The following position paper explains in more detail why the Military Law Task Force recently issued a statement in support of Senator Mark Kelly.
The Military Law Task Force condemns Secretary of War Pete Hegseth’s actions to punish Senator Mark Kelly for restating a core principle: servicemembers are free to disobey illegal orders from their superiors. Kelly is being targeted for his participation in a video in which he did so, along with other members of Congress who also served, At a time of raging debates about possibly-illegal military actions, members might feel caught in a Catch-22: “A soldier must disobey an illegal order, yet orders, in the heat of the moment, are almost never illegal.” MLTF does what we can to support those servicemembers, and we welcomed that November 18 video.
Hegseth’s more recent use of administrative action , threatening to demote Kelly and reduce his veteran’s benefits, is a retreat from earlier threats to prosecute Kelly, for ‘contemptuous speech” under the rarely-used Article 88. When those threats were made, we were confident that a trial was unlikely, given that career military prosecutors are JAGs, well versed in what UCMJ covers. They’d know that the Army Court of Criminal Review ruled in 1969: “As a matter of law, an order of a subordinate which contravenes the Constitution, a federal statute, a presidential executive order, a departmental regulation or other lawful directive of higher authority can have no lawful validity,” (US v Patton, U.S.A.C.M.R. 1969). And a century earlier, the US Supreme Court pointed out: “A soldier cannot justify on the ground that he was obeying the orders of his superior officer” if “a person of ordinary intelligence would know that obedience would be illegal and criminal.” Dow v. Johnson, 100 U.S. 158, 189 (1879).That same decision adds that “the established principle of every free people is, that the law shall alone govern; and to it the military must always yield.”
And those JAGs would know that servicemembers and veterans are protected by the First Amendment’s free speech provisions, as highlighted by the National Institute for Military Justice: “Although the military code criminalizes certain types of speech that may affect the military mission, the Senator’s remarks are far from criminal. He simply restated a fundamental principle of military law: service members must obey lawful orders and disobey unlawful orders.”
We’re not surprised, therefore, that the investigation ordered by Hegseth produced no grounds for court-martial, and that one of Hegseth’s hand-picked officials instead issued a letter of censure “which outlines the totality of Captain (for now) Kelly’s reckless misconduct.” Hegseth also, according to the Washington Post, “specifically cited Article 133 — “conduct unbecoming an officer and a gentleman” — and Article 134, a catchall that military officials use to target behavior they believe is bad for good order and discipline.” On social media, Hegseth also said he was demoting Kelly, but such demotion is not an automatic process, as USA Today points out: “[It] requires an administrative process known as officer grade determination, which by law makes its decisions based on an officer’s conduct while on active duty.” Complicating the matter further: Kelly is not on active duty but a veteran member of Congress.
While we have not seen the letter of censure, we agree with Senator Kelly that it’s designed “to send the message to every single retired servicemember that if they say something he or Donald Trump doesn’t like, they will come after them the same way. It’s outrageous and it is wrong. There is nothing more un-American than that.”
The MLTF reaffirms our commitment of over 55 years to support all servicemembers and veterans, including Senator Kelly, as they exercise their constitutional rights. Putting on a uniform does not mean forfeiting a servicemember’s freedom of expression. Our Know Your Rights Guide provides details on what the law allows in this area. US Military Know Your Rights guide released by MLTF, About Face and CCW – Military Law Task Force For more information, please contact us at help@nlgmltf.org or (619) 463-2369.
