undersigned pursuant to the multidistrict 
     litigation transfer order. Poole v. Nippon Steel Corp, No. 
     00-0189 (CD Cal March 17, 2000). The court agrees with the 
     analysis and the conclusion in that case. (In another related 
     case in which remand was granted, Jeong v Onoda

[[Page S9229]]

     Cement Co, Ltd, 2000 US Dist LEXIS 7985 (CD Cal May 18, 
     2000), the court did not consider the federal common law of 
     foreign relations as a basis for federal jurisdiction.) Judge 
     Baird held: ``[T]his case, on its face, presents substantial 
     issues of federal common law dealing with foreign policy and 
     relations. * * * As such, plaintiffs may not evade this 
     Court's jurisdiction by cloaking their complaints in terms of 
     state law.'' The motions for remand are DENIED.

                                  III

       In addressing the motions to dismiss, the court refers 
     again to a complaint that is representative of the actions by 
     United States and Allied POWs, King v. Nippon Steel Corp., No 
     99-5042.
       As noted at the outset of this order, plaintiff King seeks 
     redress for wrongs inflicted by his captors half a century 
     ago. In count one of the complaint, he asserts a claim under 
     California Code of Civil Procedure Sec. 354.6, a new law that 
     permits an action by a ``prisoner-of-war of the Nazi regime, 
     its allies or sympathizers'' to ``recover compensation for 
     labor performed as a Second World War slave labor victim * * 
     * from any entity or successor in interest thereof, for whom 
     that labor was performed * * *.'' Cal Code Civ Pro 
     Sec. 354.6. Count two is an unjust enrichment claim in which 
     plaintiff seeks disgorgement and restitution of economic 
     benefits derived from his labor. In count three, plaintiff 
     seeks damages in tort for battery, intentional infliction of 
     emotional distress and unlawful imprisonment. Count four 
     alleges that defendant's failure to reveal its prior 
     exploitation of prisoner labor to present-day customers in 
     California and elsewhere constitutes an unfair business 
     practice under California Business and Professions Code 
     Sec. 17204.
       Defendants move pursuant to Federal Rule of Civil Procedure 
     12(c) for a judgment on the pleadings, arguing: (1) 
     plaintiff's claims are barred by the Treaty of Peace with 
     Japan; (2) plaintiff's claims raise nonjusticiable political 
     questions; (3) the peace treaty, the War Claims Act of 1948 
     and the federal government's plenary authority over foreign 
     affairs combine to preempt plaintiff's claims and (4) because 
     the complaint alleges injuries caused by the Japanese 
     government, plaintiff's claims are barred by the act of state 
     doctrine and the Foreign Sovereign Immunities Act.
       These arguments, and King's countervailing positions, arise 
     in all of the cases before the court brought on behalf of 
     Allied POWs against Japanese corporations. The court need not 
     address all of them. For the reasons stated below, the court 
     concludes that plaintiffs' claims are barred by the Treaty of 
     Peace with Japan.

                                   A

       A motion for judgment on the pleadings pursuant to Federal 
     Rule of Civil Procedure 12(c) is the proper means to 
     challenge the sufficiency of the complaint after an answer 
     has been filed. Depending on the procedural posture of the 
     individual case, some defendants have filed motions pursuant 
     to FRCP 12(c) and others have filed motions to dismiss 
     pursuant to FRCP 12(b). The distinction in the present 
     context is not important. In the Ninth Circuit, the standard 
     by which the district court must determine Rule 12(c) motions 
     is the same as the standard for the more familiar motion to 
     dismiss under rule 12(b)(6): ``A district court will render a 
     judgment on the pleadings when the moving party clearly 
     establishes on the face of the pleadings [and by evidence of 
     which the court takes judicial notice] that no material issue 
     of fact remains to be resolved and that it is entitled to 
     judgment as a matter of law.'' Enron Oil Trading & Transp Co 
     v. Walbrook Ins Co, 132 F3d 526, 529 (9th Cir 1997) 
     (citations omitted).

                                   B

       The Treaty of Peace with Japan was signed at San Francisco 
     on September 8, 1951, by the representatives of the United 
     States and 47 other Allied powers and Japan. Treaty of Peace 
     with Japan, [1952] 3 UST 3169, TIAS No 2490 (1951). President 
     Truman, with the advice and consent of the Senate, ratified 
     the treaty and it became effective April 28, 1952. Id.
       Article 14 provides the terms of Japanese payment ``for the 
     damage and suffering caused by it during the war.'' Id at Art 
     14(a). For present purposes, the salient features of the 
     agreement are: (1) a grant of authority of Allied powers to 
     seize Japanese property within their jurisdiction at the time 
     of the treaty's effective date; (2) an obligation of Japan to 
     assist in the rebuilding of territory occupied by Japanese 
     forces during the war and (3) waiver of all ``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 * * *.'' Id at Art 14(a)-(b) (emphasis 
     added).
       It is the waiver provision that defendants argue bars 
     plaintiffs' present claims. In its entirety, the provision 
     reads: ``(b) Except as otherwise provided in the present 
     Treaty, the Allied Powers waive all reparations claims of 
     the Allied Powers, other claims of the Allied Powers and 
     their nationals arising out of any actions taken by Japan 
     and its nationals in the course of the prosecution of the 
     war, and claims if the Allied Powers for direct military 
     costs of occupation.'' Id at Art 14(b).
       On its face, the treaty waives ``all'' reparations and 
     ``other claims'' of the ``nationals'' of Allied powers 
     ``arising out of any actions taken by Japan and its nationals 
     during the course of the prosecution of the war.'' The 
     language of this waiver is strikingly broad, and contains no 
     conditional language or limitations, save for the opening 
     clause referring to the provisions of the treaty. The 
     interests of Allied prisoners of war are addressed in Article 
     16, which provides for transfer of Japanese assets in neutral 
     or enemy jurisdictions to the International Committee of the 
     Red Cross for distribution to former prisoners and their 
     families. Id at Art 16. The treaty specifically exempts from 
     reparations, furthermore, those Japanese assets resulting 
     from ``the resumption of trade and financial relations 
     subsequent to September 2, 1945.'' Id at Art 
     14(a)(2)(II)(iv).
       To avoid the preclusive effect of the treaty, plaintiffs 
     advance an interpretation of Article 14(b) that is strained 
     and, ultimately, unconvincing. Although the argument has 
     several shades, it comes down to this: the signatories of the 
     treaty did not understand the Allied waiver to apply to 
     prisoner of war claims because the provision did not 
     expressly identify such claims, in contrast to the 
     corresponding Japanese waiver provision of Article 19. 
     Article 19(b) states that the Japanese waiver includes ``any 
     claims and debts arising in respect to Japanese prisoners of 
     war and civilian internees in the hands of the Allied Powers 
     * * * .''
       That the treaty is more specific in Article 19 does not 
     change the plain meaning of the language of Article 14. If 
     the language of Article 14 were ambiguous, plaintiffs' 
     expressio unius  argument would have more force. But 
     plaintiffs cannot identify any ambiguity in the language of 
     Article 14. to do so would be to inject hidden meaning into 
     straightforward text.
       The treaty by its terms adopts a comprehensive and 
     exclusive settlement plan for war-related economic injuries 
     which, in its wholesale waiver of prospective claims, is not 
     unique. See, for example, Neri v. United States, 204 F2d 867 
     (2d Cir 1953) (claim barred by broad waiver provision in 
     Treaty of Peace with Italy). The waiver provision of Article 
     14(b) is plainly broad enough to encompass the plaintiffs' 
     claims in the present litigation.

