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Mark Kelly, a Democrat, is an American citizen and the senior U.S. senator representing Arizona. He serves on the Senate’s Armed Services Committee and Select Committee on Intelligence. But according to Defense Secretary Pete Hegseth, Kelly’s status as a retired Navy captain constrains what he is allowed to say in those other capacities. Hegseth thinks he has the authority to punish Kelly, a legislator whose job includes oversight of Hegseth’s department, for criticizing his leadership of the Pentagon and the Trump administration’s military policies.

In February, U.S. District Judge Richard Leon, a George W. Bush appointee, rejected that astonishing claim, deeming it inconsistent with the First Amendment. Leon issued a preliminary injunction that barred Hegseth from “giving effect” to a letter of censure that faulted Kelly for saying things that irked Hegseth and from penalizing Kelly by reducing his retirement grade and pension. Now Hegseth is asking the U.S. Court of Appeals for the D.C. Circuit to override that injunction, reiterating his argument that retired military officers are subject to punishment, potentially including criminal prosecution, for political speech that he unilaterally deems “prejudicial to good order and discipline in the armed forces.”

In an amicus brief filed on Friday, 73 former admirals, generals, and service secretaries who held positions under presidents of both major parties emphasize the alarming implications of that position. Hegseth has taken “the unprecedented step of punishing a U.S. Senator and retired Navy Captain for accurate statements of law and criticisms of federal policy,” they note. “No retired servicemember could be lawfully sanctioned for these statements, least of all one whose public office requires that he speak on these issues.”

If Hegseth’s vendetta against Kelly were allowed to proceed, the brief warns, it “would chill public participation by veterans everywhere. Diverse viewpoints are critical to a free marketplace of ideas, and silencing veteran voices would be especially harmful—depriving the public of experienced and informed views on critical matters of national security.”

According to the brief, that threat already has had an intimidating impact. “Amici are aware of many fellow veterans who would participate in public debate, but are declining to do so today, fearing official reprisal,” it says. “This chilling effect risks silencing dissent from those who served in uniform—a critical ingredient in American self-governance dating back to those who fought for our independence.”

Hegseth’s beef with Kelly stems mainly from a November 18 video in which he and five other Democratic members of Congress reminded military personnel of their duty to “refuse illegal orders.” That obligation is legally uncontroversial. “Members of
the armed forces must refuse to comply with clearly illegal orders to commit
law of war violations,” the Defense Department says. “Through rigorous instruction and tragic lessons from history,” Pam Bondi, who served as President Donald Trump’s attorney general until last month, noted in 2024, “military officers are trained not to carry out unlawful orders, and they know they may be held criminally liable if they [do] carry out such orders.”

The video did not give any specific examples of unlawful orders, but it was critical of the Trump administration. “This administration is pitting our uniformed military and intelligence community professionals against American citizens,” Kelly et al. said. Addressing “members of the military,” they noted that “you all swore an oath to protect and defend” the Constitution. But “right now,” they warned, “the threats to our Constitution aren’t just coming from abroad, but from right here at home. Our laws are clear. You can refuse illegal orders.” Although “we know this is hard” and “it’s a difficult time to be a public servant,” they added, “your vigilance is critical” and “we have your back.”

Trump was apoplectic. “It’s called SEDITIOUS BEHAVIOR AT THE HIGHEST LEVEL,” he wrote on Truth Social. “Each one of these traitors to our Country should be ARRESTED AND PUT ON TRIAL.” He added that “their words cannot be allowed to stand” because “we won’t have a Country anymore!!!”

Hegseth echoed that assessment. “The video made by the ‘Seditious Six’ was despicable, reckless, and false,” Hegseth said in an X post. “Encouraging our warriors to ignore the orders of their Commanders undermines every aspect of ‘good order and discipline.’ Their foolish screed sows doubt and confusion—which only puts our warriors in danger.” While “five of the six individuals in that video do not fall under [military] jurisdiction,” he added, Kelly “is still subject to [the Uniform Code of Military Justice]—and he knows that.”

The letter of censure that Hegseth sent Kelly on January 5 falsely stated that Kelly had advocated “resistance to lawful orders”—a mischaracterization that Assistant Attorney General Brett Shumate repeats over and over again in his D.C. Circuit brief. Hegseth also inaccurately claimed that Kelly “identified [himself] as ‘a Captain in the United States Navy.'” Kelly actually said, “I was a captain in the United States Navy” (emphasis added).

