Judicial Watch strikes out with demand for Navy Dep't investigation

John Kerry has finally gotten some unequivocally good news in the ongoing controversy about his military service and antiwar activism.

As I wrote on August 19th, by formal request on August 18, 2004, as supplemented on September 8, 2004, Judicial Watch asked the Department of Defense and the Navy Department to investigate Sen. John Kerry's medals and antiwar activities.  On September 5th, I wrote that I thought Judicial Watch and some in the blogosphere were making too much of what I thought, on close examination, to be to be a letter which did nothing more than acknowledge receipt of Judicial Watch's complaint.

On Thursday, September 16th, Judicial Watch issued a press release advising that the

U.S. Navy Personnel Command, in response to a Freedom of Information Act (“FOIA”) request, has refused to release additional documents on the naval service of Senator John Kerry....

[Navy Personnel Command FOIA Officer Dave German] wrote [by email to Judicial Watch that] "We have withheld thirty-one (31) pages of documents from the responsive military personnel service record as we were not provided a release authorization.

According to the Judicial Watch press release, the Navy "referred Judicial Watch to the Kerry campaign Internet site for 'Numerous responsive U.S. Navy service record documents, as well as service record documents not subject to disclosure requirements under the FOIA'" — presumably meaning that the 31 withheld pages were not already disclosed there.

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On Friday, September 17th, Judicial Watch received a one-page letter from the Naval Inspector General, Vice Admiral Ronald A. Route, declining to take any action — or even to further pursue a full-blown formal investigation — in response to Judicial Watch's complaint:

In accordance with our established review procedures, we carefully examined the process by which Senator Kerry was awarded the Silver Star, Bronze Star, and three Purple Hearts in 1968 and 1969.  We found that existing documentation regarding his medals indicates the awards approval process was properly followed.  In particular the senior officers who authorized the medals were properly delegated authority to do so.  In addition, we found that they correctly followed the procedures in place at the time for approving these awards.

(Actually, all five medals were awarded in 1969, although the first Purple Heart was based on a trivial injury that Sen. Kerry received on December 2, 1968.  For reasons discussed below, this is not a trivial distinction.)

It's not at all clear what "existing documentation regarding his medals" Adm. Route may have reviewed, and it's extremely disappointing that he doesn't say.  By regulation, for example, Kerry's first Purple Heart should have been supported (see paragraph 2-17i of Army Regulation 600-8-22 on page 23 of the .pdf file) by both an after-action report documenting "the key issue that commanders must take into consideration," which is "the degree to which the enemy caused the injury" (see paragraph 2-8b(3) on page 19 of the .pdf file), and by a casualty report documenting the injury.  No such documentation has been produced by the Kerry campaign (the one-page medical record bearing the signature of Hospitalman J.C. Carreon isn't a "casualty report").  And indeed, Adm. Bill Schachte has repeatedly stated that neither document was created because there was no return enemy fire on that mission. 

Did Adm. Route locate and review a casualty report and an after-action report that someone — Lt. Kerry? — ginned up weeks or months after December 2, 1968, and routed around Lt. Com. Skip Hibbard, who'd refused to authorize a Purple Heart?  Adm. Route's letter leaves us still wondering.  In other words, if indeed the senior officers "correctly followed the procedures in place at the time for approving these awards," they must have done so using documents that are not in the public record — and that Sen. Kerry's continuing refusal to sign a Standard Form 180 will keep out of the public record.

Adm. Route's reference to "senior officers who authorized the medals [being] properly delegated authority to do so" refers to Judicial Watch's argument — which I thought was extremely weak to begin with — that only the Secretary of the Navy had authority to approve Kerry's Silver Star, and that Adm. Zumwalt lacked the authority to do so.

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Adm. Route's letter next says:

Conducting any additional review regarding events that took place over thirty years ago would not be productive.  The passage of time would make reconstruction of the facts and circumstances unreliable, and would not allow the information gathered to be considered in the context of the time in which the events took place.

Well, nobody ever said it would be easy, and the same could be said — to one degree or another — of any request for such an investigation.  Whether such an investigation would or wouldn't "be productive" is, of course, a value judgment.  However, I must reluctantly concede that for purposes of the Navy Department's decision whether to pursue a path that might strip Kerry of his medals, the Naval Inspector General, in the person of Adm. Route, is probably the proper military authority — perhaps subject to review upstream, but if so probably under a very deferential standard — to make that value judgment. 

That of course leaves free members of the public — including voters — who've followed the SwiftVets vs. Kerry controversy to make their own value judgments based on the incomplete public record that's available.  But it means they'll do so without the development of a fuller record than what's already available to the public — unless somehow Sen. Kerry can be induced by media and public pressure to end his stonewall, which would add significantly to the documentary evidence that's now available.

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Adm. Route's letter concludes with this final substantive paragraph:

Our review also considered the fact that Senator Kerry's post-active duty activities were public and that military and civilian officials were aware of his actions at the time.  For these reasons, I have determined that Senator Kerry's awards were properly approved and will take no further action in this matter.

Again, with due respect to Adm. Route, no one knows the full extent of Sen. Kerry's "post-active duty activities."  From his contemporaneous admissions, we know — as did civilian and military officials at the time — that young Kerry, while still an officer in the Naval Reserve, met with representatives of the North Vietnamese government and the Viet Cong in Paris before his Fulbright Committee testimony.  What we still don't know — and what neither military or civilian officials knew at the time — is what actually transpired in those meetings, or even how many such meetings took place!