                                   C

       The court does not find the treaty language ambiguous, and 
     therefore its analysis need go no further. Chan v. Korea 
     Airlines, 490 US 122, 134 (1989) (if text of treaty is clear, 
     courts ``have no power to insert an amendment.''). To the 
     extent that Articles 19(b) raises any uncertainty, however, 
     the court ``may look beyond the written words to the history 
     of the treaty, the negotiations, and the practical 
     construction adopted by the parties.'' Air France v. Saks, 
     470 US 392, 396 (1985). These authorities are voluminous and 
     therefore of doubtful utility due to the potential for 
     misleading selective citation. Counsel for both sides have 
     proved themselves skilled in scouring these documents for 
     support of their positions, and that both sides have 
     succeeded to a certain degree underscores the questionable 
     value of such resort to drafting history. Nevertheless, 
     the court has conducted its own review of the historical 
     materials, and concludes that they reinforce the 
     conclusion that the Treaty of Peace with Japan was 
     intended to bar claims such as those advanced by 
     plaintiffs in this litigation.
       The official record of treaty negotiations establishes that 
     a fundamental goal of the agreement was to settle the 
     reparations issue once and for all. As the statement of the 
     chief United States negotiator, John Foster Dulles, makes 
     clear, it was well understood that leaving open the 
     possibility of future claims would be an unacceptable 
     impediment to a lasting peace:
       ``Reparation is usually the most controversial aspect of 
     peacemaking. The present peace is no exception.
       ``On the one hand, there are claims both vast and just. 
     Japan's aggression caused tremendous cost, losses and 
     suffering. * * *
       ``On the other hand, to meet these claims, there stands a 
     Japan presently reduced to four home islands which are unable 
     to produce the food its people need to live, or the raw 
     materials they need to work. * * *
       ``Under these circumstances, if the treaty validated, or 
     kept contingently alive, monetary reparations claims against 
     Japan, her ordinary commercial credit would vanish, the 
     incentive of her people would be destroyed and they would 
     sink into a misery of body and spirit that would make them 
     easy prey to exploitation. * * *
       ``There would be bitter competition [among the Allies] for 
     the largest possible percentage of an illusory pot of gold.''

     See US Dept of State, Record of Proceedings of the Conference 
     for the Conclusion and Signature of the Treaty of Peace with 
     Japan 82-83 (1951) (Def Req for Judicial Notice, Exh I).
       The policy of the United States that Japanese liability for 
     reparations should be sharply limited was informed by the 
     experience of six years of United States-led occupation of 
     Japan. During the occupation the Supreme Commander of the 
     Allied Powers (SCAP) for the region, General Douglas 
     MacArthur, confiscated Japanese assets in conjunction with 
     the task of managing the economic affairs of the vanquished 
     nation and with a view to reparations payments. See SCAP, 
     Reparations: Development of Policy and Directives (1947). It 
     soon became clear that Japan's financial condition would 
     render any aggressive reparations plan an exercise in 
     futility. Meanwhile, the importance of a stable, democratic 
     Japan as a bulwark to communism in the region increased.

[[Page S9230]]

     At the end of 1948, MacArthur expressed the view that ``[t]he 
     use of reparations as a weapon to retard the reconstruction 
     of a viable economy in Japan should be combated with all 
     possible means'' and ``recommended that the reparations issue 
     be settled finally and without delay.'' Memorandum from 
     General Headquarters of SCAP to Department of the Army (Dec. 
     14, 1948) at para. 8 (Def Req for Judicial Notice, Exh E).
       That this policy was embodied in the treaty is clear not 
     only from the negotiations history but also from the Senate 
     Foreign Relations Committee report recommending approval of 
     the treaty by the Senate. The committee noted, for 
     example: ``Obviously insistence upon the payment of 
     reparations in any proportion commensurate with the claims 
     of the injured countries and their nationals would wreck 
     Japan's economy, dissipate any credit that it may possess 
     at present, destroy the initiative of its people, and 
     create misery and chaos in which the seeds of discontent 
     and communism would flourish. In short, [it] would be 
     contrary to the basic purposes and policy of * * * the 
     United States * * *.''
       Japanese Peace Treaty and Other Treaties Relating to 
     Security in the Pacific, S Rep No 82-2, 82d Cong, 2d Sess 12 
     (1952) (Def Req for Judicial Notice, Exh F). The committee 
     recognized that the treaty provisions ``do not give a direct 
     right of return to individual claimants except in the case of 
     those having property in Japan,'' id at 13, and endorsed the 
     position of the State Department that ``United States 
     nationals, whose claims are not covered by the treaty 
     provisions * * * must look for relief to the Congress of the 
     United States,'' id at 14.
       Indeed, the treaty went into effect against the backdrop of 
     congressional response to the need for compensation for 
     former prisoners of war, in which many, if not all, of the 
     plaintiffs in the present cases participated. See War Claims 
     Act of 1948, 50 USC Sec. Sec. 2001-2017p (establishing War 
     Claims Commission and assigning top priority to claims of 
     former prisoners of war).
       Were the text of the treaty to leave any doubt that it 
     waived claims such as those advanced by plaintiffs in these 
     cases, the history of the Allied experience in post-war 
     Japan, the drafting history of the treaty and the 
     ratification debate would resolve it in favor of a finding of 
     waiver.

