CHAPTER TWENTY-TWO
Mayes’s report quickly reached Secretary of War Garrison, along with a comment from General Barry. “In Koehler case, your endorsement renews recommendation that his resignation be accepted,” Garrison cabled back to Barry. “He withdrew his resignation, and the record now is as if he had never offered it. In view of this, do you still wish to make the recommendation which is contained in your endorsement. Please reply immediately.”1
Barry did reply immediately, at 2:12 a.m., in a manner sympathetic to Ben: “When Major Koehler was informed his resignation would not be accepted and that he must stand trial he had to withdraw his resignation in his own protection.”2 In other words, when Barry’s agreement to a leave was overruled, Ben withdrew the resignation consistent with his claim of innocence.
Barry noted his “belief that Koehler would resign if again given the opportunity.” He told Garrison he had summoned Ben. In a second telegram, Barry said Ben “will be here tonight will telegraph result of conference with him soon as practicable after seeing him.”3
No, Garrison replied, chiding Barry that he was “misinformed as to facts” and that Ben “was never informed by my authority that his resignation would not be accepted.” Rather, in Garrison’s view, the withdrawal of the resignation was the doing of Ben’s “brother and others [who] came to the Department, and stated that they understood that he had offered his resignation without proper consideration of what he was doing, and that . . . the charges against him were the product of conspiracy. They asked me to postpone consideration of the acceptance of his resignation until they could communicate with him. After communicating with him, as they afterwards informed me, he withdrew his resignation.”4
The situation looked different from Washington than in New York. Apparently, Wood never told Garrison that the initial resignation was connected to a leave, which was overruled, nor did Ben’s brothers know that, so Garrison was the one “misinformed as to facts.” But he was also the one with cabinet-level authority—and growing impatience, judging by his words. He had ordered another investigation and that was that. The Koehlers had gambled and lost.
Garrison made it clear that no matter what Barry thought was best, the War Department wanted a trial: “His first resignation having been withdrawn . . . and the new investigation having been undertaken in view of his assertion of innocence[,] I am convinced that there is no other course now open than a settlement by judicial determination.” Koehler might offer to resign, “but I do not think it wise for it to be done at the suggestion of any one in military authority.”
This left Barry and his chief of staff confused, and they consulted Ben when he arrived at Governors Island. As Ben put it later, “They had a telegram from the Secretary of War which they said they did not seem to understand; it was something about my resignation. They asked me whether I still considered my resignation as being in the hands of the Secretary of War.”
“What was your reply to that?” Ben was asked.
“That I [did] not, that I had previous to that time telegraphed withdrawing it.”5
Looked at from today’s perspective, Garrison was declining to endorse a quiet deal with an alleged harasser. This is a stance one wishes the Catholic Church had taken later in the century, rather than reassigning priests accused of sexual predation against minors, allowing the priests to commit the same offense again and again.6 The same could be said of academic institutions that elevated protection of their football teams, fraternities, and fundraising over the interests of female students who came forward with charges of sexual assault—from unwanted touching to gang rape.7 And as women joined the armed services in significant numbers, far too many would be ignored, ostracized, harassed, or discharged after reporting sexual assault, leading some to take their own lives or die from other trauma-related causes.8
Some progress has been made to address these injustices, and much more work is necessary, but back in 1913 and 1914, the law did not even recognize “sexual misconduct” and “sexual harassment” as wrongs. The available categories were rape, sodomy, and assault, and a sex crime accusation by one employee against another was highly unusual. Surely Mayes was no specialist in investigating such a charged situation. The male-male context only added to the strangeness, especially since the men who claimed Ben made advances, all adults, did not say they had suffered emotional or physical harm as a result.9
Yet what is the same then as now is the general paucity of physical evidence in non-stranger sexual assault cases. Based on what people told him, Mayes concluded that four accusers held grudges against Ben due to reprimands—not enough, in his view, to show a conspiracy to lie. It would emerge that Mayes had undercounted the grudges, but his opinion that bad motives did not explain the charges was accepted by Garrison, who, having entertained the possibility of a dozen liars in the Army, undoubtedly welcomed the findings.
In January, Senator Hitchcock had aroused Garrison’s emotions, prompting Garrison to write that “If . . . bad motives have actuated these various witnesses, or any of them, and they have, under the influence of such motives, made false statements, then their conduct is reprehensible to the highest degree and they must be court-martialed.”10
By early February, Garrison seemed to have forgotten his own words. He let Wood hurry Mayes. Then he reacted in one day to the report’s findings. More time may or may not have affected the outcome, but here was a second investigation involving Ben that was rushed. Possibly, with a more careful review, Garrison might have asked himself or others why four men with grudges was not enough to make the case suspect. Now, contrary to Garrison’s earlier statement, bad motives by “any” of the accusers changed nothing.
Garrison may have had no personal animus against Ben, but he had no firsthand knowledge of him either. He knew only what people were telling him, and that ran the gamut, with one man consistently recommending a trial—Wood, who once wrote, “When I fight, I can’t fight softly. I try to hurt my opponent. I try to hurt him as much as I can.”11
Unfortunately for Ben, his last name alone placed him in Wood’s “opponent” camp, and there was no countervailing weight. Wood had headed the Eastern Department when Ben served in recruitment, but they had not worked together, and reports of Ben’s success in turning Fort Terry around would not have made their way to Wood and Garrison. Ben’s staunchest advocates, Kenly and Moses, did not stand in Wood’s inner circle, nor did Ben’s length of service earn him points with Wood, who was just as likely to believe that long tenure made an officer an impediment to reform. Add the claims of numerous men that Ben had groped them, claims that Mayes had not only ratified but expanded, and Ben had a great many strikes against him in Washington, fair or not.
In January, Louis had encouraged Ben to fight the charges, but a month later, after the second investigation went against him, the prospect of fighting the Army did not inspire as much hope. Ben may well have been willing to resign on February 10, when he met with Barry and Haan, accepting that he was being outmaneuvered—from below and above. Instead, he returned to Plum Island without options, knowing that Barry, the general who exhibited the most concern for him, was about to move to the Philippines.
What Ben and Sophia did not know, and perhaps even Garrison did not fully appreciate, was that the men running the Army never thought the second investigation might lead to Ben’s exoneration. General Crowder had endorsed further inquiry to sharpen the government’s trial strategy.12 The adjutant general had instructed that it be used to help write “definite charges” against Ben.13
Mayes did exactly that—and Ben naively helped him do it. When Mayes handed Ben a list of charges, Ben reviewed the two pages on the spot and pointed out errors. A date was wrong here, he was off the island there. Ben thought Mayes would withdraw those charges. Instead, when Ben and his counsel received revised charges, several dates had been changed—“by months and years”—and some claims had no dates at all.14 Through his voluntary statements, Ben strengthened the case against him and forfeited what would have been strong alibi defenses at trial.
Identifying mistakes in the charges was an example of Ben’s continued belief in the Army’s good faith. Even as powerful people in Washington rushed to confirm his guilt, he still thought Mayes had an open mind and that the Army wanted truth and justice.15