WASHINGTON – The Navy’s investigation into the events surrounding the leak of a letter from the commanding officer of the Theodore Roosevelt is hopelessly undermined by the statements and actions of the Acting Secretary of the Navy, legal experts said.
Acting SECNAV Thomas Modly was well within his rights to fire the commanding officer of the Theodore Roosevelt after a letter revealing the extent of the COVID-19 outbreak was leaked to the media. But Modly’s statements and actions in the firing make any Navy-conducted investigation legally dubious because as the service’s top official, everyone underneath him would be a subordinate, experts told Defense News.
In his statement on April 2 announcing the relief of Capt. Brett Crozier, Chief of Naval Operations Adm. Michael Gilday said he was tasking Vice Chief of Naval Operations Adm. Robert Burke to investigate the circumstances surrounding the letter. A separate leak investigation is also ongoing, but is slated to conclude quickly, USNI News reported Sunday.
David Sheldon, a former Navy lawyer who is now a defense attorney specializing in Uniform Code of Military Justice cases, said given Modly’s involvement, it isn’t clear how the Navy could take further action against Crozier.
“While the CO’s actions in disseminating the letter to so many individuals is clearly puzzling given the gravity of the matter, SECNAV’s actions have totally undermined any subsequent action the Navy ostensibly would take against the CO,” Sheldon said.
Modly came under fire for his comments Monday made on board Roosevelt, which is docked in Guam as it tries to contain the outbreak. Over the ship’s public address system, Modly said he said that if Crozier thought his letter, which was distributed to between 20 and 30 recipients, wouldn’t leak, he was either “too stupid or too naïve to be the commanding officer of a ship like this,” adding that “the alternative is he did it on purpose.”
After initially standing by the comments, Modly backtracked late Monday night and apologized.
Rob Bracknell, a former Marine attorney, opined that Modly had every right to fire Crozier and that Crozier’s actions likely warranted the relief. However, given Modly’s subsequent actions and statements, the investigations should come out of the Navy, Bracknell said, and Modly’s conduct should also be investigated.
"The investigation has to be conducted either up or over, meaning its got to be conducted by the [Defense Department’s Inspector General]. ... You have DoD IG conducting investigations on two-stars [admirals] all the time, and this clearly trumps that in importance. So if I were Secretary of Defense, I’d have the DoD IG look into this and it should include the SECNAV’s conduct.”
Bracknell said Modly articulating his reasons for firing Crozier repeatedly was constructive because it helps other commanding officers know exactly what Crozier did to warrant the firing, but that the comments on the Roosevelt were over the line.
“Again, I think the relief was absolutely appropriate, and I commend [Modly] for being transparent. But some of the other stuff he said after the fact, it was intemperate.”
But Tim Parlatore, a former Surface Warfare Officer turned defense attorney who rose to prominence defending former Navy SEAL Special Warfare Operator Chief Eddie Gallagher, disagreed that it was appropriate for Modly to make comments about the firing prior to any investigation. Doing so, Parlatore said, broke Navy protocol for command reliefs at a time when the Navy needed to immediately turn the investigations over to an outside agency.
“Acting-Secretary Modly’s actions have made it impossible for anyone within the Department of the Navy to conduct a fair and credible investigation of this matter,” Parlatore said. “Ordinarily, a Commander would be relieved and no further public statements would be given pending the outcome of the investigation. Here, Mr. Modly seems to have completely abandoned his duties as SECNAV for the past several days to go on a string of interviews, write rebuttal letters to the New York Times, and fly halfway around the world just to insult Captain Crozier in front of his former crew.
“All of these public statements, before any investigation has been concluded, reinforce the fact that SECNAV has a predetermined conclusion. It is the textbook definition of unlawful command influence, and any investigation conducted by the Department of the Navy that supports those predetermined conclusions will be suspect. He has put VCNO Burke in an impossible position."
The investigation would be best handled by another branch of the service, keeping the Navy firmly out of it, Parlatore said.
"While conducting an investigation is absolutely essential, to preserve the integrity of that investigation [Chief of Naval Operations Adm. Michael Gilday] has no options other than to terminate VCNO Burke’s investigation and refer the matter to an outside agency, perhaps the Air Force, to redo the investigation from scratch.
Correction: This story has been updated to clarify that the Chief of Naval Operations Adm. Michael Gilday ordered the investigations.
David B. Larter was the naval warfare reporter for Defense News.