Another key piece of information not readily available to the families was the fact that the U.S. government had been—quietly and not so quietly, as in the case of Khalid Sheikh Mohammed—rounding up key leaders of al Qaeda and removing them from the global battlefield. One of those was al Nashiri, who had been captured by U.S. forces in early 2002 and was being held by the CIA at an undisclosed location when that trial in absentia took place in Yemen. It was not until September 6, 2006, that President Bush announced that fourteen “high-value” detainees being held in CIA custody, including bin Attash and al Nashiri, were transferred to the intelligence and detention facility at Guantanamo Bay, Cuba, to await justice.
Unfortunately, politics once again intruded into the process of holding terrorists accountable for their acts, and the families’ sense of justice was again delayed. In 2006, Congress passed the Military Commissions Act of 2006, which was subsequently updated in 2009. Although al Nashiri and bin Attash had been held in U.S. government custody for years, when President Obama took office, he upended the entire process on January 22, 2009, his first full day in office, by signing three far-reaching executive orders:(1) Close the intelligence and detention facility in Guantanamo Bay, Cuba, within one year.
(2) Conduct a review of every individual being held at Guantanamo Bay, Cuba, to determine his or her suitability for release, transfer, or referral for prosecution.
(3) Halt all actions associated with Military Commissions until the review process was completed with a plan to dismantle them and try all cases in the Federal court system.8
The Cole families were devastated. The entire process of military commissions came screeching to a halt and was to be held in abeyance until the “review” was completed over the course of a year, continuing a series of blows for the long overdue justice for their loved ones. With many delayed proceedings, after being at times seemingly ignored throughout the Bush administration, they felt justice would be even further jeopardized with the very real possibility that now the Obama administration might dismiss charges entirely against those who had so ruthlessly killed their sailors. That was precisely what seemed to be happening when Attorney General Eric Holder, in a tortured twist of legal maneuvering, dropped all charges against al Nashiri in an effort to stymie the Military Commissions process.
In a feeble effort to mitigate the political damage and fallout that was rapidly building from the Cole and September 11 families, who had already suffered multiple setbacks and delays in the intervening years, President Obama offered to host a meeting on February 6, 2009, in an attempt to explain the rationale for his recently signed executive orders. With no idea of how to contact the September 11 and Cole families, the White House initially relied on contacting only those families who had been supportive of the President’s campaign. At first, there were not even families of firefighters who died at the Twin Towers invited to the meeting. The Cole families were a much more bonded group and all that could be reached, given the short notice, were invited.
The press, however, had already gotten wind of the fact that the administration was planning to drop charges against al Nashiri as a prelude to abandoning the Military Commissions process and trying all the terrorists in the Federal court system. In order to exercise as much control over the attendees as possible and minimize adverse media exposure, the White House waited until there was less than forty-eight hours before the meeting to extend invitations. Oddly, the Navy, which had been tasked with maintaining the database of family contact information, was unable to provide it to the White House when asked. Apparently the Bureau of Personnel had failed to maintain an up-to-date list. Thankfully, the Military Commissions prosecution team had been in recent contact with the family members to keep them informed about the impact of the President’s executive order, and was able to provide the contact information to the White House. Although I had not suffered the direct loss of a family member, I too was extended an invitation to attend the meeting.
It was scheduled to start at 1530 and last one hour. Although every attendee processed through the North Visitors Entrance and was walked toward the North Portico, the meeting was actually held in a conference room across the street on the second floor of the Eisenhower Executive Office Building. Given the purposefully short notice, only families within a few hours’ drive of Washington, D.C., were able to attend. In total, about sixty Cole and September 11 family members attended. From Cole, eight families were able to attend: Wibberleys, Gunns, Clodfelters, Saunders, Tripletts, Kate Brown (Fireman Roy’s mother), Ruxs, and Parletts.
In the conference room, tables were placed end to end to form a large rectangle with chairs around the perimeter. The President arrived twenty-three minutes late but took time before speaking to walk around the entire table to introduce himself to every family member, shake their hands, and accept the occasional hug of appreciation. Talking for only fifteen minutes, he devoted the remaining thirty-five minutes of the meeting to answering questions. While everyone was respectful and deferential to the President in what they said and asked, there was clearly an underlying tone of anger and frustration at the decisions he had unilaterally made without consulting those who were directly affected by it—the families who had lost loved ones at the hands of the terrorists. At the end of the meeting, the President pleaded for patience to allow the review process to work, and for understanding of his reasons for wanting to close Guantanamo Bay. For the most part, most families remained unhappy with his decision and over the coming weeks expressed their frustration in the media. In their eyes, the politics of the moment were once again delaying justice.
