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Analysis

Commanding Integrity

The Chilling Effect on Whistleblowers Shouldn’t Go Viral
Capt. Brett Crozier addresses the crew for the first time as commanding officer of the aircraft carrier USS Theodore Roosevelt during a change of command ceremony on the ship’s flight deck on November 1, 2019. Crozier was the 16th commanding officer of Theodore Roosevelt. (Photo: U.S. Navy / Mass Communication Specialist 3rd Class Sean Lynch)

The removal of Navy Captain Brett Crozier, who wrote a letter to senior officials raising concerns about the safety of his sailors on the USS Theodore Roosevelt amid the coronavirus outbreak, appears to only be the latest example of how precarious it can be for members of the military to speak truth to power.

There is a lot more Congress could be doing to strengthen military and national security whistleblower protections.

Captain Crozier was the commanding officer of the Roosevelt, a nuclear aircraft carrier. The ship has a crew of nearly 5,000, and as of this writing 173 sailors on the ship have tested positive for COVID-19, the disease caused by the novel coronavirus. Crozier, concerned that the Navy was not taking sufficient action to protect his sailors, wrote to senior leaders on March 30 pleading for more assistance. “We are not at war, and therefore cannot allow a single Sailor to perish as a result of this pandemic unnecessarily,” he wrote. A copy of the letter made its way to the San Francisco Chronicle. The story both apparently embarrassed the Navy and raised questions about whether recent decisions not to release more information about military cases were covering up the Pentagon’s mishandling of the crisis more so than protecting operational security.

Initially, acting Navy Secretary Thomas Modly said there wouldn’t be any disciplinary action taken against Crozier since he had sent his letter through his chain of command. But that now looks like a cruel April Fools’ Day joke. Crozier was removed from his post the next day, and subsequent audio obtained by the Daily Caller showed Modly told Crozier’s sailors he had been “stupid” and “naive” for expecting any other outcome. Modly has since apologized, though not before publishing a rebuke of Crozier in the New York Times. But even if Navy leadership didn’t appreciate Crozier’s actions, the Roosevelt’s crew gave the captain a hero’s farewell.

This isn't the first time we’ve seen this kind of retaliation. F-22 pilots who blew the whistle on oxygen issues creating safety problems had their careers destroyed after they came forward. In that case, one of the pilots said he was so disoriented by lack of oxygen that he wasn’t able to activate his backup oxygen system. A Marine Corps commander raised concerns about the readiness of their CH-53E helicopter fleet and was fired because his superiors “lost confidence in his ability to lead his Marines.” His replacement was more eager to get aircraft in the air. Three days later 12 people died in one of the deadliest Marine Corps accidents in recent history. Reporting by ProPublica found a pattern of Navy leadership ignoring the safety concerns of commanders, and then later blaming them for not doing enough to prevent disasters.

While Navy leadership has said they don’t want to discourage others from coming forward to raise concerns, the decision to remove Crozier obviously sends a powerful message that those who do will be crushed.

The Navy’s actions have also been widely criticized by current and former officials. “I think the firing was a really bad decision, because it undermines the authority of the military commanders who are trying to take care of their troops, and significantly negatively impacts the willingness of commanders to speak truth to power,” retired Admiral Mike Mullen, the former chairman of the Joint Chiefs of Staff, told the Washington Post.

Support for Crozier has come from lawmakers on both sides of the aisle. House Speaker Nancy Pelosi and Representative Adam Smith (D-WA), the chair of the House Armed Services committee, called for Modly to resign. Republican Representatives Jim Banks (R-IN) and Austin Scott (R-GA) each tweeted their support, along with a number of other Democratic House and Senate members, according to data from Tweet Congress. After the release of Modly’s audio, several members called for the acting secretary’s resignation, and President Donald Trump also recently said he did not think Crozier should lose his job over the letter. According to Politico, Modly has offered to resign.

I think the firing was a really bad decision, because it undermines the authority of the military commanders who are trying to take care of their troops, and significantly negatively impacts the willingness of commanders to speak truth to power.

Retired Admiral Mike Mullen, former chairman of the Joint Chiefs of Staff, to the Washington Post

Members of Congress concerned about Crozier’s removal have called for an inspector general investigation. While Modly’s resignation has the appearance of accountability, it’s rarely how the system works when a senior official retaliates on a subordinate. The Defense Department’s inspector general rarely substantiates reprisal allegations, and due to the high burden of proof placed on military whistleblowers it is even more difficult to prove illegal retaliation. (For information on what protections military whistleblowers do have, our guide for federal whistleblowers, Caught Between Conscience and Career, explains those laws.) John Donnelly at Roll Call has also reported that even when those cases are substantiated, there’s no real accountability, creating a “culture of revenge.” To make matters worse, then-Principal Deputy Inspector General Glenn Fine testified to Congress earlier this year that his office was seeing a rise in instances where the Defense Department declines to take the inspector general’s recommended action regarding a whistleblower, with little to no explanation as to why.

But there is a lot more Congress could be doing to strengthen military and national security whistleblower protections, such as:

  • creating real due process for those whistleblowers including jury trials, which offer an independent means to enforce the law;
  • giving the military the same burdens of proof federal civilians have so that the burden is on the retaliator to prove they did the right thing, rather than requiring the whistleblower to show the retaliation was illegal;
  • creating a public interest balancing test for evaluating the value of disclosures versus questions about the process by which someone disclosed information (this test should recognize exceptions allowing members of the military to go outside of the chain of command to disclose threats to public health and safety); and
  • broadening the scope of protected channels that military whistleblowers can use to make disclosures so that service members who make good faith disclosures aren’t left in the lurch on a technicality.

The coronavirus crisis is helping to clarify a number of priorities. As Task and Purpose has pointed out, the definition of readiness has to change in the face of a global pandemic, and that includes reducing unnecessary training that puts members of the military unduly and needlessly at risk. Anecdotally, we are hearing that service members across the military think their commanders aren’t doing enough to protect them.

People who volunteer to serve deserve institutions that will protect their safety and only put them in harm’s way when necessary. Crozier has reportedly tested positive for the virus.