Kelly v. Hegseth

The National Lawyers Guild's Military Law Task Force has issued this position paper "in defense of Sen. Mark Kelly." Excerpt:

[Pete] Hegseth’s more recent use of  administrative action , threatening to demote Kelly and reduce his veteran’s benefits, is a retreat from earlier threats to prosecute Kelly, for ‘contemptuous speech” under the rarely-used Article 88. When those threats were made, we were confident that a trial was unlikely, given that career military prosecutors are JAGs, well versed in what UCMJ covers. They’d know that the Army Court of Criminal Review ruled in 1969: “As a matter of law, an order of a subordinate which contravenes the Constitution, a federal statute, a presidential executive order, a departmental regulation or other lawful directive of higher authority can have no lawful validity,” (US v Patton, U.S.A.C.M.R. 1969). And a century earlier, the US Supreme Court  pointed out: “A soldier cannot justify on the ground that he was obeying the orders of his superior officer” if “a person of ordinary intelligence would know that obedience would be illegal and criminal.” Dow v. Johnson, 100 U.S. 158, 189 (1879).That same decision adds that “the established principle of every free people is, that the law shall alone govern; and to it the military must always yield.”

 And those JAGs would know that servicemembers and veterans are protected by the First Amendment’s free speech provisions, as  highlighted by the National Institute [of] Military Justice: “Although the military code criminalizes certain types of speech that may affect the military mission, the Senator’s remarks are far from criminal. He simply restated a fundamental principle of military law: service members must obey lawful orders and disobey unlawful orders.”