Over the next year, the process slowly played out as country after country refused to accept most of the detainees held in Guantanamo, especially after they learned the true nature and background of the individuals they were being asked to integrate into their societies and provide a new life for outside of Guantanamo Bay. I found myself speaking out on every media outlet that would host me on the poorly conceived decision to close Guantanamo Bay. On the Joint Staff, I vividly remember why we had created this particular facility in the first place: as the United States and its allies fought this new type of warfare, it would serve as “an intelligence center of excellence,” where terrorists captured from around the world could be held so that we could learn how they recruited, equipped, trained, and financed terrorists, and could conduct planning and operations across the globe. It was obvious to any military person that if you understand your enemies and how they operate, only then can you adequately plan and target them for defeat; otherwise, the old methods of warfare would not work against them. It was a clear shift in how warfare would be fought, and Guantanamo Bay would now be a key pillar in how the nation put itself on a war footing. The President and his new administration clearly thought otherwise and from the view of many, including me, were effectively undermining our nation’s ability to fight the war.
A year later, when Obama’s plans should have shuttered the facility at Guantanamo Bay, the public outcry and political firestorm created by the President’s executive orders resulted in the facility’s staying open, but essentially wasted on the purpose for which it was envisioned—a crown jewel in the world of intelligence—now unused. It had become essentially just a detention facility for the worst of al Qaeda’s operatives, despite over $300 million invested in state-of-the art intelligence-gathering facilities being built there. On a positive note, however, the process of using Military Commissions would slowly begin to grind forward again. Despite Attorney General Holder’s attempt to subvert the will of Congress and the American people by bringing the Guantanamo Bay terrorists to the United States for trial, eventually there was no choice left; Military Commissions would become the de facto legal mechanism for holding terrorists accountable for their actions.
On April 24, 2011, the charges against al Nashiri were sworn: terrorism; attacking civilians; attacking civilian objects; intentionally causing serious bodily injury; hazarding a vessel; using treachery
or perfidy; murder in violation of the law of war; attempted murder in violation of the law of war; conspiracy to commit terrorism and murder in violation of the law of war; destruction of property in violation of the law of war; and attempted destruction of property in violation of the law of war. The process of moving toward a hearing and trial started once again in earnest. Someday, the families will see justice; I just hope it happens in their lifetime.
The work of capturing or killing those responsible for the attack on Cole went on for years after the attack, but life for the crew also moved forward. With the inexorability of time, many would promote and retire, including some of the key leaders on the ship: Chief Larson, Master Chief Parlier, Master Chief Jacobsen, Master Chief Lorenson, Master Chief Abney, and Petty Officer Butte. Retirements are always a good time to remember the exploits and achievements of a career of service to the nation. There is also the equally important aspect of seeing your officers, those who had performed so brilliantly to prepare the ship for combat or endure the aftermath of a terrorist attack, achieve their own opportunity to excel in command, including John Cordle, Chris Peterschmidt, Rick Miller, Frank Castellano, Derek Trinque, Debbie Courtney, and Joe Gagliano. As any former commanding officer will tell you, nothing is more gratifying than to see the achievements of those who served under you as they become the next generation of leaders in the Navy.
My opportunity to continue my career and contribute to the nation came while on the Joint Staff. My work involved the creation of policy and long-range strategy out of whole cloth and without any real legal or historical references for fighting al Qaeda and bin Laden’s followers. New challenges arose constantly. Despite the long but very satisfying hours with this work, there were other Cole issues that I kept attending to: awards for the crew, disposition of crew remains, talking with various crew members as they adjusted to new ship and shore assignments where their peers could not begin to relate to their experiences . . . and, of course, wondering what my own long-term prospects were in the Navy.
After spending a career in the Navy, I always held in my heart that at its core, my Navy and the U.S. government would ultimately decide what is best for those who choose a life of consequence in service to the country. Integrity had always been the bedrock of my existence and now, with the nation at war, it was more of an imperative than at any point in my life short of my experiences leading Cole. The leadership of the Navy had recognized me with the award of the Legion of Merit, the second highest peacetime award that can be bestowed, for my service and actions while in command of USS Cole during the time of the attack in its immediate aftermath. I had been given a career-enhancing staff assignment on the Joint Chiefs of Staff. Although not officially sanctioned by the Navy, I had been sharing the lessons I had learned on Cole with the future leaders of the Surface Warfare force in Newport, and now the litmus test for all that work and my future as a naval officer was rapidly approaching. My career in the Navy had developed in me an odd philosophical outlook: I was a professional pessimist (always plan and train for the worst) and a personal optimist (work hard and hope for the best). Quietly, several admirals assured me that while no one can ever predict how a promotion board will ultimately choose those who will lead the Navy into the future, they had every confidence I would be among those selected.
