IN THE UNITED STATES COURT OF FEDERAL CLAIMS
MARCIA FEE ACHENBACH, et. al., Plaintiffs,
v.
THE UNITED STATES, Defendant.
COMPLAINT
Plaintiffs Marcia Fee Achenbach and 597 other persons, or their estates,
individually identified in Appendix 1, by their attorneys Anthony D’Amato,
David G. Duggan, and Susan M. Keegan, bring this action against the United
States of America and allege the following.
I.
OVERVIEW
1. The members of the plaintiff
class are, or are the legal representatives of, civilian citizens of the United
States present in the Philippines,
Guam, Wake, or Midway Islands,
when they were injured or killed by the Japanese armed forces in the period of December 7, 1941 to September 2, 1945.
2. The defendant is the United
States of America, including all of its
offices and agencies. Said defendant deliberately
stranded the plaintiffs in the Philippines,
Guam, Wake, and Midway, sacrificing their health,
liberty and property in order to further the affairs of state. It did so without the plaintiffs’ consent and
in violation of the plaintiffs’ rights as detailed herein.
3. Plaintiffs allege that the United
States deliberately left them in harm’s way by preventing them from securing
passage back to the United States despite the overwhelming probability if not
the virtual certainty of Japanese attack.
American officials falsely reassured the members of the plaintiff class
that the Islands were well-defended and perfectly
safe. However, the Philippines
was under-defended and vulnerable to enemy
attack. Moreover, the United
States was making strategic decisions that
were intended to bring about a Japanese attack upon the Philippines. The decisions had the effect intended, and on
and after December 7, 1941,
plaintiffs were subjected to injuries, torture, and death, all of which were,
in the aggregate, foreseeable consequences of the plans and policies of the United
States.
United States decision-makers knew or had reason to know of the Japanese
atrocities committed against Chinese civilians such as the “Rape of Nanking” and had no reason to believe that American
civilians in the Philippines, Guam, Wake, and Midway islands would be treated
any differently if they were abandoned there and left subject to the tender
mercies of the armed forces of Japan.
Illustrative of the actual injuries and deaths suffered by typical
members of the diverse plaintiff class are the accounts of some sample cases
spelled out in Part III of this Complaint entitled “Plaintiffs.” Of course, none of these individual cases
could have been precisely foreseen, but in the aggregate they were all
reasonably foreseeable given the notorious history of Japan’s
disregard for civilian lives in its on-going war of aggression against China.
4. Jurisdiction is based upon 28 USC §
1491 and is founded upon the First Amendment to the United States Constitution,
the Due Process and Takings Clauses of the Fifth Amendment, the Equal
Protection Clause of the Fourteenth Amendment made applicable to the defendant
through the Due Process Clause of the Fifth Amendment, and the Constitution in
its entirety as a social contract and common-defense compact.
II. HISTORICAL BACKGROUND
A.
Japan’s Strategic Objectives
5.
Since winning the Russo-Japanese war of 1904-06, Japanese military
planners debated the comparative merits of pursuing a northern strategy, i.e.
attempting to conquer portions of land in east Siberia, Korea, and Manchuria,
versus a southern strategy, i.e., attempting to conquer the Philippines, Dutch
Indonesia, British Borneo, Thailand, and French Indochina, along with adjacent
coastal areas in southeastern China including Hong Kong. Each strategy had its merits and
proponents. The northern strategy,
championed primarily by the Japanese Army, could strike a blow against global
communism and provide ample continental living space for Japan’s
burgeoning population huddled on its rocky island home. The southern strategy, championed primarily
by the Japanese Navy, had the advantage of affording access to strategic
minerals and the rich petroleum reserves of British Borneo and Dutch-controlled
Indonesia as
well as advancing Japan’s
claim of Asian racial superiority in the Far East.
6. In Europe, in the
1930s, fascist leaders in Germany,
Italy, and Spain
were attempting to forge an alliance to combat communism. Japan
was engaged in some of these negotiations, and to Europe’s
fascists, offered the advantage of opening a two-front war against the Soviet
Union by attacking eastern Siberia.
7. In 1931, Japan
tested its northern strategy with a quick and successful invasion of Manchuria,
where it installed a puppet regime. The League
of Nations and the United States
condemned Japan’s
action. In 1933, Japan
withdrew from the League. The attack on Manchuria
meant that Japan
would have to face more hostility from the rest of the world, especially China. In consequence, Japan
began to favor military rather than diplomatic solutions.
8. In attacking Manchuria,
the Japanese government had some reason to believe that China
would support Japan’s
northern strategy because of Chinese fears of Soviet communist expansion. But the Japanese army in Manchuria
brutalized and enslaved Chinese citizens, turning China
into a bitter enemy. The leader of the
Chinese Nationalist government, General Chiang Kai-shek, decided that he would
rather fight both the communist guerrillas and the Japanese invaders rather
than place his trust in Japan. The government of Japan,
in turn, was surprised by Chiang’s apparently irrational military decision to
fight two great military powers at the same time.
9. The unexpected vigor of China’s
military resistance, coupled with Premier Josef Stalin’s amassing of large
Soviet armies in Siberia to defend its eastern seaboard,
led to the realization by Japanese military leaders that they could not pursue
the manpower-intensive northern strategy against Siberia
if there remained a danger of China’s
armies attacking their rear. The
Japanese military planners therefore decided to weaken and possibly neutralize China. The Japanese army clashed with Chinese forces
in July 1937, and succeeded in occupying almost the entire west coast of China. But again, the Japanese soldiers committed
severe war atrocities upon the Chinese population including the infamous “Rape
of Nanking.”
These barbarities, which served to alienate public opinion in the United
States, made it impossible for the Japanese
army to control the Chinese population unless at gunpoint, thus bogging down
Japanese soldiers in China
in a holding pattern for the entire duration of the Second World War.
