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Senator investigated by Pentagon. mark kelly on a video that urges American The soldiers’ disobedience to “illegal orders” has drawn many questions and some criticism from legal experts.
some people say pentagon Misreading military law to go after Kelly as a retired Navy fighter pilot. Others say the Arizona Democrat cannot be prosecuted as a member of Congress. A group of former military prosecutors say he did nothing wrong.
The Pentagon announced an investigation last week after President donald trumpSocial media posts accused Kelly and the five other Democratic lawmakers in the video of treason, which would carry the “death penalty.”
Secretary of Defense pete hegseth Said Kelly faces scrutiny because he is the only person in the group who has 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 would not stop him and other members of Congress “from doing their jobs and holding this administration accountable.”
‘It’s not completely unheard of’
Georgetown University law professor Stephen Vladeck 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 allowed. He said that there have been about a dozen such cases in service branches.
According to a report by the Congressional Research Service, there are approximately 2 million people who formally retired from the military and receive retirement pay. 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 is rare for veterans to be prosecuted for something that happened after they retired.
“This is not completely unheard of,” said Huntley, who now directs Georgetown’s national security law program. “I actually prosecuted an enlisted man who was retired for 16 years. He was basically attacking 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 is misreading the Uniform Code of Military Justice to justify the Kelly investigation.
Vokey said Hegseth has personal jurisdiction over Kelly because Kelly is entitled to retirement pay. But Vokey said Hegseth lacked subject matter jurisdiction because Kelly made his statements as a senator.
Vokey said case law has evolved such that the Army can prosecute an active-duty service member for a crime committed off base, such as robbing a convenience store. But applying military law to a retired service member and “assuming that every crime counts is a ridiculous conclusion.”
“Let’s say you have a 100-year-old World War II veteran who is retired with pay and he stole a candy bar,” Vokey said. “Hegseth can bring him back and court-martial him. And that’s exactly what’s happening with Kelly.”
Retired Marine Corps judge and former federal prosecutor Patrick McClain said the cases he has seen involving recall of retirees are “extreme examples of fraud or like some of these child pornography cases.”
McClain said, “I have not seen anything like what they are trying to do with Senator Kelly, who is essentially exercising his First Amendment right to free speech to do something he doesn’t like.”
‘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 could 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 may be whether the law can be applied to a veteran, Dunlap said.
The Former JAG 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 did not give rise to mutiny or otherwise encourage military members to disobey or disobey lawful orders issued to them.”
Soldiers, especially uniformed commanders, have specific obligations to refuse unlawful orders. Extensive legal precedent also holds that merely following orders – known colloquially as the “Nuremberg defence” because it was used unsuccessfully by senior Nazi officials under Adolf Hitler to justify their actions – does not absolve soldiers.
Kelly and other lawmakers did not mention 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 explicitly questioned the use of the military to attack alleged drug boats off the coast of South America and said he was concerned about the military officers involved in the mission and whether they were following orders that might have been illegal.
Michael O’Hanlon, director of research in the foreign policy program at the Brookings Institution, said any case brought against Kelly would likely be dismissed or acquitted.
O’Hanlon said that “waving a red flag in front of the bull” may not be politically sensible, but he did not see a legal basis for a court martial.
“Saying you shouldn’t break the law can’t be a crime,” O’Hanlon said. “But also, he didn’t do it as a military officer. He did it as a civilian.”
separation of powers
Kelly’s position as a senator could prevent a Pentagon investigation due to constitutional protections for the separation of powers in the US government.
The Constitution clearly protects members of Congress from White House overreach, said Anthony Michael Kreis, a constitutional law professor at Georgia State University.
“Subjecting a United States senator to discipline on the orders of the Secretary of Defense and the President violates the fundamental principle of legislative independence,” Kreis said in a telephone interview.
Kreis said that such protection was a reaction to the British monarchy arbitrarily punishing members of Parliament.
“Any way you cut it, the Constitution is basically structurally designed to prevent this kind of abuse,” Kreis said.