punitive

United States Senator Mark Kelly has sued the Department of Defense and its secretary, Pete Hegseth, over allegations they trampled his rights to free speech by embarking on a campaign of “punitive retribution”.

The complaint was filed on Monday in the US district court in Washington, DC. It also names the Department of the Navy and its secretary, John Phelan, as defendants.

“I filed a lawsuit against the Secretary of Defense because there are few things as important as standing up for the rights of the very Americans who fought to defend our freedoms,” Kelly, a veteran, wrote in a statement on social media.

Kelly’s lawsuit is the latest escalation in a feud that first erupted in November, when a group of six Democratic lawmakers – all veterans of the US armed services or its intelligence community – published a video online reminding military members of their responsibility to “refuse illegal orders”.

Democrats framed the video as a simple reiteration of government policy: Courts have repeatedly ruled that service members do indeed have a duty to reject orders they know to violate US law or the Constitution.

But Republican President Donald Trump and his allies have denounced the video as “seditious behaviour” and called for the lawmakers to face punishment.

A focus on Kelly

Kelly, in particular, has faced a series of actions that critics describe as an unconstitutional attack on his First Amendment right to free speech.

A senator from the pivotal swing state of Arizona, Kelly is one of the highest-profile lawmakers featured in November’s 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 elections.

But before his career in politics, Kelly was a pilot in the US Navy who flew missions during the Gulf War. He retired at the rank of captain. Kelly was also selected to be an astronaut, along with his twin Scott Kelly, and they served as part of the US National Aeronautics and Space Administration (NASA).

His entry into politics came after his wife, former Representative Gabby Giffords, was shot in the head during a 2011 assassination attempt. On Monday, Kelly described the Senate as “a place I never expected to find myself in”.

“My wife Gabby was always the elected official in our family,” he told his Senate colleagues. “If she had never been shot in the head, she would be here in this chamber and not me. But I love this country, and I felt that I had an obligation to continue my public service in a way that I never expected.”

Kelly’s participation in the November video has placed him prominently within the Trump administration’s crosshairs, and officials close to the president have taken actions to condemn his statements.

Shortly after the video came out, for instance, the Defense Department announced it had opened an investigation into Kelly. It warned that the senator could face a court-martial depending on the results of the probe.

The pressure on Kelly continued this month, when Hegseth revealed on social media that he had submitted a formal letter of censure against the senator.

That letter accused Kelly of “conduct unbecoming of an office” and alleged he had “undermined the chain of command” through his video.

Hegseth explained that the letter sought to demote Kelly from the rank he reached at his retirement, as well as reduce his retirement pay.

“Senator Mark Kelly — and five other members of Congress — released a reckless and seditious video that was clearly intended to undermine good order and military discipline,” Hegseth wrote on the platform X.

“As a retired Navy Captain who is still receiving a military pension, Captain Kelly knows he is still accountable to military justice. And the Department of War — and the American people — expect justice.”

Attacking political speech

Kelly responded to that claim by alleging that Hegseth had embarked on a campaign of politically motivated retribution, designed to silence any future criticism from US military veterans.

“Pete Hegseth is coming after what I earned through my twenty-five years of military service, in violation of my rights as an American, as a retired veteran, and as a United States Senator,” Kelly wrote on social media on Monday.

“His unconstitutional crusade against me sends a chilling message to every retired member of the military: if you speak out and say something that the President or Secretary of Defense doesn’t like, you will be censured, threatened with demotion, or even prosecuted.”

Kelly also took to the floor of the Senate on Monday to defend his decision to sue officials from the Trump administration.

“Every service member knows that military rank is earned. It’s not given. It’s earned through the risks you take,” Kelly told his fellow senators.

“After my 25 years of service, I earned my rank as a captain in the United States Navy. Now, Pete Hegseth wants even our longest-serving military veterans to live with the constant threat that they could be deprived of their rank and retirement pay years or even decades after they leave the military, just because he or another secretary of defence or a president doesn’t like what they’ve said.”

His lawsuit calls for the federal court system to halt the proceedings against him and declare Hegseth’s letter of censure unlawful.

The court filing makes a twofold argument: that the efforts to discipline Kelly not only violate his free speech rights but also constitute an attack on legislative independence, since they allegedly seek to intimidate a member of Congress.

“It appears that never in our nation’s history has the Executive Branch imposed military sanctions on a Member of Congress for engaging in disfavored political speech,” the lawsuit asserts.

The complaint also accuses the Trump administration of violating Kelly’s right to due process, given the high-profile calls from within the government to punish the senator.

It pointed to social media posts Trump made, including one that signalled he felt Kelly’s behaviour amounted to “SEDITIOUS BEHAVIOUR, punishable by DEATH”.

The lawsuit also argues that Hegseth’s letter of censure appeared to draw conclusions about Kelly’s alleged wrongdoing, only to then request that the Navy review his military rank and retirement benefits.

Such a review, the lawsuit contends, can therefore not be considered a fair assessment of the facts.

“The Constitution does not permit the government to announce the verdict in advance and then subject Senator Kelly or anyone else to a nominal process designed only to fulfill it,” the lawsuit said.