B. Germany’s Preparations for
Global War
10. As Germany
prepared for war in the three years prior to its surprise attack on Poland
on September 1, 1939, it was
engaged in continuous talks with representatives of Italy
and Japan. Germany
wanted a tripartite offensive and defensive alliance with these other two
dictatorships to help clear the way for its hegemonic designs on Europe. While Japan
hesitated, Italy
in May 1939 allied herself formally with Germany.
According to the official history of World War II by the United States Department
of the Army:
By the
spring of 1939 the [Japanese] Army was ready to commit
Japan fully to
the Axis. But there was sharp
disagreement in the Cabinet.
The Navy and Foreign Ministers insisted on an agreement
directed primarily
against the Soviet Union and
refused to accept
any commitment
which might involve Japan in a war
against the
Western
Powers. App. 2, p. 52.
The Japanese government hesitated while its ambassadors assured the
German government of its friendship and its sharing of
goals with Germany.
11. To Japan’s great surprise, on August 23, 1939, Hitler concluded a
non-aggression pact with Stalin that in a secret protocol partitioned Eastern
Europe between Germany
and the Soviet Union.
In the words of the official U.S. Army history of World War II:
The German-Soviet Pact was a
stunning blow to Japan’s program
for expansion and to the
Army’s prestige. The Japanese felt
betrayed and bewildered and
the Premier promptly offered his
resignation to the Emperor. App. 2, p.
52.
Japan
had to shelve its “northern” expansionist policy against the Soviet
Union because Hitler and Stalin were now allies. Japan
could no longer count on a two-front war to defeat Stalin.
12. With the non-aggression pact of
August 23rd as security for his eastern flank, Hitler was able to
attack Central Europe.
In the early morning of September
1, 1939, without declaring war, the German army and the Luftwaffe
attacked Poland. The Soviet Union
invaded eastern Poland
on September 17, 1939. Poland
surrendered to the Nazis on September
27, 1939. As Japan
watched from afar, the Soviet Union attacked Finland
on November 30, 1939; Finland
signed a peace treaty with the Soviets on March 12, 1940. In
April, German troops moved toward Western Europe,
invading Denmark
and Norway. A month later, the Nazis invaded France,
Belgium, Luxembourg,
and The Netherlands. The Netherlands
surrendered to Germany
within five days; Belgium
surrendered in eighteen days. On June 10, 1940, Norway
surrendered to the Nazis and Italy
declared war on Britain
and France. On
June 22, France
formally surrendered to the Nazi invaders.
Hitler had achieved military success beyond anyone’s imagination.
13. Because of Hitler’s non-aggression
pact with the Soviet Union, as well as the most recent clash between Japanese
and Soviet troops in 1939 on the border between Manchuria and the Mongolian
People’s Republic that resulted in a disastrous loss of 50,000 Japanese troops,
App. 3, p. 127-28, the Japanese military planners
decided that Japan would embark upon a southern strategy to replace the
northern strategy. This would involve
attacking the countries of southeast Asia. Now that The Netherlands and France had
fallen, it would be easier for the Japanese Navy to take over French Indo-China
and the Dutch East Indies.
14. Japan
decided that it was late, but not too late, to seek an alliance with Germany. But Hitler now raised Japan’s
price of admission to the Axis Powers.
In return for his support of Japan’s
expansion in southeast Asia, he wanted a Japanese
commitment to hold the United States
at bay by threatening Hawaii and
the Philippines
if America
entered the war in Europe. Since the risk-averse Japanese Premier
thought the price too high, the Army on July
16, 1940, brought about his fall and the dissolution of the
Japanese Cabinet. The more militaristic
Prince Konoye became Premier, and on July 17th
appointed General Tojo as Minister of War. With the Army’s full support, Prince Konoye signed a Tripartite Pact with Germany
on September 27, 1940. The Axis Powers now consisted of Germany,
Italy, and Japan. They acquiesced to Hitler’s non-aggression
pact with Stalin.
15. Throughout this period Japan
had been importing strategic raw materials and oil from the United
States.
American military planners were aware of Japan’s
designs and preparations. In July 1940,
President Roosevelt restricted the shipment of arms and ammunition, aluminum,
airplane parts, aviation motor fuel, and steel scrap to Japan. But shipments of oil were not
restricted. Oil was the most important
import needed by Japan, as its own domestic production only accounted for 12%
of its military needs—and this after a total prohibition on civilian motor
vehicle traffic in Japan in 1937. App. 2, p. 56. Oil was vital to the Japanese Army and
even more important to the Navy, which was entirely diesel-fueled. In addition, Japan
was assembling a formidable carrier-based air force which also required
petroleum. During the 1930s, Japan
had prudently stockpiled about 55 million barrels of oil, which would have been
enough to last a year and a half or longer. App. 4 p. 268. Based on privileged access to studies by the
post-war United States Military Intelligence Division of the Supreme
Headquarters Tokyo, and information furnished by Colonel Hattori Takushiro (former Chief of the Operations Section of the
General Staff of the Japanese Army), Herbert Feis
concluded that by 1941:
It was
decided by Imperial Military Headquarters that to be sure
of enough oil,
rubber, rice, bauxite, iron ore, it was necessary to
get swift control
of Java, Sumatra, Borneo, and Malaya. In order
to effect the
occupation and protect the transport lines to Japan,
it was necessary
to expel the United States from the Philippines,
Guam, and Wake,
and Britain from Singapore. App. 4, p. 269.
