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Federal Judge Questions Pentagon’s Authority to Censure Senator for Free Speech
A federal judge expressed skepticism Tuesday about the Pentagon’s legal basis for censuring U.S. Senator Mark Kelly, suggesting the military’s actions against the retired Navy pilot may lack precedent in Supreme Court jurisprudence.
During a high-stakes hearing in Washington, U.S. District Judge Richard Leon questioned the Defense Department’s authority to punish Kelly, an Arizona Democrat, for participating in a video that urged troops to resist potentially unlawful orders from the Trump administration.
“You’re asking me to do something the Supreme Court has never done,” Judge Leon told Justice Department attorney John Bailey. “Isn’t that a bit of a stretch?”
Kelly, who sat in the front row of the courtroom, is challenging the January 5 censure issued by Defense Secretary Pete Hegseth. The senator’s legal team argues the Pentagon violated his First Amendment rights when it launched proceedings that could ultimately result in Kelly’s demotion from his retired rank of captain and a reduction in his retirement pay.
Benjamin Mizer, representing Kelly, argued that no legal precedent exists supporting the notion that military retirees have “diminished speech rights.” He maintained the First Amendment clearly protects Kelly’s statements in this case.
“Any other approach would be to make new law,” Mizer told the court.
The Pentagon initiated its investigation of Kelly in late November after he appeared alongside five other Democratic lawmakers in a 90-second video first posted on Senator Elissa Slotkin’s social media account. The video featured veterans of the armed services and intelligence communities urging military personnel to uphold the Constitution and not follow unlawful directives from the Trump administration.
The video prompted a fierce response from former President Donald Trump, who accused the lawmakers of sedition “punishable by DEATH” in a social media post days later.
The Defense Department’s position hinges on a federal law that permits retired service members to be recalled to active duty on orders of the defense secretary for possible court-martial or other punishment. Bailey argued that Congress has determined that retired military personnel remain subject to the Uniform Code of Military Justice.
“Retirees are part of the armed forces,” Bailey stated. “They are not separated from the services.”
Hegseth has previously stated that Kelly was singled out for investigation because he is the only one of the six lawmakers who formally retired from the military and still falls under Pentagon jurisdiction. The other participants in the video included Representatives Jason Crow, Chris Deluzio, Maggie Goodlander, and Chrissy Houlahan.
Judge Leon, who was nominated to the bench by Republican President George W. Bush, expressed concern that the Pentagon’s actions against Kelly could have a chilling effect on “many, many other retirees who wish to voice their opinion.” The judge indicated he hopes to issue a ruling by next Wednesday.
The case raises significant questions about the balance between military discipline and constitutional rights for retired service members who later enter politics. Legal experts note that this ruling could establish important precedent regarding the Pentagon’s authority to discipline retired military personnel for political speech made in their capacity as elected officials.
After the hearing, Kelly, who completed 25 years of service in the Navy and NASA before entering politics, was observed shaking hands with two government attorneys, highlighting the professional demeanor maintained throughout these contentious proceedings.
The judge’s eventual ruling will likely have implications not only for Kelly’s standing with the military but could also influence how retired service members who enter public office navigate their dual identities as veterans and elected officials.
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16 Comments
As a retired naval officer, I can understand the Pentagon’s perspective on maintaining discipline. However, the judge raises valid concerns about the legal precedent here. Curious to see how this unfolds.
I agree, the Pentagon needs to be very careful in how it proceeds. Overreach could undermine public trust in the military’s impartiality.
Interesting case. The judge seems to be skeptical about the Pentagon’s legal justification for punishing Sen. Kelly. I’m curious to see how this plays out – it’s important to uphold free speech rights, even for retired military members.
Absolutely, the First Amendment must be protected. The Pentagon’s actions appear questionable and could set a concerning precedent if allowed to stand.
This case highlights the delicate balance between military discipline and constitutional rights. The judge is right to scrutinize the Pentagon’s justification closely. Curious to see how this plays out and the potential ramifications.
This is an important test case for the boundaries of military authority. The judge seems skeptical that the Pentagon has the legal justification to punish a Senator for their speech. Intriguing developments.
Interesting to see the judge push back on the Pentagon’s justification for punishing Sen. Kelly. Free speech rights are fundamental, even for those with military backgrounds. Will be watching this case closely.
The Pentagon’s censure of Sen. Kelly raises serious First Amendment concerns. The judge is right to scrutinize their legal rationale closely. Protecting free speech, even for retired military, is crucial.
Absolutely. The military must be held to the highest standards when it comes to respecting civil liberties. This case could set an important precedent.
Censuring a Senator for free speech is a bold move by the Pentagon. The judge seems to think they’re on shaky legal ground. This case could have broader implications for civil-military relations if not handled properly.
This is a complex issue with valid arguments on both sides. On one hand, military discipline and order are crucial. But the judge raises a fair point about the Supreme Court’s past rulings on this. Will be interesting to see the final outcome.
You’re right, it’s a delicate balance. The Pentagon needs to tread carefully to avoid overstepping its authority and infringing on constitutional rights.
The judge’s skepticism seems warranted. Censuring a Senator for their speech is a weighty action that requires a very strong legal foundation. The Pentagon will need to make a compelling case to overcome the First Amendment concerns.
Agreed. The military must be extremely cautious about infringing on political speech, even from retired personnel. The stakes are high for civil-military relations.
The judge’s skepticism is understandable. Punishing a Senator for their speech is a serious matter that requires clear legal precedent. The Pentagon will need to make a very strong case to overcome the First Amendment concerns raised.
Absolutely. Protecting free speech, even for those with military ties, is critical. The Pentagon must tread carefully to avoid setting a troubling precedent.