by Peter Nelson
“It’s my understanding,” Smith said, “that this information was not available at the time of the court-martial and was not part of the court-martial, is that correct?”
“That is correct,” Hunter said.
“Part of the testimony that came out in the trial, correct me if I’m wrong, was that there was no SOS sent. Is that correct?” Senator Smith asked. “That nothing was received from McVay?”
“That is correct,” Hunter Scott answered.
“That’s pretty dramatic new information,” Senator Smith said.
Hunter felt satisfied with how the proceedings were going so far, but he knew that the other side had yet to speak. Senator Smith turned to the navy panel and asked them to give their prepared statements. Dr. Dudley admitted that the Indianapolis had been deprived of the intelligence available at the time. He stated that the transmission and receipt of SOS messages remained a matter of controversy. Rear Admiral Hutson, the navy’s chief legal officer, spoke to the legality of the McVay court-martial, and how a court of inquiry had placed “serious blame” on Captain McVay for his failure to zigzag. McVay had been appointed counsel and was given the opportunity to examine witnesses and present evidence, ably represented by a navy captain with two lieutenants as assistant defense counsel, Hutson said. He referred to the remitted sentence. “I personally read the entire record of trial,” Hutson closed, “and I conclude that the proceedings were fair and provided full due process of law. Admiral McVay had every right applicable to trial by court-martial. The record clearly indicates that Admiral McVay’s counsel performed his duties well.”
Hutson’s final words expressed the gist of the navy’s position on the matter.
“There is a popular misconception,” Hutson said, “that Captain McVay was brought to trial for losing his ship in combat. In fact, the loss of the ship was not an element of either of the two charges referred against Captain McVay. The loss of the ship was legally irrelevant to the proof of the prosecution’s case.”
Admiral Pilling gave the final statement and reiterated the navy’s position. He was a former destroyer commander. He’d been a member of the National Security Council and a fellow at the Brookings Institution, and had received a Defense Distinguished Service Medal, among many other awards. Trim and gray-haired, scholarly in manner, he spoke precisely and forthrightly. He explained the principles of authority and accountability in the navy, stating that a commanding officer has full authority and full accountability for his ship and crew, and that there is no parallel for the principle of accountability in the command of a ship, either in civilian life or in other parts of the military.
“Captain McVay understood these concepts perfectly. . . . Such a disaster as that of the USS Indianapolis would be investigated, and over the course of the fifty-four years since it happened, it has been reexamined. Several analyses by navy experts and independent analyses have all pronounced the proceedings of the court-martial as fair. I personally am confident that the court-martial was legal and fair. It is an important distinction that the charge and conviction did not attribute the loss of the Indianapolis to McVay’s actions. While the ship’s loss undeniably brought the harsh spotlight of accountability on the commanding officer’s actions, the court-martial did not find that those actions caused the loss of the ship. . . . Captain McVay had absolute accountability for his decisions and actions. When those decisions were examined by court-martial of experienced officers, Captain McVay was found guilty of an error in professional judgment. I firmly believe that his trial was fair.”
Senator Smith immediately picked up on the two feeblest parts of the navy’s argument. First, a law is not fair if it’s unequally applied—you can put together rock-solid evidence to prove and convict a man of jaywalking, but if you have the same amount of rock-solid evidence against a second man, but choose not to enforce the law against him, then the conviction of the first man is unfair, no matter how many lawyers he has or how legally conducted the trial was. Second, the contention that the loss of the ship had nothing to do with the conviction was, simply, preposterous doublespeak, and Smith wanted to point out that it was. Hunter sat back and listened, gratified. At last, somebody was asking the navy the questions that needed to be asked. He felt sorry for Admiral Pilling because he seemed like someone being quizzed in front of a class who wished he’d had a few more days to study.
“In reading your statement, Admiral Pilling,” Smith said, sighing, his hands first touching his eyebrows and then flaring upward. “It’s weak.” Admiral Pilling flinched slightly, then looked at his papers. “Not the statement, but the court-martial. Let me just recap here. There were hundreds of American ships sunk out there in the water. Nobody was court-martialed for the sinking of a ship other than Captain McVay. You had Admiral Nimitz and Admiral Spruance both recommend no on the court-martial. They were the superior officers in the region. Based on your own testimony,” Smith said, his voice rising, “you’re saying it was a judgment that they court-martialed him for. Not to zigzag. Not for the sinking of the ship. You’ve got the Japanese commander of the submarine that sunk the ship testify at the court-martial, that ‘I popped up with my periscope, and I sunk him, zigzagging would not have made a difference.’ So let me ask you a point-blank direct question.” Smith’s hands chopped the air with each syllable. “Was McVay—to blame—for the sinking—the sinking—of the USS Indianapolis? Was he? Yes or no?”
Admiral Pilling leaned to the microphone. “As I said in my statement, sir, he was not tried for the sinking.”