Without oil, Japan
would be able to conduct military operations only for about a year and a half,
and then its army would be bogged down and helpless in both Siberia
and China. 16. Even though the United
States was itself rationing oil on the East
Coast, it nevertheless continued to sell oil in large quantities to Japan
from the West Coast in 1940 and up to the summer of 1941. One reason for continuing to supply Japan
with oil was that the American military planners in mid-1940 did not want to
precipitate war with Japan. If they had cut off oil exports to Japan,
they reasoned that the Japanese Navy would have had no choice but to unleash
its southern strategy, namely, to attack Borneo and the Dutch
East Indies in order to secure the necessary supplies of oil. Second, by allowing the flow of oil to
continue to Japan,
the United States
hoped to keep alive Japan’s
northern strategy that American planners knew had once been Japan’s
preferred strategy. From the standpoint
of American planning, now that Hitler and Stalin had signed a non-aggression
pact and the Soviet Union had become a major threat to Europe
and the United States,
an attack by Japan
against the Soviet Union would divide the Axis powers
and thus redound to the immense benefit of Great
Britain and the United
States.
C. The Philippines
and its Military Significance
17. The Philippines
lay in the way of Japan’s
southern strategy. With several of the
best harbors in the Pacific and an undermanned American military garrison, the Philippines
provided Japan’s
military planners with both a military target and a future base of
operations. American military planners
knew that if Japan
employed its southern strategy, the Philippine Islands would be attacked and
seized. The Philippines,
comprising almost 7,100 islands with a total area of 115,600 square miles,
extends for 1,150 miles from Borneo to Formosa. The Philippines
is 7,000 miles from the West Coast of the United
States.
It is strategically located in the geographic heart of the Far
East, astride the trade routes between Japan
and southeast Asia with the great port
of Manila at the midpoint (see
Map). Not only would the Japanese Navy
need Manila as a halfway port between
Japan and southeast Asia, but more importantly, in the event of a war Japan
could not afford to leave Manila in
the hands of the United States
because the American Navy at Manila
could then bisect and cut off Japanese naval movements. To make matters worse from Japan’s point of
view, the presence of an American navy in Manila would make it impossible for
Japan to ship oil from Borneo and the Dutch East Indies north to Japan by oil
tankers, for the slow-moving tankers would be easy prey for bombardment from
American battleships and American planes that would be launched from Luzon, the
American airbase in the Philippines.
18. The United
States had annexed the Philippines
and Guam on December
10, 1898, as part of the Treaty of Paris ending the Spanish-American
War. But it was early realized that
defense of the Philippines
might cost the United States
more than it was then
worth. The Army-Navy Joint Board decided
in 1908 to locate America’s
major Pacific base in Hawaii
rather than the Philippines,
even though the army favored the Philippines. App. 2, p. 24. President Theodore Roosevelt wrote that the
Philippine islands “form our heel of Achilles.”
App. 5, p. 408. In 1919, Captain Harry E. Yarnell, one of the American Navy planners, wrote “it seems
certain that in the course of time the Philippines
and whatever forces we have there will be captured.” App. 2, p. 25. A small American military garrison was
established in the Philippines. In 1933, after Japan’s
successful invasion of Manchuria, General Stanley D. Embick, commander of the harbor defenses at Manila,
wrote in protest of the American “Orange Plan” (“Orange”
was the military code word for Japan):
[T]he
Philippine Islands have become a major military liability of a
constantly increasing gravity. To carry
out the present Orange Plan—
with its provisions for the early dispatch of our fleet to Philippine
waters—would be literally an act of madness.
No milder term can
be employed if facts are squarely to be faced.
App. 6, p. 415.
A report of the Joint Army-Navy Board of April 1939, which became the basis for
much of the strategic planning before Pearl Harbor, had called for the
garrisons in Hawaii, Alaska, and Panama to be reinforced, but not in the
Philippines, “apparently,” in the words of the official Army historian, “on the
assumption that their loss was certain.”
App. 2, p. 70.
19. On February 7, 1941, the U.S. Commander of Naval Operations
sent a message to the Commander-in-Chief of the Asiatic Fleet determining that
if Japan moved
south, U.S. war
planners deemed an attack on the Philippines
to be inevitable. App.
7, p. 27. The American military planners had accurately
predicted that the Philippines
“would be one of the early objectives in a war with the United
States.”
App. 2, p. 99. Their information
was based upon the “magic intercepts”—the successful American code-breaking of
Japanese military transmissions—as well as upon humint
(human intelligence) from American spies in Tokyo. Japanese records seized after the war confirmed
that detailed operational plans had indeed been drawn up for the seizure of Malaya,
Java, Borneo, the Bismarck Archipelago,
the Netherlands Indies, and the Philippines. App. 2, p. 105. Eight hours after Japan’s
surprise attack on Pearl Harbor on December 7, 1941, Japan
attacked the Philippines
with decisive and devastating effect.
20. The islands of Guam,
Wake, and Midway also were American possessions in the Pacific. They were spaced out between the Philippines
and Hawaii. In December 1938, a naval board headed by
Real Admiral Arthur J. Hepburn recommended that Guam
should be developed into a fully equipped fleet base with air and submarine
facilities. App. 2, p. 43. Such a base would aid greatly in defending
the Philippines. However, Congress refused to appropriate the
necessary funds, with the result that Guam, as well as
Wake and Midway, were left virtually undefended. App. 2, p. 43. The American military garrison on Guam
was composed of 365 Marines, a small force of natives, and a navy consisting of
three patrol boats; the largest weapon was a 30-caliber machine gun. Wake Island had 388
Marines, 5-inch coastal guns, and .50 caliber antiaircraft guns. The largest group on Wake
were American civilians including 70 Pan American Airway employees and
over 1,000 construction workers. Midway
had a naval air station garrisoned by a small Marine force. App. 2, p. 101.
