The Pentagon has announced that it is investigating Democratic Sen. Mark Kelly of Arizona regarding possible breaches of military law when the former Navy pilot joined other Democrats in the recent video calling for troops to defy “illegal orders.” A federal law allows retired service members to be recalled to active duty on orders of the Secretary of War for possible courts martial. Kelly’s statements in the video may have interfered with the “loyalty, morale, or good order and discipline of the armed forces…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.
Ethics Alarms already explained what was unethical about the video. It was a cheap political stunt, unethically implying that what had not occurred and will not occur had occurred or was in danger of occurring. It was clever, Machiavellian and, as the late Harry Reid would say, “It worked!” The stunt lured Trump into behaving like an ass, overstating the issues involved, and giving the Axis more metaphorical sticks to beat him with. Even with the admissions by some of Kelly’s co-conspirators that they didn’t know of any illegal orders by Trump that justified the “public service announcement,” it still was a net public relations loss for the President, who doesn’t need any more of them. Now Pete Hegseth is joining the botch. Terrific.
Observations:
1. Haven’t Republicans heard of the Streisand Effect? Making such a fuss over the video is just guaranteeing that it stays in the news, along with the typically biased and inflammatory news coverage, like “Trump calls for EXECUTION of members of Congress!” Hegseth’s investigation could be justified, but with an irresponsible and partisan news media, there is no chance, none, that the public will understand the issues involved. With those as the conditions that prevail, the announcement of the investigation is incompetent.
2. No, for Kelly, a member of the military community, this is not necessarily protected speech. Obama and Trump fired generals for theirwords, and the question here is whether a “wink-wink/nudge-nudge” statement of military policy can be punished for its intent and implications rather than the speech’s substance. I think it’s a close call, and not worth exploring considering the political costs.
3. The message itself was unethically incomplete. Soldiers aren’t usually experts in military law, and the decision to defy an order of any kind, but especially one from the Commander in Chief, comes with serious risks. There will be a court martial, and in such a proceeding, the military tribunal’s presumption will be that the order in question was legal. The burden of proving otherwise is on the defendant. An ethical video would have explained that, but actually informing troops about their duties regarding illegal orders wasn’t the point of the video. The point was to both impugn and troll President Trump.
4. Once again, I am reminded of my father’s position that the so-called Nuremberg rule was hypocritical in the extreme. As in the post-Civil War Andersonville Trial of the Confederate officer running an infamous prisoner-of-war camp, the only U.S. legal precedent for trying opposing soldiers for “war crimes”,”” before the Nuremberg Trials, German officers were tried and punished for not doing what American soldiers wouldn’t have done in similar circumstances. My father had standing to make that observation as a WWII officer who had refused to follow several illegal orders, as he explained in his memoirs.
5. The assumption is that the Democrats’ video was a swipe at the military’s attacks on Venezuelan boats allegedly running drugs into U.S. waters. Republicans are probably furious at themselves for not thinking of this stunt themselves, when President Obama was ordering drone strikes on American citizens (and terrorists) abroad without due process. Those orders were definitely illegal but, again, having a partisan press corps is a great advantage for Democrats.
6. I just checked: Althouse had a post on this issue yesterday, and as is frequently the case on her blog, she posted the facts without taking any position on the issue herself, leaving her commenters to slug it out. I don’t approve of that practice. She’s the bloggress: it’s her job to present her analysis, not just start a fight.
Ethics Alarms 
President Trump, the consummate troll, got bested by his own game and fell for the same trap he has laid so successfully on Democrats numerous times since he took office in January. The correct response would have been “blissful derision”, laughing at the Democrats and telling them “nice try…do better next time.” Obviously, we have the advantage of 20/20 hindsight, seeing how the President reacted. But still, he has gobs of people in his corner. Somebody with “convincing power” had to have seen this. Maybe someone tried to reveal the game, and the President was just too self-absorbed to listen. I don’t know…
Even the best players get played once in a while.
And in all likelihood, the relationship between Trump and the other side is so poisoned now that neither side can just “step back” from anything any longer. Everything is a battle royal.
Politics stink…and stupid politics really stink.
Hegseth’s investigation could be justified, but with an irresponsible and partisan news media, there is no chance, none, that the public will understand the issues involved. With those as the conditions that prevail, the announcement of the investigation is incompetent.
Wouldn’t putting this position into practice render anything the current administration might do incompetent?
Good point.
OB.
Before I read your comment I was starting writing Goebbels statement about a lie told once and one told a thousand times.
A corollary to that is a claim or insinuation without a vociferous rebuttal is seen as proof for the claim or insinuation.
I have no problem with Trump calling out these individuals but he could have done it better by addressing the military directly and calmly. He could have in an understated way that explain that officers who make the suggestion that his orders might be illegal should first take their concerns to a JAG officer who will reinforce the proper protocol. He should also point out that failure to follow the chain of command can have disastrous consequences for the soldier who feels it necessary to ignore orders.
The Streisand effect works both ways. Captain Kelly and Slotnik are being justly condemned by career military officers and to a lesser and indirect degree the Sunday shows. Your point above is spot on.
Do you have a link?
I cannot give you a specific link because I am hearing the comments from a number of military personnel on WMAL and other news outlets. Two that come immediately to mind are General Jack Keene and Colonel Curt Schlicter. Another was a 30 year JAG officer who called into a talk radio broadcast who roundly condemned the video. Most of those that I know from the military see the video as a means to undermine the chain of command.
I doubt if it was specifically aimed at the enlisted men but rather the senior officers who would ignore orders that come from the president. Had they just had a meeting of those officers they would have been conspiring with the military to engage in a coup de tat. That is why they did not go that route. Secondly, Slotnick is an ex CIA analyst that knows how to undermine governments through the effective use of propaganda. Each participant in the video repeats the claims to drive it into your head that you have a duty to reject orders you feel are illegal.
It is hard to see this as a public service when Slotnick used the “Code Red” example from the movie A Few Good Men, Nuremberg and Mai Lai as predicates for the need.
On She stated that the President was using “legal gymnastics” to use lethal force against the drug runners but given that the last declared war was WW2 I have to ask why do we believe that we can only be in a war against those dressed in uniforms and shooting bullets or dropping bombs. If you want to undermine the ability of the US to defend itself using narcotics to kill or at a minimum disable personnel seems like a reasonable strategy
as a veteran I disagree. The previous administration court martial’ed a colonel for commenting adversely on the Afghanistan clusterfuck. He was sentenced and served time in prison. He is currently working for the Sec War as a policy advisor.
Hegseth is working to restore the military to its original purpose, which requires discipline and honor.
Kurt Schilling is the name, on my phone atm.
oops,
https://www.marinecorpstimes.com/news/your-marine-corps/2021/10/06/lt-col-stuart-scheller-charged-with-6-ucmj-violations/
will not occur had occurred or was in danger of occurring
You can’t possibly know that.
Of course I do. Because 46 out of 46 Presidents for 250 years have never ordered the military to act illegally to the extent that the military would be justified in refusing. Men don’t get elected President who would do that or even consider doing it seriously. The presumption otherwise is the Trump Deranged belief that this POTUS is evil. It’s a destructive and stipid position, with no evidence to support it whatsoever.