In addition to the video, Hegseth cited “a sustained pattern of public statements that characterized lawful military operations as illegal and counseled members of the Armed Forces to refuse orders related to those operations.” Notably, he did not quote any specific statements fitting the latter description.

Kelly had been critical of Trump’s domestic military deployments. He participated in hearings on the subject and co-sponsored legislation that would have increased congressional oversight and restricted the president’s use of the National Guard. He also criticized Trump’s murderous military campaign against suspected cocaine smugglers. But judging from the evidence that Hegseth has been able to muster, Kelly never explicitly “counseled members of the Armed Forces to refuse orders” related to specific “operations.”

The closest Kelly came to that was when he was asked, during a November 30 interview on CNN, whether “a second strike to eliminate any survivors” of a U.S. attack on an alleged drug boat would constitute “a war crime”—specifically, a violation of the rule against attacking shipwrecked sailors. “It seems to,” Kelly said. “I have got serious concerns about anybody in that chain of command stepping over a line that they should never step over.” He added that he would have refused to follow such an order.

Hegseth resented Kelly’s criticism of the boat strikes, which he said amounted to an accusation that Hegseth was guilty of war crimes. Hegseth complained that Kelly had defended the video, that he had described the principle it enunciated as “non-controversial,” and that he had said “intimidation would not work” to silence him. Hegseth also did not like it when Kelly said he would “ALWAYS defend the Constitution.” And he was mad that Kelly had faulted him for “firing admirals and generals” and surrounding himself with “yes men.”

This catalog of complaints is hard to square even with the position that Shumate takes on Hegseth’s behalf. Shumate concedes that “retired servicemembers like Kelly undoubtedly…have a broad right to criticize military policy, participate in public debate, and express even vehement disagreement with military leaders.” Hegseth nevertheless seems to view criticism of him as inherently threatening to national security.

As Hegseth told it, the unifying theme of Kelly’s comments was his determination to interfere with military discipline. “When viewed in totality, your pattern of conduct demonstrates specific intent to counsel servicemembers to refuse lawful orders,” Hegseth wrote. “This pattern demonstrates that you were not providing abstract legal education about the duty to refuse patently illegal orders. You were specifically counseling servicemembers to refuse particular operations that you have characterized as illegal.”

Hegseth averred that Kelly had “undermine[d] the chain of command,” “counsel[ed] disobedience,” “create[d] confusion of duty,” brought “discredit upon the Armed Forces,” and engaged in “conduct unbecoming of an officer.” Those sins, he said, amply justified censure and might justify cutting Kelly’s retirement pay. “If you continue to engage in conduct prejudicial to good order and discipline,” he warned, “you may subject yourself to criminal prosecution or further administrative action.”

In defense of these actions, Hegseth cites Parker v. Levy, a 1974 case in which the Supreme Court upheld speech restrictions imposed on active-duty service members. That case involved Capt. Howard Levy, an Army physician assigned to Fort Jackson in South Carolina during the Vietnam War. Levy had publicly said that black soldiers “should refuse to go to Viet Nam and if sent should refuse to fight because they are discriminated against and denied their freedom in the United States.” He also stated that “Special Forces personnel are liars and thieves and killers of peasants and murderers of women and children.”

As Kelly’s lawyers note in their D.C. Circuit brief, that situation was starkly different from the senator’s. “Far from resting on all fours with this case, Parker involved an
active-duty officer directly urging soldiers at his wartime military post to refuse specific orders to deploy and fight,” they say. “Senator Kelly, by contrast, is a retired officer and legislator who publicly called, alongside other Members of Congress, for adherence to settled law, not defiance of it. Nor have Defendants ever cited a single case expanding Parker‘s application from active-duty servicemembers to retirees like Senator Kelly.”

Leon made the same point when he issued his preliminary injunction. “Secretary Hegseth relies on the well-established doctrine that military servicemembers enjoy less vigorous First Amendment protections given the fundamental obligation for obedience and discipline in the armed forces,” he wrote. “Unfortunately for Secretary Hegseth, no court has ever extended those principles to retired servicemembers, much less a retired servicemember serving in Congress and exercising oversight responsibility over the military. This Court will not be the first to do so!”

