Writes David Cole, in "Mark Kelly Is Being Investigated for Telling the Truth" (NYT)(gift link, so you can read the whole thing, including the part that rejects the idea that Kelly has less free speech because he's a retired member of the military).
November 26, 2025
"[I]t is now clearly established that I cannot be prosecuted for saying, in this essay, 'Members of the military have not only the right, but the obligation, to refuse illegal orders.'"
"Nor could I be prosecuted for stating, as I also have, that the orders to kill suspected drug smugglers are illegal. The First Amendment protects all such statements. Indeed, it protects explicit calls for illegal conduct unless the speech is both intended and likely to incite imminent illegality, a standard rarely met, and one not even approached by Senator Kelly’s words...."
Posts
86 comments:
He's subject to the UCMJ.
Cole is playing the same game all the other defenders of the infamous video are playing: It's just a public service announcement. It has no deeper meaning. You can't arrets people for making public service announcements!"
They fool no one, though many who find it useful will pretend to be fooled. Will they get arrested? I don't know how that will go, but the standards for censure and court marshal are quite different, whether Cole wants to admit that or not.
Only under the speech and debate clause that doesnt apply here
I took the remarks as addressed to the trannies and queers in the military though, its politcal faction.
I can respect and follow his argument so far as Mark Kelly goes. Why isn't that same argument applicable to the various speeches and conversations that Trump has had, speech for which they wanted to imprison him for the rest of his life.
§894. Art. 94. Mutiny or sedition
(a) Any person subject to this chapter who-
(1) with intent to usurp or override lawful military authority, refuses, in concert with any other person, to obey orders or otherwise do his duty or creates any violence or disturbance is guilty of mutiny;
(2) with intent to cause the overthrow or destruction of lawful civil authority, creates, in concert with any other person, revolt, violence, or other disturbance against that authority is guilty of sedition;
(3) fails to do his utmost to prevent and suppress a mutiny or sedition being committed in his presence, or fails to take all reasonable means to inform his superior commissioned officer or commanding officer of a mutiny or sedition which he knows or has reason to believe is taking place, is guilty of a failure to suppress or report a mutiny or sedition.
Captain Mark Kelly (USN ret.) potentially violated the UCMJ.
Capitol punishment or legal abortion? All's fair or self-defense? Social justice, perhaps.
The implication of his speech is a clear and progressive call to insurrection.
The sedation aspect is because he IMPLIES the President of The United States sanctions such illegal orders.
And the attack on the drug boats follow the MONROE DOCTRINE ( U.S. foreign policy established in 1823 that warned European powers against further colonization or intervention in the Western Hemisphere. It declared the Americas closed to European influence, while the U.S. promised not to interfere in European affairs. Over time, the doctrine's interpretation evolved to justify U.S. intervention in Latin America, most notably through Theodore Roosevelt's Corollary. )
So Trump has issued no illegal orders.
Perhaps Cole is correct, but perhaps for members of Congress to exhort the military to disobey orders that they merely believe to be unlawful sinks below free speech into a different, lawless realm. Either way, despite the delusions of TDS, it was unseemly and dangerous.
No he isnt correct and his firm represents terrorists likr the 20th hijacker and the benghazi attack planner now you know
They can say that all they want, it is even mostly true. Calling out the Democrat Party's propaganda campaign smearingTrump's legal behavior and legal orders is the point here. Ask them, "What was an illegal order Trump has issued?" and the answer will be, as already has been reported, that they know of no illegal orders being issued. To hell with them.
It's just a public service announcement. It has no deeper meaning. You can't arrets people for making public service announcements!
Screws fall out all the time, the world is an imperfect place.
I don't really care about the First Amendment aspect here. I care about the fact that these idiots did something utterly reprehensible. I posted the following on X. I believe this is the real issue:
"Everyone in the military is EXPLICITLY trained to disobey CLEARLY unconstitutional or illegal orders. At the same time, they are also trained to assume the orders they are given are legal and that they are duty bound to follow them. There is an inevitable tension then between these two obligations. The point is, however, that NO US soldier needs to get this simplistic and breathless blather from a bunch of lawmakers whose partisan opposition to the president is palpable."
What was an illegal order Trump has issued?
Blowing up boats and killing the crews when they pose no threat to the military.
they know of no illegal orders being issued.
