Nemesis: The Last Days of the American Republic

by Chalmers Johnson

  One of Brown’s first acts was to obtain an American lawyer, Victor Kelley of the National Military Justice Group, who, on March 7, 2003, filed a petition in U.S. federal court in Washington, D.C., for an emergency writ of habeas corpus. Kelley argued that, in turning over Brown to the Japanese, the U.S. government had violated his constitutional rights as an American citizen “to be free from compulsory incrimination, the right to the effective assistance of counsel, and the right to a reasonable bail.” He added,” [In Japan,] due process has no meaning. The Japanese ‘conviction’ rate is nearly 100 percent. To be indicted is to be convicted. The presumption of innocence is a mockery of justice. Almost without exception, all are convicted; no one goes free.” Needless to say, the Washington court did not grant the writ.36

  Brown also sought to apply political pressure. He obtained the support of Senator Kay Bailey Hutchison (Republican from Texas) and of his Republican representative in Texas’s Twenty-first District, Congressman Lamar Smith. Both of them informed the secretary of defense of their deep concern that Brown was not being treated fairly. Brown urged his friends and fellow marines to write to their elected representatives, suggesting that they say, “It is way past time for President Bush to intervene and no longer allow the Japanese government to persecute this innocent Marine.”

  Brown’s family in the United States created for him the “Free Major Brown” Web site, and the commentaries posted on it were widely distributed to marines on Okinawa. As time wore on, Brown and his family began to lash out at everyone they could think of, from Marine Corps legal officers to ordinary Okinawans—”I would love to see the Okinawans get their land and their island back and I would love to see the U.S. servicemen leaving that island and spending their money elsewhere. At least then, the slimy Okinawan officials couldn’t get their hands on our guys anymore. This solution would make us all happy, right? The Okinawans obviously don’t want us there. They don’t want our soldiers funding their local economy. They don’t want the jobs our bases provide. They don’t like the exorbitant fees we pay them to rent their lands. They don’t want us as a deterrent for their enemies. And, they don’t want us as neighbors.”37

  From Brown’s point of view, the big break in his case came May 13, 2003, when, in open court, Victoria Nakamine testified, “I want... to withdraw my complaint. I cannot speak Japanese very well. I signed my written statement, but I didn’t understand what was written.” This was a serious development. Hiroyuki Kawakami, deputy chief prosecutor at the Naha District Public Prosecutors Office, commented, “This is an offense subject to prosecution only on complaint from the victim, so it’s unlikely that a criminal case can be established in defiance of the victim’s intent.”38 In response, the court released Major Brown on 10-million-yen ($87,000) bail but with the provisos that his passport be taken from him, he be confined to Camp Courtney, and he not try to leave Okinawa. This action was unusual as Japanese courts accept defendants’ requests for bail in only 14.6 percent of cases.39

  Japanese criminal trials are normally adjudicated by a panel of three judges, not by juries, and these judges regard themselves—and are regarded by the public—as highly experienced experts on whether or not someone is telling the truth. They are not subject to rules of evidence, and they want to hear anything and everything about a case, including hearsay evidence, gossip, and rumor. One admirable element of Japanese law is the presumption by judges that the testimony of a woman who claims to be a victim of a sex crime should be given more weight than that of the suspected offender. In the Brown case, presiding judge Nobuyuki Yokota found Nakamine’s original statement to the police believable, inferring that she had probably withdrawn it under pressure from her employer or the society in which she lived. He therefore ordered Browns trial to proceed.

