Weekly Opinion Editorial
MUTINY
by Steve Fair
U.S. Senator Mark Kelly, (D-AZ) is a retired
astronaut and former naval captain.
Kelly flew combat missions during the Gulf War before he was selected as
a Space Shuttle pilot in 2001. His wife
is former U.S. Representative Gabby Giffords, who was shot in 2011 during a
campaign event in Tucson. Kelly, 61, is
an identical twin and his brother, Scott, is also a retired astronaut. Kelly was elected to the Senate in 2020 in
his first campaign for elective office.
Kelly, along with five other Democratic members of
Congress, recorded a video, accusing President Trump of "pitting uniformed
military" against Americans. All
six of the Ds are military veterans or former intelligence officials. In the video, Senator Kelly declared, "Our
laws are clear: You can refuse illegal orders."
Based on their statement advising military
personnel to disobey orders, President Trump ordered Secretary of Defense Pete
Hegseth to launch an investigation into what he described as 'seditious
behavior.'
On Meet the Press Sunday, Kelly said: “This
president thinks he can bully and intimidate people, and he is not going to,
he’s not going to stop me from speaking out and holding him accountable for the
things that he does that are wrong and unlawful." Three observations:
First, military officers are required to follow
orders. That is the cornerstone of
military discipline. Under the Uniform
Code of Military Justice (UCMJ), Article 92, service members must obey lawful
orders. All military orders are presumed lawful. The
burden falls on the service member to establish that an order is manifestly
unlawful. This is a high standard, and hesitation or refusal can carry serious
consequences. If military officers can
pick and choose which orders they follow, the chain of command breaks down and
chaos reigns.
Senator Lindsey Graham, (R-SC) has sharply
criticized the remarks by Kelly and the other five. Graham says their call to disobey direct orders
as, "unnerving, unconscionable, and the most irresponsible thing he has
seen from Members of Congress."
Graham is a retired U.S. Air Force Judge Advocate General (JAG).
Second, military personnel's First Amendment
rights are restricted. Military service
members do not completely give up their First Amendment rights during their
time in the service. But those rights
are significantly limited due to the unique nature of military service and the
need for discipline and order. While they retain constitutional rights, speech
and other activities can be restricted if they threaten military order,
loyalty, morale, or mission effectiveness.
Over 50% of military personnel do not declare
political Party affiliation. That
percentage is even higher among officers.
Avoiding partisanship and political activities is intentional in the military. A key norm of the U.S. military is to remain
politically neutral and serve the Constitution and elected officials,
regardless of party affiliation.
Third, only the courts determine a legal or
illegal order. The only way to determine
whether an order is legal or illegal is for a service member to obey, or refuse
to obey. Then after the fact, a military
court, a civilian court reviewing a military decision, or a war crimes or human
rights tribunal will decide if it violated the Constitution. Service members are subject to the UCMJ and
as such obey or disobey any order at their peril. That is one of the risks of enlistment. Disagreeing with an order doesn't mean it is
illegal.
Before military members start usurping authority,
they should read USMJ 10 U.S. Code § 894 - Art. 94. Mutiny or Sedition. The punishment for mutiny is severe. A person
found guilty can be sentenced to death or another penalty decided in a
court-martial.
Was Kelly and crew's remarks inciting sedition? Were the Ds encouraging military members to
rebel against the authority of the commander in chief? If so, they should face the full wrath of the
law, but this is more political theater than mutiny. It is sensationalism and puffery designed to
stir up the liberal base. Don't expect
wide spread treason to break out in the military. They recognize a circus when they see it.