In late November 2025, the Pentagon announced it had opened a formal review into allegations of misconduct against Senator Mark Kelly, a retired U.S. Navy captain. The review concerns a video Kelly helped produce — together with five other former military or intelligence officials — in which the lawmakers urged U.S. service members and intelligence personnel to “refuse illegal orders.” The Pentagon’s statement said the allegations are serious and that it is considering further action, including possibly recalling Kelly to active duty for court‑martial or other administrative measures under the military code.
The heart of the matter, from the Pentagon’s perspective, is that Kelly — as a retired officer — remains subject to the Uniform Code of Military Justice (UCMJ). The Department emphasized that actions “intended to interfere with the loyalty, morale, or good order and discipline of the armed forces” are prohibited, and that encouraging troops to defy orders — absent a specific, manifestly illegal order — threatens that discipline. The Pentagon described Kelly’s statements as potentially bringing discredit upon the military.
In the video — posted publicly last week — Kelly and the other lawmakers did not specify particular “illegal orders.” Instead they framed their message broadly: reminding troops of their constitutional oath, and urging them to uphold the law and Constitution should they face orders they believed to be unlawful. Other lawmakers in the video included members who served in the military or intelligence community but who are not retired, and therefore — according to the Pentagon — fall outside the UCMJ’s jurisdiction. This has made Kelly the sole target of the defense‑department review, at least for now.
Senator Kelly responded defiantly. He said his comments merely restated established legal principles: that service members should not follow manifestly illegal orders, a concept long recognized in military law. He rejected the investigation as political intimidation, asserting that he would not be silenced for exercising oversight of the administration. The move, Kelly argued, undermines free speech and the ability of lawmakers — including those with military experience — to address issues of legality, ethics, and the Constitution.
Legal scholars and commentators highlight the extraordinary nature of the Pentagon’s action. It is virtually unprecedented for the military to threaten a sitting member of Congress — especially one who is retired but not on active duty — with recall and court‑martial.Some experts warn that subjecting an elected official to military discipline could undermine constitutional protections and violate the separation of powers by subjecting legislative speech to executive‑branch control. On the other hand, precedent does exist: in recent years, courth‑martial of retired service members for post‑retirement offenses has become more common — though rarely applied in politically charged contexts.
The broader implications of this review are significant: it touches on civil‑military relations, the limits of dissent within armed forces, and how political speech by former servicemembers might be regulated under military law. Some see the review as an overreach and a dangerous precedent that threatens democratic norms. Others argue that the military’s cohesion and discipline must be protected, especially given ongoing controversial orders by the administration — for example, involving overseas strikes or domestic deployments. Regardless of outcome, the case is likely to provoke a constitutional showdown over whether speech by retired—but still UCMJ‑subject—officers can be criminalized when it involves urging potential disobedience.