  Brown erupted. In a letter to American ambassador Howard Baker, Brown charged that there had been “collusion between the court and prosecutor” and that he had been framed by the Gushikawa police. He instructed his attorney to appeal to the Okinawa branch of the Fukuoka High Court and then to the Japanese Supreme Court, asking that the three judges in his case be dismissed for prejudice. Neither appeal succeeded, but they kept Brown’s case in the newspapers and heightened the growing worries of the American embassy that the cultural conflicts embedded in the SOFA were an insoluble problem.40

  By the summer of 2003, Brown’s Web site had received more than sixty-eight thousand hits, and inquiries from congressional staff assistants about the fairness of Japanese justice were becoming routine at the State Department. Moreover, the war in Iraq was influencing attitudes. Given the rising casualty rate among American troops, the Pentagon increasingly felt that the protection of the “human rights” of military personnel was a morale matter. The Asahi Shimbun quoted a U.S. official as saying, “American soldiers are in Okinawa to defend Japan. They’re even prepared to die if necessary. And yet, when something happens, they [the Okinawans] will treat U.S. military personnel as criminals right away.”41

  On July 8, 2004, at the Naha District Court, Judge Yokota finally delivered the verdict. He dismissed the attempted rape charge against Brown but found him guilty of indecent assault and destroying Nakamine’s property (her cell phone). He sentenced Brown to a one-year prison sentence suspended for three years and fined him about $1,400. Judge Yokota said it was clear to the court that a degree of consensual contact had occurred, but marks on Nakamine’s neck showed that Brown had also used force in an attempt to compel her to perform an “indecent act.”

  The most sensational revelation in the verdict was that, on the day before Nakamine changed her story in court, an unknown person or group had deposited $13,500 into her bank account. The court did not know who had done this—Brown, his family, Filipino friends of Nakamine’s, fellow workers at Camp Courtney’s officers club, or the U.S. government—but concluded that the money probably caused her to change her story. Brown received a suspended sentence because he had no prior criminal record.42

  As it turned out, there was a sad sequel to the Major Brown case. In August 2005, he left Okinawa and reported for duty at the Marine Corps base in Quantico, Virginia. His wife and children had already moved back to Texas. Brown was actually living at his brother’s house in Laurel, Maryland, and commuting to Quantico. On October 4, 2005, a Maryland SWAT team arrested him in Laurel and charged that, on October 2, he had kidnapped an eighteen-year-old Chinese high school student, Lu Jin, at a flea market in Milton, West Virginia. Extradited to West Virginia, on October 20, he was indicted on a felony kidnapping charge, released on $75,000 bond, and ordered to keep out of West Virginia until his trial. If convicted, he could face life in prison.43

  Meanwhile, in May 2003 in Okinawa, while Major Brown’s case was still pending, yet another brutal rape and beating further inflamed popular sentiment. Kin is a small, central Okinawan village with many once-unspoiled beaches. The huge expanse of Camp Hansen dominates the village. The Marine Corps uses Kin’s beaches to practice amphibious landings as well as for recreation by the troops and their families. In 1995, Kin had been the scene of the abduction, beating, and rape of the twelve-year-old schoolgirl that launched the Okinawan mass movement to get rid of the American bases.

  At around 3:15 a.m. on Sunday morning, May 25, 2003, a twenty-one-year-old Camp Hansen marine, Lance Corporal Jose Torres, left a Kin village bar with a local nineteen-year-old woman, had sex with her in a nearby alley, and hit her in the face, breaking her nose. A female friend of hers went to the Camp Hansen main gate and reported Torres, whom the MPs at once took into custody. On June 12, the local police opened an investigation and, on June 16, obtained a warrant for Torres’s arrest for rape and battery.

  The same day, the Japanese government in Tokyo asked the U.S. embassy to hand him over. The newly arrived U.S. ambassador, Howard Baker, promptly apologized for the incident and urged Lieutenant General Wallace C. Gregson, commander of all marine forces in Okinawa, to comply rapidly. Gregson vacillated but did call on Governor I
namine to express “regret.” Inamine replied, “I expect that [the United States] will hand over the suspect to Japan as soon as possible, without wasting a minute or even a second.”44 In Phnom Penh, while attending a meeting of the ASEAN (Association of Southeast Asian Nations) Regional Forum, then secretary of state Colin Powell also apologized to Foreign Minister Yoriko Kawaguchi.

