Table of Contents Executive Summary..........................................................................................2 Part I - Remarks on historical records, factual consideration, costs and precedential effect............................................................................................4 Section I - Historical Information on the Burial Place of the Crew of the U.S. Ketch Intrepid..........................................................................4 Section II - Feasibility of Recovery of Remains......................................8 Section III - Costs Associated with Exhumation and Examination of Remains.................................................................................................9 Section IV – Precedential Effects..........................................................12 Part II –Ability to Positively Identify Remains within a Two-Year Period....15 Section V – Potential for Recovery and Identification of Remains.......15 Section VI – Availability of DNA Samples...........................................16 Section VII – Solutions to Problems with Identification.......................17 Part III – Diplomatic and Inter-Governmental Issues.....................................19 Section VIII - Political and Diplomatic Climate of Libya.....................19 Section IX – Conclusions and Actions...................................................21 1 Response to the Department of Defense report regarding the feasibility of recovering the remains of the crew of the United States Ketch Intrepid from the Old Protestant Cemetery in Tripoli, Libya. Executive Summary The Intrepid Project is an independent, non-profit, grass-roots organization that represents the descendants of two officers that died in action 4 September 1804 while serving on the United States Ketch Intrepid in Tripoli, Libya – Master Commandant Richard Somers and Lieutenant Henry Wadsworth. The Intrepid Project represents the citizens of Somers Point, N.J., who have long spearheaded the effort to recover the remains of Somers, Wadsworth and the 11 men who died with them. The Intrepid Project is also the only advocate group for the 11 men on the Intrepid that died without family. The Intrepid Project has conducted thorough research into the burial location in Tripoli, utilizing maps, tide, current and wind conditions, and firstperson accounts. The explosion of the Intrepid the night of September 4, 1804, undoubtedly caused horrific damage to the bodies of the men on board. Subsequent abuse to the bodies in the form of dogs that fed on the remains, caused even more damage. However, the sources, far from being contradictory as the DoD report contends, offer a nearly complete picture of how and where American prisoners interred the remains. The DoD report makes many such contentions regarding historical sources that describe the location of the crew’s burial. What the DoD doesn’t detail, however, is the methodology it used in coming to its conclusions. Instead of taking each account in context of its author and using all accounts as one story, the DoD used them piecemeal, discounting those portions that belie its own pre-ordained conclusions. The most egregious example of this comes in the portion of the report in which the DoD purports to examine the accounts of American eyewitnesses. The DoD takes great pains to discuss contradictions in those accounts but never puts those accounts into context. In quoting U.S. Marine Corps Private William Ray, for example, the DoD report doesn’t say Ray never saw the remains and was merely re-telling a story he heard from Arab guards and Neapolitan prisoners. The DoD report is, in essence, an historically sourced shell game in which any facts that might gainsay the ultimate conclusions of the report fall into the palm of the DoD writers while they move the shells across the table. The DoD report makes no use of any Libyan sources, including the most comprehensive history of the Old Protestant Cemetery, “Secrets of the Old Protestant Cemetery Revealed,” an in-depth study of every person buried in the Old Protestant Cemetery by the Libyan Antiquities Ministry in 2008. Then, there is the consistent use of the term “American Cemetery” by DoD. This is a completely misleading nomenclature. The cemetery in which the Intrepid crew are buried is the Old Protestant Cemetery. There is nothing in any diplomatic document that re-names the 2 cemetery the “American Cemetery.” The use of this fabricated name is yet another attempt by DoD to make it appear the cemetery is somehow American-run, which it is not. The DoD report does point out in several places that the cemetery is under Libyan jurisdiction and that it is Libyan, not American, funds that maintain it. The continued use of “American Cemetery” in referring to the Old Protestant Cemetery, then, is a clear attempt to obfuscate this salient fact. The DoD has no authority whatsoever over the Old Protestant Cemetery or its contents and is at the mercy of the Libyan government when it comes to the maintenance and security of the graves of the Intrepid crew. This last fact cannot receive too much emphasis. The DoD report thanks the Libyans for their work in maintaining and safeguarding the cemetery. It fails to mention that before executing a massive restoration project last year immediately prior to Secretary of Defense Leon Panetta visiting Tripoli, the Old Protestant Cemetery was in a state of utter disrepair, with the northwestern wall quite literally crumbling onto the sandstone escarpment on which it sits. The deterioration was so extensive the Libyans feared the cemetery could collapse onto the Al Fatah highway – the road that runs immediately alongside the cemetery – and could potentially fall into the Mediterranean Sea, which is adjacent to the roadway. The DoD report makes no mention of the possibility of an anti-American government or fundamental Islamic government taking control of Libya. It makes no mention of the desecration of the Commonwealth Cemetery in Tobruk, a cemetery that holds the remains of British, Australian and New Zealand troops killed in action in Libya during World War II. Should an anti-American or anti-Western government come to power in Libya, there can be no guarantee of safety for these American graves in the heart of Tripoli. Indeed, it is safe to believe just the opposite would be true – that the same mob-mentality that led to the desecration of the Commonwealth cemetery, that the same terrorist cells that murdered the United States Ambassador to Libya, Chris Stevens, would seek to destroy the graves of any American military in Libya, especially so since the United States Navy still regards Richard Somers and Henry Wadsworth as heroes. The DoD report also fails to point out the fact the Old Protestant Cemetery, as a Libyan national heritage site, cannot have an American flag flying over the graves of the American sailors buried there. Instead, they lie under a foreign flag, except for rare occasions when American dignitaries visit and caretakers place small American flags in flower pots on the graves. These flags are quickly removed after any ceremony. For these reasons and more, the Intrepid Project believes the DoD report is irrelevant and merely serves to express the myopic outlook of one office within the DoD. As such, it ignores the will of the American people, as expressed in petitions and in the support of 5.5 million veterans from the American Legion, Veterans of Foreign Wars and AMVETS. Far from being problematic, the Intrepid Project believes the repatriation of these men of the Intrepid can be accomplished simply and quickly, with the assistance of the current Libyan government and we urge the House and Senate to work with us in developing a legislative remedy to this question. 