Pentagon threatens to court-martial Democratic senator over 'refuse illegal orders' video

The Department of War announced Monday that it has opened a formal review into allegations of misconduct against Democratic Sen. Mark Kelly of Arizona over a video calling on service members to "refuse illegal orders."

The Pentagon said it may even call Kelly, a retired Navy captain, back to active duty to face court-martial proceedings or other administrative actions under the Uniform Code of Military Justice. 

"This matter will be handled in compliance with military law, ensuring due process and impartiality," the department said, adding that further comments will be limited to protect the integrity of the proceedings.

TROOPS RISK COURT-MARTIAL IF THEY FOLLOW DEMOCRATS’ ‘ILLEGAL ORDERS’ ADVICE, FORMER MILITARY LAWYERS WARN

The statement also underscored that military retirees remain subject to the UCMJ and reminded servicemembers that "orders are presumed to be lawful" and must be obeyed. The department cited federal statutes, including 18 U.S.C. § 2387, which prohibits attempts to undermine the loyalty, morale, or discipline of U.S. forces.

"The Department of War reminds all individuals that military retirees remain subject to the UCMJ for applicable offenses," the statement read. "A servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order."

Even though Kelly left active service years ago, the Pentagon could, if it determines his actions violated the code, bring him before a military court.

Such recalls are rare and typically reserved for serious criminal conduct, such as espionage, sexual assault, or fraud. Still, precedent exists. In United States v. Dinger (2018) and United States v. Larrabee (2020), military appellate courts reaffirmed that retirees receiving pay remain under the UCMJ’s jurisdiction and can be tried for offenses committed after retirement.

If the review concludes that Kelly’s comments constituted conduct "to the prejudice of good order and discipline" or a violation of U.S. code, which prohibits encouraging disloyalty or insubordination among the armed forces, he could face recall to active duty for a formal court-martial. Punishments under those statutes can include forfeiture of pay, confinement, or dismissal from service—though such outcomes are extraordinarily rare for political figures.

Any proceedings would likely provoke a constitutional showdown over whether speech made in a political context can be subject to military law, even by a retired officer.

While many lawmakers have served in the armed forces — and several have remained in the reserves while in office — there is no historical record of a sitting U.S. senator or representative being recalled to active duty for disciplinary action.

 This is a developing story. Please check back for updates.