By: Sidney O. Smith III
13 Aug, 2009
America criminal justice system has deteriorated to the point that it is a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness.
I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process. Senator Jim Webb, The National Criminal Justice Commission Act of 2009
Excellent words from the good senator. And if Senator Webb from Virginia truly wants to expose “irregularities and inequities” that cut against our notion of “fundamental fairness”, then he need go no further than the Record of Proceedings of the Navy Court of Inquiry (NCOI) into the Israeli attack on the USS Liberty on June 8, 1967.
Two days after the attack, on June 10, Admiral John S. McCain, Jr, then the Commander-in-Chief, US Naval Forces, Europe, headquartered in London, England appointed this Navy Court of Inquiry, with Admiral Isaac Kidd presiding and Captain Ward Boston, JAGC, USN, as the senior legal counsel. And at the initial convening of the Court in London, Admiral McCain then ordered that it conduct and complete the proceedings in one week — an abbreviated time that Rear Admiral Merlin Staring later described as “patently unusual and unreasonable”.
Yes, one week. As anyone familiar with our criminal justice system can tell you — and certainly Senator Webb would agree — you cannot adequately investigate a barroom brawl in Mobile, Alabama in one week, much less a repeated and coordinated military attack that took place at sea and left 34 men slaughtered, at least 171 wounded, and an essentially unarmed spy ship dead in the (international) water.
One week. Good grief. Ward Boston later claimed that he and Admiral Kidd disagreed with Admiral McCain’s order to complete the NCOI in one week. In 2003, he signed an affidavit in which he stated that both he and Admiral Kidd had estimated that “a proper Court of Inquiry into an attack of this magnitude would take at least six months to conduct.” Common sense would appear to agree wholeheartedly.
And for those, along with Senator Webb, who are genuinely concerned that we remain a society “founded upon fundamental fairness”, take a few minutes and read two evidentiary essays that focus on this Navy Court of Inquiry. Both are written by USN vet Ken Halliwell, certainly one of the world’s leading forensic experts on the attack on the Liberty.
For any of you who just raised eyebrows about Ken Halliwell’s credentials, consider the following: Halliwell is the first person who presented overwhelming evidence that Jay Cristol relied upon fake photographs to argue the attack on the Liberty was one of mistaken identity. (Just click and then scroll down to the Gun Camera Photo Fraud Series).
So one can safely describe Ken Halliwell as a leading forensic expert. And he has penned an essay in which the title alone fully reveals what Senator Webb so eloquently termed “irregularities and inequities”. It reads, “The Navy Court of Inquiry: Evidence of Negligence”. And the title of Halliwell’s second recommended essay hits the mark as well, ‘Smoking Gun’ for Claims of NCOI Testimony Tampering.
Halliwell has authored other evidentiary essays, and they are all highly recommended. But, for our purposes, reading just these two essays will make it much easier for you to decide if you agree with the recurring VFW Resolution that calls for a Congressional investigation into the attack on the Liberty.
For starters, and speaking more specifically of what Senator Webb refers to as “inequities” in the administration of justice, one quote by Halliwell illustrates Senator Webb’s point so well that it leaps right off the computer monitor and, therefore, simply must be highlighted. Halliwell contrasted the Record of Proceedings of the NCOI for the Liberty with that of the USS Pueblo — the US Navy spy ship captured by North Koreans roughly 7 months after the Israeli attack on the Liberty. Halliwell’s draws the distinction:
“Thus, about 19 hours of testimony was heard from 17 witnesses during two days of testimony on June 13 or 14, and 15. Combining this with six hours of testimony from two witnesses heard on June 10 and 16, the total is 25 hours of testimony from 19 witnesses. This pales in comparison with similar matters subject to NCOI hearings; e.g., the NCOI for the USS Pueblo incident heard over 200 hours of testimony from 104 witnesses.”
And it is indisputable that the same legal standard applied to both NCOI’s. As Halliwell writes: “The JAG Manual provides that the responsibility of Counsel for the Court is to exploit all practicable sources of information and to bring out all facts in an impartial manner without regard to the favorable or unfavorable effect on persons concerned.”
