When the committee next met on the last day of the year, a new chief counsel had finally been selected to replace Mitchell as of January 15, 1946. The unanimous choice was Seth Richardson, a staunch Republican from North Dakota, who had served the present Administration as chairman of the Subversive Activities Control Board. Long associated with the two isolationist senators from his state, Gerald P. Nye and William Langer, he himself had been a critic of Roosevelt but the majority had approved his selection to give the hearings that air of impartiality they had so far lacked. Lucas, his frequent golf partner, felt that he would not be harmful to the majority cause.
His selection created a minor mystery in Washington circles. Had it been a coincidence that his law office did business with the government and that he and Mitchell were old friends? Richardson had been selected by Herbert Hoover as Assistant Attorney General under Mitchell; and the retiring chief counsel had prepared for his successor a “Revised Order of Proof and List of Witnesses, and Explanatory Memoranda.” It revealed Mitchell’s own judgment of witnesses not yet interrogated and evidence not yet completed. In one section it was critical of Kimmel and in another it expressed near certainty that the “winds” execute message had never been received. Still another dealt with the White House papers of Roosevelt which the minority had been so anxious to get. Mitchell had requested that Grace Tully, the late President’s secretary, extract from the files for the year 1941 all papers relating to Japan, the imminence of war in the Pacific, or general Far Eastern developments. “Counsel has not yet had nor requested physical access to the files,” wrote Mitchell, “but has relied upon Miss Tully’s extraction of documents coming under the broad headings noted above.” Not all of the Roosevelt files had been checked, “but, of course, those considered likely to contain material relevant to the inquiry have been read.” Reliance upon a President’s loyal secretary to extract documents that could be embarrassing was naïve at best.
To ease himself into the task, Richardson, a bulky six-footer, was on hand to watch Mitchell and his staff interrogate Stark on December 31. Stark, relieved of duty by King at Forrestal’s order, was again counseled by Lieutenant Richmond. He had urged the admiral to “go after” Marshall in his opening statement. Richmond was angry because the former Chief of Staff was “coming through this looking like a hero, and he didn’t deserve it, and I wanted to take a good, sound whack at him.” But Stark refused. “I know you and George are good friends,” said Richmond, “but we’re trying to do something here that’s of tremendous historical significance.”
“Well, Dave,” said Stark, “let’s tell the facts about me, and if somebody wants to point the finger at someone else, let them do it, not me.” And so he refused to make adverse comments about Marshall, Roosevelt, Hull, Kimmel or others. He would leave evaluations to the committee. In his statement, Stark did introduce into the record a number of letters he himself wrote in 1941. Many were personal, and some so much so that he had suggested the recipients burn them. In one he wrote that he had told Roosevelt after Hitler invaded Russia, “I considered every day of delay in our getting into the war as dangerous, and that much more delay might be fatal to Britain’s survival.”
During the afternoon session Seth Richardson, who would soon replace Chief Counsel Mitchell, sat between Ferguson and Greaves, to get an idea of what was going on at the committee table. Later Greaves wrote a friend that Keefe was very enthusiastic about the new chief counsel but that Gearhart was much opposed “and feels that if he did anything against the Administration, he would be cutting off his chief source of income as a Washington attorney. Ferguson feels that they can’t do anything about it, so they might as well make the best of it.” Richardson, noted Greaves, had conversed in a very friendly manner with Ferguson, who had neglected to introduce him. “As yet Richardson has not decided on any assistants and I do not know that any serious effort was made to get minority help, as Lucas is branding Richardson as a Republican.”
For three more days Stark was forced to submit to harsh questioning. Unlike Marshall, he was treated by the Democrats as a defendant who was as guilty as Kimmel and Short. Then a Republican, Gearhart, queried him about his loss of memory on the night of December 6. “In view of the fact that the Chief of Staff cannot remember where he was on that night is it possible that you and he could have been in each other’s company that night?”
“I think we had no such conspiracy at that time, sir,” replied Stark, causing some stir by the use of the word “conspiracy.”
“Well, do you shut it out as being an utter impossibility that you and he could have been in each other’s company that night?”
