Front Burner

by Kirk S. Lippold

  The attack on USS Indianapolis was a closing salvo to World War II. The attack on USS Cole was the first purely military strike by al Qaeda and arguably the opening salvo to the ongoing Global War on Terror. No other military CO has had a promotion halted because al Qaeda fired on their unit.

  During the course of the hearing into Captain McVay’s court-martial, Senator Warner made a profound statement:Now I’ve had a lifetime association, I’m privileged, with the United States Navy. And when I first went to the Pentagon in ’69, the four stars then were the Captain McVays and the commanders of the ships, and they had quite properly been advanced. But in spending endless hours enjoying their stories of the past, and we saw a transition of the Navy from the autocratic, what we call the politics—it was totally rigid—of that era, to the more modern Navy that we have today.

  Accountability at sea is just absolutely infallible. That’s important. . . . But there could have been an element of politics, and that’s where my research is going to continue in this case. I must say that I’ve watched with some concern as my dear colleague [Senator Bob Smith (R-NH)] has pushed this issue. But this morning, my ship was righted a little bit back on the very objective, even keel as I look at this case, and I intend to myself some further inquiry.10

  In the end, Senator Warner supported Defense Authorization Act resolution language expressing a Sense of Congress that Captain McVay’s record should reflect that he was “exonerated for the loss of the USS Indianapolis .” President Clinton signed the resolution. This was a stunning reversal of opinion from a senator who had steadfastly supported the Navy’s leadership on matters of command responsibility and accountability. Learning of the senator’s change of heart in 1999, I hoped he would see the similarities with my case in 2004 and allow my promotion to move forward.

  At the beginning of 2005, I still had the guaranteed support of Admiral Vern Clark, but his term as CNO was scheduled to end that summer. I learned that in April 2005, Admiral Clark met with Senator Warner once again to press the issue of my promotion. It was a contentious meeting, with Admiral Clark pressing Senator Warner with specific, detailed facts surrounding my accountability and suitability for promotion, and urging him to allow it to go forward to the Senate for constitutional advice and consent. Reportedly, Senator Warner was so incensed by this continued pressure to relent that he angrily threatened once again to hold a full hearing into the attack on Cole. Days afterwards, I was informed that Admiral Clark would not press my promotion issue any further. If I wanted resolution, I would have to wait until after the change of command and approach the incoming CNO, Admiral Michael Mullen, about the prospect of having him continue support for my promotion.

  I did not know with certainty where Admiral Mullen stood, but I was told not to get my hopes up. Following the CNO change of command on July 22, 2005, I waited until August to request a meeting with him. Normally, a request to see a superior in the chain of command is granted within days; in this case it took almost two months. In a short meeting on October 13, Admiral Mullen, who had a very close relationship with Senator Warner, bluntly informed me that he did not support my promotion, thought it was a mistake that I had ever been selected for promotion, and would recommend to the secretary of the Navy that my promotion not be forwarded to the Senate. He was unwilling to discuss the matter in any detail, and I was ushered quickly out of his office.

  It was almost too much to grasp that Admiral Mullen thought he knew better than the previous CNO, secretary of the Navy, secretary of defense, and President. I was taken aback by the sudden reversal of support but rather than give up, decided to wait and see what happened with my paperwork. After all, it was not the CNO’s promotion board. Promotion boards are under the purview and control of the secretary of the Navy.

  When the entire issue of my promotion started, Secretary of the Navy Gordon England had supported my promotion nomination twice, in 2002 and again in 2004. In May 2005, he was nominated to be the deputy secretary of defense and was acting in that capacity when, the day after my meeting with Admiral Mullen, I requested to meet with him and one week later, sat in his office to review his support for my case.

  When I walked in, he smiled, motioned me to a chair next to him, and apologized as he wrapped up signing some letters. He asked if I knew what he was doing, and of course I answered, “No, sir.” He chuckled and said he was signing the November birthday cards for members of Congress, “You have to make them feel good, you know.”

  Immediately after signing the last card, he sat back in his chair and launched into the problem, which centered on Senator Warner and his continued threat to hold hearings into Cole and my promotion. Matter-of-factly, he said the Department of Defense and the Navy were unwilling to go through that sort of public exposure in pressing support for my promotion. He was aware of Admiral Mullen’s feelings on the matter but demurred as to whether he would press his staunch support for me onto whoever was appointed to be the next secretary of the Navy, the position having been vacant since he became the Deputy. I walked through the talking points on why my promotion should continue to be supported but it was clear that until a new secretary of the Navy was in office, no one would be willing to once again move my nomination forward to the Senate. My wait would continue for the foreseeable future.

  Incredibly, an event related at this point only to the September 11 attacks intruded in the summer of 2005 into the growing body of evidence surrounding the attack on Cole. A classified data-mining program between the U.S. Special Operations Command and the Defense Intelligence Agency had been created in 1999 as part of an information operations campaign plan against transnational terrorism. The program, called Able Danger, was specifically designed to ascertain whether data-mining techniques and open source material from commercial business interests and front organizations were effective tools in determining terrorist activities and plans. The program had recently received a great deal of media scrutiny and attention because of assertions that several people associated with it had, in fact, detected the key September 11 planner and hijacker who flew one of the planes into the World Trade Center, Mohammed Atta, as early as January 2000 but that the intelligence community had failed to take appropriate action to investigate their findings. Even the 9/11 Commission investigated their claims, which remained unproven.

