{"id":5096,"date":"2026-01-27T03:12:03","date_gmt":"2026-01-27T03:12:03","guid":{"rendered":"https:\/\/sawahsolutions.com\/range\/sen-kellys-lawyers-say-pentagon-is-attempting-to-violate-his-constitutional-rights\/"},"modified":"2026-01-27T03:12:04","modified_gmt":"2026-01-27T03:12:04","slug":"sen-kellys-lawyers-say-pentagon-is-attempting-to-violate-his-constitutional-rights","status":"publish","type":"post","link":"https:\/\/sawahsolutions.com\/range\/sen-kellys-lawyers-say-pentagon-is-attempting-to-violate-his-constitutional-rights\/","title":{"rendered":"Sen. Kelly\u2019s lawyers say Pentagon is attempting to violate his constitutional rights"},"content":{"rendered":"
\n

Arizona Democratic Sen. Mark Kelly\u2019s 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\u2019t required to follow illegal orders.\u00a0<\/p>\n

Paul J. Fishman wrote in\u00a0a 35-page filing\u00a0that Defense Secretary Pete Hegseth\u2019s attempt to punish Kelly for appearing in the video alongside other members of Congress violates several constitutional rights.\u00a0\u00a0<\/p>\n

\u201cAs 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,\u201d Fishman wrote. \u201cHe asks this Court to reinforce, not degrade, those principles.\u00a0<\/p>\n

\u201cHis speech\u2014simply reminding servicemembers of their fundamental obligation not to follow unlawful orders\u2014 promotes good order. And discipline does not demand silence \u2014particularly from those no longer serving on active duty.\u201d<\/p>\n

Fishman firmly rejected the Department of Justice\u2019s assertion in\u00a0a brief filed last week\u00a0that the federal court system has no authority over the Defense Department\u2019s actions in this instance.\u00a0<\/p>\n

\u201cDefendants begin from the premise that questions of \u2018military discipline\u2019 lie beyond judicial review,\u201d Fishman wrote. \u201cTheir claim that this Court is \u2018not permitted to address\u2019 Senator Kelly\u2019s challenge disregards reams of precedent reviewing military disciplinary actions and demands an untenable level of deference.\u201d<\/p>\n

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.\u00a0<\/p>\n

Hegseth pursues penalties<\/strong><\/h4>\n

Defense Secretary Pete Hegseth\u00a0announced earlier this month\u00a0that he had started the process to downgrade Kelly\u2019s retirement rank and pay, writing in a social media post that his \u201cstatus as a sitting United States Senator does not exempt him from accountability, and further violations could result in further action.\u201d<\/p>\n

The Defense Department\u00a0letter of censure\u00a0to 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.\u00a0<\/p>\n

The\u00a0video\u00a0at 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.<\/p>\n

They said that Americans in those institutions \u201ccan\u201d and \u201cmust refuse illegal orders.\u201d<\/p>\n

\u201cNo one has to carry out orders that violate the law or our Constitution. We know this is hard and that it\u2019s a difficult time to be a public servant,\u201d they said. \u201cBut whether you\u2019re serving in the CIA, in the Army, or Navy, or the Air Force, your vigilance is critical.\u201d<\/p>\n

Kelly lawyer\u2019s arguments<\/strong><\/h4>\n

Fishman wrote in his brief that the Trump administration is asking the court to \u201cembrace a novel rule\u201d regarding the First Amendment: \u201cthat retired military veterans have no constitutional protection for their speech whenever the Secretary of Defense\u2014in his sole discretion and without even identifying all of the speech at issue\u2014concludes that it \u2018risks undermining military discipline and good order.\u2019\u201d\u00a0<\/p>\n

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.<\/p>\n

\u201cFrom Alexander Hamilton denouncing President Adams\u2019s fitness to command during the Quasi-War, to modern episodes in which retired generals publicly called for Secretary Rumsfeld\u2019s resignation over the Iraq War, retired officers have long participated forcefully in public debate over military policy,\u201d Fishman wrote.\u00a0<\/p>\n

\u201cThe same is true today: retired servicemembers, including Members of Congress, have openly criticized presidential decisions ranging from the Afghanistan withdrawal to vaccination requirements,\u201d he added. \u201cMany 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.\u201d<\/p>\n

This story was originally published by Stateline.<\/em>\n\n<\/svg><\/p>\n<\/div>\n