  The Bush administration now sensed that it had to turn over the suspect quickly, but it also decided that the time had come to force Japan to modify its criminal procedures. This decision produced a Japanese-American deadlock. On June 18, two days after the arrest warrant was issued, the marines turned Torres over to the Japanese authorities. At first he claimed that the sex was “consensual”—that the victim was a prostitute he had hired—but on July 8, after prosecutors had indicted him, Torres confessed to charges of raping and beating the woman. On September 12, the Naha District Court sentenced Torres to three and a half years in prison for his crime.45

  This case, as banal and routine as it was in the context of the vast array of military sex crimes in Okinawa, was nonetheless the last straw for both the Japanese and American governments and led them to harden their positions. On the Japanese side, the issue of the SOFA and Japan’s sovereignty was already in the public eye. Major Brown’s trial was continuing; in March 2003, a drunken Defense Department employee from Camp Hansen had driven his car head-on into another car, killing its Okinawan driver; on May 7, a marine was arrested for mugging a store clerk as he was walking home; the wife of a marine assigned to Camp Foster punched and tried to strangle an Okinawan woman in the restroom of an Okinawa City bar; and on May 31—the day after they were paid—five drunken marines were arrested between 1:00 and 3:00 a.m. for failing to pay a 4,800-yen ($42) cab fare, trespassing on the premises of a private home, and damaging the glass entrance to the civic hall in Okinawa City. Okinawa City, which lies directly outside Kadena Air Base, had changed its name from Koza in 1972, after the Ryukyus reverted to Japanese administration, because Koza had become synonymous with incessant bar brawls and race riots among American servicemen.46

  During June 2003, Governor Inamine and his deputy governor set out on a “pilgrimage” to the thirteen other Japanese prefectures that host U.S. military facilities and asked each governor to cooperate in a campaign to force the central government to revise the SOFA. All the governors agreed, including Tokyo’s governor, Shintaro Ishihara, a popular right-wing politician with a long record of hostility to the American bases. Ishihara commented, “America’s international strategy cannot be implemented without the bases in Japan. We are doing them a big favor here.... A half century has passed since the end of World War II, but Japan remains in an inferior position. It is strange to anyone who looks at it.”47 This remark from the politically powerful governor of one of the world’s largest cities put further pressure on the national government to end its timidity toward the Americans.

  However, just as the Japanese side was fortifying its position, the Americans also decided to toughen their stance. In turning over Torres to the Japanese police, the American embassy stated that it wanted immediate negotiations to ensure that American servicemen “will be treated in a fair and humanitarian manner while in the local police’s custody.”48 The United States now claimed that, when it agreed in 1996 to give “sympathetic consideration” to requests for preindictment turnovers, it had asked for a quid pro quo—that Japan give U.S. servicemen special treatment to compensate for the differences between the legal systems of the two countries. The Bush administration now demanded that Japan quit stalling on new rules governing implementation of the SOFA—and that it do so within forty-five days.

  The Asahi Shimbun noted the refusal of the United States to join the new International Criminal Court, which had just gone into operation in The Hague, calling it a sign that the Bush administration was determined to set new rules for the world, not just for Japan. It also noted the administration’s refusal to abide by many international laws that the United States had once helped enact, its invasion of Iraq without legal sanction, and its belief that America possessed such power that it could act more or less as it pleased in international affairs. Professor Masaaki Gabe of the University of the Ryukyus, probably Japan’s best-informed commentator on base problems, has observed, “Deputy Secretary of Defense Wolfowitz and other U.S. officials in the present administration believe that American justice will pass muster anywhere in the world, and they do not necessarily give priority to the bilateral relationship with Japan.” According to Gabe, difficult military operations in Iraq and Afghanistan caused such officials to put a higher priority on maintaining the morale of troops stationed abroad than on the endless cases of military misbehavior in Okinawa.49

  The Japanese soon agreed to the United States’s request for negotiations, and talks convened on July 2, 2003, in Tokyo. The United States asked that one of its officials and an American-selected interpreter, for which it was willing to pay, be assigned to every military suspect turned over to the Japanese to ensure that he or she understood the questioning and was not tricked into confessing. The Ministry of Justice and the National Police Agency said that this request would be inconceivable interference in Japan’s settled ways of investigating crimes. The United States responded that in most of its SOFAs with other countries it turns over military suspects only after they have been indicted and that it was already giving Japan “preferential treatment.” After two days, the talks deadlocked.

