David Cole writes:

On Monday Pete Hegseth, the secretary of defense, directed the Pentagon to investigate Senator Mark Kelly, a retired Navy captain who flew combat missions during the gulf war and took several spaceflights as an astronaut before he was elected to serve Arizona’s citizens in Congress. His potential crime? Telling members of the armed services that they do not have to follow illegal orders. But saying so is not a crime; it’s a true statement of the law. And even if President Trump doesn’t like it, it’s protected by the First Amendment.

In a video released last week, Senator Kelly and several other Democratic lawmakers reminded members of the military that they “can refuse illegal orders.” That’s exactly right. “Following orders” is not a defense if you follow an illegal order to commit a war crime, as Allied prosecutors established at the Nuremberg trials of Nazis after World War II. Members of the military have not only the right but the obligation to refuse illegal orders.

The video enraged Mr. Trump, who evidently likes his orders followed, regardless of whether they are lawful. On Truth Social he called the video “SEDITIOUS BEHAVIOR, punishable by DEATH!” He then reposted another person’s message that said, “HANG THEM GEORGE WASHINGTON WOULD!” Now his defense secretary has opened an investigation into whether Mr. Kelly committed a military crime by saying what he did. And the F.B.I. has followed suit by seeking to question the six lawmakers in the video, all of whom served in the military or the intelligence service. (Mr. Kelly alone is subject to military jurisdiction because he is “retired,” while the others did not serve long enough to be eligible to retire with a pension.)

If anything is lawless here, it’s the investigations. The video itself mentioned no particular orders. On “Face the Nation” Mr. Kelly, a member of the Armed Services Committee, questioned the legality of the orders to kill suspected drug smugglers at sea. But on that point he’s echoing what countless experts in the law of war have said. Even John Yoo, one of the former Justice Department officials who notoriously greenlighted the waterboarding of Al Qaeda suspects, has questioned the legality of the strikes, arguing that “the United States cannot confuse crime with war.”

It’s hard to find anyone outside Mr. Trump’s inner circle of solicitous advisers who considers the killings legal. [Continue reading…]