Pentagon Investigating Kelly Over Video11/25 06:12

   

   WASHINGTON (AP) -- The Pentagon announced Monday it is investigating 
Democratic Sen. Mark Kelly of Arizona over possible breaches of military law 
after the former Navy pilot joined a handful of other lawmakers in a video that 
called for troops to defy "illegal orders."

   The Pentagon's statement, posted on social media, cited a federal law that 
allows retired service members to be recalled to active duty on orders of the 
defense secretary for possible court martial or other measures.

   It is extraordinary for the Pentagon, which until President Donald Trump's 
second term had usually gone out of its way to act and appear apolitical, to 
directly threaten a sitting member of Congress with investigation. It comes 
after Trump ramped up the rhetoric by accusing the lawmakers of sedition 
"punishable by DEATH" in a social media post days after the video was released 
last week.

   In its statement Monday, the Pentagon suggested that Kelly's statements in 
the video interfered with the "loyalty, morale, or good order and discipline of 
the armed forces" by citing the federal law that prohibits such actions.

   "A thorough review of these allegations has been initiated to determine 
further actions, which may include recall to active duty for court-martial 
proceedings or administrative measures," the statement said.

   Kelly said he upheld his oath to the Constitution and dismissed the Pentagon 
investigation as the work of "bullies."

   "If this is meant to intimidate me and other members of Congress from doing 
our jobs and holding this administration accountable, it won't work," Kelly 
said in a statement.

   What the lawmakers said in the video

   Kelly was one of six Democratic lawmakers who have served in the military or 
intelligence community to speak "directly to members of the military." The 
other lawmakers are Sen. Elissa Slotkin and Reps. Jason Crow, Chris Deluzio, 
Maggie Goodlander and Chrissy Houlahan, who are seen as possible future 
aspirants for higher office and elevated their political profiles with the 
video's wide exposure.

   Kelly, who was a fighter pilot before becoming an astronaut and then 
retiring at the rank of captain, told troops that "you can refuse illegal 
orders," while other lawmakers in the video said they needed troops to "stand 
up for our laws ... our Constitution."

   Defense Secretary Pete Hegseth said Kelly was facing investigation because 
he is the only one of the lawmakers who formally retired from the military and 
is still under the Pentagon's jurisdiction.

   "Kelly's conduct brings discredit upon the armed forces and will be 
addressed appropriately," Hegseth said on his personal X account. Of the wider 
group, he added that "their foolish screed sows doubt and confusion -- which 
only puts our warriors in danger."

   Kelly and the other lawmakers didn't mention specific circumstances in the 
video, but its release comes as the Trump administration has ordered the 
military to blow up small boats in the Caribbean Sea and eastern Pacific Ocean 
accused of ferrying drugs and continues its attempts at deploying National 
Guard troops into U.S. cities despite some legal setbacks.

   Chief Pentagon spokesman Sean Parnell said last week that "our military 
follows orders, and our civilians give legal orders."

   Other Senate Democrats came to Kelly's defense, with Democratic leader Chuck 
Schumer accusing Trump of using the Pentagon "as his personal attack dog" and 
saying "this is what dictators do."

   His fellow Democratic Arizona senator, Ruben Gallego, said "Mark told the 
truth -- in America, we swear an oath to the Constitution, not wannabe kings."

   What legal scholars say

   In the past decade, there has been "a quiet but significant uptick in 
courts-martial of retired servicemembers, even for post-retirement offenses," 
Stephen Vladeck, a Georgetown University law professor, said in an email. He 
said there has been debate in the courts about their constitutionality but the 
practice is currently allowed.

   But Kelly's status as a U.S. senator could complicate the Pentagon's 
investigation because the Constitution explicitly shields members of Congress 
from White House overreach, said Anthony Michael Kreis, a constitutional law 
professor at Georgia State University.

   "Having a United States senator subject to discipline at the behest of the 
secretary of defense and the president -- that violates a core principle of 
legislative independence," Kreis said in a phone interview.

   Kreis said such protections were a reaction to the British monarchy, which 
had arbitrarily punished members of Parliament.

   "Any way you cut it, the Constitution is fundamentally structurally designed 
to prevent this kind of abuse from happening," Kreis said.

   Troops can reject unlawful orders

   Troops, especially uniformed commanders, do have specific obligations to 
reject orders that are unlawful, if they make that determination.

   While commanders have military lawyers on their staffs to consult with in 
making such a determination, rank-and-file troops who are tasked with carrying 
out those orders are rarely in a similar position and often have to rely on 
their superiors.

   Broad legal precedence also holds that just following orders -- colloquially 
known as the "Nuremberg defense," as it was used unsuccessfully by senior Nazi 
officials to justify their actions under Adolf Hitler -- doesn't absolve troops.

   Yet, there has been little reaction online from troops to the lawmakers' 
video.

   A former service member who helps run an online military forum and spoke on 
condition of anonymity to avoid retaliation said the lawmakers' message is 
unlikely even to reach troops because the video was posted only on X and was 
far too long to be reposted on platforms like TikTok where troops actually 
consume information.