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'Disgusting!,' Cry Legal Experts: Is This The Lowest A Top U.S. Law Firm Has Ever Stooped?

Would any self-respecting U.S. law firm represent a client who suggested the Jews deserved the Holocaust? Probably not. As a matter of honor, most law firms would run a mile, and even the least honorable would conclude that the damage to their reputation wasn’t worth it.

Where imperial Japan’s atrocities are concerned, however, at least one top U.S. law firm hasn’t been so choosy. In what is surely one of the most controversial civil suits ever filed in the United States, the Los Angeles office of Chicago-based Mayer Brown is trying to prove that the so-called comfort women – the sex slaves used by the Imperial Japanese Army in World War II – were no more than common prostitutes.

The suit has been filed on behalf of two Japanese-Americans, Michiko Shiota Gingery and Koichi Mera, plus a corporation called GAHT-US (a bizarre entity whose involvement must be a particular embarrassment to any decent person at Mayer Brown – more about this in a moment). At the center of the controversy is a Korean-funded memorial to the comfort women which was recently established in a park in Glendale, California. The suit suggests that the above named Japanese-Americans will suffer “irreparable injury” from “feelings of exclusion, discomfort, and anger” if the memorial is not removed.

This is, of course, the functional equivalent of suggesting that German-Americans suffer “irreparable injury” from memorials to the Jewish Holocaust. Although the suit has so far received little attention in the mainstream American press, it has provoked outrage elsewhere, not least in London where the noted British commentator Robert Fisk has provided a particularly trenchant account. It has also sparked a firestorm among legal bloggers. Here, for instance, is a comment from Ken White, a prominent Los Angeles-based criminal attorney: “I cannot remember a lawsuit that so immediately repulsed and enraged…..This lawsuit is thoroughly contemptible. It should fail, and everyone involved should face severe social consequences.”

Strong words but White’s assessment is hard to fault. The indisputable historical record, after all, shows that countless women who served in the Imperial Army’s brothels were innocents seized at gunpoint in Japan’s erstwhile colonies and forced into sexual servitude. (Yes, of course, not all were innocents. The army’s first recourse was to professional prostitutes but even if every prostitute in the empire had volunteered for such a hellish assignment, there were far too few of them to serve the army’s needs. Japan’s war was vast, spread as it was across six time zones and involving at least six million men, most of whom seem never to have had any home leave. )

On the basis of 27 years of on-the-spot Japan-watching in Tokyo, I can report that Mayer Brown’s suggestion that the facts “remain an active topic of political debate” is sheerest sophistry. There are no two sides to this issue and no decent Japanese citizen I have ever met questions the validity of the comfort women’s allegations. Anyone who does has a manipulative agenda and doesn’t believe a word he is saying.

Even the Japanese government has admitted as much. Japanese Chief Cabinet Secretary Yohei Kono issued a widely publicized statement in 1993 acknowledging that there were “many cases” of agents acting on behalf of the Imperial Army “intimidating these women to be recruited against their will.”

The statement went on tacitly to acknowledge the comfort women’s enslaved status: “In the war areas, these women were forced to move with the military under constant military control and that they were deprived of their freedom and had to endure misery.”

The Kono statement was treated as front-page news by the American press at the time, but was hardly new news. To be sure it had been preceded by a long series of denials in Tokyo, a record taken at face value by an ever naïve American press; but the main allegations had been proved in a Dutch court under Western rules of evidence as far back as 1948. That court, which had been convened in what was then the Dutch East Indies (now Indonesia), had considered allegations that Japanese army officers had forced many Dutch women seized in the Dutch East Indies into sexual slavery. One Japanese military official was executed and eleven other Japanese citizens were sentenced to jail terms. The Dutch went on in 1956 successfully to press the Japanese government to pay compensation to the women, an almost unheard-of achievement in Western diplomacy (the Japanese establishment has otherwise proved highly successful in stonewalling compensation claims from countless victims of other atrocities). In 1985 details of the comfort women story were published in an official Dutch government history of the war. For more detail on the Dutch side of the story click here.

One of the more striking aspects of the case against Imperial Japan is that so many women of so many nationalities — Korean, Chinese, Taiwanese, Filipinas, Burmese, Vietnamese, and Dutch, among others — closely agreed on the details. Not the least telling detail is that though modern Japan had a long previous history of militarism (it had fought several wars in the late nineteenth and early twentieth centuries), allegations of sexual slavery first surfaced in the 1930s. Up to that time Japan had been exemplary in abiding by the Geneva Conventions, including those on the treatment of women. It was a strategy aimed at winning diplomatic and economic acceptance for Japan as a “civilized nation” that was the equal of the then world-dominant Great Powers of the West. The fact that there had been virtually no complaints about Japanese military’s sexual behavior before the 1930s and then such complaints suddenly became a torrent is consistent with aother evidence that Tokyo broke decisively with the Geneva Conventions in the early 1930s in a new policy of no-holds-barred warfare.

