At this moment, the United States Navy is preparing to deploy a 10,000-ton warship carrying 320 officers and sailors, along with missiles, torpedoes, and a mounted artillery gun. This ship, known as a guided-missile destroyer, defends the United States and its allies on the seas. Although its next mission remains secret, it may bolster American military presence in Europe as Russian aggression pushes the continent into war. But the Navy cannot currently deploy this warship, because it has lost trust in its commanding officer, an anti-vaxxer who has repeatedly disobeyed lawful orders, misled superiors, and allegedly exposed dozens of his crew to COVID-19 due to a refusal to get tested.
The Navy wants to remove this officer, whom I’ll call John Doe, from command of the destroyer. But it can’t, because a single federal judge in Tampa has forbidden it. This judge has overruled multiple admirals and captains who assert, under oath, that deploying the ship with Doe in charge would imperil national security. He instead ordered the Navy, under threat of sanction, to keep this disobedient officer in charge of a $1.8 billion warship. The federal judiciary is quite literally preventing the nation from defending itself at sea.
That judge, Steven Douglas Merryday, is a George H.W. Bush nominee who sits on a federal trial court in Florida. He gained notoriety in 2021 after blocking a CDC order that limited cruise ship operations due to the pandemic. So, when the far-right Liberty Counsel sought to halt President Joe Biden’s COVID-19 vaccine mandate for the armed forces, they took their case to Merryday’s court. Predictably, they prevailed: In February, Merryday ruled that the mandate violated the Religious Freedom Restoration Act, siding with the plaintiffs, Navy Commander John Doe and Lieutenant Colonel Jane Smith. (I’ve applied these pseudonyms to the officers because the court granted them anonymity.)
But Merryday did not merely exempt Doe and Smith from the mandate. Rather, he handed down a sweeping restraining order that prohibited the Navy from taking any “adverse action” against the plaintiffs because of their unvaccinated status. Specifically, he barred the Navy from reassigning them for any reason whatsoever.
This order created immediate problems. An active-duty member of the Marine Corps, Smith is slated to take command of a Combat Logistics Battalion later this year. As Lieutenant General W.M. Jurney attested, this commander must disembark at ally nations all over the world. Many of these countries require all U.S. service members to be vaccinated against COVID before stepping on their shores. Because she is unvaccinated, Smith is not “worldwide deployable,” in Jurney’s words. And yet Merryday has forced the Navy to deploy her.
But Doe poses the bigger threat. He is currently the commanding officer of a warship that may soon set sail. If he falls seriously ill at sea—which is more likely because he refuses the vaccine—he may thwart the entire mission. The issue, however, goes deeper than that. In declarations, Vice Admiral D.W. Dwyer and Captain Frank Brandon explained that Doe’s anti-vax beliefs are part of a broader pattern of insubordination. Brandon testified that last November, he spoke with Doe on Doe’s ship one day before its scheduled departure. Doe was experiencing multiple symptoms of COVID, and appeared to have a relatively severe case; he could, Brandon recalled, “barely speak.” Yet Doe refused to get tested—a clear violation of protocol—and attended a briefing in a cramped room with about 60 other people. Brandon ordered Doe to get a test, which revealed that he did, indeed, have COVID, and exposed dozens of others to the virus.
Doe engaged in other deceptive behavior. For instance, when requesting leave, he concealed the fact that he was flying to another state, which would have triggered a mandatory risk assessment. After Brandon discovered this subterfuge, he learned that Doe had traveled to a high-risk area, requiring five days’ quarantine upon return. Doe did not inform his Executive Officer of this extended absence, creating a “significant and very rare” disruption “across the waterfront” during a crucial phase of ship preparation. Brandon concluded that Doe “intentionally deceived me,” “put his crew at risk,” “failed to comply with the Navy’s COVID-19 policies,” and engaged in “negligent behavior” in “performance of his duties.”
“I do not trust [Smith] with the lives of our Sailors,” Brandon testified. He continued:
I am responsible for the well-being of my Squadron, including welfare of my ships and the health of my sailors. My loss of confidence in [Smith] is … based on the fact that I cannot trust his judgment, I cannot trust him to look after the welfare of his sailors, and I cannot trust him to be honest with me. In my judgment, allowing him to remain in command of a Navy warship would be reckless.
Brandon’s view is shared across the Navy. In Dwyer’s alarming declaration, the vice admiral explained that Doe would constitute a “manifest national security concern” if he remains a commanding officer. “It is untenable that a subordinate commander may choose to disregard, modify, or half-heartedly execute a senior officer’s orders due to his or her personal beliefs,” Dwyer testified. This insubordination “degrades mission effectiveness and the ability of the strike group to perform its mission in the interest of U.S. national security.”
Merryday’s order, Dwyer noted, “requires the Navy to leave a subordinate commander in command of a warship, despite his senior officer’s questions relating to his fitness to discharge his duties as ordered. Under no circumstances would the Navy typically deploy a commander in an operational capacity with whom his or her superior officers have such reservations.”
In light of these fears, the Department of Justice pleaded with Merryday to pause his decision. On Wednesday, he declined. Merryday scorned the notion that Doe might get sick, writing that he is “triumphantly fit and slim and strong.” He also implied that Navy leadership may be lying about Doe’s insubordination in retaliation against his religious beliefs. Merryday declined to fully credit their testimony until he could subject them to cross-examination. He concluded that the plaintiffs’ right to religious liberty trumps the Navy’s profound national security concerns.
The Navy and the federal judiciary are therefore in a standoff. The Navy will not deploy Doe’s warship until he is stripped of command. Merryday will not allow it to do so. As a result, Merryday has effectively taken a 10,000 ton, $1.8 billion guided-missile destroyer out of commission. As the Navy builds up its naval presence in Europe to guard against further Russian aggression, it is down a ship—solely because an unelected judge in Tampa has inserted himself into the chain of command.
This situation is untenable. Already, a Texas judge, abetted by the 5th U.S. Circuit Court of Appeals, has freed nearly three dozen SEALs from the vaccine mandate, a decision that high-ranking officers say will put the world at risk. Now Merryday is holding back a warship from deployment—and the judicial resistance to military mandate is just beginning. These cases are on a fast-track to the Supreme Court. If the justices do not confirm that judges must respect the commander-in-chief’s lawful orders, thousands of other service members like Doe will unleash chaos on the armed forces.
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