Justice: Battle of Midway and the Constitution

Review by Bill Doughty

The Navy recruited one-day Supreme Court Justice John Paul Stevens when he was a senior at the University of Chicago. The well-read and academic Stevens agreed to learn codes and ciphers and become qualified to do cryptographic work for the Navy. That was in the summer of 1941.

Stevens on Oahu, his second duty location.

In early December the Navy notified him of his eligibility for a commission as an ensign. He reported to Great Lakes Naval Station for a physical on the eve of Imperial Japan's attack on Pearl Harbor, Oahu, Dec. 7.

Stevens recounts his time in the Navy briefly in his wonderful memoir, "The Making of a Justice: Reflections on My First 94 Years" (Little, Brown and Company, 2019). His first assignment was at the Navy Department in the Munitions building on Constitution Avenue in Washington, D.C.

"My first two chores as an officer in the Navy assigned to 'Op-20-G' – the communications intelligence section of the service – required skills unrelated to my training. Encrypted messages that were exchanged between one communications intelligence unit and another – between station 'Hypo' at Pearl Harbor and station 'Negat' in Washington, for example – were classified 'ultra' rather than merely 'secret,' 'confidential,' or 'restricted.' The originator of such a message typed the plain text into a cypher machine that created five-letter blocks of scrambled letters. The addressee, using a comparable machine, typed out the scrambled text to convert it back into plain language. When I arrived in Washington, the navy allowed only commissioned officers to decrypt 'ultra' messages. Though I had become a pretty good typist while working at the (student newspaper, Chicago Daily) Maroon, neither I nor any of the other commissioned officers doing that work could type as well as most of the enlisted men. The navy eventually permitted qualified typists to decrypt 'ultra' messages."

As a junior ensign, Stevens was assigned duties as typist and burn bag guard, armed with a .45-caliber handgun, before being assigned to the communications section to begin work in the traffic analysis section.

As a traffic analyst trainee, Stevens became familiar with kana in the Japanese language and was able to understand the transmission of messages from kana to Morse code.

His description, though brief, of how Japanese naval messages, sent in "JN-25" code, were studied and deciphered will be interesting to today's Navy cyber warriors. Stevens describes how cryptoanalysts hunted the identity ("call signs") of the senders and recipients of Japanese radio transmissions.



'Decisive" BOM & Duty in Hawaii

"In late May 1942, the cryptographers, language officers, and traffic analysts in the Fleet Radio Unit at Pearl Harbor (FRUPAC) had learned enough about Japanese naval communications to predict that a major assault on one of our Pacific outposts designated as 'AZ' was about to occur. They suspected, but were not certain, that AZ was Midway Island. Knowing that the Japanese were monitoring our naval communications, they arranged for an exchange of plain-language messages commenting on a supposed accident that had produced a serious water shortage on Midway Island; those messages produced a comment in the enemy's communications that confirmed our suspicions. As a result of that ruse, combined with the earlier intelligence obtained from decrypted JN-25 messages, Admiral Chester Nimitz's forces were prepared for the Japanese attack on June 6 and ultimately prevailed in what many experts have concluded was the decisive battle in our war with Japan."

Stevens is quick to say he had no direct role in "that historic triumph," however his next assignment – to Oahu – would take him to the heart of where the Battle of Midway was planned and launched.

"When I arrived in Pearl Harbor, FRUPAC was located in an unmarked area in the basement of a building near the headquarters of the Fourteenth Naval District. I was first assigned space in a house a short distance from the end of one of the runways at Hickam Field, and shortly thereafter I moved into the BOQ (bachelor officers' quarters) located near the main gate of the naval yard ... A few weeks after my arrival at Pearl, the name of the combat intelligence unit was changed from 'FRUPAC' to 'JICPOA' (Joint Intelligence Communications Pacific Ocean Area) and its location was moved from the navy yard to Makalapa, near Admiral Nimitz's headquarters."

Stevens served for 30 months in Hawaii and became one of a handful of watch officers who had the responsibility for reviewing all intercepted enemy radio traffic and writing a summary for Adm. Edward Layton, Chief Intelligence Officer of the Pacific Fleet once every 24 hours.

He remembers receiving "startling advice" to be on the lookout for one of the Imperial Japanese Navy's battleships – "I think it was the Musashi" – possibly headed to Truk, then a key naval base. The warning turned out to be a false alarm due to a garbled version of a call sign – a mistake due to operator error.

"In my later career as a judge," Stevens writes, "I have recalled that incident over and over again when confronted with the question whether a legislature actually intended a statute to have the meaning that its plain language seemed to convey. Legislatures, like radio operators, occasionally make mistakes."