It was not an utter impossibility, admitted Stark, “but I think we were not.” The “think” was provocative to some observers. On January 5, Ferguson questioned him on the controversial staff conversation with the British and Canadians early in 1941 which had led to a Joint Basic War Plan directed against the Japanese. In Stark’s original statement it was noted that this plan was approved by the Secretaries of War and Navy, and by the President. Stark had put a line through “and by the President.”
“I want to know,” said Ferguson, “when you put that in there, whether you were of the opinion personally that that had been approved by the President?”
“Yes,” replied Stark. “He approved my sending it out, although he had not officially approved it.”
This not only ended Stark’s interrogation but was also the last appearance for Chief Counsel Mitchell at the hearings. In ten days the investigation would lie in the hands of Richardson, who was well meaning if ill prepared.
The hearings were recessed to give Richardson a chance to study the case. His first witness on January 15 was Kimmel. Now at last the admiral would have his day in court. What had concerned the attorneys for both Kimmel and Stark was the bad feeling between the two admirals. Stark had already written Kimmel to offer anything in his files. He had also invited Kimmel to his home for lunch, but both offers had been declined. Even so, Stark told David Richmond that he was to consider himself Kimmel’s lawyer just as much as his own. “I want the truth to come out. Don’t spare me in any way.”
At his first meeting with Kimmel’s attorneys Richmond had remarked that it was an awful shame that their two principals were at such odds. “It wouldn’t take much for Stark to be a good friend of Kimmel. He’s not mad at him.” The reply was that their fellow was pretty mad at Stark. Richmond proposed they do something and their efforts had some effect. Kimmel and Stark did shake hands and on that morning managed to greet each other publicly.
Dressed in a dark suit with a bright blue tie, the sixty-three-year-old Kimmel began to read a 25,000-word statement asserting that Washington had denied him information that might have made Pearl Harbor an ambush for the Japanese. His voice was strong and he punctuated points with aggressive finger-pointing. He had come not with bowed head but full of fight. He was angry that the committee had already released to the press his and Short’s testimony given at previous investigations. “This was unquestionably done with the object of lessening the impact of my statement when it was read.”
The next day Kimmel told of the abuse and threats to his life that followed the Roberts report. Asked by Richardson if there had been a close personal relationship with Stark before Pearl Harbor, Kimmel said he’d had the highest regard for him. “I trusted him, and I felt he was one of my best friends. I had that feeling, but I cannot forget the fact”—he paused as if restraining himself—“well, events that have occurred since then.”
During four and a half hours of questioning by Richardson and Vice Chairman Cooper the admiral flung back quick, authoritative answers. “I could have saved the fleet if given facts,” he said. “Had they given me those dispatches, dispatches that were my primary concern—the people in Washington had other things to do—I can say without reservation they would have changed my ideas considerably. My staff still feels the same way. We were there—on the ground.”
Friday, January 18, was a harrowing day for Kimmel, who had trouble hearing some of the sharp questions by Lucas. Several times he protested that he was deaf. This disability was compounded by the district-attorney manner of the senator. To wind up his interrogation Lucas asked, as if it were an accusation, “From November 24 until the hour of attack did you exercise that superior judgment necessary for one of your rank and position when you knew the war was practically imminent?”
“I did.”
“In other words, Admiral, you are now telling the committee under solemn oath that you did not commit any mistakes or commit any errors of judgment from November 24 to December 7?”
“I would say that is a reasonable conclusion, and it is a conclusion that the Naval Court of Inquiry, composed of three Admirals, selected by the Secretary of the Navy came to when they submitted their report to the Secretary of the Navy.”
On Saturday Representative Murphy of Pennsylvania continued the aggressive Democratic interrogation of Kimmel. But pressure on the admiral was relieved by an argument between Murphy and Keefe. Since the beginning of the hearings the two Irishmen had crossed swords good-naturedly but lately bitterness had crept into their colloquies.
