The Pentagon's decision to investigate Senator Mark Kelly over a video urging American troops to reject unlawful orders has ignited significant legal debate and criticism from military law experts across the United States.
Legal Experts Question Pentagon's Interpretation
Multiple legal specialists argue the Pentagon is misinterpreting military law by pursuing Kelly, a retired Navy fighter pilot and Democratic senator from Arizona. According to defense officials, Kelly faces investigation because he formally retired from military service and remains under Pentagon jurisdiction, unlike the five other Democratic lawmakers featured in the same video.
The investigation follows President Donald Trump's social media post accusing Kelly and his colleagues of sedition, which he claimed was "punishable by DEATH." Defense Secretary Pete Hegseth confirmed the probe specifically targets Kelly due to his retired military status.
Kelly dismissed the inquiry as bullying tactics, stating it would not prevent him and fellow Congress members from "doing our jobs and holding this administration accountable."
Rare Prosecution of Retired Service Members
Stephen Vladeck, a Georgetown University law professor, noted there has been a "significant uptick" in courts-martial of retired service members over the past decade, with approximately a dozen such prosecutions across military branches. While courts have debated the constitutionality of this practice, it remains legally permissible.
According to Congressional Research Service data, about 2 million people have formally retired from the military and receive retirement pay, typically after completing 20 years of active duty.
Todd Huntley, a retired Navy captain and former judge advocate general, acknowledged that prosecuting retirees for post-retirement conduct is unusual but not unprecedented. "I actually prosecuted an enlisted guy who had been retired for 16 years," Huntley recalled, describing a case involving child assault where military jurisdiction applied because no other court could handle the matter.
Constitutional and Jurisdictional Challenges
Prominent military lawyer Colby Vokey contends Secretary Hegseth is misreading the Uniform Code of Military Justice to justify the Kelly investigation. While Hegseth maintains personal jurisdiction over Kelly due to his retirement status, Vokey argues the Defense Secretary lacks subject matter jurisdiction because Kelly made his statements as a sitting senator.
"Let's say you have a 100-year-old World War II veteran who is retired with pay and he steals a candy bar," Vokey illustrated. "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, emphasized that typical retiree prosecutions involve extreme cases like fraud or child pornography, not constitutional speech protections. "I've not seen anything like the kind of the wackadoodle thing they're trying to do to Sen. Kelly," McLain stated.
First Amendment and Separation of Powers Concerns
Charles Dunlap, a Duke University law professor and retired Air Force lawyer, noted that while military law can restrict speech protected for civilians under the First Amendment, applying such restrictions to retirees presents significant legal hurdles.
The Former JAGs Working Group, comprising former military lawyers, issued a statement asserting Kelly violated no military laws. The group emphasized the video simply explained legal distinctions between lawful and unlawful orders without encouraging disobedience of legitimate commands.
Anthony Michael Kreis, a constitutional law professor at Georgia State University, highlighted the separation of powers issue. "Having a United States senator subject to discipline at the behest of the secretary of defense and the president violates a core principle of legislative independence," Kreis explained, noting these protections originated as safeguards against monarchical abuses of Parliament members.
Michael O'Hanlon of the Brookings Institution predicted any case against Kelly would likely be dismissed or end in acquittal. "Saying that you shouldn't break the law cannot be a crime," O'Hanlon reasoned. "But in addition, he did not do it as a military officer. He did it as a civilian."
