A five-member panel of civilian judges heard oral arguments in the
U.S. Court of Appeals for the Armed Forces regarding the bad conduct
discharge given to Army medic Michael New for
his refusal to wear the uniform of the United Nations while stationed in Germany in 1995.
Henry L. Hamilton, New’s attorney and a retired Army judge advocate
general, told the court both President Clinton’s order to deploy troops
to Macedonia and his order for soldiers to wear the U.N. uniform were
unlawful. Deployment required congressional approval, according to
Hamilton, and the U.N. uniform is not authorized by either the
Department of Defense nor the U.S. Army.
“Superiors may not compel subordinates to obey illegal orders,”
Hamilton said. “The government must prove lawfulness. … If it’s not a
legal order, there’s no duty to obey it.”
He added, “President Clinton lied to Congress to effect the
deployment in Macedonia. It all stemmed from his duplicity in failing to
New was among a few hundred troops Clinton began sending in 1992 to
Macedonia, one of six republics of former Yugoslavia, to guard against
the spread of unrest from other areas torn by ethnic turmoil because of
Yugoslavia’s dismemberment. They served in a peacekeeping force
dispatched by the U.N., and New refused to submit himself to the U.N.
commander given charge of his unit.
A native of Conroe, Texas, New refused to remove his American
military uniform patch in favor of the insignia and blue beret of the
U.N., saying he would not serve a foreign power. Hamilton describes his
client as a patriot.
“What’s at stake here is whether or not it’s illegal for a soldier to
wear the uniform of foreign nations, of foreign commanders,” New told
reporters outside the courthouse on Friday.
New was slapped with a court-martial charging he had refused to obey
a “lawful” order. Although his defense centered around the lawfulness
of that order, evidence submitted by New’s attorney to that effect was
set aside by Army Judge Lt. Col. Gary Jewell, New’s court-martial judge
who told the jury the orders were indeed constitutional.
“All we wanted to do was address the unlawfulness of the orders to
deploy and change uniforms,” Hamilton told WorldNetDaily.
The appeals court must now decide whether Jewell’s actions were
incorrect and warrant another trial.
While New’s court-martial four years ago took just 20 minutes, oral
arguments in the appeals court lasted over an hour. Hamilton and
government attorney Capt. Kelly Haywood were each given approximately
half of the time to present their cases. No witnesses are called in
such a proceeding, which was described by Hamilton as a “constant
dialogue” between each attorney and the panel of judges.
Questions asked by the panel indicated they had carefully reviewed
New’s case. One judge in particular had serious misgivings about the
military justice system as a result of Jewell’s refusal to address the
lawfulness of the orders given to New and his fellow soldiers.
Haywood appeared unprepared for the direct inquiries, according to
Herb Titus, general counsel to the Michael New Action Fund.
“The judges were obviously paying attention to legal questions rather
than just military concerns,” Titus told WorldNetDaily.
The government’s attorney returned to the Army’s standard position
from previous court proceedings.
“The mission lives and dies by the soldier following an order,” said
Haywood, arguing that the order’s legitimacy was never for the
seven-member military jury to decide, and that New had a duty to obey
the commander in chief.
Neither of New’s attorneys would speculate on the court’s decision,
which is expected within two to three months.
“You can never predict on the basis of oral arguments, even though
[the judges] may give your opponent a pretty hard time,” said Titus.
If the court upholds the decision, New will petition the Supreme
Court, which is not required to take his case. However, should the
court decide in New’s favor, the court-marital decision resulting in
New’s bad conduct discharge will be reversed, leaving the medic with the
possibility of a new trial.
For the latter scenario, New’s father Daniel has already begun what
he calls “terms of surrender” for the Army. Daniel New is considering a
request for reinstatement and honorable discharge for his son.
While awaiting the outcome of his case, New is on involuntary leave
— his discharge is being held in abeyance during appeals. The
26-year-old medical specialist has been working for a Texas
manufacturing firm and studying computers at a local college. Perhaps
due to the stress of his ordeal, New was arrested in July for forging
prescriptions for a drug commonly used to battle anxiety. The arrest
follows New’s January 1998 conviction for the same crime for which he
was fined $500 and sentenced to seven years probation.
Michael New gets court date
Julie Foster is a staff
reporter for WorldNetDaily.