Why Is a Retired Navy Captain Under Fire for Stating the Law?

Senator Mark Kelly, a former Navy captain, is currently under investigation for stating a well-known legal principle: military personnel can refuse illegal orders. This principle, established after World War II during the Nuremberg trials, is not new. The investigation began after Kelly and other lawmakers released a video reminding service members of this right.

Controversy and Backlash

The video angered former President Trump, who labeled it "seditious behavior" on Truth Social and even suggested severe punishments, including execution. Following this, the Pentagon and the FBI initiated an investigation to determine if Kelly violated any military laws by sharing this information. The FBI also seeks to question the other lawmakers in the video, but only Kelly is subject to military jurisdiction as a retired officer.

Legal and Ethical Concerns

The video did not mention any specific orders. However, Kelly questioned the legality of orders to kill suspected drug smugglers at sea on "Face the Nation." Many legal experts, including those who previously supported controversial practices like waterboarding, have also questioned the legality of these strikes. The administration has not publicly shared the legal reasoning behind these strikes, which have already resulted in over 80 deaths.

Historical Context and Free Speech

The idea that we are at war with drug smugglers is misleading. The "war on drugs" is not an actual armed conflict, and even during real wars, the laws of war prohibit targeting civilians not actively engaged in hostilities. Instead of addressing these concerns, the Pentagon is investigating Kelly, and the FBI wants to question him and his colleagues for simply stating the law.

This situation echoes a dark period during World War I when criticizing the war was criminalized. Over 2,000 people were prosecuted, and about 1,000 were convicted under this law. The Supreme Court upheld these convictions, but these decisions are now seen as mistakes. Today, free speech protections are much stronger, and criticizing the government is allowed.

First Amendment Protections and Military Jurisdiction

The administration argues that Kelly, as a retired naval officer, has less First Amendment protection. However, the Uniform Code of Military Justice rarely applies to retired members, and the only speech-related provision is Article 88, which prohibits contemptuous words against high-level officials. Kelly's statements were not contemptuous; he simply described the law that governs service members.

The Value of Retired Military Voices

Retired military personnel often provide valuable perspectives on military matters. For example, retired admirals and generals were among the most important voices questioning President George W. Bush's torture program. These officials rarely speak out, but when they do, their voices should be heard, not investigated.

Conclusion

We ask a lot of those who serve our country. The least we can do is respect their free speech rights once they've retired.