A U.S. soldier court-martialed for refusing to wear the insignia and blue beret of the United Nations and serve under the world body’s command is now appealing his case to a federal appeals court.
Michael New was among several hundred troops sent to Macedonia by President Clinton in 1995 on a U.N. peacekeeping mission. But New refused to obey the order, calling it illegal for him to serve under a foreign power.
New’s attorney, Henry L. Hamilton, argued both Clinton’s order to deploy troops to Macedonia and his order for soldiers to wear the U.N. uniform were illegal, because deployment required congressional approval, and the U.N. uniform is not authorized by either the Department of Defense or the U.S. Army.
Now the former Army specialist is preparing for oral hearings Feb. 16 in the United States Court of Appeals for the District of Columbia Circuit.
His attorneys says the issue is whether an American soldier, having taken an oath to support and defend the Constitution of the United States, may be forced instead to serve under the military command of a foreign power.
Military courts ruled this was a political question, outside their jurisdiction. New argues he has been denied the right to have the legality of the order addressed by a jury.
U.S. District Court Judge Friedman, who ruled against New, conceded Clinton may have broken the law, but contended it’s the duty of Congress to challenge the president, not a soldier.
New’s lead attorney, Herbert W. Titus, of Virginia, says the case has “serious implications for every American who ever wears a uniform.”
“Michael New’s stand is for them, and their right to defend their country exclusively, in accordance with the American soldier’s oath of office,” Titus said.
Legal observer Joseph Dale Robertson argues that every judicial circuit court of appeals in the federal system, with the exception of the District of Columbia, has ruled that in all criminal cases “it is the jury, the trier of fact, that must exclusively determine each and every essential element of the alleged crime.”
“Michael New was denied this fundamental right in his original court-martial,” he asserted.
New, who is pursuing a degree in Information Management Systems in Texas, said of his case: “Right is right, and wrong is wrong. They can argue until the end of time, but I will never serve the United Nations.”
During the court martial, evidence submitted by New’s attorney bearing on the lawfulness of the order was set aside by Army Judge Lt. Col. Gary Jewell, who instructed the jury that the orders were constitutional.
Later, the military appeals court cited a 1996 case that states, “Orders are clothed with an inference of lawfulness.”
Additionally, the Manual for Courts-Martial, the court noted, states: “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.”
Accordingly, New “has the burden to establish that the order is not lawful,” the court continued. “We hold that the military judge did not err in determining that the order given to appellant to wear his uniform with U.N. accoutrements was lawful. The military judge correctly determined that the evidence presented by appellant did not overcome the presumption of lawfulness given to military orders and that the order related to military duty.”
The judge in the military appeals court decision deferred the question of the legality of the deployment order to the political-question doctrine, which does not allow any of the three branches of government to overstep constitutional separation of powers.
Specifically, the Constitution gives the president express authority to command the armed forces.
In his separate but concurring opinion, Judge J. Sullivan contended the question of the orders’ legality should have been put to a jury during New’s court-martial. Instead, the lower military court instructed the jury to consider the orders lawful rather than allow jury members to make that determination.