This post was co-authored by Captain John P. Cordle, U.S. Navy (Retired) and originally appeared on the USNI Blog here.
Now that the legal dust has settled, maybe there is an opportunity to learn a separate set of lessons from collisions that occurred in the summer of 2017—on the legal front. Disclaimer: we are not lawyers, but we’ve met a few at cocktail parties. From the layman/surface warrior perspective, the process of assigning culpability for these events was . . . well, let’s call it a legal “near miss” of momentous proportions that presents a rich opportunity to learn lessons. In the spirit of the “Comprehensive Review” recommendation for becoming a learning organization able to transparently review mistakes without attribution, this article assigns no judgment on the character or professionalism of any individual, but attempts to capture an accounting of the facts and the consequences of actions and choices made. Since different generations of naval officers clearly view the collisions through unique generational lenses, Lieutenant Commander Jimmy Drennan caught up with retired Captain John Cordle to discuss the legal lessons the Navy can learn from events after the 2017 collisions.
Jimmy: So, specifically on the CO and TAO of the USS Fitzgerald, we went from negligent homicide charges to Letters of Censure, with all charges being dropped. Sir, I’m still trying to process everything that went down, but I gotta tell you, it sure seems like the Navy gooned this up.
John: Even well-intentioned people make mistakes. In my experience, the Navy tends to focus on the good things, only facing the bad ones when they happen. Looking back, I think Lesson Number One is the need for a cadre of professional investigators. I know this because I conducted the USS Porter (DDG-78) investigation, for which I was woefully unprepared. A post–major command captain at the time, my interaction with the legal process prior to this assignment was limited to a few cases of nonjudicial punishment as a commanding officer (CO), and yet I was put on a plane with 12 hours’ notice to conduct a full investigation of the largest major collision in a decade. I was handed a JAGMAN (Manual of the Judge Advocate General) on an unrelated topic as a template, given a one-hour training session with the force JAG, and off I went. I had great support from two JAG officers, who were indispensable both for their legal expertise and their former status as surface warfare officers and aviators. It appears that the current investigations suffered from some of the same challenges I had in reconstructing the event. According to Commander Bryce Benson’s rebuttal of his Letter of Censure, the comparison of the track provided as part of the prosecution differs greatly from one developed after the fact—this among other disconnects between the two documents shows that this is a challenging process. In my case, had we not found an audio tape, the events of that evening in 2012 probably would be much less clear. I attribute much of this to my own inexperience in this area—the investigating officers seem to have faced similar challenges. As the last person to conduct a similar investigation, I made myself available as a resource but was never contacted by anyone except the press. Had the Navy taken our team’s recommendation to install voice recorders on all ships, there would be audio of these two events to assist in the investigation and capture lessons. Learning occurs, but each team starts from scratch; we continue to repeat that process at our peril, unless we stand up a team of senior officers who are trained in the conduct of investigations and launch them for the next major event.
Jimmy: I saw a TV show about an investigative service in the Navy . . . if only that were real we could leverage their expertise. Okay, it also seems like Navy leadership poisoned the case by talking about who was responsible and what they thought should happen before the investigation was over.
John: Yeah, that would be Lesson Number Two. Don’t talk about it. In naval heritage, the captain is responsible for everything that happens on his or her ship. However, there is a different standard for legal liability, and any comments by anyone in the chain of command during the investigation about the presumed outcome are manna from heaven for the defense team. Again, our warfare professional leaders are not necessarily well-versed in this restriction, so perhaps adding lessons to the capstone course for flag officers would address this concern. It is human nature to answer questions, but as a mentor of mine once told me, it is good practice to “never resist the urge to say nothing.”
Jimmy: We seem pretty good at stiff arming the press when it suits us, so why not here? It almost seems like the Navy did it on purpose to promote a narrative of individual, vice systemic, accountability, even at the risk of unlawfully influencing the court martial. Do you think the Navy responded to political pressure to hold someone accountable?