“Now, Mr. Chairman,” said Murphy, “the gentleman on the left has made a statement before I started a question and he was going to try to cut me off.” Though he was a head shorter than Keefe, he was sharp of tongue and as feisty as Jimmy Cagney. He had tried forty-five murder cases as Assistant District Attorney without losing one. “We are all men. Now let us not have this needling going on. I want to conduct a fair examination and I do not propose to be cut off.”
Murphy continued his acute and contentious interrogation of Kimmel for another hour before Brewster finally took over for the Republicans. At last Kimmel had an ally. “I appreciate as you do that perhaps necessarily over the past few days, this entire week now, there has been much that is repetitious in the very extended examination. I do not want to single out any of my colleagues by undue mention, but I do want to say Mr. Cooper, who is perhaps of the most belligerent variety, has questioned you in his customary style.” He smiled. “When I went before him as a witness one time in the House he offered to throw me out of the room.” There was laughter.
“I can appreciate the belligerency,” said Kimmel. “I may have indulged in that sometimes myself. I do not object to it.” What he objected to privately was the deletion of some of his own remarks from the record.
Brewster continued with questions that Kimmel was pleased to answer. Until then the committee had only been told of the defensive duties of Kimmel’s Pacific Fleet. Now he was asked to enumerate the fleet’s considerable offensive responsibilities. These included support of Allies in the Far East by diverting enemy strength away from the Malay Barrier; protection of sea communications of the Allies within the Pacific area; support of British naval forces in the area south of the equator; and protection of Allied territory within the Pacific area “by destroying hostile expeditions and by supporting land and air forces in denying the enemy the use of land positions in the Hemisphere.”
“Now those are rather large orders, are they not?” said Brewster.
“Yes, sir,” said Kimmel, and charged that Rugg had twice pointed out to Mitchell and Gesell that the true picture of Kimmel’s offensive responsibilities had not been presented to the committee.
Brewster asked what reply Gesell had made to Rugg regarding that request.
“I do not know as he made any reply, but he did not do anything about it.”
A volume containing the war plans of the Pacific had been delivered to the committee, but only one copy made available. It was so bulky that no one had time to read it and Mitchell had kept it out of the record. Now, thanks to Brewster, Seth Richardson finally let it be entered. “It contained the first inkling of what Admiral Kimmel had been ordered to do in the so-called ‘war-warning’ message, first mentioned in the Roberts Report,” recalled Greaves. “Unfortunately, no copies were given or shown to the press until the entire proceedings were printed many months later.”1
“Murphy took up most of today but got nowhere in particular,” Greaves reported to columnist John T. Flynn, who was spending much of his working day on Pearl Harbor. Greaves told of Brewster’s success in bringing out Kimmel’s offensive responsibilities. “Both Mitchell and Gesell tried to keep it out, but it is now in evidence.… Brewster brought out that no one would be able to judge whether Kimmel carried out his assignment without knowing what it was and there had been attempts to suppress what his full duties were. Rugg seemed very enthusiastic about the results so far.”
On the following Monday Kimmel’s testimony ended, this session highlighted by Gearhart’s lengthy criticism of the war warning message on November 27. How could Kimmel be condemned for being caught by surprise, said Gearhart, “when everybody above him, the Commander in Chief of the armed forces of the United States, the Chief of Naval Operations, the Chief of Staff of the Army, all insisted that they were surprised.”
To Kimmel it was a satisfactory ending. He wrote his brother, Colonel Manning Kimmel, that although only a very small part of the evidence had so far been presented, he had finally had the chance to tell completely his story about Pearl Harbor; and had it not been for this investigation he was “confident that the Navy Department would never have permitted me to disclose this story. They would have kept it under wraps on the plea that any disclosure would jeopardize our code breaking activities and that would have left me hanging in the night. So I suppose I should be thankful for small favors and certainly telling my story in public has relieved my mind and reduced my blood pressure considerably.”
The next day it was Short’s turn. He was now represented by a young Army captain; his former counsel, General Green—whom both Kimmel and Rugg had suspected of connivance with Marshall—was now the Army Judge Advocate General. Short declared that he had been treated unjustly by the War Department. “I was singled out as an example, as the scapegoat for the disaster. I am sure that an honest confession by the War Department General Staff of their failure to anticipate the surprise raid would have been understood by the public, in the long run, and even at the time. Instead, they ‘passed the buck’ to me, and I have kept my silence until the opportunity of this public forum was presented to me.”
