Secretary of War Pete Hegseth took the unusual step last month of threatening to recall Sen. Mark Kelly, D-Ariz., to active duty to possibly face court-martial, after the retired Navy captain reminded service members in a social media video that it is their duty to disobey illegal orders. President Donald Trump suggested Kelly ought to be killed for his viral video, then seemed to call for him to be imprisoned.
The review of Kelly’s comments has since blossomed into a full-scale inquiry. “Retired Captain Kelly is currently under investigation for serious allegations of misconduct,” a War Department spokesperson told me.
Kelly issued a statement after Hegseth’s office announced it was escalating its case. “It wasn’t enough for Donald Trump to say I should be hanged, which prompted death threats against me and my family. It wasn’t enough for Pete Hegseth to announce a sham investigation on social media. Now they are threatening everything I fought for and served for over 25 years in the U.S. Navy, all because I repeated something every service member is taught,” said Kelly. “It should send a shiver down the spine of every patriotic American that this President and Secretary of Defense would so corruptly abuse their power to come after me or anyone this way.”
What most surprised me was Hegseth’s apparent willingness to recall a former member of the military for punishment.
That Hegseth is targeting a sitting senator is all but unheard of. But what most surprised me was his apparent willingness to recall a former member of the military for punishment. I was shocked because, for two decades, the Pentagon has failed to respond to questions about the potential recall of veterans accused of heinous illegality by Army investigators.
In the mid-2000s, I provided the Pentagon with the names of dozens of former service members implicated in crimes against civilians and prisoners during the Vietnam War: massacres, murders, assaults, and other atrocities. The Defense Department never recalled any to active duty. Years later, a defense official laughed when I asked if anyone even looked at the spreadsheet of names that I provided. In the wake of Hegseth’s threats against Kelly, I again asked his office if they want that list.
While working for the Los Angeles Times, I helped expose 320 atrocities that were substantiated by Army investigators, including seven mass killings from the 1960s and 1970s, in which at least 137 civilians died. This tally does not include the 1968 My Lai massacre during which U.S. troops slaughtered more than 500 Vietnamese civilians. The records chronicled 78 other attacks on noncombatants in which at least 57 were killed, 56 wounded, and 15 sexually assaulted; and 141 instances in which U.S. troops tortured civilian detainees or prisoners of war.
Murder, torture, rape, abuse, forced displacement, home burnings, specious arrests, and imprisonment without due process were a daily fact of life throughout the years of the American war in Vietnam. But the great majority of atrocities by U.S. troops never came to light — and almost never resulted in criminal investigations, much less courts-martial. These records — compiled in the early 1970s by a secret Pentagon task force known as the Vietnam War Crimes Working Group — represent some of the exceedingly rare instances that resulted in official inquiries.
Army criminal investigators determined that evidence against more than 200 soldiers accused of harming Vietnamese civilians or prisoners was strong enough to warrant charges, according to the records. These “founded” cases were referred to the soldiers’ superior officers for action. Ultimately, 57 of them were court-martialed, and just 23 were convicted.
Fourteen soldiers received prison sentences ranging from six months to 20 years, but most won significant reductions on appeal. The stiffest sentence went to a military intelligence interrogator convicted of committing indecent acts against a 13-year-old girl held in detention. He served seven months of a 20-year term, according to the files. Many substantiated cases were closed with a letter of reprimand, a fine, or, in more than half the cases, no action at all.
In the early 2000s, many veterans who had escaped justice were still alive, including members of Company B of the 1st Battalion, 35th Infantry, 4th Infantry Division. That unit committed a litany of atrocities, culminating in a massacre in a tiny hamlet in South Vietnam.
On February 8, 1968, a medic, Jamie Henry, sat down to rest in a Vietnamese home, where he was joined by a radioman. On the radio, he heard 3rd Platoon leader Lt. Johnny Mack Carter report to Capt. Donald Reh that he had rounded up 19 civilians. Carter wanted to know what should be done with them. As Henry later told an army investigator: “The Captain asked him if he remembered the Op Order [Operation Order] that had come down from higher [command] that morning which was to kill anything that moves. The Captain repeated the order. He said that higher said to kill anything that moves.”
Hoping to intervene, Henry headed for Reh’s position. As he neared it, though, the young medic saw members of the unit drag a naked teenage girl out of a house and throw her into the throng of civilians, who had been gathered together in a group. Then, Henry said, four or five men around the civilians “opened fire and shot them. There was a lot of flesh and blood going around because the velocity of an M-16 at that close range does a lot of damage.”