3 Part I -- Remarks on historical records, factual considerations, costs and precedential effect Section I -- Historical Information on the Burial Place of the Crew of the U.S. Ketch Intrepid. Although small in number, the available source material on the location of the burial place of the crew of the Intrepid contains more than enough information to conduct a thorough examination and reach a positive conclusion. The best accounts of the burial come from three eyewitnesses – Captain William Bainbridge of the U.S. frigate Philadelphia, a captive in Tripoli; Surgeon’s Mate Jonathan Cowdery, also from the Philadelphia and a captive in Tripoli, and Dutch Consul Antoine Zuchet, who was on station in Tripoli during the 1803-04 conflict. In addition, Danish Consul Nicholas Nissen also recounts the burial and gives more exact details of where the remains of the Intrepid – and crew – came ashore. The DoD report attempts to take these accounts piecemeal rather than using them to assemble a complete picture. The DoD report also fails to use wind, tide and current conditions on September 4-5, information easily found in the log book of the USS Constitution, contained in the Edward Preble Collection at the Library of Congress. The DoD never consulted this source. Instead, the DoD appeared content to re-use information the Intrepid Project put forward in 2011 during the effort to win legislation regarding repatriation. The DoD report shamelessly copied wholesale portions of briefing materials the Intrepid Project presented to House and Senate staff, then redacted those portions which did not fit with its obviously preordained conclusions. The first major historical faux pas the DoD committed was in geography. In its somewhat hasty rehashing of Intrepid Project information, the DoD gives a completely false view of the area surrounding the Old Castle. As Dr. Cowdery and Captain Bainbridge both said, the remains of the ship and crew floated ashore east of the castle. The DoD acknowledges. However, it also accepts Cowdery’s description of the remains coming ashore “near where the ship exploded.” This, as the DoD knows, is impossible. Had the bodies floated ashore near where the ship exploded, they would have come up on the rocks at the mouth of the harbor, not the landward side of Tripoli Castle. The Intrepid entered the harbor through its eastern approaches, looking to capitalize on a northeasterly breeze, meaning the wind was blowing into the harbor toward the castle, where the pirates kept their gunboats. According to the log book of the Constitution, the wind was blowing roughly 8 knots, more than enough to propel the ketch-rigged Intrepid. Sometime after the Intrepid set out, the log book notes the wind picked up. (Log Book of the USS Constitution, Sept. 4, 1804, contained in the Papers of Edward Preble, Library of Congress Manuscript Division.) A notation in the log book at 9 p.m. said the wind shifted around to the northwest – in other words, blowing into the harbor but away from the castle. At 9:47 p.m., 4 the Intrepid exploded. As no one expected the ketch to make it close to the castle until roughly 11 p.m., and given the contrary winds and need to tack the vessel to maintain her course, there is simply no physical possibility the Intrepid exploded near the castle or beach. Next, still relying on Cowdery’s and Bainbridge’s descriptions, the remains of the crew and the wreckage of the Intrepid – including the two boats with which the crew planned to escape – came ashore on the beach east of the city walls. As the Intrepid Project noted in its 2011 source study, “Final Burial Place of the First USS Intrepid Crew”, the city walls extended much farther to the east than they do today. As the DoD well knows, but refused to acknowledge, the prisoners from the frigate Philadelphia extended those walls during their imprisonment in Tripoli. As early as December, 1803, on the same mission in which the Constitution and USS Enterprise captured the boat that became the Intrepid, Commodore Edward Preble and then-Lieutenant Stephen Decatur conducted a reconnaissance of the harbor and the defenses. In his diary on Dec. 23, 1803, Preble noted the Libyans (or Tripolitans as they were known in 1803) had extended the city walls “well down on the beach, erecting batteries to guard the castle and the frigate (Philadelphia, which the Tripolitans captured).” (Diary of Edward Preble, Dec. 23, 1803, Papers of Edward Preble, Library of Congress.) Taking all of this information as a whole, this can only mean the bodies came ashore within the vicinity of the Old Protestant Cemetery. One of the main reasons for this conclusion is the geography of the land near the castle IN 1803 and the combined descriptions of Preble, Cowdery and Bainbridge. Although Preble never said how far down the beach the Tripolitans extended their walled defenses, his use of the word beach is telling. The land immediately near the castle was rock, not sand. These rocks foiled two escape attempts of the officers of the Philadelphia during their captivity (See Thomas Harris, The Life and Services of Commodore William Bainbridge, pp. 109-113 and James Fenimore Cooper, History of the Navy of the United States, Vol. II for more details on the escape attempts.) As Cowdery noted, he “took a boatswain and a gang of men and buried these men a little east of the walls of the town.” (Jonathan Cowdery, American Captives in Tripoli (Boston, Belcher & Son, 1806), p. 10.) Those walls could only be the walls Preble described and which geography places roughly a mile or so from the castle. Then there is the wind and tide information, which is crucial in determining just where the remains came ashore. A northwesterly wind, coupled with a west-to-east current and an incoming tide – all of which is noted in the log book of the Constitution for Sept. 5, 1804 -would carry the remains of the Intrepid and its crew away from the castle, not toward it. Add in Captain Bainbridge’s description of the burial and there is a far more complete picture of where the American prisoners buried the remains: “The ten seamen were buried on the beach, outside the town and near the walls: while the three officers were interred in the same grave, on the plain beyond, or a cable’s length southward and eastward of the castle.” (James Fenimore Cooper, Lives of Distinguished American Naval Officers, (Philadelphia: Carey and Hart, 1846), Vol. 1, p.112.) The DoD report again takes this eyewitness description out of context and treats it as a standalone report rather than putting it together with those of other witnesses. The placement of the 5 enlistment men’s remains on the beach put that mass grave somewhere in the vicinity of the Al Fatah roadway, which the Italians built in the 1920s. As for the officers, their grave was not a cable’s length from the castle as the DoD report claims but from the grave of the enlisted men, southward and eastward of the castle. The DoD researchers either misread or ignored this or, surprising for naval officers, are unable to execute basic navigation. Using the old measure of a cable’s length from the enlisted men’s grave, the site of the officers’ burial is the Old Protestant Cemetery, a site Libyan sources confirm. The DoD utterly failed to incorporate any Libyan sources in its study. Had it done so, it would have learned immediately that the locals built the Old Protestant Cemetery around the graves of three American naval officers who died and were buried on site in 1804. These can only be the remains of Master