Nemesis: The Last Days of the American Republic (31 page)

It remains a major issue of constitutional law in the United States whether the Pentagon can, by ordering a soldier to serve in a particular foreign country, force him or her to give up the guarantees provided under the Bill of Rights.
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Much of the American press at the time of the Girard case was outraged by the Supreme Court’s decision. “The basic rights of the American soldier have been violated,” trumpeted Hearst’s
New York Journal-American.
But Tokyo’s
Asahi Evening News
expressed pleasure that Japan was granted this minimal display of sovereignty. “At no time since the signing of the San Francisco peace treaty have Japanese thought so kindly of the U.S. and the American sense of justice and fair-play.”
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Unfortunately, since the Girard case, it has been all downhill.

Between 1998 and 2004, U.S. military personnel in Japan have been involved in 2,024 reported crimes or accidents while on duty. Only one led to a court-martial. Commanders ordered “administrative discipline” in 318 instances; the remaining 1,706 presumably went unpunished.
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SOFAs invariably infringe on the sovereignty of the host nation. In the Girard case, the U.S. Supreme Court paraphrased Chief Justice John Marshall, fourth chief justice of the United States, defining a sovereign nation as one that “has exclusive jurisdiction to punish offenses against its laws committed within its borders unless it expressly or impliedly consents to surrender its jurisdiction.” SOFAs quite explicitly take away sovereign rights, which is why they are more easily imposed on defeated or occupied nations like Germany and Japan after World War II and South Korea after the Korean War, or extremely weak and dependent nations like Ecuador and Honduras. But while they attempt to regularize the largely one-sided relationships of the American military empire and are often willingly enforced by allied, satellite, or dependent governments, they also introduce notions that can grow into long-term discontent and popular opposition to empire itself. SOFAs cannot help but give rise to explosive political disputes when American laws and the expectations of its troops create a climate of impunity in the host nation. Outrage is then often sparked by simple differences in legal cultures. For example, in South Korea, murder is defined simply as causing the death of a Korean citizen, regardless of the presence of intent, negligence, or even motive. American troops are thus fearful of being tried in Korean courts, even though, ironically enough, they have often been dealt with more leniently in Korean courts than they would be in American ones. At the same time, Koreans
are understandably outraged by U.S. military courts that define killings as “unavoidable accidents” and acquit servicemembers who seem self-evidently guilty by Korean standards.
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In 1957, according to
Time
magazine, there were “more than” forty SOFAs “designed to legalize the status of 700,000 U.S. servicemen in friendly countries.”
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In April 1996, the State Department said that we had SOFAs with fifty-three countries.
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By 9/11, the United States had publicly acknowledged SOFAs with ninety-three countries, although some SOFAs are so embarrassing to the host nation, particularly in the Islamic world, that they are kept secret.
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While the U.S. empire of bases has been expanding at a rapid rate since the mid-1990s, the true number of existing SOFAs remains publicly unknown.

The range of problems SOFAs breed could be illustrated by looking at almost any of our large complexes in almost any (non-Western European) nation, but the network of bases on the Japanese island of Okinawa catches the world of the SOFA especially sharply, suggesting some of the ways in which any Status of Forces Agreement engenders, even among America’s closest allies, a sense of being occupied, of inequality, of injustice, and of anti-Americanism in the local political system. Reaching a Status of Forces Agreement, which theoretically nails down certain long-term rights for the United States, often is like planting dangerous seeds in local soil that may, in the end, curtail or terminate those very imperial rights. A SOFA almost invariably creates resentment, turning local communities where Americans are based (but are beyond the reach of local law and authorities, beyond, that is, accountability) into potential flash points in which any set of criminal acts, impositions, or slights may stir opposition. Many of the problems created by a SOFA—and the bases that are its concrete manifestation—may seem minor and distinctly parochial to an outsider, but these are the material from which long-term changes may arise. Even as the present Japanese government moves ever closer to the needs and desires of the Bush administration, the soil in which another kind of Japan may be growing is being prepared.

