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Arizona Democratic Sen. Mark Kelly’s lawyers on Monday urged a federal judge to block the Defense Department from downgrading his retirement rank as a Navy captain and his pay for telling U.S. troops they aren’t required to follow illegal orders.
Paul J. Fishman wrote in a 35-page filing that Defense Secretary Pete Hegseth’s attempt to punish Kelly for appearing in the video alongside other members of Congress violates several constitutional rights.
“As a decorated combat veteran and member of the Senate Armed Services Committee, Senator Kelly is deeply committed to the necessity of good order and discipline in the armed forces,” Fishman wrote. “He asks this Court to reinforce, not degrade, those principles.
“His speech—simply reminding servicemembers of their fundamental obligation not to follow unlawful orders— promotes good order. And discipline does not demand silence —particularly from those no longer serving on active duty.”
Fishman firmly rejected the Department of Justice’s assertion in a brief filed last week that the federal court system has no authority over the Defense Department’s actions in this instance.
“Defendants begin from the premise that questions of ‘military discipline’ lie beyond judicial review,” Fishman wrote. “Their claim that this Court is ‘not permitted to address’ Senator Kelly’s challenge disregards reams of precedent reviewing military disciplinary actions and demands an untenable level of deference.”
Senior Judge Richard J. Leon, who was nominated to the bench by President George W. Bush, had scheduled a hearing on the issue for Wednesday, but postponed that until Feb. 3 due to the snowstorm.
Hegseth pursues penalties
Defense Secretary Pete Hegseth announced earlier this month that he had started the process to downgrade Kelly’s retirement rank and pay, writing in a social media post that his “status as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.”
The Defense Department letter of censure to Kelly alleged that his participation in the video undermined the military chain of command, counseled disobedience, created confusion about duty, brought discredit upon the Armed Forces and included conduct unbecoming of an officer.
The video at the center of the debate featured Kelly, Michigan Sen. Elissa Slotkin, Colorado Rep. Jason Crow, Pennsylvania Reps. Chris Deluzio and Chrissy Houlahan, and New Hampshire Rep. Maggie Goodlander, all Democrats with backgrounds in the military or intelligence community.
They said that Americans in those institutions “can” and “must refuse illegal orders.”
“No one has to carry out orders that violate the law or our Constitution. We know this is hard and that it’s a difficult time to be a public servant,” they said. “But whether you’re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.”
Kelly lawyer’s arguments
Fishman wrote in his brief that the Trump administration is asking the court to “embrace a novel rule” regarding the First Amendment: “that retired military veterans have no constitutional protection for their speech whenever the Secretary of Defense—in his sole discretion and without even identifying all of the speech at issue—concludes that it ‘risks undermining military discipline and good order.’”
The Justice Department’s brief from last week, he wrote, erroneously argued that retired military officers can legally face punishment for speaking out against Defense Department policies they oppose.
“From Alexander Hamilton denouncing President Adams’s fitness to command during the Quasi-War, to modern episodes in which retired generals publicly called for Secretary Rumsfeld’s resignation over the Iraq War, retired officers have long participated forcefully in public debate over military policy,” Fishman wrote.
“The same is true today: retired servicemembers, including Members of Congress, have openly criticized presidential decisions ranging from the Afghanistan withdrawal to vaccination requirements,” he added. “Many continue to serve with distinction as legislators, governors, and federal judges. Yet against that backdrop, Defendants assert the power to limit the First Amendment rights of more than two million retired servicemembers, all without judicial review.”
This story was originally published by Stateline.
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26 Comments
The case has significant implications for the future of military justice and the ability of servicemembers to speak out against unlawful orders, and I hope that the court will consider these implications carefully.
The court’s decision will likely have far-reaching consequences for the military and the country as a whole, and it’s essential that they get it right.
The video featuring Senator Kelly and other Democratic lawmakers with military backgrounds emphasizes the importance of vigilance and refusing illegal orders, which is a crucial aspect of upholding the Constitution and the law.
