An opinion piece blaming the warship Fitzgerald’s 2017 collision on the crew and commanding officer that was shared on Big Navy’s social media accounts last month also went out in Chief of Naval Operations Adm. John Richardson’s official newsletter.
The commentary by retired Navy officer Bryan McGrath was published on the War on the Rocks website on Feb. 8 and redistributed on official military channels. That became a hot issue in court, where two Fitz officers are on trial for their alleged roles in contributing to the accident that killed seven sailors.
Attorneys for Cmdr. Bryce Benson, the skipper of the guided-missile destroyer when it collided with the commercial cargo vessel ACX Crystal off the coast of Japan, and Lt. Natalie Combs — the highest-ranking officer in warship’s Combat Information Center — took aim at how the Navy brass used the sea service’s official Facebook and Twitter accounts to paint unflattering portraits of their clients.
They contend that those official Navy messages are part of a larger problem of unlawful command influence, with the senior leaders of the sea service tainting the court-martial cases against Benson and Combs, who should be presumed innocent under the law.
The news roundup from the Navy’s top officer — known as “CNOtes” — also shared the opinion piece on Feb. 8, according to a copy obtained by Navy Times.
McGrath’s “The Fitzgerald Collision: In Search of the Onus” is the only item on that day’s CNOtes that fails to directly link to Richardson’s recent speeches, positions or activities.
“Leaders, CNOtes is a product designed to provide a roll-up of key CNO communication events and messages to increase awareness and promote alignment on relevant Navy topics,” a blurb at the top of Richardson’s roundup reads.
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But the person responsible for drafting CNOtes, Richardson’s spokeswoman Lt. Cmdr. Jacqueline Pau, said her boss played no part in putting McGrath’s piece into the newsletter.
“CNO does not review the product before it’s released,” she said in an email to Navy Times.
The collection often includes "a few news articles meant to stimulate conversation” that’s sent “to anyone who signs up for information about the CNO through Navy.mil,” she said.
About 20,000 accounts are subscribed to the newsletter, Pau said. They include retired officers, active-duty members and the media, among others.
“Anyone can sign up,” she said. “We also push to most PAOs to help answer the question, ‘What is CNO saying?’”
The McGrath piece was also included in the “notable commentary” section of a Pentagon news roundup on Feb. 9.
Three military attorneys told Navy Times that including the opinion piece in a CNO-branded product could give more ammunition to lawyers arguing that superiors committed unlawful command influence against the defendants.
Dubbed the “mortal enemy of military justice” by higher courts, unlawful command influence, or UCI, occurs when superiors utter words or take actions that wrongfully influence the outcome of court-martial cases, jeopardize the appeals process or undermine the public’s confidence in the armed forces by appearing to tip the scales of justice.
Improper comments by military leaders might make it difficult for the accused to get a fair trial because potential panel members could be influenced if they know how their superiors feel about a case.
The Navy’s Twitter and Facebook posts of the opinion piece were cited last month in a motion by Combs’ attorneys to get her case dismissed due to what they contend are repeated UCI efforts by service leaders.
Navy Times reported last week that the Navy’s head spokesman, Capt. Gregory Hicks, had directed the piece to be shared on Big Navy’s accounts.
“I see this as further fodder for an unlawful command influence motion,” Patrick McLain, a retired Marine Corps judge now in private practice, said of the McGrath piece’s inclusion in CNOtes.
“It boggles the mind that the CNO’s staff could be so tone deaf, when they must know that UCI is an issue in this case.”
After reviewing a copy of the Feb. 8 CNOtes, McLain pointed out that the opinion piece was the only one of 14 items “that does not involve the CNO speaking or doing something, and the only item about legal/military justice matters.”
“Why would this be in CNOtes, other than to give the CNO’s view on culpability in the USS Fitzgerald collision case?” he said.
The other items in that edition of CNOtes “are clearly advocacy for the CNO’s position,” McLain said.
“Thus, it would seem natural to conclude that the inclusion of Bryan McGrath’s article is tacitly a statement of CNO’s position,” he said. “That is certainly consistent with the theme of CNOtes, which either boasts of the CNO’s actions or gives the CNO’s position on matters.”
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Including the piece in a CNO product means it’s not just the author’s opinion anymore, added retired Navy Capt. Lawrence Brennan, an attorney who now teaches at Fordham University’s School of Law.
“It’s the imprimatur of the Office of the Chief of Naval Operations,” Brennan said. “It’s in the CNO’s paper. Who’s the target for that? Some of them might be members of the court.”
As allegations of UCI mount, the controversy threatens to derail Navy efforts to punish potential wrongdoing, he warned.
“Why are we talking about the legal aspects as opposed to the substantive ship handling aspects?” Brennan said. “The record is so heavy with comments with the CNO blaming the captain and others on board … maybe rightfully so, but not within the context of military justice.”
The judge in Benson’s case ruled in December that a stream of public statements by Navy leaders presented the appearance of UCI.
“The repeated statements from (Richardson) and (Vice Chief of Naval Operations Adm. Bill Moran) about the accused’s specific case would cause an objective, disinterested observer, fully informed of all of the facts and circumstances, to harbor a significant doubt about the fairness of the proceeding,” judge Capt. Jonathan Stephens wrote in his December ruling.
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And to Brennan, that makes the latest CNOtes headache that much more inexplicable.
“With all the problems that are here, you would expect that the CNO and the CNO’s drafter of CNOtes would use their judgment and say, hey, maybe this isn’t the right thing to say at this time,” Brennan said.
Zachary Spilman, a former Marine Corps attorney now in private practice, said that Benson and Combs’ defense teams could add this edition of CNOtes to their UCI arsenal.
“It seems to be that if the Navy wants to hold certain people criminally responsible for the Fitzgerald collision, then it needs to allow the criminal justice process to work to a conclusion and not treat the situation as a public relations issue,” he said.
Geoff is the managing editor of Military Times, but he still loves writing stories. He covered Iraq and Afghanistan extensively and was a reporter at the Chicago Tribune. He welcomes any and all kinds of tips at geoffz@militarytimes.com.
