Waddle’s ignorance USS Greeneville skipper Cdmr. Scott Waddle simply cannot say he did not know and that honest mistakes led to his submarine ramming and sinking a Japanese fishery vessel six weeks ago, killing nine.
no excuse for
sinking, legal
expert claims
The sub captain should
By Gregg K. Kakesako
have known if he had enough
data, an attorney says
Star-BulletinThat is the assessment of at least one legal expert who has served as an investigator for military courts of inquiry. Civilian attorney Jay Fidell said what Waddle "forgets to say conveniently is that he was responsible for developing a submarine war machine that was supposed to provide him with that knowledge, and he just didn't do that."
The Navy also took issue with other statements by Waddle's attorney, Charles Gittins, that its distinguished-visitors embarkation program "brings in a bunch of people who know nothing about the Navy" and gives them orientation trips on surface ships, like aircraft carriers, and submarines.
Capt. Kevin Wensing, Navy spokesman, said "that's precisely what the program is supposed to do. It's to take people who know nothing about the Navy and educate them."
Wensing said he did not see anything sinister with Adm. Richard Macke, former Pacific commander, helping out civilians who wanted to learn more about the Navy.
"We're always taking suggestions and nominations from people from different walks of life, not just retired admirals."
Wensing and Fidell were referring to remarks made by Gittins in summarizing nearly three weeks of testimony gathered by three senior U.S. admirals charged with investigating the Feb. 9 sinking of the Ehime Maru.
It is their job to determine whether Waddle; his executive officer, Lt. Cmdr. Gerald Pfeifer; the officer of the deck, Lt. j.g. Michael Coen; and any other member of the Greeneville crew should be held responsible for the accident that claimed the lives of four high school students, two teachers and three crewmen.
The hearing phase ended March 20, and the court will now take up to a month to prepare its recommendations for Adm. Thomas Fargo, Pacific Fleet commander.
Gittins told the Star-Bulletin on Friday that at issue is what Waddle knew and believed of the events leading to the Feb. 9 collision. Gittins believes that Waddle's knowledge, his understanding and his beliefs of the facts that day establish a basis for a "reasonable mistake of fact" defense.
Gittins said that Waddle believed that he was acting reasonably based on the facts as he understood them and that his actions were reasonable under those circumstances.
Fidell rejects that argument, saying even if Waddle could convince a court-martial that he personally believed he was being reasonable, that will not get him off.
"If that were the case, no physician would ever lose a malpractice case," Fidell said. "All he would have to show is that he believed he did the right thing. Cmdr. Waddle is not and cannot be the judge of his own case."
What is important here, Fidell said, is not what Waddle thought was reasonable, but "whether a reasonable submarine commander would have done what he did. The test is not personal to him."
Fidell added: "His personal testimony about his own state of mind does not necessarily prove either what he was really thinking, much less that his belief was reasonable. He is not and cannot be the exclusive judge of the reasonableness of his own thoughts or actions."
In addition, Fidell said the Manual of Court Martial says if the accused's knowledge or intent is immaterial as an element, then ignorance or mistake is not a defense. That rules out Gittins' reliance on a "reasonable mistake of fact" defense, Fidell added.
"Whether Cmdr. Waddle knew or didn't know the Ehime Maru was out there is not the test," Fidell added. "The question is whether he was negligent in not knowing and not making sure that he had the best information to know whether it was out there."
Fidell rejects Gittins' claim of honestly as being a defense for dereliction of duty.
"You can be honest and also negligent," Fidell said.
"Virtually everyone who gets into an auto accident can say he believed he was doing the right thing, but that does not prevent him from being legally responsible."
Waddle faces possible charges of dereliction of duty, operating the Greeneville in an unsafe manner and criminal negligence. Based on the statements of 33 witnesses, Fidell said the court of inquiry could recommend a court-martial for Waddle because he was derelict by failing to:
>> Have sufficient numbers of qualified personnel. One-third of the Greeneville's crew of 163 were left at Pearl Harbor on Feb. 9.
>> Ensure that qualified sailors were assigned to critical watch positions.
>> Ensure that personnel were at their assigned places of duty. Testimony disclosed that nine of the 13 positions that day were filled by people other than those who were scheduled to be on duty.
>> Replace or compensate for a critical piece of equipment: a sonar monitor in the control room, which was broken.
>> Have enough people at key duty stations or require more frequent updates on the contact evaluation plot, a critical paper wall chart.
>> Require the Greeneville to take more time in analyzing sonar data and do a briefing, as required, before going to periscope depth.
>> Broach or take the sub nearer to the surface when making periscope checks to ensure there were no vessels nearby.
>> Take enough time at periscope depth to ensure that there were no surface vessels.
>> Have the fire control technician give him the exact bearings where the three sonar contacts were so he could hone in on them by periscope (one was the Ehime Maru).
>> Control conditions in the control room by allowing too many civilians who might have affected the work of critical crewmen.
>> Create a command climate where the free flow of information was sufficiently encouraged as to permit the safe operation of the submarine.
Waddle said many of his problems stemmed from the failure of the fire control technician, Petty Officer Patrick Seacrest, to notify him of a close sonar contact, which turned out to be the Ehime Maru.
Fidell said, "Seacrest's failures may be found to have resulted from problems for which Cmdr. Waddle himself is responsible."
Fidell believes there is enough evidence to support the convening of a court-martial to try Waddle. "However, there are arguably forces out there that might otherwise prevent this from happening."
