Supreme Court Justice Owen Roberts’ Performance—“Crooked as a Snake”? (Regardless the Damage Can Still be Corrected)

by Thomas K. Kimmel, Jr., and J. A. Williams, Esq.

Introduction

The Judicial Branch’s investigation of the Executive Branch’s fiasco at Pearl Harbor vividly highlights the need for the separation of governmental powers.1

Following the Pearl Harbor disaster, the Executive Branch’s Chief Executive—FDR—reached out to the Judicial Branch by appointing Supreme Court Associate Justice Owen Roberts to investigate.2 Justice Roberts hastily pointed two fingers of blame: one at Admiral Husband Kimmel and the other at Lt. General Walter Short, the Navy and Army commanders in Hawaii. Then, drawing conclusions beyond the scope of his authority, Roberts found that the Washington High Command “fulfilled their obligations.”3

During his investigation and after receiving information from the FBI about possible advanced knowledge of the attack, Roberts all but ignored J. Edgar Hoover’s suggestions on how to investigate it, which, if followed, would have revealed the truth: When the highest ranking officers of the Army and the Navy advised Justice Roberts that Admiral Kimmel and General Short had the same vital information available from the

1 Alexander Hamilton’s cautionary dictum comes to mind: “The Executive . . . tends to conceal faults and destroy responsibility. It often becomes impossible, amidst mutual accusations, to determine on whom the blame or the punishment . . . ought really to fall . . . . [W]ho is there that will either take the trouble or incur the odium, of a strict scrutiny into the secret springs of the transaction? “[I]f there happen to be collusion between the parties concerned, how easy it is to clothe the circumstances with so much ambiguity, as to render it uncertain what was the precise conduct of any of those parties?” Alexander Hamilton, The Federalist Papers #70, 1788._____________________________2 “Roberts had been one of the most clamorous among those screaming for an open declaration of war. He had doffed his robes, taken to the platform in his frantic apprehensions and demanded that we immediately unite with Great Britain in a single nation. The Pearl Harbor incident had given him what he had been yelling for – America's entrance into the war. On the war issue he was one of the President's most impressive allies. Now he had his wish. He could be depended on not to cast any stain upon it in its infancy.” John Flynn, "The Final Secret of Pearl Harbor" (October 1945); http://www.antiwar.com/rep/flynn1.html.3_____________________________ Report of the Joint Committee on the Investigation of the Pearl Harbor Attack Congress of the United States; Pearl Harbor Attack [hereafter PHA], U. S. Congress, Joint Congressional Committee [hereafter JCC] on the Investigation of the Pearl Harbor Attack, 79th Congress, 40 parts, Washington, D.C.: U.S. Government Printing Office, 1946, Part 39, pages 1-21 [Hereafter 39PHA1-21].____________________

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intercepted Japanese messages, as they had in Washington— i.e., MAGIC4 —such representations were false.

In 1944, Kimmel’s attorney, Charles Rugg, briefed Justice Roberts on the false testimony that did irreparable prejudice to Kimmel and Short. Remarkably, rather than complain to the Secretary of the Navy about being misled by the Washington High Command, Roberts, apparently, animated the Secretary of the Navy to silence Rugg.

In 1946, when testifying before the Joint Congressional Committee, Justice Roberts, the evidence suggests: 1. dissembled about receiving advanced knowledge information from the FBI; 2. dissembled about receiving Hoover’s investigative guidance; 3. ignored the false testimony given him by the Washington High Command; 4. minimized the obvious importance of MAGIC to his investigation; and 5. made no attempt to atone for the irreparable prejudice he had visited upon Kimmel and Short.

Roberts Commission member Admiral Standley worried in 1955 that, “nothing would be done to correct any inequities in punishment.”5 He was right, but the means to do so still exist. Advancing Kimmel and Short posthumously on the retired list would remove the last stigma left on them by Justice Roberts.

I. December 1941, and January 1942—Justice Roberts’ Investigation of J. Edgar Hoover’s “Complete-Plans” Memorandum.

On December 7, 1941 the President of the United States was asked: “How did the Japanese catch us with our pants down?”6 The Congress of the United States later asked: “one enigmatical and paramount question . . . . [w]hy was it possible for a Pearl Harbor to occur?”7 On December 11, 1941, the Director of the FBI, J. Edgar Hoover, thought he had the answer and sent it to the President immediately: Army and Navy Intelligence in Washington, DC had learned “the complete plans for the attack on Pearl Harbor, as it was actually carried out” days before the attack.8

4 "MAGIC was the term coined by Admiral Anderson, Director of Naval Intelligence, to refer to any decrypted Japanese code message." (Roberta Wohlstetter, Pearl Harbor Warning and Decision, Stanford University Press, Stanford, California, 1962, p.75, fn 5.) MAGIC diplomatic and spy messages prior to the Pearl Harbor attack gave indications of the time, place, reason, and deceit plan to cover the attack. The Hawaiian commanders, Kimmel and Short, were not given this vital information._____________________________5 William H. Standley, Admiral Ambassador to Russia, Henry Regnery Company, Chicago, 1955, p. 83.____________________________6 John Toland, Infamy, Pearl Harbor and Its Aftermath, Garden City, New York: Doubleday and Company, 1982, p. 14._________________________ 7 Report of the Joint Committee on the Investigation of the Pearl Harbor Attack Congress of the United States, Majority Report, page 253; 40PHA253, op. cit._________________________8 “Federal Bureau of Investigation MEMORANDUM FOR THE DIRECTOR, DATE 12/11/41,” signed, “D M Ladd,” Author’s file 2102—“PEARL HARBOR Documents from Mr. Hoover’s and Mr. Nichols’ Official Files.” Hereafter, the “Complete Plans” Memorandum.

