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B
Welcome to Talking Feds. One on one deep dive discussions with national figures about the most fascinating and consequential issues defining our culture and shaping our lives. I'm your host, Harry Littman. Late last month, two senators and four House members, all with backgrounds in the military or intelligence services, released a public service message reminding members that they cannot be punished for refusing an illegal command and that following a patently illegal order can itself be a crime under the Uniform Code of Military Justice. Donald Trump was apoplectic. He labeled the public service message seditious behavior at the highest level and continued, each one of these traitors should be arrested and put on trial. Defense Secretary Pete Hegseth, for his part, seconded this addition charge and accused the lawmakers of putting service members at risk. And he ordered an inquiry into a possible court martial against Senator Mark Kelly. The administration's response looked all the more heavy handed and and the entire operation more suspect with the subsequent revelations of a strike on two survivors of a boat that the administration already had destroyed. The public as yet has limited visibility on this second strike, but it appears to be a strong candidate for exactly the sort of patently illegal order that the Dems public message was warning about to discuss the US's ongoing missions in the Caribbean. There have now been dozens of strikes and Hegseth proclaims they will continue the administration response and the state of investigation in Congress. I am pleased to welcome really the perfect guest for this topic, Senator Mark Kelly. Mark Kelly is the senior Senator from Arizona. He is also a retired U.S. navy captain. He served for 25 years in the military, earned the Legion of Merit and the Distinguished Flying Cross, and flew combat missions in Operation Desert Storm. He later joined NASA where he commanded space shuttle missions. In Washington. He's been a champion for American service members for ending gun violence and for other vital causes. Senator Kelly, thank you so much for your service and thank you for joining Talking Feds.
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C
Good to be on. Thank you for having me.
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B
This, this has been really high profile for you. I know since the, the public service message. Since then we've seen an Example of an order the administration is right to be nervous about. Turns out the very first mission included a double tap strike on alleged drug boat that killed two survivors. What was your reaction when you heard about the second strike?
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C
Well, I wasn't surprised.
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When you have a president that has previously talked about killing the family members of terrorists. And when he was told that that would be legal and the military wouldn't do that, his response was, the military will not refuse my orders. And he's talked about shooting protesters in the legs and deploying military forces to US Cities and to use those cities as training grounds, meaning that US Citizens would be treated like the adversary. I mean, these are things that are not consistent with our norms, our morals, our values.
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Combined with a Secretary of Defense who is just clearly unqualified for this job. He doesn't even come close to the qualifications that you would want to have in a secretary of defense that he runs around on a stage and talks about lethality and hunting and killing people. The secretary of defense said, we're going to hunt and kill people. So when I heard about this, I mean, I didn't know about this, you know, second strike, you know, before we released that, you know, video, but when I heard, like everybody else did in that Washington Post article, not surprising. It's the kind of thing that we were trying to prevent. Just reminding members of the military that they are required to not obey illegal orders. It's something we're taught, but we're often not reminded of it.
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B
And there is a certain, it does seem to me kind of bloodthirst about the mission in celebration of some of the killings. It does seem as if the investigation is gaining ground and has a long way to go, as indeed it should. We did hear yesterday, as we tape, that the chair of the House Armed Services Committee proclaims that he's learned all he needs to know and he's not going to be looking into the events anymore. What did you make of that announcement?
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C
Yeah, so the chairman of the Armed Services Committee in the House said he's seen enough. He's done. I think this is far from done. We've got Republicans in the Senate that want more information, that want to see the video and also think the video should be released to the public now.
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B
Now, am I right? You have. You haven't yet seen the video, but you've heard a lot about it. Is that fair?
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C
Yeah, that's fair. I've obviously, I've spoken to people who have watched the video and we've talked about it. What I'VE been told is it's disturbing. You know, I don't want to. I don't want to prejudge what I think is ultimately going to be an investigation. But what I've been told is rather concerning. And this is the kind of thing, you know, it's even in the Manual of War, which is a DoD instruction. This is the example that's used as a unlawful or illegal order.
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This ship was, you know, what I've been told is flipped over, cut in half. Two guys on the ship, and they did a second strike to eliminate them.
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We have these rules for a reason.
