Defense Secretary Pete Hegseth should be impeached for his abusive threats to court-martial Navy combat veteran Sen. Mark Kelly, D-Ariz., in retaliation for the senator’s participation in a video reminding service members of their extant legal duty to disobey unlawful orders. His behavior is unconscionable and unbecoming for the leader of the U.S. military, and Congress shouldn’t tolerate such an unwarranted attack not only on a decorated combat veteran, but also an attack on the legislative branch itself.
Congress shouldn’t tolerate such an unwarranted attack not only on a decorated combat veteran but also an attack on the legislative branch itself.
I argued in a previous column that the video message from six Democratic lawmakers, all of whom served in the military, the intelligence community or both, wasn’t particularly helpful and may have done more harm than good in that it was too vague and didn’t fully appreciate the moral quandary members may find themselves in. However, Hegseth threatening a court-martial for these lawmakers accurately reciting the law — that is for them exhorting service members to do their legal duty and disobey unlawful orders — is beyond the pale. Because he’s trying to punish a lawmaker, Hegseth’s response is also a threat to the separation of powers, and represents a gross dereliction of the secretary’s duties running the Pentagon.
What Sen. Kelly and his five Democratic colleagues said is not criminal – not under federal law and not under the unique military offenses that still apply to Kelly, who remains subject to the military penal code under a little-used Civil War-era statute extending the Uniform Code of Military Justice to certain military retirees.
Regarding what Sen. Kelly and his colleagues said to service members in their video, the bottom line is that the video represents a blunt recitation of service members’ existing legal duties. Per long-standing military law, U.S. service members have a duty to obey all lawful orders, upon pain of court-martial, for the military crime of disobedience.
Related, they also have an inverse duty to disobey unlawful orders: either those orders they know are unlawful or those orders they should know are unlawful – that is, patently unlawful orders, such as the ordering of a crime (for example, an order to “shoot at those peaceful protestors” or “kill those detainees in custody” or the orders Lt. William Calley claimed to have been following in Vietnam when he murdered nonthreatening men, women and children in My Lai.)
In making their video, these lawmakers believed themselves to be making a vital public service announcement by reminding service members that “superior orders” may not always be a defense if they obey unlawful orders. Again, I argued that their blunt message could have been more nuanced, but it certainly wasn’t criminal — not by any stretch of the imagination. Given that the six who recorded the video were acting in their capacity as legislators, they’re also protected by the Constitution’s “Speech and Debate Clause,” written to protect lawmakers from harassment by the executive branch for doing their jobs.
Sen. Kelly’s video is nowhere near criminal — even under the more expansive military code of crimes.
Secretary Hegseth’s dangerous blustering ignores the Speech and Debate Clause and attempts to exploit Sen. Kelly’s status as a military retiree who is still subject to the Uniform Code of Military Justice. Relevant to this discussion, the UCMJ contains military-unique crimes and fewer First Amendment protections than civilian law does.
But Sen. Kelly’s video is nowhere near criminal — even under the more expansive military code of crimes. Hegseth claims the video Kelly contributed to undermines good order and discipline, and is service-discrediting, conduct criminalized under the UCMJ’s “catch all” crime. Yet the exhortation to follow the law by disobeying unlawful orders isn’t prejudicial to good order and discipline. Nor does reminding service members of their legal duty cast discredit upon the military. However, following illegal orders would surely bring discredit.
The video does not encourage military members to disobey lawful orders, nor otherwise suborn mutiny, which is the collective disobedience of lawful orders. It speaks to the exact opposite: the duty to disobey unlawful orders.
A Pentagon press announcement regarding the video mentions 18 U.S.C. 2387, a hoary Cold War-era statute that attempts to criminalize counseling military insubordination (disobedience) or other refusal to do one’s military duty. (In its famous Brandenburg v. Ohio decision, the Supreme Court found that statute unconstitutional as applied.)
Even if this statute were still constitutional (which it’s not in this context, given that there’s no risk the video would cause imminent lawlessness), the video itself simply counsels the disobedience that is demanded by law if service members face unlawful orders: That is, it urges those in uniform to do their duty.
Secretary Hegseth’s intimidation campaign against Sen. Kelly is one that should be loudly condemned, given its abusive nature and threat to separation of powers. There are other related issues, such as how it would be impossible for Sen. Kelly to even get a fair proceeding in the military, given the unlawful influence demonstrated by the secretary and president through their social media screeds predeciding guilt.
Also, there is the risk – seemingly alluded to by Hegseth’s social media post referring to Sen. Kelly putting his military rank in quotation marks – that Hegseth wants to recall the senator to active duty to subject him to administrative adverse actions – and based on such actions, order that he be retired at a lesser rank.
Such an abuse of the law is also wrong, and should be loudly condemned (and hopefully enjoined by a federal court based on the Speech and Debate Clause alone).
Neither Kelly, nor any of the other Democratic lawmakers, was out of line. But Hegseth certainly is.
Rachel E. VanLandingham, Lt Col, USAF (ret.) is the Irwin R. Buchalter Professor of Law, Southwestern Law School, Los Angeles and president emerita of the National Institute of Military Justice.