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In a memorandum, dated December 11, 1941, FBI Assistant Director D. M. Ladd informed FBI Director J. Edgar Hoover, and several of his assistants, that:

Colonel John T. Bissell9 today informed [FBI Special Agent] G. C. Burton,10 in the strictest of confidence (and with the statement that if it ever got out that he had disclosed this information he would be fired) that about ten days before the attack on Pearl Harbor a number of Japanese radio intercepts had been obtained in Hawaii. When they were unable to break the code in these intercepts in Hawaii they sent them in to Washington where G2 [Army Intelligence Section] broke them. It was found that these radio messages contained substantially the complete plans for the attack on Pearl Harbor, as it was actually carried out. The messages also contained a code Japanese word which would be sent out by radio to the Japanese fleet as the signal for the attack, when this word was repeated three times in succession. A message was sent by Army radio to the Hawaiian Islands, setting forth this entire plan for the information of the authorities in Hawaii.

On Friday morning, December 5th, the code words referred to in the previous messages as the signal for the attack were intercepted, which would have indicated that the attack was to be on either Saturday or

_________________________9 The source’s name was redacted by the FBI circa 1979 when the document was first released publicly by the FBI. The source was identified in 2002 when the FBI accessioned the information to the National Archives and Records Administration (hereafter NARA). Colonel John T. Bissell, aka., Brigadier General John Ter Bush Bissell, had been Chief of Counter Intelligence, MID, G-2, Army Intelligence in Washington, DC, during the attack (and should not be confused with General Clayton Bissell, who was Assistant Chief of Staff for Intelligence in 1944 and 1945). As reported by the Clarke Investigation, General Spalding testified to the Clarke Investigation that Bissell told him that, “You [Bissell] told him [Spalding] that certain messages had been received, these messages pertaining to Pearl Harbor and were in the files of G-2 and that you [Bissell] deemed it most necessary to destroy them.” General Bissell denied telling Spalding the preceding and what he told Spalding was, “I had been directed by the A. C. of S, G-2 to draft a message to the G-2 Hawaiian Department [Colonel Fielder] . . . to be prepared for possible sabotage. . . . I stated that, as I recall it, that I had stayed in the office one evening until about eight o’clock, at the direction of General Miles, who was then the A. C. of S., G-2, and had prepared a message alerting the Hawaiian Department for possible sabotage and stressing the strained relations between the U. S. and Japan. I took the message in to Gen. Miles personally. He read the message and change [sic] it materially, stressing the sabotage angle more than I had. That message, as far as I knew was sent. The draft which I drew Gen. Miles destroyed as it was marked Secret.” See 34PHA101. General Bissell did not testify to the JCC, or to any other Pearl Harbor attack investigation except the Clarke Investigation. If the JCC had known about Bissell’s “Complete Plans” information, perhaps they would have been interested in having him explain why he felt compelled to secretly give this information to the FBI after his boss, General Miles, “materially” changed Bissell’s proposed warning message to Hawaii. It seems fair to ask, was Bissell worried he would be blamed for putting Hawaii on an inappropriate sabotage alert?_____________________________10 Burton’s name was redacted by the FBI circa 1979 when the document was first released by the FBI. The name was identified in 2002 when the FBI accessioned the information to NARA. _____________________________

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Sunday, and this information was sent by military radio to the Hawaiian Islands.

Colonel Bissell stated there was a great deal of inquiry going on at the present time of determining the reason for the fiasco at Hawaii, the inquiry being directed along two lines, first whether there was a breakdown in the military radio and a failure of the message to get across, or second whether the message was delivered and not acted upon by the military authorities. Colonel Bissell stated it was his understanding that when this all came out they would clean house in the Navy.11

The day after receiving the “Complete Plans” Memorandum, Mr. Hoover, by telephone and twice by letters advised President Roosevelt’s Press Secretary Steven Early of essentially the same information.12 Justice Roberts, was likewise advised on

11 The “Complete Plans” Memorandum, op. cit._____________________________12 Hoover’s two letters of December 12th clearly use the language of the “Complete Plans” Memorandum of December 11th:

About ten days prior to the Japanese attack on Pearl Harbor a number of Japanese radio messages were intercepted by Military authorities in the Hawaiian Islands. Being unable to break the code in these intercepts, the messages were sent to Washington where Military Intelligence broke the code, discovered that the messages contained substantially the complete plans for the attack on Pearl Harbor as it was subsequently carried out. The messages contained a code Japanese word which would be sent by radio to the Japanese fleet as the signal for the attack when the word was repeated three times in succession. Military authorities in Washington sent by Army radio to the Hawaiian Islands the entire plan for the information of the authorities in Hawaii. On Friday morning, December 5th, the code word previously identified as the signal for the attack was intercepted, which indicated that the attack was to be made on Saturday or Sunday, and this information was sent by Military radio to the Hawaiian Islands. At this time it is impossible to determine whether there was a breakdown in the Military radio and a failure of the messages to reach their destination, or whether the messages were delivered but not acted on by the Military authorities.

