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MARGARET WARNER: On Saturday, Admiral Thomas Fargo, commander of the Pacific Fleet, concluded his preliminary investigation into the sinking of a Japanese trawler by the U.S.S. submarine Greeneville. The next step, he decided, was to convene a formal, open court of inquiry this week, focusing on the commander of the sub and two other officers. Joining us to explain this development are George Wilson, military columnist for National Journal; Mark Thompson, national security correspondent for Time Magazine; and Eugene Fidell, a former Coast Guard lawyer, and founder and president of the National Institute of Military Justice. Welcome, gentlemen. Gene Fidell, beginning with you: How big a deal is this? How significant is it that the admiral decided to go to this court of inquiry?
EUGENE FIDELL: It’s quite a big deal, and it indicates an understanding of the high stakes that are involved both in terms of the Navy’s operating procedures and in terms of the potential implications for U.S. relations with Japan. Courts of inquiry, which are not courts at all, of course, they’re boards of investigation of quite a formal nature, are convened in the case of major casualties of one kind or another. It’s an appropriate decision to take at this time.
MARGARET WARNER: Because there were — he mentioned there were a couple of lesser steps he could have taken.
EUGENE FIDELL: Yes, a simple board of investigation or an informal investigation could have been taken, but I think one of the factors that weighed on people’s minds here was that only a court of inquiry can compel testimony from civilians. And I think that… since there were civilians in the control room on the submarine, I think that was an important consideration.
MARGARET WARNER: Why do you think, George Wilson, that admiral… or what you know about why Admiral Fargo decided to go this route, why the Navy did?
GEORGE WILSON: I think their position became indefensible. I mean, the whole world is wired up together. It was page one in Japan, and relations with Japan were in serious jeopardy. And it seemed to me that bad news doesn’t get better with age, and they decided to get it out finally.
MARGARET WARNER: So you’re saying that because this is an open proceeding, that’s why the Navy decided to go for it?
GEORGE WILSON: I think they thought that there was too many questions and that they had kind of lost the credibility contest. And this was the best way to cure the problem: To take the band-aid off all at once rather than a hair at a time.
MARGARET WARNER: How do you see, it Mark?
MARK THOMPSON: Yeah. I see it that whatever decision is reached by this board or this court of inquiry, the public will be able to reach the same decision, having witnessed much of the same evidence that the court will hear. Therefore, the darkness and the surprises that have plagued this case from the beginning, hopefully, will be a little bit disinfected by the sunshine that this proceeding will have.
MARGARET WARNER: Eugene Fidell, we actually called out to Pearl Harbor to find out if it will be televised. And we’re told at this point that there is no plan to televise it. Why is that?
EUGENE FIDELL: Well, I think that basically because they’re analogizing it for better or worse to a trial in a civilian court, a criminal court. The analogy is — there’s something to the analogy but it’s not entirely perfect because it’s not a criminal trial.
MARGARET WARNER: But is that because in federal courts they’re… not televised?
EUGENE FIDELL: Yes. You cannot have a television camera in a federal courtroom. There is an irony, however, because the highest court of the military, the court of appeals for the armed forces itself has had its oral arguments televised.
MARGARET WARNER: Now, you’ve said a couple of times what a court of inquiry isn’t. What is it in terms of what its purpose is?
EUGENE FIDELL: It has three purposes historically. One is simply to find the facts in a complicated or important matter. Another is to make a preliminary assessment as to whether the disciplinary procedures of the Uniform Code of Military Justice, which regulates courts martial should be brought into play. And a third factor — a third purpose traditionally has been possibly to vindicate reputations.
MARGARET WARNER: So, in other words, it doesn’t assign guilt or innocence, but it would suggest that someone might be tried?
EUGENE FIDELL: That is correct. It can be analogized again imperfectly to a grand jury in state or federal proceedings.
MARGARET WARNER: Now, Mark, Admiral Fargo said he wanted this inquiry to look at the totality of circumstances or everything that contributed to the collision. Obviously they want to know why the two boats collided, but what are the particular areas that they’re likely to focus on?
