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In December 2006, yet another unrelated, disturbing development occurred. Several months after the attack on
Cole
and the return of the crew to Norfolk, the Naval Historical Center activated their Naval Reserve Combat Documentation Detachment 206 to interview crew members to capture, for the sake of the Navy's historical files, the actions of the crew following the attack on
Cole
. It was a massive undertaking, principally led by two very compassionate and professional officers, Captain Michael McDaniel and Captain Gary Hall. In late spring 2001, the detachment conducted numerous interviews with the crew, including me. Prior to each interview, the subjects were encouraged to be as open and forthright as possible in an effort to capture the powerful emotions and actions of that
horrific time in our lives. Each of us was assured that the Navy would keep the interviews in the strictest of confidence, for official use only, and our most private thoughts would never be shared with the general public without our express permission. Similar interviews had occurred with prisoners of war from the Vietnam conflict and their records had likewise been sealed from release to the public.

Now the Department of the Navy Privacy Act/Freedom of Information Action office under the Chief of Naval Operations informed me that they were acting on a request by an individual to give them access to transcripts of these interviews. After speaking with several other crew members, who were equally mortified and distraught at the prospect of having their innermost feelings and emotions publicly exposed, I took immediate action to have this request disapproved. At first I thought it would be a straightforward disapproval, but was stunned to learn that the promise of confidentiality conveyed to us by the Naval Historical Center had never undergone any legal review, and while given to us with the best of intentions, was not considered binding against a Freedom of Information Act request.

It appeared as if the Navy was conspiring against the crew of
Cole
. The impact on the individual was considered irrelevant, and the Navy seemed uncaring as the legal machinations ground through the approval process. Luckily, when I had been the secretary of the Navy's administrative aide, I worked very closely with the head of the Navy Freedom of Information Action office, Doris Lama. An absolutely wonderful person, she was as concerned over this request as me. While the request was eventually denied, it was because of Doris working with her counterpart at the Federal Bureau of Investigation, who, very concerned that there was still an active criminal investigation open on the attack on
Cole,
ruled there should be no possibility for evidence or potential witness statements to be compromised by public disclosure. It was a close call, but thankfully, Doris proved that at the heart of the Navy, the crew and I had a lot of underlying support.

For me, however, the wait for a final decision on my promotion continued. It was not until the 109th Congress and January 2006 that a new secretary of the Navy, Donald Winter, was sworn into office. Still, I waited.
By midyear, the promotion package had not even made it from the secretary's legal advisor to his desk. It was time, once again, to take matters into my own hands and drive my future. According to Navy regulations, anyone may submit a request to meet with their superiors in their chain of command on matters they consider unresolved at a lower level. In my case, since Admiral Mullen had done nothing regarding my promotion, on May 22, 2006, I requested a meeting with Secretary Winter.

The reaction was swift and unexpected. Within a day of my request, Vice Admiral Morgan called me into his office and, while we might have been shipmates and friends for years, he harshly turned on me: “Kirk, you are never going to be promoted to captain and it's time you accept your fate. If you go through with this request to meet with the secretary, the Navy will turn on you and you will find yourself isolated and alone. Do you understand what I am telling you?”

I literally sat there for a few seconds with my mouth hanging open as my throat tightened in disbelief that one of my most trusted mentors in the Navy was abandoning me. “Admiral, I have stood by my Navy throughout this entire event, and I deserve to have my promotion submitted to the Senate. Please approve my request to see the secretary,” I answered. Nothing more needed to be said and within seconds, I was dismissed. But at least my request was grudgingly approved.

On May 31, I walked into Secretary Winter's office. The meeting was scheduled for thirty minutes and started off awkwardly when the secretary announced to me that he was unfamiliar with the background about the attack on
Cole
or my case and would I please take some time to give him that necessary information. Irritated, I glanced over at his legal advisor, wondering why he had failed to properly prepare his boss for our meeting; now I would have to waste precious minutes not talking about my promotion but rather talking about the most critical event to happen to a Navy ship since the Israeli attack on the USS
Liberty
in 1967 and the North Korean seizure of USS
Pueblo
in 1968.