Mr. Hoover letters and memoranda to Steven Early, dated December 12, 1941, declassified 1979. Author’s file 2223A, pp 54-9. The first letter includes an unrelated lead, but the second letter contains only the “Complete Plans” information exactly as stated in the first letter, but with this comment:

In line with my telephone conversation this morning, I am inclosing herewith a memorandum containing some highly confidential information indicating that our military authorities had notice of the forthcoming attack upon the Hawaiian Islands and that in fact on Friday, December 5th, two days before the attack, the code word which the Japanese had chosen to be the signal for the attack was intercepted, which indicated the attack was to be made either on Saturday or Sunday, and that this information was sent by the military authorities from Washington to the Hawaiian Islands in advance of the attack.

As I indicated to you, it is of the utmost importance that the inclosed information be treated in the most confidential manner because it is necessary to protect the source from which I have obtained it.

______________________________

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December 17, and again on December 18, 1941, in Mr. Hoover’s letter, in a paragraph titled, “Disregard of intelligence information.”13

Moreover, Mr. Hoover boldly suggested to Justice Roberts how to investigate the matter:14

Inquiry should be made as to the date those messages were received at Washington, the date of their transmittal to Hawaii, the details of the interception of the coded words, the identity of the officer charged with handling this information at Hawaii, and what action or consideration, if any, was given to this intelligence.15

In other words, Mr. Hoover felt the “Complete Plans” information was sufficiently credible to warrant a full-scale investigation of its origin, who received it and when, and the response to it.

If true, Mr. Hoover’s “Complete-Plans” information would have been the most relevant and material fact of all the Pearl Harbor investigations and would surely and rightly have damned Admiral Kimmel forever. So, what did Chairman Roberts do with the information after receiving it from Mr. Hoover?

13 Hoover’s letter of December 18th clearly uses the language of the “Complete Plans” Memorandum of December 11th:

With reference to the memorandum that was left with you last night, I am enclosing herewith an additional memorandum which parallels the other memorandum. The enclosed memorandum is set forth in the form of investigative suggestions as to certain aspects of the situation in Hawaii, while the memorandum left with you last night was a narrative memorandum of the situation. The same material is covered in the enclosed memorandum with the exception that it is divided into what might be termed investigative suggestions. . . . It has been reliably reported in connection with radio activities that about ten days prior to the attack on Pearl Harbor a number of Japanese radio intercepts were obtained in Hawaii. The military authorities there, unable to break the code, forwarded these messages to Washington where they were deciphered, and it was found that these radio messages contained substantially the complete plans for the attack on Pearl Harbor, as it was actually carried out. The message was allegedly sent from Washington by Army radio to the Hawaiian Islands setting forth this whole plan, including code words which would be used by the Japanese to indicate the time of their attack on the islands. These code words were intercepted on Friday morning, December 5, 1941, by the military authorities.

Mr. Hoover letter to Honorable Owen J. Roberts, under date of December 18, 1941, declassified circa 1979. Author’s file 2223A—“PEARL HARBOR Documents from Mr. Hoover’s and Mr. Nichols’ Official Files.”____________________________14 Considering that Justice Roberts had successfully prosecuted the Teapot Dome scandal, and he hardly needed investigative suggestions from anyone, especially suggestions as simplistic and obvious as those offered by Hoover.____________________________15 Hoover letter to Roberts, December 18, 1941, op. cit.____________________________

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Justice Roberts tried, but could not prove, that Kimmel had this information and failed to act on it. Then Roberts put blinders on and failed to follow Mr. Hoover’s suggested investigative leads in Washington, D.C., as to whether this information was available in Washington and simply not sent to Hawaii. And later inexplicably, Roberts lied to Congress about where he got the “Complete Plans” information, and never mentioned Mr. Hoover’s investigative guidance.

Justice Roberts first, off the record, interviewed all the top Washington officials16 without inquiring about, or using Mr. Hoover’s “Complete-Plans” information. This omission ignored Mr. Hoover’s investigative suggestion to Chairman Roberts that he find out what useful intelligence, if any, had been intercepted in Washington. Chairman Roberts knew about MAGIC and its importance, but he inexplicably refused to look at it even though it was the most logical origin of the “Complete-Plans” information, and despite Mr. Hoover’s specific “investigative suggestions” to do so.