Throughout this book we read the carefully considered words and meanings chosen by Justice Stevens throughout his career. We see the importance of definitions, meanings, intent and the need for precision when interpreting and applying the wisdom of the founders as outlined in the Constitution – balancing original intent with "evolving standards of decency." He reminds us of groundbreaking changes in society since the birth of the nation, back when the federal government sanctioned institutionalized slavery, disenfranchisement of Native Americans and anti-suffrage for women.

Stevens was on one of his 24-hour duty watches in Hawaii when he received the message confirming the success of an operation to target, intercept and kill Admiral Yamamoto, who was flying from Rabaul to an airfield on Bougainville. Yamamoto was the architect of the attack on Oahu that started the war in the Pacific and brought the United States into World War II.

Nimitz and Yamamoto

"I remember being somewhat troubled by the punitive motivation for the operation, but I also recognized that it had achieved a significant strategic benefit by terminating the most competent officer in the Japanese navy," Stevens writes.

After Yamamoto's death, the Japanese began to encode call signs. But, Stevens and "an exceptionally talented enlisted man" named Stanley Moe worked to decipher familiar call signs and figure out the "quite simple" pattern of kana that were changed each day. "The new system required more paperwork for us ... but otherwise did not impair our traffic analysis."

Read "The Making of a Justice" to see:

• how he inadvertently interrupted Admiral Nimitz's target practice, almost becoming the target himself; 
• how he met another future Supreme Court Justice (and NFL star) Byron White, a fellow Sailor who "saved the lives of sailors buried under debris" after a kamikaze attack on USS Bunker Hill in May 1945; and
• how he experienced and appreciated his time in Hawaii, including bodysurfing at Makapu'u and visits to Kauai, Maui and the Big Island of Hawaii.

Rare and endangered Silverswords in bloom on Haleakula.

"On Maui we drove to the parking area near the Kilauea (Haleakula?) volcano. We walked to a spot where we had an excellent view of the crater. The view was memorable, but less so than our decision not to investigate the area identified by a sign pointing to an uphill path containing the words 'silver' and 'swords.' Not until after we had returned to Oahu and Walt (Hopkins) satisfied his curiosity by a visit to the Honolulu public library did we learn that silverswords are beautiful flowers that grow only on that volcano and, more importantly, although they rarely bloom, they probably were in full bloom when we decided to terminate our sightseeing that afternoon. Over the years that incident has been a frequent reminder of the importance of deliberation before refusing to take advantage of once-in-a-lifetime opportunities."

After learning that an Army plane dropped an atomic bomb on Hiroshima and another on Nagasaki a few days later, resulting in Imperial Japan's surrender soon after, Stevens was pragmatic in his assessment.

"Tragic as those events were for the residents of those two cities, I was then convinced (and have remained convinced ever since) that that method of bringing the war to its inevitable end saved many, many more lives – of American soldiers as well as Japanese soldiers and civilians – than the number of victims of those two bombings. An invasion of Japan would have caused hundreds of thousands, if not millions, of casualties."

Monumental Meaning of Patriotism

"The Making of a Justice" includes the text of a speech Stevens gave in 2010 on the tenth anniversary of the establishment of the National Japanese American Memorial Foundation. The speech starts on page 522 of the hardbound edition, and it deserves to be read for what it says about tolerance, patriotism and core values.

Stevens, front and center, with Veterans and hosts to commemorate the NJAM Foundation.

In his speech he recounts his visit to Pearl Harbor in 1994, his first visit there since the war.

"Admiral Retz took me on a tour of the harbor on his barge, pointing out changes that had occurred in the past 50 years. The most memorable and moving event during that tour was our approach to the Arizona Memorial – which spans the USS Arizona and the over a thousand American Sailors [and Marines] still entombed in the sunken battleship. As we approached the Arizona I could plainly see that the dozens of visitors on board that day were Japanese tourists. My first reaction to that sight was more emotional than you might expect from a senior citizen. Several thoughts flashed through my mind: 'Those people don't really belong here. We won the war, they lost it. We shouldn't allow them to celebrate their attack on Pearl Harbor even it if was one of their greatest victories.' But then I realized that those visitors must also have been experiencing a number of mixed and conflicting emotions. Perhaps a few did remember Pearl Harbor with pride. Some of them may even have been descendants of pilots who participated in the attack. Others may have remembered relatives that died or were wounded during the war. Still others may merely have reflected about how horrible all wars are to all who participate in them and the costs that they impose on civilians as well as soldiers. Most significantly, I realized that I was drawing inferences about every member of that tourist group that did not necessarily apply to any single one of them..."

