It’s finally happened.
Some bureaucrat in the Department of War (DoW) didn’t like my columns supporting Admiral Kent Davis against Gov. Kay Ivey’s wrongful and spiteful firing of him. Accordingly, in future columns, I will identify myself as Airman Basic John Eidsmoe.
Just kidding, but not entirely. The right and duty of retired military personnel to speak is very important, and it is protected by the First Amendment.
Which brings me to DoD Sec. Pete Hegseth’s effort to demote Sen. Mark Kelly (D-Ariz.) and reduce his pay. Kelly, a retired Navy captain (O-6), joined five other legislators in releasing a video in which they warned military personnel that the Trump administration was “pitting our uniformed military and intelligence community professionals against American citizens,” advising soldiers that they have a right and duty to “refuse illegal orders.” They released this video when the administration was engaged in airstrikes against alleged drug smuggling boats in the Caribbean and deploying the National Guard into cities to restore law and order in the face of riots and crime.
Hegseth claims Kelly’s comments were “seditious,” encouraging troops to disobey orders, and he began steps to lower Kelly’s Navy rank and reduce his retired pay. He claimed Kelly violated the Uniform Code of Military Justice (UCMJ) Article 88 (Contempt Toward Officials), Article 92 (Disobeying Orders), Article 133 (Conduct Unbecoming an Officer and a Gentleman), and Article 134 (Conduct Prejudicial to the Good Order and Discipline of the Armed Forces). At first, he talked about recalling Kelly to active duty so he would face a court-martial but later decided on administrative demotion.
U.S. District Judge Richard Leon issued a preliminary injunction blocking this action against Kelly, ruling that it violated Kelly’s right to freedom of speech and “threatened the constitutional liberties of millions of military retirees.” Hegseth is appealing to the Circuit Court.
Let me clarify where I stand. I voted for Trump three times, and I support his efforts to make America great again. I also respect Hegseth and appreciate all he’s doing to rebuild our military.
If I were an Arizona voter and the only choices on the ballot were Kelly and a fire ant, I’d vote for the fire ant regardless of party affiliation.
But in high-level government actions, we must look to the long-term consequences, remembering that constitutional decisions are two-edged swords that can cut both ways. With some reluctance, I must conclude that the federal judge in this case is probably right.
Retired military personnel are subject to the UCMJ, and the Department of Defense has the authority to discipline and punish them for violations, including demotion in rank and a consequent reduction in retired pay. That could include charges under Articles 92 and 134 if Kelly had, in fact, encouraged soldiers to resist or disobey lawful orders.
But that’s not quite what he said. He said Trump is pitting soldiers against American citizens. That’s an opinion – a wrong opinion, but an opinion nevertheless. And he said soldiers may “refuse illegal orders” – and that is correct. Soldiers do have a right and sometimes a duty to disobey illegal orders. As we saw at Nuremberg and in subsequent cases, obedience to orders is no defense to charges of crimes against humanity.
But Kelly didn’t specify what, if any, orders of the president are illegal and should be disobeyed. He and his colleagues may have sneakily implied that these deployments are illegal and that soldiers should refuse to comply, but he didn’t expressly say so – careful, clever, cunning, and utterly disgusting, but probably within his First Amendment rights. The DoD would be on shaky ground if it were to base its case on what Kelly might have implied by his words.
Yes, retired soldiers have First Amendment rights. The Constitution protects them as it protects all others, and they have earned that protection by risking their lives for their country.
Furthermore, the country needs to hear their voice. With their training and experience, retired military personnel have much to contribute to the national debate on many issues confronting our nation. Retired soldiers and sailors have served in our legislatures, our courts, and even in the presidency. We need their input, not just the input we agree with.
As the Supreme Court held in Parker v. Levy (1974), the Constitution protects active-duty personnel, although the standard for analyzing that protection may differ because of military necessity. A good soldier will tell his commander (respectfully) when he believes the commander is wrong, and a good commander will listen even if he does not agree.
At age 80, I have labored for more than six decades in the trenches of the culture wars. As a culture warrior, I salute Trump as my commander-in-chief, for he has done more than any other person in the last century to arrest America’s descent into socialism, permissivism and secularism.
But as an old soldier, I would be remiss in my duty if I did not tell my commander when I think he is wrong. And in this instance, I think he and Hegseth are wrong. Sometimes the best way to handle critics is to ignore them. Hopefully Kelly will retire or be retired from the Senate in 2029 and will have a long retirement as a captain during which he may repent of the error of his ways.
And, assured of First Amendment protection, I will go on to the next battle.
Airman Basic Colonel Eidsmoe serves as Professor of Constitutional Law for the Oak Brook College of Law & Government Policy (obcl.edu), as Senior Counsel for the Foundation for Moral Law (morallaw.org), and as Chairman of the Board of the Plymouth Rock Foundation (plymrock.org). He lives in rural Pike Road, Ala., and may be contacted for speaking engagements at [email protected].
The views and opinions expressed here are those of the author and do not necessarily reflect the policy or position of 1819 News. To comment, please send an email with your name and contact information to [email protected].
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