Roberts then proceeded with his Commission to Honolulu where all the local witnesses were interviewed on the record. Roberts questioned the head of Army Intelligence in Hawaii, Colonel Fielder; and his assistant, Lt. Col. Bicknell using the language of Mr. Hoover’s “Complete-Plans” information even though no one in Washington was questioned specifically about this. Both Fielder and Bicknell unequivocally denied any knowledge of this information—a denial, which certainly must have signaled to Chairman Roberts that this alleged “Complete-Plans” information never made it to Hawaii.

Again Chairman Roberts was faced with the obvious question: Was this “Complete-Plans” information ever received in Washington by Army and Navy intelligence? It appears that Chairman Roberts never pursued an answer and, in fact simply dropped the matter.17 16 Secretary of State Hull, Secretary of War Stimson, Secretary of the Navy Knox, Army Chief of Staff Marshall, Chief of Naval Operations Stark, Chief of Army War Plans Gerow, Chief of Navy War Plans Turner, Chief of Army Intelligence Miles, and Director of the Office of Naval Intelligence Wilkinson.____________________________17 Roberts also ignored obvious leads from Secretary of the Navy Frank Knox’s report to the President. Knox’s Report said:

Neither Short nor Kimmel, at the time of the attack, had any knowledge of the plain intimations of some surprise move, made clear in Washington, through the interception of Japanese instructions to Nomura, in which a surprise move of some kind was clearly indicated by the insistence upon the precise time of Nomura's reply to Hull, at one o'clock on Sunday. 5PHA2338.

Kimmel attorney Edward Hanify described what else Roberts ignored from Knox’s Report:He [Knox] went out to Hawaii before the Roberts Commission to investigate the disaster and its causes. He went out there about the 15th of December 1941, and he asked all the officers in key positions in the Army and Navy, "Did you get the warning message we sent Saturday night?" And they all said they had not. Despite that, in his report to the president, he said in substance that, while the Army and Navy in Hawaii had a general war warning on the 27th of November 1941, a special war warning sent on the night of December 6 was not received. That warning doubtless would have warned of war the next day in the light of the available intercepted Intelligence. This part of Secretary Knox's report to the president was suppressed and concealed, and we didn't discover his description of the "warning" until 1944. . . . The Roberts Commission had Knox's report

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Director of Naval Intelligence Captain Theodore Wilkinson’s statement that, Kimmel “had as much information as we had,”18 was patently false. Wilkinson's representations that the Roberts Commission was “discussing the MAGIC freely,”19 that Kimmel “had as much information as we had,” and that, "nevertheless, warning dispatches had been sent out,"20 suggests that the warning dispatches should be interpreted as merely an unnecessary redundancy. Furthermore, whether this false information was supplied as the result of incredible internal confusion or design, it was calculated to do, and did, Admiral Kimmel and General Short irreparable prejudice.21

The highest officials of the Army and Navy, knowing full well the false nature of these representations to the Commission, had an obligation, both as officers and decent human beings, to promptly rectify the prejudice to Admiral Kimmel and General Short from such deplorable misinformation. If they did not know their statements were untrue at the time given, they had ample opportunity to discover their inaccuracy. This tragic episode, never fully explored, cries out for reparation. Secretary of Defense Hagel has the opportunity to partially rectify the irreparable prejudice against Kimmel and Short, and to finally stop perpetuating the lie against them.22

and never followed up on this issue. Knox had deceased when the Navy Court convened in the summer of 1944. . . . Nobody even knows who prepared or tried to send it [the “warning”]. As I have said, the Roberts Commission had Knox's report. They didn't ask anybody connected with the top brass in the Navy, or the Army, what they were doing Saturday night. What kind of a message was Knox talking about? They eschewed any substantial inquiry into behavior of key officials in Washington.(Richard C. Phalen, In Our Time, Rediscovering America--1940-1990s, interview of Edward B. Hanify, "The Ordeal of Admiral Husband E. Kimmel," Diamond Communications, Inc., South Bend, Indiana, 1993, pp. 19-20.)

_____________________________18 4PHA1847.______________________________19 4PHA1848.______________________________20 "PRECIS OF TESTIMONY GIVEN BEFORE THE PRESIDENT’S INVESTIGATING COMMISSION STATEMENT BY CAPTAIN T. S. WILKINSON, U. S. NAVY, DIRECTOR, NAVAL INTELLIGENCE DIVISION," 24PHA1361.______________________________21 "Memorandum for the Chief of Naval Operations" by Captain T.H. Wilkinson, Director Naval Intelligence, dated December 19, 1941, which sets forth an account of the "Proceedings of President's Investigating Committee, 1000 to 1200, December 19, 1941; 4PHA1846-8._____________________________22 Thomas K. Kimmel, Jr. letter to Secretary of Defense Chuck Hagel, dated August 2, 2013:

Dear Mr. Secretary: The record reflects that, Vice President Biden sponsored—and you voted for—the 1999 Senate Bill recommending posthumous advancement in rank for Rear Admiral Kimmel and Major General Short (Senate Amendment 388 to S. 1059 {National Defense Authorization Act for Fiscal Year 2000}). The Vice President said that, “The Kimmel and Short matter is the most tragic injustice in American military history.” His Office recently advised that the matter rests with the Department of Defense (DoD). I urge you to end this historical injustice by recommending to the President that he honor the will of the Congress and the Pearl Harbor Survivors Association (PHSA) by nominating Kimmel and Short for

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II. 1943—Kimmel Seeks Counsel

Kimmel had great difficulty seeking proper counsel and recorded his efforts in a memorandum:

I was at my wit's end. I went to Washington to see Captain Robert A. Lavender, U.S.N., Retired. Lavender was a patent lawyer and therefore familiar with court proceedings. When I asked Captain Lavender to act as my counsel, he replied, "I cannot do so because I do not know enough but I know the man who does, Charles B. Rugg, of the Boston law firm of Ropes, Gray, Best, Coolidge and Rugg." Lavender added, "I will help in any way I can."

