After relieving a virus-stricken ship's captain of command, then-acting Navy Secretary Thomas Modly told the crew their former skipper wasn't just out of line for emailing more than 20 people about the situation onboard -- he might have also broken military law.
A lot has happened since then. Modly resigned in the fallout from his address and is now in quarantine following his trip to the carrier. Capt. Brett Crozier, the former commanding officer of the carrier Theodore Roosevelt, has himself tested positive for COVID-19, the illness caused by the coronavirus, along with more than 650 other members of the crew. Top Pentagon officials have allowed for the possibility that Crozier, in an extremely rare move, might be restored to command. But could Crozier still be charged under the Uniform Code of Military Justice?
Law experts who spoke with Military.com said it's unlikely -- and would be troubling if it happened.
Modly's suggestion that Crozier broke military law came just after the former acting SecNav suggested the captain leaked to the media a detailed letter asking for resources to deal with the virus outbreak.
"If he didn't think, in my opinion, that this information wasn't going to get out into the public, in this day and information age that we live in, then we was either A, too naïve or too stupid to be a commanding officer of a ship like this," Modly said of a letter Crozier had emailed to people outside his chain of command. "The alternative is that he did this on purpose -- and that's a serious violation of the UCMJ, which you are all familiar with."
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But there likely aren't grounds for charges against the former CO, Corey Bean, who spent a decade in the Navy Judge Advocate General's Corps, said. If they were filed, he said, they would represent "serious overreach."
Modly in his speech said Crozier sent sensitive information about the material condition of a Navy warship to "a broad audience of people," putting the carrier and its crew at risk. The investigation, which has been completed and is awaiting review from the Navy's top officer, was still ongoing at the time.
Officials with Modly's office did not respond to a request for comment about the former secretary's statements. Defense Secretary Mark Esper said last week that he has instructed Navy leaders not to take any further action against Crozier until the investigation into his actions is complete.
"We'll see where that takes us," Esper said, adding that nothing is off the table, including reinstating Crozier as the carrier's commanding officer. Chief of Naval Operations Michael Gilday told reporters the same thing last week.
The Navy has not made public the results of its investigation into the captain.
Based on Modly's comments, though, Bean said no clear UCMJ violations come to mind. There could be an effort to characterize Crozier's actions as hazarding a vessel, dereliction of duty, or conduct unbecoming an officer, Bean said, but he likened all potential charges to "trying to cram a square peg into a round hole."
"Let's take something like hazarding a vessel, for instance, if they think that broadcasting this email that the ship may be compromised put the vessel at danger," Bean said. "Hazarding a vessel usually requires more of a concrete clear-and-present danger that the vessel would be in. Not some attenuated theoretical stack of inferences that could possibly result in a danger if all the conditions are realized."
Similarly, he added, dereliction of duty requires an "affirmative act or mission against a particular duty the captain had."
"Here, even if the Navy's opinion is that the commanding officer used questionable judgment, I don't see on these facts that his conduct was criminally willful or criminally negligent."
Gary Solis, a law professor who served as a Marine judge advocate, agreed that charges in this case seem unlikely. Like Bean, Solis said it's possible officials may consider conduct unbecoming an officer since that article is so vaguely written.
"But if I was a staff judge advocate, I would recommend against it," Solis said. "And if I was pressed, I would decline."
If Crozier used an unsecured government computer to transmit official-related business, he said it's possible the captain violated the UCMJ's Article 92: Failure to Obey an Order or Regulation.
What concerns Solis more though, he said, is the chilling effect Crozier's firing could have on commanding officers needing to report problems.
The day before Modly relieved Crozier of command, the former Navy secretary told reporters the captain was unlikely to face punishment unless it turned out he himself leaked his letter to the San Francisco Chronicle. Less than 24 hours later, Modly fired Crozier.
It remains unclear who had sent the letter to the paper.
Modly was within his authority to relieve Crozier of command, Solis said, but it still sends an unsettling message to officers leading troops.
"It's clearly, clearly intended to ensure that there be no further complaints from commanders in regard to the handling of COVID-19," Solis said.
Rachel VanLandingham, a law professor and former Air Force judge advocate, agrees, adding that it was inappropriate for Modly to tell Crozier's crew that he might have broken the law.
"He didn't explain it at all," she said. "What are the effects of that going forward?"
Like Bean and Solis, VanLandingham also said it's unlikely the Navy will bring any charges against Crozier.
"He was just trying to do his duty," she said.
-- Hope Hodge Seck contributed to this report.
-- Gina Harkins can be reached at gina.harkins@military.com. Follow her on Twitter @ginaaharkins.
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