A federal appeals court panel seemed skeptical Thursday of the Department of Defense’s efforts to censure Sen. Mark Kelly (D-Ariz.) and lower his retirement rank over his role in a controversial video.
A three-judge panel on the U.S. Court of Appeals for the D.C. Circuit sharply questioned the Pentagon over its assertion that Kelly, a retired Navy captain, is subject to military punishment for participating in the video that called on service members to “refuse illegal orders.”
“You’re saying that, if he wants to speak freely, he should discharge himself, which means giving up his retirement pay, giving up his rank, giving up all of those things,” said Judge Florence Pan, an appointee of former President Biden. “That that is the price that our military retirees and veterans should pay if they want to speak freely?”
Kelly sued in January after Defense Secretary Pete Hegseth announced the Pentagon had initiated retirement grade determination proceedings and issued a formal letter of censure over the November video, in which Kelly and five other Democrats with intelligence or military backgrounds called on troops to “refuse illegal orders.”
A federal judge in February blocked the Pentagon’s efforts, asserting that while service members enjoy weakened First Amendment protections to preserve discipline in the armed forces, no court had ever extended that doctrine to retired service members.
Ben Mizer, a lawyer for Kelly, told the panel that the punishments imposed on the senator are “textbook retaliation against disfavored speech.”
“The senator did not counsel disobedience of lawful orders,” Mizer said. “He simply recited the bedrock proposition of military law that every service member learns when they enter the military, which is that service members can refuse illegal orders.”
Justice Department lawyer John Bailey contended that the video amounted to a veiled call to reject lawful directives.
“It was the secretary’s inference that this was a ‘wink, wink and a nod,’” he said, suggesting that Hegseth viewed the message as regarding “specific ongoing operations” and encouragement to disobey directives relating to them.
The other Democrats who participated in the video were Sen. Elissa Slotkin (Mich.) and Reps. Chris Deluzio (Pa.), Maggie Goodlander (N.H.), Chrissy Houlahan (Pa.) and Jason Crow (Colo.).
The lawmakers at the time the video was shared did not specify which orders from the administration they viewed as illegal, but in later court filings, Kelly pointed to President Trump’s deployment of National Guard members to cities and a series of lethal strikes against boats allegedly smuggling drugs.
The judges seemed unconvinced by the government’s suggestion that the video made that clear.
“Here, the details about what Sen. Kelly thinks are unlawful orders come months later,” said Judge Cornelia Pillard, an appointee of former President Obama. “Like, somebody who’s a service member who’s listening to that video — is there any basis to think that they would infer when he says, ‘unlawful orders,’ that he’s characterizing some category of what the secretary thinks are lawful orders to be unlawful?”
“I think the point is that he looked at the totality and drew an inference that it was counselling disobedience,” Bailey pushed back.
The district court granted Kelly’s request for a preliminary injunction solely as to his First Amendment claim, reserving judgment on the senator’s other claims. Those include that efforts constituted a violation of the separation of powers, Kelly’s due process rights and the Speech or Debate Clause, which shields lawmaker conduct carried out as part of their legislative activities.
The Justice Department has argued that the speech of veterans is more limited than that of regular civilians. It says that retirement from active service is not the same as separation from the military, requiring former service members to abide by stricter standards.
Pan pressed the government on a hypothetical asking whether an individual who opens a military draft notice would immediately be limited in their First Amendment right to criticize the military. After demurring several times, the government agreed that immediately upon joining the armed forces, conditions fall in place.
“I think that kind of proves the point that that can’t possibly be the correct interpretation,” Pan said.
After the arguments, Kelly told reporters that he “will not back down” as his legal challenge proceeds.
“They’re trying to send a message to other retired veterans, and really, to all of us,” the Arizona Democrat said. “If you say something that the president or this administration does not like, they’re going to come after you.
“The president is trying to silence us, and I can’t think of anything that’s more un-American.”
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