Carrying the dead, Camp O’Donnell. The latrines soon overflowed, and disease was epidemic.
"I live a perfect life,” Lester Tenney told me. “I’ve been a very fortunate man.”
We were sitting in the sunshine on his patio on Mount Soledad. Betty, his wife of over 40 years, had served us coffee cake on china plates. A maid was vacuuming the rooms inside. I could hear the whack of tennis balls being hit on courts nearby. At 83, Tenney himself still plays doubles — craftily. “They call him ‘Cuisinart,’ because he slices everything,” said Betty.
Bilibid Prison, Manila, 1942
But these trappings of the good life aren’t what Tenney meant when he said he has been lucky. He elaborated: “Number one, I’ve been able to move away psychologically from the problem. Number two, I don’t have any hatred in my heart any longer. I’ve been able to deal with it. And so I am a very free man. Many of my buddies are not. You talk to them, and they get like this” — he shook his clenched fists in front of his face — “ ‘I hate those bastards!’ But I don’t have that. So I’m a very fortunate person.”
Cabanatuan. “I hung on the stretching rack for a day and a half, and when they let me down, they tore my clothes off and tied a piece of wet bamboo splice, like a string, around my testicles. Then they hanged me again."
Tenney wears two hearing aids. On the day we spoke, he was also wearing a yellow-knit polo shirt, gray slacks, and white shoes. He resembles a lot of prosperous men of his generation who can often be found dealing hands at bridge tables in La Jolla. Besides playing tennis, Tenney is known to play bridge. But his “problem,” as he calls it, sets him apart from most of his cohorts. In 1940, when the native Chicagoan joined the National Guard, he had expected to serve a single year with the 192nd Tank Battalion and be back to civilian life before he reached his 22nd birthday. It didn’t happen. He’s a survivor of the Bataan Death March and beyond — three and a half years in Japanese prison camps.
POWs, Bataan Peninsula, Philippines. "They tried to hit any prisoner who was not marching fast enough."
He’s an unusual veteran for another reason: he continues to fight — in court. He is suing the private Japanese company that forced him to perform slave labor during those years when he was a prisoner. Tenney v. Mitsui and similar suits — all of them filed in the last few years but still unresolved — have been called the last battle of World War II.
Lester Tenney, Fort Knox, 1941. In 1940, when the native Chicagoan joined the National Guard, he had expected to serve a single year with the 192nd Tank Battalion and be back to civilian life before he reached his 22nd birthday.
I worried beforehand that I would find it difficult to ask Tenney questions. I was in the middle of reading his autobiography, My Hitch in Hell, which contains many violent passages, like this one: “On the second day of the march, I saw a Japanese truck coming down the road. In the back of the truck were guards with long pieces of rope that they whipped toward us marching men. They tried to hit any prisoner who was not marching fast enough. They snapped a rope at one of the marchers on the outside of the column, caught him around his neck, and then pulled him toward the back of the truck. They dragged him for at least one hundred yards down the road. His body just twisted and turned; he rolled this way and that way, bumping along the gravel road until he was able to free himself from the whip. By then he looked like a side of beef. As he crawled on his hands and knees and slowly raised his bleeding body off of the road, he screamed at them, ‘You bastards! I’ll get even with you for this. I’ll live to pee on your graves.’ ”
Lester Tenney in My Hitch in Hell: "If their food was in short supply, if the Americans bombed a Japanese city, or if the supervisors wanted more coal that day than was produced, they beat us."
Elsewhere, repeatedly, he writes of his own beatings and torture. For example: “I hung on the stretching rack for a day and a half, and when they let me down, it was only to start another inhumane act. They tore my clothes off and tied a piece of wet bamboo splice, like a string, around my testicles. Then they hanged me again for the balance of the day. As the sun became stronger the drying bamboo contracted, becoming tighter around my testicles.…”
Lester Tenney’s POW correspondence card. His first wife, Tenney discovered upon his return home, had given him up for dead and remarried in his absence.
It’s true that the book has many, less grim, even tender moments, since it is also a love story about Tenney and the proverbial girl he left behind, whom he had married shortly before shipping out. “The more I thought about my beloved wife the more I was determined to get home in one piece,” he writes. “I wanted to be back with Laura, to hold her in my arms, and to tell her how much I missed her. I had to get back. That was all there was to it.”
Released POWs, Aomori, Japan, 8/29/45. “At home or out at a restaurant, if POWs saw someone leaving food on the plate they might be seized by the urge to shove it into his face."
Still, I could only imagine a man whose predominant mood now must surely be dark. This idea was reinforced by books like Gavan Daws’s Prisoners of the Japanese in which I had read: “In the immediate postwar years, when Japanese war criminals were learning how to be prisoners, the POWs were having to relearn how to be free men, and it turned out to be a life sentence. Home was supposed to be perfect, exactly the way it used to be. But it was not, nothing like it, and a lot of men could not reconnect, body or soul.”
David Casey, Jr. His firm co-represented the fishermen in the Exxon Valdez case and argued California’s case against “Big Tobacco." But on February 6 the court ruled in favor of the Japanese companies.
Daws describes “behaviors” of all sorts: “At home or out at a restaurant, if they saw someone leaving food on the plate they might be seized by the urge to shove it into his face, or her face.” Scrounging. Hoarding. Hating to stand in line, especially at a buffet. Touchiness. Jumpiness. Extreme sensitivity to sudden, loud noises. Becoming upset for weeks upon hearing a news report of someone trapped in a well or a cave-in. “If a POW did not have one of these behaviors he had another,” Daws writes, “and many men had more than one: private madnesses of all shapes and sizes. The best they could do was keep their most extreme and inexplicable weirdnesses to themselves.”
The 63-mile-long Bataan Death March began April 9, 1942, with 70,000 American and Filipino
POWs; 7000 to 10,000 died
I had been reading other books besides Tenney’s, because I’d had only a vague notion of what the Bataan Death March was. I hadn’t known much about the mass surrender in the Philippines, which had caused it. And I’d had little idea of what had happened to the men who had become Japan’s prisoners, except that, sometime in the past, I’d seen the 1957 movie Bridge on the River Kwai and knew its whistled theme song. (In reality, Allied prisoners did build bridges in Burma to help move Japanese supplies and troops from Bangkok to Rangoon, and many of them died under the conditions.) I felt bad about my ignorance, and worried about it too. It didn’t seem enough of an excuse that most Americans are largely uninformed about that aspect of the war.
Michael Campbell of Linda Vista, captured at Corregidor, worked for Japanese companies “as slave coolie labor.” Most of the time he spent in a steel mill in Osaka.
As Tenney writes: “The bombing and strafing of Fort Stotsenburg and Clark Field within hours of the raid on Pearl Harbor went virtually unnoticed by the average person in the United States.” It was almost as if a September 12 had happened after September 11 and hadn’t made the evening news. Later, history books didn’t emphasize it. America’s first battle of the war had ended in defeat and a near-total breakdown of military command. Dozens of men, for example, refused to surrender and hid out in the jungles, where they formed guerrilla bands. (Tenney, after escaping from prison camp, briefly lived among them before being recaptured.) No wonder we preferred to play it down.
Thomas Nixon of Ramona worked as POW with a pick and shovel building a dry dock for Mitsui; he farmed for Nippon Express; and he worked for both Nippon Express and for a company called Tsurga as a stevedore.
But my fears and worries about what Tenney would be like were unfounded. Even before I met him, he put me at ease in our initial phone call with his wisecracking humor. (“You want to meet me early, you say? How about 6:00 a.m.?”) I was also relieved to learn, when I called the Tenney household again, a few days before our appointment (at 9:00 a.m., not 6:00), that he wasn’t home because he was attending a magic show at the Civic Center. Anyone who enjoys magic can’t be morose.
Cabanatuan, central Luzon, Philippines, 1943. Nixon's diary: “1/19/43 — Men are dying almost daily from beriberi, malaria, pellagra, heart, starvation, etc."
By then, I had finished his book, which, mirabile dictu, concludes on a nearly joyful note, with a friendship that he and Betty make with a Japanese exchange student, resulting in a trip to Japan for the student’s wedding, and with Tenney’s statement that, although he once did hate the Japanese guards who treated him so cruelly, he has never hated the Japanese as a people. And I had read more generally about what had happened to men, like Tenney, who had worked in coal mines and steel mills and at shipyards during their imprisonment.
Carlos Montoya, 1942, Camp O’Donnell. "When we came home we were so sick, we couldn’t have relations with our wives.”
Just like those who had worked on the Burma-Siam Railroad — an assignment that the River Kwai shamelessly prettied up — many thousands of them died. Those who did survive were brutalized, malnourished, and subjected to diseases from which many of them never recovered. The Japanese had signed but never ratified the terms of the Geneva Convention, the international agreement of 1929 that had defined the humane treatment of prisoners of war. As many historians have written, the Japanese didn’t accept the Western concept of honorable surrender. Few Japanese soldiers would let themselves be taken as prisoners: they preferred suicide. It amazed the Japanese when American prisoners wanted to contact their families. Wouldn’t the folks back home be ashamed of them?
Carlos Montoya today. A Japanese soldier approached him; Montoya cried out to God, “My dear Lord! Please deliver my soul!” The soldier walked away.
Add to that the Japanese economic situation: their own people were suffering from food shortages. How could they feed so many prisoners (320,000 of all nations taken in six months)? Well, if they had to feed them, even as minimally as they did, they might as well get some work out of them.