The defendants “rest their entire First Amendment defense on the argument that the more limited First Amendment protection for active-duty members of the military extends to a retired naval captain,” Leon noted. If they are wrong about that, as Leon concluded they were, Hegseth’s retaliation against Kelly is obviously unconstitutional, since the speech that triggered it is “unquestionably protected” by the First Amendment, as Leon also held.

Urging the D.C. Circuit to overturn that decision, Shumate argues that Kelly is still part of the armed forces, noting that retired officers theoretically can be called back to active duty “as a manpower source of last resort after other sources are determined not to be available” or as “a source for unique skills not otherwise obtainable.” But even in that unlikely event, Kelly’s lawyers note, Defense Department policy says those officers “should be deployed [only] to civilian defense jobs.” Shumate nevertheless maintains that Kelly “may be recalled to active duty ‘at any time'” to “command the very servicemembers whose disobedience he just urged”—a claim that Kelly’s lawyers call “far-fetched at best.”

The government “cannot justify sweeping restrictions on a retiree’s speech based on the hypothetical threat of recall to active duty,” says the brief from former admirals, generals, and service secretaries. “Lawful recalls are extremely rare,” they note, and “recall for the clear purpose of retaliating against a retiree for their protected speech” would violate the First Amendment. “A recall like the one hypothesized by the government would be, in our understanding, without precedent,” they add. “For good reason: the government’s power to address legitimate staffing exigencies does not authorize a perpetual gag order over every retired military member’s political speech.”

The post Pete Hegseth Wants the D.C. Circuit To Let Him Punish a Senator for Criticizing Him appeared first on Reason.com.

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Robby Soave and Christian Britschgi discuss the allegations against former congressman Eric Swalwell and how that will affect the gubernatorial race in California. Then they jump to talking about President Donald Trump’s feud with the pope and the “shadow fleet” in Iran. Finally, they end by defending Waymo and autonomous vehicles and complaining about filing their taxes.

0:00—All things Eric Swalwell

13:21—Katie Porter’s role in Swalwell’s downfall

16:14—Former Lt. Gov. of Virginia Justin Fairfax

23:01—Is it easier to sift through sexual assault allegations now with the internet?

27:09—Police in TV shows are “the biggest morons.”

31:03—The pope is feuding with Trump.

40:54—Christian explains the “shadow fleet” in Iran.

43:38—Robby finally finished his fantasy novel.

51:34—Richard Hanania’s essay about AI writing

1:08:34—Sen. Bernie Sanders (I–Vt.) is so bad on economics and AI.

1:16:34—D.C. mayor brought back the teen curfew

1:21:04—Robby and Christian did not fight as children.

1:29:10—Doing taxes drives Robby and Christian crazy.

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A recent Alabama Supreme Court ruling has vastly expanded police power in the state, holding that law enforcement can demand physical identification under the state’s stop-and-identify law when someone provides “incomplete or unsatisfactory” answers to police questions about their name, address, and actions during a police stop. 

Although Alabama’s law clearly requires some individuals to carry ID, like drivers and voters, the state supreme court’s ruling seems to imply a general requirement for individuals to carry identification at all times—even when watering flowers. 

On May 22, 2022, Michael Jennings, a pastor who lives in Childersburg, Alabama, southeast of Birmingham, was approached by a police officer while watering flowers. Body cam footage shows an officer responding to a 911 call about a suspicious person and asking Jennings about the vehicle in the driveway and the house. “It’s my neighbor’s vehicle,” Jennings answered. “Well, they’re saying that this vehicle isn’t supposed to be here, and you’re not supposed to be here,” continued the officer. 

“I’m supposed to be here,” Jennings replied. “I’m Pastor Jennings. I live across the street….I’m looking after their house while they’re gone, watering their flowers.

Apparently unsatisfied with Jennings’ forthcoming response, the officer then asks Jennings for “identification” while gesturing as if holding a card. “Oh no, man, I’m not going to give you no ID….I ain’t did nothing wrong,” Jennings responds. Agitated over the officers’ continued requests to produce identification, Jennings begins walking away. A second officer places him in handcuffs as the men continue to argue and ultimately places him under arrest. 