MARK THOMPSON: Well, basically how did they miss the boat? I mean, the key things they’re going to look at three officers who were in charge on the boat. There were sonar men and people working the periscope lower, but the officers are the ones who are in charge and have to vet what the sailors do. So they’ll want to look at that. They will also want to know if having these civilians on board in any way distracted the crew from their regular jobs. So it won’t simply be the narrow case of what they saw or what they didn’t see but rather what was the whole atmosphere in the control room and in some way did something fall through the cracks?
MARGARET WARNER: So they want to know just in terms of the procedures why neither the periscope nor the sonar picked up this fishing trawler?
MARK THOMPSON: Right. And the question becomes when you have got more than one person testifying, maybe somebody did detect something. And for some reason it wasn’t brought up. So there could be high drama in this proceeding if some, you know, E-4 had knowledge that he didn’t bring forward.
MARGARET WARNER: There have also been questions raised, George, about or criticism from the Japanese and the commander or the captain of that trawler that the sub didn’t do enough to rescue people off of it. Is that also a subject of this inquiry?
GEORGE WILSON: That will have to be looked into at some length. And the Navy’s line is that, well, a submarine is not a good rescue platform. Counter to that is well there were swimmers aboard, you could put out a ladder. So why didn’t they do more? The other rebuttal from the Navy is, well, the Coast Guard was on the way and they were all equipped to do it. But that certainly will be going to a great length, and one difference in this proceeding than in a grand jury is that you can call witnesses to defend your position. So I suspect you’ll hear a lot from sailors and sonar men and rescue swimmers. This could be a long inquiry.
MARGARET WARNER: Explain now, Gene Fidell, the status of these parties to the inquiry — is the phrase they use. They don’t call them defendants — the commanding officer, the executive officer and the lieutenant who was the officer of the deck. How are they treated? Are they treated as defendants? Do they have the same rights as defendants? How does it actually work?
EUGENE FIDELL: Well, for one thing, nobody has to give a statement. In other words, anyone who is suspected of an offense in the military is protected by the Fifth Amendment, protection against self-incrimination as well as a statute that has the same effect. So if they chose not to testify, that would be fine and that would be the end of it. They will have attorneys representing them, certainly military; they may also have civilian attorneys. And there are probably going to be moments that will be shoot ‘em up trial scenes in this hearing.
MARGARET WARNER: How adversarial is this kind of an inquiry?
EUGENE FIDELL: It can be quite adversarial. A lot of it will depend on the nature of the testimony – of conflicts that emerge. Also a lot of it will depend upon the tone that is set by the president who is the senior member, the three-star admiral, who is the head of the court of inquiry, and the other two admirals that are on the panel with him. They can set a tone that really discourages what, let’s call trial tactics, or they can set a more tolerant atmosphere that permits people to do the kinds of energetic representation that we’re accustomed to seeing.
MARGARET WARNER: Now, is there a prosecutor and then can the judges also ask questions?
EUGENE FIDELL: There is a — prosecutor is not quite the right concept. But there is an attorney who would represent — who would be the counsel for the court. That’s like the government’s representative. In addition, I would think that the members of the court itself would ask questions. This is not… they’re not sort of potted plants. They are likely to take quite an active role. One of them, as you may know, or as viewers may know, is a submariner himself; another is an aviator; a third is a surface operations type.
MARGARET WARNER: All admirals.
EUGENE FIDELL: All admirals. One three-star, two one-stars and they are likely to have technical questions. They’re likely to get into it quite heavily as opposed to playing a passive role and letting the lawyers do the driving here.
MARGARET WARNER: Now, George, you covered one of the most famous courts of inquiry, into the Pueblo incident back in ’68. What was the atmosphere like there? What was the sort of courtroom tension like?
GEORGE WILSON: That was probably the most dramatic story I ever covered because the emotions were so raw. And you had all these sailors who were just released from prison camp. And you had a skipper –
MARGARET WARNER: In North Korea.