Henry repeatedly reported the massacre, at peril to himself, and spent years attempting to expose the atrocities. Army investigators looked into the allegations for more than three years before closing the case and burying the files. They determined that evidence supported murder charges in five incidents against nine “subjects,” including Carter. Investigators concluded that there was not enough evidence to charge Reh with murder, because of conflicting accounts “as to the actual language” he used in giving the orders. But Reh could be charged with dereliction of duty for failing to investigate the killings, the report said. The military did not court-martial any members of the unit — either in the 1970s or the 2000s. Some are still alive today and could, theoretically, face some modicum of justice.
Hegseth has been on the hot seat since major media outlets picked up on The Intercept’s reporting of a double-tap strike that executed survivors of an attack on a supposed drug-smuggling boat in the Caribbean in September. Military legal experts, lawmakers, and confidential sources within the government who spoke with The Intercept say Hegseth’s actions could result in the entire chain of command being investigated for a war crime or outright murder.
Hegseth said Kelly’s “conduct brings discredit upon the armed forces and will be addressed appropriately.” I asked Hegseth’s office if the crimes detailed in the Vietnam War Crimes Working Group’s files also brought “discredit upon the armed forces.” A spokesperson acknowledged that and other questions but offered no answers.
“Nick, we received your earlier message and haven’t forgotten about you,” she said last month. “Our response time is going to be delayed due to the Thanksgiving holiday weekend.” That response has, weeks later, still yet to arrive.
Hegseth has previously derided “academic rules of engagement which have been tying the hands of our warfighters for too long,” and, during President Donald Trump’s first term — before he became the Pentagon chief — successfully lobbied for pardons on behalf of soldiers convicted of crimes against noncombatants.
“This just shows their total distain for the rule of law,” Todd Huntley, who was an active-duty judge advocate for more than 23 years, serving as a legal adviser to Special Operations forces, said of Hegseth and Trump. “They view the law as a political tool to support their positions and help them get what they want.”
“They view the law as a political tool to support their positions and help them get what they want.”
Hegseth took his post focusing on lethality at all costs, while gutting programs designed to protect civilians and firing the Air Force’s and Army’s top judge advocates general, or JAGs, in February to avoid “roadblocks to orders that are given by a commander in chief.” Military operations under Hegseth have since killed civilians from Yemen to the Caribbean Sea.
The Former JAGs Working Group — an organization made up of former and retired military judge advocates which was founded in February — issued a statement condemning Hegseth’s order and the execution of it “to constitute war crimes, murder, or both.” The group also called out the war secretary for targeting Kelly. “The administration’s retaliation against Senator Kelly violates military law. We are confident the unlawful influence reflected in the press reports will ultimately disqualify all convening authorities except possibly the president himself from actually referring any case to a court-martial,” they wrote in a statement provided to The Intercept.
Huntley said the War Department wasn’t following its typical investigative process in its case against Kelly.
“There was no way that was unlawful. It doesn’t even come close to undermining good order and discipline of the military,” said Huntley. “Under normal circumstances, an investigating officer would be appointed. They’d look into it and then the report would come back, it would be reviewed by a JAG, and it would say there was nothing unlawful, no charges warranted. But these aren’t normal times.”
Huntley also noted that Kelly’s video was likely to sow confusion among low-ranking enlisted personnel and officers concerning determinations about whether an order is lawful.
Huntley clarified that the Pentagon doesn’t have to bring Kelly back to active duty to charge him under the Uniform Code of Military Justice. “All that’s required is that you get permission of the service secretary. In this case, I’m guessing that Hegseth himself could probably give permission to do that,” he explained. When I asked why the War Department would have announced that it might recall Kelly despite not needing to do so, Huntley had a simple assessment: “Because they don’t know what the law is.”
Hegseth’s office and Pentagon press secretary Kingsley Wilson failed to reply to repeated questions about the Vietnam-era personnel who might still be sanctioned for their crimes against Vietnamese civilians, as well as questions about the jeopardy troops today might be in for following Hegseth’s orders.
A Pentagon spokesperson also seemed to foreclose the release of additional information concerning the War Department’s persecution of Kelly. “Further official comments will be limited to preserve the integrity of the proceedings,” she said.
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