To know of illegal orders being given while making those public statements is to go behind making an innocuous public service announcement.
I would go so far as to say the media questions to which they publicly disavowed knowing of any illegal orders were purposely staged to bolster their defense after the fact.
’Blowing up boats and killing the crews when they pose no threat to the military.’
So the military exists only to defend threats against itself? Interesting…
David Cole, a/k/a David Stein has a history of saying things that are not true and later recanting. He can be amusing, and I remember chuckling at his essays in Takimag. He is quite the gadfly with a reputation of being a "Holocaust denier," whether that is accurate or (as he says) not. I can only wonder why the NYT thought his opinion was worthwhile. Could it be his anti-Trumpian stance? Something to ponder while I contemplate whether the sun will seem to rise in the east tomorrow.
God bless America.
There's hope for us yet...
Never let anyone intimidate you into silence.
Subversion.
Military code of conduct has the definition.
It's real easy to figure this one out. Just switch the parties involved, and imagine what they'd be saying.
As far as recalling Kelley to active duty, there is plenty of precedence.
We all know what taunting is - we learn that on the playground as kids. We also learn how effective it is too, goading others into misbehavior. They are taunting the President and goading the military. When you make a ceremony of something, and omit highly relevant context - specifics like 'this order is illegal' or 'all orders are presumed legal in theater', then you are using the tactic of glaring omission to imply more.
The military has been conditioned since Obama to accept more and more of what used to be considered as 'conduct unbecoming', behavior and activities that are antithetical to military disciple and readiness.
We all know what they did. Would anybody like to say why they think the government is out of line, by scrutinizing such an unusual PSA to the degree that it makes the actors highly uncomfortable? Even if it makes them suffer from focus of official intention, while they figure out what exactly was meant?
Military preparedness and effectiveness depends on order. They have just damaged that by implying that military orders, instead of being presumed legal, are now subject to individual reviews of conscience before acting on them. That helps our enemies.
People miss the fact the Venezuelan government is directing the narcotics trafficking, creating a narco-state attacking US citizens.
That elevates this activity above mere crime.
Theses leftist-democrats ran their language by their lawyers. The word "Illegal" gets them off the hook. That said - Mark Kelly is probably guilty of Subversion.
(Not treason)
might i suggest?
that the Democrat Party return to an old symbol of theirs?
Now that Pennies have been discontinued; the Democrats could cut out the middle of the penny, and use that symbol to mark their resistance to the way things are going.
They've done ALL this before, might as well reuse the old symbol
Another stupid show with untalented actors. I'm wondering who the producers are.
If Biden critics had put out a similar video, it would have been touted as a call to insurrection. Although, the Supremes are yet to be heard on whether or not one could insurrect against an auto-pen.
all were silent when it came to the magic potion.
Eric Daugherty on X: "🚨 BREAKING: It's been revealed that a nonprofit linked to George Soros is fomenting sedition within the military around the same time a "script" went out to Democrat members of Congress urging rebellion within the ranks against President Trump. There are also links to ANTIFA. https://t.co/1S4roMD4Vk" / X https://share.google/QolZ7v0HNS7pLs74O
The point is, however, that NO US soldier needs to get this simplistic and breathless blather from a bunch of lawmakers whose partisan opposition to the president is palpable."
----------
If they are indeed as well trained as you say, they are smart enough to take the advice, right?
Chelsea Manning was right to speak out, in what she saw. Maybe not to steal and smuggle out secrets, but imagine what went down in the prosecution of the Cheney/Bush wars even the law profs were cheering on back in the day. (something about their patriotic coffee-making parents serving the world and inculcating loyalism in them to help them along in their careers and all. Like trying on religions for advancement too... "go along to get along, little children.")
After Gaza, it's only time before the US drones and military are justifying the killing of unarmed civilians, women, children and elders too. For profit, not because they legitimately threaten us...
Somewhere along the line, life got really cheap in America. Of course no one opens their eyes to it until an innocent close to them suffers, it seems. Open your eyes and defend the innocent, America. These things always come home here when we worship weapons/guns over laws/justice.
God bless us all.
I wish Trump would hold back his emotional outbursts. he ends up handing the assholes on the left a cudgel to beat him with.
This video's sole purpose was to place the CIC in harms way. period.
Althouse delayed post on this story tells me she knows the answer.
