Intro
Joshua Kastenberg, a law professor and former Air Force judge, walks through the military justice case against Air Force Major Jason Watson, who was charged under Articles 88, 92 and 133 after calling for President Trump's impeachment. Immigration lawyer Leon Fresco then takes the second half of the show on Texas refusing to extradite an ICE officer to Minnesota, the State Department's pause on immigrant visa interviews, and the revocation of visitor visas held by asylum applicants.
Guest: Joshua Kastenberg, professor at the University of New Mexico Law School and a former judge and lawyer in the U.S. Air Force
Also on: Leon Fresco, partner at Holland & Knight and an immigration law expert
Host: June Grosso
Published: 27 August 2026 on Bloomberg Law
Listen on Omny | 35 min
Key Takeaways
Article 88 is old, narrow and almost never enforced
"So it's an old charge, but it's a charge that has been used in a very selective manner over the years since that time"
Generals and admirals have insulted presidents for decades: "But there have been hundreds of others who've done it and haven't been charged"
Kastenberg thinks the major brought the prosecution on himself, deliberately
"he certainly did it in a manner that baited the administration to go after him"
The contempt charge turns on proving harm to the chain of command, which Kastenberg calls unprovable
"the idea that he would undermine the chain of command and military discipline is unprovable. And that is a burden on the government to have to prove"
Both Trump administrations have blurred the political-military line the case is built on
"There's no equal to that in my lifetime"
Conduct unbecoming an officer is the count the government is most likely to win
Holding an officer in pretrial confinement is close to unheard of, even for violent charges
The defense's real opening is a run at U.S. District Court, the way Ehren Watada's lawyers escaped a court-martial
The charges overlap enough to raise a double jeopardy problem the military judge will have to fix
Extradition between states is mandatory, so Texas is playing for time rather than arguing the law
Fresco: "He's trying to win on the calendar"
Nobody has been charged over the two Minneapolis shootings, and civil suits face a wall of Supreme Court precedent
The State Department has paused immigrant visa interviews worldwide because the country-by-country version was struck down
Fresco's read on the stated two-week training window: "is it going to end up trying to be a wolf in sheep's clothing and be a pause that never ends until a court forces it to end"
Delay is the policy, not a side effect of it
"The point is to cause the delay, and the reason for the delay is to lower the overall numbers"
Revoking visitor visas from people who applied for asylum is mostly cleanup, and will hit far fewer people than the headline number
Article 88 Goes Back to Jefferson, and Has Always Been Used Selectively
The host opened by laying out the charges: three violations of Article 88 for contemptuous remarks about Trump, five violations of Article 92 for disobeying orders, and two violations of Article 133 for conduct unbecoming an officer
Grosso's own framing of how rare this is: there have been "only a few instances since the modern code of military justice was enacted 75 years ago", and "this appears to be the only case where an officer of Watson's rank has been charged"
She noted the major had served in the Air Force for 17 years, was arrested on the steps of the Capitol on July 1st, and repeated his criticism in a CNN interview
Kastenberg traced the charge to the founding-era rewrite of the British articles of war — "they're quite ancient. They go back to, in a sense, Thomas Jefferson, when the first articles of war were being rewritten from the British"
The American version narrowed it: contempt was limited to the chain of command, where "contemptuous words against the government as a whole could be a means for prosecuting people in the old British Army"
The enforcement record is the point: "So it's an old charge, but it's a charge that has been used in a very selective manner over the years since that time"
He gave examples on both ends — retired generals and admirals still subject to the UCMJ, including "Bill Clinton being called a draft dodger", and a Vietnam-era lieutenant
"But there have been hundreds of others who've done it and haven't been charged"
Why This Major Drew a Prosecution When Hundreds Did Not
Grosso put the obvious theory to him: is it the high-profile nature of it, the Capitol steps and then CNN
Kastenberg agreed and went further, saying the major knew exactly what he was doing — "he certainly invited it on himself, and he did it with full knowledge because he apparently had been warned beforehand not to do this"
His characterization of the choreography: "he pulled one of the, hey, world, look at me"
He was careful not to read that as insincerity — "That doesn't take away from the fact that he may be very sincere in his beliefs"
"but he certainly did it in a manner that baited the administration to go after him"
What Makes Words "Contemptuous," and the Captain Levy Precedent
The legal standard Kastenberg gave: "remarks tend to be considered contemptuous if they're made in a manner that would undermine confidence and the reliability of the chain of command"
He walked the audience through the leading case, a Vietnam-era Army captain and dermatologist named Levy who trained corpsmen and told enlisted students in the Medical Corps not to go to Vietnam
Levy's argument, as Kastenberg described it: "it was an imperialistic, it was a white man's war, it was making the rich richer, it was immoral and unconstitutional"