Surely Senator Webb, as a 1975 graduate of Georgetown Law School, is aware of this glaring discrepancy or “inequity” between the two NCOI’s, — one that certainly raises, at a minimum, a rebuttal presumption that the NCOI for the Liberty violated well-established principles of “fundamental fairness”. And certainly Senator Webb, as an officer of the court, is aware that to overcome such a presumption, the burden is now on those who acquiesced to the ongoing code of silence — an appalling silence that has suggested that the NCOI for the Liberty was not a corrupt investigation but, instead, complied with the law to the same extent and in equal measure to the NCOI for the Pueblo.
So continuing to adhere to Senator Webb’s own rationale, let’s move to the next step and examine not only “inequities” but also “irregularities” that suggest partiality to (very) concerned persons. And in this regard, the wording from the recurring VFW Resolution on the USS Liberty itself documents one of the most glaring “irregularities” in the history of American jurisprudence, civilian or military, bar none:
WHEREAS, the Israeli attack on the USS Liberty is the only such naval incident to have never been investigated by Congress….
Applying Senator Webb’s own level of judicial scrutiny, one can conclude that the lack of a Congressional investigation constitutes a per se violation. It is the only time a Congressional investigation into such a naval incident has not taken place, period. So, once again, the burden shifts to those who want to argue that the lack of a Congressional hearing was indeed consistent with the legal standards of the time (or anytime in American history for that matter). In other words, they must successfully argue that the lack of a Congressional hearing satisfies all requirements that constitute what Senator Webb has defined as “fundamental fairness”.
As for more specific “irregularities” in the Record of Proceedings itself, Halliwell indicates that crucial testimony of some of the Liberty vets was left out. One glaring omission from the Record is that of Liberty survivor Lloyd Painter who later went on to a distinguished career as a US Secret Service agent. According to Painter (watch Dead in the Water, available for free online viewing, at minute 55), during the NCOI, he testified about Commander McGonagle’s condition (he blacked out from injuries sustained during the attack), the Israeli pilots firing armored piercing projectiles at the Liberty as well as his observation that the Israeli Motor Torpedo Boats machine-gunned life rafts floating astern of the ship. None of this testimony made it into the Record.
Additionally, the Record reflects other “irregularities”. Chief Engineer George Golden who actually took over command of the ship after McGonagle blacked out, stated that Admiral Isaac Kidd, whom McCain appointed president of the court, intentionally kept Golden out of the proceedings. According to George Golden in Dead in the Water, “I got so peeved off I couldn’t see straight”.
And then, to completely slam shut any hope of “fundamental fairness”, according to retired Secret Service Agent Painter and others, various high ranking Navy officers threatened the Liberty crew with court-martial if they discussed the attack at all.
Fundamentally fair? You decide. But certainly if we apply the standard of judicial review suggested in Webb’s pending legislation, this evidence alone reaches a threshold that, again, shifts the burden to those defending the NCOI and who claim “Case Closed”. To overcome the presumption of a flawed investigation, the defenders of the NCOI must establish with clear and convincing evidence that it was a thorough and impartial proceeding and devoid of “irregularities” and “inequities.”
And the bar to overcome this presumption of a flawed investigation, for all intents and purposes, is insurmountable because of the work of one heroic American – Rear Admiral Merlin Staring. This former Judge Advocate General of the Navy, in an extraordinarily detailed June 2005 letter to the Secretary of the Navy, claimed that the Record of the Proceedings was completely unreliable, in large measure because of the abbreviated and highly unusual one week timeframe in which Admiral McCain ordered it completed. In other words, this man who, in 1972, became the highest ranking JAG officer and lawyer in the entire US Navy, concluded that the NCOI was an absolute disgrace and refused to partake in a cover-up.
Rear Admiral Staring did much more than address the profound “irregularities and inequities” of the NCOI for the Liberty in a June 2005 letter to the Secretary of Navy. In June, 1967, then Captain Merlin Staring, JAGC, USN was the senior Navy Judge Advocate General’s Corps officer on Admiral McCain’s staff in London. At the completion of the Court of Inquiry into the attack on the Liberty, Admiral McCain requested that Captain Staring review the Record of the Proceedings. As Staring points out in the 2005 letter, such a request was “a normal and anticipated procedure whereby the Convening Authority [Admiral McCain] would have available a legal opinion and recommendations concerning the Inquiry proceeding and its results…”
Captain Staring never endorsed the Record or its findings. After Captain Staring reviewed it for several hours during the afternoon and evening of June 17 and morning of June 18, Admiral McCain sent word to Captain Staring, wanting to know how much longer it would take for him to finish the review. Captain Staring then raised his genuine concerns, namely that the Record contained many clerical errors and that he “had not yet been able to find, in the parts of the record that he had so far reviewed, testimony or other evidence to support some of the Court’s stated findings….”
