A federal judge signaled skepticism toward the Pentagon’s attempt to discipline Sen. Mark Kelly (D-Ariz.), questioning whether the military can punish a retired officer for speech urging service members to refuse unlawful orders.
Judge Questions Unprecedented Pentagon Move
On Tuesday, U.S. District Judge Richard Leon, a George W. Bush appointee, heard arguments in Kelly’s lawsuit seeking to block the Defense Department from censuring him and lowering his retirement rank, reported The Hill.
The dispute stems from a November video featuring six Democratic lawmakers with military or intelligence backgrounds.
In the video, the lawmakers encouraged troops to “refuse illegal orders.”
The Pentagon, under Defense Secretary Pete Hegseth, argues that military retirees remain subject to military authority and discipline.
Leon challenged that premise, noting the government failed to cite any prior cases applying such limits to retirees.
“It’s never been done before,” the judge said, describing the dispute as involving “lots of novel issues.”
Kelly Cites Free Speech Protections
Kelly’s attorney, Benjamin Mizer, called the Pentagon’s effort an “unprecedented punishment” for protected speech, warning the policy could reach far beyond the Arizona senator.
“Their rule would extend to every single retired service member in the country,” he said, adding there is “no support in precedent and no support in history.”
Justice Department lawyer John Bailey urged the court to let the Pentagon’s internal process play out and cautioned against judicial interference.
A ruling for Kelly, Bailey said, “would send a message that the military does not have control of its own forces.”
Kelly, who attended the hearing, said afterward that the Constitution supports his position.
Kelly Fights Pentagon Over Free Speech Rights
Kelly posted on X, said after the court hearing that the case is “not just for my Constitutional rights, but for millions of retired veterans and all Americans.”
He criticized Hegseth for censuring and trying to demote him over statements made as a senator, calling it part of a broader attack on First Amendment freedoms and praised the judge’s careful consideration of the lawsuit.
Last year, the FBI sought interviews with six Democratic lawmakers after President Trump accused them of “sedition” for a video urging service members to refuse unlawful orders, sparking a clash with Congress.
The inquiry coincided with the Pentagon reviewing whether Kelly had engaged in “potentially unlawful conduct,” which he called an attempt “to intimidate me.”
Senate Minority Leader Chuck Schumer (D-N.Y.) condemned Trump’s actions, calling them dictatorial and asserting his support for Kelly amid the Pentagon investigation.
Photo Courtesy: Mark Reinstein on Shutterstock.com
Disclaimer: This content was partially produced with the help of AI tools and was reviewed and published by Benzinga editors.
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