Tenney worked in coal mines on an island about 35 miles east of a not-yet-famous city named Nagasaki. The mines belonged to Mitsui. “The Japanese guards marched us [to the mines], a distance of about three miles [from the barracks], and then turned us over to civilians for the actual work in the mines,” he writes in My Hitch in Hell. “The shaft mine was underground. We had either to walk or ride down. Most of the time…we had to walk, carrying jackhammers with five-foot-long bits, shovels, axes, saws, hammers.…
“We experienced serious accidents that cost many of our men their lives, an arm or leg, and in a few cases, broken backs. Many injuries, often fatal, were caused when the ceiling collapsed in what was known as sidewall cave-ins. It made no difference how many accidents we had, however, the work had to go on.…
“If we performed the way we were supposed to, the Japanese did not beat us. If we goofed off, however, then we could expect the consequences. Of course, this basic premise did not follow any type of pattern. We were beaten for any reason the Japanese civilians wanted. If their food was in short supply, if the Americans bombed a Japanese city, or if the supervisors wanted more coal that day than was produced, they beat us. We quickly found out that there was no need for an excuse; we were punished anytime the Japanese wanted to vent their anger and frustration.”
As Tenney led the way to the patio on the morning of our meeting, I watched to see if he had a limp, since I knew from the book that one of his hips had been severely injured. I couldn’t tell. As we sat down, I looked at his fingernails. The Japanese had shoved small pieces of dried bamboo under them, then set the bamboo on fire. They were nicely filed and shaped.
Did he have any lasting ill effects from his ordeal? I asked him.
“Yeah, I’m crazy,” he said. “But you know what? You only have permanent disabilities if you think about them. If you don’t think about them, you don’t have any. Forget about it. The things I can’t do, I don’t even think about. That’s my way. But I don’t have any permanent disabilities, no.”
“Well, your stomach isn’t right,” Betty said gently, “and your back isn’t right — ”
“And my head isn’t right. And my left arm isn’t right. So what?” said Tenney, whose manner is often brash, but ultimately endearing, like that of the old dog who barks and growls but can’t keep his tail from wagging at the same time. “I turn off a lot of things. Last week, I had to have a root canal, and I don’t take Novocain. I don’t need it. I just sit in the chair and I say, ‘Okay, wake me up when it’s over. I’m just going to lie here and forget everything. Just go ahead.’ And my mind goes to a complete blank. Bingo! It’s what you can feel up here. I did that in prison camp. If you can’t do that in prison camp, you die. You know? It’s the same thing.”
And yet Tenney hasn’t forgotten the experience. (“I have a very, very keen memory of what happened,” he told me, “so it was very easy for me to sit down and write [my book].”) The pending lawsuit is evidence enough of that. What, I wondered, did he hope to gain from it?
“For me, this isn’t about money,” he said, and the statement must be taken literally, since the man is a retired professor of finance. (He taught at Arizona State University until 1983. For four years, in the 1960s, he taught at San Diego State University.) “I say what I’m about to tell you without trying to be highfalutin. But if they were to award me $10 million tomorrow, it would not change my lifestyle one bit. I’m not going to buy a more pretentious house. I adore what I have. I have two cars. I can’t use more than two cars. I have 16 suits. I can’t use more than 16 suits. I have 25 sport jackets. I can’t use any more. I have,” he went on hyperbolically, “150 pairs of slacks. You understand what I’m saying? It’s not going to change my lifestyle. People say, ‘All you want is the money. Why don’t you come clean and just say so?’ Well, that’s so full of BS. Not that I’m not entitled to the money! You know, when you think about what I’m entitled to — and I say ‘entitled.’ What I may be able to get is different. But what I think I’m entitled to is pay for work that I performed. But that still isn’t really what this is all about. This is about respectability. It’s about responsibility. It’s about dignity.”
As a soldier, Tenney said, he accepted the likelihood that he might be captured and imprisoned, maimed, or killed in action. “What I did not expect was that I would be forced to work for a private company” — that is, Mitsui & Co., Ltd., the parent of companies that are themselves gigantic, Toyota and Toshiba among them. A veritable corporate dynasty, Mitsui is the oldest, one of the biggest, and the most renowned economic unit in Japanese history. In 1945, when the war was won and Tenney was liberated, some experts say that Mitsui was probably the largest private business organization in the world. Today it has interests in just about any industry you can name. Banking? Insurance? Shipping? Foreign trade? Retail merchandising? Construction? Engineering? Textiles? Chemicals? Paper? Glass? Real estate? Forests? Quarries? Fisheries? If Mitsui itself doesn’t have a hand in it, one of its hundreds of subsidiaries around the world does — subsidiaries like Mitsui Mining USA, Inc., with an office in Torrance, California.
Tenney v. Mitsui was filed on August 11, 1999, four days before the 54th anniversary of V-J Day. It immediately began making news. As other veterans learned about his suit, they began to make inquiries. Since then, 34 others in San Diego County have joined subsequent actions against Mitsui, Mitsubishi, and the Nippon Steel Corporation. All are being handled by Tenney’s lawyers at Casey Gerry Reed & Schenk in Banker’s Hill.
The Casey firm, founded in 1947, is considered to be the oldest “plaintiffs’ firm” in the city. It’s relatively small, with about 13 lawyers and 28 staffers, but it’s feisty and enjoys a good reputation locally as well as nationwide. For 13 years, it has co-represented the fishermen in the Exxon Valdez case (verdict: in excess of $5 billion). In the 1990s, it argued California’s case against “Big Tobacco,” part of a joint venture consisting of 60 law firms that represented attorneys general in 46 states (settlement: $25.2 billion). More commonly, it represents victims of serious personal injury, accidents, and fraud. To read the firm’s brochure is to fear leaving the house; there’s no telling when fate will make a sudden move in your direction. (“While jogging, Irene V.’s husband was killed by a lift gate extended from the side of a tractor-trailer, which drove by him…”) But it isn’t safe at home either. (“Kimberly V.’s house exploded after a stove was hooked up in her new residence…”) The world is apparently full not only of dangerous situations but unsafe consumer products. A visitor to the firm’s office will hear the receptionist routing calls from would-be plaintiffs who are interested in information about Fen-Phen suits, for instance.
Tenney stressed that he first thought about bringing a suit against Mitsui shortly after he returned home from the war. He wrote a letter to the State Department in 1946. “Nineteen forty-six!” He repeated the date, because it’s important for him not to be considered a bandwagon jumper, despite the reparations movements of all kinds that are sweeping the country — in fact, the world. “That was long, long before there was ever a thought of Holocaust cases,” he said. The reference to Holocaust cases is to suits like Gross v. Volkswagen and Rosenfeld v. Volkswagen, filed in New Jersey courts by men who performed slave labor for companies in Nazi Germany. All such suits have now been settled by a $5.2 billion fund for claimants. “This was long before any of that. But I knew I wanted to go after them for what they did.”
The State Department’s response came just ten days later, said Tenney. “And I still have a copy of it, along with my original letter. It says, in essence: ‘You don’t have to hire a lawyer. You don’t have to have anybody to represent you. We’re going to be taking care of everything, and we’ll keep you informed as things progress.’ That was in 1946! I haven’t heard a word since!”
Tenney subsequently forgot about pursuing a lawsuit. “I forgot about everything. I went back to my life. I wanted a life!” According to him, life doesn’t look predominantly dark to former prisoners of war. On the contrary: “When you go through something like that — it happens to everyone — life is very sweet. You learn not to live life as seriously as other people. You have different values. Money is not the driving force. For none of us, I think, was money the driving force. I think most of us were driven to love and to understanding and to just being able to live, period.”
Tenney pursued friendships, too, almost as a compulsion. “Friends are what keep you alive. Whatever you do, you have to have friends, not just because they help you stop the bleeding, but because sometimes they’re just there, just to be with.” He told me a story about his pursuit of friendship in San Diego, when he moved here from Florida after a divorce in the mid-1950s. (His first wife, Tenney discovered upon his return home, had given him up for dead and remarried in his absence; the move to San Diego was after a failed second marriage.) “When I came here 44 years ago, I didn’t know anybody. So I made a decision to meet 90 people in 90 days that I could take out to lunch. I didn’t want to make close friends with them in that period of time. I said to myself, ‘If I can’t meet 90 lunch partners in 90 days, I’m in the wrong place.’ I got a phone call from somebody who asked, ‘Do you play bridge?’ And I lied and said, ‘Yes.’ Because if you play bridge, it means you’re going to meet people. Right? I want to meet people! That’s my goal! So they said, ‘Well, this lady just got divorced. She needs a bridge partner. She won’t go as a single.’ I said, ‘I’ll go.’ ”
Again, Tenney credits the role that luck has played in his life, in prison camp and beyond: the lady who needed a bridge partner that evening was Betty.
At another bridge game, shortly after his book came out in 1995, Tenney says he met a retired lawyer from Colorado who had been impressed by the book and who renewed in him the idea to pursue the Japanese companies in court. The retired lawyer introduced him to a young lawyer in North County, who in turn introduced him to David S. Casey Jr., whose father and grandfather before him had been lawyers at the Casey firm.
Casey was already aware of relevant legislation making its way through the California state house. A bill, sponsored by former State Senator Tom Hayden, had been designed for the Holocaust victims seeking redress. But its wording also covered suits brought by those who had worked for companies in the countries that were Germany’s wartime allies — i.e., Japan. Casey began to monitor the bill’s progress through the legislature. He watched, too, the defeat of bills like it that were proposed in other states — New York, Nebraska, and Rhode Island. Casey and others say the defeats came as a result of lobbying by the Japanese — efforts that were unsuccessful in California. Casey’s analysis of California’s success with the first-of-its-kind legislation goes like this: “California is kind of a nation-state, and it’s large enough not to be threatened by a particular company going in and saying we’ll pull out of the state.” Tenney’s take is different: “I want you to know that had that bill said ‘Germany or Japan’ rather than ‘Germany and its allies,’ it would never have passed. Oh, there are enough Japanese business people in the state of California that would have put the squash on that. In my opinion. But I think it went over their heads.”