As for GAHT-US, its full name is the Global Alliance for Historical Truth-US. If that sounds impressive, its genesis is less so. It was incorporated as recently as February 6 and uses a UPS office as its official address. The really controversial part is that its name has evidently been chosen so it would be confused with a very different entity, the Global Alliance for Preserving the History of WWII in Asia. This latter is a long-established, entirely respectable scholarly group founded by Chinese-American professors that is on the other side of the comfort women argument. The first two responses to a Google search today for “Global Alliance for Historical Truth” brought up the Chinese-American entity, thus suggesting that respectable Chinese-American opinion endorses the effort to brand the comfort women as prostitutes.

For the record I reached Michiko Shiota Gingery by phone and asked her whether she really believes the comfort women are lying. In avoiding the question, she argued that the memorial had no place in America and should be located instead in Korea or Japan. This echoed an opinion voiced by other opponents of the memorial but it seems a bit selective. The fact is that ethnic Koreans constitute a significant minority in Glendale and it is not unusual for other ethnic groups to erect monuments remembering past injustices. If Wikipedia is to be believed, there are 45 memorials to the Jewish Holocaust alone in the United States, sixteen to the Irish famine, and six to the Ottoman Turks’ genocide of Armenians.

I emailed the four Mayer Brown attorneys involved in the case – Neil Soltman, Matthew Marmolejo, Ruth Zadikany, and Rebecca Johns – for a comment. I also emailed the firm’s chief executive Paul Theiss. I received no responses. Reached by phone, Soltman referred me to the firm’s public relations officer Bob Harris but Harris also failed to respond.

Should Mayer Brown have taken on this suit? Here is the opinion of the prominent First Amendment attorney Marc Randazza: “Every law firm gets confronted (on a pretty regular basis) with the question: ‘should I put my name on this?’ That soul searching comes into play when you wonder, ‘is this honorable?’ You know when it is, and when it isn’t. I’m not talking about representing a client that you know is guilty — they deserve a defense. I’m not talking about representing a really evil client — because there might be an important legal issue in play. I’m talking about when you do something truly disgusting.”

Why therefore would Mayer Brown, which ranks among America’s top 20 corporate law firms, take on such a case? Beats me but one answer suggested by a commenter at Ken White’s website is probably worth passing on: “Mayer Brown has a heavy practice in Asia…. They are probably either doing this as a favor to a large client, or trying to expand their Asia presence to Japan.”

Update: This commentary has drawn a particularly interesting series of comments and I urge readers to check them out. I am planning a new article to address some of the issues and will post this on Sunday, April 20.

Forbes 2014.4.13

Eamonn Fingleton, Contributor

What's Japan's Guiltiest Secret?: (Hint) It's Not The Comfort Women

For anyone who follows East Asia, here’s a question: what is Japan’s guiltiest secret?

The “comfort women” scandal? The Nanking massacre? Official homage to war criminals at the Yasukuni shrine?

No, no, and no. If by a guilty secret we mean something that Japan really, really wants to sweep under the rug, none of the above comes even close. Japan actually often goes out of its way to publicize these issues: click here for the official Japanese news agency’s account of today’s carefully timed visit by Keiji Furuya to Yasukuni. With Kyodo’s help and the fact that Easter Sunday is, of course, a particularly slow news day in the West, this relative nonentity has made headlines everywhere from the South China Morning Post to the BBC World Service.

We will look more closely at Japan’s attitude to such controversies in a moment. For now let’s note that Japan does have secrets and big ones – secrets it strives with unique ingenuity and success to keep out of the Western media.

Top of the list is something that – at least for those of us who know Japan – is hidden in plain sight: the Japanese auto market. Fifty years after the Tokyo authorities ostensibly began opening to free trade, the Japanese auto market remains one of the world’s most closed. I don’t mean just that Detroit-made cars don’t get a look in. These are, with few exceptions, unsuitable for Japanese roads. But the Detroit Big Three’s subsidiaries in Europe, particularly subsidiaries of Ford and General Motors, make plenty of cars that – in a fair world – should do well in Japan. After all such cars compete, and in many cases compete strongly, against Japanese competition across Europe. They don’t have a prayer against Japan’s non-tariff barriers.