D. The Evacuation of Americans
from Asia—But Not from the Philippines
21. In the 1940 presidential
election campaign, both Franklin Delano Roosevelt—seeking an unprecedented
third term—and the Republican candidate Wendell Willkie,
supported the American public’s overwhelmingly pacifist sentiment. The antiwar plank of the Republican platform
read: “The Republican party is firmly opposed to involving this nation in
foreign war.” The Democratic Party
platform stated unequivocally: “We will not participate in foreign wars, and we
will not send our Army, naval, or air forces to fight in foreign lands outside
of the Americas,
except in case of attack.” President
Roosevelt was most emphatic in his speech in Boston
on October 30, 1940, in
words that were often re-quoted: “I have said this before, but I shall say it
again and again and again: Your boys are not going to be sent into any foreign
wars.”
22. Despite an almost constant series of
negotiations with Japanese ambassadors in Washington,
American planners increasingly came to believe that war with Japan
was almost inevitable. On October 6, 1940, the State Department
issued an advisory to all American citizens residing in Japan,
China, Hong
Kong and French Indo-China to return to the United
States.
Omitted were the Philippines,
Wake, Guam, or Midway.
Living in the Philippines
at this time were approximately 10,000 American civilian citizens of whom some
3,000 were family members of American military personnel stationed there. (There were also approximately 1,500 British
subjects, primarily Australians, living in the Philippines.)
23. American civilians in China
and southeast Asia were repeatedly urged to
evacuate. Travel restrictions on cargo
vessels were loosened in order to accommodate Americans seeking passage. App. 8, p. 450. Loans were provided by the American
government to persons who could not afford the price of passage to the United
States.
App. 8, p. 451. These actions
were in sharp contrast to the American policy with respect to citizens in the Philippines,
Guam, Midway, and Wake.
Those people, who were living in islands of vital strategic importance
to the Japanese Navy, were not warned.
To the contrary, American citizens on the Philippines
were reassured by American officials, and reassured
repeatedly, that they were living in one of the safest places on earth.
24. On October 9, 1940, three days after the
State Department advisory to American
citizens to evacuate the Far East (omitting the Philippines), the High
Commissioner of the Philippines, Francis B. Sayre, issued a statement through
the Philippines media stating “there is no reason for anxiety…. Manila
is one of the safest places in the Far East today.” He added that “those of us who live here are
blest beyond words.” App. 9, p. 4. Clarence Alton Belial, a radio commentator
and news analyst known in the Philippines
as Don Bell, was unofficially told that no warning should be broadcast telling
American citizens to leave the Philippines. Additionally, he was informed that all
available transportation facilities were being used for the evacuation of the
families of Army and Navy personnel. Bell's
public broadcast, issued shortly after Sayre's October 9th
statement, echoed Sayre's calming words.
App. 10, p. 209.
25. Plaintiffs Harry Schaffer and
Nita Reid Schaffer were American citizens living in the Philippines.
Their son Michael Schaffer was born in August 1926. Mr. Schaffer was employed by the Brent
School in Baguio. In July 1941, the Brent
School hosted their spring
dinner. The Schaffer family
attended. Frances Sayre, High
Commissioner of the Philippines,
was also in attendance because Mr. Sayre’s stepson, William Graves, was a
student at that school. At dinner, the Schaffers asked Commissioner Sayre whether they should
evacuate from the Philippines. Commissioner Sayre dissuaded them from doing
so, assuring them that they were safe, everything was fine, and they should not
worry about leaving. The Schaffer family
suffered through the war years in Japanese prison camps in the Philippines.
26. On information and belief, Francis
Sayre privately had other thoughts. Just
one month after his reassuring statement to American civilians on the Philippines,
he wrote a letter to President Roosevelt dated November 13, 1940, saying “Out here in the Far East
the situation is growing more and more tense.
I have the feeling that any day Japan
may start moving southwards. Indeed, she
is in a sense already on the way, and everyday is strengthening her grip upon
Indo-China.” App. 11, p. 210.
27. On October 19, 1940, the United
States began to quietly remove its military
families from the Philippines,
Guam, Midway, and Wake.
The S.S. Washington, sent to Manila,
only allowed military families to board even though there was plenty of extra
room. App. 12, p. 952. By May 1941, all remaining military wives and
dependents on the Philippines
had been ordered home to the United States. App. 11, p. 212.
28. On January 7, 1941, High Commissioner Sayre sent a telegram
to Secretary Hull which laid out several “difficulties” to be considered
regarding the Philippines,
its defense, and the thousands of American civilians left on the Islands. Sayre stated that the “smallness of the
military forces defending the Philippines
is a factor constantly to be borne in mind,” and that the “presence of large
numbers of American civilian dependents would increase the difficulties of the
small military force in defending the islands.”
Sayre also stated that if Japan
were to break through the insufficient defense, “a study of shipping facilities
in Philippine waters clearly indicates that ships available locally would be
totally inadequate to handle an evacuation.”
App. 13, p. 3-4. On information
and belief, the implication of Commissioner Sayre’s telegram, diplomatically
left unexpressed, was a veiled inquiry as to whether the United
States government was deliberately intending
to place at risk the thousands of American citizens living in the Philippines.
29. In reply, the State Department
advised Sayre that although his plans for evacuation should be studied, their
use would be remote. He should keep the
plans strictly confidential. Moreover,
he should “visualize the remaining of Americans generally in the Philippines
in an emergency, and plan accordingly.”
App. 14, p. 3.
30. On February 5, 1941, Hugh Grant, the American Minister in Thailand,
sent a telegram to Secretary Hull stating that Thailand
may be placed “under Japanese domination within the very near future,” and
requested “telegraphic instructions regarding the advisability of the
evacuation of American women and children from this area before it is too late.” App.
8, p. 399-400.
31. On February
11, 1941, the United States Government instructed its officers in Japan,
China, Hong
Kong, Thailand,
and French Indo-China to immediately renew to American citizens, “especially to
women and children and to men whose continued presence in those areas is not
highly essential,” the Government’s suggestion made in October 1940 that they
withdraw to the United States. App. 8, p. 400-01. The United
States omitted any warning to the American
civilians in the Philippines,
Guam, Midway, or Wake.
