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Saturday, September 18, 2004

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.


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.


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.


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.


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.


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.


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.


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?

Posted by Beldar at 12:45 AM in Politics (2006 & earlier), SwiftVets | Permalink


Other weblog posts, if any, whose authors have linked to Judicial Watch strikes out with demand for Navy Dep't investigation and sent a trackback ping are listed here:


(1) roundguy made the following comment | Sep 18, 2004 3:36:38 AM | Permalink

I remember reading early on that there was a discrepancy in the timeline of his after Vietnam stint. The question seems to be why it took so long to get his honorable discharge after leaving Vietnam.

I have wondered since then if it is possible, based upon the series of events that have occured, i.e. the SBVT's and the Bush AWOL, that he has been creating a diversion from the possibility of someone discovering what really happened.(I know, run-on sentence)

Is it possible that after coming home from Vietnam he shirked his Reserve Duty requirements and was subsequently forced to stay on longer to do so. From reading about Bush it seems he made sure his lapses were covered, actually over covered, before he got out.

This answers a few questions to my mind, and would explain his stonewalling of a form 180. If Route is a Kerry fan he would most likely say that further investigation is moot.

Just a gut feeling. What say you?

(2) M. Simon made the following comment | Sep 18, 2004 3:41:24 AM | Permalink

I think theAdmiral did an excelllent job of staying out of politics. So long as Kerry is in office or running I'd say his medalds were untouchable. Unfortunate but probably a good thing for civilian control of the military..

(3) Beldar made the following comment | Sep 18, 2004 4:54:00 AM | Permalink

Roundguy, I have no reason to believe that Adm. Route is a Kerry fan. But on the general topic of Sen. Kerry's misdeeds while finishing his Naval Reserve service, in Paris or elsewhere, I'm about to put up a new post.

(4) Roundguy made the following comment | Sep 18, 2004 5:03:55 AM | Permalink


Brillantisimo! I admire your work. Wish I'd known you in January when I got screwed out of business. You must be a night owl like me if the time of your post is correct.

I still think Kerry is blowing smoke to cover what those other 31 pages contain AND I fail to see the irrelevance of looking at the man's own mission reports viz a viz the men that were there.

(5) Barbarrossa made the following comment | Sep 18, 2004 9:20:40 AM | Permalink

Without a fullcourt press from MSM Kerry will continue his stonewall on his unrealeased records.

What the Admiral has done is basically keep the Navy out of the loop and this unfortunately gives Kerry-supporting MSM a push-back. With the "fatigue" of covering past events of 30 years, MSM will surely use this "fatigue" as an excuse, never mind that this is an issue that has been kicked around for only several months now.

The only real "glimmer of light" is that MSM will become more aggressive here in pursuit of the "truth" in the wake of Rather and Co. China Syndrome.

I won't hold my breath though.

(6) John Furutani made the following comment | Sep 18, 2004 9:53:22 AM | Permalink

Formerly employed by GAO, I am somewhat surprised someone within the Congress has not requested an expedited inquiry into the whole process. And before the objections get posted--my former colleagues (the ones I worked with--I can't vouch for many others) are good at what they do and work to obtain objective answers to posed questions. But it is hardly a secret that, despite it's press, GAO takes on jobs that are driven by partisan considerations. On an issue such as this, it may be difficult to get both a ranking chairman and minority member to sign on to a specific committee or subcommittee request. But certainly individual members--especially of both parties and involving a number of standing committees with military oversight responsibilities--could request a narrowly focused inquiry as to the nature of the medal awarding process; the individuals listed as cites or responsible parties, and a list (probably not the contents themselves, although a brief descriptor could be provided) of the relevant documents which are not available publicly--but could be released with Mr. Kerry's permission.

The Admiral was correct and cautious in his approach and communication. A Congressional inquiry (not hearing--too much a shadow play that allows grandstanding)will provide cogent and concise information that can then be requested, rather than speculation and what-if inquiries.

As to who on the aisles might be interested? Either retiring members of either House, or perhaps someone who might be looking to the WH in 2008, might be in the safest position. The former won't have to deal with outraged colleagues or the junior senator from MA. And the latter will likely only have to deal with the senior senator from MA--the current candidate is losing all credibility, and thus influence, within the party. And the candidate I have in mind is so sure of her base support, she can afford to be seen as doing something for the credibility of military procedure, say, to establish a bridgehead with the institution she has so maligned in the past.

If that sound cynical--it's what happen when you work for the Congress.

(7) richard mcenroe made the following comment | Sep 18, 2004 10:14:08 AM | Permalink

Let's make an important distinction here the IG pointedly overlooks:

Route validates the _procedure_ by which Kerry's medals were awarded.

He says nothing to the widely documented knowledge that that procedure was deeply flawed in Vietnam, especially for officers.