A few minutes later, the neighbor who had placed the initial 911 call speaks with the officers. Answering whether Jennings has permission to water the flowers, the neighbor replies, “He may, because they are friends, and they went out of town today. So he may be watering their flowers.” “That would be completely normal,” she continues. “This is probably my fault.”  

Under the Alabama law, an officer “may stop any person abroad in a public place whom he reasonably suspects is committing, has committed or is about to commit a felony or other public offense and may demand of him his name, address and an explanation of his actions.” (emphasis added.) But despite Jennings volunteering much of this information from the start and later clarifying his full name when asked, the officers arrested Jennings because he refused to produce physical identification—an item not expressly articulated in the state’s law. 

Jennings was charged with obstructing a governmental function, a misdemeanor offense punishable by up to one year in jail and a $6,000 fine. 

Although the charges against him were later dismissed, Jennings filed a civil federal lawsuit and accused the officers of violating his Fourth Amendment rights by, in part, arresting him without probable cause. And while the district court initially dismissed his suit, finding the officers were immune from civil liability, the 11th Circuit of Appeals disagreed. By reading the text of the Alabama code plainly, the appellate judges found that the officers lacked probable cause to arrest Jennings because they were only authorized to demand three things: his name, address, and an explanation of his actions. 

“While it is always advisable to cooperate with law enforcement,” wrote the appellate court, “Jennings was under no legal obligation to provide his ID.” The 11th Circuit reversed the district court’s decision to dismiss.  

But rather than simply reopen the case as instructed, the district court turned to the Alabama Supreme Court to clarify whether officers are prohibited under state law from demanding physical identification if they receive an “incomplete or unsatisfactory oral response” under the state’s stop-and-identify law. In answering that question, the Alabama Supreme Court effectively overruled the appellate court, deciding that “Alabama law is clear—once an officer has reasonable suspicion to believe that a suspect is committing, has committed, or is about to commit a felony or other public offence, [the law] empowers the officer to demand that the suspect disclose his or her name and address in a format that would allow the officer to affirmatively identify the suspect,” and that “the suspect bears the burden to completely identify himself.” 

Although normal for a district court to ask for the state supreme court’s input on legal questions, it is decidedly “not normal to circumvent an appellate court’s ruling the district court didn’t like,” Matthew Cavedon, the director of the Project on Criminal Justice at the Cato Institute, told Reason in a recent interview. But now, under the state supreme court’s binding decision, the officers who arrested Jennings may now attempt to avoid accountability by claiming the arrest was in line with the stop-and-identify law. “Courts don’t like accountability for officers when rights are violated,” Cavedon continued. 

What’s more is that the decision effectively gives a “ton of discretion to police officers,” said Cavedon, leaving it up to officers and prosecutors to decide when and where a physical ID will be demanded and opening up “equal protection problems and concerns about discrimination.” 

After all, there is nothing in the Alabama law that requires pedestrians to carry ID, according to an amicus brief joined by the Cato Institute in this case. But now, it seems, Alabamians better have their physical identification handy, or else face the wrath of unaccountable law enforcement officers.

The post Alabama Supreme Court to Cops: It's OK To Force a Pastor Watering Flowers To Show His ID appeared first on Reason.com.

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Please enjoy the latest edition of Short Circuit, a weekly feature written by a bunch of people at the Institute for Justice.

New Case Alert! Before dawn, Cathy George awakes to a squad of heavily armed officers banging on the door to her Georgia home and aiming rifles at her. They’re looking for a fugitive. Yikes! Problem 1: The fugitive was arrested months earlier—in Indiana—and remains behind bars. Problem 2: He had no connection to Cathy. Now, represented by IJ, Cathy is suing over the raid, because when officers screw up that badly, the Constitution promises more accountability than “oops, we made a mistake.” Read more here.

New on the Bound By Oath podcast: A history of Rooker-Feldman, a slightly treasonous doctrine that we hope SCOTUS is going to blow to smithereens next week.