Quickly I summarized the events of October 12 and the aftermath of our time in port. I covered the investigation, its findings, and the fact that
I had never wavered from the principle of accountability—I was the sole accountable officer for the actions of my crew—but there was also a fundamental difference between accountability and blame. I felt that in the long view of history, I was being singled out for punishment in a war that the nation had tragically ignored for years, until the attack on September 11. I was the only officer, in any service, attacked by al Qaeda, who was now being punished for it. I requested his support for my promotion and asked that it be forwarded to the Senate for its consideration. He said he would take my request under consideration, thanked me for my time, and showed me the door out. I knew I had just wasted thirty minutes of my life.

A week later, I was informed that the secretary was unwilling to forward my promotion up the chain of command as long as Senator Warner continued to threaten the Navy with hearings. I was at the end of my professional rope. I had given the military and civilian leadership of the Navy and Department of Defense over four years to resolve my case, and was no further along in dealing with Senator Warner's steadfast desire to see someone punished for the attack than I had been in 2002. I exercised my last resort and on June 27, wrote a letter requesting a meeting with Senator Warner. On August 1, I found myself at the reception desk for the staff of the Senate Armed Services Committee.

I had chosen not to officially inform that Navy of this meeting, but knew they were aware of it nonetheless. As a precaution, even though I had gone into work that day, I took a day of leave to eliminate even the hint of a possibility of being accused of unethical behavior by taking time from work to take care of what the Navy might consider a personal matter. A retired Navy JAG lawyer, Captain Dick Walsh, met me just prior to the meeting. He was part of the Armed Services Committee's professional staff and handled personnel issues. He told me the senator was running late as we walked into a hearing room. As I was ushered in, the spectacle before me was almost comical.

Set up in the room was a large table with three chairs on one side and as many as six on the other. Microphones covered the table pointing in both directions, with wires running down the length of the table and across
the floor to where audio equipment and a computer were set up and a woman sat poised, ready to begin her work. As we walked in, Captain Walsh seriously intoned, “Kirk, where is your lawyer and public affairs person? You aren't here by yourself, are you?” I knew this was the beginning of an attempt at intimidation. In my mind, I struggled not to laugh out loud, “Sir, I'm here by myself and don't need a lawyer or a public affairs type. If I can't articulate to the senator all by myself why I should be promoted to captain, then I probably shouldn't be a captain. No, sir, I'm here alone and will speak on my own behalf.”

Clearly, this was not the answer he was expecting, but he grandiosely swept his arm toward the tableful of microphones and chairs and stated, with all the seriousness he could muster, “I hope you don't mind this meeting being recorded and transcribed. The senator considers it so important that he felt it best to tape it and have it for the record.” This was clearly serious business, but again the humor in their idea of what constituted intimidation almost leaked out as I took this next act in the play in stride and said, “Sir, I think this is a great idea! I welcome the opportunity to have this meeting recorded. I think it's important to capture what we say here today for the sake of history. It's important that what the senator decides be accurately portrayed to the public. So, no, I don't mind at all, it being recorded. May I have a copy when you finish getting it transcribed?” Clearly, he did not expect me to gracefully embrace these actions, and stammered, “Of course. Of course we'll get you a copy.”

Senator Warner arrived forty-six minutes late, and the meeting began. I sat on one side of the table, alone, directly across from the senator. On his side of the table, he came well stocked with staff members: Charles S. Abell, Staff Director; Scott W. Stucky, General Counsel; and Richard “Dick” F. Walsh, JAGC, USN (Ret), Counsel. Quickly, I recounted the series of events that led up to
Cole
refueling in Aden, the attack and subsequent investigations, and then got to the point of the meeting, the status of my promotion nomination.

