This week, I heard something that shocked me. In a federal appeals court, lawyers for Pete Hegseth, the secretary of defense, argued that military retirees were subject to freedom of speech restrictions because of their connection to the military, and that if they didn’t like those restrictions, retirees could forfeit their pension and benefits. Let that sink in. The Trump administration expects the people who have put their lives on the line for America to cede one of their basic rights, or forfeit the retirement pay and benefits they have earned over decades of service.
I’m a retired U.S. Army lieutenant colonel, and I was in that courthouse with dozens of other retired veterans. We were there to support and defend every veteran whose right to speak freely was being challenged by the government we had served.
How did we get here? In November, Senator Mark Kelly, Democrat of Arizona, a retired Navy captain, released a video with several other legislators reminding service members that they have a duty to disobey unlawful orders. “We know you are under enormous stress and pressure right now,” they said. “This administration is pitting our uniform military and intelligence community against American citizens.”
The duty to disobey unlawful orders is well established, but the president and secretary of defense immediately called the video outrageous. President Trump wrote that Mr. Kelly should face the death penalty and be hanged as a traitor. Subsequently, Mr. Hegseth censured Mr. Kelly and instructed the secretary of the Navy to investigate him and potentially reduce his retirement rank and pay. Mr. Kelly went to court and won, but the government appealed. Based on the reaction from the three-judge panel in the D.C. Court of Appeals on Thursday, it seems likely that Mr. Hegseth will lose in this court, too, but he has already indicated that he may appeal the case to the Supreme Court. This isn’t over, and it has implications far beyond Mr. Kelly.
A decision in favor of Mr. Hegseth would chill the free speech of every military retiree, particularly officers. This would be unfair to those who have served long enough and honorably enough to retire, and it would deprive the nation of one of the most important voices in any debate about our military.
The disciplinary process Mr. Hegseth wants to use against Mr. Kelly — an officer grade determination — is one I’m familiar with; I used it on several occasions when I was secretary of the Air Force. The process allows military department secretaries, who are political appointees, to determine what rank a retiring officer should be given. If an officer’s performance was unsatisfactory at some point, the officer’s rank at retirement may be adjusted to reflect the highest rank in which his or her service was satisfactory. There is an opportunity to appeal a decision, but only to an internal Department of Defense review board. Unless there is a constitutional issue or serious legal deficiency, there is no appeal to an independent court.
Because Mr. Kelly has raised a constitutional issue, he was able to have his case considered by the civilian courts. If the courts deny Mr. Kelly his free speech rights as a retiree, as Mr. Hegseth desires, the court will be removing this constitutional protection for all military retirees, not just for Mr. Kelly.
I only ever used this process to adjust rank when someone retired because of his or her performance on active duty. It was never about conduct after retirement. My determination usually revolved around how serious the offense had been and whether it was significant enough to warrant a permanent reduction in grade and a lifelong loss of a portion of the retirement pay the individual had earned. Some of these decisions were hard, and I tried to balance fairness to the individual with the need to reinforce important standards of conduct, good order and discipline. Those decisions helped establish standards of behavior for everyone serving.
This isn’t what is happening with Mr. Kelly. In this case, Mr. Hegseth is sending a message to all military retirees: If you cross the Trump administration in public, we will come after you, and you will pay a high price for speaking out. This administration has used and abused every tool it has to coerce businesses, universities, law firms, nonprofits, political enemies and private citizens to do as it desires. Now that coercive power is being used to intimidate military retirees, starting with Mr. Kelly.
The community of military retirees includes over a million Americans who have dedicated themselves to national service. We should not deprive them of their constitutional rights as a consequence of serving. America needs their voices.
Frank Kendall was the secretary of the Air Force from 2021 to 2025. He is a senior fellow at the Center for American Progress and the author of “Lethal Autonomy: The Future of Warfare, Whether We Like It or Not.”
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