Not merely see above
People miss the fact the Venezuelan government is directing the narcotics trafficking, creating a narco-state attacking US citizens.
People "miss the fact" because it isn't a fact at all. It falls soundly in the realm of bullshit.
Even if you believe that the Venezuelan government is indeed sponsoring drug gangs, the contention that these boats are carrying fentanyl or even headed to the U.S., is bullshit.
The US would do itself a big favor by following the lead of more determined countries and stripping Soros of his citizenship, declare him 'persona non grata' Hungary figured him out a long time ago and took action.
I don't get the attempts to apply the First Amendment to this situation, other than it's simply throwing sand in the same way it's thrown in many cases when people want to avoid the consequences of their words. Am I wrong in thinking that when the relationship between the speaker and the government is more or less one of an employer and employee (member of the military in this case) that the government has the same rights to police conduct and speech as any other employer according to the policies laid out in documents the speaker has agreed to (UCMJ)? How could any restrictions on political activities of government employees be valid if this was not the case?
Its his apparat like spectre, which is involved
The US would do itself a big favor by following the lead of more determined countries and stripping Soros of his citizenship
On what grounds? For exercising his first amendment rights?
It's all so tiresome
The more likely consequence of the Democrats' "public service announcement" con isn't just that some personnel will actually disobey orders but that many of them will start to CHALLENGE orders. What kind of morale, readiness, and ability to quickly initiate missions will our military have if every dumb gadfly/Inga-type there starts demanding to know if their imminent mission is "lawful"? What next, a lawyer in every platoon?
No, this isn't civilian free speech, it's a strategy to encourage challenges to all superior officers' orders. "Challenge-delay-pissoff" is their objective. And, yes, it will definitely damage military morale, readiness, and operational effectiveness. Pretty much what an enemy of this country would want to happen.
The US government with all its assets at the president’s discretion knows more about the Venezuelan government than the Trump critics. I take Trump at his word on this matter.
How could any restrictions on political activities of government employees be valid if this was not the case?
Because representatives and senators are part of the legislative branch, not the executive branch. By definition, they are supposed to be partisan.
Servicemembers do not enjoy all the rights as the rest of US citizens and retired officers are subject to recall for their actions by the military if they have not resigned their commission. Most retired officers retain their commission in retirement because it increases their retirement pay.
Political animals like Kelly will throw military members under the bus in 3 minutes if it will benefit their side. Kelly is using military members as pawns in his political games and he should not be trusted. He does not respect them at all.
Ann’s a self described proponent of free speech…except here. Get your own blog…
I take Trump at his word on this matter.
And yet he has provided absolutely zero evidence to back up his claims.
NYT's defends Democrat. Shocking. Since DoD hasn't charged Kelly with anything, why even talk about it. Military personnel don't have "free speech" they're bound by USMC.
In any case, even if DoD charges him, a US District Court will immediately free him on some lawfare nonsense.
US District judges are Gods that walk the earth, and Democrat ones will make sure none of their friends are convicted by Trump's DOJ. Unlike the 1000 J6ers who were automatically convicted and harshly sentenced.
The Times keeps its readers in the dark like mushrooms
Mind you the journal or the bezos post arent any better
Yah retired service members get restricted on what they can do and say. Brother in law did intelligence in Desert Storm. He’s still on travel restrictions. He’d be subject to recall and arrest if he defies. Spare me the lefties always know best…
’Even if you believe that the Venezuelan government is indeed sponsoring drug gangs, the contention that these boats are carrying fentanyl or even headed to the U.S., is bullshit.’
How do you know this to be bullshit?
And if he wants to go to war with Venezuela he needs to go to congress, which he has steadfastly refused to do (under some bullshit theory that since no service members are subject to harm, the War Powers Act does not apply)
“ Because representatives and senators are part of the legislative branch, not the executive branch. By definition, they are supposed to be partisan.”
Freder is correct. Political ilk like Kelly get to be partisan in their roles, but it is not carte blanch to foment mutiny in the ranks.
Kelly through his camouflaged words desires a purely partisan military.
These leftist clowns are now saying that our service members already know this.
So what was the point of the video?
The point is to bring potential harm to the CIC. Period.
Only Kelly is at risk and only under the military code, and he is quite demonstrably guilty under that code. The intent of the video was exactly to undermine the chain of command and I doubt a tribunal is going to be fooled by Kelly's argument one iota.