However, Secretary Hull did acknowledge the responsibility of the United
States government toward all American citizens living abroad in the following
language:
[T]his
government is making no assumption that a situation of acute physical danger to
American nationals is imminent, but . . . in light of obvious trends in the Far
Eastern situation, desires to reduce the risks to which American nationals and
their interests are exposed by virtue of uncertainties and, through the process
of withdrawal of unessential personnel, to improve its position in relation to
problems which may at any time be presented of affording maximum appropriate
protection to those persons who are not in position to withdraw, those
interests which cannot be abandoned, and those principles and those rights to
which it is the duty of the American government to give all appropriate support
at all times. App. 8, p. 400-01.
32. On information and belief,
the United States Department of State was confronted with a dilemma when the
question came up whether to warn American citizens living in British Malaya and
the Dutch East Indies to withdraw from those areas. The Philippines
is in a direct line from Tokyo to
these areas and therefore any warning to American citizens in Indonesia
would logically require a warning to American citizens in the Philippines
as well. The Department of State
accordingly decided “not to extend to British Malaya, Burma
and the Dutch East Indies its policy in regard to
withdrawal of certain categories of American citizens.” App. 8, p. 414-15. If American nationals approach American
officials for advice in regard to the question of withdrawing to the United
States, “the Department desires that the officers inform them that in light of
the general world situation and the uncertainties therein, they may desire on
their own initiative and as a result of their own decision to take steps to
return to the safety of the United States.”
In addition, “The Department desires further that the officers in taking
action under this instruction do so in a manner to avoid publicity.” App. 8, p. 414.
33. Previously, on September 9, 1939, the State Department had
ordered all citizens in the Philippines
to hand in their passports to the Office of the High Commissioner. App. 40. After that
date, anyone who wanted to leave the Philippines
for any other destination would have to ask the High Commissioner for the
return of his or her passport, since a passport was required in order to
purchase a ticket on any departing ship or plane.
34. On June 21, 1941, Congress
legislated that during the existence of a national emergency as had been
declared by President Roosevelt on May 27, 1941, U.S. citizens in the
Philippines were barred from departing from or entering any territory of the
United States without a valid passport
issued either by the Secretary of State or by the High Commissioner to the
Philippine Islands.
35. As the war clouds gathered
noticeably in the Pacific in the summer of 1941, many American civilians living
in the Philippines
who listened carefully to their radios attempted to repatriate themselves and
their families to the United States. But the office of the High Commissioner
refused to validate their American passports to travel to the United
States.
Lucia B. Kidder, a secretary in the High Commissioner office, wrote:
I worked in
the US High Com’s office for Laurence Salisbury,
political adviser
to the HC, but because his work did not require
all my work hours,
I wrote considerable correspondence for Ervin
Ross, Passport
Agent. At that time American citizens
(civilians)
all over the Philippines were
writing in to try to get American
passports to
return to USA. Many of them had lived there most
or all of their lives. Instructions came to Mr. Ross (from State
Dept.) that
passports were not to be issued except in cases of
extreme emergency,
such as a severe illness requiring medical
attention in USA,
or a businessman (export & import, for example)
whose business
depended on him going to the States. All
of this,
however, had to
be documented at length. Erv. was troubled
about this, I
remember, and he and Larry had several conferences
about it; but of
course the upshot was that Erv had to obey his
orders from Washington.
There were at
least 20,000 Am. civilians in the Philippines (maybe
more) in Dec.
1941. I wrote more than 1500 letters
(copying a form
letter). There were 2 other women writing similar
letters. I reckon
at least 5,000
letters were written denying passport (10,000 or more
people?) I believe the other 2 women have passed on
now. App. 19
36. Some persons, anxious to leave the Philippines,
attempted to buy tickets to Singapore,
Hong Kong, or even Tokyo,
and from there to book passage to the United
States.
However, their passports had to be validated and approved if they wanted
to depart from the Philippines
for any destination. App.
20 and 21. Consequently, the
Americans on the Philippines
were denied even a roundabout route back to the United
States.
37. Although the State Department on September 9, 1939, had ordered all
American citizens in the Philippines
to hand over their passports to the Office of the High Commissioner, some
Americans apparently did not do so and retained their passports in their own
possession. When these latter persons
attempted to purchase travel tickets, however, the ticket agents would not sell
them tickets even though they had their passports. Among the reasons given were that the departing
vessels were military vessels that could not accept civilian passengers, or if
some were passenger vessels, they could only accept passengers whose passports
had been specifically validated and granted visas by the High Commissioner for
departure from the Philippines. High Commissioner Sayre wrote in 1941 that
ships in the American President Line (the largest American commercial passenger
line in the Far East) were not “carrying as many
passengers as they could handle.” App.
41, p. 1. On
information and belief, ships of the American President Line that were
temporarily docked in the Philippines en route to continental United States
were not allowed to take on American civilians even though they had room for
more passengers.
38. From June 1941 to August 1941, the
Saunders family desperately tried to leave the Philippines. App. 21. Frank Saunders, on behalf of his son Frank
Saunders, Jr., daughter Norma Louise Saunders, and wife Emma Saunders, made
several trips a week to the Office of the High Commissioner, and spent hours
each time trying to obtain passage home.
Their papers and passports were all in order, and even in their
possession, yet Frank Saunders was repeatedly sent to offices he had already
visited to get passage documents, but was always denied them. “In plain everyday language, we were simply
told not to leave.” App. 21, p. 2. Meanwhile, Frank Saunders’ other daughter,
Dorothy, had been evacuated as a military dependent in May 1941, as she was
married to a captain in the U.S. Army.
