Mark Kelly will probably be fine. The senator and Navy veteran isn’t likely to be cowed by Secretary of Defense Pete Hegseth’s lawless attempt to silence him by seeking to demote him post-retirement.
“It’s dead on arrival,” Gene Fidell, an expert on the Uniform Code of Military Justice who teaches at Yale Law, told me. “If this ever gets in front of a judge, the judge is going to say, ‘Fuck you.’”
The attack on Kelly may have a much broader aim, which is to silence other service members who might speak out about the Trump administration’s actions by threatening their financial well-being. Veterans who lack Kelly’s platform, influence, and social connections may feel that their pension isn’t worth the risk of saying something critical of the president.
In a post on X, Hegseth announced that Kelly was being demoted for a video from November. He and five other Democratic lawmakers who had been service members or intelligence officers reiterated the principle that members of the military do not have to follow unlawful orders. This is a banal statement of law, one that Hegseth himself has made publicly in years past. And Kelly had good reason to warn against abuses of military power. Donald Trump, after all, has deployed federal agents and military units to American cities—apparently as a kind of punishment for being liberal—and openly speculated about using “some of these dangerous cities as training grounds for our military.”
The time may come when service members are commanded to murder fellow citizens on the president’s orders, and they should know that they can refuse to do so. One wonders whether that is precisely why the Trump administration’s response has been so heavy-handed: Trump officials don’t want service members hearing that they do not have to follow unlawful orders, because they may someday issue them.
Nothing in Kelly’s video was grounds for punishment under the Uniform Code of Military Justice, which forbids service members and retirees from using “contemptuous” language in reference to the president and some other officials, and from engaging in conduct prejudicial to “good order and discipline.” In a statement, Kelly said that Hegseth and Trump “don’t get to decide what Americans in this country get to say about their government.” Trump, however, had declared that the video was “punishable by DEATH.”
There are clearly good reasons for the code to enforce standards of conduct. When you serve for 20 years in the military, you retire with a pension defined by your rank. Officers can be demoted after the fact, on the basis of behavior that occurred while in uniform. In 2021, for instance, an Army major general was demoted for sexual abuse that occurred while he was on active duty, despite having retired in 2005.
But Kelly’s statements were not made while on active duty, and were not disparaging. “There’s nothing improper, much less criminal, in what they said,” Fidell said. “It’s not conduct unbecoming; it is not seditious.”
“His exact words were merely a statement of the law, which is: You can disobey unlawful orders. That’s factually, legally correct,” Brenner Fissell, a law professor at Villanova and a vice president at the National Institute of Military Justice, told me. “How can it be a criminal offense to state the law?”
It’s not—in a democracy. But Trump and his enablers act as if they’re above the law, and seem to feel entitled to punish anyone who displeases them. As the Trump adviser Stephen Miller put it in an interview with CNN’s Jake Tapper about the arrest of the Venezuelan president, “We live in a world, in the real world, Jake, that is governed by strength, that is governed by force, that is governed by power.” He called these forces “the iron laws of the world since the beginning of time.” Miller’s tedious attempts to sound like a comic-book supervillain aside, this may be the way most states have been governed, but it is also a description of the kind of tyranny the Constitution was written to prevent.
It is strange that military law continues to govern the political speech of retired service members. This is, in my view, a clearly unconstitutional quirk that Hegseth is exploiting to punish Kelly and silence others—including, potentially, other lawmakers with military backgrounds who might speak out against Trump policies.
“One of the things that I’m hoping to do is spread a little truth on the water here, so that people aren’t chilled,” Fidell said. Veterans “have as much right as you or I do to speak their minds.”
A simple solution to prevent this abuse of authority would be for Congress to change the law so that military retirees are not subject to restrictions on speech or conduct that takes place after they no longer serve in uniform. “Retiree jurisdiction does not need to exist; it’s irrational,” Fissell said. “You’ve got 99-year-old World War II veterans who are still subject to military law.”
The much broader problem, however, is that the American people elected a president who thinks it should be illegal to criticize him, illegal to oppose him, and illegal to remind others that they have the right to do so. The other Democratic lawmakers in the video aren’t drawing military pensions, so are not subject to the military code of justice. Nevertheless, the administration found a way to punish them by subjecting them to an FBI investigation—it’s unclear for what, because contempt of Trump is not a crime under American law.
When criticizing the leader becomes a crime, being a criminal becomes an obligation.
The post The Attempt to Silence Veterans appeared first on The Atlantic.