For the next twenty minutes, we went back and forth discussing his immovable stance that should my nomination be forwarded, he would
hold a public hearing into my suitability for promotion. Several times, I reiterated that if he continued to threaten the Navy with that condition, they would not forward my nomination; he pointed out that such a decision was the purview of the Executive Branch, over which he had no control. Couching his language very artfully, he obfuscated the point with the claim that the senate had not seen my name submitted for promotion since 2002, and until such a time that it was submitted, there was no action he or the SASC could take on it. It was a clever political stance—threaten the Navy with retribution and a hearing if my promotion was forwarded, and then deny he had anything to do with my nomination not being submitted. Once again the art of hardball politics in Washington reared its ugly head.

At one point, the senator emphatically stressed, “There is no way I can, as a member of the Legislative Branch, force the Executive Branch to take that action [submitting my promotion for advice and consent of the Senate], which starts the process.” In reply, I agreed and then specifically addressed his concern about accountability, “Yes, sir. They have to do that on their own and I can go back and try and re-engage with them but the issue of holding hearings, when you look across the breadth and scope of history, what makes my nomination so unique that it would cause one officer to be singled out to have hearings held on this issue? Given some of the other tremendous issues of people involved, whether it has been World War II to as recently as September 11, where when you look at the accountability factor there, no one stood up and said they were accountable for what happened on September 11. And yet, I stand up as a good commanding officer should, and say, I was the accountable officer on that ship. Seventeen lives were lost on my watch but we had neither the intelligence, the training, or rules of engagement that would have adequately allowed me to defend my ship. I'll be honest with you, Senator. Not a day goes by—just walking into the Pentagon today, I get stopped by people who say, ‘What's going on?' And it's all services. A one-star Army general, three-star Navy admirals. They tell me what is happening to you is flat wrong because you are being unfairly singled out because of the nature of what happened and it's just wrong. Commanders today, when given the
intelligence, the training and the rules of engagement, cannot stop terrorist attacks anywhere in the world. While life may not be fair, I've never bought into that because I look at it and say, one of the greatest things about our country is the fact that when we, as Americans, recognize something is not fair, we do something about it.”

“I subscribe to that theory,” the senator replied before I finished my statement.

“But too many people in
this
case have chosen to take a path of political expediency rather than doing what is right, and I, subsequently, have to be the one that is left to just be told, ‘walk away from it,'” I concluded.

By the end of the meeting, it was clear the senator remained unmoved and unwavering in his threat to hold a hearing should my nomination be resubmitted for the Senate's consideration. It was a disappointing conclusion to a years-long journey. I walked out of the Russell Senate office building and into the hot, humid air of a summer day in Washington. It was time to go home, have a glass of wine, and assess my future.

Seven days later, the political fallout of my meeting with Senator Warner reached its culmination. Admiral Mullen submitted a letter to Secretary Winter recommending my name be removed from the FY03 Active Captain Line Promotion List. Six days later, the secretary concurred, and my name was permanently removed, never again to be submitted for Senate consideration. In an odd abdication of his role as the senior civilian official overseeing the Department of the Navy, Secretary Winter did not advise me of my removal from his promotion list but instead abandoned that task to the CNO. Having worked for two secretaries of the Navy, I was struck by the fact that it was not the CNO's role to advise me of my removal from the promotion list. In the end, it appeared that Senator Warner had finally arranged to have a long lingering problem eliminated and Admiral Mullen's future would be richly rewarded for his loyalty.

Immediately following the meeting with the CNO, Admiral Morgan summoned me to his office. We had not spoken about the issue of my promotion since our heated meeting several months earlier. As he motioned me to sit down across from his desk, he sat back and said, “Kirk, I just
don't know what to say. I am as shocked by this development as anyone. Is there anything I can do for you?” My reply was clipped, “No, sir.” He then asked, “What are your plans?” clearly trying to infer what my reaction was going to be. I was done dealing with the political niceties of the Navy's leadership, and respectfully and politely replied, “Admiral, thank you, but I think I'll keep my own counsel when it comes to my plans for the future.”