With that said, I don't think he will be court-martialed precisely because his argument is weak- it really does fool no one.
As usual the communist nlg is involved
No the eating crow guy who has removed all doubt in the past is another
Doesn't context matter? Why did these politicians make a video saying this one thing and not something else useful and informative?
"the contention that these boats are carrying fentanyl or even headed to the U.S., is bullshit."
Prove your contention, Freder.
hombre said...
Perhaps Cole is correct,
Others have already touched on the issue implicitly, and it's likely if our Hostess taught Con Law, however.
The UCMJ is not the USC, and under the UCMJ, 1st Amend rights are more narrow. For example, you can do hard time under Art 88 for contemptuous statements about POTUS.
The NYT here does not mention the UCMJ, and is therefore not useful.
How do you know this to be bullshit?
Because fentanyl consumed in this country comes from Mexico (using mostly Chinese precursors). Also, look at the boats they are blowing up. How many times would you have to refuel to make it to the U.S. If they are carrying drugs, it is most likely cocaine headed through the Caribbean islands to Europe.
Cartel of the sun tied to hezbollah
People miss the fact the Venezuelan government is directing the narcotics trafficking, creating a narco-state attacking US citizens.
Uh huh. Sure, Marsha. These are the same lying assholes that told us that there were "weapons of mass destruction" in Iraq. If these were "narco-terrorists" why are we returning them to their home countries instead of bleeding them for intel at Guantanamo.
You dummies will believe literally anything as long as the right person tell you the lie. No better than the dummies that believed Biden was competent. You'll believe literally fucking anything.
Rights come with obligations and responsibilities, all of which Kelly accepted with his commission and agreed to upon retirement. He has free speech, but when citing his rank and service like he did, he has a responsibility to adhere to the UCMJ and not sow dissension in the ranks OR if advising of an illegal order to CITE THE ORDER word for word and explain why it is illegal.
Otherwise you are stirring up dissension and "advising" enlisted members to question orders without providing any criteria for identifying orders that are potentially unlawful. Now you are just advising open treason. And each of the seditious six knows this fact. Just like they know 100% that ZERO members needed their reminder, because the code is drilled into them in context. Remember "context"? It's that thing the Media never provide when reporting on Trump policy. Context is only useful to propagandist's when excusing their own behavior.
Note that Cole purports to provide the specificity that Kelly and the others did not. The video was just an open-ended encouragement to military members to disobey orders that liberals suspect are "unlawful," with the assurance that "We have your back." But Cole doesn't know what the video participants were referring to--could be INS/Border patrol, could be national guard, could be any number of things.
What happens when some misguided and unhappy private takes their message to heart? "Ooops, you misunderstood us. We didn't want you to disobey that order. Too bad for you, kid."
So you see the bigger picture
What was an illegal order Trump has issued?
Blowing up boats and killing the crews when they pose no threat to the military.
If that was what they were referring to, why didn't they say so? Cowardice?
Even if you believe that the Venezuelan government is indeed sponsoring drug gangs, the contention that these boats are carrying fentanyl or even headed to the U.S., is bullshit.
Interesting. Is that your take? The Venezuelan president's take was "These are just poor kids who are forced to run fentanyl for a living." The defense that they are not running drugs has been muted at best.
"Because fentanyl consumed in this country comes from Mexico (using mostly Chinese precursors)."
And you know this, how exactly, Fredo?
How does Freder know what's in the boats and how they formulate their cocaine, which has been known to often include fentanyl? It's very suspicious to have such knowledge, but he claims to.
I think Cole is right. Kelly is entirely within his rights as a citizen, although I'm not so clear on the UCMJ aspects. But what harm could it do to have 10 or 20 FBI agents bust down Kelly's door at 5:00 AM, hold his family at gunpoint for hours in pajamas on the snow-covered lawn , shoot his dog and drag him off in chains? They could stash him in a gulag somewhere for 30 or 40 months, and have the guards beat him up from time to time. Offer him a plea bargain, with credit for time served. I'm guessing he'll eventually plead guilty, so he must not have had that right after all. Anyway, let's just see. He has the look of an insurrectionist to me.
"You dummies will believe literally anything as long as the right person tell you the lie. ..."
Ironic isn't it? Most of us don't believe a word people like you say, or for that matter those brave souls making insinuating calls to mutiny and coyly calling them 'Public Service Announcements.'