He says _nothing_ to the information with which that procedure was obliged to work.

Who provided that information? How accurate was the information in those recommendations?

The questions that were open are still open. The questions that are open can still only be answered in one way — by Kerry releasing ALL his records. Or is the senator unwilling to release evidents that would totally vindicate him?

(8) RCS made the following comment | Sep 18, 2004 10:33:58 AM | Permalink

So Judicial Watch, once again looking no farther ahead than its next press release, has given Sen Kerry political immunity regarding his medal awards. Why would any DC advocacy group think the Navy would dream of stripping a US senator of 30-year-old awards when he's running for prez? Now the Dems can just say that the Navy looked and saw no problem, next case, and anything the Swift Boat Vets (or anyone else) can say will come out as "but-but-but..." And good luck pressing Sen Kerry to sign a Form 180 now.

(9) richard mcenroe made the following comment | Sep 18, 2004 10:42:52 AM | Permalink

An note on Vietnam-era medals. IG Route may say the awards were given in accordance with established procedures of the times, but that's not saying a lot.

Consider for example the policy Anthony Herbert outlined in the book "Soldier" — the policy in his brigade was for every infantry officer leaving the unit to be awarded a Silver Star, on the basis that they must surely have done something heroic that no superior officer noticed, and it wouldn't be fair to leave Nam without a medal to their record.

In another case, when the Air Force started flying the first models of the AC-130 Spectre gunships over the Ho Chi Minh trail, they racked up incredible numbers of kills on NVA truck convoys. Air Medals and Distinguished Flying Crosses were awarded in great number.

But they noticed the truck traffic was not decreasing. So the Air Force conducted its own tests, and discovered that their criteria for claiming a truck destroyed were deeply flawed. Many truck kills had been claimed on vehicles that were only slightly damaged and fully operational. So the Air Force lowered its estimates of destroyed vehicles, revised its criteria for claiming kills, and made changes to its equipment, ammunition and procedures to improve their effectiveness.

But they decided to let all the medals previously awarded based on the nonexistent kills stand.

My source for this information is an officer of the AC-130 unit who conducted the tests for the Air Force.

(10) Rosemarie made the following comment | Sep 18, 2004 10:56:47 AM | Permalink

The "Unfit for Command" authors make the (unattributed) claim that JFK's Silver Star medal was awarded to boost morale among the Swiftees, and that regular procedure was not followed. Has there been any more detail about this?

(11) CERDIP made the following comment | Sep 18, 2004 11:38:41 AM | Permalink

I see this as Navy Bureaucratese for "drag us kicking and screaming into this, and the guy's toast. But we're not gonna toast him *for* you."

(12) Eric Rasmusen made the following comment | Sep 18, 2004 11:54:21 AM | Permalink

Excellent post and comments!I've posted on it at http://www.rasmusen.org/x/archives/c/archives/000217.html
In particular: Does Admiral Route have the legal authority to create a 30-year statute of limitations for medal fraud? (He might well- that's why I ask.) Also, if it did turn out that Admiral Route is lying when he says "we found that they correctly followed the procedures in place at the time for approving these awards", what penalty would he incur?

I am thinking Admiral Route would be lying if he did not "find" it, but simply asserted it without any investigation except for whether the correct senior officers signed off. But maybe "to find" is a legal term of art here, meaning he reaches this conclusion using his personal judgement and whims but not necessarily looking at any evidence.

(13) recon made the following comment | Sep 18, 2004 12:13:40 PM | Permalink

It strikes me from a superficial read that Route is merely validating an administrative process without making any determination as to validity of the content put through it in this instance.

That certainly is the easy way out, considering the stack of SwiftVet affidavits which address the content, now that there is a clearly understood overall context within which to place it.

(14) Tim made the following comment | Sep 18, 2004 12:33:03 PM | Permalink

Mr. Dyer,

The Navy IG's response is tantamount to "not worth openening this can of worms". And it is a can of worms since the Navy's award system during Vietnam, 30+ years ago would also come under scrutiny.

The military is never, nada, no way, going to jump in the pool investigating themselves unless confronted with damning evidence AND overwhelming media attention - and even then often finds it "unproductive" in the end (think Rather's The Wall Within, CNN's Tailwind, AP's No Gun Ri, 60 Minutes' (and others) Bob Kerrey massacre, and Newsweek's Boorda Medals as just a few examples - and the media's poor credibility overall. There are many, many others. The case against Kerry may be of interest, and perhaps troubling, to some - but not the Navy. There is little reason for them to be interested or troubled by Kerry's decorations, and many reasons for them to be interested in NOT investigating them and troubled over the questions about the Navy it would raise.

I would also add concerning Kerry's Silver Star and the delegation authority: IAW 10 USC 3746. Silver star: award; 1963 - Pub. L. 88-77 "... the citation thereof be published in orders issued from the headquarters of a force that is the appropriate command of a general officer, and that it be worn as directed by the President."

