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.”

Donald Trump and Pete Hegseth cannot handle the truth! Senator Mark Kelly is a national hero who speaks truth to power

An echo opinion essay by David Cole published in The New York Times:  Senator Mark Kelly Is Being Investigated for Telling the Truth.

Senator Mark Kelly is a former astronaut and a retired Navy Captain

On Monday Pete Hegseth, the 🤢secretary of defense, directed the Pentagon to investigate Senator Mark Kelly, a retired Navy captain who flew combat missions during the gulf war and took several spaceflights as an astronaut before he was elected to serve Arizona’s citizens in Congress. His potential crime❓ Telling members of the armed services the truth: that they do not have to follow illegal orders. But saying so is not a crime; it’s a true statement of the law. And even if Donald Trump doesn’t like it, it’s protected by the First Amendment.

In a video released last week, Senator Kelly and several other Democratic lawmakers reminded members of the military that they “can refuse illegal orders.” That’s exactly right. “Following orders” is not a defense if you follow an illegal order to commit a war crime, as Allied prosecutors established at the Nuremberg trials of Nazis after World War II. 

Members of the military have not only the right but the obligation to refuse illegal orders.

The video enraged Trump, who evidently likes his orders followed, regardless of whether they are lawful. On (shitty 💩) Truth Social he called the video “SEDITIOUS BEHAVIOR, punishable by DEATH!” He then reposted another person’s message that said, “HANG THEM GEORGE WASHINGTON WOULD!” 

Now his defense secretary has opened an investigation into whether Mr. Kelly committed a military crime by saying what he did. 

And the F.B.I. followed suit by seeking to question the six lawmakers in the video, all of whom served in the military or the intelligence service. (Mr. Kelly alone is subject to military jurisdiction because he is “retired,” while the others did not serve long enough to be eligible to retire with a pension.)

If anything is lawless here, it’s the investigations. The video itself mentioned no particular orders. On “Face the Nation” Mr. Kelly, a member of the Armed Services Committee, questioned the legality of the orders to kill suspected drug smugglers at sea. But on that point he’s echoing what countless experts in the law of war have said. Even John Yoo, one of the former Justice Department officials who notoriously greenlighted the waterboarding of Al Qaeda suspects, has questioned the legality of the strikes, arguing that “the United States cannot confuse crime with war.”

It’s hard to find anyone outside Donald Trump’s inner circle of solicitous advisers who considers the killings legal. The administration has notably declined to publicly disclose a memo that is purported to advance a legal rationale for the strikes, which have already killed more than 80 people. Even if you are tried and convicted of smuggling drugs, you cannot be executed for that crime alone — much less by summary execution meted out from the air.

The notion that we are at war with drug smugglers confuses a metaphor for reality; the war on drugs is no more an armed conflict than the war on cancer is. In any event, during an actual armed conflict, the laws of war prohibit targeting civilians who are not actively engaged in hostilities against us. Yet instead of conforming the military’s conduct to the law and halting the killings, the Pentagon is now investigating Mr. Kelly, and the F.B.I. wants to question both the senator and his colleagues for doing nothing more than stating what the law is.

We’ve seen something like this before, but it’s not a precedent we should be proud of. During World War One, Congress made it a crime to incite insubordination in the military. 

More than 2,000 people were prosecuted for criticizing the war under this law, and about 1,000 were convicted. Several of these cases made their way to the Supreme Court, which upheld the convictions. Among those convicted was Eugene Debs, who ran for president as the Socialist Party candidate in 1920, while serving his sentence and received nearly a million votes.

In its decisions affirming the convictions, the Supreme Court reasoned, without a shred of convincing evidence, that the speakers posed, as Oliver Wendell Holmes Jr. put it, a “clear and present danger” to the country. One defendant, Charles Schenck, had mailed leaflets to men who had been drafted, criticizing the war and urging them to “assert your rights.” Another, John Frohwerk, was convicted of writing a dozen news articles similarly criticizing the war effort. Debs was sentenced to 10 years for praising imprisoned critics of the war in a speech, among other things.

In none of the cases was any evidence offered that anyone had actually acted upon the criticisms, or that anyone had in fact incited insubordination. The mere possibility of interference with the war was enough.

Those decisions are now viewed as egregious missteps in the interpretation of the First Amendment. 

Today’s free speech doctrine looks instead to the subsequent dissents of Justice Holmes and Justice Louis Brandeis in Abrams v. United States and Gitlow v. New York, which argued that the First Amendment prohibits censoring speech because it criticizes the government, and maintained that “the best test of truth is the power of the thought to get itself accepted in the competition of the market,” not whether it pleases government officials. Years of repression against union activists, communists and civil rights activists ultimately led the Supreme Court to adopt robust protections for free speech on matters of public concern — under which the prosecutions of World War I would all have been invalid.

As a result, it is now clearly established that I cannot be prosecuted for saying, in this essay, “Members of the military have not only the right but the obligation to refuse illegal orders.” Nor could I be prosecuted for stating, as I also have, that the orders to kill suspected drug smugglers are illegal. The First Amendment protects all such statements. Indeed, it protects explicit calls for illegal conduct unless the speech is both intended and likely to incite imminent illegality, a standard rarely met, and one not even approached by Mr. Kelly’s words.

