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Post Lawsuit Against Japan on Behalf of US POWs at Santo Tomas, Philippines
Created by John Eipper on 12/05/13 1:25 PM

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Lawsuit Against Japan on Behalf of US POWs at Santo Tomas, Philippines (David Duggan, USA, 12/05/13 1:25 pm)

When commenting Bienvenido Macario's post of 3 December, John Eipper had asked that I give an account of the lawsuit that my former human rights law firm, D'Amato, Keegan & Duggan LLC, had filed on behalf of US citizen internees at the Santo Tomas concentration camp in the Philippines against the nation of Japan. Allowing that I am going by memory without resorting to the pleadings or briefs that were filed, this is what I can say:

Through contacts in what amounted to an "alumni club" of Santo Tomas internees, my partners, Tony D'Amato and Susan Keegan, learned that an entire class of US citizens, both combatants and non-combatants, had never been compensated by the Japanese for the war crimes committed against them. This, despite the fact that an international tribunal, similar to that at Nuremberg, had declared Japan the aggressor in the war in the Pacific, and a number of Japanese war leaders had been executed for their conduct in prosecuting the war. The Japanese had assiduously resisted paying reparations to any of their victims, the Korean "comfort women" of recent note, but including any of the Pacific rim and island inhabitants whom they brutalized under their reign claiming racial superiority to others whom they conquered. Indeed, John Foster Dulles, one of the United States' negotiators at the 1951 San Francisco treaty that re-created the Japanese state, believed that it was the Allies' demand for reparations against Germany after World War I that led to World War II; and, fearing a communist Japan was worse than an unexpiated Japan, made no provision for reparations.

Here is where the legal issue comes in. In a pre-World War II case, the US Supreme Court had held that when a foreign country treats with the United States, it is charged with knowledge of the United States' internal law, including in this instance, the Fifth Amendment's prohibition on the taking of private property without just compensation. The internees' claims were their "property," and the United States had (illegally) bargained them away without compensating them (well, some who had been forced into labor camps and given starvation rations had received the equivalent of a couple dollars a day for their trouble, paid from the proceeds of property seized during the war as a prize, but that could hardly qualify as "just compensation"). So, we mounted a two-prong attack on behalf of three class representatives: Mel Rosen, a US Army officer who was in the Philippines when they were conquered (and was a survivor of the Bataan death march), Ethel Blaine Millett, a civilian nurse at a US Army hospital, and Gil Hair, an infant at the time whose development was stunted as a result of his internment.

The first prong was to sue the nation of Japan for war crimes, under the same principle that OJ Simpson, having been found "not guilty" in a criminal trial, could still be held for damages for causing the wrongful death of Ron Goldman and Nicole Brown Simpson. Here, however, Japan had been found "guilty" of waging unlawful war. The second prong was to sue the United States in the Court of Claims for having bargained away the internees' claims in the San Francisco treaty. (Mel Rosen, loyal officer to the end, would be no part of the action against his government. Therefore, we did not have to confront the "Feres doctrine," which holds that an active-duty member of the US military has no cause of action against the government for negligence or other conduct that results in his injury or death.)

Our action against Japan was filed in Chicago the week before 9/11, and therefore lost a lot of notoriety by the eclipsing events. We had some difficulty securing service against the nation under a 1967 Hague treaty that provided for service abroad in "civil law" countries. But after several attempts, we succeeded and Japan appeared through the DC law firm that gave us Chief Justice Roberts. Japan moved to dismiss on the grounds that venue was improperly laid in the Northern District of Illinois under a provision in the 1976 US Foreign Sovereign Immunities Act which purported to require all actions against a foreign government to be filed in DC. The US Attorney General also weighed in and claimed that in fact some reparations had been made, and whatever other claims were out there were too stale. The district judge granted Japan's motion to dismiss and no appeal was taken.

I was less involved in the Court of Claims action filed in DC, but that too was dismissed. The United States Court of Appeals for the Federal Circuit upheld the dismissal on the grounds of the six-year statute of limitations, finding unpersuasive our "novel" arguments that Congress could not limit a constitutional right by a mere statute, and that the statute did not begin to run until the government had given a "clear announcement that it would not pay just compensation." The case is reported at 350 F3d 1253, 2003.

In granting Japan's motion to dismiss, the district judge in Chicago did not confront the question whether a "venue provision" in a 1976 statute could affect claims that had arisen more than 30 years earlier. Several years after our case, the Supreme Court held in a case arising from the Los Angeles federal district court that a pre-1976 claim over ownership of a Gustav Klimt portrait seized in the Nazis' Austrian anschluss could be brought in Los Angeles (where the painting was being viewed under an exchange program). This of course tends to undermine the ground on which our lawsuit was dismissed, but so far no one has seen fit to revive it.

