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
Two sets of controversial personnel actions frame U.S. involvement in the Second World War: the relief from command of Admiral Husband
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 continued to serve on active duty until he retired as a Rear Admiral in 1949.
Controversy over Captain McVay's court-martial has also continued to this day. His son and numerous supporters have actively sought expungement of the court-martial conviction. Several congressmen have requested that the Navy reconsider the matter. Several books have accused the Navy of a "cover-up," using Captain McVay as a scapegoat. Orion Pictures recently purchased the rights to make a motion picture of Dan Kurzman's book on the Indianapolis tragedy, Fatal Voyage.
Many recent books and articles have intensified debate over the Pearl Harbor cases and the McVay case. Professional interest in these cases among senior officials, civilian and military, continues unabated. At stake are fundamental legal principles, many of them founded in the Constitution and in Supreme Court precedents concerning the discretionary authority of the service secretaries and the Commander in Chief. The Pearl Harbor cases and the McVay case provide excellent opportunities to delineate the contours of the enduring constitutional principles of civilian control of the military, the separation of congressional, executive, and judicial powers relating to military personnel actions, and the attenuation of individual rights in the military.
Key decisions of the President and the Secretaries of War and the Navy in the cases of Kimmel, Short and McVay were within the scope of Executive authority under the U.S. Constitution. Specific administrative and disciplinary actions taken against these military commanders complied fully with applicable substantive and procedural law. The President retains power to grant the relief sought by advocates for Kimmel, Short and McVay; however, those who advocate official action by the United
States to rehabilitate these World War II era commanders should recast their arguments as petitions for discretionary relief instead of claims of entitlement to remedies based on alleged violations of legal rights.
Overview of The Commander in Chief's Powers
The Kimmel, Short and McVay cases raise questions about the relationship between Executive authority and the individual rights of military officers. The law applicable to the grievances alleged in these cases has generally resolved conflict between the authority of the President and individual interests in favor of the President, holding that the individual rights of service members are attenuated in a relationship of subordination to authority. This article explores in detail numerous separate questions of rights and authority raised by the Kimmel, Short and McVay cases, but certain overarching principles warrant clarification at the outset.
Among the characteristics of executive power that distinguish it from legislative and judicial functions are unity of action, energy, dispatch.2 To preserve these values the Constitution vests all executive authority in one individual, the President.3 In the exercise of executive power the President competes with no other Executive Branch officer. In his role as Commander in Chief of the armed forces,4 the President acts in his most constitutionally defining capacity5 and the exclusivity of his powers is at its height.6 As Commander in Chief, the President is not merely a policy maker; he enjoys the power of actual command of the armed forces, as "first General and Admiral."7 At his option, regardless of his experience or skills, the President may assume direct, personal command of forces in the field or at sea.8
The President does not issue commands to ships and aircraft. If the power of command has any meaning, the President must have authority of command over individual military persons. "The military" is not some monolithic institutional organ of the Executive Branch; its effectiveness in executing the will of the Commander in Chief is the collective consequence of individual obedience of command authority. Claims of individ-
ual exemption from the Commander in Chief's authority on the basis of perceived individual rights or subjective values set up a constitutional conflict between the President's power, which may only be exercised through subordinate people, and the constellation of individual rights enshrined in
the Constitution. In cases of conflict, a delicate balance that affects the safety of the nation must be struck between the two. The courts have resolved this conflict overwhelmingly within the paradigm of presidential authority, and not within the more familiar paradigm of individual rights that may be vindicated through litigation.
Professor Louis Henkin, a prominent scholar of executive powers, has interpreted Supreme Court deference to the executive in foreign affairs cases as reflecting "a determination that the Executive Branch was acting within its authority and hence its actions were 'law for the courts.'"9 In essence, when the President exercises discretion within the core of his constitutional...