The Department of Defense has threatened to recall Sen. Mark Kelly (D-Ariz), a retired Navy veteran, back to active duty to face a possible court-martial or administrative measures a week after he and five other lawmakers issued a video urging troops not to obey orders that violate the law or Constitution.
“Our laws are clear; you can refuse illegal orders,” Kelly said in the Nov. 18 video. The video also featured similar statements from other members of Congress, often blending together statements between speakers. The other speakers were Sen. Elissa Slotkin (D-Mich.), Rep. Chris Deluzio (D-Pa.), Rep. Jason Crow( D-Colo.), Rep. Maggie Goodlander (D-N.H.), and Rep. Chrissy Houlahan (D-Pa.).
Neither Kelly nor the other lawmakers in the video directly accused President Donald Trump or members of his administration of issuing “illegal” orders.
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Trump and members of his administration have sought to portray the statements of the lawmakers as “seditious.”
On Monday, the Pentagon issued a statement saying it had received “serious allegations of misconduct” against Kelly, whom it described as a retired Navy captain rather than a currently serving senator.
“In accordance with the Uniform Code of Military Justice, 10 U.S.C. § 688, and other applicable regulations, a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures,” the statement says. “This matter will be handled in compliance with military law, ensuring due process and impartiality. Further official comments will be limited, to preserve the integrity of the proceedings.”
The statement also tells service members that they are legally obligated to obey lawful orders, and that all orders are presumed to be legal.
“A servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order,” the statement says.
Task & Purpose has reached out to Sen. Kelly’s office for a response to the Defense Department’s statement.
Article 2 of the Uniform Code of Military Justice, or UCMJ, allows the military to recall service members to active duty to face legal proceedings if they are receiving retirement pay, said retired Marine Lt. Col. Colby Vokey, who is now a civilian attorney who represents service members.
However, case law on this matter is very murky, and if the military tries to recall Kelly, he can challenge the move by arguing in court that the Pentagon does not have jurisdiction over the alleged offense, Vokey told Task & Purpose on Monday.
Defense Secretary Pete Hegseth posted on social media that Kelly is the only one of the six lawmakers who is still subject to military law.
“Five of the six individuals in that video do not fall under @DeptofWar jurisdiction (one is CIA and four are former military but not ‘retired’ so they are no longer subject to UCMJ),” Hegseth posted on X on Monday. “However, Mark Kelly (retired Navy Commander) is still subject to UCMJ—and he knows that.”
Read the Pentagon’s full statement below:
The Department of War has received serious allegations of misconduct against Captain Mark Kelly, USN (Ret.). In accordance with the Uniform Code of Military Justice, 10 U.S.C. § 688, and other applicable regulations, a thorough review of these allegations has been initiated to determine further actions, which may include recall to active duty for court-martial proceedings or administrative measures. This matter will be handled in compliance with military law, ensuring due process and impartiality. Further official comments will be limitedw to preserve the integrity of the proceedings.
The Department of War reminds all individuals that military retirees remain subject to the UCMJ for applicable offenses, and federal laws such as 18 U.S.C. § 2387 prohibit actions intended to interfere with the loyalty, morale, or good order and discipline of the armed forces. Any violations will be addressed through appropriate legal channels.
All servicemembers are reminded that they have a legal obligation under the UCMJ to obey lawful orders and that orders are presumed to be lawful. A servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order.
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