“That’s what I understand,” Smith said. “So if he was not tried and court-martialed for the sinking of the ship, then he was court-martialed for a judgment that he made, not to zigzag. Even though we had testimony saying that it was questionable. It was his prerogative, we understand that. At best we can say the weather was clear as a bell. At worst we can say it wasn’t clear. We had the officer on duty saying he couldn’t see to the other end of the ship.”
Smith was on a roll now, his speech quickening.
“So we now are in a situation where no other captain had been court-martialed. I mean, did we go through and review, whatever—seven hundred, I don’t know what the number was, but if it was seven hundred ships that were sunk—did we look at every single one of those sinkings, and look at the judgment of those captains prior to that? Did we analyze every one of those and say, ‘Well, he didn’t zigzag, he didn’t zag that, he didn’t know this, he didn’t know that?’ I don’t think we did. . . . It’s to me bizarre,” Smith said, folding his hands in toward his heart, “that one individual would be court-martialed on a judgment.” His brow furrowed, Smith asked, “Would any of you men wearing the uniform like to be court-martialed on an error in judgment? That had no direct impact on the loss of lives? How would you feel if that were your son, or you?”
Admiral Pilling pointed out that although Admiral Nimitz said that McVay shouldn’t go to court-martial, Nimitz did recommend that McVay should receive a letter of reprimand for his error in judgment.
“That’s a big difference,” Smith said, using an index finger to keep the beat. “Let’s face it. Big difference between a letter of reprimand and a court-martial. And you said that the navy had a number of weaknesses. That’s the term you used.”
“Right,” Admiral Pilling said.
“In the way they noted and tracked ships, and weaknesses in survival equipment on board. But it’s interesting that when the navy talks about their mistakes, they’re not mistakes, they’re weaknesses. When we talk about possible mistakes by Captain McVay, it’s a court-martial offense.”
Smith asked Hutson if there were any other court-martials—if the commodore who allegedly received the SOS was court-martialed. Hutson replied that no, there were no other court-martials.
“I think we’re looking at a court-martial which is very technical in wording,” Smith said. “Captain McVay was court-martialed for an error in judgment. There’s a technical point here, that Captain McV
ay was not culpable for the loss of the Indianapolis and its crew. Do you agree with that statement, all of you?”
“What I said was that the court did not find him culpable,” Admiral Pilling replied.
“Right,” Smith said, leaning forward and seeming to grow larger. “But the perception is that they did.”
“That’s true,” Senator Warner added.
“The perception,” Smith continued, “is that the man was court-martialed because the ship went down and twelve hundred sailors went into the water. That’s clearly the perception. And frankly, I think you have to ask yourself, honestly, if the incident had not occurred, and the ship had not sunk, and Captain McVay had entered port into Leyte, would he have been court-martialed?”
“We wouldn’t know,” Pilling said weakly.
“I think you can conclude,” Smith pressed, “that it would be pretty ridiculous to single out a captain, with a reputation that he had, and court-martial him if that ship went on to port safely. . . . How can you say that he didn’t cause the sinking of the ship, and then say that it’s morally sustainable to court-martial him? Can you say that it was not unjust humiliation and damage to his naval career if he did not cause the sinking of the ship? You know full well that he would not have been court-martialed if the ship had not been sunk. So to draw these kinds of silly technical points in the court-martial, if everybody in America today and everybody in America then—and by the way, the American public was not notified for two or three weeks after the sinking that it happened, including the families—we all know what the perception is.” Smith shook his head incredulously. “I’ve looked at cases like this before, and I’ve come down on the side of the navy many times, as the navy people here know. Guys, I’m trying to be objective, but this simply is not right. It’s just not right.”
Admiral Pilling tried to respond by repeating that the penalties imposed on Captain McVay were trivial. Senator Warner stopped him short, indicating that by the presence of the survivors in the hearing room, and their testimony, and their efforts over the years, something more than trivial was going on. Smith held up two closed fists, opened them wide and made his point again.
“There is an inconsistency here. If you’re going to use the principles of accountability, then you have to apply them to all officers who are involved. You did not do that. What I’m saying to you is,” Smith said, punctuating with a thumb and forefinger, “if you’re going to do this to one man who was involved in this incident, you’ve got to do it to everybody. And you didn’t do that, which is what makes the court-martial, in my opinion, morally wrong.”
“That’s a key question,” Senator Warner agreed.
Smith repeated that there would have been no trial had the Indianapolis sailed safely into Leyte.
“Suppose all eleven hundred ninety-seven men came into port alive. The ship is in good shape. No four days of shark attacks, no exposure to weather and the water. No fires. No botched search. No botched recovery effort. No botched withholding of evidence. No ignoring of enemy message traffic. And upon arrival of the crew, and the ship, one of these men, or one of their colleagues, made a request to the navy that said, Captain McVay did not zigzag. . . .”
Smith paused for a moment.
“You’re telling me he would have been court-martialed?”
Muffled laughter rose.