39. When an executive of the
Standard Vacuum Company asked the State Department why it was evacuating
families of military personnel but not other American civilians, Alger Hiss,
assistant to Stanley Hornbeck in the State Department, said that the army might
presumably have reasons of its own with respect to dependents. App. 22.
40. On August
7, 1941, Stanley K. Hornbeck, U.S. Adviser on Political Relations,
wrote a memorandum noting that the American military had taken over 6 or 7
ships belonging to the American President Lines, and wanted to take over the S.S. President Coolidge as well. Hornbeck wrote in opposition of this planned
takeover:
At
the present time, this is the only
important passenger ship other than the Japanese operating on the Pacific. The service which she will be rendering
shortly in bringing home American nationals from Manila, Hong Kong, Shanghai, (and
possibly Japan) is of
definite importance. There will probably
be need for a good deal more of such service in the immediate future.” App. 8, p. 419.
Hornbeck’s recommendation was approved, and the S.S. President Coolidge continued its passenger service in the
Pacific. On information and belief, Dr.
Hornbeck’s reference to “Manila”
can only be interpreted as evidence that the decision of the President and the
State Department to prevent Americans from leaving the Philippines
was a closely held secret of which many high officials were unaware.
41. Two months later, on October 3, 1941, another high American official,
Maxwell M. Hamilton, Chief of the Division of For
Eastern Affairs of the Department of State, repeated the request that the S.S. President Coolidge remain in
private operation on its regular Far Eastern schedule. He stated:
From
a general political point of view it is important that passenger and shipping
facilities between the United
States and points in the Far East such as Manila and points
from which travelers can proceed to free China and Malaya be
maintained. App. 8, p. 430.
Thus, on information and belief, even at a date as late as October 1941,
high officials in the United States
government had not been informed that Manila
was being kept off-limits as a debarkation point for American civilians.
42. On information and belief, the United
States government also resorted to demanding
the removal of announcements about ship dockings and ship departures from the Manila
newspapers. The reason given to the
newspapers was military security. On
information and belief, the arrivals and departures were visible to the many
Japanese informers in the area. Hence
the real reason may have been to discourage any panicked Americans from lining
up in advance of a scheduled departure to attempt to push their way onto empty
departing vessels.
43. In sharp contrast to the forced
isolation of over 7,000 American civilians in the Philippines,
the United States
government fulfilled its Constitutional duty to warn American citizens in other
Asian locations. For example, as late as
November 22, 1941, there
were 128 American citizens remaining in Thailand. The American minister in Thailand
undertook to communicate with each of these persons, reminding them of the
February 1941 warning to withdraw from the country. In his memorandum on the subject, the
minister refers to the “gravity of the outlook” and worries about a “Japanese
invasion of this country.” App. 8, p.
442-43. On that same day, November 22nd,
Secretary of State Cordell Hull sent a message to American diplomatic officers
and consular officers to call to the attention of American citizens in the
Japanese Empire, Japanese-occupied areas of China, Hong Kong, Macao, and French
Indochina, “the advice previously given in regard to withdrawal.” App. 8, p. 443. Hull’s
message was sent only to consular offices in Shanghai,
Tokyo, Chungking, Peiping,
Hong Kong, Dairen,
Manchuria, Saigon, and Hanoi.
E. Germany
Attacks Russia
44. Every strategic plan on both
sides had to be drastically reevaluated when Germany
suddenly attacked the Soviet Union on Sunday morning, June 22, 1941. In Tokyo,
a stunned war cabinet now realized that its preferred northern strategy was
back on the table. A “golden opportunity” was presented to
“realize Japan’s
long-cherished objectives in continental East Asia.” App. 23, p. 627. While the German armies were rapidly
advancing toward Moscow, Germany
would be well served by its Axis partner Japan
if Japan would
attack the Soviet Union in the east and thus present
Stalin with a two-front war. The attack would pin down Stalin’s Red Army
forces and keep them from being used in defense of the Soviet heartland. Foreign Minister Matsuoka advised the
Japanese Emperor that Japan
must cooperate with Germany
and attack Russia. He advised postponing any advance
southwards. App. 4, p. 211. As the official
U.S. Army historian commented, the German attack on the Soviet Union
“opened up the possibility of [a Japanese] advance
northward, and thus required a thorough review of Japan’s
position and a reconsideration of the program established a year before.” App. 2, p. 65. The United
States learned of the heated Japanese
discussions on a possible major change to a northern strategy through the
“magic” intercepts. App. 2, p. 93. In July 1941, Japan
inducted 500,000 males into its armed services, its largest draft since
1937. More significantly, it doubled the
size of its army in Manchuria. App. 4, p. 217-18.
45. But the augmented Japanese Army
would require a large and steady supply of oil, for which it was dependent upon
continuing imports from the United States. Accordingly, Japan
tried to soften its negotiations with the United
States.
It offered a “leader’s conference” for August, 1941, between Premier Konoye and President Roosevelt. The plans for a summit conference went
on-again-off-again throughout September and October. Prime Minister Churchill was apprehensive
about the aggressive actions Japan
might take while the United States
was stalling for time. President
Roosevelt reportedly told him in August, 1941, “Leave that to me. I think I can baby them along for three
months.” App. 24, p. 10.
46. For the United
States and Great
Britain, as well as Japan,
the German invasion of the Soviet Union necessitated a
rethinking of their war strategies at the highest levels. A rare and revealing insight into President
Roosevelt’s thinking is found in a letter he wrote on July 1, 1941, to Harold L. Ickes,
Secretary of the Interior and Petroleum Administrator for National Defense:
I
think it will interest you to know that the Japs are
having a real drag-down and knock-out fight among themselves and have been for
the past week—trying to decide which way they are going to jump—attack Russia,
attack the South Seas (thus throwing in their lot definitely with Germany) or
whether they will sit on the fence and be more friendly with us. App. 25, p. 1173-74.
