Federal judges push back on Pentagon's bid to punish Mark Kelly over illegal orders video

WASHINGTON, DC: A federal appeals court on Thursday, May 7, appeared doubtful of the Pentagon’s effort to discipline Sen Mark Kelly over a video in which he urged military personnel to refuse unlawful orders.

During arguments before the US Court of Appeals for the DC Circuit, a three-judge panel sharply questioned the Defense Department’s claim that Kelly, a retired Navy captain, could face military punishment, including a reduction in retirement rank, for participating in the video.

The case stems from a lawsuit Kelly filed in January after Defense Secretary Pete Hegseth initiated retirement grade determination proceedings and issued a formal letter of censure tied to the November video.

Judge Florence Pan questioned whether the Pentagon’s position effectively forces military retirees to surrender retirement benefits if they wish to speak freely.

“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,” Pan said during the hearing.

Mark Kelly's lawyers call punishment retaliation

Kelly’s attorney, Ben Mizer, argued that the Pentagon’s actions amounted to retaliation against protected political speech.

“The senator did not counsel disobedience of lawful orders,” Mizer told the court. “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 attorney John Bailey defended the Pentagon’s response, arguing that Hegseth interpreted the video as an indirect call to reject lawful military directives tied to ongoing operations.

“It was the secretary’s inference that this was a ‘wink, wink and a nod,’” Bailey said.

The judges, however, appeared unconvinced that the video clearly encouraged troops to disregard lawful commands.

Judge Cornelia Pillard noted that Kelly only later identified examples of actions he believed could constitute unlawful orders, including President Donald Trump’s deployment of National Guard troops and lethal strikes on suspected smuggling boats.

Mark Kelly accuses Trump administration of intimidation

A lower court previously blocked the Pentagon’s disciplinary effort, ruling that while active-duty service members have limited First Amendment protections, courts have never fully extended those restrictions to retired personnel.

The Justice Department has argued that military retirees remain subject to certain military standards because retirement does not entirely sever their ties to the armed forces.

After the hearing, Kelly accused the Trump administration of trying to silence critics and intimidate veterans.

“They’re trying to send a message to other retired veterans, and really, to all of us,” Kelly told reporters. “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,” he added. “I can’t think of anything that’s more un-American.”