GEORGE WILSON: In North Korea. The skipper — Lloyd Bucher — was very emotional. He had been tortured. He was thin. Every day was a dramatic revelation. The Navy was very embarrassed because the ship was in such terrible shape. The controls had been designed by an elevator company; and the ship was broken and the guns were frozen and it was a very embarrassing time in the beginning of the trial. I call it an inquiry but they were calling it a trial for the Navy. And the defense brought out all these shortcomings of the mission and of the chain of command and of the equipment. So, the defendant, so to speak, the skipper — and this will be true in both cases — can wield as many guns to his defense as he can find. In that way it’s a very dramatic confrontation. He is fighting for his reputation.
MARGARET WARNER: Mark, explain Japan’s or the Japanese special role in this. They, of course, as we’ve discussed, have been very unhappy at the secrecy that they feel the Navy has handled this and so on. They have a special role in this.
MARK THOMPSON: Well, before Admiral Fargo made his announcement Saturday night, the Japanese government was informed of what he was going to do. They are trying to bring Tokyo more into what’s happening here because the last ten days has just been another disaster. A flag officer of the Japan self-defense force has been invited as an interested party basically to sit up with the American admirals and listen and ask questions and talk to those admirals and give them his insights. So, they are trying to bring the Japanese along because they really are the place where the squeaking is coming from now. It’s not so much here in America but overseas.
MARGARET WARNER: So what does it mean that this Japanese military officer, Gene Fidell, will be an adviser? I mean, is that a normal thing? Is this unprecedented?
EUGENE FIDELL: To my knowledge, it’s unprecedented. And I think it has to be looked at very carefully because, on the one hand, the Japanese have a strong interest in the thoroughness of this investigation. On the other hand, we often hear the term “illegal command influence” or unlawful command influence. And there has to be at least some concern that a novel arrangement like this could permit factors to weigh on the decision-making process that we might not be comfortable with in terms of the fair administration of military justice.
MARGARET WARNER: Now what about the civilians, George? A lot of attention to the 16 civilians who were on board — what is their role here?
GEORGE WILSON: Well, they’ll be questioned as to what they did when. Did they interfere with the operation of the submarine at the crucial moment of collision? Now, the Navy has already confirmed that the one civilian was in the helmsman chair at the point of impact. Well, did he push the lever forward and cause the planes to go in a different direction or was the upward surge so powerful that it didn’t matter what he did? That will have to be determined. And this will be another bit of dramatic testimony, exactly what were you doing at the time of impact and why were you in the helmsman’s position? And the Navy’s rebuttal will be, well, he couldn’t have done anything one way or the other so there was no risk. But that will have to be examined and cross-examined.
MARGARET WARNER: Is this unusual?
MARK THOMPSON: Well, I mean, the problem here is that the periscope had the capability to have taped what it was seeing but it wasn’t turned on. So we’re never really going to know what happened. I think these admirals are going to have to deduce. That’s going to be the problem because if everybody says X is what happened, they’re not going to have many options for being able to counter that because there won’t be much physical evidence.
MARGARET WARNER: But there were all these monitors so that a lot of people in the control room could see what the periscope was seeing, correct?
EUGENE FIDELL: That’s exactly right. I think there’s a point here that’s worth mentioning. Here we have a very high-tech work environment. The Cold War may be over. We’re told that. But we’re still in a very high- tech naval environment. And yet the framework that we’re dealing in, this court of inquiry dates to 1786. The statute itself, the Uniform Code of Military Justice, is turning 50 this year. This case might test some of the premises underlying the military justice system. What is the role of command? How does accountability work in this kind of high-tech environment? So I think there’s going to be much for people to be pondering here as the case moves forward.
MARGARET WARNER: Final question for you, back to the role of the civilians, are they there — again making this imperfect analogy to a civilian trial — are they there just as witnesses? Are they also in any way subjects of this inquiry?
EUGENE FIDELL: No, they’re not subjects of the inquiry because they’re not subject to military law. They are there as witnesses, and I’m sure that they will… their cover has been blown in a sense that now their identities are known. I’m sure they have an interest in helping the country and the Japanese public as well get to the bottom of the case.
MARGARET WARNER: All right. Well, thank you all three very much.