  What caught my attention was that the program had also detected an expanding body of evidence of al Qaeda’s presence in Yemen, specifically the port of Aden. I was quietly approached by a member of the team and, within the constraints of the program’s classification guidelines and need to know, I was briefed on an important but unknown point of interest. The Able Danger team had been conducting their operations until they reached a point where a routine update of their progress was in order, and they had scheduled a meeting in early October of 2000—as Cole was on the way to Aden—to brief the Commander of the Special Operations Command, General Peter J. Schoomaker, U.S. Army. Rarely is the four-star commander of a combatant command briefed on the status of an experimental program. Something in Able Danger had clearly triggered this high-level meeting criterion. In the meeting, a J-2 Special Operations Command Intelligence Directorate analyst whose expertise was Yemen pointedly expressed his concern about the breadth and scope of the al Qaeda presence throughout Yemen. In fact, his concern was so great that the issue of Yemen was moved up to become the second item discussed as part of this lengthy briefing. While not specifically commenting on the port of Aden, he reiterated again and again to General Schoomaker in the briefing that with al Qaeda already known to have attacked two embassies in the region, there was a growing need for concern and possibly action to prevent an attack within Yemen.

  At the end of the meeting, no action was taken, no analysis of the dangers to U.S. forces working in the country or conducting a routine visit was made, and no change to the threat posture was transmitted within either the Department of Defense or the intelligence communities because of the classified nature of the Able Danger
program. The meeting took place on October 10, 2000, two days before the attack. It was yet another piece in the puzzle of how Cole had been put into harm’s way and the intelligence community had again failed to detect and analyze critical information that, if shared, might have given the crew and me the warning to avoid disaster. Already, the members of the Able Danger team who talked with me had been ordered into silence by the Department of Defense over concerns related to the possible detection of Mohammed Atta; the team member informed me there was no way they would be allowed to share what they had known about al Qaeda operating in Yemen before the terrorists tried to sink Cole.

  In December 2006, yet another unrelated, disturbing development occurred. Several months after the attack on Cole and the return of the crew to Norfolk, the Naval Historical Center activated their Naval Reserve Combat Documentation Detachment 206 to interview crew members to capture, for the sake of the Navy’s historical files, the actions of the crew following the attack on Cole. It was a massive undertaking, principally led by two very compassionate and professional officers, Captain Michael McDaniel and Captain Gary Hall. In late spring 2001, the detachment conducted numerous interviews with the crew, including me. Prior to each interview, the subjects were encouraged to be as open and forthright as possible in an effort to capture the powerful emotions and actions of that horrific time in our lives. Each of us was assured that the Navy would keep the interviews in the strictest of confidence, for official use only, and our most private thoughts would never be shared with the general public without our express permission. Similar interviews had occurred with prisoners of war from the Vietnam conflict and their records had likewise been sealed from release to the public.

  Now the Department of the Navy Privacy Act/Freedom of Information Action office under the Chief of Naval Operations informed me that they were acting on a request by an individual to give them access to transcripts of these interviews. After speaking with several other crew members, who were equally mortified and distraught at the prospect of having their innermost feelings and emotions publicly exposed, I took immediate action to have this request disapproved. At first I thought it would be a straightforward disapproval, but was stunned to learn that the promise of confidentiality conveyed to us by the Naval Historical Center had never undergone any legal review, and while given to us with the best of intentions, was not considered binding against a Freedom of Information Act request.

  It appeared as if the Navy was conspiring against the crew of Cole. The impact on the individual was considered irrelevant, and the Navy seemed uncaring as the legal machinations ground through the approval process. Luckily, when I had been the secretary of the Navy’s administrative aide, I worked very closely with the head of the Navy Freedom of Information Action office, Doris Lama. An absolutely wonderful person, she was as concerned over this request as me. While the request was eventually denied, it was because of Doris working with her counterpart at the Federal Bureau of Investigation, who, very concerned that there was still an active criminal investigation open on the attack on Cole, ruled there should be no possibility for evidence or potential witness statements to be compromised by public disclosure. It was a close call, but thankfully, Doris proved that at the heart of the Navy, the crew and I had a lot of underlying support.

  For me, however, the wait for a final decision on my promotion continued. It was not until the 109th Congress and January 2006 that a new secretary of the Navy, Donald Winter, was sworn into office. Still, I waited. By midyear, the promotion package had not even made it from the secretary’s legal advisor to his desk. It was time, once again, to take matters into my own hands and drive my future. According to Navy regulations, anyone may submit a request to meet with their superiors in their chain of command on matters they consider unresolved at a lower level. In my case, since Admiral Mullen had done nothing regarding my promotion, on May 22, 2006, I requested a meeting with Secretary Winter.