Commandant Richard Somers, Lieutenant Henry Wadsworth and Midshipman Joseph Israel. The definitive Libyan source on the Old Protestant Cemetery is a 2008 history of the site Abdu Hakim al –Tawil prepared for the then-head of the Antiquities Ministry, Secrets of the Old Protestant Cemetery Revealed (Tripoli, Libya: Libyan Center for Historical Studies) (Secrets). The Libyan source is quite clear about the reason for the selection of the site of the Old Protestant. According to Secrets, Western diplomats, led by the wife of the English consul, chose the site because the graves of three American naval officers were already on the site. (Al-Tawil, pp. 71-76. (Translation by Prof. of Arabic Studies Hezi Brosh, United States Naval Academy).Secrets identifies these graves as those belonging to the officers of the Intrepid. (Al Tawil, Ibid.) The Libyan history is the comprehensive narrative of the Old Protestant Cemetery. It documents every person – male and female – buried in the cemetery, including a brief biography of each person. The history lists the name and disposition of each of the 75 people buried in the cemetery from 1830, when it was built, to 1890, when use of the cemetery ceased because there was no longer any space. It also specifies which bodies (or remains) are still in the cemetery and which bodies (or remains) various governments or families removed over time. (Al Tawil, p. 81-83.) The Libyan history also makes great use of archival and modern-day maps, showing the city of Tripoli as it was in 1804, 1830, 1890, 1911, 1920, 1950 and the present day. In each case, the history uses these maps to detail changes to the topography of the city – mostly from landfill projects that allowed the construction of two multi-lane highways. The maps also show the increasingly precarious nature of the location of the cemetery. It currently sits on a small sandstone outcrop next to the Al-Fatah Highway and was in danger of collapsing onto the highway until the Libyans hastily renovated the site prior to the visit of Defense Secretary Leon Panetta in December of 2011. The DoD report makes no mention of Secrets. In fact, the DoD writers apparently consulted no Libyan sources whatsoever, relying instead on information it cherry-picked from reports the Intrepid Project wrote and from Web sites such as the factually challenged “Remember the Intrepid” blog, which re-printed the 1955 interview with Mustafa Burchis. A harbor worker in Tripoli, Burchis claimed he helped identify the burial site of the Intrepid crew, 6 information the Navy used to mark five graves in 1949 as those of the Intrepid crew. What the DoD report doesn’t say – and which the Proceedings article about him makes clear -- is Burchis had ulterior motives for working with the Navy, namely, he wanted to emigrate to America. It is extremely interesting to note that Secrets places little to no faith in Burchis’ account, relying instead on scientific and historic data. The one aspect the DoD managed to get correct is the fact the Old Protestant Cemetery contained – and contains – more than just American military remains, although its grave count in the cemetery is 22 less than that contained in Secrets. The Libyan history also lists all of the people once interred there, gainsaying the DoD claim that nearly half of those once buried at the site are “unknown.” Finally, the DoD report goes to great lengths to point out the inconsistencies and at-times contradictory information the various eyewitness accounts contain. Once more, this is the DoD not doing its due diligence and taking these accounts piecemeal. There is an expectation in the DoD report that prisoners, locked in Tripoli castle, would somehow know all about the Intrepid, its mission and the number of crew on board the vessel when she exploded. Clearly, there is no way, in 1804, for anyone locked in a castle to know what exactly was happening more than a mile away in the harbor. Additionally, the bodies of the crew were subjected to horrific abuse, first from more than 15 tons of explosives, then impact with water or wreckage of the Intrepid and dogs that fed on the remains. The DoD never even mentioned this abuse in its report, abuse reported first-hand by Dutch Consul Antoine Zuchet. The cumulative effect of this abuse can only have been to completely dismantle the bodies of the crew. Although the Intrepid Project was unable to conduct scientific testing on cadavers or pig corpses, it is clear prisoners cleaning up remains would find bits and pieces, not whole bodies. Dr. Cowdery, in his journal, said he identified the three officers based on their hands, which he believed would be softer than those of ordinary seaman, as well as from bits of uniform still intact. Cowdery, however, never said he and his burial detail found complete, intact bodies. This fact alone easily accounts for any inconsistencies as to the number of remains that came ashore following the explosion of the Intrepid. The DoD report also points to the account of Marine Corps Private William Ray in attempting to create confusion over the amount and number of remains the American prisoners buried. Once again, the DoD is guilty of selective editing. It provides Ray’s statement, from Horrors of Slavery or American Tars in Tripoli (Troy, N.Y: Oliver Lyon, 1808), that he heard 14 bodies had come ashore. Ray was not an eyewitness to either the explosion or the burial. His information came second hand from other prisoners and prison guards (Ray, pp. 1345-35). Of even more concern is the manner in which the DoD treats this information. By discounting the historical record, failing to conduct scientific testing using readily available wind, tide and current data for the period of September 4-6, 1804 and neglecting to consult Libyan sources, the DoD report raises questions about exactly who is buried in the five graves in the Old Protestant Cemetery the Navy itself marked as belonging to the Intrepid crew. If the Navy isn’t sure who is buried there, why then is it so adamant about not allowing exhumations? If 7 the Navy is unsure whether Master Commandant Richard Somers, Lieutenant Henry Wadsworth and Midshipman Joseph Israel are actually buried in the Old Protestant Cemetery, why did it a) mark the graves and b) have Secretary of Defense Leon Panetta lay wreaths there? The inconsistencies are not in the historical record but in the treatment it received from the writer(s) of the DoD report. Section II -- Feasibility of Recovery of Remains If the House and Senate are to believe the DoD report, the remains of the 13 men of the U.S. Ketch Intrepid could stretch from the walls of Tripoli Castle, along the entire length of the shore in the harbor to a small escarpment on which sits the Old Protestant Cemetery, a distance of more than two miles. As pointed out in Section I, the DoD conducted no scientific studies of wind, tide and current effects, took the historical record piecemeal and consulted no Libyan sources. Instead, in what was clearly a pre-ordained conclusion, the DoD stressed the near impossibility of finding the “original” burial sites of the crew of the Intrepid because of the built-up and sensitive nature of the section of Tripoli near the castle and the water. This is actually quite correct insofar as the “original” burial site of the enlisted men. This site is almost certainly gone forever under the Al-Fatah roadway, which runs parallel to the Mediterranean Sea from the medina, or old town of Tripoli, past the Old Protestant Cemetery. No one, from the Intrepid Project to the millions of veterans that support the recovery of the remains, is calling for massive excavation of Tripoli to find