He had authority over them, he was convicted at court-martial, and the Supreme Court upheld it in Parker v. Levy
The defense's line of attack, in Kastenberg's view, is not the facts but the harm: the major plainly did what he is accused of doing, but "the idea that he would undermine the chain of command and military discipline is unprovable. And that is a burden on the government to have to prove"
Asked where the line sits between contemptuous and merely critical, he said the prosecution has to prove contempt beyond a reasonable doubt, whether the court-martial is composed of officers or it is a bench trial
The comparison he drew was with an earlier protester — "Lieutenant Howe in 1967, who stood outside of Fort Bliss with the sandwich board calling Lyndon Johnson a war criminal"
What may separate the two cases is that the major appears not to have engaged in "any superfluous or mean-spirited name-calling", and instead exercised what he believed was his prerogative to warn Congress
Kastenberg still expects the government to clear the bar: "That might not clear the hurdle of contempt, but I suspect it will"
The First Amendment You Give Up When You Put On the Uniform
Grosso noted that people in the military do not have the same First Amendment rights as everyone else, and Kastenberg agreed flatly
What ROTC, the academies and officer training all teach: "you are surrendering to the federal government some of your free speech rights, and that includes the right to be politically engaged in a military status"
His sharpest claim of the segment was about the government bringing the charge, not the officer facing it — this administration, and he specified both Trump administrations, "has done more to water down the political-military barrier, and they've instead politicized the military to an unusual degree, that they've set an example that it's okay to cross the line"
He named where he sees it: speeches Secretary of Defense Hegseth has made to uniformed personnel, the president's speeches at academy graduations, and "the overuse of the military to promote the president's ideology"
"There's no equal to that in my lifetime"
He expects the defense to turn that into a standard-of-proof argument: "it's the president himself who's moved the definitions of what political activity and contemptuous language are, and therefore that is the standard by which our client must be judged, and therefore they can't prove beyond a reasonable doubt he's guilty of contempt"
Article 92: Uniform, Permission and the Selective-Prosecution Answer
Article 92 is a failure to obey lawful orders or regulations, and Kastenberg described the rules behind it as cultural before they were legal — "these age-old military cultural rules that are designed to keep the military a trustworthy institution by keeping it out of politics"
Those rules run down through Department of Defense regulations and instructions into Air Force instructions, Army regulations, and Navy and Marine Corps instructions
"All of those regulations have the force of law, as long as they don't violate a legally passed statute limiting the military, or the First Amendment"
The rule on uniforms is indifferent to the cause: demonstrating in uniform without permission, "whether it's for wildlife preservation, children's rights, or a political rally that's partisan", crosses the line
"if you don't have permission to be in uniform and you're part of it, you've crossed the line"
He expects a selective-prosecution defense here, and gave the defense its evidence: "they'll point out the fact that the president has used the military at his partisan rallies. No one there has been prosecuted, so we'll see what happens"
Article 133: The Easiest Charge to Prove
Of all three counts, Kastenberg singled this one out — "As for Article 133, that's the easiest of all the charges to prove"
Conduct unbecoming an officer and a gentleman hands the question to the court-martial members rather than requiring proof of harm: "The prosecution doesn't really have to prove that there's a threat to good order and discipline"
The test is whether the officer "has crossed the line against the norms and become something of a criminal embarrassment to the military"
The classic example is an officer who does something legal and then cannot get out of it — gambling, falling into debt, and being unable to pay it back
Kastenberg listed other things that are ordinarily legal and still get charged, including "appearing in softcore pornographic movies or having multiple partners of a polyamorous nature and it gets out"
Even on the easiest count, he said the defense might still persuade a military judge that the client is being selectively prosecuted in violation of his constitutional rights
Pretrial Confinement for an Officer, and the Steps Before a Court-Martial
Grosso pointed out that it has not actually been decided whether Watson will face trial at all
The detail Kastenberg flagged as abnormal: "he's held in pretrial confinement, which is very unusual for an officer"
"Even officers who are accused of violent crimes like rape generally don't end up being placed in pretrial confinement"
The first fight is therefore release, either before a military judge or in U.S. District Court, on the argument that he is not a threat to good order and discipline, has not committed a violent crime and is not charged with espionage
"This is just something that normal human beings can do in the United States"
The process itself has more steps than a civilian case: the military's equivalent of a grand jury is a pretrial investigation conducted by one individual, not a panel
