The Trump administration is trying to shut up Senator Mark Kelly after he told troops not to follow any illegal orders. It is threatening to court martial him, but as Tom Rogan notes in the Washington Examiner, there is no legitimate basis for any court martial, and the administration’s actions display contempt for free-speech rights:
Sen. Mark Kelly (D-AZ) is not in breach of his legal obligations as a retired military officer.
Kelly served in the Navy between 1986 and 2011, retiring honorably at the rank of captain. This bears noting in light of the Department of War’s claim on Monday that it “has received serious allegations of misconduct against Captain Mark Kelly, USN (Ret.). In accordance with the Uniform Code of Military Justice, 10 U.S.C. § 688, and other applicable regulations, a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures. … The Department of War reminds all individuals that military retirees remain subject to the UCMJ for applicable offenses, and federal laws such as 18 U.S.C. § 2387 prohibit actions intended to interfere with the loyalty, morale, or good order and discipline of the armed forces.”
The statement follows a video last week in which Kelly and other Democratic members of Congress called on military personnel to disobey illegal orders. As they put it, “The threats to our Constitution aren’t just coming from abroad, but from right here at home. Our laws are clear. You can refuse illegal orders. No one has to carry out orders that violate the law or our Constitution.” The video enraged the commander in chief, President Donald Trump. He claimed its purveyors were traitors guilty of sedition, a crime, Trump said, was “punishable by death.”
Trump is wrong to suggest that the video constitutes a crime of sedition. The Department of War’s investigation of Kelly is similarly flawed.
Uniformed military officers swear an oath to defend the Constitution..They also swear to abide by the UCMJ and to uphold conflict-related U.S. treaty obligations such as the Geneva Convention. Retired military officers such as Kelly remain subject to many of these responsibilities. Still, there is no compelling evidence that Kelly has committed an offense here.
Take the Department of War’s reference of 18 U.S.C. § 2387. That law does indeed “prohibit actions intended to interfere with the loyalty, morale, or good order and discipline of the armed forces.” But the key legal point here is that the law requires “intent to interfere” with military responsibilities. It is not credible to argue that a senator and retired military officer’s generalized call to obey lawful orders and disobey unlawful orders constitutes an unlawful effort to undermine the “loyalty, morale, or discipline” of the armed forces. After all, the call to obey lawful orders and disobey unlawful orders is a standing responsibility of every member of the armed forces. And while some might argue that Kelly has undermined morale by introducing a question of doubt as to the legality of Trump’s orders, his lack of specificity protects his speech under the First Amendment.
Had Kelly called on military personnel to oppose a specific order from Trump, such as his deployment of Marines to support anti-crime efforts in Los Angeles, he would be liable for court-martial. But he did not…. Regardless, Kelly will be cleared by any investigation or subsequent court-martial.
This harassment of a retired soldier for speaking his mind may discourage people from signing up for the military, lest they lose their free speech rights even after they retire from the military. The harassment of Kelly could thus harm military recruitment. Requiring people to follow the Republican Party line — even after they retire! — would be a huge disincentive for Democrats to join the military. About two-fifths of the military is Democratic-leaning.
Intolerance drives away recruits, whether it was woke social engineering under the Biden administration, or Trump’s hostility to dissent during Trump’s second term. (Defense Secretary Pete Hegseth’s hostility to beards could also make it harder to attract enough recruits).
Trump has accused other Congressional Democrats, who have never even been in the military, of “sedition” for telling military personnel to disobey unlawful orders. But under the Supreme Court’s Brandenburg decision, it is very clear that all their comments were protected by the First Amendment (even if one assumes that all of the orders they objected to were lawful, as opposed to unlawful orders. Some Trump administration orders to our troops, such as that they blow up ships in the Caribbean suspected of carrying drugs (killing those on board), appear to be unlawful. Unlawful orders merit criticism, and it is wrong to punish those who criticize them).