the “original” burial site. What the DoD report failed to even mention, however, are the reports from Italian road crews in the 1920s – reports Mustafa Burchis relayed to the Navy – about the discovery of the enlisted men’s grave site on the beach during the construction of the Al Fatah roadway. Although the original report no longer exists, Secrets of the Old Protestant Cemetery Revealed goes to great lengths to verify the Italian accounts, right down to re-printing Italian engineering maps from the period. In discussing the “original” burial sites and the difficulty in precisely locating that of the enlisted men, the DoD is obviously attempting to obfuscate the fact the officers’ grave site requires no search as it was – and is – inside the Old Protestant Cemetery and the fact the Italian road workers who came upon the remains of the enlisted men moved those remains to the Old Protestant Cemetery as well. As for recovering the remains from the tombs in the Old Protestant Cemetery, the DoD again and again raises the possibility the stone sarcophagi contain no remains or remains other than those of the Intrepid crew. “Despite the attention paid to the American Cemetery [sic] and the recognition of the site as part of the history of the Barbary War [sic]*, the historical record remains inconclusive. There are five stone sarcophagi that purportedly (emphasis added) mark the final resting place of the crew of the Intrepid. It has not been possible to confirm 8 whose remains might be in these sarcophagi, or even to confirm that these sarcophagi contain any human remains at all.(Emphasis added)” (DoD Report, pp 5-6) Given this uncertainty, one would think the DoD would lead any effort to determine, once and for all, whether the stone coffins contain remains and whether any artifacts – buttons, uniform pieces, shoes, etc. – are also in the coffins that would lead an investigator to believe the remains are those of early 19th century American naval officers. Instead, the DoD insists on leaving the coffins unopened and, at least in its report, apparently didn’t even make a few long-distance phone calls to Tripoli to ask the Antiquities Ministry in Libya whether it would or could open the coffins to see what they contain. The uncertainty to which the DoD report points about the coffins also raises the question of just why the DoD in general, and the Department of the Navy in particular, is so completely against any scientific investigation of the grave site. If, as the DoD report says, there is so much uncertainty, why would it even care if an outside group conducted an archaeological exhumation at the site. This is clearly not the case. The only conclusion one can reach is the DoD wants to create as much confusion as possible to further its own cause of preventing the repatriation of the crew of the Intrepid. As Section I of this report shows, there is no confusion about where the crew of the Intrepid is buried. There is ample historical documentation – American, Libyan and Italian – that all points to the Old Protestant Cemetery as the final resting of the 13 men. There is no need for a search, major excavation or the disruption of any site within Tripoli. All that is required is a simple examination of five – possibly six, as the Libyans identified a sixth coffin as possibly being that of the Intrepid crew – stone coffins to see what they hold. This type of archaeological inquiry occurs constantly at sites from the United States to Bangladesh and is easily conducted at the Old Protestant Cemetery in Tripoli. Section III -- Costs Associated with Exhumation and Examination of Remains The DoD report provides a cost breakdown of traveling to Libya, recovering the remains, conducting DNA testing and finally re-burying the remains of $770,000. Although it provides general breakdowns as to how it arrived at this cost, the DoD did not provide line items. The Congressional Budget Office, in 2011, estimated the cost of the recovery of the remains at $85,000 to $100,000. The DoD report does not mention the CBO estimate nor does it provide specific costs. The three major costs that jump out are the DoD estimates for “Exhumation” which includes “Personnel, travel, material, equipment and contract support,” at $130,000; “Site Restoration,” which includes “Repair of any damage to the American Cemetery [sic] and compensation for host nation involved” at $100,000 and “Historical and scientific research and analysis” which includes “Supporting DoD and historical research as well as scientific analysis of the remains” at $309,000. 9 This last cost is somewhat confusing as the DoD also expects to incur costs of $130,000 to take extract DNA from the remains and collect DNA samples from descendants of the crew while it also expects to pay an additional $50,000 for DNA testing. What other “scientific analysis” the remains might require, to the tune of $309,000, is a mystery. So, too, is the “supporting DoD and historical research.” Is this an admission the DoD failed to conduct said “historical research” for its report in answer to Section 598? Is it an admission there is more information that DoD, in 270 days, was somehow unable to collect? Is it DoD trying to sneak in the cost for a few hammers and toilet seats? Again, it is a mystery. The Intrepid Project believes the CBO estimate to be much more in line with the actual cost of any mission to recover the remains. Taking the first expenditure, “Exhumation,” the Intrepid Project analyzed the cost of sending a 10-person team to Tripoli, hiring local workers and exhuming the remains. (The DoD report makes no mention of how many individuals it believes necessary to conduct a recovery mission.) The Intrepid Project used www.orbitz.com for airline information and costs and www.booking.com for hotel information and prices. To travel from Washington D.C. to Tripoli, the average cost is $1,200 per adult. The price range runs from $1107 on several budget airline to $1304 on American Airlines. As the Intrepid Project believes in supporting American businesses, it used the American Airlines price in its estimate. The DoD report claims it would take five days – one grave per day (DoD Report, p. 7)– to recover the remains. The Intrepid Project disputes this claim. However, we decided to use the five days – plus two more as “just in case” days – to calculate the length of stay for a 10person team. The cost for a seven-night stay at the Al Muhary Radisson Hotel on Al Fatah Street in Tripoli is $12,997. The costs of meals, depending on where one eats in Tripoli, can range from $4 to $400. The Intrepid Project used a per diem of $50 per person to cover meals for a total cost of $3,500. Next, the Intrepid Project priced out the cost of opening stone coffins, preserving the site, replacing the coffin lids and repairing any damage to the site. To do so, we spoke with four different stone and concrete contractors. Using the prevailing rate for Maryland as found on the U.S. Department of Labor Web site, the estimated cost and equipment needs to recover and remove the remains would be (in U.S. dollars): 1 Union journeyman mason at $19.77 per hour for 8 hours per day for 5 days: $790.90 4 Union mason laborers at $11.14 per hour for 8 hours per day for 5 days: $1,782.40 1 Front-end loader operator at $18.87 per hour for 8 hours per day for 5 days: $754.80 2 General construction laborers at $12.11 per hour for 8 hours per day for 5 days: $968.80 Use of front-end loader for 5 days: $3,000. NOTE: These are U.S. labor prices. According to the International Labor Organization, the average Libyan wage is roughly one-seventh of the U.S. Use of local contractors, then, would