Retired Captain Mark Kelly USN, now a United States Senator will prevail against the wrong minded prosecution by Pete Hegseth

Echo opinion published in the Boston Globe:

Why evil Pete Hegseth’s case against Mark Kelly is doomed to fail.
The bid to demote Kelly isn’t just wrongheaded, it’s unlawful, unconstitutional, and emblematic of a lawless Pentagon. By Eugene R. Fidell

Eugene R. Fidell, is a former judge advocate in the US Coast Guard, and a senior research scholar at Yale Law School.

When the history of the second Trump administration is written, a sizable chapter will have to be devoted to the wreckage experienced by the armed forces during Pete Hegseth’s tenure as secretary of defense.

With three years to go, it’s already a darkly colorful saga, including the firing of judge advocates general, the Signalgate compromise of classified information, and the reenactment of a scene from “Patton” with hundreds of admirals and generals flown in at taxpayer expense for the mother of all photo ops at Quantico, the homicidal boat strikes in the Caribbean and eastern Pacific, the attack on Venezuela, and, currently, the threat to demote Senator Mark Kelly, a Democrat from Arizona, based on his participation with other federal legislators in the widely-viewed unlawful-orders video.

Each of these episodes shines a light on the Trump administration’s indifference to the rule of law. The Quantico photo op wasted money and time but did not kill anyone (at least directly). Signalgate put on display Hegseth’s lack of basic qualifications to lead the armed forces. Well over a hundred people have been unlawfully killed in the boat strikes so far, including at least two who qualified as protected shipwreck survivors, while dozens more died during the mission to apprehend Venezuelan strongman Nicolás Maduro and his wife, Celia Flores.

The Captain Kelly case hasn’t raised life-or-death issues, but it raises others that strike at the heart of free speech in a democratic society as well as the rule of law within the armed forces.

Hegseth has issued a letter of censure to Kelly and has set in motion a process that could lead to Kelly, who retired as a Navy captain in 2011, being demoted to commander, with a corresponding reduction in his retired pay. Hegseth’s theory is that the unlawful-orders video violated the Uniform Code of Military Justice’s (UCMJ) prohibitions on conduct unbecoming an officer and conduct that is prejudicial to good order and discipline or of a nature to bring discredit on the armed forces. In his view, the video was seditious.

This Hegseth effort is entirely absurd and bears all the hallmarks of an effort to stifle free speech.

The governing Act of Congress — Section 1370 of title 10 of the US Code — provides that military personnel may be retired only at the highest grade in which they served satisfactorily, and that if evidence of misconduct comes to light after retirement, a post-retirement grade determination may be made, leading to demotion on the retired list.

But section 1370 is perfectly clear that it applies only to misconduct that occurred while the retiree was on active duty. 

As a result, Hegseth is barking up the wrong tree by trying to reduce Kelly’s retired rank. Kelly has every right to contest any reduction in his retired grade, either in federal district court or in the US Court of Federal Claims. I predict that he will win and be awarded attorneys fees to boot.

But the problems with Hegseth’s plan go beyond this basic statutory problem. Specifically, nothing in the video on which the letter of censure rests is in any way illegal under the Uniform Code of Military Justice. Kelly and the others who participated in it merely restated the settled principle that military personnel have a duty to follow only lawful orders. That is not some vague policy: It is in the statute. Moreover, their comments were protected speech under the First Amendment. This is not rocket science. If any federal court were to address the question, it would so hold and set aside Hegseth’s letter of censure as well as any grade reduction.

The Captain Kelly case points to a larger issue that Congress should address: Why does the Uniform Code of Military Justice even apply to retirees in the first place❓ Military justice must be limited to personnel who are on active duty and reservists who are actually performing drills. Except for those who happen to have been recalled to active duty, military retirees should not be subject to the military code, a point on which the Supreme Court has never squarely ruled, although lower federal courts have unwisely upheld that practice. Congress should seize the opportunity presented by Captain Kelly’s case to repeal the code’s provision allowing jurisdiction over retirees, not only for him but for all of the thousands of military retirees who have earned their retirement.

If Captain Kelly counseled sedition or otherwise violated the UCMJ, as Hegseth has wrongly insisted, his case should have been referred to a general court-martial so he could defend himself in a proper court of law. The administrative route Hegseth’s department has elected to follow reveals an awareness that it is skating on thin legal ice. He owes Kelly an apology. As Kenny Rogers’s song “The Gambler” advises, “you’ve got to know when to hold ’em, know when to fold ’em.” Legally speaking, Hegseth's action is “a train bound for nowhere.” A good time to “fold ’em.”