Only after that can a general court-martial convening authority — "usually those are major generals or rear admirals, upper half or higher, lieutenant generals, four-star generals, and the like" — convene a general court-martial
What Kastenberg thinks the government has given away: "the government has opened the door to the possibility of the defense counsel being able to stop this process in its tracks through some sort of appeal to the United States District Court"
The District Court Escape Hatch, and What Ehren Watada Got Away With
Grosso asked the question a listener would: if you are in the military, you are under military jurisdiction, so how does this reach federal district court
Kastenberg's answer is that it takes government misconduct, not a better argument: you get in when you can prove the government "is either incompetent, has violated your client's rights to a constitutional degree, or has committed a major infraction of the law"
"It's a very high bar"
The precedent he reached for was Lieutenant Ehren Watada, who refused orders to deploy to Iraq or Afghanistan and was about to be court-martialed for failure to go
The government mishandled discovery — its obligation to give Watada's attorneys all of its evidence
"The defense counsel shrewdly went to U.S. District Court, and the U.S. District Court shut that case down, and the military was never able to go forward"
Kastenberg was explicit that Watada had done the thing, at least facially: he refused to comply with orders, and was never prosecuted for it
"But for every Lieutenant Watada, there are hundreds of people who the military more or less functions as it's supposed to do, and they can't get in the U.S. District Court"
"What makes this case different is its uniqueness"
Charging One Act Many Ways Runs Into Double Jeopardy
Grosso's observation: it seems like they are charging him in many different ways for the same act
Kastenberg called that a place the system misfires — "that's one area where the military justice system can misfire"
A military trial judge, like a state or federal trial judge, has to make sure "that the charges do not overlap to such a degree as to violate the Constitution's prohibition against double jeopardy"
He has read the charge sheet and thinks it has that problem: "I've taken a look at the way this case has been charged, and one of the features of it to me is that there is enough of an overlap to create a constitutional issue in this case"
The first fix a judge could impose is to make the government choose: "you're going to have to decide which of these charges you're going forward on and which you're not because there's significant overlap"
The alternative is to hand the problem to the court-martial members and have them find in the alternative — "meaning he's either guilty of this charge or he's guilty of that charge, but you can't find them both"
The second fix is consolidation: a military judge could collapse a group of the charges, if he is found guilty of them, into a single charge for sentencing purposes
Nobody Should Expect a Court-Martial Soon
Asked how fast the military process moves, Kastenberg's answer was that it does not
"If people think this is going to go to a court tomorrow, barring some miraculous dropping of the case against him or a plea agreement, it's not. It's a long process"
The system's own reputation no longer holds, in his telling: "Military justice is supposed to be quick and efficient, but it's become like just about any other criminal justice system, and it's not quick or efficient anymore"
Texas Is Losing the Extradition Fight on the Merits and Winning It on the Calendar
Grosso set up the second segment: the ICE officer charged with shooting and injuring a man in Minneapolis has been released from a Texas jail after a federal judge denied Minnesota's request to keep him in custody
Minnesota had sued earlier in the month to make the Texas governor extradite Christian Castro to face four counts of assault and one count of falsely reporting a crime
The judge sided with Texas, leaving Texas to keep weighing whether to comply
Fresco said the law is not close: the extradition clause and 18 U.S.C. Section 3182 make "extradition mandatory, not discretionary", and "Abbott doesn't have power, lawful power to refuse"
The Supreme Court said so too, in Puerto Rico versus Branstad
"So Governor Abbott can't really win this on the merits, but what he's doing is he's trying to win on the calendar"
The mechanism is never issuing a denial, because the federal court agreed the question is not ripe until Abbott formally says no
"So that's a roadmap for indefinite delay. Just don't deny the extradition. Just say that you continually seek to analyze it"
Fresco listed the open questions rather than predicting: whether the federal government brings charges, and whether Minnesota sues to compel, arguing the delay is a functional denial and citing flight risk
No Charges in the Renee Good and Alex Pretti Shootings
Grosso pressed on why this officer and not the others — the ICE officers involved in the shooting deaths of Renee Good and Alex Pretti, two U.S. citizens, during the Minneapolis Operation Metro surge in January of 2026
Fresco's answer was that nothing has happened in either case: "there have been no charges in either of those shootings"
The Justice Department investigated one of them and not the other
In the Pretti case there was a civil rights investigation and the agents were placed on administrative leave, but no charges to date
In the Good case there was no DOJ investigation, and "you had a bunch of Minnesota federal prosecutors resigning, including the acting U.S. attorney"
