U.S. Sen. Mark Kelly has accused the Pentagon and its Secretary Pete Hegseth of trampling on free speech rights by embarking on a campaign of “punitive retaliation.”
The complaint was filed Monday in U.S. District Court in Washington, D.C. It also named the Department of the Navy and its Secretary John Phelan as defendants.
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“I filed suit against the Secretary of Defense because few things are more important than protecting the rights of the Americans who fought to protect our freedoms,” Kelly, a retired Army veteran, said in a statement on social media.
Mr. Kelly’s lawsuit is the latest escalation in a feud that first erupted in November. That’s when a group of six Democratic lawmakers, all veterans of the U.S. military or its intelligence agencies, released a video online reminding military personnel of their responsibility to “refuse unlawful orders.”
Democrats claimed the video was a simple repetition of government policy. Courts have repeatedly ruled that service members have a duty to refuse orders they know violate U.S. law or the Constitution.
But Republican President Donald Trump and his allies denounced the video as “inflammatory” and called on lawmakers to punish it.
Look out for Kelly
Mr. Kelly, in particular, faces a series of actions that critics describe as unconstitutional attacks on First Amendment free speech rights.
Kelly, a senator from the battleground state of Arizona, was one of the most high-profile senators to appear in the November video.
He is also considered a rising star in the Democratic Party and is widely speculated to be a candidate for president or vice president in the 2028 election.
But before he entered politics, Mr. Kelly served as a pilot in the U.S. Navy during the Gulf War. He retired with the rank of captain. Kelly and her twin, Scott Kelly, were selected as astronauts, and the two served as members of the National Aeronautics and Space Administration (NASA).
He entered politics after his wife, former Congresswoman Gabby Giffords, was shot in the head in a 2011 assassination attempt. On Monday, Kelly called the Senate “a place I never expected to be.”
“My wife Gabby has always been the elected official in our family,” he told his Senate colleagues. “If she hadn’t been shot in the head, she would be in this chamber, not me. But I love this country, and I felt an obligation to continue to serve in public service in a way I never expected.”
Kelly’s participation in the November video put him in the Trump administration’s crosshairs, and officials close to the president took action to condemn his comments.
For example, shortly after the video was released, the Pentagon announced it had opened an investigation into Kelly. He warned that the senator could be court-martialed depending on the outcome of the investigation.
The pressure on Kelly continued this month, with Hegseth announcing on social media that he had filed a formal letter of censure against the senator.
The letter accused Kelly of “conduct unbecoming of a public official” and claimed he “undermined the chain of command” through the video.
Hegseth said the letter demoted Kelly from his retirement position and reduced his severance pay.
“Senator Mark Kelly and five other members of Congress have released a reckless and inflammatory video clearly intended to undermine good order and military discipline,” Hegseth wrote on Platform X.
“As a retired Navy colonel still receiving military benefits, Captain Kelly knows he has a responsibility to military justice, and the Department of the Army and the American people expect justice.”
attack political speech
Kelly responded to the allegations, claiming Hegseth had embarked on a politically motivated retaliatory campaign to silence future criticism from U.S. military veterans.
“Pete Hegseth is coming after what I earned during my 25 years of military service. He violated my rights as an American, as a veteran, and as a United States senator,” Kelly wrote on social media on Monday.
“His unconstitutional campaign against me sends a chilling message to all veterans: If you speak out about something the president and the secretary of defense don’t like, you will be censured, threatened with demotion, and even prosecuted.”
Kelly also appeared before the full Senate on Monday to defend his decision to prosecute Trump administration officials.
“We know that military rank is earned. It’s not given. It’s earned by taking risks,” Kelly told his fellow senators.
“After 25 years of service, I earned the rank of captain in the United States Navy. Today, Pete Hegseth wants even the longest-serving veterans to live with the constant threat that their rank and retirement benefits could be stripped years or even decades after leaving the military just because they don’t like what he, another secretary of defense, or the president says.”
His lawsuit asks a federal court to halt proceedings against him and declare Hegseth’s censure letter illegal.
The court filing makes the dual claim that the effort to discipline Kelly not only violates his right to free speech, but also constitutes an attack on legislative independence because he is allegedly trying to intimidate members of Congress.
“It appears that never in our nation’s history has the executive branch imposed military sanctions on a member of Congress for making adverse political speech,” the lawsuit claims.
The complaint also accuses the Trump administration of violating Kelly’s right to due process, given growing calls from within the government to punish the senator.
It pointed out that President Trump’s social media posts included one suggesting that he felt Kelly’s actions amounted to “incitement punishable by the death penalty.”
The complaint also alleges that Mr. Hegseth’s letter of reprimand appeared to conclude Mr. Kelly’s alleged wrongdoing, but then only requested that the Navy review his military rank and retirement benefits.
Therefore, the lawsuit argues, such consideration cannot be considered a fair assessment of the facts.
“The Constitution does not permit the government to announce a verdict in advance and subject Sen. Kerry and others to a nominal process whose sole purpose is to implement it,” the complaint said.