Lavender wrote Rugg requesting he grant me an interview and in due course I arrived in Rugg's office.

I noticed a framed photograph of Mr. Justice Roberts hanging on the wall behind Rugg's desk.

I talked for two hours giving Rugg a history of what had happened to me since the attack. I did not spare the Roberts Commission nor Mr. Roberts himself but castigated the Commission and Mr. Roberts in particular with every invective at my command. It was quite apparent that Mr. Rugg did not like what I said about Roberts.

At the end of my talk, I said, "If you believe what I have told you, I would like to have you act as my counsel; if you don't believe me, I don't want you."

Rugg's reply was, "I will take your case."

I did not know until a couple of years later that when Rugg received Lavender's letter he consulted with the Commandant of the First Naval District to find out what manner of man I was.

The Commandant of the District was Admiral Theobald whom I had known intimately over the years and who acted as my counsel before the Roberts Commission.

advancement. DoD’s inaction is perceived by many as obstructing the will of the Congress, and the PHSA, who began this advancement initiative in 1984.

I have enclosed some background information specific to Rear Admiral Kimmel for your review. Thank you for your kind attention to this matter of national honor.

_________________________

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A couple of weeks later I received from the Navy Department, as I had requested, a transcript of the proceedings of the Roberts Commission which in due course I sent on to Rugg. The next time I saw Rugg, he said, "You were right about Roberts."23

III. 1944—Justice Roberts’ Briefing by Kimmel’s Attorney Charles Rugg

On November 14 and 15, 1944, Kimmel’s attorney, Charles B. Rugg, Esq., conferred with Justice Roberts and reduced their conference to a memorandum, which as testament to its importance, is reproduced here in its entirety:

On Tuesday and Wednesday 14 and 15 I had a conference with Justice Roberts of the Supreme Court at his chambers in the Supreme Court Building. We talked fully and frankly about the Pearl Harbor situation. I told him the outline of the evidence that had been adduced at the Court of Inquiry. He expressed astonishment at what he termed the magic messages, and said that all that his commission was told of concerning information of this character was the message received on Sunday, the 7th of December 1941. He also added that either the commission was told directly or definitely given to understand that that was all the information pertinent to Pearl Harbor that was available in the Navy Department. He expressed considerable feeling about the withholding of this additional information from the commission. He said that the findings they had made as to the propriety of action of high ranking officials in Washington was predicated on that. Among other things he specifically said that he had never heard of the Winds message.24 I asked him what the background was of the two questions that he put to the first two Army witnesses as to the code words relating to the weather. He replied promptly that those questions were predicated on dispatches found in the Japanese Consulate in Honolulu after the attack, one of which referred to poinsettias blowing in the breeze and being more attractive in some kinds of weather than in other kinds of weather. He was emphatic in never having heard about the Winds message. He felt much put out at the situation that he would be in if and when the facts I had related were publicly disclosed.

Justice Roberts expressed indignation at the treatment that had been given Admiral Kimmel and General Short, and said, in substance, that when the report was handed to the President he mentioned the propriety

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“EVENTS LEADING TO THE CONGRESSIONAL INVESTIGATON OF PEARL HARBORBEHIND THE SCENES” By HUSBAND E. KIMMEL, dated November 1966. Author’s file 2210._____________________________

24 The Winds Message referred to here by Rugg was a Japanese message designed to notify its embassies of its war intentions against the United States. Failure to investigate the Winds Execute Message when memories of witnesses were fresh would cause mischief and uncertainty in later investigations.

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and advisability of giving both prompt military trials and that, while he could not quote the President specifically, he replied definitely that he had been given every assurance that trials would be had promptly, and by promptly he was given to understand during the Spring of 1942.

I asked him how he felt about Admiral Kimmel. He said that the commission had great trouble and doubt in reaching the conclusions that they did concerning Admiral Kimmel, but that the final factor that decided him was the incident on November 27, during the conference at which General Short participated. General Short asked Admiral Kimmel what probability there was of a Japanese attack by air. Admiral Kimmel turned to McMorris, the War Plans Staff Officer, and McMorris replied in substance that that was an impossibility.25 Justice Roberts said that the commission felt that the Commander-in-Chief of the Navy in Pearl Harbor should have considered and discussed this more thoughtfully than was indicated by the McMorris incident. He said that the whole commission was wrapped in great admiration at the war plans that Admiral Kimmel had drawn (I assume that is WPac 46).

