Sen. Mark Kelly's case -- is there a "there" there?

Prof. Ryan Burke writes here on the case of Senstor Mark Kelly. His cconclusion:

[A]fter all the noise, we are left with the same conclusion: there is no there, there. No legal order actually at issue. No sedition. No Article 88 violation. No singular statement that can be traced to Senator Kelly as a standalone call for misconduct. Just a spliced, multi-voice video and a sprawling overreaction.

The Pentagon would do well to step out of this self-created fog and return its focus to matters that actually threaten the country. Because this is not one of them. This is, once again, much ado about nothing – the latest entry in a growing catalog of Pentagon follies that never should have escaped the cutting room floor.

Except for the suggestion that this is much ado about nothing, it's hard to disagree. But the implications of Secretary of Defense Pete Hegseth's vendetta again Sen. Kelly are far from nothing. The implications for free speech, whether by senators or retirees, are grave.

Where should this case be tried (this time it's Burkina Faso)?

There's a dispute in Burkina Faso over whether a case currently in civilian court really ought to be in the military court. Details here. Not quite sure we follow, but this is what was argued:

"In this case, you are dealing with a common law offense committed by members of the military." Secondly, the defense counsel pointed out that the events occurred during the soldiers' regular duty. "They were on a security mission at the Palace Hotel in Ouagadougou," he maintained. In light of the aforementioned elements, the legal question that arises is whether the law reserves jurisdiction over this type of case to another court.

To address this, Mr. Minoungou cited the law governing the military justice code, specifically Article 34, which stipulates, among other things, that military courts have jurisdiction over offenses committed by military personnel. "This case falls under the jurisdiction of the Military Court," he concluded. He noted that in 1994, members of the gendarmerie were not subject to the jurisdiction of the Military Court, according to Article 41 of the military justice code. Following this date, particularly with the law of July 4, 2017, Article 41 was repealed.

In 2023, the defendants' counsel continued, a law was passed amending the military justice code. "But this law did not address the jurisdiction of the Military Court regarding cases involving gendarmes... One cannot choose to bring a matter of employee dismissal before the Criminal Court. Similarly, a land dispute will not go before the Military Court. In this particular case, the matter does not fall under the jurisdiction of the criminal chamber of the Regional Court," he concluded.

The offense occurred in 2020. Does that suggest a problem? 

Summary court-martial: British legacy in the Indian military legal system

Summary courts-martial were a part of post-1857 mutiny reforms in India. It never existed under the British military legal system. Historically, they owe their origin to the Punjab Irregular Forces which came into prominence after the 1857 mutiny. It was found that the Punjab Irregular Forces, which were under the Local Government, were far more disciplined as compared to the regular forces. The Irregular Forces, created in 1851 to protect the NW frontier of British India, were not under the Commander-in-Chief and were also not subject to Native military law in the British India. The reason for this was traced to the paramount position secured to commanding officers who were allowed to deal promptly and directly with military offenders and enforce discipline among the troops commanded by them. Such officers often held drum-head court-martial and passed sentences and inflicted punishments on them in the way in which a general officer commanding in the field across the frontier exercised extraordinary powers (under military commissions) over persons who were not amenable to military law. The system was associated with the name of Colonel Coke, who, while Deputy Commissioner of Kohat, raised and commanded the 55th Coke’s Rifles. It had come into existence through the then frequent union on the frontier of the functions of Deputy Commissioner, Political Officer, and Military Commandant in the same person. The combination of power enabled the commanding officer to award the punishment to a military offender and thereafter to issue a warrant for the execution of the sentence which was respected by the civil and prison officials as emanating from him in his civil and magisterial capacity.

It was realized during the post-Mutiny reforms that to strengthen the hands of commanding officers, similar summary powers must be given to them to discipline the Native regular forces. With this object summary powers were first introduced by Act No. VI of 1860 and continued under Articles 81 and 82 of the Act XXIX of 1861. In these two Acts, it was stated that a trial under these Articles shall be deemed a Court Martial and the words “court martial” in the Articles of War shall be deemed to include a commanding officer/detachment commander holding a trial. The term summary court-martial was formerly used under Article 72 of the Act of 1869. The Indian Articles of War (Amendment) Act XII of 1894, categorized the summary and summary general court-martial as “extra-ordinary courts-martial,” while general, district and regimental courts-martial were termed as “ordinary court-martial.” 

Questions about Chilean military justice reform bills

On May 4, 2026, the full Supreme Court of Chile approved reports on bills that would alter that country's military justice system. You can find the reports here and here. This press account indicates, unfortunately without precision, some of the court's concerns (cleaned-up Google translation):

The bill seeks to reform and update the Code of Military Justice in accordance with international standards, with the objective of adapting current regulations to fundamental guarantees and the needs of the country. This effort responds to the need to maintain a specialized system for judging matters pertaining to military justice while ensuring consistency with democratic principles and advances in human rights.

To that end, the measure primarily involves two major reforms: those that relate to the organic part of the Military Justice Code and those that modify procedure, without prejudice to introducing a new statute of rights for accused military personnel.

The reform is commendable since it seeks to update military regulations in accordance with international recommendations received by the State. Furthermore, there is a clear trend toward aligning the military legal framework with the principles and norms governing criminal procedure reform.

However, the bill raises concerns that need to be reviewed.

From a procedural perspective, a more exhaustive and comprehensive regulation of the principles governing precautionary measures is needed, as well as the grant of jurisdiction to military courts over crimes that are not part of the military legal system.

From an organizational perspective, the jurisdiction of military courts over common law crimes warrants review because it constitutes a potential intrusion into the civilian justice system. The same can be said regarding the centralization of military justice, which may raise concerns about efficiency and workload.

Finally, the explicit establishment of the protection remedy in all cases where this action has been brought in favor of individuals against illegal and arbitrary acts or actions carried out by the military authority is open to criticism. This expansion of the jurisdiction of courts-martial could generate significant concerns, as it threatens the historic jurisdiction of ordinary courts to the detriment of potential victims of violations or threats to their fundamental rights.

Amnesty International statement on Pakistan's misuse of military courts

Amnesty International has issued this statement on Pakistan's use of military courts to try civilians:

On the first anniversary of the Supreme Court of Pakistan’s ruling that trials of civilians by military courts are constitutional, Isabelle Lassee, Amnesty International’s Deputy Regional Director for South Asia, said:

“The Supreme Court’s 2025 decision has fundamentally undermined the right to a fair trial and the right to liberty in Pakistan. Such courts flout virtually every protection guaranteed under international human rights law.

“A civilian before a military court is first subjected to a secret trial without procedural safeguards, conducted by army officials that lack independence and impartiality. If convicted, they are denied the right to appeal, despite orders by the Supreme Court that this protection be guaranteed. Those serving convictions, including 9 May protesters still serving their sentences and activists such as Idris Khattak, are being deprived of the right to have their convictions and sentences independently and impartially reviewed. They are not given access to the court’s reasoned judgements and, in many instances, they have not been provided with any written order at all, as part of a deliberate tactic to prolong their unlawful detention.

“Amnesty International calls on the Pakistani authorities to end this injustice by banning military trials of civilians and overturning all unlawful civilian convictions by these courts. Authorities must ensure that all those convicted are provided with a meaningful right to appeal to a competent, independent and impartial tribunal.”