David Casey, a California attorney who represents POWs suing Japanese companies including Mitsui and Mitsubishi, says he has a hard time explaining to his clients why the U.S. government won't even let them sue Japanese companies.
"These men sat in company camps for three years, 40 percent died, and they are heroes for our country, and to have the State Department coming against them has been outrageous and extremely disappointing," Casey said.
The U.S. government's actions on Japan's behalf have been explained as a show of support for a critical global economic power and for a political ally standing with the United States in its pursuit of anti-Western terrorists.
"In a way, the United States should be on our side, but the reason they're not doing that is they see Japan as an ally so they don't want to bother," D'Amato said. "However, I think American veterans deserve better than that."
With the help of a scholar poking around in World War II-era archives, the POWs are arguing that their right to sue was not actually waived by the 1951 treaty.
Steven Clemons of the New America Foundation, a Washington think tank, says he uncovered documents from a recently declassified diplomatic archive showing that Burma and other countries negotiated the rights for their citizens to sue Japan. The 1951 treaty included a clause that if any nation cut a better deal, then citizens from other countries could also take advantage of those terms.
Does Japan Have Amnesia?
Clemons sees a coverup. The United States has hidden critical documents, rejected freedom of information requests and lied to protect Japan, Clemons said. Particularly maddening to Clemons, though, is the U.S. role in preventing what he calls a "historical transparency" of the World War II era.
"What everyone wants to see Japan do is to get into a position of debating its past. It trivializes the POW suits to make it all look like it's about money or claims," he said. "The State Department has been incredibly complicit in creating the amnesia that Japan is dealing with today."
Clemons' work has influenced some of the claims against Japan and companies there, including the Rosen lawsuit.
But the State Department's Hergen says Clemons' allegations against the United States are bogus, and that documents the scholar claims were only recently declassified were actually available, if difficult for some people to find.
Further, he said, the 1951 treaty never sought to eliminate any possible reparations from Japan — the treaty in itself was devoted to making Japan pay for its aggression during the war.
"It's very disturbing to someone who really studies this stuff closely," Hergen said. "It [Clemons' allegations] does portray us as a government conspiring against its nationals. I think it's irresponsible."