1. D.C. Circuit (over a dissent): We have exclusive jurisdiction over challenges to final TSA decisions refusing to take somebody off the No Fly List, which means that the district court wasn’t allowed to hear this guy’s lawsuit demanding to be taken off of the Terrorist Watchlist, since taking him off the Terrorist Watchlist would necessarily take him off the No Fly List. Instead, his only remedy is to file a petition asking us to overturn the TSA’s final order and take him off the No Fly List.
2. D.C. Circuit (same day): Also, we’re denying that same guy’s petition asking us to overturn the TSA’s final order and take him off the No Fly List.
3. Many have been following the escalating tensions between the feds and courts about the former’s efforts to remove members of the Venezuelan gang Tren de Aragua to El Salvador. Well, the D.C. Circuit has now mandamus-ed a second time. The newest “extraordinary remedy” puts an end to the criminal contempt proceedings, deeming it unnecessary as the district court already knows who ordered the planes to depart (Kristi Noem) and the TRO language cannot support criminal contempt charges. Concurrence: Slicing and dicing the Saturday evening emergency hearing transcript and the subsequent order shows why the feds didn’t violate the order in the first place. Dissent: “Contempt of court is a public offense, and the fate of our democratic republic will depend on whether we treat it as such.”
4. Cops in Canóvanas, Puerto Rico, spy youths potentially dealing drugs. Upon confrontation, the youths flee. One cop shoots a 17-year-old in the back. Another allegedly pistol whips him. Later the cops falsify reports. But word gets out, feds prosecute, and convictions follow. First Circuit: The pistol-whipper should have been able to cross-examine the whippee. Vacated and remanded on that count (but not three others).
5. Circuit split alert! The First Circuit (splitting with the Tenth) holds that Maine’s law requiring a firearm seller to wait at least 72 hours before delivering a purchased firearm doesn’t infringe the right to “keep” or “bear” arms because the purchaser remains free to “keep” and “bear” them three days after buying them.
6. Second Circuit (unpublished): The Supreme Court’s decision in Bruen tells us the Second Amendment extends to weapons in common use for self-defense, but whether a weapon is in common use seems like the kind of thing you should have tried to prove at summary judgment, not the kind of thing you should be trying to prove by citing stuff to us in your appellate briefs.
7. The Fourth Circuit (en banc) vacates a preliminary injunction that had prevented DOGE staffers from accessing confidential Social Security data and in so doing manages to generate six different opinions fighting about everything from whether the Supreme Court’s unexplained emergency-docket orders count as “precedent” to whether preliminary-injunction opinions should look more like word problems from your junior-high math class, all of which is really extremely fun reading for the really extremely small group of people who like that sort of thing.
8. Plaintiff: Sure, the case law says school officials have leeway to search students’ belongings, but you can’t apply that pre-digital precedent to the much more intrusive search of a teenage student’s cell phone (on which the assistant principal found an explicit photo of a different teenager). Fourth Circuit: That’s a real interesting argument you’ve got there; it’s a shame you’ve waived it. Also, you’re wrong.
9. Before searching for the names of a Supreme Court justice in a hospital database and then posting the results online, you might want to read this tale of caution from the Fourth Circuit, which ends with a 24-month visit to federal prison.
10. Fairfax County, Va. police arrange a controlled drug buy in the parking lot of a shopping complex. Once the target arrives, he becomes suspicious and begins to drive away. A half dozen detectives pursue him in unmarked vehicles, ram his car, block him in it, and shoot him. (They feared that he was reaching for a gun; he was unarmed.) District court: reasonable response, no excessive force here. Fourth Circuit: Not so fast. The man was driving slowly out of a parking lot, posing no danger to anybody; police hadn’t even given him a chance to pull over first; and there’s a dispute over whether he reached for his console. Try again.
11. The rara avis case in which a court of appeals (here, the Fifth Circuit) uncovers a reversible error in an Anders appeal. Concurrence: This means the “party-presentation principle” is totally bunk and shouldn’t apply in any context ever, right? Right?
12. No American has been able to legally distill consumable spirits at home since 1868. That ends now, says the Fifth Circuit, as the law violates the Constitution’s Taxation and Necessary and Proper Clauses. (On appeal, the feds didn’t challenge the district court’s conclusion that the law also violates the Commerce Clause, so Wickard lives to fight another hay.) Let the fun be-gin.
