Who is culpable?

Via NavyTimes.com

How homicide charges for two skippers will shake up the entire Navy

The Navy’s decision to level criminal charges against the commanding officers of the destroyers Fitzgerald and John S. McCain is forcing the surface warfare world into a grim reckoning on how it operates, and the consequences of sailors dying on a leader’s watch.

The Navy announced on Jan. 16 that negligent homicide charges will be sought against Fitz CO Cmdr. Bryce Benson, and McCain CO Cmdr. Alfredo Sanchez, for their roles in the deaths of 17 sailors in the Pacific last summer.

The unprecedented move sets in motion a military justice proceeding that will begin with a preliminary hearing known as an Article 32, which will evaluate the evidence and determine whether to send the officers to court-martial.

But even the prospect of the homicide charges will have an impact on the broader Navy community. Some in the surface world wonder if the Navy’s decision will freeze skippers into indecisiveness, for fear that something going wrong will send them toward the same fate.

Others think that same fear may spur officers to push back against superiors when a ship or crew is not ready to get underway, altering traditional relationships between commanders and senior leaders.

Still, others contend that such big risks and potential liability have always been part of the job of being a commanding officer, and that the prospect of negligent homicide charges doesn’t change that.

Rick Hoffman, a retired warship captain who led the frigate DeWert and the cruiser Hue City in his career, said he favors going down this road to better investigate and dissect what happened. The criminal case needs to play out to find where ultimate culpability lies for the deaths of those sailors, he said.

“They died in their racks,” said Hoffman. “That is what haunts me and makes me so angry.”

“They were so unaware of the hazard the ship was in that they at no time gave the crew a chance to live,” Hoffman said. “They didn’t sound five short blasts, a collision alarm, go to general quarters or even just make an announcement on the 1MC that would permit the crew to get out of their racks and try to save themselves.”

Navy leadership has come under the scrutiny of congressional overseers since the collisions, with lawmakers questioning the Navy’s readiness, pressing top officials about how things got so bad and demanding accountability.

Some lawmakers support the Navy’s decision to pursue charges against Benson, Sanchez and others, saying it properly reflects the severity of the disasters.

“These instances are not acceptable,” said Virginia Republican Rob Wittman, chair of the House Armed Services Committee’s subcommittee on seapower and projection forces.

“It sends a very strong signal to everyone.”

 

SAYING NO

Since the Fitz and McCain collisions last summer, Navy leaders, including Chief of Naval Operations Adm. John Richardson, have hammered the point that skippers need to be able to feel comfortable telling their bosses that a ship and its crew are not ready for a mission.

The potential charges against Benson and Sanchez could help embolden other COs to push back against this can-do culture, according to Kirk Lippold, a retired commander who was in charge of the destroyer Cole when it was attacked by terrorists in a Yemen port in 2000, killing 17 sailors.

“One of the positives that could come out of this is starting to see commanding officers telling their bosses that they don’t feel they’re adequately manned to a level where they can safely take their ships to sea,” Lippold said. “This will test the integrity of the COs who now need to stand up to the Navy’s leadership and tell them they’re tired of years of being undermanned and under funded by Big Navy, who is turning around now and blaming the fleet for the problems of the Navy.”

In congressional testimony on Jan. 18, Navy Secretary Richard Spencer said he prefers to say “not yet” versus saying “no.”

Such an attitude may extend down to the senior enlisted ranks, Lippold said.

“You’re going to see a lot of push back, especially from chief petty officers who have had to live under these conditions that officers have imposed on them,” Lippold said. “You will see them telling their commanding officers that they can’t properly do the jobs they’ve been given because they haven’t been given the people and training and spare parts they need.”

If Benson or Sanchez are taken to court-martial, Lippold suggested their defense could turn the spotlight back on the Navy leadership that allowed conditions to deteriorate. That would raise questions about the decisions — and culpability — of senior admirals.

“If this is the road the Navy wants to go down, I think those officers should say, ‘Fine, bring it on. And be prepared for the witnesses I’m going to call, including the [chief of naval operations] to explain why they allowed the Navy to be inadequately manned, trained and equipped,’ as he is required by law to do,” Lippold said.

Capt. Michael Junge, a Naval War College professor and former surface fleet commander, said emboldening commanding officers to push back against superiors if a ship is not ready can have other effects

“That can be twisted into, ‘He’s afraid to get underway,’” Junge said. “The historical thing is, we’re going to get underway and figure it out.”

Either way, Junge said the potential charges pose a slippery slope for the surface Navy.

COs “are going to recalibrate what risks they’re willing to take,” he said. “Some are going to become very risk averse. Some are going to go in the other direction.”

 

PART OF THE JOB

Jan van Tol, a retired warship captain who commanded the destroyer O’Brien and the amphibious assault ship Essex as part of 7th Fleet, said a good CO shouldn’t have to shock his boss by saying no to getting underway due to material shortfalls.

“A smart CO will have been keeping his [superiors] apprised of his [growing] concerns,” van Tol said. “Thus ‘saying no’ should normally be a reflection of keeping the chain of command informed of a deteriorating situation and then making a decision to ‘say no’ with all concerned parties being aware of the rationale.”

Such potential culpability is a part of the job, Hoffman said.

“During both of my commands, I was fully aware that in the event of a disaster, even if I was in my rack, that this was a possible outcome,” Hoffman said.

“It in no way frightened me or made me hesitant in command. Rather, it made me more diligent in the qualifications of my watch standers and kept me on the sidelines, as a safety observer, using command by negation, and my (officers of the deck) did what they were trained to do.”

Van Tol was skeptical that the criminal charges will change the dynamic of command at sea.