The burden of examination was handed over to Samuel Kaufman, the associate general counsel. It was obvious to Greaves that Kaufman was already convinced of Short’s guilt and was doing his best to shift the blame for the wrong alert from Marshall to Short by skipping over that part of the war warning message that placed full responsibility on the Chief of Staff. “He even tried to ignore Washington’s instructions to look out for sabotage. He omitted entirely the shabby way the General’s retirement had been handled. From his questioning you would have thought the Hawaiian commander was a dunce while those in Washington were wise men.”
Short’s fourth day on the stand was the most dramatic and moving. In the presence of his son, Major Walter Dean Short, he described the Roberts Commission hearings as “star chamber” proceedings at which he had no opportunity to hear the testimony of other witnesses or cross-examine them in his own defense. In a voice still weakened by recent illness, he said, “When I read the findings of the Roberts Commission in the newspapers on the morning of January 25, 1942, I was completely dumfounded.” It was beyond his comprehension to be accused of dereliction of duty after almost forty years of loyal and competent service. “I immediately called General Marshall on the telephone.”
Tears came to Short’s eyes as he told how his old and trusted friend of thirty-nine years’ standing said he had not seen the Roberts report until that minute. “I asked him what I should do, having the country and the war in mind, should I retire? He replied, ‘Stand pat but if it becomes necessary I will use this conversation as authority.’ I told him I would place myself entirely in his hands, having faith in his judgment and loyalty.” But the next day Marshall had sent a memorandum to Stimson stating, “I am now of the opinion that we should accept General Short’s application for retirement today.…” Short dabbed quickly at his eyes with his handkerchief; sitting behind him, his son did likewise. “… and to do this quietly,” continued Short, “without any publicity at the moment.”
Brewster asked if the Marshall memorandum to Stimson indicated a radically different position than the Chief of Staff had taken the day before. “Yes, sir,” said Short. He seemed more hurt than angry. “And the day before he had told me to stand pat.”
Later he did show anger and indignation when asked to comment on a list of possible charges to be brought against him in a memorandum compiled by the Adjutant General’s office in 1942. To every charge, Short answered with spirit, “Not guilty!” and then gave his reasons. He concluded by stating that he had “never at any time tried to pass the buck to a single subordinate.” He may have been tempted to add “like the War Department,” but didn’t.
It was fitting that the next witness be Justice Roberts. He had come reluctantly and became testy under badgering by the minority, apparently resenting the fact that a justice of the Supreme Court should be forced to endure such indignity. To Brewster’s question whether there had been any mention in the commission’s hearings of the “winds” message, Roberts replied curtly, “I have no recollection of any such thing. And I think you will search the testimony in vain for any reference to it.”
Ferguson picked up a transcript of the testimony before the Roberts Commission. “You were the chairman, and this is your language,” said the senator, and began quoting: “ ‘It has been reported to me that about ten days before the attack a code was intercepted which could not be broken, but it was forwarded to Washington to the War Department to be broken, and the War Department found out it could be broken and did break it, and found it contained three important signal words which would direct the attack on Pearl Harbor, and that the War Department subsequently intercepted over the radio those three signal words and forwarded them to the military authorities here as an indication that the code had been followed and that the attack was planned.’ ” Ferguson extended the document to Roberts. “I wish you would look at that.”
“You don’t need to show it to me,” the justice replied testily. Ferguson asked what he was talking about in that quote. “I was talking about some information that had been given me somewhere around Pearl Harbor. People were coming to me all the time telling me there was such and such a rumor. You see I say ‘It has been reported to me.’ ”
“Wouldn’t this describe the ‘winds’ code message?”
“Very likely it would,” admitted the justice. “Very likely so.”
Did Roberts follow up on the matter? asked Ferguson.
“Yes, sir. We asked for all the messages there were about any broken codes and we were told we had all they had except this Magic thing.”
