An attorney for the Pentagon told appellate judges that when U.S. Sen. Mark Kelly counseled members of the military in a video that they should disobey illegal orders, he was really instructing them to disobey lawful ones.
The May 7 oral arguments at the U.S. Circuit Court of Appeals in Washington, D.C., offered the government another chance to convince a court that Pentagon chief Pete Hegseth can move to demote Kelly, D-Arizona, over his involvement in a November video with other Democratic lawmakers.
In February, U.S. District Judge Richard Leon at least temporarily blocked the Pentagon from pursuing the demotion. Hegseth is appealing that ruling, arguing that Leon wrongly drew a hard line between active-duty military personnel, who have limited speech rights, and everyone else, who have wider speech rights.
But at least two of the three judges considering the Pentagon’s case struck a skeptical tone to the government’s arguments, especially the idea that Kelly’s real intentions were inferred from the video with five other Democratic colleagues.
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“Here we have Sen. Kelly saying, ‘Don’t obey illegal orders,’” said Judge Florence Pan, appointed by former President Joe Biden. “And we also have the secretary saying that he meant to say the complete opposite of what he did say.”
The Pentagon argues that Kelly, a former Navy combat pilot, is still subject to recall to active duty and, thus, subject to the military’s rules governing limited speech rights. Kelly attended the court hearing in Washington.
Pan later said that the government’s position is that if retired officers like Kelly, who is a member of the Senate Armed Services Committee, wanted to weigh in on military policy, he should first resign his rank and forfeit his pension.
Kelly
“These are people who served their country,” she said. “Many of them put their lives on the line, and you’re saying that they have to give up their retired status in order to say something that is a textbook example, taught at West Point and the Naval Academy, that you can disobey illegal orders.”
John Bailey, an attorney for the Pentagon, repeatedly highlighted the limits on free speech in the military with a prior ruling against an active-duty officer who urged military personnel to refuse to fight in the Vietnam War.
But the appellate judges said that Leon’s earlier ruling for Kelly only held that the Vietnam-era case may not apply to someone who is a retiree. Also, Kelly only said something that is the military’s long-standing rule.
Leon “didn’t explicate some new theory about military retirees equals civilians. It never said that,” Pan said.
“There is a third possibility, which is that there is a different standard for military retirees. There are active duty, there are retirees and there are civilians. But that was never fleshed out because the government never made that argument.”
Bailey asked the judges to only draw from the Vietnam case the idea that messages undermining authority are not protected speech.
“The First Amendment applies differently in the military context, and that’s what we have here,” he argued.
“When it comes to … speech that is counseling disobedience to orders, that goes to the very heart of the military’s interest in maintaining order and discipline over its members. We’re saying that there that balance is always going to cash out in favor of the military, whether you’re active or you’re retired.”
Judge Cornelia Pillard, who was named to the bench by former President Barack Obama, wanted to know specifically what orders Kelly had counseled personnel to disobey.
Bailey instead suggested it “was a pattern of statements,” from Kelly’s concerns about the deployment of National Guard troops in cities to his concerns about military strikes on suspected drug boats in international waters.
Pillard called the video “the fulcrum of this case” and noted that Kelly — and his Democratic colleagues — never said to disobey unlawful orders.
Bailey conceded that is true, but Hegseth had drawn the only realistic inference from the video.
“There is only one reason why you would say that, and that is if it was with the specific intent to influence active-duty service members,” Bailey said. He likened Kelly’s words to a “wink, wink and a nudge.”
Judge Karen LeCraft Henderson, named to the bench by former President George H.W. Bush, seemed more sympathetic to Bailey’s arguments. In particular, she was concerned about Kelly’s comments at a news conference in which he said he would not have obeyed an order to fire a second strike on a boat already destroyed by a first target.
Bailey argued that such comments created the complete context of why Kelly’s comments should be viewed as undermining the military chain of command.
Benjamin Mizer, an attorney for Kelly, said it poses significant First Amendment problems for the executive branch to effectively deny a senator the right to speak at a news conference.
Besides, no court has ever held that military retirees have the same speech rights as civilians, and that is not what Kelly is seeking in this case, Mizer said.
