WASHINGTON (AP) — The Pentagon’s investigation into Sen. Mark Kelly’s video urging U.S. troops to disobey “illegal orders” has raised questions and some criticism from legal experts.
Some say the Pentagon is misinterpreting military law to pursue Kelly as a retired Navy fighter pilot. Others said the Arizona Democrat could not be prosecuted as a member of Congress. A group of former military prosecutors insist he did nothing wrong.
The Pentagon announced the investigation last week after President Donald Trump’s social media post accused Kelly — and other Democratic lawmakers in the video — of treason “punishable by death.”
Defense Secretary Pete Hegseth said Kelly is facing scrutiny because he is the only one in that group to have formally retired from the military and is still under the Pentagon’s jurisdiction.
Kelly dismissed the investigation as the work of “bullies” and said it will not stop him and other members of Congress from “doing our job and holding this administration accountable.”
‘It’s completely unheard of’
Georgetown University law professor Stephen Vladek said there has been a “significant increase” in courts-martial of retired service members over the past decade. While courts have debated the constitutionality, the practice is currently permitted. He said that almost a dozen such actions were taken in the service branch.
There are about 2 million people who formally retire from the military and receive retirement pay, according to a report by the Congressional Research Service. Service members are generally entitled to retirement pay after completing 20 years of active duty.
Todd Huntley, a retired Navy captain and judge advocate general, or JAG, said it’s rare for retirees to be sued for what happened after they retired.
“It’s completely unheard of,” said Huntley, who now directs Georgetown’s national security law program. “I actually prosecuted an enlisted guy who had been retired for 16 years. He was essentially assaulting his adopted daughter. Basically no one else had jurisdiction so we prosecuted him.”
A ‘ridiculous conclusion’
Colby Vokey, a prominent civilian military lawyer and former military prosecutor, said Hegseth appears to have misrepresented the Uniform Code of Military Justice to justify the Kelly investigation.
Vokey said Hegseth has personal jurisdiction over Kelly because Kelly is entitled to severance pay. But Vokey said Hegseth lacked subject matter jurisdiction because Kelly made his statements as a senator.
Vokey said case law has developed where the military can prosecute an active-duty service member for a crime committed on base, such as robbing a convenience store. But applying military law to a retired service member and “that means every crime ever has a ridiculous conclusion.”
“Let’s say you have a 100-year-old World War II veteran who is retired with pay and he steals a candy bar,” Vokey said. “Hegseth could bring him back and court martial him. And that’s exactly what’s going on with Kelly.”
Patrick McLain, a retired Marine Corps judge and former federal prosecutor, said the cases he’s seen retirees recalled are “extreme examples of fraud or some of these child pornography cases.”
“I don’t see anything like the wackdoodle thing that Sen. Kelly is trying to essentially exercise his First Amendment right to free speech, which they don’t like,” McClain said.
‘He did it as a citizen’
Charles Dunlap, a Duke University law professor and retired Air Force attorney, said in an email that military law can restrict speech for service members that is protected for civilians under the First Amendment.
But even if the video is found to violate military law, a key issue could be whether the law applies to a retiree, Dunlap said.
The Former JAGs Working Group, a group of former military lawyers, said in a statement that Kelly did not violate the Uniform Code of Military Justice.
“The video only describes the law as it relates to legal versus illegal orders,” the group said. “It does not subject to mutiny or otherwise encourage members of the military to ignore or disobey lawful orders issued to them.”
Troops, especially uniformed commanders, have special obligations to refuse unlawful orders. The broader legal precedent also holds that simply obeying orders – known colloquially as the “Nuremberg Defense”, as it was unsuccessfully used by senior Nazi officials to justify their actions under Adolf Hitler – does not liberate troops.
Kelly and other lawmakers did not mention the specific circumstances in the video. Some Democratic lawmakers have questioned the legality of the Trump administration’s efforts to send National Guard troops to US cities. Kelly has questioned the use of the military to attack alleged drug boats off the coast of South America, saying he was concerned about the military officers involved in the mission and whether they were following orders that could be illegal.
Michael O’Hanlon, director of research at the Brookings Institution’s foreign policy program, said any case brought against Kelly would likely be thrown out or end in an acquittal.
O’Hanlon said it might not be politically smart to “wave a red flag in front of the bull” but he saw no legal basis for a court martial.
“It can’t be a crime to say you shouldn’t break the law,” O’Hanlon said. “But besides, he didn’t do it as a military officer, he did it as a civilian.”
Separation of Powers
Because of constitutional protections for the separation of powers in the U.S. government, the senator’s status could prevent a Pentagon investigation.
Anthony Michael Kreiss, a constitutional law professor at Georgia State University, said the Constitution expressly protects members of Congress from overreach by the White House.
“To subject a United States senator to discipline at the behest of the secretary of defense and the president — that violates the basic principle of legislative independence,” Kreis said in a telephone interview.
Kreis said such protections are a reaction to the British monarchy, which arbitrarily punishes members of parliament.
“Any way you slice it, the Constitution is fundamentally designed to prevent this kind of abuse,” Kreis said.