There was one more piece of synchronicity that made Tenney’s timing just right. While the bill was being considered, the Casey firm was planning to merge with four other plaintiffs’ firms in New Orleans, Atlanta, Mississippi, and Washington, D.C. They wanted to create a larger legal unit that would be better equipped to do battle with the mega-corporations that each of them had previously faced alone. The result was Herman Mathis Casey Kitchens & Gerel — or Herman Mathis, for short — whose declared specialty is consumer class actions against corporate defendants. To announce its presence and to test its might, Herman Mathis wanted a high-profile case for its launch. After meeting Tenney, reading his book, and hearing his story directly from him at a big meeting in San Francisco, the firm chose his case to be the one. Within days of the new California law’s passage, Casey filed Tenney’s suit in Los Angeles Superior Court.
I told David Casey that I had hoped that the sum of money Exxon was ordered to pay in the Valdez case would actually hurt the company. Was that a legitimate hope in legal circles? Was it a justifiable goal? And: Was he hoping to hurt Mitsui and the other Japanese companies who had used American soldiers as slaves?
We were sitting in his office at the corner of First and Laurel. The building is a modest, “modern” place, in contrast to the historic structures in the neighborhood. Inside, it’s a rabbit warren, where even the partners are cramped for space and an associate lawyer’s office doubles as the library. There is no separate room for conferences. (“The building itself is, let us say, a working building,” Casey said. “It’s not a fancy high-rise downtown.” He is doubtless aware that those who criticize these cases as part of “victim culture” like to characterize the plaintiffs’ lawyers as profiteers.) In his 50s, Casey is the same age as Tenney’s son and stepsons. Fit-looking and handsome, he has a direct gaze and ready smile, which frequently turns into a grimace when he’s talking about the bad guys. The need to alternate between ministerial composure and moral outrage comes with the legal territory: as a plaintiffs’ lawyer, he must necessarily be both hand-holder — when he listens to a plaintiff’s story — and gunslinger — when he goes to court.
“In the case of the Fishermen v. Exxon Valdez,” he said to answer my question about legalized vengefulness, “the purpose of the punitive damages was to send a message to a large oil company that you don’t put a drunk captain on the largest supertanker in the world, because the consequences could be environmental harm that is so great, we want you to know that it’s going to cost you a lot of money. You see, our theory is that corporations don’t have a heart. You open Enron’s chest, you don’t see a heart beating in there. But what they do have is a sensitivity to money, so if they lose money, a significant amount of money, because of punitive damages for conduct, they’ll then stop that kind of conduct. In the Tenney case, though, we are not seeking punitive damages. We are not seeking to punish. We are just asking them to pay Dr. Tenney a fair day’s wage.”
That sum, including interest, is likely to be about $20,000, said Casey.
In addition, others, who, like Tenney, are suing not only as a class but as individuals, may get more, because the court is being asked to compensate them for their personal injuries.
In all cases, the lawyers will take 28 percent of the amount of the award. From the remaining 72 percent, individuals will pay the firm’s expenses. Those involved in the class actions may or may not have to pay their lawyers’ fees; again, it’s up to the court, which may decide that the defendants must pay the plaintiffs’ legal expenses.
If they lose, Tenney and the other plaintiffs pay nothing; the lawyers pay all the expenses themselves.
It’s possible, then, to calculate the minimum amount that could accrue as a result of these cases. The current number of plaintiffs in a dozen Herman Mathis suits — 700 — times $20,000 equals $14 million. But there is potential for much more. All told, 25,580 Americans were captured and interned by the Japanese. Still alive as of January 1, 2002, according to the American Ex-Prisoners of War Association, are 4473. All of them and their heirs are eligible to sue under the California law.
What’s even more significant, for California, is that the scores of other potential plaintiffs around the world would likely be encouraged to sue the Japanese through our state court system if these first suits are successful. That’s because the new law’s wording says nothing about a plaintiff’s needing to be American. These plaintiffs could be former slave soldiers from Britain, Australia, the Netherlands, Dutch Indonesia, or the Philippines. They could be from Korea, since Korean “comfort women” were forced into sexual slavery by the Japanese during the war. And they could be Chinese, since Chinese civilian laborers performed forced and slave labor alongside soldiers.
Casey, for his part, doesn’t think Mitsui and the other companies care much about the claims of Tenney and the 700 American-only plaintiffs in the Herman Mathis suits, or even about thousands of additional claims by Americans. For them, it still would add up to “a minuscule amount.” It would not, he said, “have any financial impact on them at all. So this is not a bet-the-bank deal.” These corporations are what are called zaibatsus, said Casey: “They’re made up of hundreds of different entities, with interacting boards of directors. They’d be illegal in this country because of antitrust provisions.”
He does, however, imagine their caring about “what they do with the millions of Koreans and Chinese. That is lurking out there, in their thinking.”
(Not just “lurking” but a reality, since Jang Bao Heng et al. v. Mitsui Mining, Inc., was brought in Fukuoka District Court in Japan on behalf of 15 Chinese men a few years ago — and the men won. The verdict, an award of $85,600 each, is currently on appeal.)
Money aside, there are “face” issues for the Japanese, said Casey, since they, unlike the Germans, have never owned up to their war crimes and continue to be reluctant to do so. “In their history books, the Japanese teach that World War II was caused by the United States exerting economic pressure on them. Pearl Harbor is just, well, that was just kind of a retaliatory action, to deal with the economic pressure that they were put under. We have had an enormous amount of publicity in Japan because a lot of reporters in Japan want this to get out, because the public in Japan is largely unaware that their own companies did this to American POWs. It’s been hidden.”
Whatever their actual motivations, the Japanese companies have mounted a massive defense against Tenney v. Mitsui and the rest. They are not using their own in-house lawyers but lawyers from corporate-law firms whose primary business is representing global businesses. “These are the big players,” said Casey. “When they show up, they come with 10, 20 lawyers.” A look at some of their websites shows that these are, indeed, large firms of 800 and 900 lawyers each, working in offices around the world. And when they say a specialty of theirs is class actions, they mean as defenders of them, not prosecutors. “So corporate America — the legal profession’s corporate America — is, ironically, defending these companies against the American POWs,” said Casey.
At a court proceeding in Santa Ana, I would get a look at these lawyers, who have so far kept the cases from coming to trial by repeatedly challenging the constitutionality of the California law itself. They have also caused some of the suits to be sent from state court to federal court. (In the commonplace phrase, they made federal cases out of them.) Only to have the judge remand them — that is, send them back — to state court. From which the defense had them re-sent to federal court. And so on.
I would see in Santa Ana, too, Casey’s additional, very aggressive foe — the United States.
For the past two years or so, lawyers from the State Department have been filing statements of interest and amicus curiae briefs. As the definition goes, an amicus curiae, or friend of the court, is not directly involved in a particular litigation but is allowed by the court to advise it on matters of law affecting the litigation. The State Department has used this privilege to argue consistently against the veterans.
“Now just think about that,” said Casey. “A person from China can go to a Japanese court and get justice for what happened in World War II. An American POW goes to our court system and not only doesn’t get justice but has his own government coming in and opposing him.”
This opponent was entirely unexpected. Casey had not anticipated having to wrangle with the feds. “We were shocked. And our clients were shocked. I mean, think of what it would be like if you had spent years in a slave labor camp watching 37 percent of your comrades die and then come back to this country that you helped protect the freedoms of, and you go to the court system and your own State Department comes in and opposes you. Understand, we are not bringing action against Japan itself. If it was an action against Japan, the State Department would have every right to get involved. We’re bringing a private action against private companies. And then you have the State Department coming in and saying, ‘Yes, we will stand arm to arm with the Japanese companies that enslaved American POWs.’ ”
Why is this happening, especially since the government did not intervene in the Holocaust cases? In fact, its representatives were part of the settlement process.
“The State Department has made a highly political decision. Its attitude is, right or wrong, it wants to be friendly with the Japanese. It wants to do everything it can to take care of Japan, and it’s going to do what’s politically correct for Japan, even if it means depriving the American POWs of their day in court.” What first the Clinton administration said and later the Bush administration restated was, according to Casey: “ ‘We don’t want to stir the pot. We don’t care about the rights of 25,000 POWs and their heirs. We’re going to use them as a political tool.’ ”
But they don’t say these things literally, do they?
“No, they don’t. They just say that the treaty is a bar.”
Casey showed me a letter written by a State Department assistant secretary that explains the government’s position. “The Treaty of Peace with Japan,” it said, “has, over the past five decades, served to sustain U.S. security interests in Asia and to support peace and stability in the region. We strongly believe that the U.S. must honor its international agreements, including the Peace Treaty with Japan. There is, in our view, no justification for the U.S. to attempt to reopen the question of international commitments and obligations under the 1951 Treaty in order now to seek a more favorable settlement of the issue of Japanese compensation.
“The explanation obviously offers no consolation to the victims of Japanese wartime aggression. Regrettably, however, it was impossible when the Treaty was negotiated — and it remains impossible today, 50 years later — to compensate fully for the suffering visited upon the victims of war.”
Suck it up, in other words.
Casey, however, can cite at least three “pretty substantial heavyweight” experts, including one of the State Department’s own international-law consultants, who say that the treaty is not a bar to these claims.
Each of these men has testified at U.S. Senate Judiciary Committee hearings in Washington, D.C., during which Orrin G. Hatch of Utah, chairman of the committee, asked one of the State Department lawyers, in disbelief, “You mean our federal government can just say, to hell with you Bataan Death Marchers and you people who were mistreated, we are just going to waive all your rights because we have the almighty power to do so?”
According to the transcript, State Department lawyer Ronald J. Bettauer replied, “There was a decision made in the 1950s — ”
Chairman Hatch didn’t want to hear about it: “I don’t care about that decision. I am saying, can the federal government do that?”
Bettauer answered, “Yes, I think the federal government can do that.”
