Sensitive talks begin here this week over the rights of GIs accused of serious crimes while stationed in Japan. After languishing for seven years, the talks are viewed with some apprehension by both sides as a small test of US-Japanese relations that could become a larger one.
The 45-day meeting by a legal team built from Pentagon, State Department, and White House ranks was agreed to following the release to Japanese police last week of a lance corporal accused of raping a 19-year-old Japanese girl in Okinawa on May 25.
US brass argue that their troops should be accorded basic rights familiar to Americans. The Japanese Justice Ministry disagrees, arguing that violent crimes by US soldiers should be prosecuted under the same laws Japanese submit to.
The status of US troops can carry high and often conflicting emotions both in Japanese and in US military circles. And conflicts over their presence here are often viewed as stalking horses for deeper issues - including popular Japanese sentiment that US troops are too numerous and too aggressive, especially in Okinawa where more than half the island is made up of US bases.
Under current rules, a US soldier who makes it back to base after an alleged crime is not turned over until an indictment is made by Japanese prosecutors. But if the soldier is arrested by Japanese police, he or she can be held for an indefinite period of time, can be interrogated without counsel - and that evidence can be used in a trial.
After a brutal 1995 rape in Okinawa by three US soldiers of a 12-year-old girl caused an outcry across Japan, US authorities agreed to give "sympathetic consideration" when deciding to turn over soldiers to the Japanese, in cases of "heinous crimes." These crimes include murder and rape.
Yet the Americans say that sympathetic consideration is only half of the deal they made in 1995. The other half is known as "assurances." They say they need assurances that US soldiers turned over to Japanese authorities will be guaranteed rights of due process that have evolved under British and American law.
These include the right to an interpreter when questioned, and the inadmissibility of evidence obtained by forced confession. Under Japanese law, for example, a trial can be held and a sentence passed using police evidence that is obtained with no lawyer present for the accused - which allows police to use forced or harassing confessions.
"In our view, servicemen are in Japan not of their free will. They are sent here," says one US diplomat, "We are saying it isn't right for them to be here, or for us to use sympathetic consideration, without basic assurances. We've been waiting seven years to negotiate this. Now we need to."
In the case of Cpl. Jose Torres, turned over to Japanese last month, the serviceman confessed and showed remorse in front of Japanese police during a first questioning at the US base. When the Americans agreed to show consideration by handing Torres over, however, they demanded that the "assurances" sought by the US government would be negotiated within two weeks. There was also an assumption, sources say, that due process rights for US soldiers would follow.
Yet Japanese authorities say that only the talks on "assurances" were agreed to as the condition for handing over Torres. One high-ranking Japanese diplomat here says the US team in fact may not get what it is seeking.
"I don't think the Americans will be very successful in this negotiation," says a top Japanese diplomat. "The chances are very small because the Ministry of Justice is taking a strict line," he said, adding, "I don't think the magnitude of this issue" should be underestimated. "We agreed that a US delegation would come, and that we would try to reach an agreement. I stress the word 'try.'"
"We will have a thorough discussion and try our best to resolve this," says Foreign Ministry spokesman Hatsuhisa Takashima. "Is this a test of the relationship? I hope it won't be that way. But some senior military officials may feel it is."
The talks will also cover the thorny question of access to soldiers when they are held by Japanese. The 1953 agreement states that US officials have access "at all times" to GIs being held in Japanese detention centers or jails. Yet Japanese now say the phrase "at all times" is not a literal one, but means that they will always accept the request for access and begin processing it immediately.
Sources on both sides say the real test may come when an American soldier does not make it back to base, is arrested instead by Japanese authorities - and guilt and innocence in the case are highly ambiguous.
There have been three main rape cases since the 1995 rape in Okinawa. In each, the US has turned over the accused - but has done so with increasing unease. The first came in June, 2001 when Staff Sgt. Timothy Woodland was accused of raping a female on the hood of a car in the parking lot of a complex known as American Village. Sgt. Woodland claimed the woman draped herself on him and this meant his advances were part of a consensual act.
The case caused a firestorm in Okinawan and Japanese press over a four-day delay in handing Woodland to local police. Prime Minister Junichiro Koizumi asked for Woodland's handover, and incoming US Ambassador Howard Baker was approached on the tarmac when arriving officially in July and asked for a decision. Secretary of Defense Donald Rumsfeld and national security adviser Condoleezza Rice both got involved. Eventually Woodland stood trial and was given two-and-a half years in jail.
Marine Major Michael Brown was arrested last December, and later turned over by US authorities. He allegedly raped a woman in his car after throwing her cell phone away. The case is a classic "he said she said." The trial is ongoing. But the press against Brown in Okinawa, and the use of evidence by the prosecution has caused Major Brown's lawyer to try and sue the US government for turning him over to Japanese police, and to have the venue moved to another location.
In one reading, the problem is one of authority inside the Japanese system of democracy. Does the Japanese civil government have the authority to force its police and Justice Ministry to abide by decisions made by state leaders? Some Japanese are hoping that the Americans will make a big issue of this to put pressure on the Japanese to reform its judicial system.
Others see a signal or message being sent to the Americans, one that also plays well to the Japanese public: Japan may need the US for its security in Asia. But if the US is going to keep bases here, it will have to be under Japanese law, with no special exceptions for foreign troops - especially ones who commit violent crimes.