The Law of Unintended Consequences on the Sea and the CNO’s Office

The Law of Unintended Consequences on the Sea and the CNO’s Office

Keith Nightingale

Colin Powell made the comment that all large decisions become subject to the Law of Unintended Consequences.  By that he meant some of the results of a decision are unforeseen and not understood when rendered.  Such may well be the case concerning the Navy’s decision to criminally charge a number of its officers who were responsible for the ships that collided in the Pacific with disastrous results.

The likely fallout from these trials may well prove the point.  A bit of history is helpful here that the very senior Naval folks may have overlooked or ignored.  A major internal sine qua non within the Navy is preservation of the institutional reputation, perhaps even when recovery efforts are equally or more disastrous to that reputation.  A couple of examples of such efforts within my own institution—the Army—may be illustrative.

The Billy Mitchell trial:  Designed to stop demonstrating the unthinkable that “planes can sink ships” and to rein in a free thinker who was off the reservation—BG Billy Mitchell.  The result was widespread public acknowledgment at the time that Mitchell was right, and the petrified minds above him patently wrong.  MacArthur presided at the trial and forever wished that knowledge to go away.  The Navy listened and began to make a considerable investment in something called an aircraft carrier.

The My Lai/Calley courts martial:  I was present at Ft. Benning when defense lawyer F. Lee Bailey eviscerated the Army daily and forced an outcome far from what the Army intended.  The problem with My Lai was shown to be far above Lt. Calley’s pay grade and the outcome a stain on the reputation the Army sought to preserve with its decision to try Calley rather than others or just quietly fix the issues.  Lt. Calley retired to a nice job, several flag officers resigned, and the Army tightened up its officer admittance standards.

The Yellow Fruit courts martial:  In the mid-1980s, then Chief of Staff of the Army, John Wickham and his cohort, then LTG Max Thurman, determined that all that “SOF stuff” invented by General Shy Meyer was not Army stuff and unleashed an investigation into the DCSOPS staffers who were in the forefront of the buildup.  They were egged on by the very ambitious, Mr. Theodore Greenberg, the Asst. US Attorney for D.C., who threatened to take the Army to trial if it did not bring the miscreants to trial internally.

A Joint Army-US Attorney investigation developed eight separate trials—all highly classified—in which two officers went to jail and the others exonerated.  All the juries were basically selected by the prosecution with minimal flexibility allowed to the defense.  Attempts by the media to understand and explore the issues, most strongly by the Washington Post, were met with denials, obfuscations, and a stone wall.  I testified at all eight trials as an expert witness of the funding process and was simultaneously accused, informally, by the prosecution, of hiding funds for my own gain. They finally gave up when I produced a volume of memos, which they already had and were knowledgeable of, with General Meyer’s signature acknowledging and approving the transactions.

In all eight trials, the prosecution attempted to deny the jury access to the memos and in each case, were overruled by the trial judge.  In time, the Chief Justice of the Military Court of Appeals threw out all the convictions, exonerated the defendants, accused the Army of undue classification, and strongly admonished the Army for hiding exculpatory evidence and jury packing.  The Navy is about to suffer the same fate, albeit on different issues.

In the quiet confines of the Pentagon’s E Ring, the very senior decision-makers determined that the reputation of the Navy was the overriding issue concerning the collisions and, in keeping with naval tradition, the senior ship’s officers would be formally charged.  This would show the Navy in its finest light as preserving its reputation and openly trying the miscreants.  I opine that it will not come out that way, and that the Navy will have torpedoed its reputation.  This action will be seen as an extraordinarily stupid move by the Navy and it will lose regardless of the actual verdict.

Some Points

If the Naval court denies or highly circumscribes the discovery items regarding training, readiness, rest, internal back channels on the stress, crew member observations etc., it will be accused of running a kangaroo court—items the defense will insure the media knows by various means.

The very public sacking of a panoply of Admirals and the rationale, clearly infers that the Navy understood that a whole variety of systemic problems caused the collisions.  The image at trial, strongly presented by the defense, will be that the Navy is using the defendants as scapegoats for its own ills.  The same point, different facts, that Bailey used so effectively in the My Lai trials.

Should the Navy attempt to classify the trial, it will look like an attempt to deny public access and conceal the Navy’s ills—points the defense lawyers will make in public. The press, possibly assisted by the defense, will accuse the Navy of using classification to hide its internal management of the facts surrounding the issue as the Army tried in Yellow Fruit.

If the defendants are found guilty, it is likely they will resign/retire and become major talking heads on all the networks for several weeks.  Civilian defense lawyers certainly will, not only relating the ills in the system, but also likely embellishing the more colorful.  And........they will have great credibility.

If the defendants win, it will make the Navy look incredibly stupid, points that will hammered home on several iterations of the Sunday talk shows.

Regardless of outcome, Congress and some of its strongest personalities are bound to pillory the Navy at its budget hearings for beating up the helpless victims of Naval shortcomings.  The trials may be a pyrrhic victory at best and a budgetary disaster at worst.

The Navy may argue that facts speak for themselves and that the responsible parties will be held responsible—hence the trial.  However, the media and defense, will paint a much different, more plausible/resonating picture, that the institution is much more at fault than the individuals on the bridge. You can bet the mortgage on this.

The decision by the Navy to place these men on trial will open a Pandora’s Box of the law of unintended consequences.  History indicates the outcome will be virtually all bad and little good for those that opened the lid.

Institutional reputation-based trials, such as those previously mentioned, virtually always have the opposite effect from what the convening institution assumed or wished.

This decision is part of the long history of the Navy to "protect its institutional reputation" at virtually any cost.  If we identify this as "tradition," we should be mindful of Churchill's retort to Admiral John Fisher, who was describing a particular policy as "preserving tradition,"

“Don't talk to me about naval tradition.  It's nothing but rum, sodomy, and the lash.”