When Military Service Never Really Ends

In a Washington D.C. courtroom last week, a question hung in the air that nobody dared ask: Why were we even here?

Senator Mark Kelly—former fighter pilot, astronaut, and now Arizona Democrat—stood at attention as he entered Judge Richard Leon's courtroom, spine straight, fists curled, thumbs aligned with his pant seams. Old habits die hard. But Kelly wasn't there as a service member. He was there defending his right to speak as a civilian against an unprecedented attempt by Defense Secretary Pete Hegseth to strip him of his military retirement benefits.

The case centers on something that should be routine in American democracy: a lawmaker criticizing government policy.

The Video That Started It All

In November 2024, Kelly joined five other Democratic lawmakers—all military or intelligence veterans—in a video message to U.S. troops. Their message was simple: soldiers "can and must refuse illegal orders." The context was the Trump administration's domestic troop deployments, which critics feared might lead to confrontations with American citizens or election interference.

The response was swift and severe. Adviser Stephen Miller called it "insurrection." Donald Trump declared the lawmakers "traitors" who should be "arrested and put on trial," retweeting suggestions they be hanged. But Hegseth went further—he ordered the Navy to investigate Kelly's "potentially unlawful" comments.

Why Kelly specifically? He's the only participant who receives military retirement benefits, making him subject to military justice rules even as a sitting senator. Of America's 18 million military veterans, only a fraction reach retirement status with ongoing benefits and obligations.

In January, Hegseth issued Kelly a formal letter of censure, calling his statements "seditious" and requesting Navy Secretary John Phelan review Kelly's retirement rank and pay. The message was clear: criticize us, and we'll come for your benefits.

Breaking Precedent in Dangerous Ways

Legal experts are calling Hegseth's actions "straightforwardly outrageous and without merit." The military has pursued criminal cases against retirees before, but only for serious crimes like sexual assault—never for speech made after leaving service.

"It's important for the public to understand the extraordinary power that the administration is asking the courts to bless," says Ryan Goodman, a former Pentagon lawyer at NYU School of Law.

The implications extend far beyond Kelly's $100,000+ annual retirement pay. If successful, this case would establish precedent for punishing any military retiree whose speech displeases whoever holds power. Veterans who spent decades defending constitutional freedoms could find themselves stripped of benefits for exercising those same rights.

Dan Maurer, a former Army lawyer, believes the administration's real goal isn't winning in court—it's sending a message. "They don't care what the courts say, because they're going to depict them as liberal, woke courts," he told reporters, noting that even the Bush-appointed Judge Leon seemed skeptical of the government's arguments.

The Chilling Effect Takes Hold

Veterans are already feeling the impact. Multiple former service members report self-censoring criticism of administration policies, fearing retaliation against their benefits or current employment. Hegseth—who insists on being called the "war secretary"—has used social media to vilify opponents, including decorated veterans.

The pattern extends beyond Kelly. Hegseth stripped retired General Mark Milley of his security detail shortly after taking office. During Trump's first term, the president mused about recalling critical generals like Stanley McChrystal and William McRaven to active duty for court-martial, though Pentagon officials talked him out of it.

This represents a dramatic shift from American tradition. Retired military leaders have long served as some of the military's harshest—and most credible—critics. Dwight Eisenhower warned about the military-industrial complex. John F. Kennedy pushed back against generals he considered as dangerous as Soviet leaders.

Constitutional Questions in the Courtroom

Judge Leon's skepticism was palpable during the hearing. When Justice Department attorney John Bailey conceded there were "a few unique things" about their First Amendment claims, Leon shot back: "You think?"

The judge pressed a fundamental point: How can veterans serving on Congress's Armed Services Committees do their oversight job if they can't criticize the military without fear of prosecution?

The government's case relies on the argument that Kelly's speech could undermine military discipline even as a retiree. But their legal precedents don't quite fit—they involve either active-duty personnel or retirees charged with non-speech crimes.

Kelly's attorney, Benjamin Mizer, argued that Hegseth's public condemnation had already prejudiced any fair review. "He's not a decision maker who has kept an open mind," Mizer told the court.