Tuesday, May 24, 2011

Court-martialed for Defending the Constitution

On October 10, 1995, the 1/15 Battalion of the 3rd infantry Division of the U.S. Army came to attention at 0900 in Schweinfurt, Germany. All but one of the 550 soldiers were wearing a sky-blue baseball-style cap with a United Nations insignia on the front. One was wearing the olive-drab flat cap that is authorized to be worn with the Battle Dress Uniform. With this simple act of disobeying a direct order, Spc. 4 Michael New set the stage for a legal battle that has profound implications for the future of American soldiers into service of the United Nations without the constitutional permission of Congress.


The case of Specialist Michael New is sad and frustrating. His unit was selected to fall under then-President Clinton's plan to remove an Army unit from the US chain of command, and place it entirely under the control of a UN general. Ordered to surrender his US military ID card and to alter his Army uniform (an act that can be authorized only by Congress) Spc 4 New requested the legal justification. He suspected that compliance would be illegal, and, aware that "I was just following orders," is no excuse, he wanted to protect himself from participating in an illegal act. More importantly, he wanted to support and defend the Constitution of the United States, as he swore to do when he enlisted.

Rather than provide him with the legal justification for the order, his chain of command tried to intimidate him into silence. When it became clear that no justification was forthcoming, he volunteered to take on any other duty. He would have preferred assuming an unpopular or dangerous duty to insisting on making a point, but his request was denied. He was ordered, without satisfaction that the order was legal, to report with his unit to be transferred to the command of a foreign power.

There is a difference between what was being required in this case, and the combined operations in which US forces sometimes are employed. It is important to understand that this is the first time US forces, which are sworn to defend the US Constitution, would be removed entirely from that task, and placed under the complete authority of a foreign command, one which, it is worth noting, owes no allegiance to the principles that established our republic.

It has also been suggested that altering the US Army uniform and surrendering the US military ID cards, (otherwise known as the Geneva Conventions ID card) would remove US soldiers from the protection of the Geneva Conventions, and place them in the category of mercenaries. Should one of them be captured in that status, it remained to be seen whether Geneva Conventions regarding their treatment would have applied. Nor had it been established whether, if a soldier in that status were to be killed in the line of duty, any benefits would have been extended to his family, seeing as he had been removed from the chain of command.

With all these questions unresolved, it would seem a foregone conclusion that the officers in New's chain of command would seek clarification before enforcing the order. It would also seem obvious that concern would be wide-spread. Nothing could have been further from the case. Specialist New was the only soldier to decline to obey the order. He was court-martialed and received a bad conduct discharge as a result.

The legality of the order was never established, neither at that court martial, nor in the appeals that followed. The only question that was considered was whether or not he refused to obey an order.

The legality of the order hinged on President Clinton's explanation, which was classified in Presidential Decision Directive 25. In PDD 25, President Clinton explained the rationale by which he had taken upon himself the authority to take the extra-constitutional step of deploying US troops outside the US chain of command. He justified his order based on the UN Participation Act of 1945. This explanation might have been helpful to the discussion, but President Clinton classified the directive so highly that nobody was allowed to read it; not even Representative Bob Dornan, chairman of the Military Personnel Subcommittee of the National Security Committee.

Now, 16 years after the fact, PDD 25 has been declassified, and readers are shocked (or not) to discover that far from being justified under the UN Participation Act of 1945, President Clinton's order actually contradicted it. In other words, there was no justification, neither under the US Constitution, nor under the UNPA, for the President to issue the order to which Specialist New objected.

Michael's father has fought to clear his son's name since the beginning of this debacle. Now that the PDD has been declassified, he finally has the documentation he needs to prove his son, far from disobeying the law, upheld it against tremendous pressure from everyone in his chain of command, all the way up to the Commander In Chief. He and his team are considering filing a motion of coram nobis, to set aside an erroneous judgment that resulted from an error of fact in the proceeding. I don't know anything about how these things work, but wouldn't it be wonderful if, after all this time, Specialist New received a reward, rather than punishment, for defending the Constitution?

1 comment:

Cincinnatus said...

I wonder if Andrew McCarthy from NRO would opine on this.