John. This is a tough one, (especially coming from someone who never served in the Pentagon!) but Lesson Number Three is to try to avoid political pressure. I have seen several collisions and some loss of life in my 30 years of service, and a lot of us older folks felt that (as shown by the difficulty encountered in making the case) the charge of negligent homicide against the two ship leadership teams was a stretch; in fact I think (as Kevin Eyer stated in his article “Negligent Homicides: A Bridge Too Far”), it had to be apparent to the prosecution teams from the beginning that these charges would be impossible to prove. This may be standard practice, but it sure feels like the TV show “Law and Order” approach—to treat professional officers and chiefs who made mistakes like criminals and bully them into taking a lesser plea. In the end, to the layman here, it seems like the Navy drove the outcome by charging them with something that it knew was not reasonable and had no precedent—in a world where precedent is king. This was a safe bet for an environment in which individuals are raised on a relentless diet of taking personal responsibility—represented here as “doing the right thing.” It just does not feel “just.”
John: OK, my turn to ask the questions. What did you think about the way things played out from your active-duty vantage point?
Jimmy: I would probably say Lesson Number Four is don’t rush to judgment. In a desire to react quickly, several cases of nonjudicial punishment (NJP) were held by officers who later were subject to punishment themselves. The Navy badly miscalculated its Fitz response actions on many fronts when it announced 17 August 2017 that a round of firings and NJPs would occur on 18 Aug 2017, only to revisit all of them after the USS John S. McCain collision on 21 Aug 2017. What did that second collision have to do with the individual punishments from the Fitz? If they weren’t final, why were they announced? For those of us serving, the whole process was hard to follow. Granted, just because I’m a SWO doesn’t mean I deserve a play-by-play explanation, but if I’m expected to wait until final adjudication for a “debrief,” why was I being told right away by Navy leaders that the officers and crew were negligent? Then, in the end, there was no final adjudication, which was frustrating for me. I can’t even imagine how it felt for the families of the fallen.
Jimmy: What is your biggest concern for the future?
John: I think it is the lost opportunities for learning that we will never get back. Lesson Number Five. Be more transparent on the lessons learned.
Jimmy: Great point. Two years after these events, the public has learned more from ProPublica coverage than from the Navy about the human interactions and mechanical failures that caused these events to occur. Two years of mentor sessions have been held using incomplete data leading to negative learning and confusion in the fleet about what to do to prevent recurrence. It makes you wonder: are we really doing everything we can to prevent these tragedies from repeating?
John: You nailed it. I find it especially aggravating, having meticulously created a list of recommendations from the Porter collision that (still) have never seen the light of day, I am convinced that the filters applied by the “Comprehensive Review” (CR) and “Strategic Readiness Review” (SSR), however well intentioned, doomed some of the great ideas of the Fitz and JSM investigative teams to wither in oblivion. Even now, there is no consistent training session or consolidated lessons learned beyond the CR and SRR. For example, the Navy is putting commercial radars on the most sophisticated ships in the fleet to help them avoid collisions (this is an interesting commentary on the acquisition process, but beyond the scope of this conversation) but even more interesting is that, as I recall, the last ship to collide with a tanker—the Porter—had a similar radar and yet it didn’t prevent that event. So why would it do so now? After the Porter, the Navy implemented PQS and training on surface radars that was not there before. I have also not seen any accountability actions on the technical side, despite the fact that the CR and SR indicated significant shortfalls in technical design, operating procedures, training and maintenance supplied to the ships. Several bridge systems are not programs of record even today. Operators are easy targets for litigation, but it is tough to put a finger on a single individual in the technical side to “hold accountable.” This ongoing loss of learning opportunities is the most regrettable outcome of these legal proceedings, undermines a central tenet of the CR and SR, and was the motivation for this article.
Jimmy: A friend reminded me of the parallels to the two Boeing Max 8 collisions this past year, in which poor training and technical documentation may have contributed to the pilots’ inability to overcome the response of an automated system. In that case, it seems Boeing is being held collectively accountable for technical shortfalls, even though it’s probably impossible (nor warranted) to hold a single engineer or technician accountable.
John: My turn to ask a question. What message would you have for your senior leadership?
