Sen. Mark Kelly's (D-Ariz.) lawsuit against President Donald Trump's administration has far greater implications then the retired U.S. Navy captain's military pension.
That's according to a Monday essay by the Atlantic's Missy Ryan, who wrote that all retired military personnel are likely following Kelly's lawsuit very closely given what's at stake. Attorneys representing the Department of Defense (DoD) are attempting to justify the Pentagon's decision to cut Kelly's retirement pay by claiming his video — which he made with with five other Democrats who served in the military or in intelligence agencies — by saying he undermined the chain of command and harmed military discipline.
Kelly has countered that he is protected by the U.S. Constitution's Speech and Debate Clause, which prohibits members of Congress from being held liable for statements made as part of their duties as elected officials by any institution outside of Congress. And U.S. District Judge Richard Leon — an appointee of former President George W. Bush – has suggested that he'll rule in Kelly's favor. However, if he rules against Kelly, or if a ruling favorable to Kelly is eventually overturned on appeal, Ryan suggested it could have grave consequences for all veterans in the future.
"As someone who’s covered 10 secretaries of defense, I’ve never seen anything like what [Defense Secretary Pete] Hegseth is doing — not even close," Ryan wrote. "If Hegseth gets his way, he won’t just be punishing Kelly; he will succeed in dramatically curbing the First Amendment rights of all military retirees, some of the very people who have fought to defend such freedoms."
In the video itself, Kelly and others urged all members of the U.S. military and intelligence agencies to remember their duty to disobey illegal orders. The video was released prior to Hegseth overseeing an operation in which survivors of a boat strike in the Caribbean Sea clinging to debris from their wrecked vessel were ultimately blown apart in the water by a subsequent strike – which Maj. Gen. Steven J. Lepper (Ret.) said was a war crime.
Ryan wrote that the Trump administration's attempts to punish Kelly and chill his speech are "straightforwardly outrageous and without merit," according to several legal experts she interviewed for her article. She argued that regardless of how Judge Leon rules, the case represents a tipping point in the Trump administration's quest for drastically expanded executive power.
"Expanding the military’s ability to control veterans’ speech would be a major and historic reversal of basic freedoms," she wrote. "Retired service members turned public officials have a long history of criticizing Pentagon leaders in ways those leaders might find objectionable."
"If the government prevails, the silencing of longtime service members would be like barring retired doctors from opining on health policy," she added, referencing a comment from former U.S. Army lawyer and combat engineer Dan Maurer. "When debating matters of war and peace, he said, it serves the public to hear from the very people who have served on the front lines — and lived through the consequences."