                                   D

       As one might expect, considering the acknowledged 
     inadequacy of compensation for victims of the Japanese regime 
     provided under the treaty, the issue of additional 
     reparations has arisen repeatedly since the adoption of that 
     agreement some 50 years ago. This is all the more 
     understandable in light of the vigor with which the Japanese 
     economy has rebounded from the abyss.
       The court finds it significant, as further support for the 
     conclusion that the treaty bars plaintiffs' claims, that the 
     United States, through State Department officials, has stood 
     firmly by the principle of finality embodied in the treaty. 
     This position was expressed in recent congressional testimony 
     by Ronald J. Bettauer, deputy legal advisor, as follows: 
     ``The 1951 Treaty of Peace with Japan settles all war-related 
     claims of the U.S. and its nationals, and precludes the 
     possibility of taking legal action in United States domestic 
     courts to obtain additional compensation for war victims from 
     Japan or its nationals--including Japanese commercial 
     enterprises.''
       POW Survivors of the Bataan Death March, Hearing before the 
     Senate Committee on the Judiciary (June 28, 2000) (statement 
     of Ronald J Bettauer, United States Department of State) (Def 
     Req for Judicial Notice, Exh P).
       In another recent example, in response to a letter from 
     Senator Orrin Hatch expressing ``disappointment'' with the 
     ``fifty-five year old injustice imposed on our military 
     forces held as prisoners of war in Japan'' and urging the 
     Secretary of State to take action, a State Department 
     representative wrote: ``The Treaty of Peace with Japan has, 
     over the past five decades, served to sustain U.S. 
     security interests in Asia and to support peace and 
     stability in the region. We strongly believe that the U.S. 
     must honor its international agreements, including the 
     [treaty]. There is, in our view, no justification for the 
     U.S. to attempt to reopen the question of international 
     commitments and obligations under the 1951 Treaty in order 
     now to seek a more favorable settlement of the issue of 
     Japanese compensation.
       ``This explanation obviously offers no consolation to the 
     victims of Japanese wartime aggression. Regrettably, however, 
     it was impossible when the Treaty was negotiated--and it 
     remains impossible today, 50 years later--to compensate fully 
     for the suffering visited upon the victims of the war * * 
     *.'' Letter of Jan 18, 2000, from US Dept of State to The Hon 
     Orrin Hatch at 2.
       The conclusion that the 1951 treaty constitutes a waiver of 
     the instant claims, as stated above and argued in the brief 
     of the United States as amicus curiae in this case, carries 
     significant weight. See Kolovrat v. Oregon, 366 US 187, 194 
     (1961) (``While courts interpret treaties for themselves, the 
     meaning given them by the departments of government 
     particularly charged with their negotiation and enforcement 
     is given great weight.''); Sullivan v. Kidd, 254 US 425, 442 
     (1921) (``[T]he construction placed upon the treaty before us 
     and consistently adhered to by the Executive Department of 
     the Government, charged with the supervision of our foreign 
     relations, should be given much weight.''). The government's 
     position also comports entirely with the court's own analysis 
     of the treaty and its history.
       Plaintiffs raise several additional arguments that bear 
     only brief mention. First is the characterization of these 
     claims as not arising out of the ``prosecution of the war,'' 
     as that phrase is used in the treaty. Plaintiffs attempt to 
     cast their claims as involving controversies between private 
     parties.
       It is particularly far-fetched to attempt to distinguish 
     between the conduct of Imperial Japan during the Second World 
     War and the major industry that was the engine of its war 
     machine. The lack of any sustainable distinction is apparent 
     from the complaints in these cases. For example, the King 
     complaint alleges that a class of war prisoners were forced 
     to work ``in support of the Japanese war effort,'' Compl 
     para. 56, and pursuant to a directive from the Japanese 
     government that the ``labor and technical skill' '' of 
     prisoners of war ``be fully utilized for the replenishment of 
     production, and contribution rendered toward the prosecution 
     of the Greater East Asiatic War,' '' id at para. 30. 
     Furthermore, the complaint asserts that plaintiff worked in a 
     factory ``where motor armatures were manufactured for the war 
     effort.'' Id at para. 35. These allegations quite clearly 
     bring this action within the scope of the treaty's waiver of 
     all claims ``arising out of any actions taken by Japan and 
     its nationals in the course of the prosecution of the war.'' 
     Treaty at Art 14(b).
       Plaintiffs also argue that waiver of plaintiffs' claims 
     renders the treaty unconstitutional and invalid under 
     international law. This position is contrary to the well-
     settled principle that the government may lawfully exercise 
     its ``sovereign authority to settle the claims of its 
     nationals against foreign countries.'' Dames & Moore v. 
     Regan, 453 US 654, 679-80 (1981); See also Neri, 204 F2d 
     at 868-69 (enforcing treaty waiver of reparations claims).
       Finally, plaintiffs assert that subsequent settlements 
     between Japan and other treaty signatories on more favorable 
     terms than those set forth in the treaty should ``revive'' 
     plaintiff's claims under Article 26, which provides in 
     relevant part: ``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.'' Treaty at Art 26. Without deciding whether 
     the evidence plaintiff cities of other agreements implicates 
     Article 26, the court finds that that provision confers 
     rights only upon the ``parties to the present treaty,'' i.e., 
     the government signatories. The question of enforcing Article 
     26 is thus for the United States, not the plaintiffs, to 
     decide.

                                   IV

       The Treaty of Peace with Japan, insofar as it barred future 
     claims such as those asserted by plaintiffs in these actions, 
     exchanged full compensation of plaintiffs for a future peace. 
     History has vindicated the wisdom of that bargain. And while 
     full compensation for plaintiffs' hardships, in the purely 
     economic sense, has been denied these former prisoners 
     countless other survivors of the war, the immeasurable bounty 
     of life for themselves and their posterity in a free society 
     and in a more peaceful world services the debt.
       The motions to dismiss and/or for judgment on the pleadings 
     are GRANTED. The clerk shall enter judgment in favor of 
     defendants in the above-captioned cases.
       IT IS SO ORDERED.
     Vaughn R. Walker,
     United States District Judge.

  Mr. HOLLINGS. Quoting, again, from the letter:

       I have read carefully an opinion of Judge Vaughn R. Walker 
     of the U.S. District Court in California rendered on 
     September 21, 2000, dealing with claims, many of a heart-
     rending nature. His reasoning and his citations are incisive 
     and persuasive to me. He writes, ``The cases implicate the 
     uniquely federal interests of the United States to make peace 
     and enter treaties with foreign nations. As the United States 
     has argued as amicus curiae, there cases carry potential to 
     unsettle half a century of diplomacy.'' Just as Judge Walker 
     ruled against claims not compatible with the Treaty, I urge 
     that Congress should take no action that would, in effect, 
     abrogate the Treaty.
       The chief negotiator of the Treaty on behalf of President 
     Truman was the clear-eyed and tough-minded John Foster 
     Dulles, who later became Secretary of State for President 
     Eisenhower. He and other giants from the post World War II 
     period saw the folly of what happened after World War I, when 
     a vindictive peace treaty, that called upon the defeated 
     states to pay huge reparations, helped lead to World War II. 
     They chose otherwise: to do everything possible to cause 
     Germany and Japan to become democratic partners and, as the 
     Cold War with the Soviet Union emerged, allies in that 
     struggle.
       As Judge Walker notes in his opinion, ``the importance of a 
     stable, democratic Japan as a bulwark to communism in the 
     region increased.'' He says, ``that this policy was embodied 
     in the Treaty is clear not only from the negotiations 
     history, but also from the Senate Foreign Relations Committee 
     report recommending approval of the Treaty by the Senate . . 
     . and history has vindicated the wisdom of that bargain.''

  This is George P. Shultz, and I quote further:


[[Page S9231]]


       I served during World War II as a Marine in the Pacific. I 
     took part in combat operations. I had friends--friends close 
     to me--friendships derived from the closeness that comes from 
     taking part in combat together, killed practically beside me. 
     I do not exaggerate at all in saying that the people who 
     suffered the most are the ones who did not make it at all. I 
     have always supported the best of treatment for our veterans, 
     especially those who were involved in combat. If they are not 
     being adequately taken care of, we should always be ready to 
     do more.
       If you have fought in combat, you know the horrors of war 
     and the destructive impact it can have on decent people. You 
     also know how fragile your own life is. I recall being the 
     senior Marine on a ship full of Marines on our way back from 
     the Pacific Theater after 3 years overseas. We all knew that 
     we would reassemble into assorted forces for the invasion of 
     the Japanese home islands. As Marines, we knew all about the 
     bloody invasion of Tarawa, the Palaus, Okinawa, Iwo Jima, and 
     many other Islands. So we knew what the invasion of the 
     Japanese home islands would be like.
       Not long after we left port, an atomic bomb was dropped on 
     Japan. None of us knew what that was, but we sensed it must 
     be important since the event was newsworthy enough to get to 
     our ships at sea. Then we heard of a second one. Before our 
     ship reached the States, the war was over.
       I have visited Japan a number of times and I have been 
     exposed to Hiroshima and Nagasaki. Civilians there were 
     caught up in the war. I am sympathetic toward them. I have 
     heard a lot of criticism of President Truman for dropping 
     those bombs, but everyone on that ship was convinced that 
     President Truman saved our lives. Yes, war is terrible, but 
     the treaty brought it to an end.