Hatch called Bettauer’s analysis “ridiculous.” He went on, like a high school principal dressing down a hapless student: “You are clearly a bright young man, and you clearly have been sent up here as a sacrificial lamb.… I mean, I don’t know how in the world you can come in here and make these arguments like this… Your opinions, in my opinion, are not accurate. I am trying to be nice.”
Tenney testified at the hearings too. Having traveled with Casey to the capital, he gave his speech and showed photos of himself and his fellow prisoners looking skeletal and battered. (“You can see that picture there, Senator. That is what we looked like.”) At the end of his speech, in which he gave a shorthand account of the death march and his mistreatment, he referred to Bettauer and asked him and the rest of the U.S. government to “help us [by] getting out of our way.”
In the months that followed, both the Senate and the House of Representatives passed an amendment to the 2002 appropriations bill. It denied the State Department the funds to fight these cases. The measure was vetoed by George W. Bush, however.
And if the State Department’s actions hadn’t been funded? I asked Casey. If the federal government were out of the picture?
“That wouldn’t assure us that we would win,” he said. “But we would at least get a fair hearing. As it stands, the presence of the State Department tends to tilt things heavily against these POWs.”
And if you finally were to go to trial, how long would these trials last?
“Three or four days. These are not long cases.”
Being in the business he’s in, Casey is accustomed to working on cases for years. (“We are still involved in the Exxon Valdez case. As we speak, there’s activity going on.”) But these plaintiffs are aging; occasionally, one of them dies. “And I would consider it a Pyrrhic victory to say that we had prevailed only for the heirs. But instead of going to trial, what we have is an almost classic confrontation between states’ rights and federal rights. And normally, you would expect the Republicans to be coming in and saying, ‘States’ rights!’ with the Democrats on the other side. Here, it’s turned around.
“You know, I was born in this town, and this town was a military town when I grew up. I mean, you had Convair and you had the military, and that was it. And when we were at war, the economy was good — the housewives went out to shop — and when we were not at war, we went into a recession. This has been a very military town.” A very conservative town, he wanted to say. And yet? “We have gotten a lot of support here for what we’re doing and, frankly, everywhere we’ve gone. It’s just that for these men the clock is running out.”
July 10, 2002. Santa Ana, Orange County, State of California. The Fourth District Court of Appeal.
The hearing was scheduled to begin at 1:30 p.m. At noon, the courthouse lobby was deserted; an hour later, it was full of “suits” waiting for the courtroom doors to open. Six of them were from the Casey firm; one was from the State Department. All the rest were from the mega-firms defending the mega-corporations of the Japanese.
Casey had been more than right when he told me that the defense always dispatches large contingents. There were at least three dozen of them, men and women from New York, San Francisco, Los Angeles, and Washington, D.C., looking as if they weren’t used to waiting for anything. Indeed, when the bailiff called for only the four lawyers who were scheduled to speak that day, every one of the dozens rushed right in.
Nine months earlier, an Orange County superior court judge, William F. McDonald, had ruled in favor of the plaintiffs whose cases still were in state court: he believed they should be able to go to trial. Now three judges were reviewing that decision. Their opinion would affect not only those actions but all similar ones brought now and forever by any and all law firms, because Judge McDonald had been appointed to oversee every suit of this kind in the state.
If the cases that were now in federal court were ever to be sent yet again to state court and were to stay there, then this opinion would affect them too.
No wonder David Casey had told me: “This is a very. Very. Important. Hearing.”
(It was, in fact, a proceeding not for one case but several: three cases had been combined for it. The lead one, Dillman, et al. v. Mitsubishi, was brought on behalf of individuals. The other two, Jaeger v. Mitsubishi and Martin v. Mitsui, were class actions brought on behalf of heirs.)
Eight plaintiffs from San Diego, Riverside, and Orange Counties had made the trip to Santa Ana to observe the proceeding. Several had been transported in the Casey firm limousine. Tenney was among the group, wearing a business suit, like the lawyers. Another plaintiff, Don Ingle of Temecula, had chosen to wear red, white, and blue for the occasion — red jacket, white pants, and blue accessories.
Ingle speaks with a synthesizer; he holds an electronic device to his throat, and his words come out without inflection, in the timbre of a genial robot. As we stood in line to pass through a gauntlet of airport-like security, he told me in his mesmerizing voice that he often gives lectures on the psychology of survival personality.
Robert Vogler of Rancho Bernardo wore a Battling Bastards of Bataan baseball cap. The name of the survivors’ organization comes from a phrase in a poem written by Frank Hewlett, a World War II correspondent for United Press International. Hewlett had seen for himself that, even before the men were ordered to surrender, they had been bereft — many of them ill, all of them ill-equipped. (Tenney’s book mentions outdated items like World War I–era Springfield rifles.) Franklin Roosevelt, in one of his fireside chats, tried to let the boys down gently but essentially wrote off the Philippines, it is agreed, having chosen to concentrate on the war in Europe. The poem about the “battling bastards” goes in part like this:
We’re the battling bastards of Bataan;
No mama, no papa, no Uncle Sam;
No aunts, no uncles, no cousins, no nieces;
No pills, no planes, no artillery pieces.
And nobody gives a damn.
Michael J. Campbell of Linda Vista had been debating earlier in the week about wearing his U.S. Army uniform, which he keeps on a mannequin in his living room. “I’m still authorized to wear it,” he said. “And it still fits, although the pants are a little long.” (At age 85, he’s 120 pounds and 5'4" but shrinking.) “I have to roll them.” But the votes — of his son, his wife, and the Casey lawyers — were against it; so instead he wore bright blue pants, matching jacket, a black POW-MIA cap, and his medals, including a Purple Heart.
Campbell missed the death march. As he tells the story: “We were told to lay down our weapons and report to kilometer post number so-and-so. It was chaotic, but I went there and found it was jungle — nothing but trees. And I thought to myself, ‘Hell, no! I’m not going to surrender!’ ” Instead, he was one of those who escaped to Corregidor, a small island south of Bataan, and continued fighting.
“I joined the Fourth Marines [Fourth Marine Corps Regiment] there. I became a Marine, just like that! So help me God! Now we argue: which was worse? Was it the death march, or was it fighting in the siege of Corregidor for three or four more weeks, continually being bombed and strafed? Corregidor is like Coronado. Similar setup. Like a cork in a bottle. The Japanese couldn’t get in and out except by way of it. But then they completely surrounded us, and, of course, Corregidor, too, surrendered, and I, Mike Campbell, became a prisoner of war for three years, three months, and six days.”
He had worked for a number of Japanese companies “as slave coolie labor.” Most of the time he had spent in a steel mill in Osaka. It was hard, horrible, but a lucky assignment for one reason: his job was testing 55-gallon steel drums for leaks, and he was able to do the work while sitting down. A few years ago, he heard about the lawsuits when Bonnie Kane, Casey’s colleague at the firm, came to speak to a veterans’ group. Campbell didn’t need convincing. “When I found out what the goal was, I said, ‘Sign me up. I’m for it.’ ”
Not that he feels any resentment toward “the average Japanese.” Said Campbell, “I can’t hold the present generation liable.” In fact, he seems more resentful of the U.S. government than of the companies that forced him to work: “Frankly, I was upset because the United States had decided that the war in Europe was far more important than the war in the Far East. See, here we were, getting second priority. We were expendable. It was a strategy, I understand that. Hitler was the main thrust. But the result was that 25,000 Americans were left, including me, Mike Campbell. And I said to myself, ‘I want to find some way to get even.’ And the way I did it was, I stayed in the military. To this day, I’m on the Army payroll! Sixty years! So help me God! It’s odd but true. I retired as a chief warrant officer in 1971. Now I’m getting four grand a month! Not bad! Plus, marvelous benefits.”
The rumor came to us in line that the plaintiffs would not get seats in the courtroom, because the mega-firms’ lawyers were taking up so much room. It wasn’t true. At length, the eight men finally took their places in spots close to the front: seats had been saved for them by their lawyers. Some relatives of the plaintiffs, however, would have to sit in chairs hastily set up behind the last row of regular seating. I sat there with them, between a wife and a daughter.
The small courtroom had the feel of a chapel. The regular seating is rows of wooden pews, and the area for the judges is raised up, like an altar, with three big, swiveling leather armchairs. In the moments before the black robes arrived, the bailiff went to the front of the courtroom and said to us all: “For those of you who have gum, don’t chew it. If you have a newspaper, throw it away.”
Then she told the audience what the lawyers with speaking parts must have already known: each of them would get only a matter of minutes for their arguments: 20 minutes for initial presentation; 5 minutes for rebuttal. Douglas Hallward-Driemeier, the government’s representative, spoke first.
There was “no question” that the POWs had “suffered immensely,” he said. That wasn’t what the proceeding was about. Rather, it was about the treaty. The dispute could be resolved by a look at the treaty.
One of the two associate judges, with a gray beard and an imperious manner, stopped him a few sentences later. “Are you saying that it boils down to one phrase? ‘In the course of the prosecution of the war’?”
Hallward-Driemeier said yes. All of these claims were resolved by the treaty.
The bearded judge continued to question him.
“As a class,” said Hallward-Driemeier, the men could have received compensation from funds seized from the Japanese directly after the war. They could have obtained funds long ago. Now, however, the filing of claims “cannot be squared.”
“Individual litigation of claims” is not provided for by the treaty.
Was the treaty a bad one? this same judge asked while the other associate — a woman — and the presiding judge, who sat in the middle, asked a few questions of their own but mostly just listened. This would be the pattern for the rest of the proceeding. Later, Bonnie Kane would tell me: “That judge is known for being like that. Interrupting is usual with all of them, but he is exceptional. And of course, he’s using up the attorney’s allotment of time.” His name is William F. Rylaarsdam.