Even more tellingly Volkswagen is a tiny also-ran in Japan, with just 1 percent of the market. Yet Volkswagen is no slouch in other markets and in fact ranks broadly equal to Toyota as the world’s largest auto-maker (the days when that title seemed to be General Motors’s by birthright are gone).

Then there is Renault, which is supposedly (at least if you believe the New York Times and the Wall Street Journal) the senior partner in an alliance with Japan’s second largest automaker Nissan. For more than a decade now Renault chief Carlos Ghosn has been trying to get Renault cars into Nissan showrooms. The last I heard he was even living much of his time in the posh Tokyo district of Azabu in one of the world’s more expensive rental apartments. He has remarkably little to show for his efforts: to the extent that the Renault has established any presence in Japan it is as a make of bicycles. Made under license in Taiwan, Renault bicycles have captured, on an optimistic count, perhaps 1 percent of the Japanese bicycle market!

Of course, umpteen times over the years the problem of Japan’s closed market has been declared solved. Nobuhiko Ushiba, who served as Japan’s ambassador to Washington in the early 1970s, once told reporters: “There is no example in recent history of a nation liberalizing trade policy as fast as Japan.” Meanwhile in 1982, Japanese foreign minister Yoshio Sakurauchi assured a meeting of the GATT that Japan “is one of the most open markets in the world.”

A particularly impressive-sounding assurance came from President Bill Clinton in 1995. Speaking in the White House Briefing Room, with Japanese Trade Minister Ryutaro Hashimoto looking on impassively, Clinton announced that Japan had agreed “to truly open its auto and auto parts markets to American companies.”

He added: “This agreement is specific. It is measurable. It will achieve real, concrete results … we finally have an agreement that will move cars and parts both ways between the United States and Japan. This breakthrough is a major step toward free trade throughout the world.”

It was all empty rhetoric, of course, as Clinton surely knew. The interesting thing is that the American press has never revisited the record, not even the reliably anti-Clinton Wall Street Journal. Anyone who knows the Tokyo news business knows why. The Japanese authorities keep the foreign press on a remarkably tight leash and, with virtually no exceptions, foreign correspondents are induced to censor themselves. As a practical matter, Tokyo wields a panoply of carrots and sticks in controlling what Japan-based foreigners say to the outside world and most long-term foreign residents are overt or covert agents for Japan’s public relations agenda. Foreign correspondents are no exception.

Don’t believe me? Do a Google search. The most important single fact about the Japanese auto market is that for decades the share of all foreign brands combined has been kept to just 4 percent. When did you last read that in the New York Times? It is also worth searching for a statement put out last July by the American Automotive Policy Council itemizing some of the most blatant of Japan’s non-tariff barriers. It received virtually no coverage in the U.S. press.

Yet it is hard to exaggerate the consequences for the global economy. Thanks to assiduous protectionism, the Japanese domestic auto market remains a high-price sanctuary. The huge profits earned there enable Japanese auto makers to invest at a super-fast rate in ever more efficient production technology, all the while pricing aggressively in foreign markets. Nor is the global auto market a small prize. The fact is that autos and auto parts are by far the largest single manufacturing category in world trade.

Now let’s consider the comfort women scandal and other widely publicized manifestations of Japan’s “failure to come to terms with its past.” The first thing to note is that no one alive today had any responsibility for the war, thus everyone has an alibi. For a nation with some real skeletons in its closet, controversy over the war-time past is actually a safe issue and if things become a little too heated the Prime Minister or Emperor can always step in with another apology, thus putting the issue to bed until further notice. Seen in this light there is no point in Tokyo covering up such issues. Quite the contrary. While the foreign press busies itself with the often completely contrived issues of the war-time past, it has less time and energy to delve into issues on which the Tokyo authorities really want to maintain radio silence.

The most obvious indicator that Tokyo has no interest in suppressing the controversies is the behavior of the Japan Times, a semi-official English language newspaper that the Dutch Japanologist Karel van Wolferen has characterized as the Tokyo Foreign Ministry’s megaphone. What is clear is that as most American and British correspondents in Tokyo don’t read Japanese, the Japan Times is the unstated source of many of their reports. A closely related matter is the role of Kyodo, the official news agency whose English-language service follows the same editorial policy as the Japan Times.

On issues that the authorities really want to sweep under the rug, the Japan Times and Kyodo cooperate fully. Besides the auto market issue, another key issue that has traditionally been censored in Tokyo is Japan’s stonewalling on compensation to war victims. In sharp contrast to Germany, Japan has paid virtually nothing to victims of its war crimes – a fact that for decades was kept almost completely sub-rosa in the Western press. (Things have been liberalized somewhat in the last few years, now that most of the victims are dead.)

Forbes 2014.4.20

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