It must really tick you off the way some people command this thing called 'credibility' while others seemingly are entitled to none, without checking the facts first.
IamDevo said...
David Cole, a/k/a David Stein has a history of saying things that are not true and later recanting.
From the article:
"David Cole is a visiting professor at Columbia Law School and a former national legal director of the A.C.L.U."
Different David Cole.
"And if he wants to go to war with Venezuela he needs to go to congress,"
Obviously not true since I've been hearing that my whole life, and I think we have done some war stuff without it. "We came, we saw, he died."
As a veteran I can tell Senator Kelly that he should refresh his memory of the UCMJ. In the military you better follow the orders or expect to explain the reason at your court Martial.
Oh, my. This is that David Cole? He has made some new friends, it seems.
Even with the UCMJ stuff, it's hard to see how telling soldiers they have a duty to disobey illegal orders can be seditious, if the military tells them that in training. Too bad about the dog, I guess.
In the first sentence, the ACLU author calls Pete Hegseth the "Secretary of Defense." Wrong. He's Secretary of War.
No credibility.
If my side did this, I'd probably try to excuse it the same way. I might not be right to do so, but what's that got to do with anything?
Yeah just how is Libya these days? Since Hillary freed them from a dictator and had absolutely no plan what to do next. Ah, still an open-air slave auction site I see. Great work all round, Foggy Bottom.
If Hillary Clinton was Trump's Secretary of State we'd have video of Maduro's body in a ditch.
’Also, look at the boats they are blowing up. How many times would you have to refuel to make it to the U.S.’
In addition to his maritime expertise, Fredo must be on the distribution list for the President’s Daily Brief.
Insurrection is cool again we (D)o it!
RHardin wins the thread:
This lawless Senator is NOT FREE to say whatever he wants. Those rights are reserved for citizens not in the United States military.
This is settled law and has been for 2 decades. Many many cases have been decided by the Supreme Court that make it perfectly clear to every US citizen:
If you are in the military, you do NOT HAVE free speech. Your speech may be regulated by the military, which in the United States is run by the Commander In Chief:
Donald J. Trump
frederson is correct:
These drug boats pose no threat to our military.
They do however, represent a clear and present danger to the people of the United States of America, whom our military has sworn an oath to protect.
And so we're going to fucking kill them all.
And it's legal.
"People miss the fact the Venezuelan government is directing the narcotics trafficking, creating a narco-state attacking US citizens.
People "miss the fact" because it isn't a fact at all. It falls soundly in the realm of bullshit.
Even if you believe that the Venezuelan government is indeed sponsoring drug gangs, the contention that these boats are carrying fentanyl or even headed to the U.S., is bullshit."
Where was this skepticism when it was pee pee tapes and Russian consulates in Miami?
LOL.
You don't get to do that for 7 years and now decide "bullshit" no longer is acceptable.
If some idiot of a judge tries to say that it's illegal to shoot smugglers, then that judge needs to dangle from a tree.
Jupiter said...
I think Cole is right. Kelly is entirely within his rights as a citizen, although I'm not so clear on the UCMJ aspects. But what harm could it do to have 10 or 20 FBI agents bust down Kelly's door at 5:00 AM, hold his family at gunpoint for hours in pajamas on the snow-covered lawn , shoot his dog and drag him off in chains? They could stash him in a gulag somewhere for 30 or 40 months, and have the guards beat him up from time to time. Offer him a plea bargain, with credit for time served. I'm guessing he'll eventually plead guilty, so he must not have had that right after all. Anyway, let's just see. He has the look of an insurrectionist to me.
Mark Keely is fucked if he is in the chain of command and faces UCMJ.
As far as citizens go the way the J6 protestors were treated by DC as you have mentioned have really voided all constitutional protections they are owed.
We really can't have a social contract that provides freedom and rights with people like Freder Frederson in the country. They have to go before we can have a free country.
Freder Frederson said...
How do you know this to be bullshit?
Because fentanyl consumed in this country comes from Mexico (using mostly Chinese precursors). Also, look at the boats they are blowing up. How many times would you have to refuel to make it to the U.S. If they are carrying drugs, it is most likely cocaine headed through the Caribbean islands to Europe.
So you support Trump closing the border and putting tariffs on China right?
Right?
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