Arizona Sen. Mark Kelly is under investigation by the Pentagon for the video message he and other Democratic lawmakers targeted toward members of the U.S. military, where they were encouraged not to follow “illegal orders.”
But while President Donald Trump and the Pentagon are receiving pushback for their aggressive reaction to the video, the Democratic lawmakers’ message has also received criticism for its potentially destabilizing influence on American troops.
In their video directed to members of the U.S. military, the lawmakers told troops their oath is to the Constitution not to a leader and said threats can arise “from within.” Troops were told they must “refuse illegal orders.”
Kelly, who served as a Navy combat pilot as well as an astronaut, made a similar statement to McKay Coppins during a Deseret Voices podcast.
“By the way, you don’t have to follow unlawful orders. That’s true for the military. I think it’s true for federal law enforcement too. Nobody can tell you to break the law,” he said during a segment about Immigration and Customs Enforcement agents.
In response to the Democratic lawmakers’ video, the Department of War said it was investigating Kelly over allegations of misconduct as a former member of the military. The Uniform Code of Military Justice “prohibit(s) actions intended to interfere with the loyalty, morale, or good order and discipline of the armed forces,” the statement says.
Earlier, Trump claimed Kelly and the other lawmakers in the video — Michigan Sen. Elissa Slotkin, and Reps. Jason Crow, Colo., Maggie Goodlander, N.H., Chris Deluzio, Pa., and Chrissy Houlahan, Pa. — were “traitors” guilty of “seditious behavior.”
On Rachel Maddow’s show on MS Now (formerly MSNBC), Kelly said Trump’s response “says a lot more about him than it says about me.” He added that he would not be “silenced” or “intimidated.”
But Kelly and the other Democrats do not claim that any of Trump’s orders issued so far are illegal, leading to criticism that they are implying illegality where there is none, which could lead to insubordination and disarray in the military.
Democrats criticized over video
On several Sunday morning talk shows, none of the lawmakers involved in making the video could point to a specific illegal order given by the president.
In a column for Military.com, Haley Fuller, a former captain in the Marines wrote, “Without context, the phrase “refuse illegal orders” can blur the line between legitimate legal instruction and political signaling. For a system that depends on discipline, clarity and stability, ambiguity is a real problem."
Fuller points out the necessity of maintaining civilian control over the military: “Congress passes laws, the executive directs operations, and the military follows lawful commands. When lawmakers address troops directly about which orders to follow, they can unintentionally disrupt that structure.”
In extreme cases, in countries where civilian control is eroded, military coups or political interference by the military has occurred, which is why strict lines are drawn in the U.S.
Writing for the Free Press, Yale law professor Jed Rubenfeld said the lawmakers’ actions were not “seditious,” and said the lawmakers were engaging in free speech.
But, Rubenfeld said, while not illegal, the video is “potentially misleading and dangerous — not least for servicemen who may see it and act on it."
“Here’s why: Except in obvious cases of illegality, military orders are presumed lawful, and a court-martialed soldier bears a high burden of proof to show otherwise,” he wrote. “If he loses, he’s guilty of disobedience—and that crime is potentially punishable by death. ... A soldier disobeys at his own immense risk.”
Rubenfeld added that he believes the video is misleading “when it says, at one point, that unlawful orders ‘must’ be disobeyed.”
“Military law obliges a soldier to disobey only when an order is 'manifestly unlawful’—so plainly outrageous that there can be ‘no rational doubt’ about its legality, like an order to shoot a small child captured in combat," he said.
Several Republican lawmakers who are veterans issued their own video calling the Democratic lawmakers’ statements “downright dangerous.” The video emphasized the chain of command and pointed out troops who refuse orders are subject to court martial.