“It’s not for the plaintiffs to argue,” replied Hallward-Driemeier. Nor was it for the state legislature to get involved in such matters. We would hear from the state’s legal representative shortly. But first came the lawyer for the plaintiffs, Ronald Kleinman, and then the one for the defendants, Arne Wagner of the San Francisco firm Morrison & Foerster.
Kleinman is not a member of the Casey firm, nor the larger collective of firms, Herman Mathis. He is a consultant to the suits from a Washington, D.C., firm, Greenberg Traurig. As Tenney described him that morning on Mount Soledad: “He’s the world’s expert on treaties. In the world! Okay? He’s outstanding!” But like Hallward-Driemeier, Kleinman was being given a hard time by Judge Rylaarsdam.
“Both federal and state courts frequently interpret treaties,” Kleinman told the panel. The government’s position was not valid, he argued, but rather raised a “political question” that was outside the scope of the dispute.
“I’m not sure I agree with you,” said Judge Rylaarsdam.
Kleinman’s presentation went on, as did the badgering. “I’m having a hard time getting a ‘yes’ or ‘no’ out of you,” Judge Rylaarsdam complained.
Defendants’ counsel Wagner spent his time arguing that the federal government has “full authority” to say when a war is over and to make claims. California had, in essence, taken it upon itself to do the latter, and it shouldn’t have. For shame. California does not have the authority to say what conflicts with or undoes a treaty, he said.
Judge Rylaarsdam gave him the same treatment he had given the others.
Finally, the lawyer for the state, Angela Sierra, argued that the new California law was, despite contrary opinions, constitutional. California was, indeed, within its legal bounds. Pressed for evidence by Judge Rylaarsdam, she cited “local interest” as its relevance to life in California — the Japanese companies that do business here.
Once again, Judge Rylaarsdam was on the attack: “I get real worried when we’re asked to consider people’s motives instead of what they do,” he said to Sierra.
During rebuttals, Hallward-Driemeier was asked if the men had been notified that they could have brought claims all those years ago, as he had claimed in his presentation. Don Ingle and Mike Campbell, sitting together, looked at each other. They shook their heads no as Hallward-Driemeier said yes.
In the end, at least on this day in court, the plaintiffs were beside the point. The proceeding seemed like something that lawyers almost enjoy doing to one another, like athletes engaged in a competition that’s designed to be frustrating. When it was over, the presiding judge, David G. Sills, thanked them all for their “excellent, excellent arguments.”
Outside, on the steps of the courthouse, the Casey firm assembled the plaintiffs for a group photograph. Seven of them got their smiles ready for the camera, then the eighth, Tenney, came up behind them. “What about a good-looking guy instead of all these ugly guys?” he said. A space in the center was made for him.
Photographs were taken by the media too. There were several reporters in attendance, from the Associated Press, an Orange County paper, the Los Angeles Times, as well as cameramen from Fox TV, who had been in the courtroom.
The Associated Press reporter, a heavyset woman with a strong voice, took the opportunity to shout questions at the men en masse.
“What do you think about what happened in there?”
“It’s a disgrace.”
She went on, like a cheerleader: “What do you want?”
“Justice!” the men rejoined.
“How did you feel about the government’s accusation that you hadn’t filed claims when you had a chance?”
“We tried to file!” said Tenney. Another man said the same thing. Tenney told the reporter about his 1946 letter to the State Department and the response he got, ending with his practiced punch line: “And I haven’t heard from them since!”
Plaintiff Carlos Montoya of San Carlos said, “We were too sick to file claims. We were physically sick and mentally sick. When we came home we were so sick, we couldn’t have relations with our wives.”
After a few more questions, one of the other reporters objected to the group format; he said he preferred to interview the men one-on-one.
“We want an apology too,” said Tenney as the group broke up to await the judges’ ruling that was expected in November.
But it wouldn’t end there either. Although David Casey had called the hearing “critical,” he had also told me: “This issue of the treaty will probably go on. You see, if the Court of Appeal rules in our favor, then I believe the Japanese companies will immediately petition the California Supreme Court. By the same token, if it rules against us, we’ll immediately petition.”
Treaty issues don’t always get this complicated. “They’re litigated every day of the week — in state court,” said Casey. “Every day of the week, state courts interpret treaties. I mean, you have issues dealing with trade agreements, most-favored-nation status, all sorts of things. They come up routinely.”
But if there is a matter of interpretation, as is the situation here, the other courts get involved: the Court of Appeal, the California Supreme Court, and then one more stop. Which is? “Depending on what the California Supreme Court does, one of us will probably petition the United States Supreme Court. It’s built into the Constitution: that’s the final arbiter.”
In the library of the Casey law firm there is a bookcase full of published books by former prisoners of war. There are so many that David Casey has a theory. “The rule of thumb is that virtually every POW wrote his own book,” he told me. “I think that was their way of dealing with what they had been through. Some of the books are better than others. But most of them wrote out a book.”
A few years ago, Mike Campbell, the Linda Vista plaintiff, “wrote out” his book. It’s a manuscript of 250 double-spaced typewritten pages, unpublished. And, as in many of the other books, a recurring theme is food.
“The main topic of conversation among the men was food,” Campbell writes. “A normal, healthy person usually fantasizes about the opposite sex. This was not the case with us. What we talked about was food. The preparation of food and the making up of elaborate menus.”
In reality, their food was mostly poor-quality rice. “It was full of rat dung, dirt, bits of glass, and small stones. It was shoveled into large cannibal pots, steamed, then shoveled into five-gallon lard cans. Another pot contained raw onions that were thrown into boiling water without peeling. After a few minutes, the onions also were shoveled into a can. A mess detail from each POW section drew the food from the galley. A can of rice and a can of onion soup was set on the ground, and a line of POWs formed to get the food. A tin ladle was used to dump a serving of wet rice in a mess kit, and a dipper of onion soup was poured over the rice. I was near the front of the line and received a generous portion, but the men at the rear of the line did not get any because the servers had misjudged the rations and ran out of food. A third of the men did not get any food.”
I spent hours reading these books, fascinated but searching for clues. Why had these men survived, when so many others had not? I wanted solid reasons, not talk of luck or happenstance.
Men who were addicted to tobacco did not fare well in prison camps, I read in many accounts. “The next most common hunger after food wasn’t sex; it was tobacco,” writes Campbell. “For a great majority of men it was a more urgent need than food. I am sorry to report that I saw many of the POWs swap their rations of rice for cigarettes. I thanked God and my dad over and over again for disciplining me against the use of tobacco.”
Tenney writes in a similar vein about what happened to many smokers: “I saw firsthand the consequences of not being willing to eat. Many men, too sick to move and too weak to care, traded their small ration of rice for one cigarette. All they wanted was one more drag, one more taste and smell of tobacco. That was what they traded their lives for. Tobacco, the deadly addictive drug, caused many prisoners to die.”
Not only did men perish because they preferred nicotine to the meager rations, but, it’s logical to assume and Campbell confirms it, other men survived because they were able to capitalize on their fellow prisoners’ addiction: “There was always some POW that was willing to swap,” he writes. “It was a loathsome practice and I shuddered whenever I saw the transaction take place.”
Tenney writes affectingly of the friendships he made in prison and how they saw him through. Campbell writes about his fellow prisoners differently: “We were living so close together and under such harsh conditions that we were stripped of veneer. Our very souls were laid bare.… We saw each other in a true light. Our weaknesses stood out, the selfishness, the greed, the cunning, the stealth, the crookedness, and all other human frailties. It soon became a matter of survival of the fittest. It was every man for himself, a dog eat dog affair. Rarely did I see an act of kindness or compassion. It was not expected and none was shown.”
Not that Tenney was magnanimous toward everyone. He writes of realizing the importance of making a place for himself in the middle of any lineup. Those who went first might make mistakes; those who went last might look like laggards. In the middle, chances were greater that you’d miss being punished.
Like all survivors, Campbell learned to be resourceful in the situation as he found it. “The lines for getting water were very long all day and far into the night,” he writes. “Some men would work their way to the water faucet and after filling a tin cup, would go back to the rear of the line to start the wait all over again. The wait would usually take about three hours. I found a canteen and discovered that I could fill it in the early morning hours without waiting. So at about three a.m. I would drink my fill and get a full canteen that I nursed all day long and would repeat the process the following night.”
But he wasn’t a loner. Early on, whether or not it was because he realized that he must keep his mind busy, he learned to play chess with a barracks sergeant. He also got involved in entertainment. (Other men’s books, including Tenney’s, tell about their own participation in prison-camp variety shows — diversions on which they gladly and, it turns out, wisely expended their precious free time and energy.) Here is what Campbell writes about his experiences as a prisoner-performer: “The entertainment bug hit me. I decided to ask Sgt. Melody if he could use my hand-balancing act in his group. He was delighted at my offer. I recalled a feat that I had performed many times at the YMCA; I placed two hard-backed chairs on a table about two feet apart with the backs facing one another. I then did a handstand by placing my hands on the back of each chair. It was a difficult trick and very spectacular. I soon became a regular with the troupe.”
Campbell’s excellent physical condition must have been a reason why he was able to survive. It cannot be overlooked, not then, and not now. The first time I phoned him, he said, “I just got finished doing my running stint. My workout is an hour and a half. I used to run the whole time, but recently I cut it down to 45 to 60 minutes. The rest of the time I do exercises in Linda Vista Park.”
When I visited him at his duplex on Coolidge Street, I saw the results of the “roadwork” of this self-proclaimed “health geek.” In a bedroom that has been converted into an office, he sat on the floor cross-legged, as flexible as a teenager, looking for a document in the bottom drawer of his filing cabinet. When he’d found it, he scrambled to his feet, barely using his palms. Dropping a rubber band, he bent to pick it up and popped back up to a standing position.
Campbell wears thick glasses but no hearing aids. And I noted that he isn’t hard of hearing in the least. He said he has no ailments and takes no medications of any kind. (“Not even aspirin!”)