Okinawa is Japans most southerly prefecture and its poorest. As of 2005, it was host to thirty-seven of the eighty-eight American military bases in Japan. These Okinawan bases cover a total area of 233 square kilometers, representing 75 percent of the territory occupied by U.S. military facilities in Japan, even though Okinawa itself has only .6 percent of
Japans total land area.
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Since 2001, Okinawa has been the scene of a particularly fierce confrontation over the Japanese-American SOFA.

Japan, like Germany, has been a post-World War II keystone of the American military empire. If it should ever defect from our embrace, the rest of our imperial structure in East Asia would likely unravel. The Bush administration has already alienated Germany through its unilateralist diplomacy and its war with Iraq. Despite a far more obsequious government in Tokyo, Washington may sooner or later be in danger of doing the same with Japan, thanks to the way our SOFA agreement emphasizes American ignorance of and insensitivity to the fissures our military presence has opened in that country. While the United States mechanically relies on the SOFA to shield military felons from the application of Japanese law, Defense Secretary Donald Rumsfeld schemes to reform our global base structure in part by enlisting Japan to become a much more active imperial partner with us, to become an “East Asian Britain,” as the Pentagon phrases it. Japan never agreed in the Japan-U.S. Security Treaty to help the United States garrison Asia or the Persian Gulf, and much of its population is deeply opposed. The various, never-ending local disputes in Okinawa, where U.S. Marines and Japanese citizens live cheek by jowl, over how the SOFA dilutes Japanese sovereignty is the place where the wounds fester and threaten to spread.

As of November 2004, according to Pentagon statistics, the United States had stationed some 36,365 uniformed military personnel in Japan, not counting 11,887 sailors attached to the Seventh Fleet at its bases at Yokosuka (Kanagawa prefecture) and Sasebo (Nagasaki prefecture), some of whom are intermittently at sea. In addition there were 45,140 American dependents, 27,019 civilian employees of the Department of Defense, and approximately 20,000 Japanese citizens working for the U.S. forces in jobs ranging from maintaining golf courses and waiting on tables in the numerous officers’ clubs to translating Japanese newspapers for the Central Intelligence Agency and the Defense Intelligence Agency.
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Okinawa is host to more than 50,000 of these American troops, military-related civilians, and dependents. According to Japanese researchers, the largest group of U.S. forces in Okinawa consists of 16,015 uniformed marines, 733 Department of Defense civilians, and 8,809 marine family members, adding up to a marine cohort of 25,557. The air force contributes 7,100 pilots and maintenance crews at the island’s huge Kadena
Air Base, the largest U.S. base in East Asia, joined by 622 civilians and 12,333 family members for a total of 20,055 affiliated with the air force. The army contingent (2,233) and the navy contingent (5,081) of troops and camp followers are much smaller.
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Even without these foreign guests, Okinawa is a seriously overcrowded island.

By far the greatest SOFA-related popular outrage in Japan concerns article 17, which covers criminal justice. This article is over two pages long and contains twelve complex subclauses. It is further modified by three pages of “agreed minutes” consented to during the negotiations over the Security Treaty and which are not normally included in the publicly available, authoritative texts of the SOFA.
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Opinion in Okinawa is virtually universal that article 17 should, at the very least, be rewritten, whereas the U.S. military clings intransigently to its every stipulation—in 2003, even rescinding a slight concession it made in 1996.

The locally detested words in article 17(3)(c) are: “The custody of an accused member of the United States armed forces or the civilian component over whom Japan is to exercise jurisdiction shall, if he is in the hands of the United States, remain with the United States until he is charged.” This means that Japanese authorities investigating a crime cannot have exclusive access to a suspect until Japanese prosecutors have actually indicted him in court; that the Japanese police are hobbled in carrying out an investigation in which an American serviceman is involved; and that prosecutors may be reluctant to bring charges against an American serviceman because of their inability to gather sufficient evidence.