After being on the Joint Staff for about a year and a half, the annual selection board for my year group’s promotion to captain met on January 10, 2002, to select those officers who would be promoted during fiscal year 2003. Prior to every board, Secretary of the Navy Gordon England issued a precept to the officers who would be reviewing records as part of the proceedings. In it, he stressed,A judgment of the whole person and the whole record is required to determine whose future potential will serve the Navy best. You may conclude that particular adverse information undermines an officer’s ability to serve successfully in a position of increased authority and responsibility, despite an otherwise outstanding record. On the other hand, you may find that an officer’s overall outstanding performance demonstrated such potential for future service that it outweighs any deficiencies noted in the record. Some officers will have learned from their mistakes in ways that make them stronger; others will have strengths that outweigh relative weaknesses in the records.9
In addition to a career’s worth of fitness reports, including my time as commanding officer of Cole, the entire JAGMAN command investigation had been ordered by the chief of naval operations and the secretary of the Navy to be made part of my officer record to be considered by the promotion board. I had requested that a message on accountability, issued by Admiral Clark, the chief of naval operations, to the entire U.S. Navy outlining his standards for accountability and personal responsibility and his reasons for handling the Cole investigations in the manner he did, also be included as part of my record.
The board convened and met in early January 2002. It was led by a vice admiral and included thirteen one- and two-star admirals. After months of review of each selected officer by both the military and civilian sides of the Navy, Secretary of the Navy England released the FY-03 Active Duty Captain Line Selections results on June 12, 2002. I was on the list! Within the Navy, many of my friends sent me notes of congratulations, seeing my selection as a vindication of the finding that nothing the crew or I could have done would have prevented the attack. As with any controversial decision, there were some disgruntled senior Navy officers less than enamored with the result who saw it as a lowering of the standard of accountability that, in their view, set our service apart from the other military services.
Regarding any officer promotion, the U.S. Constitution is very clear about the process and delineates it in Article II, Section 2:The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States; he may require the Opinion, in writing, of the principal Officer in each of the executive Departments, upon any Subject relating to the Duties of their respective Offices, and he shall have Power to grand Reprieves and Pardons for Offenses against the United States, except in cases of Impeachment.
He shall have Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur; and he shall nominate, and by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the Congress may by Law vest the Appointment of such interior Officers, as they think proper, in the President alone, in the Courts of Law; or in the Heads of Departments.
The President shall have the Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session.
The promotion list would be submitted by the secretary of the Navy for review and approval by the secretary of defense and the President before submission to the Senate to give their constitutionally empowered advice and consent. But while I was on the list, I was aware that there was a very real possibility that I would never be promoted, having already been informed that several more senior active duty and retired admirals were actively working behind the scenes with politicians on Capitol Hill to ensure that my promotion would never see daylight. In addition, several family members, still distraught at having lost a loved one who had been under my command, reached out to their respective senators and expressed concern that I was going to be promoted to a higher pay grade. Their loved ones had died on my watch and some still sought blame and retribution for their loss.
As the list moved forward, there was a separate addendum included that delineated very specific reasons why my name should remain on the promotion list and why I was deserving of a future in the Navy. Chief of Naval Operations Admiral Vern Clark, and Secretary of the Navy Gordon England stood firmly in support
of my promotion. Over the next two months, both Secretary of Defense Rumsfeld and the Commander in Chief, President Bush, also supported my nomination for promotion by signing off and forwarding the promotion list. By August 2002, the list arrived at the Senate for consideration during the 107th Congress.
Now, politics came into play. The chairman of the Senate Armed Services Committee (SASC), Senator John Warner (R-VA), openly questioned and challenged the Navy on its judgment in selecting me. Coincidentally, he was running for reelection that fall, and at least two Virginia Cole families had contacted him and urged him to oppose my promotion.
Senator Warner clearly understood the importance of officer promotion boards and how they directly affected the future leadership of the Navy; he had been a secretary of the Navy during the Ford administration. In short order, he put a condition on the Navy; unless the Navy removed my name from the promotion list, he would convene a full Senate Armed Service Committee hearing, reopen the investigation into the attack on USS Cole, afford the Navy the opportunity to explain its views on accountability regarding how the attack was allowed to occur, and now, also include the issue of my suitability for promotion as part of that hearing.
Before the promotion list became an issue, on May 3, 2001, Senator Warner chaired a hearing to obtain statements and information from Admiral Clark, the CNO, and General Shelton, the chairman of the Joint Chiefs of Staff. Throughout the hearing, Warner emphasized over and over the point he had already made abundantly clear in several conversations with the CNO and other Navy leaders: accountability was lacking in the Navy for not finding me responsible and punishing me for allowing the attack to occur. In his opening statement, he openly questioned whether the Navy and the Department of Defense, in not finding someone to blame for the attack, had abandoned their long-held principles of accountability, saying, “we run the risk of repeating such tragedies and sending the wrong message to our commanding officers and all their subordinates. If we are to expect commanders to demand the highest standards of themselves and those serving in their command, do we not have to ensure that institutional values and expectations are consistently and fully applied?”
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