On July 6, 1941, Secretary
of State Hull, at the specific request of the President for delivery to Prince Konoye, sent a message stating that if the Japanese
Government intended to enter upon hostilities against the Soviet
Union, “such action would render illusory the cherished hope of
the American Government [for] peace in the Pacific area.” App. 26, p. 502-03. Langer and Gleason, in their authoritative
book for the Council on Foreign Relations, use the word “calamity” to summarize
President Roosevelt’s view of the possibility of Japanese aggression against
the Soviet Union.
App. 23, p. 635.
47. In July 1941, there was a
substantial increase in the number and frequency of person-to-person coded
radio communications between President Roosevelt and Prime Minister
Churchill. President Roosevelt referred
to them as “telephone jobs.” In light of
Germany’s
attack on the Soviet Union, it was imperative for the United
States and Great
Britain to work out a global strategy. On information and belief, this was
accomplished at the highest level between the two heads of state mostly during
July, with details left for staff meetings between the two governments.
48. By the evening of July 23, 1941, President Roosevelt
had not made up his mind about whether the United
States should place a total oil embargo on Japan. App. 4, p.235 no.20. To embargo oil would force Japan
to abandon its northern strategic objectives against the Soviet
Union and to move south in order to obtain oil from Borneo
and the Dutch East Indies.
49. The President’s indecision was
confirmed by a remarkably explicit speech he made on the morning of July 24th
to a home defense group meeting at the White House in words that were read
around the world:
Here
on the east coast, you have been reading that the Secretary of the Interior, as
Oil Administrator, is faced with the problem of not having enough gasoline to
go around in the east coast, and how he is asking everybody to curtail their
consumption of gasoline. All right. Now, I
am—I might be called an American citizen, living in Hyde Park, New York. And I say, ‘That’s a funny thing. Why am I asked to curtail my consumption of
gasoline when I read in the papers that thousands of tons of gasoline are going
out from Los Angeles—west coast—to Japan; and we are helping Japan in what
looks like an act of aggression?’
All right. Now the answer is a very simple one. There is a world war going on, and has been
for some time—nearly two years. One of our
efforts, from the very beginning, was to prevent the spread of that world war
in certain areas where it hasn’t started.
One of those areas is a place called the Pacific
Ocean—one of the largest areas of the earth. There happened to be
a place in the South Pacific where we had to get a lot of things—rubber—tin—and
so forth and so on—down in the Dutch Indies, the Straits Settlements, and
Indo-China. And we had to help get the
Australian surplus of meat and wheat, and corn, for England.
It was very essential from our own selfish point of view of defense to prevent
a war from starting in the South Pacific.
So our foreign policy was—trying to stop a war from breaking out down
there....
All right. And now here is a Nation called Japan. Whether they had at
that time aggressive purposes to enlarge their empire southward, they didn’t
have any oil of their own up in the north.
Now, if we cut the oil off, they probably would have gone down to the Dutch East
Indies a year ago, and you would have had war.
Therefore, there was—you might call—a method in letting this oil go to Japan,
with the hope—and it has worked for two years—of keeping war out of the South
Pacific for our own good, for the good of the defense of Great Britain, and the
freedom of the seas. App. 4, p. 236-237.
This speech, artfully cast in the past tense, gave no indication whether the
President now intended to reverse policy and cut off oil to Japan. When asked by the press whether his speech
marked the swan song of the oil policy, the President “insisted that he had
said nothing about that and would say nothing about it.” App. 4, p. 238.
50. In London
at midnight of that same day, a
critical phone call was placed by Presidential emissary Harry Hopkins
to President Roosevelt. Hopkins
had spent the evening in London in
a staff meeting with Churchill and the top British military advisers. Hopkins
spoke on the phone for a while, then handed the phone
to Churchill. On information and belief,
the President and Prime Minister recapitulated their previous conversations in
which they had agreed that the greatest opportunity for saving Great
Britain was the possibility of the German
armies getting bogged down in Russia. But Russia
needed her vast Red armies in Siberia to throw against
the Nazi invaders. They could not be
withdrawn from Siberia so long as Japan
presented a military threat against Siberia. Prime Minister Churchill undoubtedly repeated
his plea to President Roosevelt to attack Japan
and prevent it from attacking Russia
on its eastern flank. President
Roosevelt undoubtedly repeated his position that he would not strike the first
blow that would lead the United States
into war. But he could take effective
nonmilitary action that would prevent a Japanese attack against Siberia,
namely, cutting off all oil to Japan. With only a year or two’s worth of oil
reserves, Japan
could not afford to risk a war against the numerically huge Red army in Siberia. Thus, Japan
would be forced to move south to secure oil for its military machine. But Prime Minister Churchill probably
objected that an unrestrained Japanese move south would gravely endanger
British Singapore, British Borneo, and Australia. President Roosevelt may have replied that it
would be imperative for Japan,
in a southward move, to take over the Philippines
and especially its key port Manila. Otherwise American ships out of Manila
and American planes out of Luzon in the Philippines
would wreak havoc with the Japanese Navy’s movement south and, in addition,
ensure that few oil tankers from Borneo and the Dutch
East Indies could avoid being sunk by American forces. But even if Japan
attacked the Philippines,
what would trigger the American public’s outrage enough to rally the country to
go to war against Japan
and her ally Germany? The loss of a few islands that most Americans
did not know about, and which would anyway become independent in five years,
might not suffice to overcome the sluggish forces of pacifism in the United
States.
On information and belief, at this point the two statesmen agreed, with
mutual assurances of total secrecy, to sacrifice the 7,000 American civilians
and the 1,500 British civilians living in the Philippines
in order to ensure outrage on the part of the American public sufficient to
support the President in declaring a full-scale war against Japan. The civilians would be prevented from leaving
the Philippines
for the greater good of bringing the United
States into the war and safeguarding
President Roosevelt’s promise not to lead the country into war save for
purposes of self-defense. The defense of
American civilians, if attacked by Japan,
would qualify in anyone’s reckoning as self-defense of the United
States.
