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GOP
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Secretary of Defense Pete "kegstand" Hegseth, formerly an employee of Fox Entertainment, is seeking to demote Capt. Mark Kelly, formerly of the U.S. Navy, a combat veteran and an astronaut, for exercising his First Amendment rights. Kelly retired from the U.S. Navy with the rank of captain and receives a pension commensurate with that rank. A demotion would affect that pension.
Trump and Kegseth... er, Hegseth, are attacking Kelly for a video he and other former military officers now serving in Congress made that reminds all military personnel of their right to refuse illegal orders from their superiors. Kelly said: "Our laws are clear. You can refuse illegal orders." And indeed, the Uniform Code of Military Justice (UCMJ), to which all service members are subject, says that members must obey only lawful orders. The reason for this is that after Nazis were put on trial at Nuremberg, the defense of "I was just following orders" is not a defense. So, Kelly and his colleagues were restating the law and for that, Hegseth has called the action "seditious" and wants Kelly to be punished. Someone should really read him the First Amendment. (As an aside, the others in the video did not retire from the military and so Hegseth doesn't have the same leverage over them.)
The process that Hegseth is using is called a "retirement grade determination proceeding," which determines an officer's rank before they retire, and also determines their pension. This is an administrative proceeding governed by a federal statute, 10 USC section 1370. This means that Kelly can submit a response to the claims and can appeal an adverse decision to a federal court, which is expected within 45 days. And thanks to this Supreme Court, there is no longer the deference that courts have typically shown to agency decisions, so a court can, and probably will, take a very close look at the purported grounds for any demotion.
A military law expert, Eugene Fidell, says the determination can't be reopened for Kelly's speech, and only alleged misconduct committed while serving can be used to determine a rank. We agree with that assessment. From a legal standpoint, there are three obstacles to Hegseth's effort:
Incidentally, some folks are noting that Rep. Ronny Jackson (R-TX) was also retroactively demoted in 2022. Jackson retired from the Navy in 2019, but unlike Kelly, his demotion was based on his misconduct while he was still in the military, which only came to light following a report from a Department of Defense inspector general that found he drank on the job and was abusive to subordinates, among other things, while serving as Trump's medical adviser in his first term. So, this falls under the provision allowing re-opening in cases where "substantial evidence comes to light" that, if known, would have led to a different determination.
Politically, this move is just incredibly stupid. First, Hegseth announced his intention to demote Kelly right before the fifth anniversary of the 1/6 insurrection, which was an example of actual sedition in which Trump took an active role. This administration sits in a huge glass house and should really not be throwing stones.
Second, Kelly was a decorated and respected officer of the armed forces for 25 years, served in combat, and was also an astronaut! As the saying goes, "Don't tug on Superman's cape." The corollary might be "Don't trash an astronaut." There are a lot of voters who are veterans who will not be happy to see a decorated veteran attacked by a punk playing soldier.
Third, Kelly is fighting back and recognizes well the political opportunity this affords him. He may or may not have (vice) presidential ambitions, but this botched attempt to smear him only reminds the public of his years of service, his experience in combat and his expertise, and thus gives him greater credibility and elevates his platform to criticize Trump's current warmongering. Unlike Trump, Kelly has fought in a war and understands what it means to send troops into harm's way, and that to do so as a naked land grab or to make oil companies richer is a dereliction of duty and makes a mockery of our military. Trump has raised Kelly's profile in a way that will only make his megaphone that much louder.
It has always been a mystery that when John Kerry's military record was attacked, he didn't immediately pounce on that opportunity to showcase his service and demonstrate his foreign policy expertise, especially when compared to George W. Bush's refusal to serve. Also odd was that John McCain also gave only a tepid defense of himself when Mr. Bonespurs, er, Trump, went after him. Kelly won't make that mistake. Here is one of the several messages he's already posted to Twitter: "Over twenty-five years in the U.S. Navy, thirty-nine combat missions, and four missions to space, I risked my life for this country and to defend our Constitution—including the First Amendment rights of every American to speak out."
Can the memes of Kelly as Captain America be far behind? (L)