In a move that has drawn sharp criticism from both sides of the political aisle, Democratic Sen. Mark Kelly of Arizona told reporters Tuesday that the Pentagon’s expanding inquiry into his remarks urging troops to refuse unlawful orders is a deliberate attempt to silence dissent within the armed forces.
The Investigation
The Defense Department confirmed late Monday that Defense Secretary Pete Hegseth’s office had elevated a preliminary review of Kelly to an official command investigation citing “serious allegations of misconduct.” Command investigations are typically reserved for allegations that do not rise to the level of criminal charges, and it is uncommon for them to be applied to a retired service member, let alone a sitting member of Congress.
Kelly said the department never informed him of the probe, arguing that “what they really care about is the public message.” He added that the investigation is part of a broader effort to deter “retired service members, active duty service members, government employees – do not speak out against this president or there will be consequences.”
Background: The Video and Boat Strikes
The probe follows a November video in which Kelly and other lawmakers-Sen. Elissa Slotkin, Rep. Jason Crow, Rep. Chris Deluzio, Rep. Maggie Goodlander and Rep. Chrissy Houlahan-addressed U.S. troops directly. In the clip, Kelly told soldiers that “you can refuse illegal orders,” while the others urged troops to “stand up for our laws … our Constitution.” The lawmakers, all of whom served in the military or intelligence community, said the message was released amid a campaign of U.S. strikes on boats suspected of smuggling drugs in the Caribbean Sea and eastern Pacific Ocean.
President Donald Trump had earlier accused six Democratic lawmakers of sedition “punishable by DEATH” after the video appeared. Hegseth noted that Kelly is the only one of the six who formally retired from the military and remains under the Pentagon’s jurisdiction, claiming that “Kelly’s conduct brings discredit upon the armed forces.”
The administration maintains that the strikes are aimed at curbing narcotics flow and that the U.S. is engaged in an “armed conflict” with drug cartels. The issue of illegal orders gained further attention after a follow-up strike killed two survivors clinging to a wreckage, an act some legal experts and lawmakers say contravened the laws of war.
Legal and Procedural Aspects
Kelly’s attorneys sent a letter to the Pentagon this week asserting that “there is no legitimate basis for any type of proceeding” and that “any such effort would be unconstitutional and an extraordinary abuse of power.” They argue that the executive branch cannot prosecute a member of Congress.
Legal experts have said Kelly did nothing illegal and that the Pentagon may be misreading military law. Todd Huntley, a retired Navy captain and judge advocate general, explained that if Pentagon officials truly believed Kelly’s actions warranted a court-martial, the inquiry would likely have been handed to the Naval Criminal Investigative Service. He added that “It’s a realization that they are not going to be able to court-martial him and that is what this is setting up is some sort of administrative action.” Huntley suggested the most probable outcome is a non-punitive letter of censure, which would have little effect since Kelly is no longer on active duty.
The Defense Department also said it could recall Kelly to active duty for court-martial proceedings, a move that would be unprecedented for a retired congressman.
Reactions
Kelly rejected the claims by Trump and the Pentagon, saying he upheld his oath to the Constitution. He declared, “They’re trying to shut people up,” he said Tuesday. “But in this case, they picked the wrong guy. So I’m not going to shut up about this.”
Hegseth’s office maintains that Kelly’s statements interfered with the “loyalty, morale, or good order and discipline of the armed forces” under federal law.
Key Takeaways
- Sen. Mark Kelly is under a Pentagon command investigation for urging troops to refuse unlawful orders.
- The probe follows a November video where Kelly and other lawmakers addressed soldiers amid criticism of U.S. drug-boat strikes.
- Kelly’s lawyers argue the investigation is unconstitutional and that no criminal basis exists.
The situation underscores a growing tension between the Trump administration’s defense policy and congressional oversight, as well as the limits of military authority over a retired member of Congress.