  I can divert and express those same sentiments. I didn't get back 
until November. He is talking about August when those bombs were 
dropped in 1945. But there is no question that President Truman was the 
hero for dropping those bombs. But under the International Criminal 
Court, somebody could try to file a claim 50 years later that he was a 
war criminal. A kind of thinking that is going on today is that this is 
politically correct. I will resume reading the letter from George P. 
Shultz:

       The Bill would fundamentally abrogate a central provision 
     of a 50 year old treaty, reversing a longstanding foreign 
     policy stance. The Treaty signed in San Francisco nearly 50 
     years ago and involving 49 nations could unravel. A dangerous 
     legal precedent would be set.
       Once again, I would say to you, where we have veterans, 
     especially veterans of combat who are not being adequately 
     supported, we must step up to their problems without 
     hesitation. But let us not unravel confidence in the 
     commitment of the United States to a Treaty properly 
     negotiated and solemnly ratified with the advice and consent 
     of the United States Senate.
       I submit this letter to you and other members of the House 
     of Representatives with my deep respect for the wisdom of the 
     congressional process, and for the vision embodied in the 
     past World War II policies that have served our country and 
     the world so well.
           Sincerely yours,
                                                 George P. Shultz.

  The PRESIDING OFFICER. The time of the Senator has expired. The time 
between now and 3:15 was to have been equally divided between the 
Senator from South Carolina and the Senator from New Hampshire.

  Mr. HOLLINGS. Let me ask--my distinguished colleague from New 
Hampshire, I am sure, will say a word to extend the time. My 
understanding in the agreement was that it was 3:15.
  I just say that the distinguished Senator's amendment is clear. It 
says, look, Mr. Secretary of State, Mr. Attorney General of the Justice 
Department, you shall not defend the U.S. position. Now, come on. If 
there is a dispute--and there obviously is--with the Senator's 
amendment with respect to the right of these veterans, then let it be 
determined with a comprehensive review, with all the documents and 
everything else in a court of law. This doesn't prevent the veterans 
from moving forward, but it certainly prevents the United States of 
America, through its Department of Justice and Department of State, 
from defending the position of the United States under this particular 
treaty.
  The distinguished Senator from New Hampshire could well say, wait a 
minute, here is this information that has come to light 50 years later. 
Whether that has an effect or not is to be determined. No rights have 
been taken away from my veteran friend here who might stand at my side 
and say, Hollings, I want you to bring the case. Nothing prevents the 
case from being brought. But this amendment says no one defends this 
particular treaty. The Senate, which ratified the treaty, doesn't want 
to take the position that its ratification cannot even be commented on 
by this particular amendment because all funds are removed, no motion 
can be made, no defense can be made. On that basis alone, I will 
support the Senator from Hawaii in his opposition and commend him again 
for his courage, and I commend my friend from New Hampshire for raising 
this particular question because it is a serious one, but it ought to 
be discussed in a court of law and both sides heard fully, without 
saying one particular side can't be defended at all.
  I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SMITH of New Hampshire. Mr. President, I wish to respond briefly 
to a couple of the points my colleague from South Carolina made. The 
argument that our former POWs have already been compensated under the 
War Claims Act and 1951 peace treaty is ridiculous, to be candid about 
it. POWs who were enslaved by private Japanese corporations received 
next to nothing in compensation. Many POWs received nothing--nothing, 
zippo.
  A Federal judge who dismissed many of the lawsuits wrote in his 
opinion--listen to this:

       The immeasurable bounty of life for themselves and their 
     posterity in a free society services the debt.

  That is what he said. If that is not a ridiculous statement, even if 
it did come from a judge, I have never heard one. Here it is again:

       The immeasurable bounty of life for themselves [POWs] and 
     their posterity in a free society services the debt.

  It is true under the War Claims Act POWs could receive minimal 
compensation--a dollar a day--for their claims against the acts of 
powers. They could not be compensated for claims against private 
corporations and nationals who were not agents.
  I want to make it clear to my colleagues that a treaty that is signed 
between the United States and another government that says that a U.S. 
citizen cannot sue another U.S. citizen--excuse me, another citizen in 
a foreign country without due process--it is wrong. You can't do that.
  You cannot deny due process. John Foster Dulles realized it when they 
wrote the side agreement and they wrote this memorandum of 
understanding and then buried it. They classified it. Senator Inouye 
and others have pointed out what article 14(b) says. I read it, and I 
agree. If article 14(b) is read alone without knowing any other 
background, then one could make the case these folks should not have 
that opportunity to proceed.
  This is right out of the memorandum of understanding, and this was 
partially written by Dulles himself:

       Following the conversation of September 3, 1951, between 
     the Secretary of the Dutch Foreign Ministry . . . Dutch 
     Ambassador, and others, we emphasize that the purpose of this 
     statement was not to obligate the Japanese actually to pay 
     out any money to the claimants. He realized fully this was an 
     unlikely possibility. He emphasized, however, the statement 
     he had made to the Secretary the day before that the Dutch 
     Government was faced with a difficult legal problem; namely, 
     without a proper interpretation agreed to by the Japanese, it 
     would appear the Dutch Government was, by the act of signing 
     the Japanese peace treaty, giving up without due process 
     rights held by Dutch subjects.

  That is the same issue with the United States, and Dulles realized 
it. You cannot sign a treaty that says we have no due process against 
another citizen in another country. You simply cannot do it.
  Talk about sticking to the Constitution and defending the 
Constitution. That is exactly what I am doing, and that is exactly what 
John Foster Dulles and others were doing because they realized article 
14(b) was wrong. Then in an effort to cover it all up to satisfy the 
Dutch, he buried it. He classified it and kept it classified for 50 
years to keep these people from having the right to go to court. That 
is what he did. That is what the U.S. Government did. That is wrong, 
and we need to correct it. We can correct it right here today.
  We cannot say we are not defending the Constitution. We are not only 
defending the Constitution, we are defending the rights of individuals 
who live under this Constitution to have due process. That is what we 
are doing, and that is what this debate is about.