“There is no way. And you know it. And if he wasn’t gonna be court-martialed then, you made a mistake. And if you tell me that he caused the deaths of those men, then okay, I might disagree with you, but at least you can say the court-martial was justified, but you can’t court-martial somebody for a judgment, and then not court-martial everybody else who made errors in judgment, that cost the lives of more men. And you didn’t do it.” Smith turned his hands palms up. “That’s why there’s an injustice here. We should change injustices. Not rewrite history, but change injustices. The man wore the uniform, just like you wore it. And he wore it proudly. And he was one hell of an officer. And he would not have been given that bomb to take to the Enola Gay if he wasn’t. And I think he endured punishment that none of us could ever understand, probably, and he paid the ultimate price for it. And we have a chance that he’ll never know about, to make it right. Not to overturn the court-martial, just to simply say a mistake was made.”
After Smith finished speaking, Senator Warner confessed that the new evidence and the testimony of Hunter Scott and of the survivors had changed his mind, “righted his course,” his use of a navy term. He was on the side of the Indianapolis now.
Chapter Fourteen
The Exoneration
October 12, 2000, to July 11, 2001
Let them in, Peter, they are very tired;
Give them the couches where the angels sleep.
Let them wake whole again to new dawns fired
With sun not war. And may their peace be deep.
Remember where the broken bodies lie . . . And give them things they like. Let them make noise.
God knows how young they were to have to die!
Give swing bands, not gold harps, to these our boys.
Let them love, Peter,—they have had no time—
Girls sweet as meadow wind with flowering hair . . .
They should have trees and bird songs, hills to climb—
The taste of summer in a ripened pear. Tell them
How they are missed. Say not to fear;
It’s going to be all right with us down here.
Elma Dean, “Letter to St. Peter”
In a distant foreign port, a United States destroyer rested in a harbor. On deck, sailors went about their business, cleaning what needed to be cleaned, stowing away what needed to be stowed away, reading manuals, doing paperwork, talking about how they hoped they’d be home for Thanksgiving, and whether or not there was going to be a subway series between the Yankees and the Mets. Below, skipping across a calm sea, two men approached in a small rubber Zodiac, possibly a delivery of some sort, judging by the boxes visible on the floor of the motorized raft. When the Zodiac reached the side of the destroyer, there was a massive explosion, obliterating the men in the Zodiac and leaving a hole in the hull of the ship forty feet across. On board, seventeen American sailors were dead and thirty-nine were injured. The ship was the USS Cole, and the port was Aden, Yemen. The date was October 12, 2000.
That same day in Washington, D.C., the Senate passed Joint Resolution 26. House Joint Resolution 48 had been passed earlier in the week. The resolution was attached to a defense appropriations bill, and in its final language it read, after a brief description of the facts of the case, that it was the sense of Congress that:
(1) in light of the remission by the Secretary of the Navy of the sentence of the court-martial and the restoration of Captain McVay to active duty by the Chief of Naval Operations, Fleet Admiral Chester Nimitz, that the American people should now recognize Captain McVay’s lack of culpability for the tragic loss of the USS Indianapolis and the lives of the men who died as a result of the sinking of that vessel; and
(2) in light of the fact that certain exculpatory information was not available to the court-martial board and that Captain McVay’s conviction resulted therefrom, that Captain McVay’s military record should now reflect that he is exonerated for the loss of the USS Indianapolis and so many of her crew.
In January of 2001, Admiral Robert J. Natter, in charge of investigating the bombing of the USS Cole, ruled that Cole skipper Commander Kirk S. Lippold could have done sixty-two things to protect his ship from terrorist attacks but only implemented thirty-two of those precautions. All the same, Natter recommended that no one be punished because Lippold “acted correctly, given the information that was made available to him.” According to Admiral Vernon Clark, the chief of naval operations, “The investigation clearly shows that the commanding officer of the Cole did not have the specific intelligence, focused training, appropriate equipment or on-scene security support to effectively prevent or deter such a determined,
planned assault on his ship. In short, the system—all of us—did not equip this skipper for success in the environment he encountered in Aden harbor that fateful day.” In the aftermath, the chairman of the Joint Chiefs of Staff himself, General Henry Shelton, promised to look into why “the Cole was sent alone into the harbor of a Middle Eastern nation known as the center of terrorist activity at a time when the region was in crisis.”
This may be part of the legacy of Hunter Scott’s efforts to clear Captain McVay’s record, the notion that accountability extends beyond the captain of a ship to include his immediate superiors.
When the September 1999 Senate Armed Services Committee hearing was over, panelists on the Indianapolis side stood and shook hands and hugged one another. Hunter had a feeling of triumph, even though he was disappointed that the navy hadn’t admitted they’d made a mistake despite the overwhelming evidence. The important thing was that they’d persuaded Senator Warner. The survivors posed for a group photograph, with Hunter and Senator Smith in the middle. Smith congratulated everyone on a job well done. Jack Miner had tears in his eyes, and told Hunter that until he’d seen the letters Hunter had compiled, he’d never known anyone had heard the SOS he’d helped send. His tears came from remembering the heroism of the men in the water, and of guys like Chief Woods, sending his SOS until the very last minute, telling young sailors like Miner who were too scared to think straight that they needed to get their life jackets on and abandon ship—taking care of others, without regard to his own safety.