Commander Scott Waddle to Retire

MARGARET WARNER:

The skipper of the U.S. submarine that sank a Japanese fishing vessel in February was forced into retirement yesterday after the Pacific Fleet's top admiral found him guilty of dereliction and negligence. Nine Japanese died in the collision.

Admiral Thomas Fargo said the collision happened because crewmembers on the U.S.S. Greeneville didn't conduct an adequate sonar and periscope search of the area before surfacing, and didn't communicate among each other about what they were detecting. Fargo held Commander Scott Waddle responsible for both failures, but he declined to refer the case for a court martial.

Waddle will retire later this year with a full pension. At a news conference, Fargo was asked if the punishment amounted to a slap on the wrist.

ADMIRAL THOMAS FARGO:

I think, first off, you have to look at our traditions and our service. Commander Waddle has been stripped of his command, and his career effectively terminated. For a Naval officer that served for 20 years to his country, I would tell you that this is absolutely devastating. He has paid dearly. As I expressed earlier, our profound regrets to the Japanese families. I've lived in Japan. I understand what they're going through, but no process, none whatsoever, will fully compensate for the loss of life.

REPORTER:

From the manual for courts martial, all that's necessary to charge for negligent homicide is that someone died as a result of simple negligent behavior, not exhibiting a degree of care of safety, that an otherwise careful person would have exercised, and no intent is necessary. Why does this case not live up to charging for negligent homicide?

ADMIRAL THOMAS FARGO:

Well, obviously I charged Commander Waddle under two very serious counts of the Uniform Code of Military Justice. It was in my judgment that further charges were not necessary, and that we could achieve proper accountability without that.

REPORTER:

Admiral, some critics have charged that the court of inquiry sort of swept under the rug the issue of the distinguished visitors program by not calling any of the 16 civilians, and by not looking more in depth at the whole program, and how it's entered into this. Do you think that's true?

ADMIRAL THOMAS FARGO:

The report is very clear that the civilians on board did not cause, is not directly the cause of this collision. You know, we've had a distinguished visitors program, we've been embarking civilians in the Navy for 50 years now, and I think it's important. It's important to our nation. We can do this safely, and will do it safely. And it would be a mistake to build a wall between the American citizens, the mothers and fathers of our sailors, and its Navy.

MARGARET WARNER:

In Japan, a spokesman for the Prime Minister said the U.S. government has now acknowledged its responsibility for the collision, and that Tokyo would not press for harsher action. But relatives of the victims and local politicians told reporters the punishment was too light.

MARGARET WARNER:

For more on the Navy's decision, we turn to John Hutson, a retired rear admiral who served as a judge advocate general in the U.S. Navy– he is now dean of the Franklin Pierce Law Center in New Hampshire– and military law expert Eugene Fidell, a former Coast Guard lawyer, and now president of the National Institute of Military justice. Welcome, gentlemen.

Admiral Hutson, flesh out a little bit more for us, admiral, what led to Admiral Fargo's decision. What did he find that Commander Waddle did or didn't do that led to this collision?

REAR ADM. JOHN HUTSON (Ret.):

Well, I think first of all, first and foremost, Commander Waddle failed to see the Japanese vessel when he looked through the periscope. I think that is sort of an example of the kinds of mistakes that Commander Waddle made. He tried to go too fast. He went through all the proper steps but tried to expedite them too much.

Admiral Fargo said– and I agree with him– that commander Waddle seemed to have created a false sense of urgency on board the ship. I think that we saw the results of that. He made a classic error in assuming that everything was okay and he was just confirming that when, in fact, he should have assumed exactly the opposite.

MARGARET WARNER:

The sense of urgency that he created he was trying to get back to meet the tug to get the visitors off, is that right?

REAR ADM. JOHN HUTSON (Ret.):

That's my understanding.

MARGARET WARNER:

Eugene Fidell, was this the right decision — in other words, a career-ending reprimand but not a court martial?

EUGENE FIDELL:

Well, American policy for military justice has to be followed over the years and it's trended towards using non-judicial punishment rather than courts martial for resolving what I'll call crimes of command. So it's consistent with actions that the Navy has taken in other cases. That may or may not be satisfactory either to the Japanese or to observers of the event.

