TUCSON, Ariz. (KGUN) — Arizona Senator Mark Kelly’s video urging members of the military to disobey illegal orders has Secretary of War Pete Hegseth calling for the Pentagon to investigate Kelly. KGUN9 sought out a former military lawyer to learn more about what Kelly could face—-and learn what could make an order illegal.
Senator Kelly joined five other members of Congress to send that message. All of them served in the military or as intelligence officers. But since Kelly stayed in the Navy long enough to officially retire, there’s the potential to call him back to active duty, and court-martial him.
In a statement Kelly said he’s risked his life for our country plenty of times, as a Navy pilot and a NASA astronaut. He says there have been threats against him and his family since President Trump called Kelly’s call to disobey illegal orders, something that calls for the death penalty.
Kelly says, in part, “I’ve given too much to this country to be silenced by bullies who care more about their own power than protecting the Constitution.”
Robert McManimon of the Rusing, Lopez and Lizardi law firm served as a military lawyer in the Marine Corps. He says the Pentagon could pull Kelly back onto active duty to punish him, but it’s unlikely and would conflict with Kelly’s First Amendment right to free speech.
Besides training for battle, everyone in the military is taught they must disobey an illegal order. But beyond blatant offenses like killing unarmed civilians, the Uniform Code of Military Justice or UCMJ instructs people in the military to assume orders are legal.
Much of the debate has centered on strikes against boats in international waters. McManimon says military lawyers probably told commanders who ordered those strikes they were legal.
He says, “Most combatant commanders would require a legal analysis for something like interdicting, whether you want to call them drug smugglers or Narco terrorists or whatever nomenclature you use, someone, at some point, we can presume, looked at it through the lens of the law, and said that it was okay.”
Lawyers may have differing views of what’s legal and what isn’t. McManimon says later, other military lawyers may decide the strikes were illegal, but military law will say service members who obeyed orders under the original legal opinion will have acted legally.
