Can the Pentagon recall Sen. Mark Kelly to active duty to face a court-martial?
Can the Pentagon follow through and actually recall Sen. Mark Kelly, D-Ariz., a retired Navy captain, back to active duty to face a court-martial? The potential move comes in response to Kelly’s participation in a video made by Democratic lawmakers to remind servicemembers of their obligations to disobey any illegal orders.
Pentagon v. Kelly
“You can refuse illegal orders,” Kelly said in the video.
Under the Uniform Code of Military Justice (UCMJ), Article 92, service members have a duty to disobey illegal orders.
“The training that the military does in the law of armed conflict really emphasizes the requirement not to obey unlawful orders,” retired Maj. Gen. John Altenburg, a national security law professor at George Washington University and former officer in the Army JAG corps, told Straight Arrow News. “Our people are pretty well steeped in that.”
Despite those former military members simply repeating that law, President Donald Trump responded harshly on Truth Social.
“SEDITIOUS BEHAVIOR, punishable by DEATH!” Trump wrote.
Secretary of Defense Pete Hegseth continued to attack Kelly on social media on Tuesday.
“So ‘Captain’ Kelly, not only did your sedition video intentionally undercut good order & discipline…but you can’t even display your uniform correctly,” Hegseth posted on X, commenting on a picture posted by Kelly.
The FBI also hopes to interview the lawmakers involved.
Kelly has pushed back.
“Donald Trump can try to intimidate me, but it’s not going to work,” Kelly wrote on X. “My job is to defend the Constitution and hold any president accountable.”
Kelly’s campaign was sending out fundraising messages on Tuesday over the matter.
Can Kelly be court-martialed?
In a word, yes.
Kelly retired from the military in 2011. He was the only one in the group in the video who ranked high enough to potentially be recalled for a court-martial.
“High field grade or general flag officers would be the ones that would be brought back on active duty if the crime that’s alleged is serious, and here the crime that’s alleged would be, sedition or supporting sedition or treason, so certainly a serious allegation,” Tom Fleener, partner at Fleener Peterson Law and former U.S. Army JAG officer, told Straight Arrow News.
Kelly’s rank makes him vulnerable to recall.
“You’re still obligated to the military, even after you’re retired,” Altenburg said. “They could recall us at any time.”
That includes potential disciplinary action, although that doesn’t happen often.
“There’s so many hurdles to get through in order to actually bring this person to a trial that it’s a little bit nuts,” Benjamin Gold, associate attorney at Bilecki Law Group and former Naval officer, told Straight Arrow News.
A court-martial works a lot like a trial in the civilian sector.
“There’s a judge, there’s a jury, there’s a prosecutor, there’s a defense lawyer and sometimes more than one defense lawyer,” Altenburg said. “The jury system is a little bit different, but they’re essentially the same. And if you walked into a court martial and you were blindfolded, other than a couple of differences I just mentioned, you wouldn’t notice any difference from being in a federal district court.”
A former military officer being called back to active duty to face disciplinary action isn’t unheard of, but it remains rare.
“It’s extraordinarily rare that someone who’s retired will be brought back on active duty and prosecuted,” Fleener said.
When it does happen, it’s usually for very serious crimes. For example, in 2024, retired Staff Sgt. William Rivers was recalled and sentenced to 108 months of confinement by a military judge for sexual abuse of a minor.
Rivers also had his rank reduced, and the judge imposed a bad conduct charge.
“It’s not a frequent occurrence, but it happens, and the law provides for it,” Altenburg said.
The case against Kelly
The accusations being levied against Kelly are extremely serious, with Hegseth calling Kelly and his colleagues “the seditious six.”
Seditious conspiracy can bring 20 years in prison, while treason can result in a death sentence.
“A servicemember’s personal philosophy does not justify or excuse the disobedience of an otherwise lawful order,” a statement from the Department of Defense reads.
Despite Hegseth and the Pentagon’s push to investigate Kelly, every expert Straight Arrow News spoke with said the case is weak.
“Factually, he didn’t do anything wrong,” Fleener said. “This is pure political theater, and I would be surprised if he was actually brought back on active duty.”
Gold agreed.
“If I were a politician, and I was floating this idea around, I would never float it around in public, like in earshot of anybody who does what I do, or an earshot of anybody who maybe even has abstract thought, right?” Gold said.
Altenburg agrees that Kelly has nothing to worry about, but added that he didn’t like the video.
“I don’t think he committed an offense,” Altenburg said. “On the other hand, I’m disappointed that he said what he said, because I agree with the people who are critical of him, who say that he undermines discipline, and he undermines the chain of command.”
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Ella Rae Greene, Editor In Chief
