Jan.14

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Unforced Errors, Part II: Mark Kelly

We also understand very well what the administration, in particular Secretary of Toxic Masculinity Defense Pete Hegseth is up to, when it comes to going after Sen. Mark Kelly (D-AZ), and trying to punish the Senator for daring to say that soldiers do not have to follow illegal orders. It's not really about Kelly at all, excepting maybe that he's a war hero and Hegseth and Trump hate him for it because they are both cowards. As with Powell, it's about sending a message. In the case of Kelly, the intended recipients of that message are the active-duty soldiers of the U.S. Armed Forces. They are being reminded, in no uncertain terms, that if they dare to push back against the current military leadership, or they dare to offer any critical comments in public, they might well be brought up on charges, stripped of rank, and maybe booted out of the service.

However, this is another case where we just don't understand the cost-benefit analysis. Active-duty troops are trained to follow orders and to keep their mouths shut while still in the service. And any soldier who decides to disobey an order, whether it's because they find it immoral, or for some other reason, knows full well that's an automatic court martial. So, all Hegseth achieved was to affirm a status quo that would have been the status quo even if he'd ignored the Kelly video and allowed it to fade from memory.

Meanwhile, as we wrote in "Hegseth Goes after Captain Mark Kelly, aka Captain America," there is simply no way that Hegseth and the DoTM DoD can win this thing if Kelly chooses to fight back. Here is a list of the main problems:

• Kelly didn't say anything that was false or seditious. He merely repeated a portion of the Uniform Code of Military Justice. That's not a crime, and is well within his First Amendment rights.
  
  
• Because he is a sitting member of Congress, he probably also has additional free speech protections, under the Constitution's Speech and Debate Clause.
  
  
• The procedure that Hegseth used only applies to actions undertaken while the person was in the service. If bad acts committed while in the service come to light AFTER a person retires, then they can be nailed, as Rep. Ronny Jackson (R-TX) was, to take one example. They cannot be docked for things they do after leaving the service.
  
  
• The procedure that Hegseth used only applies to flag officers. Kelly's highest rank was Captain.
  
  
• If Hegseth actually wants to go after Kelly, it will be necessary to convene a court martial. The problem is that a court martial board would ask pesky questions, like "What law was broken?" and "What is your evidence for that?" Hegseth knows that he has no good answers to those questions, which is why he tried to do this on his own authority.

For an administration that hates to lose, they certainly do pick a lot of fights that are unwinnable, or nearly so.

And it gets worse. Kelly and his wife, former representative Gabby Giffords, are millionaires, several times over, with a household income in the mid-six figures. He's not going to miss the extra retirement pay. However, he has been made into a symbol of a non-politicized military, of freedom of speech, and of resistance to creeping fascism. Plus, anyone who was a Navy captain AND an astronaut is, by definition, a man or woman of action. (As an aside if you are not familiar with military ranks, the Navy has a different ordering than the other branches. A Navy captain has the same pay and equivalent rank of an Army or Air Force colonel. Kelly was not a junior officer.) There was absolutely no chance that he was not going to pick up the gauntlet, and use it to thrash Hegseth upside the neck and head.

And, as of Monday, it's official: Kelly has sued Hegseth, Secretary of the Navy John Phelan, and several other Pentagon functionaries, primarily on the basis that he (Kelly) did not receive due process. That argument is indisputable. The case has been assigned to Judge Richard J. Leon, who is an appointee of George W. Bush, and an experienced jurist, having been nominated to the federal bench on September 10, 2001. For some unknown reason, the Senate did not take up the matter the next day, but the upper chamber did confirm him by a unanimous voice vote a couple of months later. Leon's track record is right-leaning, but also mavericky—the sort of record that you might expect if a younger John McCain became a federal judge. Certainly, the administration should not be expecting a rescue of the sort they might get from, say, Trevor McFadden, who succeeded Leon as a full-time judge when Leon assumed senior status.

Kelly is going to be thrilled to drag this out as long as is possible. Not only does it help the Democratic Party, by reminding people that this administration is often hostile to veterans (and astronauts), but it's also elevating his personal profile, in case he decides he might like to try a move down Pennsylvania Avenue on January 20, 2029. Since Trump, Hegseth, & Co., are not likely to back down, their best outcome, we would say, is that Leon dismisses the case on summary judgment. Then the administration won't have backed down, technically, but it also won't participate in helping to elevate Kelly and his message. We may soon find out if that will come to pass; Leon wants briefs by Tuesday, and may rule by the end of next week. (Z)