Justice Roberts had nothing good to say about Admiral Theobald. He thought that Theobald was trying to prevent the commission getting at the facts. Frequently, when questions were asked, he said, Theobald would start out with a statement of his own, irrelevant and not in point, that was apparently designed to confuse.

Justice Roberts spoke very critically of Admiral Bloch and that they considered him a sly old fox but that Admiral Turner had persuaded them that the Commander-in-Chief had authority over Bloch as to his defense functions and, consequently, they did not feel that they could hold him responsible.26

Given Roberts’ reported indignation about being misled by the Washington High Command, it seems fair to ask, what did he do about it? It appears he mentioned his 25 Although beyond the scope of this writing, McMorris’ embarrassing opinion surely would have been different with access to: 1. MAGIC; 2. Admiral Lockwood’s July 15, 1941 report about British capability to air-drop torpedoes in shallow water—24’; Dusko Popov’s August 1941 spy Questionnaire seeking water depth and torpedo net use at Pearl Harbor; von Der Osten’s March 1941spy Report about Hawaii defenses; and absent misleading information form Admiral Stark about water depth of British torpedoes air-dropped at Taranto, i.e., 66 feet or more. British attack depths at Taranto reported to Kimmel by Stark and Ingersoll, February 15, 1941, and June 15, 1941, respectively; Naval Court of Inquiry Exhibits #s 49 & 55:“At Taranto … the depths of water in which the torpedoes were launched were between 14 and 15 fathoms. [84 feet or more.],” 33PHA1283-4. ********************“As a matter of information the torpedoes launched by the British at Taranto were, in general, in 13 to 15 fathoms of water, although several torpedoes may have been launched in 11 or 12 fathoms [66 feet or more.]. R. E Ingersoll” NCI Exhibit # 55; 33PHA1318. ____________________________26 Charles B. Rugg memorandum, dated November 16, 1944. Author’s file 2409. ____________________________

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conference with Rugg to President Roosevelt, or the Secretary of the Navy Forrestal,27 since shortly thereafter Kimmel received a complaint from Chief of Naval Operations Ernest King about it, and reduced the complaint to a memorandum:

King stated that my counsel’s activities were offensive to the Secretary (he meant Mr. Roosevelt) and that the Secretary had considered calling my attention to Mr. Rugg’s activities as he felt I should be able and required to control the activities of my counsel. My reply was that the Secretary’s position was a perfectly reasonable one and I would be pleased to receive and consider any complaints he wished to prefer against Mr. Rugg. After my reply, King dropped the subject.28

Another Kimmel counsel, Mr. Rugg’s assistant, Edward Hanify, Esq., added to the discussion in a letter to Kimmel’s two surviving sons in 1991:

You will recall that when Admiral Kimmel saw Admiral King in December of 1944, King told Admiral Kimmel that the Secretary of the Navy was very disturbed by certain actions of Kimmel's counsel. Kimmel asked for enlightenment as to just what those actions were. King went no further. I am now inclined to believe that subsequent to Rugg's revelations to Roberts, Roberts may have expostulated with the Navy Department. There are vague traces in the files thereafter, and I have some vague memory that at about this time some intelligence branch of the government was snooping around Boston trying to find some evidence of indiscreet conversations by Rugg. The effort apparently was futile but I think Rugg regarded it as a form of harassment.29

IV. 1946—Justice Roberts’ Testimony to the Joint Congressional Committee

In 1946, five years after the attack, Congress and Senator Homer Ferguson investigated Pearl Harbor, but they did not know anything about the “Complete-Plans” Memorandum, because they were never apprised of the FBI’s secret source information. Remember that Justice Roberts questioned the head of Army Intelligence in Hawaii, Colonel Fielder; and his assistant, Lt. Col. Bicknell using the language of Mr. Hoover’s “Complete-Plans” Memorandum. Senator Ferguson set out to find out why Chairman Roberts used this very specific language when questioning Fielder and Bicknell. But Justice Roberts managed to dissemble about both the source and contents of this information, presumably to protect himself against charges that he failed to adequately investigate the allegations.

27 James Forrestal was Secretary of the Navy May 19, 1944 – September 17, 1947.____________________________28 Admiral Kimmel, "MEMORANDUM OF INTERVIEW WITH ADMIRAL KING IN WASHINGTON ON THURSDAY, 7 DECEMER 1944," undated. Author’s file 2301.____________________________29 Edward B. Hanify, Esq., letter to Edward R. Kimmel, and Captain Thomas K. Kimmel, USN, dated June 3, 1991. Author’s file 2409.____________________________

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Senator Ferguson quoted Chairman Roberts from the 1941 transcript of proceedings before the Roberts Commission where Roberts stated that information had been provided to him indicating that about 10 days before the attack a Japanese code was broken in Washington indicating that a Japanese attack was planned, and that this information was forwarded to the military authorities in Hawaii.30 Senator Ferguson tried to find out where Chairman Roberts obtained this information by asking him point blank:

Senator FERGUSON: What were you talking about?

