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Kimmel, Short, McVay: Case Studies in Executive Authority, Law and the Individual Rights of Military Commanders

52 MILITARY LAW REVIEW [Vol. 156

KIMMEL, SHORT, MCVAY: CASE STUDIES IN EXECUTIVE AUTHORITY, LAW AND THE INDIVIDUAL RIGHTS OF MILITARY COMMANDERS

COMMANDER ROGER D. SCOTT1

I. Introduction

Two sets of controversial personnel actions frame U.S. involvement in the Second World War: the relief from command of Admiral Husband

E. Kimmel and Lieutenant General Walter C. Short at Pearl Harbor, and the court-martial of Captain Charles B. McVay III, Commanding Officer of U.S.S. Indianapolis, sunk by a Japanese submarine in July 1945. Vigorous controversy concerning the treatment of these commanders has continued to this day.

Kimmel and Short were the senior Navy and Army commanders at Pearl Harbor at the time of the Japanese attack on 7 December 1941. The Secretaries of the War and Navy Departments relieved both commanders within days of the attack. The relieved commanders reverted, by operation of law, to their regular grades of Rear Admiral and Major General. After reviewing a preliminary report on the damage at Pearl Harbor, prepared by Secretary of the Navy Frank Knox, President Roosevelt appointed an investigative commission headed by Justice Owen Roberts of the U.S. Supreme Court. The Roberts Commission found the senior Navy and Army commanders at Pearl Harbor culpable for the lack of preparedness of forces assigned to them through their failure to coordinate appropriately with each other in the defense of Pearl Harbor. Extensive correspondence and debate on the propriety of courts-martial followed. Both Kimmel and

Short retired voluntarily in 1942, in their regular grades of Rear Admiral and Major General. A Navy Court of Inquiry and an Army investigative board recommended against court-martial charges, but endorsements of the service secretaries on these investigations continued to find fault with the judgment of Kimmel and Short. Kimmel agitated for a court-martial, which Secretary Forrestal finally offered him, but Kimmel then declined it upon advice of counsel. A congressional investigation into Pearl Harbor conducted after the war, the record of which fills forty bound volumes, failed to vindicate Kimmel and Short; rather, it found Kimmel and Short culpable for multiple grave errors of judgment, including failure to use resources at their disposal effectively, and failure to coordinate with each other in their respective capacities.

Laws passed in 1947 and 1948 provided for advancement of certain officers on the retired list. Rear Admiral Kimmel and Major General Short were eligible for such advancement, but neither officer received the necessary endorsements. Advocates for Kimmel and Short point to failures in Washington as contributory to the defeat at Pearl Harbor, and assert that failure to reveal and punish these failures entitles Kimmel and Short to posthumous advancement to their temporary grades of Admiral and Lieutenant General as a remedy for government discrimination against them.

Captain Charles B. McVay III was Commanding Officer of U.S.S. Indianapolis on 30 July 1945, when a Japanese submarine sank her, causing great loss of life. After delivering atomic bomb components from San Francisco to Tinian, Indianapolis sailed from Guam for Leyte, Philippines, on 28 July 1945. The intelligence provided to Indianapolis before her departure included reports of three possible submarine detections along her route. In transit, Indianapolis received a series of additional messages and monitored live radio traffic indicating real-time interdiction of a Japanese submarine along the route to Leyte. Fleet doctrine required ships to employ anti-submarine evasive maneuvering (zigzagging) in submarine waters during good visibility. On the evening of 29 July, at a time when visibility was poor, Captain McVay told the Officer of the Deck that he could cease zigzagging at twilight. The ship ceased zigzagging at approximately 2000, but visibility improved later that night and Indianapolis did not resume zigzagging. Struck by at least two torpedoes near midnight, Indianapolis sank within fifteen minutes. Approximately 400 men went down with the ship, and 800 escaped into the water. Over the next four

days, adrift on the ocean, 480 of the survivors were preyed upon by sharks or succumbed to their wounds or the elements.

The Commander in Chief, Pacific Fleet, Admiral Nimitz, convened a Court of Inquiry, which recommended the referral of charges against Captain McVay. The Chief of Naval Operations, Admiral King, concurred. After additional investigation and advice, the Secretary of the Navy referred charges for negligently hazarding a vessel (failure to zigzag) and dereliction of duty (delay in ordering abandon ship). A court-martial conducted at the Washington Navy Yard convicted Captain McVay of hazarding a vessel, and acquitted him of the dereliction charge. Consistent with the court-martial recommendation of clemency, Secretary Forrestal set aside all punishment. Captain McVay continu...

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