By Phil Stewart and Idrees Ali
WASHINGTON, Nov 24 (Reuters) – The Pentagon has threatened to call back U.S. Senator Mark Kelly, a retired Navy captain, to active duty to lead a prosecution against him due to what they described as seditious behavior. Kelly, a former astronaut and decorated veteran, denies any wrongdoing and stated he will not be intimidated.
In a recent video, Kelly joined five other Democratic Congress members with military backgrounds, urging U.S. troops to refuse any unlawful orders. His message was particularly timely as concerns grow among Democrats and some military officials about the Trump administration’s orders for military strikes against suspected drug traffickers in Latin American waters.
The Pentagon argues that these strikes are justified since they view drug smugglers as terrorists.
The Pentagon has stated it is looking into “serious allegations of misconduct” against Kelly. While it hasn’t specified what charges could be brought, U.S. Defense Secretary Pete Hegseth accused Kelly and the other lawmakers of sedition on X.
“The video made by the ‘Seditious Six’ was despicable, reckless, and false,” Defense Secretary Hegseth tweeted. “Encouraging our warriors to disregard their Commanders’ orders undermines good order and discipline.”
President Donald Trump has also accused Kelly and his fellow Democrats of sedition, stating on social media that this crime could warrant the death penalty.
Under the Uniform Code of Military Justice, sedition and mutiny are serious offenses that can carry severe penalties, including death.
Kelly responded to the threats in a statement, mentioning that he became aware of Hegseth's comments through social media. He highlighted his service record, which includes 39 combat missions during Operation Desert Storm and four space shuttle flights with NASA.
“If this is meant to intimidate me and others in Congress from doing our jobs and holding this administration accountable, it won’t work,” Kelly said. “I’ve sacrificed too much for this country to be silenced by bullies who care more about their own power than upholding the Constitution.”
The threat against Kelly follows a recent shakeup at the Pentagon, where several senior U.S. military officials, including the chairman of the Joint Chiefs of Staff and the head of the Navy, have been dismissed.
This potential move against Kelly might also serve as a warning to those recently let go, who have remained quiet since their departures.
DOES KELLY HAVE A STRONG LEGAL CASE?
Rachel VanLandingham, a former Air Force attorney now teaching at Southwestern Law School, said she has never seen lawmakers forced back into military service involuntarily, and that Kelly would likely have a solid legal case for a preliminary injunction since no probable cause has been presented.
“He has strong legal standing to say ‘Absolutely not. I’m not going to do this,’” VanLandingham explained. Hegseth’s public comments could undermine any military prosecution efforts since they reflect undue command influence, potentially impacting Kelly's chance for a fair trial.
Prosecuting Kelly could also raise issues regarding free speech rights and the separation of powers outlined in the U.S. Constitution. However, Brenner Fissell, a professor at Villanova University School of Law, noted that Kelly may be at some legal risk.
According to Fissell, Kelly does not have the protections afforded by the Speech and Debate Clause, which shields legislators from repercussions for statements made on the floor of Congress. “If they’re serious about charging him with mutiny or sedition, they would likely pursue pre-trial detention if they believe it’s a serious offense,” he added.
This situation highlights another instance of the Trump administration taking action against perceived political opponents. Since returning to the presidency in January, Trump has occasionally suggested imprisoning his adversaries, and his Justice Department has targeted critics like former officials John Bolton and James Comey.
A federal judge dismissed charges against Comey earlier this week.
The Pentagon has reminded all retired service members that they could be recalled at any time, emphasizing that members must obey lawful orders under the Uniform Code of Military Justice.
The Pentagon stated, “All servicemembers are reminded that they have a legal obligation under the UCMJ to obey lawful orders and that orders are presumed to be lawful. A servicemember’s personal beliefs do not excuse disobedience of a lawful order.”
(Reporting by Phil Stewart and Idrees Ali; additional reporting by Tom Hals, Patricia Zengerle; Editing by Chizu Nomiyama, Alistair Bell, and Bill Berkrot)