Captain Crozier’s Whistleblowing: Unanswered Questions and the Need for Reform
By Tom Devine
The Military Whistleblower Protection Act is flunking the COVID 19 pandemic. Recently, some commentators have asserted that the Navy’s removal of Captain Crozier’s command violated that law. As one who actively participated in drafting all four generations of that law, I know that hasty interpretation is jumping the gun. Even in this emergency, without first learning more key facts, the law’s protection is suspect. To date, the analysis is that his removal was illegal because he disclosed “gross mismanagement” and a “substantial and specific danger to public health or safety.”
No doubt he did, but that’s not the tough question that must be answered. Beyond the legally preposterous claim that a whistleblower is responsible for stopping a lawful audience from leaking, the issue is whether he disclosed misconduct to lawfully protected audiences. That means those in the “chain of command,” or with authority under Navy procedures to receive and act on information. Did all the superior officers he warned fit within those boundaries? The conventional wisdom is that he technically acted outside the chain of command. Otherwise, he must have followed procedure in how he warned his superior officers. Would a mere email comply?
These are completely sophistic technicalities. Can this commander, warning of a public health emergency on his watch, be removed because all the superiors he warned weren’t in his chain of command? Or because he sent them an email instead of filling out a form to a designated superior officer’s assistant? These technicalities are a threat to public health and safety.
There is no question that Captain Crozier’s removal was an attack on the First Amendment. But it remains unclear whether or not he made disclosures to audiences legally protected under the Military WPA. There is no public freedom of expression in the Military WPA, or even the right to disclose misconduct generally within the military services. The lesson learned is that this law is indefensibly weak. It desperately needs modernizing with reforms that we and other whistleblower support groups have been pushing for years.
The start is to eliminate all technicalities that block military leaders of their right to know. There is no excuse to remove a whistleblower for warning his superiors in the Pacific Fleet of a public health emergency on their watch, especially when it requires immediate action. Warning military leaders of an emergency is not misconduct. It is a duty, because superiors have a right to know of threats to their mission on their watch. It should be standard operating procedure, whistleblowing or no whistleblowing. Congress should act immediately to close this loophole.
More fundamentally, it is past time to end the second-class status for military whistleblowers. 20 out of 36 countries with national whistleblower laws give military service members the same whistleblower rights as all other government employees. This case illustrates why, at a minimum, the law should be clear that military service members can make unclassified disclosures to warn anyone about substantial and specific threats to public health or safety. Those are matters of life and death, not military secrets.