In November, Senator (and retired Navy Captain) Mark Kelly and five other members of Congress released a video directed to members of the armed forces, stating, “you must refuse illegal orders.” President Donald Trump claimed this was “seditious behavior, punishable by death.” Recently, Secretary of Defense Pete Hegseth censured Kelly, aiming to reduce his rank and its commensurate pension.
First, let’s be clear. It is not sedition. This argument falls apart immediately. Members of the military are subject to the Uniform Code of Military Justice (UCMJ), part of Title 10 of the U.S. Code.
Sedition is defined as acting with “intent to cause the overthrow or destruction of lawful civil authority” and creating, “in concert with any other person, revolt, violence, or other disturbance against that authority.” The keyword in Kelly’s case is “lawful.” At no point did Kelly et al. encourage anyone to disobey lawful orders. They specifically reminded military servicemembers they can refuse non-lawful orders. Their statements are simply a summary of the law, although couched with political speech. Furthermore, the 2015 (updated 2023) Department of Defense Law of War Manual Chapter 18 Section 3 states, “Each member of the armed services has a duty to: (1) comply with the law of war in good faith; and (2) refuse to comply with clearly illegal orders to commit violations of the law of war.” The manual provides an example, “Orders to fire upon the shipwrecked would be clearly illegal.”
The Trump Administration clearly understands there was no sedition (nor mutiny) here. The other five members of Congress, not subject to the UCMJ, are not being prosecuted under civilian sedition laws. Kelly is the only one within Hegseth’s potential grasp.
Hegseth’s recent censure of Kelly accuses him of Conduct Unbecoming An Officer and Violating Good Order And Discipline (less serious parts of the UCMJ and more open to interpretation). But this argument equally falls apart: How is it unbecoming or against good order and discipline to remind those in uniform of their duties and obligations? If the act of informing servicemembers that it is their duty to disobey illegal orders is punishable under the UCMJ, then every basic training drill sergeant and every instructor of officer trainees must also be censured.
What is truly disturbing is that Hegseth served as an Army officer. Every servicemember is taught this basic principle. In my case, I learned it in year two of Army ROTC, as part of the mandatory curriculum for cadets training to become commissioned officers. It was still in the curriculum over 15 years later when I taught ROTC to the next generation of future officers. Without doubt, Hegseth was taught this, too. He also earned his commission through ROTC. Furthermore, he was taught this at the Infantry Officer’s Basic Course. I know, because I was taught it at the Armor Officer’s Basic Course, which had the same curriculum requirements regarding the Law of War (as does every other Officer’s Basic Course in the Army).
Michael Szalma is a retired Army officer and an Orlando resident. (Courtesy photo)
This action against Kelly is purely retribution for political speech. This is dangerous because it violates the First Amendment and possibly violates the Speech and Debate Clause of the Constitution protecting Congress members’ speech. Both are key to our democracy.
There is another danger. Those who exit the military often continue their public service in different capacities. Threatening retirees’ ranks and pensions, which took a lifetime to earn, has a chilling effect. Do we really want a country in which our bravest, who also have real-world leadership experience, decide not to become our civilian leaders? Would America be better off having had no Presidents Washington, Monroe, Jackson, Truman, Eisenhower, Kennedy, or Reagan?
Michael Szalma is a professor of history at Valencia College.