Two upshots: our human rights law firm did not survive these body-blows and shortly thereafter disbanded, and The Monuments Men, a major motion picture starring George Clooney and Matt Damon as US Army officers tasked with securing Nazi-looted treasure before it could be destroyed or secreted in the vast unknown of private collectors, is to be released February 7.

JE comments:  Fascinating.  The suit certainly suffered from its unfortunate timing; 9/11 would come to monopolize the public consciousness for the next several months.

I had always assumed that there was no statute of limitations for war crimes, or civil litigation associated with them.  Unfortunately, time is running out for the remaining survivors of Santo Tomas prison.

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  • War Crimes and Statutes of Limitation; a Very Ancient Civil Claim (David Duggan, USA 12/09/13 3:24 PM)
    As to a period of limitations for "war crimes" (see JE's comments on my post of 5 December), so far as I was aware 10-12 years ago, there was none, and I'm not aware of any recent changes in that principle, either by statute or court decree.  (Of course, such changes would be specific to any country enacting or pronouncing them, in the absence of a court of universal jurisdiction, of which there is none.)  Having dismissed our "war crimes" claims on venue grounds (the narrowest grounds available), the Federal District Court in Chicago had no reason to address any period of limitations or staleness argument (not to mention waiver or exclusive-remedy-in-the-tribunal-that-divvied-up-the-Japanese-prizes-of-war grounds, to name a few).

    More recently, Egyptians have objected to Israeli and Jewish economic success not only in the Levant but world-wide, claiming that it is the result of the Israelites' spiriting out of Egypt the gold and silver they had "borrowed" from the Egyptians in the wake of the plague that killed the Egyptians' firstborn sons, including Pharoah's. See Ex.12:15, and Ex. 38:24-25.

    The latter verses tell how the Israelites used 29 talents and 30 shekels worth of gold, and 100 talents and 1,775 shekels worth of silver in constructing the tabernacle. Using the conversion of 75 pounds per talent (which was actually a unit of volume--an amphora used to transport water--not weight), and .4 oz/shekel, and prices of $1,250/oz of gold, and $19.50/oz of silver, my calculator-assisted math yields $43,515,000 in gold and $2,353,485 in silver, for a total slightly less than $46 million. Goldman Sachs could write such a check tomorrow morning (not that they should, but it would be a small price to pay if it could secure peace between the Arabs and the Jews). As I read Exodus, the Israelites engaged in no extractive or smelting activities in their years in the wilderness (though that is not conclusive on the subject), but it is safe to say that those 29 talents of gold and 100 talents of silver likely came from Egypt. The Sinai peninsula is known to have copper (hence the malachite used as jewelry by the indigenous Bedouins), and silver is frequently found in the same geological stria as copper (less so gold), but because the three metals have relatively low melting points, they are often found together in areas near volcanic or geothermal activity.

    Scripture does not record whether the Israelites' borrowing of the gold and silver was secured or whether this was a distress transaction caused by the Yahweh-induced plague that left the Egyptians bereft of their senses. Regardless, I would think that three-and-a-half millennia are a sufficient period of repose so that, as they say in certain circles in regard to the Egyptians' claims: "Good luck with that."

    One interesting thing I learned in researching this case: the KJV of Exodus records the shekel amount of silver as: "a thousand seven hundred and three-score and fifteen." Ex. 38:25. Elsewhere. the KJV has no qualms about using the term "seventy" to describe three-score and ten (e.g., Luke 10, Jesus' sending out of the 70 to go to "every city and place, whither he himself would come"). Other western languages use a multiple of 20 to describe higher two-integer numbers (e.g., French: "quatre-vingt" for 80, although the Swiss-French say "huitant"). Given that the KJV was using the best original texts available in the early 17th century, it seems that the Hebrew of the Old Testament used a multiple of 20 for higher numbers (obviously 20 is the highest number you can get by counting your fingers and toes), while the mercantile Greek of the New Testament was content to use multiples of 10.

    I have occasionally heard Israelis speaking Hebrew among themselves, and because of a hearing problem, in my pushy American way I have asked if they were French. When disabused of that notion, I have tried to redeem myself by saying that it sounded like French.

    Could there really be something there?

    JE comments:  I don't think this intriguing calculation has ever been made before.  Most interesting.  And David Duggan is correct:  $46 million to buy peace in the Middle East would be the bargain of the millennium.

    (Ah, but what about interest...?)

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