Defense Secretary Pete Hegseth meets with South Korea's Defense Minister Ahn Gyu-back, at the Pentagon on Monday, May 11, 2026, in Washington (AP Photo/Manuel Balce Ceneta).
Pete Hegseth has drawn the right D.C. Circuit panel for seeking deference to his "considered national-security judgment" in the coming week, but the so-called "WOKE" AI developer he designated a "supply-chain risk" says the defense secretary should not be rewarded for his telling "retreat."
Law&Crime has covered how federal judges have blocked various Hegseth's actions as violative of the First Amendment. In one of those cases, Anthropic persuaded a California judge in March that Hegseth engaged in an apparent act of "classic illegal First Amendment retaliation."
Hegseth blasted the Pentagon contractor's CEO Dario Amodei for "sanctimonious rhetoric," issued a far-reaching "directive" banning other military contractors from doing business with Anthropic that had "no legal effect," and designated Anthropic a "supply-chain risk" for its insistence that Claude "cannot safely or reliably be used for autonomous lethal warfare and mass surveillance of Americans."
That same month, Anthropic separately filed a petition with the D.C. Circuit.
The filing asked the appellate court to review Hegseth's determination that the company poses a national security risk. That determination, Anthropic says, was an unconstitutional and "pretextual form of retaliation" — and an "abuse of discretion" that exceeded Hegseth's authority under the law.
Just over one week ago, a D.C. Circuit panel peppered the DOJ with questions about how Hegseth could credibly conclude that Sen. Mark Kelly, D-Ariz., instructed others to "disobey" President Donald Trump's "lawful orders" when he said, "you can refuse illegal orders." The Trump administration essentially answered that Hegseth read Kelly's mind.
"He determined — that was his inference, his characterization — that the statements were made with the intent to counsel disobedience," a DOJ attorney said.
U.S. Circuit Judge Karen LeCraft Henderson, a George H.W. Bush appointee, was the lone member of that panel to warm to the government's arguments about Kelly's intentions.
At oral argument on Tuesday morning, Henderson will be joined instead by U.S. Circuit Judges Neomi Rao and Gregory Katsas, two Trump appointees who have been reliably deferential to the executive branch.
And Hegseth's lawyers clearly understood their audience, urging the judges to keep his "considered national-security judgment" at the top of mind.
"[T]he Secretary's assessment is well-grounded in concrete concerns that have arisen from petitioner's behavior over several months, as well as the government's previous experience with petitioner's model," the government said. "And such predictive national-security assessments are precisely the arena where judicial deference to the Secretary's considered judgment is at its apex."
In a final volley on Wednesday, Anthropic countered that there's ample reason for the D.C. Circuit not to rely on Hegseth's say-so blindly.
For one, in carrying out his "textbook retaliation" campaign, Hegseth made a glaring "retreat" from a "demonstrably false premise" about how Anthropic posed a threat.
"The Secretary's brief confirms that this is a supply-chain risk designation in search of a justification. The Secretary purported to blacklist Anthropic as a threat to national security based in significant part on the factual assertion that Anthropic possesses an 'operational veto' over Claude after it is deployed in the Department's classified systems—a demonstrably false premise that he now abandons," the filing said. "Instead, the Secretary falls back to a different justification. He now claims that his 'true concern' is that Anthropic in the future will surreptitiously encode model limitations 'before' Claude's 'deployment' that the Department's testing might not catch."
"That theory fails on its own, both factually and legally," Anthropic went on. "Although far from the § 4713 designation's only flaw, the Secretary's retreat alone renders his action unlawful."
Citing an opinion from Justice Brett Kavanaugh when he was a judge on the D.C. Circuit, the petitioner said Hegseth's designation is "clearly deficient" and must be vacated.
"[Hegseth's] own actions contradict his claims: despite the purported urgency, he simultaneously ordered that Claude remain in military use for up to six months," the brief noted, criticizing both the secretary's "shifting justification" for the crackdown and his "factual errors."
To hear the DOJ tell it, none of that matters because "any perceived error in the timing or sequencing of that process would be harmless" and Hegseth's "determination is based on concerns about petitioner's conduct, not its protected speech."
Follow Law&Crime:
Comments