WWII POWs want their day in court
By Barry Bortnick
Montoya, an anti-aircraft gunner who earned a Purple Heart and Bronze Star, didn't want to talk about it.
"It was too painful. I wanted to forget it," said Montoya, a retired house painter who lives in Colorado Springs.
Montoya, 83, kept his silence for decades. His parents died without knowing about his capture by the Japanese. His wife of 53 years never learned what happened either, until Montoya's daughter urged him to open the old wound just four years ago.
Now Montoya wants everyone to understand the suffering he and thousands of other war prisoners endured through years of forced labor in Japanese mines, steel mills and factories. He is one of several hundred or so old soldiers suing 14 Japanese corporations that, the veterans say, benefited from POW labor during the war.
Thus far there are 35 separate civil suits that cite as defendants some of the world's largest corporations, including Nippon Steel, Mitsubishi Heavy Industries and Mitsui Mining USA. The suits are at various stages in the federal and California court systems.
The former POWs are seeking an apology and an unspecified amount of money. "I want to be compensated," said Montoya, who weighed just 80 pounds after 3 1/2 years in captivity. "We worked every day from sunup to sundown. And if we did not work hard enough, they beat us with a rifle."
Henry Cornellisson, 81, of Greeley, who is preparing to file a similar suit, said money is not a top priority for him.
"Most of us don't really need the money. We want the companies to admit this happened," he said. "We want them to say 'We caused your buddies to be killed.'"
But efforts by Montoya, Cornellisson and the others have run into opposition from an unexpected source. The U.S. State Department believes a 1951 treaty makes it impossible for the veterans to win in court.
The POW-slave saga is chronicled in Linda Goetz Holmes' newly published book "Unjust Enrichment." Her research helped spawn the lawsuits.
According to Holmes, many of Japan's largest corporations paid stipends to their government for the use of POWs as laborers. The prisoners were a ready source of manpower to replace workers swept into the armed forces. All told, about 36,000 American soldiers were captured by the Japanese during the war. Nearly 26,000 were used as slaves in Japan.
That practice allowed corporations to profit and gave them an advantage in the years that followed the end of the war, said Holmes, a historian who is a member of an advisory panel investigating World War II war crimes for the National Archives.
"The POWs were the only work force the corporations had toward the end of the war," Holmes said. "A number of corporations had enough POWs to stay in business. That gave them a leg up because it allowed them to profit and begin again once the war was over."
According to Holmes, the POWs worked in all sorts of industries. They hauled materials on and off ships. They worked in mines, factories and shipyards. Hundreds of American POWs helped build the Burma Railway, a project made famous by the 1957 film "The Bridge On The River Kwai."
Montoya was stationed on Corregidor, an island that guards Manila Bay, when he was captured in 1942. He and other survivors were marched to a holding camp near Manila before being sent to Japan on vessels the captives called "hell ships."
Hundreds of men were crammed together in the bowels of the ships for up to 40 days. Montoya spent about three weeks at sea, almost all of it deep below decks. A few five-gallon buckets were used for latrines.
"Everyone was sick and the buckets were filled right away," Montoya said. "When the ship swayed, the crap spilled all over the floor." To escape the stench, Montoya crept up on deck once during the long journey, risking a beating from the guards.
"I took a chance," Montoya said. "I had to have a nice breath of air."
Cornellisson, the Greeley veteran, joined the Army Air Corps at age 19. He went to the Philippines two years before Pearl Harbor. After Japan attacked Clark Field near Manila, he and several hundred others escaped to the island of Mindanao in the southern Philippines.
Cornellisson lived off the land until his capture in May 1942, when America surrendered the Philippines.
He, too, was transported to Japan by ship. The conditions on board weren't the only jeopardy. U.S. submarine crews often targeted the ships, unaware of the human cargo they carried.
Cornellisson recalls one harrowing day on the high seas when his ship was attacked. "All I could do was stare in fascination, watching the wake of the torpedoes approach, then go by," he said.
Japan sent prisoners across its empire. Most worked on the mainland, but others slaved in Manchuria, Taiwan, China and Indochina, according to Holmes. From 1942 to 1945, Montoya hauled bundles on and off ships and train cars. He also helped dig a submarine base.
The conditions were brutal. He worked all day on three bowls of rice. "All you could think about was being hungry," he said.
The discipline was harsh. "They delighted in beating us up every chance they got," Montoya said. "If they got rumors that we were winning the war, they lined us up and slapped the heck out of us ... We used to say that when they hit you, don't fall down, because if you do they will kick the hell out of you."
Montoya got the thrashing of his life after his captors accused him of sabotage while building the submarine base. They beat him with a rifle, shattering his jaw and all his teeth, Montoya said.
"They beat me from 10 a.m. to evening. I had to stand at attention all the while. I still had to work every day even though my face was all swollen and sore," he said.
Cornellisson, meanwhile, worked in Kawasaki. He labored in a steel mill, a brick factory and on the loading docks. He was later moved to a mine in the mountains southwest of Tokyo.
He survived on a steady diet of hatred for his captors.
"You learned to live one day at a time," Cornellisson said. "You also learned to hate the SOBs so bad. All you want to do was live so you could beat them.