On whether a later administration could still bring murder charges, Grosso raised the absence of a statute of limitations and Fresco finished the thought: "new administration could charge them for murder. There's no doubt about that. And we'll have to wait and see if that ends up happening"
Why It Is So Hard to Sue ICE: Bivens and the Federal Tort Claims Act
Asked whether the families can sue, Fresco said civil suits are "very, very difficult now because of some precedents that have happened in the Supreme Court"
The controlling precedent is a Border Patrol case from two or three years ago, where plaintiffs "tried to sue the Border Patrol for Bivens Act claims, saying you owe civilly for excessive force"
The Court held it was not an ordinary case of the federal government violating your rights and being sued for it, because of the national security concern the Border Patrol has to address
The open question is whether ICE inherits that shield. Fresco thought the facts here cut the other way — inside the country rather than at the border, and a U.S. citizen rather than a foreign national — "it seems like it'd be more likely that Bivens is not foreclosed, but it's going to be a tough call"
"I would bet that would be a 5-4 case or a 6-3 case either way"
The other route is the Federal Tort Claims Act, and it has its own blocker — "there's this thing called the discretionary function exception"
The government's argument under it: "these are tough calls from these officers in difficult situations. And they're using personal judgment to try to stop a violent attack from happening"
The State Department Pauses Every Immigrant Visa Interview in the World
Grosso introduced the third segment as the Trump administration's plans for the single largest mass revocation of visas in U.S. history, and a crackdown widening from illegal entry to legal entry
Fresco began by describing the volume of confusion, and the amount of it landing on him — "I have clients, thousands of them, emailing me, what's going on?", and "I can't get to all of the emails"
What is actually paused is narrow: immigrant visa interviews, the green card interviews done abroad, which are a small subset of the total because most green card interviews happen inside the United States as a change of status
He noted the administration has been pushing people to wait abroad by making a change of status harder — and those are the interviews now unavailable
The stated reason is training: a brief period to train consular officers to judge whether an applicant will become a public charge
"And the public charge statute has actually existed since the 1800s, believe it or not" — the rule being that if the government thinks you will need government benefits, it should not let you in
The deadline nobody is talking about: some green card interviews have to happen before the end of the fiscal year, September 30th, or the applicant simply loses the right to the green card
"And I don't think that point is lost on the government because that may be, in fact, part of the reason that this is happening"
Those people may never get a green card unless a court lets them backdate the interview to the date it should have happened
The 75-Country Ban Was Struck Down, So the Pause Went Global
The administration had previously banned green cards from abroad for 75 countries, on the theory that almost everyone from those countries would be a public charge
A district judge, Judge Vargas, struck it down as nationality discrimination, under a green card provision Fresco cited as Section 1152(a)(1)(A): "You can't discriminate against people on the basis of their nationality when it comes to green card allocation"
Fresco's point is that the worldwide pause is the answer to that ruling, not a coincidence — "Then we're going to have this pause on the entire world. So now we're not discriminating against anybody"
He allowed there was a genuine argument in the ruling, since "there's certainly some rich people in every country around the world that will absolutely not be public charges"
The real question is duration: how long the administration can hold off before a federal court says there cannot be a permanent worldwide pause
"is it going to end up trying to be a wolf in sheep's clothing and be a pause that never ends until a court forces it to end"
Cutting Legal Immigration by Delaying Every Application
Asked directly whether the administration wants fewer green cards, Fresco said "Absolutely"
Its stated aim goes past illegal immigration: alongside deporting people without status, "we dramatically want to reduce the number of people coming in through the legal immigration system"
The method is process, not policy — every form of application is being delayed and "scrutinized with an eye toward delay, meaning the reason for the scrutiny is for the delay"
"The point is to cause the delay, and the reason for the delay is to lower the overall numbers so that there are fewer people who are coming to the United States, period"
Revoking Visitor Visas From Asylum Applicants
Grosso raised the plan to revoke business and tourism visas of up to 200,000 foreigners who applied for asylum, and Fresco immediately complicated it
The logic he laid out is about intent at the interview: a visitor visa is for a brief stay and a return, so applying for asylum after arriving is a declaration that you never intended to return — unless conditions changed after the interview, which he allowed happens
"Maybe the government got toppled. Maybe they received an individual threat, something like that. Who knows?"