Then and now, Kerry has been carefully vague in describing those meetings, characterizing them as "fact-finding" expeditions.  Yet he and his fellows in the Vietnam Veterans Against the War organization endorsed in full the wartime demands of our country's enemies for an immediate cease-fire and unilateral American withdrawal from South Vietnam.  Some of his fellows from those days have suggested that discussions included a partial release of prisoners of war that the North Vietnamese would expressly credit to VVAW's actions to bolster the domestic credibility and clout of Kerry and his fellow protesters.  That they have succeeded in keeping the details of their negotiations, and their agreements (if any), secret for so long is hardly a reason to assert that those details were known long ago.

Here again, however, I must concede that even if not supported by persuasive reasoning, Inspector General Route is probably the authority within the military structure who has the discretionary authority to decide whether this is something the Navy Department wishes to pursue.  And clearly, he has exercised that discretion against any further investigation.

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Adm. Route's letter makes no mention whatsoever of the impossible "Combat 'V'" designation for Kerry's Silver Star.  Nor does it address the multiple and varying versions of Kerry's Silver Star citation.  Nor does it indicate whether or not an investigator was appointed within the Navy Department to look into Judicial Watch's allegations — although the strong inference of his letter is that no such formal appointment was made, and that instead he determined to rule on Judicial Watch's complaint on a more peremptory basis.

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Judicial Watch's press release today declared:

"Admiral Route’s politicized letter raises more questions than it answers.  Kerry’s fellow and commanding officers have made credible, sworn allegations that call into question the legitimacy of John Kerry’s military service awards.  The Navy IG obviously is afraid of the political ramifications of a thorough investigation into a presidential candidate’s service record.  There is no statute of limitations, as the admiral seems to suggest, for fraudulent medals and questionable conduct.   We will appeal as appropriate this whitewash," stated Judicial Watch President Tom Fitton.

I'd agree that Adm. Route's letter leaves important questions unanswered and that it is puzzling and unsatisfactory in many respects.  I'd also agree that by necessity — given the fact that Sen. Kerry is a presidential candidate — this entire inquiry is necessarily "politicized," including both Judicial Watch's complaint and Adm. Route's response.  The term "whitewash," however, strikes me as over the top, and imputes to Inspector General Route and/or the Navy Department a pro-Kerry motivation that I think is unfair to assume.  I can certainly think of other rational bases for them to have reached this result besides a desire to "whitewash" Sen. Kerry's record.  And just as prosecutors and judges have no obligation to explain in detail every factor they've taken into account in making their decisions, nor to respond to every detail of a citizen complaintant's allegations, I can accept that some purposeful blurring or nonresponsiveness in Adm. Route's letter may be acceptable. 

Although brand new to this position, Adm. Route's  career accomplishments are as impressive as one would expect for the office he holds, and I'm confident that he secured the input of the Inspector General's in-house Legal Office as well.  Both Adm. Route and his decision are entitled to respect even from those who may disagree with it.  Judicial Watch's use of overblown rhetoric like the term "whitewash" diminishes its own credibility with the public, gives the Kerry camp tools to argue that Judicial Watch itself is behaving in a partisan fashion, and can't improve the prospects of whatever appeal Judicial Watch plans to pursue.

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Beldar's bottom line opinions on this decision: 

• If this was a ticking time bomb, the fuse on it has been snuffed out at least for now, and the Kerry campaign is certain to garner more political benefit from Adm. Route's decision than it sustained damage originally from Judicial Watch's complaint.  Fairly or not, this decision will be trumpeted, and likely perceived — and is already being treated by the press — as the Navy Department sustaining and even bolstering Kerry's war-hero claims, and rejecting the criticisms of those like Judicial Watch and the SwiftVets who've argued the contrary case.  (Both of these press reports reference a memo from Adm. Route to Navy Secretary Gordon England that appears to track his letter to Judicial Watch essentially word-for-word.)
• The confirmation that the Navy Department has at least 31 pages of Kerry records that aren't on his website, however, is important.  Again, the fact that the Navy Department has punted this hot potato ought not obscure the fact that Sen. Kerry continues to engage in a cover-up and stonewall — not only of his military records, but of his personal diaries and journals, the Medieros journal for PCF 94, and all the other materials that no one but Sen. Kerry and his pet biographer Douglas Brinkley have been allowed to review.

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So where does that leave us?  I know where it ought to leave Sen. John Forbes Kerry, anyway:

The Navy is letting you keep the medals you once so contemptuously threw over a Capitol fence, Sen. Kerry.  Be grateful for that, sir — it's an act of military grace.  But genuine questions remain about your service — questions that the Navy Department may be disinclined to pursue, but that substantial segments of the public still want to see answered. 

You and your surrogates have repeatedly chastised President Bush about his responses to questions regarding his military service, and you have demanded complete disclosure from him of all pertinent records.  Surely you've been embarrassed by the spectacle of some as-yet-not-quite-identified opponents of President Bush use of forged military records in an attempt to perpetrate a fraud on the American electorate through Dan Rather and CBS News.  Are you still so incredibly arrogant that you will continue to maintain that you are immune from legitimate public inquiry, even after all this?