Mark Kelly, a Democrat, is a US citizen and the senior US Senator representing Arizona. He serves on the Senate Armed Services Committee and the Select Committee on Intelligence. But according to Defense Secretary Pete Hegseth, Kelly’s status as a retired Navy captain constrains what he is allowed to say in other capacities. Hegseth thinks he has the authority to punish Kelly, a lawmaker who oversees Hegseth’s department, for criticizing Pentagon leadership and the Trump administration’s military policies.
In February, U.S. District Judge Richard Lyon, a George W. Bush appointees, rejected that astonishing claim, deeming it inconsistent with the First Amendment. Lyons issued a preliminary injunction barring Hegseth from “giving effect” to a letter of censure that found Hegseth offensive and wrongful to punish Kelly by reducing his retirement grade and pension. Now Hegseth is asking the U.S. Court of Appeals for the D.C. Circuit to override that order, reiterating his argument that retired military officers are subject to punishment, potentially including criminal prosecution, for political speech that he deems unilaterally “prejudicial to good order and discipline in the armed forces.”
in one a friend In briefs filed Friday, 73 former admirals, generals and service secretaries under presidents from both major parties underscored the dire implications of the designation. Hegseth “took the unprecedented step of punishing a U.S. senator and retired Navy captain for misrepresenting the law and criticizing federal policy,” they noted. “No retired service member can be legally sanctioned for these statements, least of all those whose public office requires them to speak on these issues.”
If Hegseth’s vendetta against Kelly is allowed to go forward, the brief warns, it will “chill public participation by veterans everywhere. Diverse viewpoints are critical to a free marketplace of ideas, and silencing experienced voices would be particularly harmful — depriving the public of experienced and informed opinions on critical matters of national security.”
According to the brief, that threat has already had a chilling effect. “Amici “Aware of many fellow veterans participating in the public debate, but refusing to do so today for fear of official reprisal,” it says.
Hegseth’s beef with Kelly stems primarily from a Nov. 18 video in which he and five other Democratic members of Congress reminded military personnel of their duty to “refuse unlawful orders.” That obligation is legally indisputable. “Members of
Armed forces must refuse to obey orders that are clearly illegal
War Violation, Defense Department Says. “Through strict instructions and tragic lessons from history,” Pam Bondi, who served as President Donald Trump’s attorney general until last month, noted in 2024, “military officers are trained not to carry out illegal orders, and they know they can be held criminally liable.” [do] Comply with such orders.”
The video didn’t give any specific examples of illegal orders, but it was critical of the Trump administration. “This administration is pitting our uniformed military and intelligence community professionals against American citizens,” Kelly et al. said Addressing “members of the military”, they noted that “all of you have taken an oath to protect and defend the Constitution”. But “now,” they warned, “threats to our constitution are coming not only from abroad, but from here at home. Our laws are clear. You can refuse illegal orders.” Although “we know it’s difficult” and “it’s a difficult time to be a public servant,” they added, “your vigilance is critical” and “we have your back.”
Trump was apoplectic. “This is called treasonous behavior at the highest level,” he wrote on Truth Social. “Each and every one of these traitors to our country must be arrested and prosecuted.” He added that “their words cannot be allowed to stand” because “we will have no more country!!!”
Hegseth echoed that assessment. “The video made by the ‘Seditious Six’ was despicable, reckless and wrong,” Hegseth told X Post. “Encouraging our warriors to ignore the orders of their commanders undermines every aspect of ‘good order and discipline.’ Their stupid screen sows doubt and confusion – which only endangers our warriors.” while “Five out of six people in that video don’t go down. [military] Jurisdiction,” he added, adding that Kelly “is still subject [the Uniform Code of Military Justice]- and he knows it.”
A letter of censure sent by Hegseth to Kelly on Jan. 5 falsely stated that Kelly had advocated “resistance to lawful orders” — a misdemeanor that Assistant Attorney General Brett Shumate repeated repeatedly in his DC Circuit brief. Hegseth also falsely claimed that Kelly “recognized [himself] ‘As a Captain in the United States Navy.’ Kelly actually said, “I was Captain in the United States Navy” (emphasis added).
In addition to the video, Hegseth cited “a continuing pattern of public statements that characterized lawful military operations as illegal and advised members of the armed forces to refuse orders related to those operations.” Significantly, he did not cite any specific statements that fit the latter description.
Kelly has been critical of Trump’s domestic military deployments. He participated in hearings on the matter and co-sponsored legislation that increased congressional oversight and restricted the president’s use of the National Guard. He also criticized Trump’s murderous military campaign against suspected cocaine traffickers. But judging from the evidence that Hegseth was able to gather, Kelly never expressly advised “members of the armed forces” to refuse orders relating to particular “operations”.
