Experts skeptical about Pentagon's ability to discipline Kelly for posting video of 'illegal orders'

WASHINGTON (AP) The Pentagon has opened an investigation into Senator Mark Kelly over a video in which he urges U.S. troops to resist illegal orders, prompting intense legal discussion and criticism. Experts are divided: some argue the military is misinterpreting laws to target Kelly, a retired Navy pilot, while others maintain that as a sitting member of Congress, he cannot face prosecution. A group of former military prosecutors has stated that Kellys actions were lawful.

The inquiry was announced last week following former President Donald Trumps social media post accusing Kelly and five other Democratic lawmakers featured in the video of sedition punishable by death. Defense Secretary Pete Hegseth clarified that the probe focuses on Kelly because he is the only retired member among the group still under military jurisdiction.

Kelly dismissed the investigation, calling it the work of bullies and insisting it would not prevent him or his colleagues from holding the administration accountable.

Stephen Vladeck, a law professor at Georgetown University, noted a rise in courts-martial involving retired service members over the past decade. While courts have debated the constitutionality of this practice, it remains permissible, with roughly a dozen such cases occurring across military branches. According to the Congressional Research Service, about 2 million people receive military retirement pay after completing 20 years of service.

Todd Huntley, a retired Navy captain and JAG officer, emphasized that prosecutions of retirees for post-retirement actions are uncommon but not unprecedented. I prosecuted an enlisted member retired for 16 years who committed assault because no other jurisdiction existed, Huntley said.

Colby Vokey, a former military prosecutor and civilian military lawyer, argued that Hegseth misapplies the Uniform Code of Military Justice. He explained that while Kelly falls under personal jurisdiction due to retirement pay, subject matter jurisdiction does not extend to actions taken in his capacity as a senator. Vokey highlighted the absurdity of applying military law to retired individuals for acts outside military service.

Patrick McLain, a retired Marine Corps judge, noted that previous retiree prosecutions were for extreme cases like fraud or child exploitation, not political speech protected by the First Amendment. Charles Dunlap, a Duke University law professor, observed that while military law can limit active-duty members speech, its application to retirees remains questionable.

The Former JAGs Working Group, a collective of former military lawyers, stated that Kelly did not violate military law. They emphasized that the video addressed lawful versus unlawful orders without inciting mutiny.

Legal precedent holds that following unlawful orders does not absolve responsibility, a principle rooted in the Nuremberg Trials. Kelly and the other lawmakers did not reference any specific orders in their video. The video also ties into broader concerns, as some Democrats question the legality of deploying National Guard troops domestically and using military forces against suspected drug operations in South America.

Michael OHanlon of the Brookings Institution suggested that any prosecution against Kelly would likely be dismissed or end in acquittal. He added that Kelly acted as a civilian lawmaker, not in a military capacity.

Constitutional experts highlight that Kellys position as a senator could prevent Pentagon action. Anthony Michael Kreis, a law professor at Georgia State University, stated that subjecting a member of Congress to disciplinary action from the Department of Defense violates the separation of powers, a safeguard established to prevent governmental overreach.

Analysis: Pentagon Investigation into Senator Mark Kelly

The Pentagon's inquiry into Senator Mark Kelly over his video urging troops to resist "illegal orders" raises significant legal and constitutional questions. While Kelly is a retired Navy pilot and technically under military jurisdiction, experts widely agree that his actions as a sitting member of Congress are protected and unlikely to constitute a prosecutable offense.

Former military prosecutors and legal scholars emphasize that Kelly's video discussed the lawful distinction between legal and illegal orders without inciting mutiny or violence. Cases of retirees facing courts-martial are rare and typically involve severe criminal conduct, not political speech. Applying the Uniform Code of Military Justice to a senator for actions taken in a civilian role sets a controversial precedent.

Constitutional protections, particularly the separation of powers, further complicate any attempt to prosecute Kelly. Legal analysts note that targeting a sitting member of Congress through military channels could constitute overreach by the Pentagon and would likely be dismissed if challenged in court.

In summary, while the investigation has drawn public attention and political commentary, the consensus among legal and military experts is that Senator Kelly acted within both civilian and legal boundaries. The outcome of the inquiry is expected to reinforce existing interpretations of military jurisdiction over retirees and underscore the limits of military authority in matters involving elected officials.

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• Experts doubt the Pentagon can punish Kelly over the 'illegal orders' video