likely cost less than the estimates presented here. 10 As for materials necessary, no contractor could provide an estimate as there was no way to know how much, if any damage, might occur on lifting the lids off the coffins. Two contractors indicated a safe estimate was $5,000 which would allow for the use of specialized cement products that resemble and act exactly like sandstone, the material from which the stone coffins in the Old Protestant Cemetery are made. The total cost for the Intrepid Project to go to Tripoli, work in the cemetery and recover the remains of the crew of the USS Intrepid would be: Travel Lodging Meals Equipment (Construction) Materials (Construction) Labor (Construction) Equipment (Containers) Other* TOTAL $13,040.00 $12,997.00 $ 3,500.00 $ 3,000.00 $ 5,000.00 $ 4,296.90 $ 1,000.00 $ 2,000.00 $44,833.90 * Other runs the gamut from office supplies to bubble wrap to protect remains to sunscreen to a $150 fee for the box containing the remains that American Airlines charges for extra baggage. The Intrepid Project estimate INCLUDES the costs of opening and closing the coffins and repairing any damage to the coffins or interior of the cemetery grounds. The DoD estimate of $100,000 for repairs, on top of the $130,000 cost of opening the coffins, simply makes no sense. The Intrepid Project also questions the need for “compensation for host nation involved.” Is this subtle language that a bribe would be necessary to convince the Libyans to allow the recovery of the remains? The DoD report does not elaborate on the need for “compensation for host nation involved” and does not explain exactly what this cost entails. Clearly, the DoD estimate of $230,000 to open, close and repair any damage to the coffins is grossly overstated. While it is something of a truism that the private sector can normally accomplish a task faster and cheaper than the government, certainly, in this case, the fact the Intrepid Project can price out the cost of recovering the remains for roughly half the estimate the CBO provided leads one to believe the DoD failed to conduct due diligence – or even look at airline and hotel prices – when fabricating its costs analysis. Then there is the question of the $309,000 expense for historic and scientific research and analysis. The DoD, in its cost estimates, already allocated $180,000 for DNA testing. The Intrepid Project questions the need for a second allocation of $309,000 to conduct the exact same testing. It also questions the veracity of the cost of historical analysis – something Section 598 required the DoD to conduct prior producing its report. 11 The Intrepid Project addresses the need for DNA testing in Part II. The estimated costs in the DoD report are once more an example of scare tactics on the part of an agency that opposes the repatriation of the remains of the Intrepid crewmen. In a time of economic hardship, DoD can point to an “unnecessary” expenditure of $770,000 as a way it is trying to do everything it can to reduce costs by not conducting a repatriation mission. This is nothing more than a canard on the part of the office of the CNO, where the opposition to recovering Master Commandant Somers and his crew originates. The Intrepid Project also questions the $60,000 price tag DoD put on its report in answer to Section 598. DoD conducted no scientific tests, made no effort to conduct any independent study of the available sources and – as the next section will prove – actually stole copyrighted material, re-packaged it and created a false source to cover up its theft of intellectual property. The Intrepid Project believes the House and Senate Armed Services Committee should demand a line-item accounting for the $60,000 figure. Section IV -- Precedential Effects The DoD goes to great lengths to raise concerns that repatriating the remains of the crew of the Intrepid would somehow open a floodgate to other requests from families of deceased service members buried overseas. The report notes, “Significant numbers of other U.S. military personnel from World War II and prior conflicts are buried on foreign soil.” (DoD Report, p. 6). The report claims recovering the Intrepid crew remains could lead to still more requests from families to have bodies returned to them that “have already been honorably buried and memorialized.” It seems odd the DoD should include casualties from “World War II and prior conflicts” as the DoD routinely recovers remains of World War II casualties and returns them to their families. According to the U.S. Army Human Resources Command, “Since 2002, the remains of 96 Soldiers previously unaccounted for have been repatriated, identified and returned to the families for full military honor burial. Currently, remains associated for 50 additional soldiers are in the final stages of identification.” (www.hrc.army.mil/TAGD/World War II) Moreover, no one has ever suggested uprooting any honored dead from American cemeteries overseas, such as those in Normandy, France, Bastogne, Belgium or Tunis, Tunisia. These cemeteries – and others – are American soil, where the American flag flies over the graves of those who nobly sacrificed their lives in defense of our nation. The cemetery in Tripoli fails to meet this criteria. It is not an American cemetery. It is not under American jurisdiction, protection or care and does not have the American flag flying over the graves of the American personnel buried there. While the Libyans have recently undertaken restoration work on the Old Protestant Cemetery, there is no guarantee that should a government hostile to the United States take power, that it would protect the sanctity of the burial ground. 12 The DoD report lifts, almost verbatim, a letter the Intrepid Project received from historian Chris Dickon concerning remains in England, Canada, Spain and Nicaragua. (See Attachment 1) What the DoD report failed to include was Mr. Dickon’s assessment of the effect recovering the Intrepid crew might have on these graves: 271 named Americans rest in a common grave at Dartmoor Prison and it would not be possible to find the remains of a single one of them. The same holds for a common grave in Halifax, Nova Scotia with approximately 285 named Americans. I think it’s important to note that in all three cases these burials have modern day advocates and ceremonies for those interred. In Plymouth, the tombstones of Allen and Delphy are cemented into the doorway of the historic Prysten House, and memorialized each year by citizens of the UK and US. The cemetery at Dartmoor is attended to by British citizens, the American Daughters of 1812, and occasional visits by US military members. The Halifax cemetery includes a memorial provided by the US Veterans Administration and is attended to by American and Canadian interests. (Chris Dickon to Intrepid Project, Sept. 29, 2011) In one of the more recent – and more celebrated – cases of repatriation, the U.S. Army Central Identification Laboratory in Hawaii traveled to Makin Island in 1999 to recover the remains of 19 Marines that died during the raid on the island in 1942. The staff from CILHI found the islanders had not only buried the Marines, but cared for the remains “with great reverence and respect.” Their steel helmets and dog tags were still intact. CILHI contacted the Marine Corps – part of the Department of the Navy – and the Marines conducted an operation to recover those remains. In what might be the most famous case of repatriation, the Navy recovered the remains of John Paul Jones from a properly marked grave in Paris, France, at the order of President Theodore Roosevelt. As this repatriation took place in the early 1900s, the Navy