AILSA CHANG, HOST:
The Pentagon says it will investigate Arizona Senator Mark Kelly for, quote, "serious allegations of misconduct" after he participated in a video addressing military troops.
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MARK KELLY: Our laws are clear. You can refuse illegal orders.
CHANG: Senator Kelly, who's a retired Navy fighter pilot and NASA astronaut, reminded troops that they swore an oath to the Constitution. He appeared in the video along with five other Democratic lawmakers who had also served in the military or in the intelligence community. Well, Defense Secretary Pete Hegseth called the video, quote, "despicable, reckless and false," and has threatened to have Senator Kelly court-martialed. Meanwhile, President Trump has called the video, quote, "seditious behavior, punishable by death," and even suggested that the participating lawmakers be hanged.
As we await details on the investigation, we wanted to look into what the lawmakers suggested in that video to, quote, "refuse illegal orders." How would that actually work? Well, to help us answer that question, we're joined now by Rachel VanLandingham, a former military lawyer and current law professor at Southwestern Law School in Los Angeles. Welcome.
RACHEL VANLANDINGHAM: Thank you so much for having me, Ailsa.
CHANG: So I've often heard members of the military say to me, they call them orders not requests for a reason. But let me ask you, if an order is illegal, can an active-duty member refuse to follow that order?
VANLANDINGHAM: Yes. If an active-duty member knows that an order is unlawful, they must disobey it, or if they should know it's unlawful - that is, an order to commit a crime. Go shoot those peaceful protesters in Chicago. That is manifestly unlawful. And not only does a military member - should they disobey it, they must disobey it. But they do so, Ailsa, at their peril.
CHANG: OK. Let's explain why it is at their peril. Explain how it would work if a member recognizes that an order is unlawful and decides they will not follow it.
VANLANDINGHAM: Well, then because the military's lifeblood as a hierarchical organization has run on obedience to orders for centuries, there's a presumption that all orders - if issued by a competent authority and that relate to a military duty - that all orders are presumptively lawful. So if a military member disobeys an order, even if it's unlawful, they potentially could be court-martialed for disobedience. They will be vindicated at court by a military trial judge who has the responsibility to decide the legality of the order. But there is a military crime, and actually several related crimes, regarding disobedience of orders. But again, that's disobedience of lawful orders. But the military member then has to show at court that the order they disobeyed was unlawful.
CHANG: In your experience as a military lawyer, how would you characterize the success rate of a member of a military in a court-martial challenging an order that was deemed unlawful by them?
VANLANDINGHAM: Well, it normally doesn't get that far. And one of the most recent cases we've had was a major in the United States Army who didn't want to obey the order to wear the United Nations insignia during the 1990s in a deployment to the Kosovo region, and he challenged that. He worked with his - the military lawyers who said this was a lawful order. His commanders worked with him. And he was eventually court-martialed because he refused to wear the U.N. beret and the U.N. insignia. And it went up to our highest military appellate court, and they said this was a matter of policy; this was not an unlawful order. And his conviction was upheld. So it's - there's not a great success rate. However, there is a duty to disobey an order to commit a crime, such as, kill that detainee in your custody, right? And if the military member follows that unlawful order, they're liable - criminally liable for murder at that point.
CHANG: Wow. OK, well, this investigation into Kelly specifically, it is the latest move by the Trump administration to seek retribution against President Trump's perceived political enemies. But this time, it's the Pentagon not the Justice Department leading the investigation. Why do you think the administration is using the Pentagon instead of DOJ to go after Kelly here?
VANLANDINGHAM: It's part of intimidation and threatening. And because Senator Kelly, you know, who is a war hero, a NASA astronaut and a powerful senator, I think that he is the only one that they could do this against because they're - unfortunately, I think it's unconstitutional, but there are - there is unfortunately UCMJ - military criminal law jurisdiction - over Senator Kelly because he's a retiree. Even reservists when they're not on active duty don't fall under the Uniform Code of Military Justice, but he does as a retiree. And there are numerous crimes - military-unique crimes - that have a greater expanse over freedom of expression. That is, the First Amendment doesn't apply as broadly to those in the military. So I think they're using, or threatening to use - 'cause this is not going to go anywhere.
We have the speech and debate clause, which provides for immunity from civil and criminal prosecution for activities that legislators do as lawmakers, and it provides protection for more than just their activities while they're speaking on the Senate or congressional floor. It has to do with their duties related to being a lawmaker, and Senator Kelly made this video in his duties as a lawmaker. So I think there's a constitutional shield against any kind of criminal prosecution. And the Founding Fathers drafted that clause in order to protect sitting lawmakers from intimidation and harassment by the executive branch through the use of harassing criminal prosecutions.
CHANG: OK, well, putting aside potential legal defenses that Senator Kelly might have, the threat is to have him court-martialed. Let me just ask you, can a retired officer face court-martial for actions after he retires from the military? Has this ever happened before?
VANLANDINGHAM: Yes, it has. And the most recent case in which the constitutionality of that far-reaching jurisdiction was challenged, and it was upheld at the circuit court level, we had a retiree from the Marine Corps that sexually assaulted an American citizen in Japan. The Japanese didn't want to prosecute, and U.S. federal criminal law did not apply extraterritorially to that sexual assault. So the only thing that applied was the Uniform Code of Military Justice's offense of the criminal offense of sexual assault. So the military recalled that retired service member for prosecution. But you can see it's been used as a jurisdictional gap filler, not as a way to intimidate and chill and threaten sitting members of Congress.
CHANG: OK. Well, assuming that Kelly can be court-martialed even though he has retired from the military, based on what Kelly said in this video that we're talking about, is there anything, in your legal opinion, that could justify a court-martial?
VANLANDINGHAM: Absolutely not - Senator Kelly restated accurately the actual law. Military members should and must disobey all orders that they either know are unlawful or should know are unlawful. An order to commit a crime, they should be disobeying. Or an order that they otherwise know is unlawful, they should be disobeying. And so reminding service members of their legal duties is in - under no stretch of anyone's imagination an actual crime.
CHANG: Rachel VanLandingham of Southwestern Law School, thank you very much for clearing all of this up.
VANLANDINGHAM: Thank you, Ailsa.
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CHANG: And just to note, we are speaking directly to Senator Mark Kelly elsewhere on this show.
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KELLY: When I was the commander of the space shuttle especially, I used to tell my shuttle crew members that they were required to question my decisions. It was not optional. And if you think we should be doing something differently, and especially if it affects safety and mission success, you have to tell me about it, and we're going to figure it out together. I don't think Donald Trump has that - you know, an ounce of that instinct in his bones.
(SOUNDBITE OF MUSIC) Transcript provided by NPR, Copyright NPR.
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