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And some of them are international Geneva Conventions as an example. But even internally, we have rules of engagement. You know, we try to take the high road and have high standards. One of the reasons we do that is when we put people in harm's way, our service members. I mean, I flew in combat, you know, I flew 39 combat missions over Iraq and Kuwait. You know, I would want the enemy to think if, like, let's say I got shot down, I'm in a parachute, right? Ejected from my airplane. I don't want people shooting at me. You know, that's the law. That's why we have these rules. We comply with these rules because it's in the best interest of our own service members.
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You know, that's why you don't want to kill survivors of a shipwreck at sea. Because on some future date in some part of the world, that's going to be two Americans that find themselves two American service members that find themselves in exactly the same situation.
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And our hope is that they will be treated the right way and that this will not happen to them.
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B
And even apart from that, and more generally, let me ask you, Senator, what do you think the impact is on the US's international standing of undertaking? And you're right, we haven't seen it, and some Republicans and Hegseth are defending it, but of undertaking what seems like a really paradigmatic extrajudicial killing, what does it do for the overall standing of the country in the international community?
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C
Well, I think if the reports are accurate and if what I have been told by not only my Democrat colleagues in the Senate, but the Republicans who have seen the video as well.
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I think it could be really damaging to our reputation and I think it hurts our leadership position in the world with our allies. We're already seeing some of that, right? The UK is not sharing intelligence with us anymore.
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In the Caribbean with regards to transnational criminal organizations. That makes it harder for us to interdict. We're supposed to be interdicting drugs. This is a law enforcement operation that the Coast Guard traditionally does, sometimes with the assistance of the Navy, where they intercept these drugs, they arrest the people, they prosecute them, confiscate, you know, the drugs, destroy the drugs. But this has all changed under Donald Trump, and I don't know what his ultimate goal is here. You know, some people think it's regime change. I've heard others say, you know, maybe it's something beyond that.
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Regime change just doesn't typically work well for us as a policy. It hasn't worked well in South Vietnam or Cuba or Iraq, Afghanistan.
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But I don't really think we know the president's total motivation here.
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B
Yeah, I've long since given up trying to plumb those debts. Let me ask you, though, because you bring it up in general, even leaving aside what seems like the clearly aberrant second strike you, you mentioned, this is a law enforcement problem, or that's how I was at Department of Justice for many years. How one would think of it. The. The ex president that Trump pardoned last week, we handled him the way you handle law enforcement. You have a treaty of. That permits extradition. You get them, you bring them here. They've committed crimes against the US if, if the allegations are right about all the drugs. So this is a completely different model, no process at all, and have strikes and, you know, blow them away. What do you think about the entire. We're in dozens of strikes now and pushing 100 people killed. You know, should the US be conducting this overall campaign, military campaign at all?
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C
Well, Harry, it's a. It's a complete shit show, right? On one hand, you know, we're shooting hellfires in the boats and killing people who. We don't even know if they're armed. If, are they, are they a threat? Where the drugs we can go in?
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B
Yeah, we just don't know.
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C
We can interdict these boats with ships, but in one case, you have survivors that are killed. In another case, you have survivors that are released back to their countries. Why aren't they prosecuted? If you can kill two people on one hand.
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Why are these folks who basically did the same exact thing, why are they released at the same time? Donald Trump's calling for regime change in Venezuela and Maduro's a bad guy, right? I would love to see him overthrown and that country to turn into a stable democracy. But why are we releasing Juan Hernandez, the former leader of Honduras, for trafficking narcotics into the United States? So Trump is not okay with Maduro, but he's okay with Juan Hernandez and he can't even ask answer questions and barely. I saw the interview. I think it was on a couple days ago. He did an interview about this and he says, well, I don't really know the details. You're releasing a guy who was sentenced by a jury to 45 years, I think in prison, and he's a drug trafficker, former president, and you're going to pardon him. I mean, this doesn't make any sense.
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But with this president, I mean, who's surprised? I mean, are any of us surprised?
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B
Yeah, I think the DEA and FBI were maybe a little surprised and chagrined. It's the same thing as the pardon of the January 6th offenders. The latest, by the way, I don't know if you've heard, is they apparently had considered taking survivors and taking them to where, seacot Prison. Almost too much to believe. Remember the lessons from September 11th that you know.
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C
Right.