conducted no DNA identification as it didn’t exist. Instead, it used the historical record to identify the French grave, accepted the remains as those of Jones and moved the remains to their current location on the grounds of the United States Naval Academy. Is the DoD going to suggest opening Jones’ coffin and holding his remains in limbo while it seeks a maternal relative on whom it can conduct DNA to positively identify Jones’ remains? The answer is clearly no. The DoD accepted – and continues to accept – information in the historical record that showed where Jones was buried in France and it retrieved his remains based on that information. It can easily do the same for the crew of the Intrepid. It is also interesting to note the DoD report brings up the possibility of remains from the Spanish-American War and Philippine Insurrection as being missing or unclaimed. Interesting, because President William McKinley dispatched teams of soldiers to collect the battlefield dead of these conflicts and return them to the United States. As such, these teams were the forebears of the current teams from JPAC. As for any potential floodgates, laws already exist mandating the return of remains upon request of families. The United States is a signatory to the International Red Cross 13 conventions on warfare, and as such, is bound by Rule 114: “Parties to the conflict must endeavor to facilitate the return of the remains of the deceased upon request of the party to which they belong or upon the request of their next of kin. They must return their personal effects to them.” The IRC cites the action of the government of Indonesia in returning the ashes of 3,500 Japanese soldiers killed in World War II. The Japanese accepted those ashes as those of its soldiers despite having no way to identify them. The Department of Navy, in fact, oversaw one of the largest repatriations efforts of the 20th century when it removed the remains of 6,812 Sailors and Marines from Iwo Jima. Finally, the DoD, in raising the specter of potentially hundreds of thousands of repatriation requests, is either ignoring or is ignorant of the statutes that govern repatriation. Public Law 389, 66th Congress and Public Law 368, 80th Congress gave the next-of-kin of military dead the right to chose between an overseas burial in an American cemetery or a cemetery in the United States. A provision of the law terminated authority to make further disposition of remains after December 31, 1951, when the decision of the next of kin became final. As such, there can be no flood tide of requests for repatriation of any remains covered under statute, which extends back to the Spanish-American War. And, should an investigator or historian discover the whereabouts of the graves of any United States Marines that died in the assault on Chapultepec Castle or Belen Gate of Mexico City in 1846, the Intrepid Project would greatly enjoy watching the DoD tell the Commandant of the Marine Corps he could not repatriate those remains. 14 Part II -- Ability to Positively Identify Remains within a Two-Year Period Section V -- Potential for Recovery and Identification of Remains The DoD report correctly assesses the problems associated with identifying any remains contained in the coffins in the Old Protestant Cemetery. In fact, the DoD report overlooks one salient point – that the remains suffered massive damage prior to burial in the form of the explosion of 15 tons of gunpowder, followed by impact with salt water and wooden wreckage, followed by attacks from wild dogs. The cumulative effect on the remains could render DNA extraction impossible. Of course, the only way to know would be to recover the remains and examine them. The DoD report makes no mention of the possibility of simply examining the coffins in the Old Protestant Cemetery to see what, if anything, those coffins contain. The DoD estimation of time for the scientific analysis appears accurate and the Intrepid Project does not dispute the use of military laboratories to conduct DNA testing. The biggest transgression the DoD commits in its analysis of the potential for recovery and identification of the remains is theft of intellectual property belonging to Intrepid Project historian Chipp Reid. On p. 9 of the its report, the DoD has a table listing the names, ranks, place of enlistment or hometown and ship on which each crew member served prior to his death on the Intrepid. The DoD attributes this table to “Log Book of Commodore Preble.” This is a complete fabrication. In other words, it is an outright lie and theft of copyrighted material. Mr. Reid is the only historian to compile the service records of the 13 men that died on the Intrepid. He used multiple sources – including the log book of the USS Constitution, which Sailing Master Nathaniel Haraden kept – the diary of Edward Preble, the official reports of Preble and other officers, letters of recruiting officers detailed to New York and Boston, information contained in the letters and papers of Commodore John Rodgers and the letters and papers of Master Commandant Richard Somers. (See Attachment 2) The Intrepid Project compiled this information and included it – under copyright – in its briefing materials for the House and Senate last year as the Intrepid Project fought to have repatriation included in the National Defense Authorization Act of 2012. This same information is part of Mr. Reid’s book, Intrepid Sailors, which the Naval Institute Press published in October, 2012. As such, the unauthorized use of this material constitutes copyright infringement and theft of copyrighted material. More troubling is the fact the writer(s) of the DoD report invented a completely fake source to which it attributed the crew information. No better than a bald-faced lie, this act calls into question all of the methodology the DoD used to compile its report. It also makes it quite 15 clear the writer(s) of the report conducted nothing in the way of independent research on either the crew or the issues surrounding repatriation. The Intrepid Project demands the DoD issue an apology immediately to Mr. Reid and make immediate restitution for its unauthorized use of his copyrighted material. The changes the DoD made to this information to make it appear as though the writer(s) compiled it independently actually make portions of the table incorrect, thereby directly affecting Mr. Reid’s published work. The Intrepid Project demands the DoD retract the plagiarized portion of its report and make restitution for potential damages to sales of Mr. Reid’s because of the dissemination of its falsified information. Section VI -- Availability of DNA Samples The DoD report apparently completely discounts the work the Intrepid Project has already completed in tracking down descendants of Richard Somers and Henry Wadsworth. The Intrepid Project has family members ready to provide DNA samples that would allow for both mitochondrial DNA (mDNA) and Y-DNA testing. In addition, the Intrepid Project believes genomic DNA testing could actually yield the best results using DNA from either maternal or paternal descendants. The DoD report is correct in its assessment of the availability of samples from any descendants of Midshipman Joseph Israel or the 10 enlisted men. After three years of research, the Intrepid Project was unable to find any descendants from Israel. The Intrepid Project investigated nine distinct and non-related family groups with the surname Israel; none had ancestral records showing a relationship to Joseph Israel. As for the enlisted men, the Intrepid Project spent a year literally cold-calling families in Maryland with the surnames of