[[Page S9232]]

  I yield the floor, Mr. President.
  Mrs. FEINSTEIN. Mr. President, I rise to express my opposition to the 
Smith Amendment to the Commerce-Justice-State Authorization.
  I do not do so because I think that the lawsuits filed against the 
Japanese corporations by the former Prisoners of War who were used as 
slave labor during World War II should not go forward--just the 
opposite--but because I believe that this Amendment takes the wrong 
approach to this issue.
  I strongly support the right of the POWs to file lawsuits against the 
Japanese corporations. The POWs and veterans are only seeking justice 
from the private companies that enslaved them, and these claims should 
be allowed to move forward.
  In fact, Senator Hatch and I introduced legislation earlier this 
year, S. 1272, the POW Assistance Act of 2001, precisely because I 
believe that it is important for those POWs who were used as slave 
labor during World War II to have their day in court, and an 
opportunity to press their claims for remuneration and compensation.
  There are serious questions about whether the 1951 Treaty between 
Japan and the United States has settled these claims, and these 
questions should be dealt with seriously. But as these lawsuits go 
forward, I do not think that it is right and proper to enjoin the 
Department of State and the Department of Justice from offering the 
court their opinion on the meaning and interpretation of the 1951 
Treaty. That opinion--which may ultimately be determined to be 
incorrect--is a perfectly legitimate part of the proceedings.
  I strongly support the right of the POWs to seek justice. This is a 
matter that belongs before the courts. But I do not think that the 
Smith Amendment is the right way to go, and I urge my colleague to 
oppose its passage.
  Mr. NELSON of Florida. Mr. President, I want to express my support 
for amendment No. 1538 of Senators Smith and Harkin regarding American 
POWs held in Japan. I do so with much respect for those who have served 
and suffered horrible treatment as a result of their service. I was 
traveling with President Bush in Florida when the vote occurred, but 
had I been present, I would have voted ``nay'' to the motion to table 
the amendment.
  We do have an international treaty with Japan to which we are bound. 
But, this amendment is not about what the Treaty signed 50 years ago 
does or does not allow. It is about due process to those Americans who 
suffered a grievous wrong. The point is that these brave Americans be 
allowed their day in court to have their case heard. Actions by the 
Departments of Justice and State to block such actions deprive them of 
fairness and due process. Congress should not be a party to such 
deprivations.
  I support the Smith-Harkin amendment and wish to be on record as 
opposed to the motion to table it.
  Mr. BYRD. Mr. President, during World War II, 36,000 Americans were 
captured and held prisoner by Japan. The story of the often horrific 
treatment of these prisoners is punctuated by episodes such as the 
Bataan Death March, where ten Americans lost their lives for every mile 
of the gruesome journey, and by the pictures of the emaciated soldiers 
who spent years in confinement on starvation rations. I cannot think of 
any way in which we, as a nation, could begin to repay the men who 
suffered through such abhorrent treatment.
  The amendment before us today, offered by Senator Smith and Senator 
Harkin, however, puts in jeopardy constitutional principles that each 
member of the Armed Forces, and each member of this body, swore to 
uphold. The amendment would prevent the Department of State and the 
Department of Justice from defending the U.S. Government in court 
against lawsuits that challenge whether provisions in the Treaty of San 
Francisco will continue to be in force as the law of the land.
  The treaty, which brought peace between Japan, the United States, and 
our Allies in World War II, explicitly settled all wartime reparations 
claims that might arise against Japan. The text of the peace treaty is 
very clear in this regard. Because, under Article VI of the 
Constitution, a ratified treaty is the supreme law of the land, it is 
equally clear that this treaty prohibits the Government of the United 
States, or its people, from seeking further reparations from the 
Government of Japan, or its people. This is the position that the 
Department of State and the Department of Justice have maintained since 
ratification of the treaty in 1952.
  The amendment before us would prohibit those departments from arguing 
in court against lawsuits that violate the peace treaty. It would 
prevent the U.S. Government from upholding a supreme law of our land. 
It would prohibit our government from acting in a responsible manner in 
support of our international obligations. It would stop the executive 
branch from taking action on this issue, which affects our foreign 
policy. I cannot support an amendment that challenges so many of our 
basic constitutional principles on the importance of treaties and the 
conduct of foreign policy.
  This is not to say that our veterans who were held prisoner by Japan 
must be denied compensation or restitution for the inhumane treatment 
they suffered. Those veterans were eligible for compensation 
distributed by the U.S. Government under the War Claims Act of 1948. 
The proponents of the amendment before us may believe that compensation 
was not sufficient, which may be true. There are other ways to 
compensate our veterans that do not tread upon constitutional 
principles. One proposal is in the Fiscal Year 2002 Defense 
Authorization bill, as reported by the Armed Services Committee last 
Friday.
  The bill authorizes the Department of Veterans Affairs to pay $20,000 
to former prisoners, or their surviving spouses, who were forced to 
perform slave labor while held by Japan. Such a proposal would allow 
those veterans to receive the compensation they seek, without 
challenging the legal status of a ratified treaty. There may be other 
proposals to compensate the veterans in question as well.
  We must also consider how other countries would react to an action by 
Congress that would question our Nation's adherence to a 50-year-old 
treaty with one of our closest allies. Already this year, the United 
States has shown an alarming tendency toward unilateralism in regard to 
a number of international agreements: the Kyoto Protocol, the Anti-
Ballistic Missile Treaty, the International Criminal Court, the 
Biological Weapons Convention, and the U.N. convention on small arms. A 
move to reverse a major provision of such a longstanding peace treaty 
would be an disconcerting confirmation, and escalation, of this trend. 
This is a particularly inopportune time to raise further questions 
about our Nation's ability to cooperate with other countries.
  I urge my colleagues not to view the vote on the Smith-Harkin 
amendment as an up-or-down vote on our veterans. There are serious 
constitutional and foreign policy issues at stake, and other means to 
compensate these veterans have not yet been exhausted. We should take a 
closer look at alternative means of compensation, and reject this 
attempt to tie the hands of our government in discharging its 
constitutional duty to defend a ratified treaty.
  The PRESIDING OFFICER (Mr. Wyden). The Senator from Hawaii.
  Mr. INOUYE. Mr. President, I ask unanimous consent that the Senator 
from Nebraska be given 10 extra minutes to present his statement.
  The PRESIDING OFFICER. Without objection, it is so ordered. The 
Senator from Nebraska.
  Mr. HAGEL. Mr. President, I thank my friend, the distinguished senior 
Senator from Hawaii, who is, as we have heard today, one of the most 
distinguished veterans of World War II, as is his colleague, the 
distinguished Senator from South Carolina.
  I am a bit of an interloper on this issue, except to say my father 
spent 3 years in the South Pacific during World War II in the Army Air 
Corps. So I know some of what my distinguished colleagues are talking.
  I am most appreciative of the efforts and the motives of the 
distinguished Senator from New Hampshire, Mr. Smith. I know of his 
father's great sacrifice during World War II, meaning the sacrifice 
Senator Smith's family made to this country. I do not tread upon this 
subject lightly.
  I rise to oppose this amendment. The Senator from South Carolina and 
the Senator from Hawaii have made very significant, substantive points 
as to

