Don't expect wide spread treason to break out in the military!

 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.