UnJustified Best Work Day Ever (feat. Virginia Burger)
Mar 1, 2026
Virginia Berger, a former U.S. Marine officer and senior defense policy analyst at POGO, joins to break down military justice and legal processes. She explains the duty to refuse unlawful orders and why the DOJ pursued criminal probes for lawmakers. They unpack Judge Leon’s injunction on Senator Mark Kelly’s rank, Judge Cannon’s sealed report decision, and how courts are straining under high-profile investigations.
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Obligation To Refuse Unlawful Military Orders
- Members of the military swear to obey lawful orders but the Uniform Code of Military Justice requires them to refuse unlawful orders.
- Virginia Berger explained this applies across routine tasks, not just combat, and places a burden on service members to assess legality.
Retiree Status Creates Unique Military Justice Risks
- Retirees occupy a gray legal space: active-duty members fall under the UCMJ but retirees may still be subject to retired rank determinations.
- Berger noted Senator Mark Kelly is a retiree with pension/grade protections, unlike the five non-retiree lawmakers.
Retired Rank Boards Are Limited To Active Duty Conduct
- Secretary-led retired rank determination boards (Title 10 §1370) can only adjust retirement rank for misconduct during active duty.
- Berger used a hypothetical Major Pete who commits a past war crime discovered after retirement to show scope.