At that point, Admiral McCain never let him finish the review. Captain Staring was asked to surrender the Record, which he did. Then, as Staring describes in the 2005 letter, Admiral McCain immediately “endorsed the record forward, addressed to the Judge Advocate General of the Navy as required by the Navy’s investigative procedures…”
In other words, Rear Admiral Staring never sold out despite pressure to do otherwise. His words from the documentary Dead in the Water make the point loud and clear:
“Well, I simply could not find an evidentiary basis for that conclusion [of mistaken identity]. I had considerable trouble with the record in attempting to, as I read through it, attempting to find the evidence, the testimony and/or other evidence that would support some of the findings or opinions or conclusions that the Court of Inquiry had drafted and reached.”
Doubtless history will judge that Rear Admiral Staring was an officer of the court, not a politician. And by refusing to partake in a deliberate strategy of deep-sixing what he saw as a terribly flawed investigation, he made a sacrifice in 1967 that helps us today. To borrow words from Senator Webb’s pending legislation, Rear Admiral Staring is someone who held on to the idea that we are a “society founded upon fundamental fairness”.
Senator James Webb was the US Secretary of the Navy from May 1, 1987 until February 23, 1988, but no evidence exists, as far as I am aware, that Webb has publicly supported Rear Admiral Staring’s stance either then or anytime for that matter. And while Jim Webb was Secretary of the Navy, he was in a supervisory position, much like Rear Admiral Staring and, in the civilian world, much like a district attorney, so he knew or should have known of the Liberty incident as well as the flawed NCOI.
For one thing, approximately eight years before James Webb became Secretary of the Navy, Liberty vet survivor Jim Ennes, Jr. broke the code of silence on behalf of the American people when he chronicled the attack in his book, Assault on the Liberty. So by 1987, knowledge suggesting that the attack was deliberate and a cover-up took place was in the public domain.
Secondly, just a few months prior to Webb assuming the office, the Navy Law Review published in Vol. 36 (1986) an article titled, A Juridical Examination of the Israeli Attack on the USS Liberty by Lt. Commander Walter Jacobsen, JAG. And as the abstract states, “the author concludes that the attack was not supportable in international law and recommends a thorough, public investigation into the attack by the United States Congress.” As an officer of the court, Senator Webb knew or should have known of this law review article and its conclusions.
Thirdly, and potentially most troubling, one aspect of the Liberty incident suggests that affirmative steps were taken to forever deep-six the investigation while Webb was Secretary of the Navy. As reported repeatedly all over the internet, described in books about the Liberty incident, and according to Wiki: “On December 17, 1987, the [Liberty incident] issue was officially closed by the two governments [USG and GOI] through an exchange of diplomatic notes.”
Senator Webb was Secretary of the Navy on December 17, 1987. While I have tried to verify this information but am yet unable to do so (and continue to question if this actually should refer to 1980), Senator Webb can clear up this confusion very quickly with a public statement — one that confirms whether or not, as Secretary of the Navy, he agreed that the Liberty incident was “officially closed”. And he is obligated to do so if he wants to act in a manner consistent with the spirit and rationale underlying his pending legislation that recommends the creation of a commission to investigate prior miscarriages of justice.
Everyone ultimately is part of a tradition and, unfortunately, nothing indicates, as far as I am aware, that Senator Webb, as an officer of the court, is of the same tradition as that of Rear Admiral Merlin Staring, specifically in regard to the Liberty incident. Nothing at all.
For that matter, no evidence exists that Senator Webb is part of the tradition of Admiral Thomas Moorer (US Naval Academy, Class of 1933) and General Raymond Davis, USMC (MOH), both of whom, along with Rear Admiral Staring, signed the report of the Moorer Commission (2003) that investigated the Liberty incident. And astonishingly, this report included, among other things, a finding that echoes the very same wording that Senator Webb relies upon to justify his proposed legislation. Here is the relevant finding from the Moorer Commission:
“That the truth about Israel’s attack and subsequent White House cover-up continues to be officially concealed from the American people to the present day and is a national disgrace….”
