Mark Kelly Is Being
Investigated for Telling the Truth
Nov. 26, 2025
By David Cole
Mr.
Cole is a visiting professor at Columbia Law School and a former national legal
director of the A.C.L.U.
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 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 President 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 Mr.
Trump, who evidently likes his orders followed, regardless of whether they are
lawful. On 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. has 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 Mr. 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 I, 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.