  When the talks resumed in Washington at the Pentagon on July 11, they proved no more productive than those in Tokyo. The main issue clearly centered not on the interpreter, since the Japanese already supply foreigner detainees with interpreters, but on the presence of that American official, possibly an attorney, at all interrogation sessions. “In our country,” Japanese officials argued, “a lawyer is not allowed to attend investigations under normal circumstances and nothing in the SOFA says that Japan has an obligation to let persons connected with the U.S. government attend investigations by Japanese authorities.”50 Japan’s negotiators also pointed out that measures taken by American authorities to maintain discipline and prevent sex crimes in Okinawa had been manifestly insufficient. The United States responded that without progress in the consultations, it would not in the future agree to turn over U.S. military suspects before indictment.

  The two sides could agree only upon the scheduling of a third meeting on July 24 at U.S. Pacific Fleet headquarters in Honolulu, where the American delegation would be headed by Richard P. Lawless, deputy assistant secretary of defense for Asian and Pacific affairs, who was a former National Security Council staff member in the Reagan administration and before that a CIA operational agent. He is said to speak some Korean. The Japanese Ministry of Foreign Affairs made clear that, while it was prepared to accept the American requests, the Justice Ministry and Police Agency were dead set against it. The talks ended in failure, with negotiators on both sides saying that the issue would have to be referred to a higher political level.

  Sometime between July 25 and 29 (to the great consternation of Japan’s Ministry of Foreign Affairs), President Bush telephoned Prime Minister Koizumi and talked over the matter. The result was that Deputy Chief Cabinet Secretary Teijiro Furukawa ordered senior officials in the Foreign and Justice Ministries to produce a compromise. At a fourth round of talks in Washington on July 31, Japan agreed to allow a U.S. government representative to be present during interrogations of military suspects, but only in cases of “heinous crimes.” Such a U.S. governmental presence would be authorized in the name of Japanese-American “investigative cooperation,” not “human rights,” and the Japanese investigators could, at their discretion, ask the U.S. official briefly to leave the room at critical points in the interrogation. The Bush administration rejected this compromise, insisting that it would not tolerate any conditions being placed on U.S. officials, who had to be present for all charges, not just heinous crimes. With the failure of negotiations, the 1996 agr
eement on “sympathetic consideration” was a dead letter. A Pentagon source argued that the military had no choice in the matter since its forces would be demoralized if their human rights abroad could not be ensured.51

  From August, when the SOFA discussions collapsed, until early November, when Secretary of Defense Rumsfeld toured Japan, Okinawa, and South Korea, the Americans and the Japanese had nothing important to say to each other on the subject. On his tour, Rumsfeld merely noted that the presence of thousands of U.S. troops on Japanese soil was a source of friction and “[p]erhaps the toughest of those tensions is the question of whether to extend fuller legal protections to U.S. service members accused of crimes,” leaving the issue unresolved.52 While in Okinawa—the first secretary of defense to visit since President George H. W. Bush’s secretary Dick Cheney did so thirteen years earlier—Rumsfeld took a flight over Marine Corps Air Station Futenma, which is completely surrounded by the city of Ginowan. Looking out the window, he reportedly commented, “It is amazing that an accident has not occurred.”53

  Futenma has been an American military base since the battle of Okinawa in 1945. In 1958, the marines began to build permanent hangars and barracks; in 1960, the airfield was commissioned as a “Marine Corps Air Facility.” With some 3,259 servicemen in 2005, Futenma provides air support for the Third Marine Expeditionary Force, also garrisoned in Okinawa. The airfield covers some 1,187 acres and is a major obstacle to improving the urban infrastructure of Ginowan (Manhattan s Central Park, by contrast, is only 843 acres). Roads, sewers, and water mains have to be awkwardly and expensively rerouted around the marine base. The functions of Futenma could easily have been moved years ago to the huge Kadena Air Base a short distance to the north, but interservice rivalries regularly make any rational use of land by the U.S. military in Okinawa inconceivable.