Asked whether the U.S. attack on the alleged drug boat was a “second strike to remove any survivors” — specifically, a violation of rules against attacking shipwrecked sailors — Kelly was the closest he could get. “It seems,” Kelly said. “I have serious concerns about anyone in that chain of command stepping over a line that they should never step over.” He said he would refuse to comply with such an order.
Hegseth resented Kelly’s criticism of the boat attack, which he said implied Hegseth was guilty of war crimes. Hegseth complained that Kelly had defended the video, that he described the theory as “non-controversial” and that “threats don’t work” to silence him. Hegseth also didn’t like it when Kelly said he would “always defend the Constitution.” And he was mad that Kelly blamed him for “removing admirals and generals” and surrounding himself with “yes men.”
This catalog of grievances makes it difficult to categorize the position Shumate takes on Hegseth’s behalf. Shumate acknowledged that “retired military members like Kelly undoubtedly … have broad rights to criticize military policy, participate in public debate, and express strong disagreements with military leaders.” Yet Hegseth sees his criticism as inherently threatening to national security.
As Hegseth states, the unifying theme of Kelly’s remarks was his determination to intervene in military discipline. “Viewed as a whole, your pattern of conduct demonstrates a specific intent to advise service members to refuse lawful orders,” Hegseth wrote. “This pattern shows that you did not provide an abstract legal education about the duty to refuse clearly illegal orders. You specifically advised service members to refuse specific actions that you characterized as illegal.”
Hegseth denied that Kelly had been “offended[d] Chain of command,” “advice[ed] Defiance,” “Create[d] Dereliction of duty,” brought “disrepute to the armed forces” and engaged in “conduct unbecoming an officer.” Those sins, he said, could justify sufficient censure and a reduction in Kelly’s retirement pay. “If you engage in conduct prejudicial to good order and discipline,” he warned, “you may find yourself further criminalized or prosecuted.”
In defense of these works, Hegseth noted Parker v. LeviA 1974 case in which the Supreme Court upheld a speech restriction imposed on active-duty service members. In that case was Captain Howard Levy, an Army medic stationed at Fort Jackson in South Carolina during the Vietnam War. Levy publicly stated that black soldiers should “refuse to go to Vietnam and refuse to fight if sent because they are discriminated against and denied their freedom in the United States.” He also said that “special force personnel are liars, thieves and killers of farmers and killers of women and children.”
As Kelly’s lawyers noted in their D.C. Circuit brief, that situation was quite different from the senator’s. “Far from resting on all fours with this case, Parker an attached one
“An active-duty officer directs soldiers at their wartime military posts to deploy and refuse special orders to fight,” they say. Nor have the defendants ever mentioned that a case was extended ParkerApplications from active-duty service members to retirees like Senator Kelly.
Leon did the same when he issued his preliminary injunction. “Secretary Hegseth relies on the well-established principle that military service members enjoy less robust First Amendment protections given their basic obligation to obedience and discipline in the armed forces,” he wrote. “Unfortunately for Secretary Hegseth, no court has extended those principles Retired Service members, much less a retired military member, serve in Congress and exercise oversight responsibilities in the military. This court will not be the first to do so! “
Defendants rest “their entire First Amendment defense on the argument that the more limited protection afforded to the First Amendment ․ active duty Army members extend up to a Retired Navy Captain,” noted Lyon. If they are wrong about that, then, as Lyon concludes, Hegseth’s retaliation against Kelly is clearly unconstitutional, since the speech that triggers it is “unquestionably protected” by the First Amendment, as Lyon also maintains.
Asking the D.C. Circuit to overturn that decision, Shumate argued that Kelly is still part of the armed forces, and that retired officers could theoretically be recalled to active duty “as a manpower resource of last resort after a determination that other resources are unavailable” or as a “source of unique skills not otherwise obtainable. But even in that unlikely event, Kelly’s lawyers noted, Defense Department policy requires those officers to be “deployed. [only] in civil defense jobs.” Shumate maintains that Kelly “could be recalled to active duty at any time” to “disobey those whose orders he had just urged”—a claim that Kelly’s lawyers called “far-fetched at best.”
The government “cannot justify broad restrictions on the speech of retirees based on the hypothetical threat of recall to active duty,” says the brief from former admirals, generals and service secretaries. “Legal recalls are exceedingly rare,” they note, and “recalling for the express purpose of retaliating against retirees for their protected speech” would violate the First Amendment. “A recall as envisioned by the government would, in our understanding, be without precedent,” they add. “For good reason: The government’s power to address legitimate personnel needs does not authorize a permanent gag order on the political speech of every retired military member.”
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