Democracy often involves making tough choices between different compelling interests. But when policymakers wrap their decisions in secrecy, there will be losing parties who will feel betrayed for years. Indeed, just this month, an American federal court dismissed a lawsuit against Japan for war crimes involving "comfort women," saying it lacked jurisdiction to grant the redress that the plaintiffs "seek and surely deserve." This was because Japan is immune from lawsuits and prosecution in the United States under American federal law. This sad situation is the result of a strategy originally crafted by John Foster Dulles and perpetuated for decades by the U.S. Department of State.

Remarkably, the U.S. still embargoes historical records of its past and about affairs of state that occurred decades ago. Dulles' action concerns the terms agreed to by parties to the San Francisco Peace Treaty, which 50 years ago on September 8 brought a formal end to hostilities between Japan and 47 signatory nations and laid the groundwork for the subsequent initiation of a military alliance between Japan and the U.S.

Among other things, the treaty purports to "waive all reparations claims of the Allied Powers, other claims of the Allied Powers and their nationals arising out of any actions taken by Japan and its nationals in the course of the prosecution of the war." While there have been a handful of modest claims made from time to time by American prisoners of war against Japan and Japanese firms for actions during the war, none has been successful or supported by the U.S. government--the latter, ostensibly, because Dulles orchestrated a waiver of Allied-power citizens' rights in 1951. The emergence of recently declassified letters and other material, however, may dramatically change the legal status of subsequent claims.

Only days before the treaty was to be signed, the Netherlands threatened to withdraw from the proceedings because the treaty as prepared "expropriated the private claims of its individuals" to pursue war-related compensation from Japanese private interests. The Dutch felt that they lacked the constitutional authority to agree to such a waiver. So to keep the Dutch in, Dulles orchestrated a secret exchange of official letters between Dutch Foreign Minister Dirk Stikker and Japanese Prime Minister Shigeru Yoshida. Yoshida pledged that "the government of Japan does not consider that the government of the Netherlands by signing the treaty has itself expropriated the private claims of its nationals so that, as a consequence thereof, after the treaty comes into force these claims would be nonexistent."

And yet Article 26 of the treaty unambiguously states that "should Japan make a peace settlement or war claims settlement with any state granting that state greater advantages than those provided by the present treaty, those same advantages shall be extended to the parties to the present treaty."

In other words, with these letters, declassified in 2000, 49 years after their legal significance, Dulles actually preserved the rights of some and arguably all Allied private citizens to potentially pursue private claims against Japanese interests. His diplomacy produced a result in which the explicit language of the peace treaty was undermined and changed by a secret deal of which no one in the broad American, Asian or European public would have been informed. Yoshida's signed letter to the Dutch foreign minister on September 8, 1951 could be argued to have established a legal benchmark for the rights of all Allied citizens to pursue claims against Japan in the actual peace treaty signed that same day.

Although some have argued that the success of U.S.-Japan relations over the last 50 years justifies Dulles' actions, the consequences must be considered as well. Unlike in Germany, the failure to let Japanese society struggle with these issues of liability and guilt, compensation and rehabilitation, has retarded Japan as a nation and made controversies over historical memory a serious barrier between itself and its Asian neighbours.

Japan clearly deserves criticism for its inability to engender healthy debate and discussion within its society about its past and its institutions, particularly regarding the role of the emperor and the nation's actions in the war. However, it is increasingly clear that the U.S., as evidenced by the emerging controversy about the terms of the San Francisco Peace Treaty, is complicit in, and has been a primary architect of, Japan's historical amnesia.