  The reaction was swift and unexpected. Within a day of my request, Vice Admiral Morgan called me into his office and, while we might have been shipmates and friends for years, he harshly turned on me: “Kirk, you are never going to be promoted to captain and it’s time you accept your fate. If you go through with this request to meet with the secretary, the Navy will turn on you and you will find yourself isolated and alone. Do you understand what I am telling you?”

  I literally sat there for a few seconds with my mouth hanging open as my throat tightened in disbelief that one of my most trusted mentors in the Navy was abandoning me. “Admiral, I have stood by my Navy throughout this entire event, and I deserve to have my promotion submitted to the Senate. Please approve my request to see the secretary,” I answered. Nothing more needed to be said and within seconds, I was dismissed. But at least my request was grudgingly approved.

  On May 31, I walked into Secretary Winter’s office. The meeting was scheduled for thirty minutes and started off awkwardly when the secretary announced to me that he was unfamiliar with the background about the attack on Cole or my case and would I please take some time to give him that necessary information. Irritated, I glanced over at his legal advisor, wondering why he had failed to properly prepare his boss for our meeting; now I would have to waste precious minutes not talking about my promotion but rather talking about the most critical event to happen to a Navy ship since the Israeli attack on the USS Liberty in 1967 and the North Korean seizure of USS Pueblo in 1968.

  Quickly I summarized the events of October 12 and the aftermath of our time in port. I covered the investigation, its findings, and the fact that I had never wavered from the principle of accountability—I was the sole accountable officer for the actions of my crew—but there was also a fundamental difference between accountability and blame. I felt that in the long view of history, I was being singled out for punishment in a war that the nation had tragically ignored for years, until the attack on September 11. I was the only officer, in any service, attacked by al Qaeda, who was now being punished for it. I requested his support for my promotion and asked that it be forwarded to the Senate for its consideration. He said he would take my request under consideration, thanked me for my time, and showed me the door out. I knew I had just wasted thirty minutes of my life.

  A week later, I was informed that the secretary was unwilling to forward my promotion up the chain of command as long as Senator Warner continued to threaten the Navy with hearings. I was at the end of my professional rope. I had given the military and civilian leadership of the Navy and Department of Defense over four years to resolve my case, and was no further along in dealing with Senator Warner’s steadfast desire to see someone punished for the attack than I had been in 2002. I exercised my last resort and on June 27, wrote a letter requesting a meeting with Senator Warner. On August 1, I found myself at the reception desk for the staff of the Senate Armed Services Committee.

  I had chosen not to officially inform that Navy of this meeting, but knew they were aware of it nonetheless. As a precaution, even though I had gone into work that day, I took a day of leave to eliminate even the hint of a possibility of being accused of unethical behavior by taking time from work to take care of what the Navy might consider a personal matter. A retired Navy JAG lawyer, Captain Dick Walsh, met me just prior to the meeting. He was part of the Armed Services Committee’s professional staff and handled personnel issues. He told me the senator was running late as we walked into a hearing room. As I was ushered in, the spectacle before me was almost comical.

  Set up in the room was a large table with three chairs on one side and as many as six on the other. Microphones covered the table pointing in both directions, with wires running down the length of the table and across the floor to where audio equipment and a computer were set up and a woman sat poised, ready to begin her work. As we walked in, Captain Walsh seriously intoned, “Kirk, where is your lawyer and public affairs person? You aren’t here by yourself, are you?” I knew this was the beginning of an attempt at intimidation. In my min
d, I struggled not to laugh out loud, “Sir, I’m here by myself and don’t need a lawyer or a public affairs type. If I can’t articulate to the senator all by myself why I should be promoted to captain, then I probably shouldn’t be a captain. No, sir, I’m here alone and will speak on my own behalf.”

  Clearly, this was not the answer he was expecting, but he grandiosely swept his arm toward the tableful of microphones and chairs and stated, with all the seriousness he could muster, “I hope you don’t mind this meeting being recorded and transcribed. The senator considers it so important that he felt it best to tape it and have it for the record.” This was clearly serious business, but again the humor in their idea of what constituted intimidation almost leaked out as I took this next act in the play in stride and said, “Sir, I think this is a great idea! I welcome the opportunity to have this meeting recorded. I think it’s important to capture what we say here today for the sake of history. It’s important that what the senator decides be accurately portrayed to the public. So, no, I don’t mind at all, it being recorded. May I have a copy when you finish getting it transcribed?” Clearly, he did not expect me to gracefully embrace these actions, and stammered, “Of course. Of course we’ll get you a copy.”

  Senator Warner arrived forty-six minutes late, and the meeting began. I sat on one side of the table, alone, directly across from the senator. On his side of the table, he came well stocked with staff members: Charles S. Abell, Staff Director; Scott W. Stucky, General Counsel; and Richard “Dick” F. Walsh, JAGC, USN (Ret), Counsel. Quickly, I recounted the series of events that led up to Cole refueling in Aden, the attack and subsequent investigations, and then got to the point of the meeting, the status of my promotion nomination.