Nemesis: The Last Days of the American Republic (30 page)

American troops are free to do almost anything they want in Paraguay. In the May 26, 2005, agreement, the Bush administration extracted a provision exempting its officials and military from the jurisdiction of both the local judicial system and the International Criminal Court. The Special Forces are not subject to customs duties and are free to transport weapons and medical supplies anywhere in Paraguayan territory.
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This is important for various reasons. Under the terms of Mercosur, the agreement among Argentina, Brazil, Uruguay, and Paraguay creating a southern-cone trading bloc, all parties pledge to inform each other about international developments and to coordinate their foreign policies. Like virtually all other nations in Latin America, Argentina, Brazil, and Uruguay have rejected Bush administration demands for Article 98 Agreements protecting Americans from being turned over to the International Criminal Court. The United States has cut off all forms of aid to the three as a result. In 2004, despite the presence of the Manta base, Ecuador, too, forfeited $15.7 million in U.S. aid, much of it for military equipment, rather than go along with America’s pressure tactics.
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By giving the United States carte blanche in its country, Paraguay is breaking ranks with its neighbors, which has led to speculation that the United States wants to destroy Mercosur.

The asymmetries in size and power between small nations like Paraguay and Ecuador and the United States inevitably make our relations with them imperialist in nature when we act in a high-handed way. Paraguay has no need for an American military base, nor for U.S training of its armed forces. Paraguay is not likely to go to war with its powerful neighbors, particularly given the nineteenth-century War of the Triple Alliance (1865-70) in which it was badly defeated and lost a large part of its territory. But the United States is always ready to use its overwhelming might to force small nations to bend to its will.

It is impossible to foresee in detail the future use to which the American empire of bases may be put, but there is at least a growing understanding of and sophistication about U.S. basing policies among peoples on the receiving end. The Argentine pacifist and antiwar activist Adolfo Perez Esquivel, winner of the 1980 Nobel Peace Prize, commented on the developments in Paraguay, “Once the United States arrives, it takes a long time to leave.”

Okinawans have learned the built-in weaknesses of Japan ... through endless failed or ignored petitions to the Japanese government for the reduction and eventual closure of the U.S. military bases in Okinawa. The stock answer of the Japanese leaders is: “We will let America know of Okinawa’s wishes.” ... Okinawa’s wishes are only gossip topics, never a part of Japan’s national policy issues deserving of serious negotiation with the U.S.... The Marines believe that they are above the law and can do anything with impunity.

—
KOJI TAIRA
, editor,
Ryukyuanist,
Summer
2004

In seeking permission to build or use one or more military bases in a foreign country, the United States first negotiates a fundamental contract— one that commonly creates an “alliance” with the other state. These basic agreements are usually short, straightforward treaties that express “common objectives” related to “national security” and “international threats to the peace.” Examples include the 1949 charter setting up the North Atlantic Treaty Organization, the Convention on the Presence of Foreign Forces in the Federal Republic of Germany (October 1954), and the renegotiated Japan-U.S. Security Treaty (January 1960).

Once the United States has concluded this basic document, it then negotiates a Status of Forces Agreement (SOFA), intended above all to put any U.S. forces stationed in the host country as far beyond its domestic laws as possible. The legal systems of some of these “hosts” are every bit as sophisticated as our own, ones in which Americans would be unlikely to find themselves seriously disadvantaged by local law enforcement. What SOFAs do, however, is give American soldiers, contractors, Department of
Defense civilians, and their dependents a whole range of special privileges that are not available to ordinary citizens of the country or to non-American visitors. In the great tradition of “extraterritoriality” that began in the world of nineteenth-century Western colonialism, they are almost never reciprocal—that is, the SOFAs bestow on Americans privileges that are not available to citizens of the host nation if they should visit or be assigned to the United States. The major exception is the SOFA governing NATO, which is reciprocal. Military forces of a NATO nation working in the United States are supposed to receive the same rights and benefits given to American troops in Europe.

Most empires, ancient or modern, have not felt the need to establish a legal basis for their activities in subordinate countries. Might makes right, and imperialists normally do as they please. In wartime, this is called the “law of the flag.” From 1945 on, the presence of the occupying Soviet armed forces in the former German Democratic Republic (East Germany), for example, was never subject to any treaty. But in this area, American administrations have proved legalistic sticklers, crossing the t’s and dotting the i’s of the largely one-sided agreements they make to garrison the planet.

SOFAs are not in themselves basing or access agreements. For example, article 6 of the Japan-U.S. Security Treaty simply says, “For the purpose of contributing to the security of Japan and the maintenance of international peace and security in the Far East, the United States of America is granted the use by its land, air, and naval forces of facilities and areas of Japan. The use of these facilities and areas as well as the status of the United States armed forces in Japan shall be governed by a separate agreement.”
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SOFAs implement these more basic agreements and spell out what the host nation has actually obligated itself to allow the United States to do.