Source is the Historical and Revision Notes at the bottom of the applicable statute (10 USC 3746) here.

Thanks again for the great work you do on your blog! If I may, without "fogging" up the board by straying too OT:

The News Media and the War in Vietnam: Myths and Realities
Vetting the Vet Record
Myths and realities : a study of attitudes toward Vietnam era veterans

(15) Gary B. made the following comment | Sep 18, 2004 2:56:09 PM | Permalink

If John Kerry wasn't running for POTUS, then questions about his character might not be so important. After all, that's what the dems and Rather are trying to question by running the forged TANG documents about Bush. The character of Kerry has been questioned by men who served in a boat close enough for Kerrys dog to be blown from one boat to the other? If that's true then both boat crews would've heard the explosion, not just the Kerry crew? That's why the argument about only those on his boat know what happened is such bullshit.

(16) John made the following comment | Sep 18, 2004 3:30:56 PM | Permalink

On February 18, 1966, Kerry signed Enlistment and Officer Candidate contracts for five years of active duty and reserves, plus one year of inactive standby reserves.

After three years and 18 days of active service, on January 3, 1970, officer Lt. Kerry was transferred to the Naval Reserve Manpower Center in Bainbridge, Maryland on active reserve.

Kerry has refused to release his Performance Records showing that he completed the 48 drills and 17 days of active duty per year required during his 2½ years in the Ready Reserves.

On July 1, 1972, Lt. John Kerry was transferred to Standby Inactive Status. Kerry was not discharged from the U.S. Navy until February 16, 1978, six years later than normal. There is probably a story in this alone.

While an officer in the active reserve, Kerry made his infamous sworn testimony before the Fulbright Senate committee, met with N. Vietnam government and Vietcong officials in Paris, and was present in (co-chaired?) a VVAW meeting calling for assassination of various US Senators, which he did not report to the FBI.

Section Three of The 14th Amendment to the Constitution:

"No person shall be a Senator or Representative in Congress, or elector of President and Vice President, or hold any office, civil or military, under the United States, or under any state, who, having previously taken an oath, as a member of Congress, or as an officer of the United States, or as a member of any state legislature, or as an executive or judicial officer of any state, to support the Constitution of the United States, shall have engaged in insurrection or rebellion against the same, or given aid or comfort to the enemies thereof. But Congress may by a vote of two-thirds of each House, remove such disability."

Since Kerry took an oath to support the Constitution as a military officer of the United States, and subsequently gave public and verifiable aid and comfort to an enemy engaged in warfare with the United States, not to mention the unreported meeting concerning assassinating US Senators, he appears to be Constitutionally disqualified to run for President (or be a Senator for that matter).

The Swift Vets have worked from the front to the back of their book and cleared the ramp for investigation of this with their testimony from the POW's and the photograph of Kerry, conferencing with N. Vietnamese officials, displayed in the American protesters' section of the War Crimes Museum in Ho Chi Minh City, the former Saigon.

Hopefully we shall see Judicial Watch action in October.

We may get to see the true colors of all our Congressmen before the Nov. elections. This is going to be interesting.

I appreciate your blog. Thank you for your efforts.

(17) Toby Petzold made the following comment | Sep 18, 2004 4:37:40 PM | Permalink

Route's opinion gives Kerry the all-clear, right? If nothing more is to be done about looking into the medals, then Kerry should have no problem authorizing the release of the remaining pages of his file. We know they're there and we know Kerry is not telling the truth when he says they've all been released. The onus is still on him.

(18) nick made the following comment | Sep 18, 2004 11:46:59 PM | Permalink

At least Kerry has paperwork authorizing
those ribbons he wore

while Bush wore ribbons with no paperwork!


(19) Cassandra made the following comment | Sep 19, 2004 4:58:22 AM | Permalink


Try not to be an idiot.

The Navy didn't investigate whether Kerry's medals were warranted. If they'd done that, they would have had to consider the evidence provided by Kerry's own journal, saying he wasn't under enemy fire when he received his first Purple Heart, thus invalidating it.

They investigated whether the proper paperwork procedures were followed for issuing him medals (a different thing, and in my opinion they didn't even do that properly). It is troubling that the investigation never asked why three revisions of a very short form DD214 would not have corrected that combat V issue (if I remember that correctly, and I may not - I admit I haven't been following this closely as I never believed the Navy was serious about looking into it - there was no way they were going to strip a Senator and presidential candidate of his medals, no matter the outcome of the investigation: the negative publicity for the Navy would have been too bad).

They also never answered several other questioned posed by judicial watch. I agree with Beldar that this inquiry was going nowhere, but that didn't mean that the questions were invalid. I might have framed some of them differently.

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