"You hated (them) so bad. That allowed you to live."
Montoya and Cornellisson were freed shortly after the United States dropped atomic bombs on Hiroshima and Nagasaki in 1945.
Like Montoya, many POWs kept quiet about their slave experiences. Some were made by the military to sign confidentiality notices. "The American government wanted to build up Japan and forge a strong relationship with the country," said Holmes, the war historian.
Some POWs were too embarrassed to speak up.
"We were a little ashamed of getting caught," Cornellisson said. "We wondered why we did not die like they did at the Alamo, or why I didn't take a couple Japanese with me?"
The California lawsuits have helped to break the silence.
Montoya and Cornellisson belong to a veterans group called American Defenders of Bataan and Corregidor. The men joined the legal fight at the urging of fellow members.
"These civil cases are a matter of accountability," said Edward Jackfert, former national commander of the group, which has roughly 2,650 members. "It is hard to explain what we went through. You had to be there to know the cold, hunger and beatings."
Montoya is part of a class- action suit in California's federal court. The suit, filed in January 2000 against Mitsui, which ran mines during the war, alleges the corporation "profited from the use of forced slave labor and used those benefits to build their business and prosper greatly."
The lawsuit says Mitsui has failed to provide compensation or restitution to those forced into slave labor.
"Thousands of prisoners of war were enslaved and forced to work for years under inhuman conditions for private Japanese business entities," the lawsuit states. It characterizes the POWs' experience as "a story of suffering and cruelty of the highest degree."
Attorneys for Mitsui did not reply to repeated requests for comments. An attorney for Nippon declined to discuss the cases, as did an attorney for Mitsubishi.
It's not unusual for war victims to seek compensation for their suffering. In December 1999, for example, the German government and German businesses reached a $5 billion settlement with survivors of Nazi slave camps. Since 1951, Japan has paid large settlements to countries its forces enslaved during the war, according to Holmes.
But the State Department says claims by the former prisoners violate a 1951 treaty designed to shore up war-torn Japan and protect it from Soviet influence. The treaty, supported by President Harry Truman and two-thirds of the Senate at the time, essentially waived all war crime grievances and claims against Japan and its nationals.
The Cold War was in full swing and U.S. officials used the treaty to link Japan to the West.
"For 50 years, the treaty has sustained our security interests and supported peace and stability throughout East Asia," Ronald Bettauer, a legal adviser to the State Department, said during a U.S. Senate hearing on the POW issue in June 2000. "We believe the treaty leaves no sound legal basis for the United States or its nationals to seek further monetary recovery against Japanese corporations and the treaty remains the supreme law of the land."
The State Department has also filed papers in federal court in California stating the treaty prevents the courts from hearing the lawsuits.
"We admire and sympathize with the valiant men who were prisoners of war and condemn the wartime policies of Japan and its industry," Bettauer added during the committee hearing. "But in 1951, President Truman and the Senate made a carefully considered national decision that our interests would be best served by a peace that resolved all potential claims."
In a Sept. 21, 2000, ruling, U.S. District Judge Vaughn R. Walker of California said the peace treaty barred claims against Japanese companies.
"History has vindicated the wisdom of that bargain," Walker wrote. "And while full compensation for plaintiffs' hardships, in purely economic sense, has been denied these former prisoners and 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 former POWs plan to appeal. They contend the treaty contains a loophole that allows compensation for slave laborers.
Congress is on their side.
On July 18, the House of Representatives voted 395-33 to amend an appropriations bill that would prohibit the departments of Justice and State from using money to prevent former POWs from seeking a fair hearing against Japanese companies in civil court.
"The U.S. Congress just sent the State Department and these Japanese multinationals who enslaved our American heroes a message," Rep. Dana Rohrabacher, R-Calif., said of the measure. "Our veterans deserve their day in court."
The amendment, which must be approved by the Senate, means the State Department could no longer add its support in court against the aging vets.
"The heroes of WWII are dying at a rapid pace and we believe we should provide them with the opportunity to have a fair hearing before they pass away," said Ricardo Bernal, Rohrabacher's spokesman.
In December 2000, the House of Representatives and the U.S. Senate unanimously passed a non-binding resolution that accused private Japanese companies of subjecting POWs to barbaric conditions and torture.
"The resolution says the government has a moral obligation to do our best to solve this problem," said Margarita Tapia, a spokesperson for U.S. Sen. Orin Hatch, who chaired a hearing that looked into the issue.
Congress has also begun to debate a House bill designed to help the veterans in court.
The measure, sponsored by Rep. Mike Honda, D-Calif., who was held in a Japanese-American internment camp as a child, would let federal courts ignore a key section of the 1951 treaty that waived all claims against Japanese nationals for crimes committed during the war. The bill has the support of more than 100 representatives.
"If the bill passes, it will open up the process and remove the roadblock the State Department has put up," said Holmes.
Yet it sometimes takes a while for legislation to pass. And one thing veterans of World War II don't have a lot of is time.
"America is the greatest country in the world and I still put the flag
up outside my house," Cornellisson said, pointing to the Stars and
Stripes fluttering beside his front step. "But the government's
position on this makes me upset. They have betrayed us. They will
probably stall the lawsuit until we are all dead and gone."