Senator Mark Kelly Fights Pentagon’s Attempt to Downgrade Rank

Senator Mark Kelly is taking legal action against the Pentagon, claiming that the Defense Department is infringing upon his constitutional rights. Kelly’s lawyers filed a motion on January 29, 2024, seeking to prevent the Department of Defense from downgrading his retirement rank from Navy captain and altering his pay. This move follows Kelly’s remarks in a video urging U.S. servicemembers to resist unlawful orders.

Legal Arguments Against the Pentagon’s Actions

In a 35-page filing, attorney Paul J. Fishman argued that Defense Secretary Pete Hegseth is attempting to punish Kelly for promoting adherence to legal and constitutional obligations. Fishman emphasized that as a decorated combat veteran and a member of the Senate Armed Services Committee, Kelly understands the importance of maintaining order and discipline within the military.

“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 stated.

Fishman strongly contested the Department of Justice’s claim that federal courts lack jurisdiction over the Pentagon’s disciplinary measures. He pointed out that historical precedent allows for judicial review of military actions, challenging the notion that military discipline is beyond the reach of the courts.

Details of the Pentagon’s Censure

Hegseth publicly announced the decision to initiate penalties against Kelly earlier this month, asserting that Kelly’s status as a sitting senator does not shield him from accountability. The official censure claimed that Kelly’s involvement in the video undermined the military chain of command and constituted conduct unbecoming of an officer.

The video featured several Democratic lawmakers, including Elissa Slotkin and Jason Crow, who collectively stated that Americans in military and intelligence roles “can” and “must refuse illegal orders.” They emphasized the critical role of vigilance among those serving in the armed forces during challenging times.

Fishman pointed out that the Trump administration’s interpretation of the First Amendment suggests that retired military personnel have diminished rights when speaking against Defense Department policies. He noted that historical examples, from Alexander Hamilton to contemporary retired generals, illustrate the ongoing tradition of retired officers engaging in public discourse regarding military policy.

As the case progresses, Senior Judge Richard J. Leon, appointed by former President George W. Bush, has postponed a scheduled hearing from January 31 to February 3, 2024, due to inclement weather. The outcome of this legal battle could have significant implications for the rights of retired military personnel and their ability to engage in public debate.