Mr. Justice ROBERTS: I was talking about some information that had been given to me somewhere around Pearl Harbor. People were coming to me all the time telling me that there was such and such a rumor. You see I say "It has been reported to me.". . . .31

Not satisfied with Roberts’ response, Senator Ferguson pressed further. Even specifically quoting Roberts’ questioning of Colonel Fielder and Lt. Col. Bicknell of Army Intelligence in Hawaii, Ferguson was not successful in getting Roberts to admit where he had gotten this information.

First, with regard to Colonel Fielder: Senator FERGUSON: Mr. Justice, this last part –[Ferguson starts reading from the 1941 Roberts Commission transcript]

CHAIRMAN ROBERTS: [A]nd that the War Department subsequently intercepted over the radio these three signal words and forwarded them to the military authorities here. . . . .

Colonel FIELDER: I have no knowledge of that whatever.

CHAIRMAN ROBERTS: You know nothing about it?30 7PHA3276; 22PHA176; Senator FERGUSON: You were the chairman and this is in your language [Ferguson reading from the 1941 Roberts Commission transcript. To assist the reader testimony from the Roberts Commission is printed in italics.]:CHAIRMAN ROBERTS: It has been reported to me that about 10 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 [Hawaii] as an indication that the code had been followed and that the attack was planned. . . .______________________________31 7PHA3276. This is the first denial by Justice Roberts that he knew Mr. Hoover was his source of information. The second denial followed immediately: Senator FERGUSON: Mr. Justice, this last part - and that the War Department subsequently intercepted over the radio these three signal words and forwarded them to the military authorities here. . . . .Mr. Justice ROBERTS: Surely. Somebody had told me that or I wouldn't have asked the question.

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Colonel FIELDER: No.

CHAIRMAN ROBERTS: You had no communications from the War Department as of December 5th forwarding to you the meaning of the three code words which would be the signal for the attack?

Colonel FIELDER: No sir, it never came to my attention.32

And then with regard to Lt. Col. Bicknell:

CHAIRMAN ROBERTS: I refer to something else which you may or may not know anything about. I refer to the fact that some ten days before December it is supposed that a Japanese code message you intercepted and was broken down by the Department in Washington, one of the military departments, which gave certain key words which would be flashed over the radio directing the attack on Pearl Harbor.

Colonel BICKNELL: (Asst. G-2 Intelligence, Hawaii): Yes.

CHAIRMAN ROBERTS: And that, having broken that down, one of the military establishment in Washington caught over the radio the three key words and relayed them here to you. When I say "you," to the Islands -

Colonel BICKNELL: Yes.

CHAIRMAN ROBERTS: Do you know of any such story?

Colonel BICKNELL: I never heard of such a thing, no, sir.

CHAIRMAN ROBERTS: Never heard of it?

Colonel BICKNELL: No, sir.

CHAIRMAN ROBERTS: I have no other questions.33

Senator Ferguson stopped reading from the 1941 transcript and again queried Justice Roberts as to where he got this information:

Mr. Justice ROBERTS: I was talking about the same rumors that had come to me from somewhere.34

32 7PHA3276; 22PHA176.____________________________ 33 7PHA3277, 22PHA192-193.______________________________34 7PHA3277; This is the third denial that he knew Mr. Hoover was his source of information.____________________________

13

Senator FERGUSON: Did you follow that up? I have looked over the testimony and I haven't been able to find it but I want to know now, from your recollection, do you know whether you ever tried to follow that up here in Washington after you failed on Bicknell and Fielder?

Mr. Justice ROBERTS: Yes, sir. We asked for all the messages there were about any broken codes and we were told we had had all they had except this MAGIC thing.

In spite of Mr. Hoover’s counsel that “[i]nquiry should be made as to the dates those messages were received in Washington,” when Chairman Roberts could not find Mr. Hoover’s “Complete Plans” information as he expected in Hawaii, he dropped the matter, and did not pursue it in Washington. In other words, although Roberts knew about MAGIC he did not attempt to find out the content of the MAGIC messages even though they were the most likely source of the “Complete Plans” information. Senator Ferguson could not believe what he was hearing.

Senator FERGUSON: Do I understand you did not get the MAGIC?

Mr. Justice ROBERTS: No; we were never shown one of the MAGIC messages.

Senator FERGUSON: Not one?

Mr. Justice ROBERTS: Not one.

Senator FERGUSON: Were you ever shown the substance of the MAGIC messages?

Mr. Justice ROBERTS: No, sir.

Senator FERGUSON: Did you know there were such messages?

Mr. Justice ROBERTS: Well, I knew that the Army or Navy or State Department had been cracking a super code of the Japanese for weeks or months and that they had been taking off all kinds of information. We asked the War Department and the Navy Department to tell us what they got from that and they told us. They did not show us the messages, any of them, and I didn't ask them to.35

Incredulous at Roberts’ admission, Senator Ferguson expressed his disbelief that the Commission could find that all those in Washington had performed their jobs admirably.

Senator FERGUSON: That being true how was this finding possible, on page 19:. . . .

Senator FERGUSON: (reading from the 1942 Roberts Commission Report)

35 7PHA3277-78______________________________

14

The Secretary of State 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.