[[Page S9233]]

why it is the wrong course of action, in the opinion of some, including 
this Senator from Nebraska.
  I will say first, there is surely no way a grateful nation can ever 
adequately compensate or express our feelings to those brave men and 
women who gave so much to this country, who were the subjects of the 
slave labor camps, the forced marches, the unspeakable brutality, 
except this: We should put some of this in some perspective. What, 
indeed, was it that these brave men and women fought and endured for? 
It was freedom. It was the liberty for a nation, an individual, to have 
the kind of life and dignity for which America has stood for over 200 
years. That is what it was about.
  How do we compensate, how do we adequately thank these men and women? 
We cannot, of course, but we should remember this: What they fought 
for, what they endured, can be, in fact, recognized by knowing and 
understanding that the greatest legacy any of us can leave in life is a 
family, the world better than we found it, and accomplishing something 
much greater than our own self-interests. That is the most important 
dynamic for me as I have listened to this debate and as I have read the 
reasons and listened to the reasons that Senator Smith has put forward 
to essentially change our treaty obligations.
  Make no mistake. This is a very significant step that this body, this 
Congress, this Nation will take if, in fact, we vote for this 
amendment. Great nations honor their treaty commitments. Treaty 
commitments are important, and we can debate the specifics of sections 
and paragraphs of law and treaties, and as has been articulated rather 
directly and plainly this afternoon, there are various interpretations 
of that. But we should make it very clear that this great Nation will, 
in fact, live up to its commitments of our treaties, a commitment that 
we made 50 years ago when that treaty was signed in San Francisco, 
which was, as expressed here, commemorated last weekend. It is a 50-
year treaty.
  Was it awkward? Was it done not exactly the right way? Were parts of 
that treaty misclassified? Why did we classify some of it in the way we 
did? I suppose we could take days, weeks, and months debating that, but 
that is part of a smaller issue. The bigger issue really, in fact, is: 
Are we, in fact, going to unilaterally reinterpret the commitment we 
gave to 48 other nations that signed this treaty 50 years ago? That is 
really the issue.
  American prisoners of war forced into slave labor by Japan during 
World War II suffered unspeakable brutality, and their treatment by 
Japanese overseers violated every standard of human decency. Their 
sacrifice and heroism now forms one of the most distinguished chapters 
in American history.
  While we must not forget these Americans who suffered so greatly, we 
also must not forget our country's historic and principled decision in 
the aftermath of this terrible conflict. Our peace treaty with Japan 
was not punitive. Although the United States had defeated a brutal 
enemy, we chose not to claim the spoils of war. Instead, the peace 
treaty with Japan reflected the great humanity, vision, spirit and 
generosity of the American people. Referred to at the time as a ``Peace 
of Reconciliation,'' it looked forward to Japan's economic recovery and 
not backward to its defeat. Most important, it reflected the new 
stirrings of a great and magnanimous superpower.
  In 1945, most Americans felt the terms of surrender with Japan were 
too lenient. By 1951, most Americans began to see Japan in a very 
different light--as a potential friend and ally in East Asia, not as an 
implacable foe. When John Foster Dulles negotiated our generous peace 
with Japan, waiving all reparation claims, the American public 
supported the treaty, and the Senate ratified it with a lopsided 
majority, 66-10, on March 20, 1952. The United States has stood behind 
this decision for 50 years. Last Saturday, on September 8, Secretary of 
State Powell and Japanese Foreign Minister Tanaka commemorated the 50th 
anniversary of the Treaty of San Francisco at San Francisco's War 
Memorial Opera House, and formally renewed the strategic partnership 
between the United States and Japan. This relationship stands as one of 
this country's most important--a tie of friendship and common interest 
that will grow stronger and become increasingly important to our 
strategic interest in East Asia and the world in the coming decades.
  Senate amendment No. 1157, which has been offered today, would 
prevent the State and Justice Departments from stating our San 
Francisco Treaty obligations in court. This action is not 
insignificant. It would hamper the President's ability to conduct 
United States foreign policy, and it would violate the spirit, and 
likely the letter, of one of the most significant treaties of the 20th 
century. This would set a dangerous precedent. While many of my 
distinguished colleagues may no longer agree with the decision made by 
the United States in 1951, it still stands as a treaty obligation and 
the official United States position in U.S. court cases. We are a 
nation that upholds the rule of law and honors its treaty commitments.

  How then should we honor and fairly compensate the Americans who 
suffered grievously as slave or forced labor in World War II without 
violating our long-held treaty obligation with Japan? Two of our World 
War II allies, Canada and the United Kingdom, recently provided 
compensation to their prisoners of war--recognizing that Japan has no 
obligation to do so under the Treaty of San Francisco. This is a model 
that we might consider using for the surviving American prisoners of 
war who suffered as Japanese slaves or forced laborers, without 
undermining our treaty obligations. Under the War Claims Act of 1948, 
and its 1952 amendment, the United States Government took all 
responsibility for compensating World War II prisoners of war. Our 
prisoners of war received some compensation in the decade following 
World War II. Senators Bingaman and Hatch introduced legislation, S. 
1302, early last month to provide $20,000 to each veteran or civilian 
internee, or their surviving spouses.
  The last Congress, the 106th Congress, enacted Senate Concurrent 
Resolution 158 calling on the Secretary of State to facilitate 
discussions between American prisoners of war forced into slave labor 
during World War II and the Japanese companies that benefitted from 
their enslavement. The issue of forced and slave labor has been raised 
with the Japanese government at a variety of levels by our State 
Department. The recent decision by Germany to compensate slave and 
forced laborers during World War II may provide a model on this issue.
  Japan and the United States commemorated the 50th anniversary of the 
Treaty of San Francisco over the weekend. The treaty underpins and 
supports the United States security structure in East Asia, and forms 
the basis of our friendship with Japan. Treaty commitments and 
symbolism are important. We should not risk our reputation as a 
reliable treaty partner by unilaterally reinterpreting an important 
provision of this treaty that has stood for 50 years. Great nations are 
consistent. We should act appropriately.
  I will oppose this amendment.
  Once again, I ask my colleagues to pay careful attention to this 
amendment, and in the next couple of hours, if you are not aware of 
what this amendment does, please make yourself aware of it because if 
we vote for this amendment, it will be about much bigger things than 
the specific point of this amendment. I do not believe that is in the 
best interests of our country, the best interests of the world, and, 
quite honestly, the best interests of the very families and the 
legacies these brave men and women will leave behind and what they 
endured for us.
  I ask my colleagues to oppose this amendment as we vote this 
afternoon and once again recognize the Senator from New Hampshire for 
his motives, for his intent, but in this Senator's opinion it is the 
wrong approach to accomplish something that is important.
  I thank the Chair. I yield the floor.
  The PRESIDING OFFICER. The Senator from South Carolina.
  Mr. HOLLINGS. I believe there is no further statement to be made with 
respect to the Smith amendment and that now the unanimous consent 
agreement takes place whereby the distinguished Senator from North 
Dakota will ask to set the Smith amendment aside, to be brought up at 5 
p.m. with the time equally divided between 5 p.m. and 5:30 p.m., and 
the vote to

[[Page S9234]]

occur at 5:30 p.m. Until then, the agreement is the Senator from North 
Dakota will be recognized for him to offer an amendment.
  The PRESIDING OFFICER. The Senator from North Dakota.

[...]

  Mr. SMITH of New Hampshire. Mr. President, it is my understanding we 
have the vote on the Smith amendment at 5:30. Is that correct?
  The PRESIDING OFFICER. That is correct.
  Mr. SMITH of New Hampshire. I say to my colleagues who are also here 
to speak, I will be very brief in deference to those on both sides who 
wish to speak.
  I want to say what the Smith amendment does. It says:

       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 any court opposing a civil action against any 
     Japanese person or corporation for compensation or 
     reparations in which plaintiff alleges that, as an American 
     prisoner of war during World War II, he or she was used as 
     slave or forced labor.