Harris, Keith, Tompline and Simms and again, could find no one with ancestral records showing a relationship to the Nautilus crewmen on the Intrepid. The Intrepid Project only searched for the Nautilus crew. The DoD, when it plagiarized and inaccurately changed the copyrighted information on the crew rather than actually conduct an historical investigation, failed to include biographical data in Mr. Reid’s published work showing five of the six Constitution volunteers were likely British. (See letters of Joshua Blake to Edward Preble and Preble to Blake from July and August, 1803, in the Edward Preble Papers at the Library of Congress.) The Intrepid Project did not have the means or resources to conduct a search for these crewmen. Further complicating the search is the likelihood the British sailors were deserters from the Royal Navy and enlisted in the United States Navy under false names. The DoD report, in yet another attempt to create confusion, completely ignores the historical record in questioning whether “additional remains, unassociated with the loss of the Intrepid, may have washed ashore in the same period.” (DoD report p. 8) The writer(s) of the DoD report would have done well simply to read the synopsis of the First Barbary War on the Naval History and Heritage Command Web site. There are also dozens of excellent modern 16 books on the subject. Had the DoD done any of these things, had the writer(s) of the report even bothered to conduct just a small amount of research, it could be quite certain that the only combat operations that took place Sept. 4, 1804, was the attack by the Intrepid. Combat operations did take place on Sept. 3, but without American casualties. The DoD also claims there is a possibility remains from prisoners of the Philadelphia are somehow mingled with those of the Intrepid crew. This assertion is absurd in its entirety. Again, had the DoD conducted anything close to proper historical research, it would not have included this claim in its report. Section VII -- Solutions to Problems with Identification Despite the obstacles, the Intrepid Project believes there are two rather simple solutions to the question of identification. The first is use of historical data. As the Intrepid Project has shown, all data points to the Old Protestant Cemetery as the final resting place of the Intrepid crew. The DoD can accept this and, upon examination of the contents of the coffins the Libyans have designated as those of the Intrepid crew, which is six in number and not five, and confirmation via artifacts that the remains are indeed American, request the return of these remains to their families. As 11 of the crew have no known descendants, the Intrepid Project is representing those men. Upon return of the remains, and in accordance with Title 38 U.S. Code Parts 101, 2305, 2306 and 2308, they would be buried in Somers Point, N.J., in a single grave marked with a monument currently under construction that lists all the names of the Intrepid crew. Their hometowns or place of enlistment and their (correct) ranks will be placed on adjacent signage. (See attachment 3) The families that can provide DNA samples – namely, the Wadsworths and Somers – have agreed to this arrangement. There is ample precedent for this type of repatriation and burial, starting with the remains of John Paul Jones. As the DoD knows, the Navy never conducted DNA tests on the remains of the Continental Navy hero, even after the technology became available. Despite rumors to the contrary (See Smithsonian Magazine, April 2006) the Navy accepts the remains as those of Jones. An even more recent example is the burial of the 184 Pentagon victims of the Sept. 11, 2001 terrorist attacks. The remains of five of the victims, including a 3-year-old passenger on the plane that struck the Pentagon, could not be found. Their names, however, were included on the burial memorial. Moreover, because of the extensive damage to 25 of the victims’ remains, they were placed in one grave at Arlington National Cemetery. The second solution would be to have an independent laboratory conduct genomic DNA testing on any remains recovered from the Old Protestant Cemetery prior to their removal from Tripoli. BioServe, the laboratory with which the Intrepid Project is in contact, has facilities in Italy that could conduct the testing. The tests would seek any remains that could be tied to descendants of Henry Wadsworth and Richard Somers. Upon conclusive proof the remains in the coffins belong to those officers, it should be relatively simple for the DoD to 17 accept that remains that do not match those two officers’ families are those of other crew members of the Intrepid. All of the remains could then be brought to Somers Point for burial. The Intrepid Project would accept the United States Navy Academy as an alternate burial site. The Academy is the site of the Tripoli Monument, which memorializes all of the officers that died in combat actions in 1803-04. 18 Part III -- Diplomatic and Inter-Governmental Issues Section VIII -- Political and Diplomatic Climate of Libya Although the DoD report goes to great lengths to reach its pre-ordained conclusion of opposing repatriation of the Intrepid crew, it spends precious little time analyzing the current state of Libyan politics, especially in the wake of the Benghazi attack in which terrorists murdered United States Ambassador Chris Stevens and three former Navy SEALs. The DoD report also fails to mention the attack on the Commonwealth Cemetery outside Tobruk. A one-minute long video posted on YouTube shows armed Libyans knocking over gravestones and spitting on graves in response to a perceived insult. (To see the video, go to http://www.youtube.com/watch?v=aQsuX4cZKgM). Additionally, the DoD report includes no analysis from any experts, whether from the State Department or from outside the government, on what may happen in Libya in the future. Instead, the writer(s) of the DoD rehash the disproven theory than remains could be buried under hotels or private homes or roads or parks along the Mediterranean shore. Once again, the DoD is guilty of not conducting due diligence in answering the requirements of Section 598. It is likely because any in-depth analysis of the situation in Libya would show a precarious balance between democratic elements and Islamist elements in the country. According to reports on Reuters (Sept. 12, 2012, Oct. 3, 2012, Oct. 17, 2012, Oct. 23, 2012), France24 (Oct. 2, 2012, Oct. 17, 2012) and Time Magazine (Oct. 17, 2012), Islamic elements in Libya are flexing their muscles, free from the restraint they faced under the regime of Muammar Qaddafi. “Using organizational skills honed over decades in the opposition underground, Islamists are carving out a place in Libyan postwar politics more rapidly than other former dissidents preparing for a hoped-for future of pluralism,” Reuters said in an Oct. 23 article. The DoD certainly should have addressed this issue in its report. The Old Protestant Cemetery is somewhat off the beaten track of Libyan tourism. It is actually more famous for the grave of Canadian-born explorer John Davidson – who died trying to map a route to Timbuktu – than it is for the graves of the Intrepid crewmen. However, radical Islamic elements certainly know about the American graves and that could make them a target during any waves of antiAmerican or anti-Western sentiment. The DoD also failed to discuss the somewhat fragile nature of the interim Libyan government. Although the General National Congress named a new prime minister, former diplomat Ali Zidan, the country still does not have a Cabinet. Ethnic, religious, geographic