13. Most criminal defendants try to avoid being sentenced under the Armed Career Criminal Act, which sets a 15-year mandatory minimum for certain defendants if they have three previous convictions for certain qualifying offenses. Defendant: In the district court, I pleaded guilty and accidentally agreed that I had three qualifying offenses. But on reflection, I had only two! So my 212-month sentence is a mistake. Sixth Circuit: You and your lawyer should’ve been more careful. Sentence affirmed. Dissent: This seems like an error we should correct.
14. As part of their investigation into an online collection of sexually explicit images of local underage girls, cops in Toulon, Ill., send a link to the files to their IT guy, for help in identifying the victims. He does. Huzzah! But turns out he’s a collector of child sexual-abuse material in his own right. Yikes! And he keeps the photos and distributes them. Double yikes. Seventh Circuit: This whole situation seems to have been pretty shambolic, but the victims don’t have a due-process claim against the cops who gave the IT guy access to their photos. (The guy is now serving a 35-year prison sentence, and claims against him personally are proceeding in the district court.)
15. Find someone who loves you as much as the Seventh Circuit loves excoriating lawyers for inaccurately certifying the completeness of the short appendix required by Circuit Rule 30.
16. The key to a life well lived is to find a hobby that you relish as much as the Seventh Circuit relishes castigating lawyers for inaccurately certifying the completeness of the short appendix required by Circuit Rule 30.
17. Milwaukee man is convicted of kidnapping and sexual assault after a bailiff improperly tells the jury they’re not allowed to deadlock. The conviction is overturned, and the man sues both the loose-lipped bailiff and another bailiff who heard the remark but didn’t intervene. Seventh Circuit: We don’t have jurisdiction to decide if the bystander bailiff gets qualified immunity because the district court didn’t make a definitive ruling. Dissent: All we need to know is that the district court didn’t grant immunity, and here the plaintiff didn’t even try to meet his burden to overcome it.
18. Courts across the country are inconsistent about whether plaintiffs may proceed pseudonymously in suits challenging university disciplinary proceedings for sexual assault. But here, the Seventh Circuit adheres to its distinctively strong presumption against pseudonymous litigation: John Doe may either dismiss his pending appeals or have them resolved under his real name.
19. After a carjacking at a St. Louis County, Mo. Waffle House, police use the “Find My” app to track down AirPods that were in the stolen car. They get a warrant for the house purportedly containing the AirPods, smash in, force the mother (in her underwear) and children to go outside, punch a hole in a wall, and otherwise ransack the place. And discover it and the occupants are unconnected to the crime. Turns out the AirPods were in the street out in front. Eighth Circuit: Find My and qualified immunity pair nicely.
20. In the Ninth Circuit, here’s a generally gross story of an ICE agent convicted for trying to have sex with what he thought was a 13-year-old prostitute. (Spoiler: The “13-year-old prostitute” was also federal law enforcement.)
21. What do you get when you mix Kevin Costner’s Yellowstone with slightly less murder and slightly more promissory estoppel? This sprawling litigation between a conservancy nonprofit and a financier who desperately wants to build a 2,500-square-foot guesthouse on his Wyoming ranch. Tenth Circuit: The conservancy is not promissorily estopped based on a conversation its director had with the financier on the deck of the Teton Pines Country Club, at which (the financier insists) the director said a guesthouse could be built so long as it wasn’t called a “guesthouse.”
22. This Tenth Circuit case is interesting for two reasons. One, it accepts the gov’t’s concession that it’s plain error to sentence an assault defendant more harshly because he was an off-duty police officer. Two, it’s kind of the 1997 Julia Roberts movie My Best Friend’s Wedding—but an R-Rated version where Rupert Everett almost gets shot.
23. “Lincoln may have freed the slaves, but I’m keeping you.” As a matter of law, that’s an off-color comment rather than a ground to find an objectively hostile work environment. Query, though, whether the Eleventh Circuit should have addressed the speaker’s conflation of the Emancipation Proclamation and the Thirteenth Amendment.
24. And in en banc news, the Ninth Circuit will not reconsider its decision that an objection to COVID-19 testing was not sufficiently connected to religious doctrine to state a claim under Title VII. Fans of dissentals will be chuffed.

New Case Alert! In San Jose, Cal., drivers have to navigate a network of nearly 500 automated license plate readers that the police department installed all over the city. These high-tech surveillance cameras blanket hospice facilities, churches, and countless other sensitive places, and they snap hundreds of millions of warrantless images every year, instantly converting them into easily searchable data that thousands of gov’t employees can access on demand. Yikes? Yikes. Fourth Amendment Yikes, to be precise. Which is why IJ has entered the fray

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