After Senator Kelly's comments on military orders

Eugene R. Fidell, Steven J. Lepper and William D. Baumgartner, Military Law on "Contemptuous Words" Should be Reformed. Just Security, 13 March 2026.



From the article.

Last month, in a scathing opinion, federal district court judge Richard J. Leon, an appointee of President George W. Bush, ordered Hegseth to cease efforts to punish Kelly for exercising the freedom of speech. Judge Leon concluded that while the speech of active duty military personnel may be constrained in certain circumstances, no such limitations exist for military retirees. In language certain to reverberate in the White House, Pentagon, and Congress, the judge silenced Hegseth for trying to silence Kelly:


Defendants respond that Senator Kelly is seeking to exempt himself from the rules of military justice that “Congress has expressly made applicable to retired servicemembers” Horsefeathers! While Congress has chosen to apply the Uniform Code of Military Justice to military retirees as well as active-duty servicemembers, that choice has little bearing on the scope of First Amendment protections for retirees. The First Amendment “is a limitation on the power of Congress,” not the other way around!

Anyone reading this ruling – including us – must now ask whether Article 88 can or should continue to extend to retired military officers.

On the one hand, it could be argued that Article 88 is too narrow because the mischief it seeks to deter can be committed by military personnel who are not commissioned. Thus, if the goal is to set a proper example for subordinates and to respect the dignity of the offices and legislative bodies protected by Article 88, one would think that warrant, noncommissioned (NCO), and petty officers – particularly senior or “staff” NCOs and petty officers (pay grades E-7 through E-10) – also ought to come within its sweep.

On the other hand, it could be argued with at least equal force that no substantial purpose is served by subjecting retired officers to the free-speech-suppressing effects of Article 88. Judge Leon pointed out that retirees “are not fully immersed in the ‘specialized society’ of the active armed forces.” He continued, “Speech from retired servicemembers—even speech opining on the lawfulness of military operations—does not threaten ‘obedience, unity, commitment, and esprit de corps’ in the same way as speech from active-duty soldiers” (emphasis in original).

Academic Freedom and U.S. JAG Schools

Some reports have surfaced of academic activities at U.S. JAG schools that would raise questions about academic freedom had they occurred in civilian institutions. 

Here are three examples. First, I spoke with one officer who was urged to not pursue an academic paper topic at one of the JAG schools because the viewpoint expressed was misaligned with JAG Corps preferences. 

Next, I heard from an expert last year who was invited, then disinvited, from speaking at a JAG school, while a second speaker whose views were more consistent with those of the administration was not disinvited to the same event. No reasons were given, leaving the disinvited expert to suspect that it is because he had expressed views critical of the current administration. 

Finally, a few years ago, a civil society organization I am president of, the National Institute of Military Justice, was invited, then disinvited, from an academic event at a service JAG school. Again, no reason was given for the disinvitation except that higher-ups had ordered it, leaving us to conclude that it was based on our viewpoints on certain topics that are not always in lockstep with those of JAG leadership. 

Is this a First Amendment issue? Federal courts interpreting the Free Speech Clause ordinarily apply the very high standard of strict scrutiny when the government discriminates based on the content of speech or the viewpoint of the speaker. In the examples above, the circumstantial evidence seems strong that the government was discriminating based on the viewpoints of the speakers. 

However, an exception to the high scrutiny given to content-based restrictions comes from the government speech doctrine. If the government is merely expressing its own views (government speech), then there is no restriction on speech at all, so strict scrutiny is avoided. Courts could find that the government speech doctrine applies to service JAG schools' selections of which speakers are heard and which topics their (also government) students can write about. And because the JAG schools are military schools, courts could also draw from precedents such as Parker v. Levy that are more deferential to speech restrictions in military contexts.

While some viewpoint plasticity can be expected in the JAG schools from adminisration to administration as priorities change, have the JAG schools now gone too far? 

There could be an issue with accrediting bodies. The American Bar Association has standards requiring its member institutions to adhere to standards of academic freedom, with the most pronounced exceptions available only for religious institutions. At least one service JAG school, the Army's in Charlottesville, Virginia, is ABA-accredited. 

Perhaps a stronger argument for JAG school academic freedom is the self-interest of JAGs to engage in robust debate over issues surrounding national security, and not just conform curricula to the political priorities of the current administration. When senior lawyers and officials in the George W. Bush administration unlawfully authorized and condoned detainee torture, JAGs were among those who courageously resisted. Had the service JAG schools not been able to openly debate these issues as they were occurring, this resistance may have been less likely to surface. 

A policy of academic freedom would mean that on several of the most pressing issues the military faces today--the use of National Guard forces in U.S. cities, Article 2(4) of the UN Charter and the crime of aggression, the weight and meaning that should be afforded to Office of Legal Counsel opinions--JAG schools could deepen their students' appreciation of the issues through robust debate. To limit speakers and paper-writers to only expressing only pro-administration viewpoints may ultimately leave JAGs less prepared to perform their duties. 

Price-gouging in Egypt

Under the category of "now I've heard everything," Egypt is considering giving military courts jurisdiction over civilian price-gouging. Of course.

Excerpt:

Egypt President Abdel Fattah al-Sisi said on Friday he has instructed officials to study the possibility of referring those who manipulate commodity prices to military courts, describing the current economic climate as a “state of near-emergency.” 

Speaking during an Iftar event organised by the Egyptian Military Academy, Sisi warned against the exploitation of global and regional circumstances to raise prices or manipulate the needs of the public. “Rest assured that, by the grace of God, we are fine,” the president said, while urging citizens to continue exercising responsibility and understanding based on study and facts.

An afterword about the Fat Leonard case

Rear Admiral Bruce Loveless, USN (Ret) (and now Ph.D.), has written this gripping account of his experience as one of the erstwhile defendants in the ultimately cratered "Fat Leonard" case. This is essential reading from a perspective one rarely sees.

"It Takes Two to Tango"

Who knew?

But that's in the title of a recent University of Amsterdam doctoral dissertation by Bas van Hoek. The full title is It Takes Two to Tango: A Legal Analysis of the Dual Oversight Regime Governing the Use of Force by the Netherlands Armed Forces. You can find it online here. The author offers five recommendations:

The assessment of the legal oversight system against the international legal framework shows that parts of the system are inadequately designed, meaning the system’s effectiveness cannot be sufficiently guaranteed. To improve the effectiveness of the legal oversight system with respect to the use of force by the Netherlands armed forces so that it conforms more adequately to the rule of law, considering the obligations and standards set by international law, the following recommendations can be put forth.

• Develop a vision about accountability, in the meaning of legal oversight, in military operations and link it to the concept of command and control. Communicate this vision in education and training, particularly to officers and non-commissioned officers, and set it down in writing. The notion of accountability deserves at least a reintroduction in military doctrine with an explanation what is meant by this.
• Consider revising the policy within the MOD and the PPS of investigating every incident involving civilian casualties. Develop a policy that clarifies the interplay between LOAC and HRL as regards the substantive norms on the use of force and its impact on the obligation to investigate the use of force. This policy should also address how this affects the use of both the military accountability mechanism and the law enforcement mechanism.
• Consider developing a basis in law for the fact-finding investigation conducted by the RMC under the authority of the PPS. Doing so involves establishing rules on the purpose Chapter 7: General conclusions 171 of the investigation, the use of coercive powers, the position of military personnel under investigation, the position of victims or next-of-kin, and the relationship with disciplinary and criminal investigations.
• Examine whether the concept of ‘just culture’ can be applied to the military accountability regime.
• Develop a protocol between the MOD and the PPS on coordination and cooperation in investigations into the use of force.