Foreign Relations of the United States Diplomatic Papers, 1940, The Far East, Volume IV

394.1121 Young, James/47

The Ambassador in Japan (Grew) to the Secretary of State

No. 4640

Tokyo, April 9, 1940.
[Received May 6.]

Sir: In continuation of my despatch no. 4502 of February 15, 1940,⁶² in regard to the case of Mr. James R. Young, Tokyo representative of the International News Service, who was arrested on January 21, 1940, on the charge of violating the Military Penal Code, I have the honor to report further developments in regard to the case.

[Here follows report of case.]

A final word should be added in regard to Mr. Young’s trial. The question arises whether or not Mr. Young was given a fair trial and whether the sentence pronounced by the court was justified. Without attempting to answer these questions, the following facts are submitted for consideration: The entire affair, from the time of Mr. Young’s arrest until his final release, occupied almost exactly 3 months, which is not an unusually long time for an important case to be decided either in Japan or in certain other countries; there was at no time any evidence of discrimination against Mr. Young on account of his American citizenship—in fact the contrary is true; Mr. Young and his attorneys were permitted to explain his side of the case in detail to the court; there was at no time any attempt at intimidation or evidence of ill will. To an American citizen who carries with him the tradition of freedom of speech, the trial might appear unfair and the sentence unjust. On the other hand it would be hard to find a Japanese who, on the basis of the evidence submitted, would not regard the conviction and sentence as eminently just. Without expressing any opinion in regard to whether or not there was a miscarriage of justice in this case, I feel that in view of all the circumstances neither Mr. Young nor the Embassy have any cause for complaint in regard to the outcome of the case.

On the other hand, I do not regard with satisfaction the situation, remarked earlier in this despatch, wherein the authorities have refused to permit the Embassy to communicate with an imprisoned American citizen in regard to his case and wherein on occasion a representative of the Embassy has been refused permission to visit the accused for any purpose.⁶³ The treatment in respect of visits to Mr. Young does not appear to be consistent with assurances given by the Japanese Embassy in Washington during discussions carried on in 1936 and 1937 looking toward the conclusion of a consular convention.⁶⁴ It is the recollection of officers now on my staff that the Japanese Embassy in Washington declared that after the completion of the police examination and after the handing over of a case to the judicial authorities by the police, visits to the accused by an official representative of his country would be freely granted as a matter of right. Mention of these assurances was made in an official note addressed by me to the Foreign Minister⁶⁵ with a request for permission for an interview with Mr. Young to discuss the case. The reply of the Foreign Office sets forth that “the purpose of these assurances was that interviews might be allowed in accordance with Japanese law.…”^* It is obvious from these words that the assurances are valueless, just as it is obvious from the attitude of the authorities in the present case that they will not permit interviews, if inconvenient, regardless of permissive provisions of law.

Whatever explanation might later be given by the Japanese, the fact remains that despite repeated requests by the Embassy, oral and written, at no time during the three months of Mr. Young’s detention, imprisonment and trial, did the authorities permit an interview for the purpose of discusssing his case between him and an official of the American Government. Although in this case, as has been pointed out, the authorities gave every evidence of a desire to be considerate, yet the fact remains that the consideration shown to Mr. Young was due to the goodwill of the authorities and was not because of any protection provided by law or treaty. In different circumstances an American citizen accused of committing a crime might receive in Japan treatment entirely different from that accorded to Mr. Young without the possibility under present conditions of effective intervention by the Embassy.

As of possible further interest in connection with this case there is enclosed an extract from my diary under date of March 26.

The case of Mr. Young has been discussed in some detail in the foregoing paragraphs as it is felt that this case may have some importance as a precedent. It is clear that at the present time American citizens in Japan do not have a desirable measure of security in respect of what are considered fundamental rights, and that safeguards which would assure to American citizens treatment compatible with those rights did not exist even in the recently terminated Treaty of Commerce and Navigation.⁶⁶ If at some future time there is contemplated the conclusion of a general commercial treaty or of a consular convention with Japan, it is suggested that study of the present case might be useful in the effort to modify the situation arising out of the discrepancy between Japanese and American laws. Any proposal that the criminal procedure applicable to American citizens in Japan shall be similar to that obtaining in the United States may be expected to be resisted by the Japanese Government on the ground that American citizens cannot be treated more favorably than its own nationals. Nevertheless, cases such as that of Mr. Young will continue to arise until this discrepancy in the criminal procedures of the two countries can be circumvented.

Respectfully yours,

Joseph C. Grew

[Enclosure]

Extract From the Diary of Ambassador Grew, Dated March 26, 1940

Jimmie Young came in, just released after two months in jail. He looked blooming in health and seemed full of good spirits. The police treated him very well in jail and although he had to sleep on a plank he had his food brought in from the Imperial Hotel. My fur coat, which I lent him, apparently created a tremendous impression on the officers. I think that the gesture helped him almost as much as the coat itself which he said really saved his life. He had no criticism at all as to the investigation and ensuing trial and his attitude is that he has had it coming to him for a long time. There is no indication of any rankling whatsoever. At the trial he was able to substantiate all of his statements which had been characterized as false rumors and which formed the basis of the charges; if the trial had been public instead of in camera Japan would have been treated to a sensation of the first water and would have learned a thing or two about its own army. Even in the secret proceedings a great many points were passed over as being too full of dynamite. One of these points was the presence of Japanese prisoners taken by the Chinese; the Japanese public believe that not a single prisoner has ever been taken and even the Judge held up his hands in horror at the idea, but Young was able to substantiate his statements by photographs of the prisoners with whom he himself had talked. The army’s practice of spreading narcotics among the Chinese was another point, fully proven but disregarded in the trial. But eastern logic and eastern justice are not always identical with western logic and justice, and Young was let off as easily as he could have expected, with a sentence of six months imprisonment suspended for three years—in other words, he is placed on three years probation during which he must [not] commit the same crime.

62. Not printed.
63. Two visits by a member of the Embassy staff were allowed, on February 2 and 19 respectively, and on each visit conditions were made that the conversation, limited to a few minutes, be in Japanese and that the case not be discussed.
64. See Foreign Relations, 1937, Vol. iv, pp. 816 ff.
65. Not printed.
66. See page 3 of enclosure no. 2 for citations of Japanese law. [Footnote in the original; enclosure not printed. Omission also indicated in the original.]
66. Signed at Washington, February 21, 1911, Foreign Relations, 1911, p. 315; for termination, see ante, pp. 626 ff.