“I didn’t drink liquor then [during wartime] and don’t to this day,” he added. “I don’t drink caffeine either. I don’t even take any condiments on my food — no salt, no pepper, no nothing. I eat lots of fruit and don’t eat between meals. I’ll show you my kitchen,” said Campbell as he led the way. On the counters I saw fruit, energy bars, plastic containers of cookies. He opened the refrigerator. It was full of fruit pies.
In the living room, a mini-museum, where he keeps his uniformed mannequin, his medals in a glass case, and lots of other military memorabilia, he showed me his stair stepper (“for inclement weather”) and his blood pressure kit. “I take it every day. Today it was 141 over 72, and my pulse was 46. The doctors are worried about the low pulse; I have tried to tell them that runners have low pulses.”
Seeing a map of Oahu on the wall, I asked Campbell about Pearl Harbor. We compared the difference between the experiences of the survivors of it and those who survived what he had been through. That difference was “huge,” said Campbell. “No comparison. First of all, Pearl Harbor only lasted for what? Two hours. And that was it! By sharp contrast, in the Philippines, the Japanese landed there and they captured it. They never did capture Hawaii. And so, yeah, the Pearl Harbor survivors faced the bombing, which was hell, but it didn’t last long. And casualty-wise it was light compared to the casualties we saw.”
Theirs was like a sprint, I offered, and his a marathon.
“Hey! You’re talking my language now! I’ll be darned.”
Growing up in Flint, Michigan, Campbell said, he acquired athletic discipline when he joined the Y’s gymnastics team. That wasn’t his only sport: “Gymnastics, walking, swimming, roller-skating, long-distance running, you name it.” Back in his office, he took from his desk a small framed photo to show me. It was a picture of a Charles Atlas–look-alike, in a tiny bathing suit: Campbell at age 22.
But Campbell’s fitness notwithstanding, his growing-up years in Michigan were rough, and he believes his growth was stunted as a result of poor nutrition. His parents were not as short as he is, he said. The eldest of eight, he was on his own by the Great Depression year of 1933. His mother had been committed to a psychiatric hospital. His father, an alcoholic whom Campbell describes as “strict” (“Today we would call him ‘abusive’ ”), was in jail, convicted of statutory rape. His brothers and sisters were put up for adoption, but Campbell was considered too old for that. He was 16.
“I was constantly hungry. And I am going to be frank with you: I stole. I went bumming and I stole bottles of milk after they were delivered in the morning. Hunger was the driving force. Sometimes I asked a bakery if I could work for food. Sometimes they gave me bread without making me work.” He began to wipe away tears, then quickly composed himself. Significantly, he did not cry while relating any of his experiences in the camps. Indeed, he said: “I had been deprived when I was a kid, so the Army wasn’t much of a change. And then when I became a POW it wasn’t much of a change.”
He joined up, he said, not out of any sense of patriotic duty but because he was “looking for a home.” “I needed food, clothing, and shelter — and pay. I had little education. It ended in tenth grade. And I had no skills. I was told by the U.S. Army that if I kept a clean record, I could have a job for life.”
He said he still feels guilty for convincing his 17-year-old brother, Melvin, to join up with him and for choosing the Philippines over Alaska for them both, because of the climate. Bad luck for Melvin: he was killed while being transported by the Japanese to a camp on Mindanao. It happened on one of their infamous “hell ships.” As Gavan Daws writes of these prisoner transports, “According to Japanese figures, of the 50,000 POWs they shipped, 10,800 died at sea.” The irony of the hell-ship deaths was this: if the deaths weren’t a result of conditions onboard, they were the result of the American bombs that hit the unmarked vessels. Daws adds, “Of all POWs who died in the Pacific War, one in every three was killed on the water by friendly fire.”
There was a second irony, and a bit of good luck for Campbell: he had tried to get transferred with his brother and been denied. After having accepted a roll of toilet paper from Melvin, Campbell said good-bye to him, and the brothers never saw each other again.
The gift of toilet paper would seem an odd memento, except to prisoners of war, for another recurrent theme in their books is shit, to put it plainly. Their lack of toilet paper was the least of it. In Campbell’s book, one chapter includes this scene, which results in his having to swim through human excrement:
“The poor sanitary conditions soon increased the death toll. Men developed severe diarrhea that progressed into dysentery. They would become very weak and lose control of their bowels, passing blood, mucus, and waste fluids. They were forced to lie in their feces, unable to move. The flies would swarm on them, crawling all over their feces and then over their faces. It was a very sickening sight.
“One day the Japs allowed us to dig some open-pit slit trenches up on the side of a hill. That helped a little. A man could go to the slit trenches and have a bowel movement away from the places where we slept and ate. One day we had a flash rainstorm. It rained so hard that water rushed down the hillsides and flooded our open-pit latrine. The water washed the excrement down the hill and into our sleeping area. It was a stinking mess. Worse yet the raw waste washed into our bathing area. It stopped raining soon and the sun came out. It became very hot. We all had a tough decision — either suffer the heat and broiling sun or wade into the water with raw sewage floating around. I stuck with the heat for a while until I could not stand it any longer. I walked to the water’s edge and tried to find a spot where there was no sewage, but I could find no clean water. I closed my eyes and waded into the water. Soon the excrement clung to my arms and legs. It stunk like a rotten sewer hole! I swam out to the deeper water and managed to wash the dung away.”
Campbell could cite exact dates for every phase of his war experiences. A piece of paper he showed me gives the account: “Camp #3, Cabanatuan, Nuevo Ecija, Luzon, Philippines, 25–31 May 1942”; “Yodogawa Seiko Bunsho, Osaka, Japan, 26 November 1942–25 May 1945”; etc. I asked him how he kept track of the passage of time, and he produced a small (less than three- by five-inch) diary he had kept surreptitiously while he was a prisoner. It contained the names of all his fellow POWs and their prisoner numbers, written in ink and pencil. Suddenly Campbell stood at attention, chin jutted forward. (Actually he always seems to be standing at attention, shoulders back, spine yardstick straight.) He shouted a word in Japanese: “Hai!” meaning, “Yes, sir!” Then his own prisoner number in Japanese: “Yon-juu!” Forty. Some names were designated with tiny crosses; he had made the marks as each man had died.
The diary was useful when he wrote his book, he said. Until then, just a few years ago, prisoner-of-war experiences “didn’t raise eyebrows.” They “weren’t a topic of conversation,” and he hadn’t given his own experiences much thought.
But diary-keeping was also useful in the camps, as a “coping mechanism,” according to Van Waterford in Prisoners of the Japanese in World War II. Not that the practice was encouraged by the Japanese — in some camps, it was forbidden and punished; and paper and writing implements were hard to obtain.
At lunchtime, I accepted Campbell’s invitation to be his guest at the Naval Medical Center’s “mess hall,” in Balboa Park. He changed caps. He had been wearing the black POW-MIA one; for this outing he would wear one that said “U.S. Army Retired.” (“Anybody can wear one of those,” he said of the discarded cap.) He put a fanny pack around his waist. And we walked a few doors down the street to where his Ford van was parked.
Campbell has been married to his wife, Peg, since 1946, but they live apart. His van was in her driveway. The arrangement suits them both, Campbell said as he got behind the wheel. He adjusted his booster seat, and away we went down the freeway. Perhaps not everyone has a flyswatter on his dashboard: ever-practical Campbell does.
The young woman in Marine fatigues at the gate checked his ID and saluted him. “See that?” he said. We found our way to one of the cafeterias, called Balboa Cafe. On his tray he put a glass of skim milk; at the hot-meal station he got a chicken leg and small scoop of rice. At the salad bar, he chose lettuce and carrots, no dressing. On our way to a table, he called my attention to another uniformed woman: “See her four stripes? Female Navy captain. That’s unusual.”
We enjoyed our lunch and the ambiance of the place. It was filled with people in uniforms of all sorts and medical garb too.
“If possible I would go back into the Army tomorrow if they let me,” said Campbell, who asked me if my husband had been in the military. No, he hadn’t been. “Well, it’s not for everyone. It’s like being a plumber, an electrician, or anything else. You take to it or you don’t.”
We talked some about the suit. I asked him what he thought about the State Department’s involvement: “It hurts. It’s a black eye.”
Why had the federal government become involved, did he think? “It’s all business. How many people is it going to hurt? Not that many? So [the government] feels free to do what it’s doing.”
I asked if he’d been in court for anything else besides the case against the Japanese; he said yes, one other time. Until 1940, Campbell’s name was Milan Zabitch — his father was a Serbian immigrant. He had long been taunted as “The Bitch.” Finally he’d had enough and changed his name legally that year. Why “Campbell”?
“What kind of name would you pick?” he asked me. “I looked at a can of vegetable soup. I said, ‘That’s it!’ ”
On our way out, he showed me a table set for five. It was a commemorative table for prisoners of war. He said the five place settings were meant to represent the five branches of the military. The red tablecloth was meant to signify the blood the POWs had shed. The salt was meant to signify their tears, and the lemon, their bitterness. A black POW-MIA flag draped the backs of two of the chairs.
“No matter how crowded it gets in here,” said Campbell, “these seats are never to be taken.”
When I met another plaintiff, Thomas C. Nixon of Ramona, it occurred to me that a healthy ego helped some of these men through their trials in the camps. Nixon is in a wheelchair and has been for 20 years, the result of battle injuries as well as the conditions of imprisonment. But when both he and Tenney were scheduled to speak at a demonstration at a Mitsubishi dealership in Kearny Mesa, Nixon managed to muster the physical strength needed to avoid being upstaged. This is how Nixon tells the story, at any rate: Tenney spoke first, and then he and the press started to leave. Undeterred, Nixon rolled himself up to the microphone, although he accidentally unplugged the sound system in the process. Someone said to Nixon that it looked as if he wouldn’t be able to speak now, because no one would hear him. So Nixon raised himself up to sit on the arm of his wheelchair and shouted, “Can you hear me now?” He gave his speech without a mike. “I can be forceful,” said Nixon on the day I visited him. “Most Marines are.”