These long-standing grievances burst into the open in the wake of the most serious incident to influence Japanese-American relations since the Security Treaty was signed in 1960. On September 4, 1995, two marines and a sailor from Camp Hansen, a huge marine base in central Okinawa, abducted a twelve-year-old girl they picked out at random, beat and raped her, and left her on a beach while they returned to their base in a rented car. The Okinawan press reported that the three military suspects were lolling around the pool eating hamburgers and had the run of the base while the child victim was in the hospital badly injured. This attack, combined with the refusal of the U.S. high command on the island to turn over the suspects to the Japanese police in accordance with article 17(3)(c), led to some of the largest anti-American demonstrations in postwar history. On October 21, 1995, 85,000 Okinawans gathered in a park in the
city of Ginowan to demand that the American and Japanese governments pay some attention to their grievances.

Comments by American military leaders contributed to the popular outrage. The then commander of U.S. Forces Japan, Lieutenant General Richard Myers, who would become President George W. Bush’s chairman of the Joint Chiefs of Staff, remarked that this was a singular tragedy caused by “three bad apples” even though he knew that sexually violent crimes committed by U.S. soldiers against Okinawans were running at the rate of two per month. Even worse, Myers’s superior, Admiral Richard C. Macke, commander of all U.S. forces in the Pacific, said to the press, “I think that [the rape] was absolutely stupid. For the price they paid to rent the car [with which to abduct their victim], they could have had a girl.” The American military in Japan has never been allowed to forget these disgraceful acts and the spin put on them by very high ranking officers.
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All servicemen in Okinawa know that if, after committing a rape, robbery, or assault, they can make it back to base, they will remain in American custody until indicted even if the Japanese execute a warrant for their capture. By contrast, Japanese criminal law gives the police twenty-three days during which they can hold and question a suspect without charging or releasing him. During this period, a suspect meets alone with police investigators who attempt to elicit a confession, the “king of evidence”
(shoko no o)
in the minds of all Japanese prosecutors and most citizens. The Japanese believe that a lengthy process of reasoning with a suspect will cause him to see the error of his ways and that acknowledging publicly what he has done will restore the “harmony”
(wa)
of society. Japanese judges treat guilt established in this way much more leniently than American criminal proceedings would. (It is perhaps closest to the American practice of plea bargaining, itself uncommon in Japan.) On the other hand, a suspect in a Japanese courtroom who pulls an “O.J. defense,” refusing to cooperate or continuing to assert his innocence in the face of strong material evidence and witnesses, is likely to receive a harsh sentence. During the period of interrogation, a criminal suspect is not permitted to consult an attorney, be released on bail, or seek the equivalent of a habeas corpus hearing. In Japan, a criminal suspect who is arrested and charged is much more likely to be found guilty than in the United States, but the Japanese police and courts are much less likely to arrest or convict an innocent suspect.
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The American military contends that these procedures, a long-standing part of Japanese culture, could lead American soldiers to make false confessions and so constitute political violations of their “human rights.” This argument does not carry much weight in Okinawa (or anywhere else for that matter, given the Bush administration s record of protecting human rights at Guantanamo, Abu Ghraib, and in its other secret prisons around the world). Every time there is a sexually violent crime in which the prime suspect is an American soldier, the victim Okinawan, and the military refuses to turn him over until a Japanese court has issued an indictment, there are calls from the governor, unanimous votes in the pre-fectural assembly, and street demonstrations demanding a total rewriting of the SOFA.

Until the rape of September 4, 1995, the United States had never turned over a military criminal suspect to Japanese authorities prior to his being indicted. (In the Girard case, the Japanese authorities had already charged him with homicide.) Pressure, however, mounted on the United States to become more flexible if it hoped to keep its troops in Okinawa. In February 1996, President Clinton and Prime Minister Hashimoto met at an emergency summit in Santa Monica, California, to think of ways to defuse Okinawan anger. Finally, the United States made a concession. In a meeting of a joint committee authorized by article 2(1 )(a) of the SOFA, the United States agreed in future cases to give “sympathetic consideration”
(koiteki koryo)
to Japanese requests that a military culprit be handed over to Japanese authorities before indictment if suspected of “especially heinous crimes”—a category left undefined but generally taken to mean murder or rape. Despite this “flexible application” of the SOFA, the United States rejected all but one subsequent request for early hand-over until the sensational incidents considered below.
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