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B
You can't. That the Supreme Court struck down. I want to, I know we only have a few minutes and I'm so grateful to you for joining. I wanted to talk a little bit to you, your personal situation, because we're talking on Wednesday, December 10, and you among the six members are in an unusual position because of the rank you achieved of still being able to be recalled to military court martial jurisdiction. And Secretary Hegseth as said he has ordered up a report to get today on whether you should be recalled to act of service and face a court martial, I guess, on a charge of sedition. It all seems farcical. And he doesn't, I agree with you seem like a fundamentally serious defense secretary. Nevertheless, they, you know, they control the levers of power. What's your, what's your thinking about this obvious, you know, threat over your head?
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C
Well, you're a constitutional lawyer, my understanding. Right. And you, you obviously see this as this is sort of a joke, but I don't think they're joking around with me.
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I haven't heard anything from the Navy or officially from dod. The only thing I know about this is what Pete Hegseth put in a tweet a couple times. So they haven't. The last time I've heard anything from the Navy was like in 2011 when I retired 14 years ago. So they're not handling this very professional way, but, you know, who's surprised about that?
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Yeah. So we don't, we don't know what the outcome is going to be. But I will say this, that Donald Trump, Pete Hegseth you know, anybody in DOJ or dod, they're not going to intimidate me. I'm not going to let this president.
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You know, silence me. I mean, he didn't like what I said, and because of that, he wanted me killed and now prosecuted. Yeah. This isn't about me. I mean, this affects all Americans and all service members, retired and veterans and active duty service members. If we can't speak out and exercise our First Amendment rights, you know, this is a. This is on the. We're on the slippery slope here, away from democracy and into something else. So I'm not backing down.
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I really don't know what their plans are here, but we'll. We'll handle it as it comes. I've been. I've been through. And Harry, I've been through a lot more than this. I mean.
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B
Yeah, right.
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C
I've nearly lost my life multiple times in service of this country. My wife was also nearly assassinated. It's like they're not gonna. They're not gonna intimidate me with threats of prosecution.
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B
And there's an end. I'll just add, since you mentioned I'm a constitutional lawyer, I wrote in a substack, not only is your. Was your.
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Public service message impeccable and accurate, the actual constitutional violation is their investigation itself and the attempt to sort of bully the. You know, because based on content. Senator Kelly, I know you gotta go.
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C
But I. I mean, aren't they investigating the wrong person here?
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B
Well, it's not just that the mere investigation based on views is itself a violation of the First Amendment. I will send a. All right, so I'll post the substack here and send it to your folks. I just want to say it does seem clear to me that this is going to continue, and I really hope we'll be able to speak with you again as the investigation unfolds.
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C
Well, hey, thank you for having me on. I really appreciate it. And thanks for reporting on this story.
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B
Thank you for tuning in to One on One, a weekly conversation series from Talking Feds. If you like what you've heard, please tell a friend to subscribe to us on Apple Podcasts or wherever they get their podcasts. And please take a moment to rate and review the show. You can also subscribe to us on YouTube where we are posting full episodes and daily updates on top legal stories. Check us out on substack harry littman.substack.com where we're posting two or three bulletins a week breaking down the various threats to constitutional norms and the rule of Law and Talking Fez has joined forces with the Contrarian. I'm a founding contributor to this new media venture, committed to reviving the diversity of opinion that feels increasingly rare in today's news landscape, where legacy media seems to be tacking toward Trump for business reasons rather than editorial ones. Rest assured, we're still the same scrappy independent podcast you've come to know and trust just now linked up with an ambitious and vital project designed for this pivotal moment in our nation's legal and political discourse. Find out more at Contrarian. Cat.
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Thanks for tuning in. And don't worry, as long as you need answers, the Feds will keep talking. Talking Feds is produced by Luke Cregan and Katie Upshaw, associate producer Becca Haveian sound Engineering by Matt McArdle, Rosie Dawn Griffin, David Lieberman, Hamsa Mahadrenathan, Emma Maynard and Hallie Necker are our contributing writers. Production assistants by Morgan Chisholm and Akshaysh Turbailu. Our editorial interns are Bridget Ryan and Troy Neville. Our music, as ever, is by the amazing Philip Glass. Talking Feds is a production of Delito llc. I'm Harry Littman. Talk to you later.
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C
Sa.