“When you take command, you know (or should know) that you accept complete responsibility and accountability for anything that happens while you’re in command,” he said.

“One accepts that there are certain professional risks that go with command, including inescapable responsibility if something goes wrong on your watch. That’s an inherent part of the business. Sometimes things will go bad.”

 

FREEZE UP OR TIGHTEN UP

A fear of action and a need to be even more squared away were concerns echoed by some enlisted leaders.

Such charges could make sailors even more risk averse, said a master chief who requested anonymity.

“Many will see this as yet another reason not to take a risk, and that’s bad for a warfighting outfit,” the master chief said. “I personally don’t mind a challenge, but what this means to me is that I need to take a look at my stuff and how I’m doing business and make sure it’s tight and I won’t be afraid to tell the higher up if I don’t have what I need to do my job.

“I’d rather go down for telling the truth and digging in my heels than for contributing to someone’s death,” he said.

One petty officer third class said negligent homicide charges may spook junior sailors, making them fearful of messing up.

“If we see that the captain is getting charged with negligent homicide, what will they do to us?” the petty officer said.

In addition to the two skippers, the Navy is also leveling criminal charges against three junior officers from the Fitzgerald and a chief petty officer from the McCain.

One second-class petty officer said he hopes to see more accountability sought among the chiefs mess.

“A captain is the easy fall guy. What you’ve really got to do is take a deep dive and look at who was specifically training those individuals, specifically the senior enlisted,” said the second-class.

“I always hear chiefs say, ‘Chiefs run the Navy, chiefs are integral to the Navy.’ Well, if that is true, then chiefs were integral to the deaths of 17 sailors,” the petty officer said. “If chiefs are so important, then they have to say that this was on us, and it’s on us to change. You can’t have your cake and eat it too.”

 

UNCHARTED LEGAL WATERS

While the grave charges send a message to the rest of the surface fleet, Eugene R. Fidell, a civilian attorney specializing in military law, cautioned against thinking the charges are only meant to send a message.

“Navy management knows a lot more about what happened than you and I do,” he said. “It’s an expensive message, and it would be reckless and very unfair to subject anybody to the rigors and expense and embarrassment of an Article 32 hearing and possibly a trial simply to send a message.”

The circumstances of the Fitz and McCain collisions differ in significant ways, including where their COs were at the time, according to information the Navy has made public.

The full investigations into the incidents have yet to be released.

Benson was asleep in his quarters in the early morning of June 17 when the Fitz collided with a merchant vessel off Japan.

Sanchez was on the McCain’s bridge as the destroyer maneuvered into the busy sea lanes of the Strait of Malacca and collided with a tanker.

Junge criticized the Navy for announcing the potential Fitz and McCain charges together.

“You have to separate every individual out, and the worst thing the Navy has done is link these two cases,” he said. “The only things these have similar are two collisions in the Pacific. After that, everything is different.”

Such potential charges against the skippers are largely uncharted waters, as the military rarely charges troops with negligent homicide, Fidell said.

All such an incident would have to call for is simple negligence, he said.

“It’s like having a fender bender, except that somebody dies,” said Fidell, who recently represented Bowe Bergdahl, the soldier who left his Afghanistan outpost, was held hostage for years by the Taliban and dishonorably discharged last year.

Despite the rarity of the charges, Fidell said he was not surprised, given the deaths and high-profile nature of the disasters.

“Seventeen people have died and two ships have been put out of commission,” he said. “If they didn’t do something serious, people would say you’re sweeping it under the carpet.”

But proving that command negligence was directly responsible for the Fitz and McCain sailors’ deaths could be challenging, he noted.

“You need that connection,” Fidell said. “You could say, well, they ran a sloppy bridge watch, or they permitted people on the bridge who weren’t properly trained. The questions is, can you connect the shin bone to the thigh bone, so that that connects to the fact that particular people died? And that might be a challenge.”

Recent naval disasters where a CO was found to be at fault have not led to charges of negligent homicide.

The commanding officer of the frigate Stark, Capt. Glenn Brindel, saw his ship hit by two Iraqi missiles in 1987, resulting in the deaths of 37 sailors. A Navy board of inquiry recommended a court-martial, but he instead went to admiral’s mast and received a reprimand, forcing him to retire as an O-5.

Cmdr. Scott Waddle was in charge of the submarine Greenville in 2001, when it surfaced under a Japanese fishing vessel off Hawaii, killing nine people in the vessel. A court of inquiry recommended against court-martialing Waddle, who later went to admiral’s mast for dereliction of duty and improper hazarding of a vessel.

The newest cases will likely hinge on technical details of ship operations and will challenge the Navy’s Judge Advocate Corps in assembling the prosecution and defense teams for the case, according to Fidell.

“People are going to have to learn the ship’s plans, literally construction, communications systems, standard operating procedures, standing orders, so there’s going to be some real effort made,” he said.

“You’re going to need people who are really conversant with the operation of a naval vessel,” Fidell said. “That was probably easier in an earlier age, when many JAG Corps officers had been line officers.”

Junge criticized the Navy’s opacity regarding the Fitz and McCain investigations regarding who received non-judicial punishment, and why. He also said he wished the service would release the full investigations into the collisions, instead of the piecemeal information that has come to public light thus far.

“I really wish the Navy had released the real report,” Junge said. “Right now it looks like there must be something else that’s not been released to make these charges stick.”

Fidell also questioned what else the Navy knows about the collisions.

“I don’t think you can write this off as either a gesture or something casually done without a foundation,” he said. “They certainly wouldn’t want to send a case that they were reasonably confident was going to blow up on them.”

 

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