  All this says is that no funds in this act will be used to block that 
lawsuit.
  That is it. We are not making any editorial comment on the merits or 
demerits of the lawsuit or who should win it. I have personal feelings 
about who should win it. I believe the Ameican POWs should win the 
lawsuits. That is up to the courts. All we want to do is let that 
process proceed.
  I also want to make it very clear that this amendment does not 
abrogate the 1951 peace treaty with Japan. I repeat, It does not 
abrogate the 1951 peace treaty with Japan. It merely limits the State 
and Justice departments from interfering in the veterans' lawsuits.
  Why does it not do it? Because article 26 makes it very clear that if 
the Japanese should enter into any agreement that is more advantageous, 
then the same terms apply to all the signatories to the treaty. That is 
what it says. Should Japan make a war claims settlement with any state 
granting that state greater advantage than those provided by the 
present treaty, those same advantages shall be extended to the parties 
to the present treaty.
  Did that happen? The answer is, yes, it did--right here in an 
agreement that was written between the Japanese Government and the 
Dutch. The point is it did happen.
  We are not violating the treaty. Article 26 is part of the treaty. We 
are simply complying with the treaty.
  The bottom line is we are not only not abrogating it, but we are 
complying with the treaty. This is about whether or not we are going to 
side with Japanese companies or American war heroes. That is the bottom 
line. That is the issue. As Senator Hollings said a while back, this is 
about the Constitution and about the treaty; it is not. We are 
complying with the treaty with this amendment.
  This is about siding with Japanese companies in this lawsuit or with 
American war heroes.
  That is the issue. We are not even doing that. We are just allowing 
the process to move forward because American war heroes can have their 
day in court. That is all we are doing. The treaty allows for that very 
clearly.
  As I indicated in my previous remarks today, John Foster Dulles, when 
he did the background and memorandum of understanding and wrote some of 
this language, understood it, too. Then this was classified for 50 
years.
  We didn't know about it. The lawyers who are trying to present these 
lawsuits on behalf of American war heroes--the greatest generation--
didn't have access to this information until it was declassified a year 
ago. That is what this is about, pure and simple. There is nothing 
complicated.
  You are either for allowing American war heroes who were in the 
Bataan Death March and who were forced into slave labor camps to have 
their day in court--you don't even have to be for them winning, as I 
happen to be, and as I know many others are. You just have to be for 
allowing them their day in court as is prescribed under that 1951 
treaty, period. That is what it is about. You are either for that or 
you are for the Japanese companies that basically forced them into 
slave labor.
  That is the difference. That is what we are talking about in this 
amendment.
  I yield the floor.
  The PRESIDING OFFICER (Mr. Corzine). The Senator from Hawaii is 
recognized.
  Mr. INOUYE. Mr. President, I believe all of us will agree that the 
atrocities committed and the inhumane treatment of our war prisoners 
cannot be condoned and cannot in any way be justified. We condemn those 
atrocities. It is not a question of Japanese corporations versus 
American heroes. What is involved is the Constitution of the United 
States. Article II makes it very clear that treaties are to be 
negotiated by the President or the executive branch of this country--
not by any State, nor by any individual, nor by the Senate. It will be 
by the executive branch. There is no question about that.
  The document that my dear friend from New Hampshire has referred to 
which was arranged by our then-Secretary of State, John Foster Dulles, 
should be praised and not condemned. I would like to explain.
  I believe the references to this arrangement is a bit misleading. I 
say so most respectfully. This arrangement which was engineered by 
Secretary Dulles was simply a side agreement designed to address a 
domestic issue for the Dutch and thereby enabling the Dutch to sign on 
as a signatory to the treaty of peace in San Francisco.
  It does not in any way change the terms of the treaty. My colleagues 
from New Hampshire and Iowa have read the documents. But somehow we 
have slid over certain words. If I may, very carefully I will quote 
from their document.

       However, the Japanese Government points out that under the 
     treaty allied nationals will not be able to obtain 
     satisfaction regarding such claims. Although, as the 
     Netherlands government suggests, there are certain types of 
     private claims by allied nationals which the Japanese 
     Government might wish voluntarily to deal with.

  We have somehow skimmed over that word ``voluntarily.''
  At this moment, Mr. President, if you wanted to sue me and I said to 
you, I voluntarily open myself up to you, we need not go to court, no 
one is going to fuss over that. If at this moment a prisoner of war of 
the United States should decide that he wants to sue the Japanese 
Government or a Japanese national notwithstanding the treaty, and if 
that Japanese national or the Japanese Government should say, yes, they 
voluntarily expose themselves, we don't have to break the treaty. But 
if the Japanese Government or the Japanese national should resist and 
challenge that claim, then I say the executive branch of the Government 
of the United States should have every right to intervene in such a 
suit because it does impact upon the treaty of San Francisco.
  I think we should read this again:

       There are certain types of private claims by allied 
     nationals which the Japanese Government might wish 
     voluntarily to deal with.

  This amendment is not necessary. If you want to sue the Japanese 
Government or its national at this moment, and the Government and the 
national said to you, yes, they will voluntarily enter into an 
agreement with you to compensate you for whatever claims you may have, 
no one is going to complain. But this amendment will without question 
impact upon the treaty. It will abrogate the treaty. Then other 
countries will begin to doubt our good word. Is our word good? Are the 
promises made by the United States good? We are constantly criticizing 
other nations for violating, if I may say, provisions of treaties.
  This is very simply an attempt on the part of the United States to 
violate a provision of a treaty. I hope that my colleagues will not 
lead us down this very dangerous path. If we violate, how can we be 
critical of other nations violating provisions of their treaties? So I 
hope this matter will be settled. And accordingly, if I may, Mr. 
President, I move to table the Smith amendment.

  The PRESIDING OFFICER. The motion is premature while time remains.
  Mr. INOUYE. I assumed the Senator had finished.
  Mr. SMITH of New Hampshire. Senator Harkin wishes to speak.

[[Page S9240]]