Jimmy: Send a consistent message. That would be Lesson Number Six. One senior leader tells congress “we have completed most of the steps” from the CR and another says we haven’t actually completed anything because we never truly will be “done.” One leader says that commanding officers should be given a medal if they push back based on their own risk assessment (i.e., “saying no”), another leader says if they can’t do it we will find someone (or some ship) who can. Talking points that prioritize “risk-taking” by afloat commanders should be reflected in accountability actions in collision cases—and articulated in terms of what to expect when risk is realized. From where I sit, waterfront leadership is skeptical of the Navy‘s commitment to truly learn from these mistakes and developing a culture of openness where saying no is a responsibility, not a career death sentence. Interestingly, the current Fitz CO is in the news for stopping work and calling out the shipyard for unsatisfactory fire safety . . . he doesn’t need a medal, but I’d love to see what affect that will have on his career (especially considering the urgency to complete maintenance on time). The public airing of the Navy’s letter of censure, listing charges as facts without a hearing, and the rebuttal letter by Commander Benson have been like watching a tennis match with no referee. Not following through with the court-martial left each of us to make our own conclusions, which doesn’t feel like the hallmark of a learning organization.
John: Quick note on the Fitz article—did you notice that it also says “the Navy has not released information about the root cause of impact of the OSCAR AUSTIN fire” that occurred back in November 2018? Another example of a potential opportunity missed to share lessons while litigation drags on and perhaps prevent a recurrence. That CO did exactly what the CR encouraged him to do, but the Navy failed to provide him with the lessons that he could have used to implement change. Not to mention the (very real) possibility that these safety issues in shipyards represent a larger systemic problem (see Lesson Five).
Jimmy: From down here in the arena, I have to agree on the skepticism. Anything else we are missing?
John: Yeah, now that you mention it —you gave me Lesson Number Seven. Consider the strategic context. Completely lost in all these conversations was the fact that for a ship in Seventh Fleet at this time, we were on the brink of war. North Korea was testing rockets and nuclear warheads that summer and the Commander-in-Chief was tweeting that any aggression would be met with “fire and fury.” Less than a year earlier, Navy ships came under missile attack in the Red Sea. The crews on these C7F ships believed they were in a similar position as a humvee commander driving through Afghanistan in a war zone. The Navy trains surface warriors to be just that and expects them to push the envelope to be prepared for a fight which, at that time and place, must have felt imminent. I have spent the night on a warship the evening before it launched Tomahawks and expected enemy counterattacks via missiles or mines. There is no way to replicate that feeling in a courtroom or living room. From what I saw in the legal process, there was no consideration of the mind-set of shipboard crews at the time. By the same token, public reporting has indicated a sense of complacency in some areas and toxic interpersonal relationships that contributed to watch standers not properly executing procedures that could have prevented the collision. This is tough to reconcile, but does not change the strategic context. I guess you never know how people are going to respond to stressors.
Before getting to the last lesson, a disclaimer: nothing here is intended to diminish the loss to the families and the Navy of 17 precious shipmates; as a former USS Cole (DDG-67) executive officer, I know this feeling all too well. If there is anything that could be done to honor the lives lost in 2017 and hold the organization accountable, it should be to build the learning organization the Navy claims to so vehemently desire and, instead of ticking items off a list that is now almost two years old, waking up each day and asking “what have we not thought of?” to prevent or mitigate another such catastrophe. The events of 2017 probably were avoidable but driving ships is a dangerous business—this also could happen to anyone in command, and any current or former commanding officer who thinks this could not happen on their watch is a fool—a dangerous one.
Jimmy: That’s a great point. I have always said that the learning of lessons should continue long after the events and their aftermath. The most important ones are often the hardest to see and take the most time to implement, but it’s worth the investment. There is a new Readiness Review Oversight Committee structure in place to do this, so hopefully it will work; after all, this is about the lives of our sailors and the accomplishment of our mission—to win our nation’s wars at sea. Any final thoughts?
John: One, Lesson Number Eight. Learn from this tragic event as an institution. Develop a set of preplanned legal and leadership responses. Statistically speaking, there will be another collision.
Jimmy: Yeah, from a legal standpoint, we pretty much blew it this time—let’s hope the Navy will look hard at the lessons to not just prevent collisions, but also invest in a plan to ensure accountability when one eventually does happen again.
Just to sum up:
Lesson Number One is the need for a cadre of professional investigators.
Lesson Number Two. Don’t talk about it.
Lesson Number Three is to try to avoid political pressure
Lesson Number Four is don’t rush to judgment
Lesson Number Five. Be more transparent on the lessons learned.
Lesson Number Six. Send a consistent message.
Lesson Number Seven. Consider the strategic context.
Lesson Number Eight. Learn from this tragic event as an institution.