I’d like to see more discussion about the potential implications of this case for the broader military justice system, and how it may impact the ability of servicemembers to speak out against unlawful orders in the future.
The fact that Defense Secretary Pete Hegseth has started the process to downgrade Kelly’s retirement rank and pay suggests that the Defense Department is prioritizing discipline over the constitutional rights of its personnel, even after they’ve left active duty.
I’m curious to know more about the potential consequences for Senator Kelly if the Defense Department is successful in downgrading his retirement rank and pay, and how this might impact his future career.
The fact that Senator Kelly is a decorated combat veteran and member of the Senate Armed Services Committee adds weight to his argument that he is committed to good order and discipline in the armed forces.
It’s worth noting that Senior Judge Richard J. Leon, who was nominated by President George W. Bush, has postponed the hearing on this issue until February 3, which may indicate that the court is taking a careful and considered approach to this case.
I’m concerned that the Defense Department’s actions in this case may have a chilling effect on free speech and the ability of military personnel to speak out against unlawful orders, even after they’ve left active duty.
The Trump administration’s involvement in this case, as mentioned in Fishman’s brief, raises concerns about the potential for political interference in the military justice system.
The case highlights the tension between the need for discipline and obedience in the military, and the importance of protecting the constitutional rights of servicemembers, even after they’ve left active duty.
As someone who has served in the military, I can attest to the importance of following lawful orders and refusing those that are illegal, and I believe that Senator Kelly’s actions are a vital reminder of this obligation.
The postponement of the hearing until February 3 may give the parties involved time to reconsider their positions and come to a resolution, but it’s unclear what the ultimate outcome of the case will be.
The fact that Senator Kelly and the other lawmakers in the video are all Democrats with backgrounds in the military or intelligence community adds an interesting dynamic to the case, and raises questions about the role of politics in the Defense Department’s decision-making process.
The Defense Department’s letter of censure to Senator Kelly alleges that his actions brought discredit upon the Armed Forces, but it seems to me that the department’s own actions may be damaging the reputation of the military by attempting to punish someone for exercising their constitutional rights.
Fishman’s brief raises important questions about the limits of the Defense Department’s authority and the role of the federal court system in reviewing military disciplinary actions.
Senator Kelly’s lawyer, Paul J. Fishman, makes a compelling argument that the senator’s speech promotes good order and discipline, rather than undermining it, by reminding servicemembers of their obligation to refuse illegal orders.
I’m interested in hearing more about the reaction of other lawmakers and military personnel to this case, and how it may impact the broader debate about military justice and free speech.
I’m curious to know how the court will interpret the Defense Department’s claim that the federal court system has no authority over their actions in this instance, as mentioned in the Department of Justice’s brief.
As a veteran, I believe that Senator Kelly’s actions are a vital reminder of the importance of refusing illegal orders and upholding the Constitution, and I hope that the court will rule in his favor.
I agree, it’s essential for military personnel to understand their obligations and rights, and for the Defense Department to respect those rights, even after they’ve left active duty.
The Defense Department’s actions in this case seem to be at odds with the values of the military, which emphasizes the importance of integrity, respect, and obedience to lawful orders.
The attempt to downgrade Senator Kelly’s retirement rank and pay for reminding servicemembers of their fundamental obligation not to follow unlawful orders raises concerns about the limits of free speech for military personnel, even after they’ve left active duty.
Fishman’s argument that the Defense Department’s claim of no judicial review is ‘an untenable level of deference’ is a compelling one, and highlights the importance of checks and balances in the system.
I’d like to know more about the precedent for judicial review of military disciplinary actions, as mentioned in Fishman’s brief, and how this might impact the outcome of the case.
I’m skeptical about the Defense Department’s claim that Senator Kelly’s participation in the video undermined the military chain of command, as it seems to me that he was simply reminding servicemembers of their legal obligations.