The following guest post is from my FIU colleague Eric Carpenter; Eric teaches and writes on military law and spent more than a decade in Army JAG and teaching at JAG School.
Can Senator Kelly be recalled to active duty and subjected to a court-martial? Technically, yes. Would he ever be convicted? No. Now let’s get into this.
Here is the basic framework behind this whole thing. Service members must follow orders, and if they don’t, that is a crime. When service members get an order, they should presume that it is lawful, and they run the legal risk of not following it.
If service members don’t follow an order because they think it is unlawful and are then prosecuted for not following that order, the service members can raise the lawfulness of that order in a pretrial motion. The military judge decides whether the order was lawful or not. If the service member loses that motion, they will be found guilty at the court-martial.
Usually this comes up at the rank-and-file level—a lieutenant ordering a truck gunner to open fire on a civilian, for example. One of the tricky and unresolved questions is what if the war itself is unlawful (as the strikes on the drug boats likely are). One military case suggests that the non-justiciability doctrine will kick in and courts will defer to the executive, but the issue has never been framed properly—so we don’t know.
What we just covered is about omissions. The service members didn’t do something that they should have. Next, the issue is what if the service members do something while following orders, but it turns out the order was illegal.
If service members do an overt act, they get the benefit of the defense of orders (basically, immunity from those acts) provided the order was not patently unlawful. If the order falls into the grey zone, service members should presume it is lawful and follow it, and if they do, they get the protection of this defense. They only lose that protection if the order was patently unlawful (like the killing of noncombatants in My Lai).
Service members face real legal risk. If they refuse and the order was lawful (or at least not patently unlawful), they can be prosecuted and will be found guilty. If they follow the order and it was patently unlawful, they can be prosecuted. That sounds like damned if you don’t, damned if you do.
But, because orders need to be followed quickly and we can’t have long discussions about every order, the balance was struck in favor of following those marginal orders and giving service members legal protection for this gray area. Service members only run risk on patently unlawful orders.
In the current context, service members who are ordered to perform law enforcement duties in American cities in violation of the Posse Comitatus Act would face this dilemma. Service members who are ordered to engage drug boats in the Caribbean are in a tough spot (I am not sure if service members or some other government agency is actually pulling the trigger).
If I were advising one of these service members, I would tell them that their safest legal option in those situations would be to follow the orders. It is very unlikely that this administration would then turn around and prosecute them for following the orders, and I’m not sure any subsequent administration would. On the flip side, service members would almost certainly be prosecuted if they refuse. Plus, we don’t even know if courts will review the President’s determination that these actions are legal. My advice might not be the best advice for preserving democracy or the best moral advice, but it would be the best advice for protecting that service member’s liberty.
Now enter the video. Those six elected officials stated the basic rule, but their advice was to refuse to follow the patently unlawful orders. That is likely the best advice for preserving democracy and the best moral advice—and it is also lawful advice. They just stated the legal framework for following orders.
Of the orders that I have seen recently, the drug strikes and the accompanying of ICE on law enforcement raids are likely patently unlawful. But who should bear that risk? I would put it on the administration, with impeachment being the only real accountability mechanism (I think it is likely the President will issue preemptive pardons for these actions, and he is likely himself immune).
Okay, so can the Department of Defense recall Senator Kelly? Yes. Retirees are still subject to the Uniform Code of Military Justice. I am a retired Army officer, and I am subject to the code, even for actions I take now.
What about the crime? The Code has a statute for mutiny (refusing, in concert with any other person, to obey orders with the intent of overriding lawful military authority) and sedition (trying to overthrow the government with force or violence). However, telling service members to follow the law is not mutiny or sedition, or conspiracy to commit the same. While I was on active-duty, I regularly briefed Soldiers on this framework. I wasn’t committing a crime, and neither was Senator or Captain Kelly.
(There is also a mutiny statute that applies to civilians, 18 U.S. Code § 2387, but the other five elected officials don’t have to worry about a federal conviction under that one, either, for the same reason.)
Senator or Captain Kelly should be more worried about Conduct Unbecoming an Officer (any act that is likely to seriously compromise the accused’s standing as an officer) or the General Article, which Secretary Hegseth alluded to his in post and Karoline Leavitt alluded to in her remarks (any act to the prejudice of good order and discipline in the armed forces or of a nature to bring discredit upon the armed forces). These are also both incredible long shots.
I am fairly certain the Secretary Hegseth knows this and that this case won’t go anywhere. There are some odd technicalities, too. The recall authority for Senator Kelly is the Secretary of the Navy. It wouldn’t be unlawful command influence for Secretary Hegseth to order the Secretary of the Navy to recall Senator Kelly, but it would unlawful command influence for Secretary Hegseth to order any subordinate commander to put Captain Kelly on trial. If a subordinate commander does not independently decide to do that, Secretary Hegseth would have to convene the court-martial himself.
I’ll leave it to the pundits to provide reasons for why Secretary Hegseth is doing this. I think there is real damage from all of this, though. There is obvious damage to our constitutional norms. And I fear that putting service members in these gray areas will impact our national security, particularly with our recruiting efforts and with public support for the military. People join our military because they want to do the right thing for our country, not to be put in legal gray areas. The public quit supporting the military during Vietnam because of the perception that the military—from top to bottom—was doing the wrong thing, and that took a decade to repair.