“Do I understand that you did not get the Magic?”
“No, we were never shown one of the Magic messages,” said Roberts, then admitted he knew the Army or Navy had been cracking a super code of the Japanese. “They did not show us the messages, any of them, and I didn’t ask them to.”
“That being true,” said Ferguson, “how was this finding possible …”
Roberts angrily interrupted. “Now, Senator, is this an investigation of the Roberts Commission or an investigation of what happened at Pearl Harbor?”
Ferguson was somewhat intimidated. “I am trying to get the facts.”
“When you ask ‘How is this finding possible?’ I don’t find you criticizing me a bit,” retorted Roberts sarcastically.
“I am not criticizing,” said Ferguson. “I want to know on the facts you had before you …”
“How we could make a certain finding,” interrupted Roberts.
“Yes.”
“I think that is criticism.”
Though cowed, Ferguson returned to the attack. He read from another document that the Secretary of State had fulfilled his obligations by keeping the War and Navy Departments in close touch with the international situation and fully advising them respecting the course and probable termination of negotiations with Japan. He turned to Roberts and asked how the commission could make a finding if it didn’t have the facts.
Roberts replied that he had spent an entire day in Hull’s office. “… Secretary Hull showed me his personal memorandum where he had noted that on a certain day he had told the Secretary of War and the Secretary of the Navy this, that and the other thing, and where he got that information. I didn’t ask him, but I was perfectly convinced, and our commission was convinced from my report to them of the testimony he brought to me, that Secretary Hull had been warning the War and Navy Departments day by day and day by day that something might happen this day or that day, that the situation was degenerating, and so on.”
“All right,” said Ferguson. “Now, Justice, that part of the testimony is not in the testimony furnished to us, is it?”
“Certainly not. They had a stack of memoranda of the State Department that high, or Hull’s personal memoranda and in order to recap it I asked him to write the letter which is in our record.” He explained that his commission had not gone into any question of Hull’s or the President’s policy and was limited solely to the Army and Navy.
“All right,” said Ferguson. “Then we come to the next finding in your conclusions.” He read:
“ ‘The Secretary of War and the Secretary of the Navy fulfilled their obligations by conferring frequently with the Secretary of State and with each other and by keeping the Chief of Staff and the Chief of Naval Operations informed of the course of negotiations with Japan and the significant implications thereof.’
“Now,” continued Ferguson, “without having the intercepted Magic messages, did you make this finding? I will put it that way.”
“Why, certainly. The Chief of Staff and Admiral Stark told us and the Secretary of War and the Secretary of the Navy told us that every time Hull gave them a warning they would go and repeat it to the Chief of Staff and to the Admiral. I did not need to look at any messages to find out whether Marshall and Stark had been sufficiently warned. That is all I was interested in.”
But, asked Ferguson, did he not know that Knox, Stimson, Hull, Stark and Marshall were all being furnished the Magic?
“I did not know it and I would not have been interested in it,” said Roberts.
Ferguson was taken aback, as were some of the spectators.
Roberts reverted again to sarcasm. “Let’s investigate the Roberts Commission. I would not have been interested in it, Senator. I wanted to know whether the military men were put on full warning and put on their toes by the men who had the information. I got a unanimous statement that they were.”
“Well, then, Justice, if your commission was not furnished all the data that we had here in Washington, how could you make a finding on whether or not they were on their toes out in Hawaii and knew all the facts?”
The justice was becoming openly belligerent. He repeated he had not seen the Magic. “I would not have bothered to read it if it had been shown to us. All I wanted to know was whether the commanders [Kimmel and Short] had been advised of the criticalness of the situation.” He had found from the messages sent them that they had ample warning and that they had orders from headquarters. “Now, they could have been sent more, of course,” he said, adding derisively, “They could have been sent a message every two hours.”
Ferguson took him literally. “Well, now, wait. If there was a message coming in every two hours and that information would have given them more warning wouldn’t there then have been neglect on those here who did not send it?”
“Now, do you want me to make your report?” Roberts was losing his temper.