When I arrived at the ranch house, Nixon’s wife, Ellie, greeted me at the door; so did a little white Maltese, Cayman, named after the islands. Cayman licked my ankles and feet through my sandals. There was no entryway, so I was standing immediately in Nixon’s well-equipped office. Outfitted with two computers, it’s the largest room in the house, chosen by the couple 16 years ago precisely because Nixon could use this space for his work. As national service director for American Ex-Prisoners of War, he helps veterans apply for their disability benefits. And if he ever does get a payment as a result of the lawsuits, he said, “The money will help me keep doing what I do.”
Nixon rolled around in his chair with ease and swiftness. “Look out, little boy,” he said to Cayman. The chair is large and motorized, with a tall headrest. Its model name is “1120 Jazzy.” He has a flashlight in a holster attached to one side.
The property came with several acres, and when Nixon wants to work in his garden, he said, he gets himself out of the chair, lies down in the dirt to tend his plants, then pulls himself back up into it when he’s finished. He has a quarter acre of flowers alone, in addition to vegetables and a collection of cacti. He has paid help once a week, but otherwise, he said, he’s out there on his own.
It was easy to believe. Nixon’s upper body is erect and well developed, with generous biceps; and at one point he stood to make me a copy on his machine.
You come off as real military, someone in Hollywood once told him. “That’s because I am,” said Nixon, who wears his white hair in a crew cut and whose choice of clothing, at least on the day of my visit, was a Marine green T-shirt, gray pants, and black shoes.
Like Tenney, he wore two hearing aids, but his hearing was impaired when he was still young, he said, not as a result of aging. In Guam, on the “first day of war,” a bomb fell very close to him and ruptured one of his eardrums.
Nixon’s voice enhances his military look. He sounds like George C. Scott. When I mentioned this, he told me he was acquainted with the actor and that the two had once talked movie scripts. (“The trouble was, he was an alcoholic…”) He also claimed to have been offered a part in Pork Chop Hill, the 1959 movie about the Korean War. The casting would have been a case of art imitating reality, since Nixon, who was in the reserves until 1956, fought in that conflict too. But he lost the opportunity to play alongside Gregory Peck because of finagling by his agent, he said. (“My agent sold me down the river.”)
His acting career was short-lived; after five years in Hollywood, playing its little theaters, he abandoned his movie ambitions. (“I didn’t like the politics.”) Instead, he earned degrees in engineering and journalism, including a Ph.D., and pursued a career in electronics, until he was “medically retired” on a 100 percent military disability in 1978.
As a national service director, Nixon has become an expert on things like the Code of Federal Regulations: Pensions, Bonuses, and Veterans’ Relief and Public Law 97-37. What he copied for me was a list of all the “presumptive service-connected disabilities” — translated into “layman’s terms.”
My eye fell on what it said about beriberi. It is caused by “a severe lack of vitamin B1 or thiamin in the diet” and produces “changes in the nerves, both in the brain and extremities, and in the heart.” I had been reading elsewhere about what’s called, in an inadvertently poetic phrase, a “beriberi heart.” One of his survivor-friends died decades later of a heart attack: “That was the result of his beriberi heart,” said Nixon. The disease also leads to diabetes. “But it’s very hard to prove.”
He went on, conversant in “peripheral neuropathy” and “ischemic cardiomyopathy.” Of his service work, he said: “I win most of my cases. I include pictures.”
He showed me a vintage photo, taken in the camps. “Here’s the bathroom facility. You squatted over a rectangular hole.” And here’s the “kitchen,” a sorry-looking sight.
Who took the photos? “The Japanese.” Why? “Just like anybody else, if you’ve got a camera, you take pictures of whatever’s in sight.” Where did he get the photos? In the camp he had traded cigarettes for them.
When Nixon was a prisoner, he worked with a pick and shovel building a dry dock for Mitsui; he farmed for Nippon Express; and he worked for both Nippon Express and for a company called Tsurga as a stevedore. As slave labor in the camps went, this much could be said for stevedoring: you had a chance to steal when you were doing it.
“They liked us to steal the sugar, because we worked faster,” said Nixon, whose nickname in the camps was “Keys,” because he could break into just about anything — in search of food.
Nixon published his account of his prison years in 1954, in a book called Laughter in Hell. Nixon writes there of the “food testers” in the camps. These men “established themselves to see what was edible. Plaster, glue — everything was tested. One starved, half-delirious man, seeing what he thought was salt, ate it and died. He had eaten cyanide.”
“Sugar sparkles, but salt is an almost dead color,” Nixon told me. “Cyanide has a little sparkle. It looks more like sugar than salt, but, as I wrote in my book, the guy was half-delirious.”
The passage about food in his book continues: “Little frogs began to appear in the wet basin. We caught them and ate them. Turtles and snakes suffered the same fate. A crate of chickens came in and not one left the yard. Mind you, all these we ate raw. We dared not risk trying to get them into the bunsho [camp]. Besides, we were too starved to wait.
“Usually we sneaked them into the benjo [latrine], since it was the only place where you could go and not be seen. Guards were established outside. If you were fortunate enough to have a chicken, you ripped it apart and ate it. There was no time to pick it. Only the feathers and inedible parts were dropped down the hole.
“For days the Phils [Filipinos] had been trying to corner a mangy old dog which hung around the docks. He was as emaciated as we were. One day we caught him as he tried to squeeze between two bales after a piece of dried fish. One man grabbed him while another snatched the fish out of his mouth and ate it. They rushed the dog to the benjo and he, too, went the way of all things that entered those precincts.”
Nixon also kept a prison diary. He hid his inside Selected Works of Rudyard Kipling, whose middle pages he had removed. A few years ago, he donated the diary to the Marine Corps Historical Center in Washington, D.C., but retained copies of the text. I had read the Casey firm’s copy.
By contrast to Campbell’s diary, which might more properly be called a daybook that lists only dates and other facts, Nixon’s includes his emotions, in a telegraphic, show-don’t-tell style that is disturbingly effective. Indeed, it makes for far more disturbing reading than Laughter in Hell, which was subjected to prepublication censorship by the military.
“5/28/42 — Tried to escape on trail thru bamboo. Guard caught and beat me, but I told him I had diarea [sic]. He made me prove it.”
“1/19/43 — Men are dying almost daily from beriberi, malaria, pellagra, heart, starvation, etc. The Japs once in a while pick out the most ill and use him for bayonet practice after tying him to a flagpole.”
“1/2/44 — Sweetheart [a guard’s nickname] stuck a water hose up my ass and turned it on. When I thought I would burst, he turned it off. I shit all over myself, so he beat me. Then he kicked me in my balls. The sadist bastard. Some day I’ll kill him.”
The paper on which he wrote his diary was the result of another barter. He stopped smoking, regularly exchanged his ten-cigarette-a-month allotment for rice, and with the rice he “bought” paper. Rice was the legal tender he used to acquire the Rudyard Kipling book too. Pencils were available at the canteen. Have paper and pencil, will communicate. He and two other men also began publishing a monthly prison newspaper of sorts. (“4/19/42: Give the guys a laugh and us something to do.”)
As a kid, Nixon said, he’d had literary aspirations and sold a story to a magazine at age 15. But more than that, he had fervently wanted to be a Marine. This was in Taft, California, where he grew up in a foster family, since his mother had died when he was an infant and his father had decided to keep only some of the older children. In 1935, when Nixon was 12, he befriended the manager of the Taft dump, who would sell him copper and brass, which Nixon resold for a small profit. One day, the manager gave him a uniform that someone had thrown away. It was the dress blues of a Marine, complete with cap. “I wore that cap around all the time after that. That was it for me, from then on.”
By age 18, Nixon was 5'9" and weighed 123 pounds; the minimum weight for enlistment was 8 pounds higher. On the 35-mile car ride from Taft to Bakersfield, he ate bunches of bananas.
Being young, he was naturally resilient, but being young and malnourished isn’t a good combination. In Japan, while he grew five inches, his weight dropped to 70 pounds. Lack of proper food during a growth spurt resulted in permanent damage, said Nixon, who has been told by doctors that his intestines are longer than they should be for someone of his height. “Looking at them, doctors have said I should be six-foot-four instead of six-two.” As a grownup, Nixon met members of his biological family and learned his genetic history. “Even my sisters were tall,” he said.
Nixon left a girl back home when he joined up in 1941. “Keep thinking of Lois,” says the diary — a sentence without a subject, rather than an imperative, although it could be taken as the latter, since thinking about her kept him motivated to survive. I asked Nixon what had happened to Lois. He said, “She was a petite little blonde who was going to wait for me. But by the time I got home, she had another boyfriend, and she was rude.” Thirty years later, he saw her again. “She was still five feet tall, but also five feet wide.” That was a couple of years before he married Ellie, who isn’t his first wife. “Two other wives have died, and I have been through divorces,” said Nixon without being more specific.
He may have anticipated his reentry difficulties in a diary entry written after liberation: “9/8/45: Flying to Guam to be fattened up at USNH #111. Then to the states and home. I can hardly wait I am so excited. And yet — I feel lost. So many friends didn’t make it.”
One good friend of his was a Sergeant MacMurray — Mac, for short. Nixon and Mac used to trade recipes — fantasy ones, of course. “When you’re hungry, even the sound of food helps,” said Nixon. “Milky Way pie” was one of his favorites. (When he got back home, he tried to make it; the fantasy was better.) One day, Nixon noticed that his eyesight was fading in and out. It was the beginning of an illness that would prevent him from working. Mac protected him; otherwise, Nixon would have been used for bayonet practice, like other ill prisoners. The diary records it: “Can hardly see. We stopped recipes. Mac has me in rear corner. He gets me food, takes me to shit and hides me at inspection. Mac covers me with blanket. Diarea [sic] about hourly. My blankets stink. I think I’m going to die.” The entries stopped for two months, until his health was recovered.
