WASHINGTON—The Pentagon says it is investigating Democratic Sen. Mark Kelly of Arizona for possible breaches of military law after Kelly joined a handful of other lawmakers in a video that called for U.S. troops to refuse unlawful orders.
In its statement, the Pentagon suggested that Kelly’s statements in the video interfered with the “loyalty, morale, or good order and discipline of the armed forces” by citing the federal law that prohibits such actions.
“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 said.
"All servicemembers are reminded that they have a legal obligation under the UCMJ (Uniform Code of Military Justice) 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," the Pentagon said.
In the video that was posted last Tuesday, Kelly was one of six lawmakers who served in the military or intelligence community to speak “directly to members of the military.”
Kelly told troops, “You can refuse illegal orders,” and other lawmakers said they needed troops to “stand up for our laws … our Constitution.”
Days after the video was released, President Donald Trump accused the lawmakers of sedition “punishable by DEATH” in a social media post.
Chief Pentagon spokesman Sean Parnell also released a statement, saying, “Our military follows orders, and our civilians give legal orders.”
“These politicians are out of their minds,” Parnell added.
Speaking Sunday on CBS’ “Face the Nation,” Kelly said Trump’s words were “very serious” and “carry tremendous weight.” Kelly added that “because of what he says, there is now increased threats against us.”
Troops, especially uniformed commanders, do have a specific obligation to reject orders that are unlawful, if they make that determination.
While commanders have military lawyers on their staffs to consult with in making such a determination, rank-and-file troops who are tasked with carrying out those orders are rarely in a similar position and often have to rely on their superiors.
Broad legal precedence also holds that just following orders, colloquially known as the “Nuremberg defense,” as it was used unsuccessfully by senior Nazi officials to justify their actions under Adolf Hitler, doesn’t absolve troops.