The administration maintains that it can investigate Mr. Kelly because he is a retired naval officer. In other words, because he fought for his country — something Mr. Trump managed to avoid doing — Mr. Kelly has less First Amendment protection than the rest of us. That’s wrong.

It’s true that the Uniform Code of Military Justice applies to retired members of the military. On very rare occasions, retired members have been called up to stand trial in military court for violating the military code. The only code provision that addresses mere speech, however, is the rarely used Article 88, which prohibits officers from using “contemptuous words” against the president and other high-level officials. Nothing Mr. Kelly said was remotely “contemptuous,” which a military judges’ manual defines as “insulting, rude and disdainful.” Mr. Kelly did not even mention the president or any other official; he simply described the law that governs service members.

The fact that Mr. Kelly is a retired officer does not authorize an exception to the First Amendment. While restricting how officers speak about the president may make sense when applied to active-duty officers, where respect for the commander in chief and military discipline are paramount, it makes no sense when applied to a retiree who engages in no military activity and exercises no military authority.

Precisely because those exercising command authority are often limited in what they can say, it’s all the more important to protect the speech rights of those who have retired and can offer their perspective. Some of the most important voices questioning President George W. Bush’s torture program in the war on terror were retired admirals and generals. Such officials rarely speak out on military matters, but when they do they deserve to be heard, not criminally investigated.

We ask a lot of those who put their lives on the line defending our nation. The least we can do is respect their free speech rights once they’ve retired.

David Cole is a visiting professor at Columbia Law School and a former national legal director of the A.C.L.U.

Navy Secretary Richard Spencer is another high level forced resignation - abuse of power!

(CNN) (This is even more wrongbbehavior by Trump! Another example of evidence in the impeachment abuse of power.) 

https://www.axios.com/eddie-gallagher-richard-spencer-navy-seals-b9fb9c20-42f4-416d-b0a6-535544e16a47.html

Defense Secretary Mark Esper "fired" Navy Secretary Richard Spencer for going outside of his chain of command by proposing a "secret agreement with the White House" in the case of Navy SEAL Eddie Gallagher, according to a senior defense official.
Esper on Sunday asked for Spencer's resignation after "losing trust" and "confidence in him," according to a statement from the Pentagon. (Spencer's letter sure exhibits honor.  There is no hint of a loss of trust but, rather, shows courage.)

Secretary of the Navy Richard Spencer was forced to resign because he disagreed with Donald Trump and the Secretary of Defense Mark Esper.

Secretary Spencer on Sunday submitted a letter to President Donald Trump that acknowledged his termination.

Read Spencer's letter below:

Dear Mr. President,

It has been the extreme honor of a lifetime to stand alongside the men and women of the Navy and Marine Corps team in the protection of the American people and the values we all hold dear.

Together we have made great strides over the past two years. strengthening the foundation of our readiness, and bolstering our constellation of allies and partners, to respond wherever needed with the honor and professionalism that have marked our force for the past 244 years. 

Now, more than ever. the United States Navy and Marine Corps stands ready and firm in every part of the globe. fueled at all times by our greatest resource, the men and women who wear the uniform. Many of them will soon miss their Thanksgiving dinners at home so that they can continue the watch beyond the curve of the horizon. They and their families are, and will forever be, my personal heroes. 

As Secretary of the Navy, one the most important responsibilities 1 have to our people is to maintain good order and discipline throughout the ranks. I regard this as deadly serious business. 

The lives of our Sailors. Marines and civilian teammates quite literally depend on the professional execution of our many missions. and they also depend on the ongoing faith and support of the people we serve and the allies we serve alongside. The rule of law is what sets us apart from our adversaries. 

Good order and discipline is what has enabled our victory against foreign tyranny time and again, from Captain Lawrence?s famous order "Don't Give up the Ship", to the discipline and determination that propelled our flag to the highest point on Iwo Jima. 

The Constitution, and the Uniform Code of Military Justice, are the shields that set us apart. and the beacons that protect us all. Through my Title Ten Authority, 1 have strived to ensure our proceedings are fair, transparent and consistent, from the newest recruit to the Flag and General Officer level. Unfortunately it has become apparent that in this respect. I no longer share the same understanding with the Commander in Chief who appointed me. in regards to the key principle of good order and discipline, I cannot in good conscience obey an order that I believe violates the sacred oath I took in the presence of my family, my flag and my faith to support and defend the Constitution of the United States. The President deserves and should expect a Secretary of the Navy who is aligned with his vision for the future of our force generation and sustainment. Therefore. with pride in the achievements we've shared, and everlasting faith in the continued service and fidelity of the finest Sailors, Marines and civilian teammates on earth. I hereby acknowledge my termination as United States Secretary of the Navy, to be effective immediately. 

I will forever be grateful for every opportunity to have served. from my days as a Marine, to the extreme honor of serving as the 76th Secretary of the Navy. My wife Polly and I stand in appreciation and admiration of the patriots who today forge the next link in the unbroken chain of our Navy and Marine Corps, and we urge all Americans to keep them, and their families, in their hearts and prayers through this holiday season and beyond. 

Thank you once again for the opportunity to serve. 

Respectfully yours, Richard V. Spencer