Hegseth v. Kelly: It’s Not a Close Call - Rob Horowitz

Hegseth v. Kelly: It’s Not a Close Call - Rob Horowitz

Secretary of Defense Pete Hegseth raising the prospect of calling Senator Mark Kelly (D-AZ) back to active service to court-martial him and ordering an investigation toward that end, all over his participation in a video that told troops they didn’t have to obey illegal orders, was a wild overreaction, taken purely on its own terms.

 

The pliant Secretary of Defense’s decision to go after the decorated navy combat pilot and astronaut at the behest of President Trump, however, looks even dumber in the wake of public reporting that following Hegseth’s orders to “kill everybody,” the Navy conducted an illegal second strike on a so-called drug boat off the coast of Venezuela, killing two survivors who were in the water clinging to the wreckage for dear life.  In other words, now front and center is a contemporaneous example of precisely what Mr. Kelly was warning about.

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Mr. Hegseth singled out Mr. Kelly from the other participants in the video, five other Democratic lawmakers, all of whom served our nation either in the military or the intelligence agencies-- because he is the only one who served long enough to be an officially “retired” military veteran, subject to the Uniform Code of Military Justice and receiving a pension.  Unfortunately for the Secretary of Defense, a broad range of former Judge Advocates General (JAGs) and other experts in military law weighed in, saying that Mr. Kelly did not violate the code. “The video simply described the law as it pertains to lawful versus unlawful orders,” the Former JAGs Working Group said. “It did not suborn mutiny or otherwise encourage military members to disregard or disobey lawful orders issued to them.”

 

As Senator Kelly himself told Rachel Maddow on MS NOW, “The whole thing is almost comical.  …We basically repeated the Uniform Code of Military Justice, and they’re saying that’s in violation of the Uniform Code of Military Justice. It’s absurd.” 

 

In fact, the code spells out that military personnel have an affirmative responsibility to refuse illegal orders.  “I was just following orders” is not an acceptable defense according to our own military standards, as was made plain at Nuremberg, where we rejected Nazi officers' attempts to lighten their punishment by saying they were just following Hitler’s commands.

 

While there are reasonable arguments against the video, including that it could create confusion and division in the ranks, any high ground the administration could have potentially grabbed was lost by their dangerous and authoritarian overreaction. It began with President Trump posting on Truth Social that it was ‘seditious behavior, punishable by death.”  Mr. Hegseth echoed the president, calling the 6 Democratic lawmakers who participated in the video, the “Seditious 6.”  This over-the-top rhetoric, which resulted in the lawmakers requiring round-the-clock security, was then followed by the Secretary of Defense ordering the aforementioned investigation into Kelly, as well as all 6 lawmakers receiving a letter from the FBI informing them that they may be questioned in connection with the video.

 

Taking full advantage of the platform that the secretary of defense’s overreach handed him, Senator Kelly persuasively asserted that President Trump saying that he wanted to use "dangerous" American cities as training grounds for the military as well as the potentially illegal attacks on drug boats off the coast of Venezuela are two examples of the concerns with misuse of the military that led to the decision to produce the video.  Other participating lawmakers have pointed to Secretary Hegseth’s firing of top JAG officers who served as a bulwark against illegal orders being issued. The bipartisan investigations announced by the Senate and House Armed Services Committees in the wake of the news of the likely illegal second strike give further credence to the case for the video in the court of public opinion.

 

The spotlight Mr. Hegseth has created for Senator Kelly is also a big political mistake. It makes a war hero and astronaut, who is credible and knowledgeable on national security matters, the public face of the response to the administration’s questionable use of the military on American soil and in the Caribbean. And it does so under the worst possible circumstances: when he is subject to an investigation and threatened court martial, that all with eyes to see know is unfair and has no basis in military or constitutional law.

 

A contest between the callow Mr. Hegseth, who proves every day that Mr. Kelly’s characterization of him as “totally unqualified” is apt, and Senator Kelly is no contest at all.  It is a public contest that Donald Trump and Pete Hegseth unwisely set in motion.