MARGARET WARNER:

All right, but what about to you? Do you think this was the right decision?

EUGENE FIDELL:

I have some qualms about it because I think that a public trial at which the crucible of the adversary system could have been brought to bear would have served important interests, interests in fostering confidence in the fair administration of justice. And if you substitute for the trial model with which we're all familiar instead of a proceeding behind closed doors, which is what the Admiral's Mast is, you have paid a penalty there. I think that's unfortunate.

MARGARET WARNER:

Admiral, what do you think of that?

REAR ADM. JOHN HUTSON (Ret.):

Well, I don't completely agree. There were 12 days of testimony at the court of inquiry, which was open to the public. There was 119-page report that is supported by 2,000 pages of documents. The entire document is on the PAC Fleet Web site. There was a thorough airing. Everybody knows precisely what happened here. The only question then becomes, what do you do about that? Was that shortcoming the kind of thing that rises to the level of criminal misconduct or not? This is a terrible tragedy. There's no question about that. I don't want to sound cavalier but from a legal point of view, they're relatively minor offenses.

EUGENE FIDELL:

I think I'm going to disagree with that. Non-judicial punishment, with respect for John as an old friend, non-judicial punishment is by act of Congress supposed to be reserved for minor offenses. The question is, are these minor offenses? Obviously that's a judgment call for Admiral Fargo to make. That's the way the statute is constructed. But if you look at the potential punishments, for example, they're quite severe and in the case of negligently handling a vessel, they clearly tripped the line prescribed by the manual for courts martial that distinguishes at least in principle between a minor offense and a serious offense.

Indeed Admiral Fargo himself in the clip that you showed before indicated he found Commander Waddle guilty of serious offenses. In addition, there were several other charges that I think could have been pursued at a court martial and that I think it probably would have gone to the jury, they would have reached the jury that were also quite serious charges, having to do with involuntary manslaughter, negligent homicide and even reckless operation of a vessel.

MARGARET WARNER:

Well, he found — Admiral Fargo said to him that the test was– I'm looking for the words here– he didn't feel it rose to the level of going to a court martial because he didn't find criminal intent or deliberate misconduct.

EUGENE FIDELL:

Those… I'm sorry, Margaret.

MARGARET WARNER:

My question is, is that the tradition? Is the only way… what happened to the conduct, the concept of criminal negligence as the reporter asked the admiral?

EUGENE FIDELL:

The answer is that for all of the offenses that people have even thought about in connection with these tragic events, not one of them requires intent. So to cast the decision-making process in terms of whether there was criminal intent or intentional misconduct is, I think, to begin the analysis by pointing in the wrong direction. All of the offenses that occurred, to me and to others that I've discussed this with, under the manual for courts martial are offenses that require, in some instances, only simple negligence or in other instances reckless or wanton negligence, but reckless or wanton conduct. But in no case do they require criminal intent.

MARGARET WARNER:

Admiral Hutson, I think Americans might ask particularly when nine people die — again in the civilian model, if negligence were found and responsibility was found, that would constitute criminal negligence, would it not? Why does that not apply in the military model?

REAR ADM. JOHN HUTSON (Ret.):

No, you don't look necessarily at the results of what happened, as tragic as the results were in this case. The question comes down to, what did Commander Waddle do or not do on the 9th of February? And does that conduct or misconduct rise to the level of something that you're going to send to a general court martial and make him potentially a felon or a criminal? I don't think that it does… that conduct did.

MARGARET WARNER:

Just staying with you for a minute, admiral. For instance we've all heard of cases in which even enlisted men are court-martialed for smoking marijuana or officers have been court-martialed for having a personal relationship, sexual relationship with somebody else in their command. Just help us understand the distinction there. Why would that be court martial offense but this wouldn't?

REAR ADM. JOHN HUTSON (Ret.):

Well, I sort of cringed when Gene used the expression earlier about crimes of command, but to some extent that's what you're talking about. Somebody who is smoking marijuana or engaged in an inappropriate relationship with a subordinate is in a completely different situation than somebody who is underway, doing the nation's work but doesn't do it as well as he should have done it.