Stevens said a central message conveyed by both the National Japanese American Memorial and the USS Arizona Memorial is to "beware of stereotypical conclusions about groups of people we don't know very well."

The view of the USS Arizona Memorial from below. (NPS)

"The Japanese tourists were not responsible for what some of their countrymen did decades ago..." Stevens ties his initial reaction to seeing Japanese visitors aboard the USS Arizona Memorial to some Americans' reaction to the building of an Islamic Center in New York City near the location of the 9/11 terrorist attacks. He notes, "terrorists like those who killed over 3,000 Americans – including Catholics, Jews, Protestants, atheists and some of the 600,000 Muslims who live in New York – have also killed many more Muslims who disagree with their radical views in other parts of the world."

He notes that many Muslims who escape groups like the Taliban come to America to try to avoid religious persecution and intolerance.

In his speech Stevens salutes the Americans of Japanese Ancestry who fought in World War II, including the "military bravery and unselfish service. "The predominantly Japanese-American 442nd Infantry Combat Team, for instance, became the most decorated regiment, for its size and length of service, in the history of the United States Armed Forces. Its members earned over 9,000 Purple Hearts."

Finally, Stevens noted another message of the Japanese American Memorial, one he called "a monument to stupidity": the "unnecessary internment of literally thousands of loyal American citizens for the duration of the war." He notes that 40 years after FDR's regretted decision, President Ronald Reagan and the U.S. Congress offered a formal apology to those Americans who were "deprived of their liberty without due process."

"Our Constitution protects every one of us from being found guilty of wrongdoing based on the conduct of our associates. Guilt by association is unfair. The monument teaches us that it is also profoundly unwise to draw inferences based on a person's membership in any association or group without first learning something about the group. Its message is a powerful reminder of the fact that ignorance – that is to say, fear of the unknown – is the source of most invidious prejudice."

Stevens meets Pat Summitt and Bob Dylan, also recipients of the Presidential Medal of Freedom.

President Barack Obama awarded Stevens the Presidential Medal of Freedom in 2012. Among the recipients were singer-songwriter Bob Dylan and basketball coach Pat Summitt as well as several other renowned Americans.

At the same ceremony, Obama awarded the medal to Gordon Hirabayashi, one of several Americans of Japanese Ancestry to defy the executive order for involuntary incarceration. He, as well as Fred Korematsu and Minoru Yasui, took his case all the way to the Supreme Court where he was defeated.

Hirabayashi

(Supreme Court Justice Robert H. Jackson wrote in his dissent in Korematsu v. United States: "If the people ever let command of the war power fall into irresponsible and unscrupulous hands, the courts wield no power equal to its restraint. The chief restraint upon those who command the physical forces of the country, in the future as in the past, must be their responsibility to the political judgments of their contemporaries and to the moral judgments of history.")

Obama repeated Hirabayashi's quote in his commendation: "It takes a crisis to tell us that unless citizens are willing to stand up for the [Constitution], it's not worth the paper it's written on." (Stevens says in error that there were no internment camps in Hawaii, but the Honouliuli Internment Camp near Pearl Harbor imprisoned as many as 4,000 people.)

Another distinguished recipient of the medal at the same ceremony was Senator John Glenn, a former Marine and Naval Aviator/Astronaut and the first American to orbit the Earth (in 1962).

Stevens said he appreciated Obama's kind remarks about him at the medal presentation ceremony, but even more than those words, he treasures the words of President Gerald Ford, a fellow World War II Navy Veteran, who nominated Stevens to the Supreme Court in 1975.

President Ford and Chief Justice Warren Burger pose with John Paul Stevens, who was sworn in as Associate Justice of the Supreme Court, Dec. 19, 1975. Ford nominated Stevens, of the Court of Appeals for the Seventh Circuit, Chicago, to fill the vacancy created by the retirement of Justice William O. Douglas. 

Ford wrote in 2005 about Stevens: "I am prepared to allow history's judgment of my term in office to rest (if necessary, exclusively) on my nomination thirty years ago of Justice John Paul Stevens to the U.S. Supreme Court. I endorse his constitutional views on the secular character of the Establishment Clause and the Free Exercise Clause, on securing procedural safeguards in criminal cases and on the Constitution's broad grant of regulatory authority to Congress."

This review barely scratches the surface of "The Making of a Justice," which could easily be called, "The Making of Justice." Although I've focused on the Navy-oriented biography covered in this review, most of this book is devoted to Stevens's perspective on cases, laws, decisions and dissents in the pursuit of an ethical democracy with roots deep in the Constitution. This is a study of critical thinking and core values at their best.