“Well, I have made my conclusions. My commissioners joined me in making the conclusions. If you reach a different conclusion, certainly that is your privilege but don’t ask me to check your conclusions.”
He may have been intimidated, but the senator pointed out that the oral evidence of the commission amounted to 1,887 typewritten pages while the photostatic copy only had 1,862. There were twenty-five less. He asked the justice to look at the page with this information.
“I do not need to, sir.”
“Can you answer it if you do not need to look at it?”
“Yes; I can answer it. I do not know why the discrepancy.”
Obviously ill at ease, Ferguson pressed on. “On the day you spent some two hours with the President, the day you made your report, did you have a discussion of the facts?”
“Well, will you try and give us what took place there and that will answer the question.”
“Well, I think it a highly improper thing but if you ask it I suppose I am bound to answer it.” Reluctantly Roberts told of the conversation, which revealed nothing startling.
“Well, now, Justice, what was wrong with the question I asked you, to tell me what the President had said?”
“Well, now, Senator,” mimicked Roberts, “I am not going to indicate whether Senator Ferguson is wrong. We have been inquiring about how wrong Roberts is. Don’t let us get clear off that line.”
“I was wondering why we shouldn’t have the facts as a committee.”
“Well, I’m not going to argue it with you, Senator. I said I was going to try to answer your questions.”
Ferguson appeared disheartened to Greaves. “My personal reaction,” recalled the latter, “was that the Senator was deeply shocked by such conduct. The Senator’s own judicial background had led him to revere all Supreme Court Justices.” Ferguson laid down Greaves’s question list and left the battleground to Brewster. Definitely not one to be intimidated, he approached the task with relish. “I would like to take up one further matter, Justice, and I think you will understand that it is very rare for us to have an opportunity to examine a former Justice of the Supreme Court.”
“Well, I hope they are having as much fun as I am.”
“It is rarely we can suggest that a witness may be unduly sensitive, although without positive—”
“Oh, no,” interrupted Roberts, “I am just plain Mr. John Citizen now; you know that. I haven’t the high exalted position that you hold now.”
Brewster hoped the justice would appreciate the difficulty of the commission’s situation; and then asked why General Marshall had testified that portions of the Roberts report had been suppressed for reasons of military security.
Roberts’ momentary show of good nature dissolved. He snapped, “Well, I have testified to the facts. Now if you want me to say, which I think is a very improper thing, that General Marshall was wrong, I will say General Marshall was teetotally wrong. I have given you facts. The facts are all typed, they are not my word against General Marshall’s word.”
Brewster would not submit to Roberts’ testiness. Raising his voice, he sharply counterattacked. “I do not think it is questioning the integrity of General Marshall or criticizing you when your attention is called to the testimony of General Marshall before this committee, and it was called to your attention for any comment you desired to make, and I do feel very confident, in examining your distinguished record both as investigator and justice of the highest court in this country for many years, that you have found that this [situation] could be duplicated many times.”
Bowing sardonically, Roberts retorted, “Thank you for those kind words.” A few minutes later Barkley attempted to make a joke out of an embarrassing afternoon. “Mr. Justice, the committee thanks you for your cooperation. It regrets the necessity of bringing you from what Horace in his ‘Odes’ said is a Sabine farm.”
Roberts smiled. “I cannot get back in time to milk, Mr. Chairman.”
“I would like to have a photograph of you in that operation,” said Barkley.
“I think that is the most irrelevant of anything that the committee has asked me for.” There was a burst of laughter and Justice Roberts was excused.
Monday the twenty-eighth of January had provided an entertaining if sorry spectacle to the reporters and spectators in the crowded, smoke-filled room. To some it was an outrage that a justice of the Supreme Court should be treated so roughly. To others Roberts’ behavior was a blow at the vaunted objectivity of that court. But an even higher drama seemed in sight with the announced appearance in a few days of Captain Laurance Safford. It was expected that he and Kramer would consume more than a week of high-tension testimony which would settle the crucial issue of the “winds” execute one way or the other.
1This important document was buried among exhibits on pages 2882–883 of Vol. 18, Joint Committee Hearings. See Notes.