There's no question that Commander Waddle is responsible. He said it. Admiral Fargo has said it in the action that he took. You know, there's an old Navy tradition that goes back older than the nation itself that says that the commanding officer has absolute responsibility, and with that goes authority and with that goes accountability. Waddle is accountable. Waddle is responsible for what happened. The question becomes, is he a criminal?

EUGENE FIDELL:

The answer I think to that question reflects the changing nature of command in this highly technological environment. Once upon a time a wooden ship with sails, propelled by sails, would sail off into the sunset and be heard from nine or ten months later.

Today ships are never out of instantaneous communication with shore, with the highest levels of management, commanders at sea are subject to regulations and instructions of every description. It's a pervasively regulated environment. And in important respects the responsibility of command is now shared. But still, of course, the commanding officer is the person in charge, but also in important respects decisions are being made on shore that are inextricably linked with what's going on on the ship. And that has certain institutional and cultural implications for how the punishment system works. That's what we're dealing with now.

MARGARET WARNER:

Are you saying that you think the accountability should then also be spread?

EUGENE FIDELL:

I think accountability at levels above the level of the immediate commander has been a problem for the national defense program for some years. We've had a number of mishaps in which our military and civilian leaders have grappled with how to impose sanctions, whether and how to impose sanctions on those who are not the immediate commander on scene but rather at levels above the immediate commander. It's a continuing problem. It's going to continue to be a continuing problem.

MARGARET WARNER:

But, in other words, that might have made decisions that nonetheless affected the environment in which this commander on ship was operating.

EUGENE FIDELL:

Absolutely right.

MARGARET WARNER:

Admiral Hutson, do you want to comment on that? Go ahead.

REAR ADM. JOHN HUTSON (Ret.):

Let me say very quickly I agree completely with Gene, that is an issue. But it's a somewhat different issue than the immediate issue at hand. Would you get a conviction at a court martial in this case? I think not. I think I've got a bunch of third year law students at Franklin Pierce who would get an acquittal in this case.

MARGARET WARNER:

Finally, and staying with you, Admiral, this distinguished visitors or civilian guest program that was the focus of so much commentary — we all learned so much about through this incident — Admiral Fargo found that though they were a distraction, he said they didn't directly contribute to the collision. What was your view on that? Did that surprise you?

REAR ADM. JOHN HUTSON (Ret.):

No. I think he's right. I mean, the fact of the matter is that they were at sea because of those visitors.

MARGARET WARNER:

Remind us, in other words, originally there was a mission that they were supposed to do. The mission went away somehow and they still took this trip just to take care of these guests.

REAR ADM. JOHN HUTSON (Ret.):

Right. And every time you go to sea there's training involved. I mean, you have to light up the reactor. I mean all those things happen so that the ship goes through training during those evolutions. But the fact of the matter is that Commander Waddle went faster than he should have — shortstopped some of the procedures that he should have gone through because he was in a hurry and he was in a hurry because those people were aboard the ship.

But I think it's a mistake to confuse the question of whether he should go to a court martial and whether he could be convicted with the distinguished visitors program, which obviously needs to be overhauled.

MARGARET WARNER:

What was your thought on that?

EUGENE FIDELL:

This time I'm going to agree with John Hutson.

REAR ADM. JOHN HUTSON (Ret.):

Thank you.

EUGENE FIDELL:

I think they are separable issues although they interact because there was some sense that the presence of these 16 so-called distinguished visitors on the submarine did have an impact on the environment within the control room. There remain questions that have to be answered concerning what they were doing there, how they got there in the first place and I think that until those are resolved this is going to be an open issue.

MARGARET WARNER:

But in the end as… what Fargo said was, in the end it's up to the commander to manage those guests.

EUGENE FIDELL:

Yes, that's true, but he certainly had help from on shore in bringing this situation about.

MARGARET WARNER:

All right. Gene Fidell, Admiral Hutson, thank you both very much.