SOFAs create many local problems for host nations. For instance, American military bases and the activities they engender regularly do damage to the environment. Article 6 of both the Japan and the South Korea SOFAs stipulates: “The United States is not obliged, when it returns facilities and areas ... on the expiration of this Agreement or at an earlier date, to restore the facilities and areas to the condition in which they were at the time they became available to the United States armed forces, or to compensate Japan [or the Republic of Korea] in lieu of such restoration.”
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This is a typical and often deeply resented aspect of U.S. SOFAs and an invitation to the U.S. military to pollute in any way it wants without fear of accountability. For example, the Fukuchi Dam provides most of the water supply to the 1.3 million residents of the island of Okinawa, but the U.S. armed forces use the dam’s reservoir for river-crossing exercises. Significant amounts of discarded munitions have been discovered in the surrounding watershed area. The South Korean government so resents this provision of the SOFA, which was imposed on South Korea in the wake of the devastation of the Korean War, that in 2006 it rejected the U.S. military’s attempt to return twenty-five closed military camps until it at least removed underground fuel tanks and undertook remediation of the water tables at each of them. In a classic of militarist hypocrisy, General B. B. Bell, commander of U.S. Forces Korea, responded, “It is fair to say that we loved this land and its people enough to die for it. To state now that we have been irresponsible stewards of Korean land, while standing side by side with you, is a charge that hurts my heart.”
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A subtler form of pollution—also much resented by those who live near U.S. bases—is noise. The sounds of warplanes and helicopters become a perpetual backdrop to daily life. The citizens of the large urban prefecture of Kanagawa have protested for years that U.S. Navy planes from Atsugi air base practicing night landings keep them awake. Cities located near large American airfields have even successfully sued for damages. In February 2005, a district court awarded the communities around Okinawa’s Kadena Air Base 2.8 billion yen ($24,472,000) in compensation for noise pollution. However, even though the citizens who brought this suit won in court, they are unlikely ever to receive any compensation from the U.S. government. Article 18 (5) (3) of Japan’s SOFA stipulates, “Where the United States alone is responsible [in a civil claims case], the amount awarded or adjudged shall be distributed in the proportion of 25 percent chargeable to Japan and 75 percent chargeable to the United States.” The Japanese Ministry of Foreign Affairs has been trying unsuccessfully since 1994 to get the United States to pay its share of earlier noise judgments. U.S. administrations have regularly professed to find it “strange” that the American military should have to pay damages for practicing warfare to protect Japan. The U.S. government demands that Japan abide by what it has signed but is indifferent about its own obligations under the SOFA.
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The NATO SOFA and the agreements with individual European countries do not contain exemptions from responsibility for environmental and noise pollution, which is undoubtedly one reason Secretary of Defense Rumsfeld wants to move American bases from Germany to the’ new Europe,” those ex-communist satellites of Eastern Europe that are poor and desperate enough to be willing—at least for now—to let the Americans pollute as they wish, cost free, in order to get what economic benefits they can.

SOFAs actually take the question of American entrances and exits out of the hands of host countries—which, of course, gives the very term “host” a curious, new meaning. Article 9(2) of Japans SOFA is typical. “Members of the United States armed forces,” it says, “shall be exempt from Japanese passport and visa laws and regulations.” This means that American servicemen accused of crimes in Japan have sometimes been spirited out of the country without facing legal obstacles, and the Japanese can do nothing about it.

Or take, for example, the simple matter of driving skills in countries like Japan where the direction of road traffic is the reverse of that in the United States. Article 10(1) of the Japanese SOFA states: “Japan shall accept as valid, without a driving test or fee, the driving permit or license or military driving permit issued by the United States to a member of the United States armed forces, the civilian component, and their dependents.” Citizens of Okinawa have paid a high price for this clause in head-on crashes and hit-and-run accidents since 1972, when the island was restored to Japanese sovereignty and driving on the left-hand side of the road once again became the law of the land—except for confused GIs. Article 13(1) only aggravates article 10: “The United States armed forces shall not be subject to taxes or similar charges on property held, used or transferred by such forces in Japan.” The governor of Okinawa, Keiichi Inamine, contends that U.S. military personnel now pay less than one-fifth of what Japanese citizens pay for the public services they receive and that if their vehicles were taxed as those of ordinary citizens are, Okinawa’s income would increase by 780 million yen ($6.8 million).
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There are a legion of other complex problems associated with SOFAs, including the large tracts of otherwise valuable land in land-poor countries like Japan that the United States “leases” for free; the host-nation employees who work on our military bases without the protection of
either their own or U.S. labor laws; and the fact that host-nation customs officers are denied access to U.S. military cargos.

However, easily the most contentious issues between the United States and nations on the receiving end of our empire of bases involve problems of civil and criminal jurisdiction. For civil matters, such as damage caused by off-duty American personnel driving their cars, SOFAs often stipulate how the injury is to be determined and compensated—including the possibility of requiring our forces to carry personal property damage insurance. For criminal cases, all SOFAs differ, but most award primary jurisdiction to the United States if the crime was committed by one soldier against another or if a crime was committed while a service member was engaged in his or her official duties. In other types of crimes, the host nation usually retains jurisdiction.

This seemingly straightforward distinction has unfortunately been anything but. What if a crime, committed by a service member on duty, was unrelated to those duties? Who then gets to decide jurisdiction in such instances? The most famous Japanese-American SOFA case went all the way to the U.S. Supreme Court
(Wilson
v.
Girard,
354 US 524 [1957]). It concerned an incident in which the United States and Japan agreed on the facts, but the Americans claimed that their soldier was performing his duties while the Japanese insisted he was acting well beyond them. In January 1957, a twenty-one-year-old army specialist third class, William S. Girard, was guarding a machine gun on a practice range. A Japanese woman—a mother of six who earned her living by selling scrap metal— intruded onto the range to scavenge for expended shell casings. Girard, using a grenade launcher, fired an empty shell casing at her, killing her.

According to testimony, Girard lured the woman closer by tossing empty shell casings toward her and then shot her as a “joke.”
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The United States at first claimed primary jurisdiction under the SOFA in effect at the time, but then agreed to turn over Girard to Japan because of the public furor the incident generated. Girard sued the secretary of defense, Charles E. Wilson, claiming that, according to law, he should be tried by a U.S. court-martial, not by a Japanese court. The U.S. District Court for the District of Columbia agreed with Girard, but the Supreme Court then reversed this decision. A Japanese court gave Girard a three-year suspended sentence and he soon returned to the United States accompanied by his Japanese wife.
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