Even as the US military is as close to a war footing it has been in decades, in a stunning execution of judicial power, a federal judge has forced the Pentagon to deploy a US warship with an insubordinate commander who refuses to be vaccinated!
For security reasons, the name of the ship nor its commander have been disclosed. We only know that it is a “missile destroyer.” 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 brass would like to remove this officer, who we’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 “Captain Doe” in charge would imperil national security. The judge instead has ordered the Navy – under threat of sanction — to keep this disobedient officer in charge of a $1.8 billion warship.
A single obstinate judge, who seems to clearly be overstepping his bounds, has the federal judiciary literally preventing the nation from defending itself at sea to the best ability of its trained and oath-sworn ranking officers!
Unlike Doe, that judge’s name has been disclosed.
He is Steven Douglas Merryday, a George H.W. Bush nominee who sits on a federal trial court in Florida. Merryday is not new to COVID controversy. He first gained notoriety in 2021 after blocking a CDC order that limited cruise ship operations due to the pandemic.
So, it is not surprising that 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.
While those who read my columns know that I respect most people’s rights to their antivaxxer status and beliefs, the problem I (and many others) have with Merryday’s ruling is that the judge 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. In effect making the two officers immune from consequences of defying direct orders of their superiors or other acts of insubordination.
Specifically, his order created a few 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 US 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’s order has forced the Navy to deploy her.
But “Captain 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 antivax 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.
And, this was apparently only one in a series of “deceitful” and “insubordinate” acts perpetrated by Doe that Captain Brandon testified to, and yet, because of Merryday’s ruling – his superior officers could take no action against Doe!
“I do not trust [Doe] with the lives of our Sailors,” Captain Brandon testified.
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 US 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. Thus far, he has 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 very powerful and needed ship—solely because an unelected judge in Tampa has inserted himself into the military chain of command.
I do not care what side of the aisle you sit on, how you feel about COVID or vaccines – as the US and indeed the world, sits on the brink of war – depriving the Commander-in-Chief of the ability to deploy a vital weapons system in defense of the nation is just wrong.