Legal Experts Challenge Pentagon's Investigation of Senator Kelly
The Pentagon's decision to investigate Senator Mark Kelly over a video discussing illegal orders has sparked significant criticism and legal scrutiny from experts across the United States. The controversy centres on whether the Defence Department has overstepped its authority in targeting a sitting senator and retired naval officer.
Defence Secretary Pete Hegseth announced the investigation last week following a social media post by President Donald Trump that accused Kelly and five other Democratic lawmakers featured in the video of sedition. Hegseth justified the probe by stating that Kelly, as the only participant who formally retired from military service, remains under the Pentagon's jurisdiction.
Constitutional Concerns and Legal Precedents
Legal specialists are questioning the investigation's foundation on multiple fronts. Anthony Michael Kreis, a constitutional law professor at Georgia State University, emphasised that the Constitution explicitly shields members of Congress from White House overreach. "Having a United States senator subject to discipline at the behest of the secretary of defence and the president violates a core principle of legislative independence," Kreis stated, noting these protections originated as a reaction against the British monarchy's arbitrary punishment of Parliament members.
Stephen Vladeck, a Georgetown University law professor, acknowledged that prosecuting retired service members has seen a "significant uptick" in the past decade, with roughly a dozen such cases across service branches. However, he noted that courts continue debating the constitutionality of this practice, which currently remains permitted despite ongoing legal challenges.
Military Law Experts Voice Strong Objections
Several prominent military legal experts have condemned the Pentagon's approach. Colby Vokey, a distinguished civilian military lawyer and former prosecutor, accused Hegseth of misreading the Uniform Code of Military Justice. While acknowledging Hegseth has personal jurisdiction over Kelly due to his retirement status, Vokey argued the defence secretary lacks subject matter jurisdiction because Kelly made his statements as a senator, not as a military officer.
Vokey illustrated his point with a striking comparison: "Let's say you have a 100-year-old World War II veteran who is retired with pay and he steals a candy bar. Hegseth could bring him back and court-martial him. And that in effect is what is happening with Kelly."
Patrick McLain, a retired Marine Corps judge and former federal prosecutor, noted that cases involving recalled retirees typically involve "extreme examples of fraud or child pornography cases." He expressed astonishment at the attempt to prosecute Kelly for "essentially exercising his First Amendment right to free speech, which they don't like."
The Former JAGs Working Group, comprising former military lawyers, issued a statement supporting Kelly's position. They asserted that Kelly did not violate the Uniform Code of Military Justice, explaining that "the video simply described the law as it pertains to lawful versus unlawful orders. It did not suborn mutiny or otherwise encourage military members to disregard or disobey lawful orders issued to them."
Broader Implications and Political Context
The video at the centre of the controversy addresses the well-established legal principle that troops, particularly uniformed commanders, have specific obligations to reject unlawful orders. This concept, often referenced through the "Nuremberg defence" used unsuccessfully by Nazi officials after World War II, maintains that following orders does not absolve troops of responsibility for illegal actions.
Kelly and fellow lawmakers did not reference specific circumstances in their video. However, Democratic legislators have previously questioned the legality of the Trump administration's attempts to deploy National Guard troops into American cities. Kelly has specifically raised concerns about using military forces to attack alleged drug boats off South America's coast, expressing worry about whether military officers were following potentially illegal orders.
Michael O'Hanlon, director of research in the foreign policy program at the Brookings Institution, suggested any case against Kelly would likely be dismissed or end in acquittal. While acknowledging the political imprudence of "waving a red flag in front of the bull," O'Hanlon stated, "Saying that you shouldn't break the law cannot be a crime. But in addition, he did not do it as a military officer. He did it as a civilian."
Kelly himself dismissed the inquiry as the work of "bullies" and vowed it would not prevent him and congressional colleagues "from doing our jobs and holding this administration accountable." With approximately 2 million people formally retired from the military and receiving retirement pay according to Congressional Research Service data, the case's outcome could establish significant precedents regarding military jurisdiction over retired personnel.
