32. Testimony on legislation to create federal cause of action (September 25, 2002)

Statement of Department of State
Legal Adviser
William Howard Taft, IV
On H.R. 1198
(September 25, 2002)

Mr. Chairman and Members of the Committee:

I very much appreciate the opportunity to appear before you to provide the Department of State's views on H.R. 1198, "The Justice for United States Prisoners of War Act".

In short, the Department supports justice for U.S. prisoners of war, but it does not support H.R. 1198 and would oppose its enactment.

By "justice for U.S. prisoners of war," we mean that the United States should assure that our POWs, together with all our veterans, should receive full and fair compensation for their service. Special hardships connected with that service, such as those suffered by POWs, should be considered in determining what compensation is proper. Obviously, no amount of money can fully compensate those who, as POWs, have survived years of ill treatment in unspeakable conditions; those who have become permanently disabled in the service of our country; or, much more, those who have given their lives in that service. Nonetheless, we owe it to those who serve to do our best to establish an equitable system that takes into account the many different situations they experience. It is an obligation the United States has to its servicemen -- all of them. It should not depend for its fulfillment on such unpredictable and variable factors as whether some person or corporation responsible for a particular injury is liable to suit, has the ability to pay, or decides as a matter of discretion to be generous.

In the aftermath of World War II, the government had to determine how to compensate those who had served in that conflict. There was naturally special concern for those who had been POWs in the Pacific Theater, and special provision was made for their compensation. This was done with full consideration of the circumstances of others who had served. A War Claims Fund was established to finance this effort. [See, e.g., Hearings before the Committee on Foreign Relations of the United States Senate on Japanese Peace Treaty and Other Treaties Relating to Security in the Pacific, pp. 145-147 (January 21-23, and 24, 1952); War Claims Act of 1948, as amended, 50 U.S.C. App. � 2001, et seq.; 1951 Peace Treaty, Article 16, 3 U.S.T. 3185.]

The Peace Treaty with Japan was negotiated, signed and ratified against this background. It provided, among other things, that certain assets of the Japanese Government and Japanese nationals would be confiscated and used to compensate U.S. citizens and servicemen for claims against Japan. [Treaty, Article 14.] The U.S. used some of these assets to make payments to POWs specifically and some for other purposes. [War Claims Act of 1948, as amended, supra.] The Treaty expressly waived all claims of U.S. nationals "arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war..." [Treaty, Article 14(b).] This waiver applies to claims by POWs as well as others.

In giving its advice and consent to the Treaty, the Senate considered the extent of the claims it was waiving and the money available to satisfy them in the War Claims Fund. In addition to Japanese assets confiscated by the U.S., there was a chance that assets confiscated by other Allied governments would be available. Beyond that, however, the Senate was informed in response to its inquiry that, "U.S. nationals . . . must look for relief to the Congress of the United States." The Senate Foreign Relations Committee advised the Senate accordingly in reporting the Treaty, noting that it was "the duty and responsibility of each [Allied] government to provide compensation for persons under its protection as that government deems fair and equitable, such compensation to be paid out of reparations that may be received from Japan or from other sources." [Hearings, supra, at 147; emphasis added.]

So, the Treaty waived the claims against Japanese nationals that H.R. 1198 seeks to revive. Moreover, in approving the Treaty the United States clearly understood that any additional compensation for POWs or other U.S. claimants was its own responsibility. Former Secretary Shultz, in the letter he wrote in June last year to the Chairman and Members of this Committee, expressed the same view: "Where we have veterans," he said, "especially veterans of combat who are not being adequately supported, we must step up to their problems without hesitation." I am sure all Americans would agree.

"But," Secretary Shultz continued, "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 U.S. Senate." Because that is what H.R. 1198 would do, we cannot support it.

I would like to mention briefly three reasons why the Administration opposes its enactment.

First, H.R. 1198's revival of World War II claims against Japanese nationals that were waived in the 1951 Peace Treaty would be inconsistent with our Treaty commitments, as clearly understood by our negotiators and by the United States Senate when it gave its overwhelming advice and consent to ratification.

Second, walking away from our commitments under the 1951 Peace Treaty would have adverse foreign policy consequences. The Treaty has for 50 years been the cornerstone of U.S. security policy in the Pacific region. Abandoning it now could have serious repercussions for our defense relationship with Japan and other countries in the region, apart from generally damaging U.S.-Japan relations.

Third, H.R. 1198 raises constitutional concerns. The bill raises separation of powers concerns, since Congress would assume the constitutional prerogative of the Judicial and Executive branches to determine what treaties of the United States mean. This problem is evident in the bill's central provision -- its mandate of a specific judicial construction of Article 14(b) of the Treaty, one that is inconsistent with prior Judicial and Executive branch constructions of the provision. Many of the findings recited in section 2 of the bill are likewise inconsistent with the conclusions reached by the Judicial and Executive branches.

In conclusion, the Administration is of the view that H.R. 1198 is -- on both legal and policy grounds -- the wrong way for the United States to go. If we determine that additional assistance is necessary to the well-being of our World War II POWs from the Pacific Theatre -- or any other group of veterans, for that matter -- the way to provide such relief consistent with the Treaty would be for the Congress to appropriate funds for that purpose.

Thank you very much for your attention. I will be pleased to answer any questions that the Members may have.