Lucky Nixon for having such a friend; unlucky Mac for becoming an accident victim in prison camp. He died after being hit by a train while loading and unloading cargo in a Japanese company’s freight yard.
For nearly 40 years, Nixon felt guilty about the death of Mac. Irrationally Nixon felt he should have been able to save his friend, as Mac had saved him, even though Nixon wasn’t even at the scene when Mac died. Then, in 1984, Nixon was treated by a psychiatrist. “She was able to hypnotize me,” said Nixon, “because I trusted her.” With her help, he achieved some peace of mind.
A good friend helped Tenney through an illness in the camps with the gift of Prayer Book for Jews in the Armed Forces of the United States. Tenney has no idea how his friend got hold of the little volume. Today, writes Tenney in My Hitch in Hell, “the book is one of my treasures that I will not part with.”
In our conversation in La Jolla, however, Tenney spoke of sentiments about prayer in prison that were much more complicated than those that the prayer-book anecdote revealed: “I think one of the problems that many of us face is, ‘Well, do you think that God saved you? Do you think that your prayers were answered?’ And my answer is ‘No,’ because if I think that God saved me, then I must think that God took away my friend — because we both prayed at the same time. So we both prayed and he died? How come I lived? Am I better than him? No. I don’t believe in that.”
The role that religious faith has played in their destinies is a complex one for each of the former POWs with whom I spoke, except perhaps for Carlos Montoya, the plaintiff who lives in San Carlos. When I asked him why he thought he had survived, he quickly replied, “Because of the prayers from my hometown” — that is, Peña Blanca, New Mexico, where he was born on June 28, 1915.
His wife offered prayers, too, and made a bargain with the Blessed Virgin Mary. She offered up her soon-to-be-born daughter for the safe return of Montoya. The girl was 4 years old and still healthy when Montoya returned home. But when she was 15 she died of cancer.
Montoya had joined the National Guard because he liked the uniforms and the extra pay. He already had a good job in Albuquerque, as director of the employment service for the Department of the Interior while the highways were being built in his home state. It was a surprise to him when he was called for active duty in January 1941, along with 1800 other New Mexican guardsmen. When they left for the Philippines in July, they were told it would be a six-month tour.
On the death march, Montoya faltered; he couldn’t go on. He laid himself down on the fallen trunk of a tree. “Anybody that didn’t get up was bayoneted,” said Montoya, and yet he was spared. A Japanese soldier approached him; Montoya cried out to God, “My dear Lord! Please deliver my soul!” As Montoya told me the story, he flung his arms out, shouted the same prayer, and wept. The soldier, he said, walked away.
Before he got his work assignment from the Japanese, Montoya was imprisoned, along with 9000 others, at Camp O’Donnell, as the Americans had called the place when it was theirs. The latrines soon overflowed, and disease was epidemic. Montoya got ill and was taken by stretcher to Zero Ward, a kind of pre-morgue. His barracks mates hadn’t wanted to take care of him, “because they had to take care of themselves.” In Zero Ward, he started praying again. Significantly, he also started crawling — back to his barracks. Rewarding his gumption, some of the men fed him burned rice, and he regained his health. He worked for the next three years for Japanese companies.
After liberation, he returned to New Mexico and opened a restaurant in Albuquerque. Called Cocina de Carlos, it seated 250 people and was a success, he said. Later, he and two of his children opened another restaurant in San Diego. They called it My Rich Uncle’s, because they got their financing from the Small Business Administration. It was on College Avenue, near SDSU.
Outwardly, Montoya seemed to have made the transition to civilian life. Actually, he was disturbed. After nearly 30 years, when he made a return trip to Japan for the 1972 Olympics, he intended to get his revenge. He wasn’t thinking about a lawsuit. “In my suitcase I had hidden a gun and I was looking for the guard” — one who had been particularly cruel. He realizes it was irrational. “I was sick, literally sick, seeing a psychiatrist,” he said. “I looked for the camp, but it was gone. I returned to the place, but instead of sand hills, there were paved streets and two-story homes.”
The trip to Japan was spiritually healing, nonetheless. “We stayed a month, saw how the Japanese people live. I told my wife, ‘I feel like something is leaving me.’ ”
“Betty said she thinks the hardest part must have been not knowing when it would end,” Tenney told me. He was talking about the wait in prison camp, not the wait for his lawsuit to be over. “If you have a three-year sentence, you mark it off. After three years, you go home.”
So how did he cope with the uncertainty?
“I let my mind deal with each event individually. I didn’t worry about anything down the line. It was now. Now. Now. Now. It was taking care of this, taking care of that, making these short-term goals.”
So it never felt to him that the war would last forever? Or that Japan would win?
“Never. We knew. We were on the inside: we watched them getting around with bicycles, okay?, because they didn’t have enough cars. When you saw what they were dealing with, with their uniforms, with their equipment, you knew they could not sustain. You knew it was just a matter of time before the world would collapse on them. The trouble for us was, we didn’t know when it would happen, and we didn’t know what would happen to us when it did.”
On August 9, 1945, Tenney and some of his buddies saw a strange sight in the sky as they looked toward Nagasaki. One man actually called it “a mushroom cloud.” It was the result of the second atomic bomb attack; three days earlier, the first bomb had destroyed Hiroshima. Very shortly, Tenney’s Japanese captors dispersed — their harm-doing was over.
In Japan, according to Tenney’s book, he made a promise: “I would get even with those bastards, the ones who beat and tortured me, the ones who deprived me of my dignity, the ones who killed my friends.” Revenge-seeking doesn’t require that he be full of hatred like his fist-shaking friends, however; it would defeat his larger purpose in life. “I feel sympathy for those who still have hatred,” he told me, “because I have a philosophy: if they still hate the Japanese, then they’re still in prison. Those who still hate the Japanese are still being kept prisoner today, the same as they were 60 years ago, because in their minds, they are still prisoners. You can’t let it affect your whole life. If you do, you’re the loser. How can you be a loser all those years in camp and then come home and still be a loser?”
I asked how he felt about the lawyers for the Japanese companies when he saw them in court. These were the representatives of “those bastards,” after all.
“I’ll tell you an interesting story,” he said. “On September 8, 2001, in San Francisco, they were celebrating the signing of the peace treaty 50 years ago, and I was there, and the lawyers from the other side were there. It was a big affair at the opera house, and everybody was in formal clothes, tuxedos, and so forth. And I’m in the lobby when a gentleman walks up to me and says, ‘Dr. Tenney! Your book is so moving and so touching, and I want you to know I really, really feel for you.’ I said, ‘Thank you.’ He said, ‘Do you know who I am?’ I said, ‘You look familiar, but I’m not sure.’ He said, ‘I’m one of the attorneys for Mitsui. And I really shouldn’t be talking to you, but I had to tell you that I admire you.’ Now we go upstairs and we sit down. Colin Powell came in. And before he started, someone says to me, ‘Dr. Tenney! Dr. Tenney! Hi! I have to talk to you! You’re wonderful.’ ‘Who are you?’ He’s one of the attorneys for Mitsubishi.”
How can they do what they’re doing to you, then? I asked.
“That’s their job. I don’t blame them. That’s their job.”
He doesn’t feel any animosity toward them?
“No, I just hate them, that’s all.”
On August 11, 2002, the third anniversary of the filing of his lawsuit, I asked Tenney in an e-mail how he was handling the wait for the court cases to be over. Three years, I noted, was the same amount of time he had spent working in the Mitsui coal mines.
“Three years ago,” he replied, “I said I would not feel sorry if I failed, just so long as I did my best and put my best effort into it. Three years ago, I made a commitment to see this thing through till a final decision is reached and to do everything I could to help the cause. This I’ve done, giving 35 speeches, 25 press interviews, and 16 on radio and television.”
Referring to the government’s adversarial position, he added, “We were sacrificed during World War II and now once again we are being sacrificed by our country, so the State Department says, in order to keep good relations with our former enemy. My goal is to fight for justice. I surrendered once — never again.”
In December, nearly five months after the Santa Ana proceeding, the judges still hadn’t made a decision. Their time was up, but they had given themselves an extension. Finally, two more months later, on February 6, the announcement came. It was not a pleasant day for Tenney and the others. The judges had ruled in favor of the Japanese companies. The treaty is a bar to these kinds of lawsuits, they said, and the men cannot proceed with theirs.
The men did not have to reassemble in Santa Ana to hear these words. The decision was delivered in writing to the Casey offices. By the time it arrived, it was old news. Reporters had called Casey to get his reaction after seeing it on the court’s website.
The judges wrote that their decision had been made with some regret. “[The men’s] sacrifice deserves to be explicitly recognized by the judiciary of this country, regardless of the validity of the legal claims they are now making — indeed, all the more so in light of our determination that the 1951 treaty precludes this lawsuit.
“These plaintiffs [should] be given a forthright, honest explanation why their government waived their rights to seek redress against the companies that benefited from their slave labor.”
When I called Casey a couple of weeks later, he said of the judges’ reluctant decision, “Theirs was a tortured reasoning of the law. That’s the word I like to use. ‘Tortured.’ ” He meant no irony.
“It was a factual determination, a factual finding,” he added, “but there was no record of fact-finding.” Where did they get their facts, then? “They picked them out of Senate hearings, out of books. But that’s not their job. That’s a trial lawyer’s job.” His job.
“We’re appealing the other decision too,” he said. He referred to the ruling in the federal cases. This, by the Ninth Circuit Court of Appeals, which had also gone against him.
He sounded discouraged but not defeated as he and the firm prepared the appeals on behalf of their aging plaintiffs.