  Mr. INOUYE. I am sorry.
  The PRESIDING OFFICER. The Senator from Iowa.
  Mr. HARKIN. How many minutes do we have?
  The PRESIDING OFFICER. Six minutes.
  Mr. HARKIN. Mr. President, first of all, we are not abrogating any 
treaties with this amendment. How could we abrogate a treaty with an 
amendment that simply says: No moneys can be expended by the State 
Department Attorney General to go into court opposing our POW cases 
against private Japanese companies? That is all we are saying. Again, 
we have done this time and time and time again in the history of this 
country. This is not something new.
  We have the power to do that. We have the power of the purse strings. 
We are not abrogating the treaty. We are just saying that the U.S. 
Government cannot go into court using taxpayer money to oppose the POWs 
who are filing these lawsuits.
  If the court upholds the treaty and says that they cannot get 
anything, that they have already been compensated, well, that's the end 
of it. I guess they can appeal it to the Supreme Court of the United 
States, but if the courts find, as my friend from Hawaii says, that 
this treaty holds and would be abrogated, and we can't do that, then 
that is the end of the case, but at least the POWs will have had their 
day in court.
  That is all we are asking with this amendment. We are not abrogating 
any treaties; we are simply trying to uphold the rule of law and our 
own private citizens' rights.
  Let's keep in mind whom we are talking about: 30,000 men who served 
their country in unbearable conditions in Japanese prisoner-of-war 
camps. Now we are talking about at least 700 of them--some from my own 
State of Iowa--seeking some long-delayed justice. They have gone to 
court to demand compensation from the Japanese companies that used them 
as slave laborers.
  And who were these companies? Mitsubishi, Mitsui, Nippon Steel. These 
are not tiny, little companies that are going to go broke because they 
might have to pay these people some back wages and compensation for 
what they endured during those war years.
  I think it is unconscionable that our own State Department has 
intervened in the courts to keep them from pressing their case. That is 
not right. It is not fair.
  So, No. 1, this amendment does not, in any way, undermine the treaty. 
Let the court decide that. All we are saying is, the State Department 
cannot use our taxpayers' money--the very taxes paid by these former 
POWs--to go into court to keep them from seeking redress.
  No. 2, this does not violate a separation of powers. We have, time 
and time again, used the power of the purse strings to say that the 
Attorney General cannot intervene in certain court cases. That is 
nothing new. We have done that before.
  No. 3, they have said the POWs have already been compensated by the 
United States. Well, I talked to three POWs from Iowa who were slave 
laborers in Japan during the war, and not one of them got paid. So I do 
not know whom they are talking about, but they did not get a dime.
  No. 4, it has been said this opens up the United States to lawsuits 
from other countries. Again, the United States was known to treat our 
POWs more decently. Many of the German POWs who worked here in the 
cotton fields were indeed paid for their work when they worked in the 
United States as POWs.
  Again, we can get wrapped up in all these details, but let's keep in 
mind what we are talking about. We are talking about men who survived 
on a cup of rice a day. The one person I knew in Iowa, who is still 
alive, went from 160 pounds down to 68 pounds in 3 years working in a 
Japanese auto parts factory and then in the lead mines in Japanese 
occupied territory.
  Again, these survivors and their families should at least give them 
their day in court. That is all we are asking. Mitsubishi, they have a 
lot of money. Nippon Steel, they can hire the best lawyers if they want 
to argue this case.
  Mr. President, I ask unanimous consent to have printed in the Record 
the number of former POWs in various States who would be affected by 
this class action suit: 1,454 in California, 200 in Arizona, 200 in 
Colorado, 150 in Georgia, 150 in Illinois--I am not going to read the 
whole list, but I ask to have that list printed in the Record.
  There being no objection, the material was ordered to be printed in 
the Record, as follows:

   State by State Listing of Survivors and Their Families who Would 
         Benefit or Would Be Affected by the Class Action Suit

       Arizona: 200.
       California: 1,454
       Colorado: 200.
       Georgia: 150.
       Illinois: 150.
       Louisiana: 140.
       Maryland:, 1,154.
       New York: 240.
       Virginia: 189.
       Oregon: 250.
       Texas: 972.
       Washington: 350.
       Wisconsin: 106.
       Ohio: 100.
       North Carolina: 100.
       Pennsylvania: 100.
       Massachusetts: 100.
  Mr. HARKIN. Mr. President, again, let's keep in mind that all the 
Smith-Harkin amendment says is: Do not use taxpayers' money to have the 
State Department come into court to fight our former POWs who are 
seeking compensation from Japanese companies that never paid them. That 
is all we are asking. If the judge and the Supreme Court of the United 
States find that they cannot abrogate that treaty, that is the end of 
it, but at least give them their day in court.
  Let's not turn our backs on them. They suffered long enough. It is 
time they get their just compensation.
  Mr. President, I yield the floor.
  The PRESIDING OFFICER. The Senator from New Hampshire.
  Mr. SMITH of New Hampshire. Mr. President, just a unanimous consent 
request.
  I ask unanimous consent that Senator Wayne Allard be added as a 
cosponsor to the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  The sponsors' time has expired.
  Who yields time?
  The Senator from Hawaii.
  Mr. INOUYE. Mr. President, as I indicated earlier this afternoon, it 
was certain that this debate would become a highly emotional one. A few 
of us were involved in that ancient war, and we know what the Bataan 
Death March was all about. We do not condone that; we condemn it. We 
are not here to justify or provide a rationale for the actions taken by 
the Japanese troops; far from it. But we are here to maintain the 
integrity of our country and our treaties.
  Yes, we have provided provisions in the appropriations bill stopping 
our Departments from suing on certain issues, but never on a treaty. 
This one will break a treaty.
  So, Mr. President, I hope my colleagues will go along in support of 
my motion to table.
  Mr. SMITH of New Hampshire. Mr. President, before the motion is made, 
I have one more unanimous consent request.
  I ask unanimous consent that Senator Ben Campbell also be added as a 
cosponsor to the amendment.
  The PRESIDING OFFICER. Without objection, it is so ordered.
  Who yields time?
  Mr. INOUYE. Mr. President, what is the time situation?
  The PRESIDING OFFICER. The opposition has 2 minutes remaining.
  Mr. INOUYE. I yield back the remainder of our time and move to table 
the Smith amendment.
  Mr. HOLLINGS. I ask for the yeas and nays.
  The PRESIDING OFFICER. Is there a sufficient second?
  There appears to be.
  The question is on agreeing to the motion. The clerk will call the 
roll.
  The legislative clerk called the roll.
  Mr. REID. I announce that the Senator from Missouri (Mrs. Carnahan), 
the Senator from North Carolina (Mr. Edwards), the Senator from 
Massachusetts (Mr. Kerry), the Senator from Florida (Mr. Nelson), the 
Senator from Michigan (Ms. Stabenow), and the Senator from New Jersey 
(Mr. Torricelli) are necessarily absent.
  Mr. NICKLES. I announce that the Senator from Arizona (Mr. Kyl) and 
the Senator from Arizona (Mr. McCain) are necessarily absent.

[[Page S9241]]

  The PRESIDING OFFICER (Mr. Carper). Are there any other Senators in 
the Chamber desiring to vote?
  The result was announced--yeas 34, nays 58, as follows:

                      [Rollcall Vote No. 276 Leg.]

                                YEAS--34

     Akaka
     Biden
     Bond
     Byrd
     Carper
     Chafee
     Cleland
     Corzine
     Daschle
     Dodd
     Enzi
     Feinstein
     Fitzgerald
     Gregg
     Hagel
     Helms
     Hollings
     Inouye
     Jeffords
     Kohl
     Levin
     Lott
     Lugar
     McConnell
     Mikulski
     Murkowski
     Nelson (NE)
     Nickles
     Reed
     Reid
     Rockefeller
     Sarbanes
     Stevens
     Thompson

                                NAYS--58

     Allard
     Allen
     Baucus
     Bayh
     Bennett
     Bingaman
     Boxer
     Breaux
     Brownback
     Bunning
     Burns
     Campbell
     Cantwell
     Clinton
     Cochran
     Collins
     Conrad
     Craig
     Crapo
     Dayton
     DeWine
     Domenici
     Dorgan
     Durbin
     Ensign
     Feingold
     Frist
     Graham
     Gramm
     Grassley
     Harkin
     Hatch
     Hutchinson
     Hutchison
     Inhofe
     Johnson
     Kennedy
     Landrieu
     Leahy
     Lieberman
     Lincoln
     Miller
     Murray
     Roberts
     Santorum
     Schumer
     Sessions
     Shelby
     Smith (NH)
     Smith (OR)
     Snowe
     Specter
     Thomas
     Thurmond
     Voinovich
     Warner
     Wellstone
     Wyden

                             NOT VOTING--8

     Carnahan
     Edwards
     Kerry
     Kyl
     McCain
     Nelson (FL)
     Stabenow
     Torricelli
  The motion was rejected.
  The PRESIDING OFFICER. The question is on agreeing to the amendment.
  The amendment (No. 1538) was agreed to.

[...]




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