Now, I merely mean if you didn't have any of these messages, for instance, the message setting the deadline of the 29th, the pilot message, the 1 o'clock message, the 13-part message up until midnight or 9 o'clock, and the 14th part and 1 o'clock message on Sunday morning, how could the commission make a finding, if they didn't have the facts? . . . .

Senator FERGUSON: All right. Then we come to the next finding in your conclusions:

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 the negotiations with Japan and the significant implications thereof.

Now, without having the intercepted MAGIC messages, did you make this finding? I will put it that way.

Mr. Justice ROBERTS: 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.

Senator FERGUSON: Now, Justice, the Secretary of the Navy and the Secretary of War, the Chief of Staff, General Marshall, the Chief of Naval Operations, Admiral Stark, the President, and Secretary of State were each being furnished this MAGIC. Did you not know that they were all being furnished the MAGIC?

Mr. Justice ROBERTS: I did not know it and I would not have been interested in it. . . .

Senator FERGUSON: Do you have something to say?

Mr. Justice ROBERTS: 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 did have the information. I got a unanimous statement that they were.36

36 7PHA3278-3280._____________________________

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Senator Ferguson expressed his opinion on the quality of the Roberts Commission’s investigation in his report:

It is extremely unfortunate that the Roberts Commission Report was so hasty, inconclusive, and incomplete. Some witnesses were examined under oath; others were not. Much testimony was not even recorded. The Commission knew that Japanese messages had been intercepted and were available, prior to the attack, to the high command in Washington. The Commission did not inquire about what information these intercepts contained, who received them or what was done about them, although the failure of Washington to inform the commanders in Hawaii of this vital intelligence bears directly on the question of whether those commanders performed their full duties. Mr. Justice Roberts testified before this Committee:

“I would not have bothered to read it (the intercepted Japanese traffic) if it had been shown to me.”37

It is noteworthy, that Chairman Roberts’ sole source for the “Complete Plans” information was Mr. Hoover, yet Mr. Hoover was not called upon to testify before the Roberts Commission. Indeed, Mr. Hoover did not testify at any Pearl Harbor investigation, and even refused the Army Pearl Harbor Board’s request to do so. Mr. Hoover’s “Complete Plans” letters to President Roosevelt and to Chairman Roberts were not provided to any Pearl Harbor investigation other than to Chairman Roberts,38 and were not declassified until 1975, and 1979, respectively. If they had been made public, it is hard to imagine that Mr. Hoover would have been allowed to avoid testifying.

It is also noteworthy, that Chairman Roberts did not ask Admiral Kimmel about the “Complete Plans” information. Indeed, years later Admiral Kimmel testified to the JCC that:

I do not intend to suggest that any of these responsible officers deliberately misled the Roberts Commission as to my receipt of the MAGIC messages. It was tragic, however, that the Commission did not ask me about this matter.39

Conclusion

37 7PHA3280._____________________________38 It is not clear from the known record whether or not Chairman Roberts shared Mr. Hoover’s “Complete Plans” information with the other members of his Commission. It seems fair to ask the question, however._____________________________39 6PHA2553, Admiral Kimmel’s statement to the JCC._____________________________

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In 1955, Roberts Commission member Admiral Standley repudiated the findings of the Roberts Commission and wrote:

The report of our Commission, as made up in Washington after our return from Pearl Harbor, consisted of three parts; the full minutes of the proceedings and of all testimony taken, a brief transcript of important testimony taken, and a digest of the record which served as our report to the President. When I was looking for these records in Washington after the war, only the digest and the report could be found in any of the government files.

In my personal files, I recently came across a letter from Justice Roberts addressed to me on January 26, 1942, in which he stated:

I have today signed the original copy of the very full minutes of our proceedings and am enclosing a correct copy of the minutes in the sealed packages being deposited with the War and Navy Departments. According to the resolution of our Commission, I shall retain in safe custody the original minutes which will at all times be at the disposal of any member of the Commission.40

In 1973, Admiral Kimmel’s predecessor as Commander-in-Chief of the Pacific Fleet, Admiral J. O. Richardson wrote:

I cannot conceive of any honorable man being able to recall his service as a member of [the Roberts] Commission without great regret and the deepest feeling of shame. Its procedures should have outraged every American. I believe that the Report of the Roberts Commission was the most unfair, unjust, and deceptively dishonest document ever printed by the Government Printing Office.41

Admiral Standley was equally straightforward:

Owen Roberts’ performance [as chairman of the Roberts Commission] was crooked as a snake.42

40 William H. Standley, Admiral Ambassador to Russia, 1955, Henry Regnery Company, Chicago, pp. 88-9.___________________________41 J. O. Richardson, On the Treadmill to Pearl Harbor, the Memoirs of Admiral J.O. Richardson, Naval History Division, Department of the Navy, Washington D.C., 1973, pp.453-454.______________________________42 John Toland, Infamy, op cit., p. 321; Admiral Kemp Tolley, “Admiral—Ambassador Standley,” Shipmate, September 1977, p.28.______________________________

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Admirals Standley and Richardson were correct, without even knowing the other half of it.

18