and political differences tear at the fabric of the new Libyan government, making it in effect powerless. With a young, restive and mostly unemployed populace, any new government in Libya faces massive tasks in getting its people back to work and in curbing the spread of militant Islam. The attack on the United States consulate in Benghazi and the murder of United States Ambassador Chris Stevens remains a black eye on the new government, one it would undoubtedly like to erase. Although the repatriation of 208-year-old naval remains can never 19 entirely atone for the murder of Chris Stevens, it could offer the Libyan government an opportunity to reach out to the American people and to have Americans see Libya in a more positive light. The writer(s) of the DoD report, on p. 9, claim to have had the input of Libyan Antiquities Minister Dr. Saleh Agep in the report. However, there are no quotes from Dr. Agep, no mention of any Libyan sources in the report – in fact, the writer(s) spell Dr. Agep’s name in different ways in two places. On p. 9, his name is Saleh Agep yet on p. 11 it is Salah Agap. If the writer(s) cannot even spell the minister’s name the same way over a span of two pages, the Intrepid Project has little faith the writer(s) actually spoke to him. The DoD report also attempts to disparage the possibility of conducting any sort of archaeological work within the walls of the Old Protestant Cemetery, citing Libyan antiquities laws. The Intrepid Project previously addressed this issue in Section IV. Finally, in coming to its pre-ordained conclusion of opposition to repatriation, the DoD report quotes Defense Secretary Leon Panetta at length as he thanked the Libyan people for maintaining the cemetery. This is a complete canard. The Libyans did not maintain the cemetery until 2011, when, prior to Secretary Panetta’s visit, they conducted a massive restoration on the Old Protestant Cemetery. United States Representative Mike Rogers visited the site in 2006 and found it crumbling. United States Navy Captain Greg Miller visited the site in late 2010 and also found the walls crumbling. (See photos, Attachment 3) Right now, the Old Protestant Cemetery is somewhat in vogue as the repatriation issue keeps it in a small spotlight. What happens when that light ceases to shine is a major question. The DoD conclusions on the diplomatic and political repercussions of repatriation are completely baseless and do not take into account the events in Benghazi in September or the attack on the Commonwealth Cemetery in May, 2011. What is most glaring is the fact the DoD never once asked a Libyan official a simple question: What do you think? There is nothing in the DoD report on the Libyan position on repatriation. The Intrepid Project has opened direct talks with the Libyan government through the Libyan Embassy in Washington. The Libyan Ambassador expressed his willingness to specifically discuss the repatriation issue, once he receives guidance from Tripoli. Obviously, the DoD never once broached the subject or the Ambassador would already have that guidance. Also, the DoD never asked the Libyans to conduct a simple archaeological examination of the coffins to determine whether they, in fact, contain any remains and/or artifacts that research and testing could tie to the Intrepid. This fact alone shows the DoD had no intention of reaching any conclusion other than that ordained by the Chief of Naval Operation, namely, to oppose recovery and return of the 13 heroes of the United States Ketch Intrepid. 20 Section IX -- Conclusions and Actions The DoD report is a collection of poorly researched speculation, rampant opinion and intellectual theft and copyright infringement. It is obvious the DoD did not take the mandate of the American people, as expressed in Section 598, very seriously. The DoD clearly conducted no independent research, consulted no experts, asked no questions and conducted no scientific testing. The writer(s) of the report most likely had their mandate from the Chief of Naval Operations and fulfilled that mandate by expressing the CNO’s continued opposition to repatriation of the crew of the Intrepid. The repatriation of the crew of the Intrepid offers the governments of the United States and Libya an historic opportunity to work together, not only to provide closure to the surviving families of the men of the Intrepid, but to put past differences aside. The remains of the Intrepid crew are not necessary to any monument or memorial service in the Old Protestant as there are 24 other sailors and Marines who died in Tripoli in 1803-04 whose bodies are lost to history. The Intrepid Project remains steadfast in its belief the United States government should repatriate the remains of Master Commandant Richard Somers, Lieutenant Henry Wadsworth, Midshipman (Acting Lieutenant) Joseph Israel, Quartermaster James Harris, Gunner’s Mate James Simms, Boatswain’s Mate William Keith, Able Seamen Isaac W. Downs, Thomas Tompline and Hugh McCormick and Seamen Robert Clark, William Harrison, Peter Penner and Jacob Williams from the Old Protestant Cemetery in Tripoli, Libya; that the U.S. government should transport these remains to Somers Point, N.J., where they will receive a proper, full military burial and remain interred, together as a crew, at the Somers Monument in that city. The Intrepid Project calls on the House Armed Service Committee and the Senate Armed Services Committee to take the following actions: 1. Refuse to accept the Department of Defense report as fulfilling the mandate of Section 598 of the National Defense Authorization Act of 2012; 2. Open direct talks with the Libyan government to discuss the feasibility of repatriation; 3. Conduct those talks in the open, with full transparency and include members of the House and Senate who are part of the effort to win repatriation who may not be members of the committees; 4. Request the Libyan government conduct an archaeological study of the six American coffins in the Old Protestant Cemetery to determine whether those coffins contain remains or artifacts; 5. Conduct historical and scientific testing on any remains or artifacts to determine whether any materials have direct ties to the crew of the Intrepid; 6. Upon positive identification, if it occurs, order the Department of Defense to repatriate the remains, present them to the families of Richard Somers and Henry Wadsworth for burial in Somers Point, N.J.; 21 7. Fully investigate the instances of intellectual theft and copyright infringement contained in the DoD report; 8. Order the DoD to make immediate restitution to any parties its intellectual theft and copyright infringement damaged; 9. Reprimand the DoD for its actions. The United States military has earned a reputation for never leaving one of its own behind. While officials have commemorated the heroism of the crew of the Intrepid – in 1949 and again in 2011 – no one can say leaving the remains of these men in Tripoli in any way honors their sacrifice. With the backing of more than 5.5 millions (and voters) in the American Legion, Veterans of Foreign Wars and AMVETS, the Intrepid Project calls on the two bodies that represent the American people – the House of Representatives and Senate – to hear the call of the people and bring these 13 men home. Report written and compiled by: Chipp Reid Historian, Intrepid Project The Intrepid Project October 26, 2012 _________________________________ Sally Hastings Director, Intrepid Project President, Somers Point Historical Society ________________________ Jack Glasser Mayor of Somers Point, NJ _________________________________ Chipp Reid Historian, Intrepid Project 22