The Prime Minister may have reassured the President that 1,500 British
subjects, though fewer in number than the American citizens in the Philippines,
would also be sacrificed. Finally, the
two heads of state, either overtly or tacitly, may have satisfied themselves
that the sacrifice of innocent lives, though tragic, involved no loss of military
assets. The American and British
citizens in the Philippines
were, if anything, a military liability.
51. These “telephone jobs,” including
the midnight phone call of July 24, 1941,
were decrypted by military stenographers in both Great
Britain and the United
States, and shorthand verbatim transcripts
were prepared. On the British side, the
transcripts were prepared by the Postal and Telegraph Censorship Department
located in the Prudential Buildings at 23-27 Brooke
Street, London. In the United
States, the telephone jobs were monitored
and transcribed by the Office of Censorship of the United States Navy headed by
Captain Herbert Keeney Fenn. The British Government has turned away all
researchers and historians with the claim that the voluminous transcripts of
the telephone conversations cannot be found.
The American transcripts are presently housed in Record Group 216 of the
National Archives. But the records were sealed
in perpetuity by President Harry S Truman’s executive order of September 28,
1945. App. 27. A later president would have the power to
undo President Truman’s order, but no president has ever done so. The documents remain under Exemption One of
the Freedom of Information Act, the highest secrecy classification. Even under the normal 25-year mandatory
review, these documents may be classified indefinitely into the future. App. 42. Hence, the evidence needed to substantiate
the plaintiffs’ allegations in ¶ 50, supra,
are in the possession and control of the
defendant. Thus the plaintiffs have had
to proceed, for the purpose of this Complaint, on circumstantial historical
evidence to supply a plausible and reasonable account of the deal reached by
President Roosevelt and Prime Minister Churchill in the course of their telephone
jobs.
52 The
day of July 25, 1941, was
spent in meetings and preparations in London
and in Washington. Then, starting on the morning of July 26, 1941, a series of
history-making decisions was announced.
All oil exports from the United States
were officially frozen. Another executive order froze all Japanese
assets and funds in the United States.
On the same day, Great Britain
denounced all its treaties of trade with Japan,
as well as all the treaties of its Dominions with Japan. App. 23, p. 651. President Roosevelt also announced that
General MacArthur was given command of all U.S. Army
Forces in the Far East.
Also, by executive order, the Philippine Army was called into the
service of the United States. App. 2, p. 97.
F. War in the Pacific Becomes Inevitable
53. On July 28, 1941, the Privy Council in Japan
met in the presence of the Emperor.
Admiral Nagano, Chief of the Naval General Staff, said that if the
American embargo continued, Japanese reserves of oil would be used up in two
years. General Suzuki, President of the Planning Board, said
that if the embargo continued, Japan
would collapse within two years. App. 4,
p. 252.
54. A vital Japanese diplomatic cable
from Tokyo to Japan’s ambassador at Berlin was intercepted and decoded by the
American “magic” program and made available in Washington on August 4,
1941. The cable stated:
Commercial
and economic relations between Japan and other
countries, led by England and the United
States, are gradually becoming so
horribly strained that we cannot endure it much longer. Consequently, the Japanese Empire, to save
its very life, must take measures to secure the raw materials of the South Seas. It must take immediate steps to break asunder
this ever-strengthening chain of encirclement, which is being woven under the
guidance of and with the participation of England and the United
States, acting like a cunning dragon
seemingly asleep. App. 4, p. 249.
55. Five days after the historic
Atlantic Conference between President Roosevelt and Prime Minister Churchill of
August 9th through 12th in Newfoundland
aboard the warships Augusta and Prince
of Wales, President Roosevelt and Secretary Hull met with Ambassador Nomura
at the White House. The President read a
statement to the Ambassador, concluding with the following two sentences:
This
Government feels at the present stage that nothing short of the most complete
candor on its part, in light of evidence and indications which come to it from
many sources, will at this moment tend to further the objectives sought. Such being the case, this Government now
finds it necessary to say to the Government of Japan that if the Japanese
Government takes any further steps in pursuance of a policy or program of military
domination by force or threat of force of neighboring countries, the Government
of the United States will be compelled to take immediately any and all steps
which it may deem necessary toward safeguarding the legitimate rights and
interests of the United States and American nationals and toward insuring the
safety and security of the United States.
App. 26, p. 556-57.
No one who was not at the meeting can know whether the President paused
meaningfully after the words “American nationals” or stressed those words as he
read the text to Ambassador Nomura. But
since the phrase “American nationals” is subsumed within the meaning of the
first phrase “legitimate rights and interests of the United
States,” its separate inclusion in the
sentence served to call attention explicitly to the American nationals in the Philippines
and warn Japan
that an attack on them was an act of war against the United
States. Perhaps to remove any doubt in the Japanese
mind that the reference to “American nationals” was indeed intended to be
linked to the Philippines, President Roosevelt handed but did not read aloud a second
message to Ambassador Nomura that same day, August 17, 1941.
The text of the second message referred to a statement by Acting
Secretary Sumner Welles to Ambassador Nomura of July 28, 1941, that Japan’s
forceful occupation of French Indochina was “prejudicial to the peace of the
Pacific, including the Philippine Islands.”
App. 26, p. 557-58.
56. Despite the warnings given to
Japan, the
government of the United States
took no steps to evacuate American civilians from the Philippines. There were many ships going between Hawaii
and the Philippines,
and between the United States
and Hawaii. Many were military cargo ships that
transported war material to the Philippines
and then went back empty to the United States. On information and belief, all 7,000 American
civilians on the Philippines,
or most of them, could have been repatriated without the need for any
additional ships in less than a week’s time.