Removal of Navy Captain May Have Violated Military Whistleblower Law
On April 2, 2020, the Acting Secretary of the Navy Thomas Modly removed the captain of the USS Theodore Roosevelt, Brett Crozier, after he disclosed well urgent concerns impacting the health and safety of the sailors on the Roosevelt. Just three days before Captain Crozier thoroughly documented how a COVID-19 outbreak on the Roosevelt could result in the death of sailors under his command. His memo raised concerns applicable to other ships where sailors were housed in close quarters, easily contaminated with the virus.
Under military whistleblower law, Captain Crozier’s memorandum was a protected disclosure. Based on the public record and admissions made by the Acting Secretary of the Navy, there is strong evidence that Captain Crozier’s removal constituted illegal retaliation.
The controversy was triggered on March 30, 2020, when Captain Crozier sent a blunt message to his superiors: There was an outbreak of COVID-19 sicknesses on his carrier, and the lives of his sailors were at risk. In his detailed memorandum, he warned that sailors might die as a result of the failure of the Navy to adhere to health and safety procedures designed to protect the public from the devastating effect the coronavirus pandemic. He explained that the aircraft carrier was “unable to comply with CDC protocols” and unable to fully “prevent unnecessary deaths.” He warned: “If we do not act now, we are failing to properly take care of our most trusted asset – our sailors.”
Captain Crozier’s warnings all came true. As of Friday morning, April 3, 2020, 137 members of the USS Theodore Roosevelt had tested positive for COVID-19.
Captain Crozier should be fully protected under the Military Whistleblower Law that applies to the Navy. This law has a broad definition of protected activity, mirroring the Whistleblower Protection Act covering most federal employees. Under the law, Captain Crozier is permitted to disclose information that he reasonably believes could constitute a “substantial and specific danger to public health or safety.” The whistleblower law also allows Captain Crozier to report “gross mismanagement” committed by the U.S. Navy.
Under the law, the failure to immediately address the contamination of the USS Theodore Roosevelt with the coronavirus that placed the 5000 sailors aboard the carrier at extreme risk for being infected with the COVID-19 would constitute a “substantial and specific danger to public safety.” In Chambers v. Department of Interior, the U.S. Appeals Court Federal Circuit held that health and safety-related whistleblower disclosures would be protected if there was a “likelihood of harm resulting from the danger.” The harm reported would also have to be “likely to occur in the immediate or near future.”
Captain Crozier’s memo met this standard. The basis for the danger was the inability or failure of the Navy to comply with the CDC and health standards onboard the USS Theodore Roosevelt. The harm was very likely to occur, and the threat to the sailors was immediate and life-threatening.
The memorandum was also protected under a second definition of a protected disclosure: the right to report “gross mismanagement.” The Merit Systems Protection Board, the primary federal agency empowered to implementing the Whistleblower Protection Act which this standard was predicated upon, explained what would make simple mismanagement “gross mismanagement.” Gross mismanagement would encompass issues that were not simply “a debatable difference of opinion.” The mismanagement would have to implicate the ability of an agency “to accomplish its mission.”
Captain Crozier’s concerns also met this standard. It is not reasonably “debatable” that permitting COVID-19 contamination to exist on an aircraft carrier, and after knowing of this potential contamination, failing to comply with CDC and health standards, would constitute mismanagement. Furthermore, in his memorandum, Captain Crozier carefully explained how this contamination and health crisis threatened to undermine the ability of his ship to “accomplish its mission.” Captain Crozier explained to his superiors that a “clean ship is required” to “regain and maximize” the “warfighting readiness” of the carrier.” A contaminated ship, with sick sailors, could hardly effectively defend the United States from its enemies.
Consequently, Captain Crozier’s disclosures met no less than two distinct criteria necessary to obtain whistleblower protection. Meeting just one of these criteria would have satisfied his obligation under the law.
The next issue concerns the manner in which Captain Crozier engaged in his whistleblowing. According to CNN's report, Acting Navy Secretary Thomas Modly stated that he removed Captain Crozier from his command, in part, because the captain used an "unsecured system" when emailing his memo, "adding to the chances it could be leaked."
CNN also directly quoted Secretary Modly as criticizing Captain Crozier because, "He sent” his memorandum “out pretty broadly, and in sending it out broadly, he did not take care to ensure that it couldn't be leaked, and that's part of his responsibility."
These admissions by Secretary Modly not only demonstrated a failure to understand the persons to whom disclosures could be made, but unto themselves constitutes evidence that the Navy illegally retaliated against Captain Crozier.
The whistleblower law protects disclosures to numerous groups of people. It does not require whistleblowers to use a “secure” platform when making disclosures, or that those disclosures be made in a manner that would minimize “leaks.” In fact, the law would have permitted Captain Crozier to send his memorandum to every single member of Congress, including those with a history of publicly criticizing the current administration. The law presupposes that whistleblower disclosures might be leaked to the press, and has no mandates preventing such leaks.
The only restriction on the contents of disclosures sent to Members of Congress is that the disclosures themselves to “lawful.” The Navy has not alleged that any of Captain Crozier's communications violated the law, or that the disclosure of any of the information contained in his memorandum would have been “unlawful.”
The military whistleblower law permitted Captain Crozier to distribute his memorandum to hundreds (if not over one thousand) people. The law would have allowed him to send his memo to all 535 members of the U.S. Senate and House of Representatives. In addition, under the explicit terms of the statute itself, he could also send his memorandum to:
- "Any person or organization in the chain of command;"
- Every “member of a Department of Defense audit, inspection, investigation, or law enforcement organization;" and
- Every "other person or organization designated pursuant to regulations or other established administrative procedures for such communications."
Far from justifying the removal of Captain Crozier, Acting Secretary Modly's public justification for taking his unprecedented action against a Navy officer, who attempted to protect the lives of persons under his command, actually constituted admissions of wrongdoing.
Everyday sailors and employees of the Department of the Navy send communication over unsecured platforms. Everyday sailors and employees of the Department of the Navy send an email or other communications to numerous persons. It was the content of the memo that upset Acting Secretary Modly. Perhaps Acting Secretary Modly was also upset by the number of people who learned about Captain Crozier’s concern. These factors are of no legal consequence, except to further demonstrate animus.
By attacking the manner in which Captain Crozier raised his concerns, the Acting Secretary revealed his dislike for the fact that Captain Crozier raised issues that implicated the Navy in gross misconduct and in misconduct that could result in the meaningless death of sailors.
Given the crisis triggered by the coronavirus pandemic, there is a compelling need for every American who witnesses threats to public health and safety to report these problems to the appropriate authorities as quickly as possible. Numerous laws protect COVID-19 safety whistleblowers. All of these laws must be vigorously enforced. Captain Crozier did the right thing. He lawfully disclosed threats to the sailors under his command. He warned the virus could spread on naval ships where sailors are housed in close quarters and consequently undermine national security. He urged that his ship be decontaminated. He placed his commitment to the wellbeing of those under his command above his own self-interest. His conduct exemplifies the best of America’s public servants. Whistleblower laws were designed to protect the Captain Croziers of the world.