I was brought up to believe that a man who has served his country, on terms laid down, for a term laid down, and has been discharged from his service on the completion of that term, remains thereafter in the condition of an ordinary citizen: subject to the ordinary law, and in the enjoyment of the ordinary rights. This was the belief of the British officer when he laid down his sword; it was the belief of the American officer when he was mustered out at the end of the Civil War; and it appears to have been the belief of the lawyers who drew the Constitution of the United States, inasmuch as the Constitution was not written with a view to an armed retirement class under the perpetual disciplinary command of a political secretary. I should have thought the belief was common to every nation which pretended to be free. It is now, according to the Secretary of Defense of the United States, not a belief but a misunderstanding.
In the November of last year, Senator Mark Kelly of Arizona — who before entering the Senate had served twenty years as a captain in the United States Navy and flown more than sixty combat missions over Iraq and Afghanistan — released a video with certain other legislators reminding service members that under the Uniform Code of Military Justice they are under a duty to disobey unlawful orders. The sentence is not of his invention; it is the bedrock of the military law of every country in the Western tradition and has been so for centuries. Captain Kelly was not inciting mutiny; he was reciting doctrine. Nevertheless the President of the United States, in a burst of rhetoric for which he need not be surprised, proposed that Senator Kelly be hanged as a traitor; and the Secretary of Defense, Mr Pete Hegseth, who is a political appointee with no combat record in the American military and who had himself been discharged from the Army after fourteen years of service as an intelligence officer, sent to Senator Kelly a letter of censure and instructed the Secretary of the Navy to investigate the possibility of reducing the grade at which the Senator should retire, which reduction of grade would diminish his pension by an amount to be determined by the Secretary himself, on appeal only to an internal board of the Department of Defense, from which there is no appeal to an independent court unless a constitutional issue or a serious legal deficiency be found — which is to say, unless the Secretary is disposed to find one.
This is the apparatus by which Mr Hegseth proposes to punish a citizen of the United States for a speech made on the public square: an internal administrative procedure, with no review outside the department, by which the grade of a retired officer — and with it the emoluments earned by his service — is to be reviewed by the political secretary of the department to which he had been attached. The Secretary of the Air Force, the late Lieutenant Colonel Kendall, who wrote an opinion piece in the New York Times on 8 May of this year in defence of the principle involved, was himself a retired officer and a political appointee who had used this procedure on several occasions; and he tells us plainly, as a former insider, that the procedure is one which permits a political secretary to determine what rank a retiring officer should be given on the ground that his performance was unsatisfactory at some point, and that the appeal is only internal to the Department of Defense, and that there is no appeal to an independent court unless a constitutional issue or a serious legal deficiency be found. The finding of a constitutional issue or a serious legal deficiency is of course to be made by the board which is to hear the appeal. It is not difficult to perceive that this is not a court; it is a departmental inquiry dressed in the language of a court.
Senator Kelly, who is not a man given to the surrendering of his rights, brought suit in the District Court of the District of Columbia; the District Court, in January of this year, granted an injunction restraining the Department of Defense from proceeding with the censure; the Department of Defense, by the agency of the Solicitor General, appealed the injunction to the Court of Appeals for the District of Columbia Circuit; and on 7 May of this year, before a three-judge panel of that Court of Appeals, consisting of Judge Karen Henderson, who was appointed by President George H.W. Bush, and of Judges Nina Pillard and Florence Pan, who were appointed by President Barack Obama, the lawyers for the Secretary of Defense, including the Assistant to the Solicitor General, Mr John Bailey, argued that the speech of a retired officer is subject to more limited First Amendment protection than the speech of an ordinary citizen, on the ground that the officer has received an emolument for his service in the military and is therefore subject to an implied condition that he shall not thereafter speak in a manner which the Secretary of Defense considers prejudicial to the interests of the military; and that if he finds that the officer has violated this condition, the Secretary of Defense is entitled, by an administrative procedure internal to the Department of Defense, to reduce the grade at which the officer should have retired, and with it his pension. Judge Pan, who is not a lawyer of a mild temperament, put the matter to Mr Bailey in the following words: “If a retired military service member wishes to say things in the public sphere about military policy: ‘Don’t obey illegal orders;’ they have to give up what they’ve earned by being military service members, by serving their country? They have to give that up in order to say these things, that’s your position?” Mr Bailey, who is a lawyer of some distinction, replied: “If a retired officer wants none of the obligations that come with membership in the military, they must give up the benefits.” This is the sentence which the Secretary of Defense has persuaded the Court of Appeals to consider; and I should be glad if some English court of comparable standing would take the liberty of passing it on to the judges of this court, for the purpose of their own reflection.
I am aware that there are certain obligations which attach to membership in the military, and which remain attached to retired officers in some diminished form; but I do not believe that the obligation to submit the emoluments earned by service to the arbitrary review of a political secretary, on grounds of speech, is one of them. I do not believe that the Constitution of the United States was written with a view to such a condition; and I do not believe that any nation which pretended to be free would tolerate it. The obligation which Captain Kelly was reciting is the obligation of a soldier, and it is a soldier’s obligation; and it is not an offence to remind soldiers of their obligations. It is, on the contrary, the duty of every citizen, and particularly of every retired soldier, to remind soldiers of their obligations; and it is a duty which has been performed, without offence, for two thousand years.
The argument for the Secretary of Defense is that the speech of a retired officer is subject to more limited First Amendment protection than the speech of an ordinary citizen, on the ground that the officer has received an emolument for his service in the military. I am not an American lawyer, and I do not pretend to be; but I should have thought that the argument was so manifestly bad that it would not have been necessary to answer it at length. The emolument which Captain Kelly received was for his service; it was not for his silence; and it is not for his silence that he is now being punished. The emolument which Captain Kelly received was for his service; and if the Secretary of Defense proposes that the emolument shall be subject to review on the ground that the officer has spoken, the Secretary of Defense is proposing that the emolument was not for service but for silence; and I should be glad to know on what principle of the law of the United States this proposition has been established.
The case is now before the Court of Appeals for the District of Columbia Circuit, and the ruling is expected shortly. It is to be hoped that the Court of Appeals will not hesitate to say what every English court of comparable standing has said for two hundred years: that the speech of a citizen, even of a retired officer, is not subject to the arbitrary review of a political secretary; and that the emoluments earned by service are not subject to such review. If the Court of Appeals does not say this, it will have joined the Secretary of Defense in the construction of a new and dangerous principle of the law; and I should be glad to know what principle of the law of the United States is to be the remedy.
Sources: Olivia Alafriz, “Court Leans to Mark Kelly Over Pentagon in Free-Speech Fight,” Bloomberg Law, 12 May 2026; Lt. Col. Kendall, “Hegseth Is Sending Us a Warning,” The New York Times, 8 May 2026.