Please note the words — “national disgrace”. And now here are Senator Webb’s words from his pending legislation. “America’s criminal justice system has deteriorated to the point that it is a national disgrace.”
So surely Senator Webb would agree that the rationale that justifies his pending legislation also warrants a Congressional investigation into the USS Liberty incident. As Senator Webb states in his proposed legislation, “I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can reform the process.”
But no evidence, that I am aware of, indicates that Senator Webb supports a Congressional investigation into the attack on the USS Liberty incident — an inquiry that would be consistent with the VFW Resolution as well as the rationale underlying his proposed legislation. To the contrary, much evidence suggests that Senator Webb has participated in a code of silence that has led to a cover-up of a flawed investigation that includes “irregularities and inequities.”
Regardless, at this juncture, it is noteworthy to point out that Col. Patrick Lang — a retired Green Beret and graduate of VMI — has stated the following at his website Sic Semper Tyrannis in reference to Senator Webb and his stance on the USS Liberty incident.
I am disappointed in the lack of response or action on the part of Senator Webb. I expected more from a US Marine officer. pl
Posted by: Patrick Lang | 31 July 2009 at 07:33 PM ”
And with this quote in mind, it should be remembered that Col. Lang, at the Athenaeum, among other sources, has left us with a statement that justifies Rear Admiral Staring’s stance and further reveals that the NCOI was, indeed, a travesty. Col. Lang has read “transcripts of the translated intercepts of radio conversations between the Israeli strike commander and his base before and during the attacks on USS Liberty.” In other words, Col. Lang is not only an expert witness but also a fact witness.
So, at least in the State of Virginia, promoting justice for the USS Liberty is now associated with Col. Lang and VMI and not with Senator Webb and the tradition he represents. At this point, Senator Webb appears more closely aligned with the tradition of Admiral McCain (US Naval Academy, Class of ‘31) who oversaw the NCOI for the Liberty and not that of Admiral Thomas Moorer (US Naval Academy, Class of ‘33) and others who called it a “national disgrace.”
But it does not have to be that way. Senator Webb could reevaluate the situation at hand and meet with members of the USS Liberty Veterans Association (Ernest Gallo, President, USS Liberty Veterans Association, Tele: 386-446-6855). Then after apologizing to them, Senator Webb could do one of two things. One, he could offer evidence that he believes legitimates the ongoing code of silence and cover-up. Such information, in and of itself, would help give closure to the Liberty vets and families.
However, if no such credible evidence is forthcoming, then Senator Webb should include a rider to The National Criminal Justice Commission Act of 2009. And this additional provision should call for a Congressional investigation that focuses exclusively on the attack on the Liberty and the subsequent cover-up. Yes? No?
Better yet, Senator Webb could rely upon the exact same rationale underlying The National Criminal Justice Commission Act of 2009 and sponsor new legislation, titled, American Justice for The USS Liberty Act of 2009. The proposed legislation could even incorporate the findings of the Moorer Commission and recommend June 8 as USS Liberty Remembrance day. And best of all, this new legislation could include language borrowed straight from Senator Webb’s recently drafted bill and referenced above:
America’s investigation into the attack on the USS Liberty deteriorated to the point that it was a national disgrace. Its irregularities and inequities cut against the notion that we are a society founded on fundamental fairness.
So I believe that it is time to bring together the best minds in America to confer, report, and make concrete recommendations about how we can address this miscarriage of justice – an injustice that has profoundly and adversely affected our national security interests. And with an attack on Iran looming large, the Obama administration should place the highest priority possible to ensure this legislation is enacted.
So here’s hoping that Virginia’s Senator Webb, in his capacity as a graduate of the US Naval Academy, a US Marine war hero, and an officer of the court, will help restore confidence in our government by becoming an advocate for the Liberty vets. By doing so, he will allow the Liberty vets and the American people to experience the best that our system of justice has to offer, thus proving that we indeed are “a society founded upon fundamental fairness”.
Bookmark and Share
* For further information on the flawed NCOI for the Liberty, see Halliwell’s essay, “Attack Photos Prove NCOI Testimony and Finding Wrong”.
The USS Liberty Veterans Association approves this message and respectfully requests that Senator Jim Webb state publicly whether or not the NCOI for the Liberty contained “irregularities and inequities” and therefore is a “national disgrace”.