Visitor visas are valid for 10 years and allow repeat entries, which is what the administration is objecting to: "You should not have a visa that allows you to leave and come back in for the next 10 years if you've already said you want asylum in the United States"
Fresco's verdict is that this one is defensible: "So from that standpoint, it does make sense. It's kind of a housekeeping matter to revoke the visa"
He argued Customs and Border Protection would have refused re-entry anyway, and voiced the officer's likely reaction — "wait a second, you applied for asylum and then you left? What is this?"
The headline number is not the number of people affected: some will be caught up by mistaken identity or something similar, "but it's not all 200,000. It'll be in the several thousand number"
Whether Asylum Claims Are Real, and the Trouble With "Social Group"
Grosso put the administration's view to him — that asylum is a sham and the fears are manufactured by people who want to stay
Fresco separated the textbook case from the contested one. The standard political claim is the Cold War dissident who fled Russia calling for free elections, where deportation means prison or death: "That's someone who should be allowed to stay here"
The pressure is all on one of the five grounds — asylum also covers race, religion, national origin and social group, and it is the social group category, "kind of amorphous", that people stretch
What the category was meant for: "I'm in a tribe where the other tribe is in power, and when the other tribe's in power, they kill people of my tribe"
What it has become: "you see these social groups that are three, four sentences long"
The government's rebuttal, as Fresco framed it: "how does someone even know that you fit into that category to persecute you? It's taken you four sentences to describe the social group in the first place"
The two big Central American claims of the last decade came through that category, after heavy migration during the Obama, first Trump and Biden administrations
For women, fleeing domestic violence from a spouse that the home government would not act on
For men, being forced to join a gang or be killed by its members for refusing
Whether those work has turned entirely on who is in office: the Obama and Biden administrations had more sympathy for them, while the Trump administration's position is "that's not my problem that your country is in disarray in this matter"
The line it draws instead: "This isn't the textbook, I'm fleeing from the Russian government because I'm opposing Vladimir Putin and I formed a political freedom group in my country. That's what we mean when we mean asylum"
Kastenberg's bottom line is that the government can probably prove the conduct — conduct unbecoming most easily of all — but that it has charged one act several times over, jailed an officer before trial in a way the system almost never does, and spent years blurring the political line it is now prosecuting, which is what gives the defense its openings on selective prosecution, double jeopardy and a run at federal court.
Books & Resources Mentioned
Parker v. Levy (The Supreme Court case upholding the court-martial of Captain Levy, who told Army medical corpsmen not to deploy to Vietnam — the controlling precedent on contemptuous speech under military law)
Puerto Rico versus Branstad (Cited by Fresco as the Supreme Court's holding that a governor cannot refuse an interstate extradition request)
18 U.S.C. Section 3182 (The extradition statute Fresco says makes the obligation mandatory rather than discretionary)
Section 1152(a)(1)(A) (The green card provision barring nationality discrimination, and the basis on which Judge Vargas struck down the 75-country ban)
Bivens (The route to suing federal officers for constitutional violations, which Fresco says a recent Border Patrol case has largely closed off)
The Federal Tort Claims Act (The alternative civil route, blocked in practice by the discretionary function exception)
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