Michael G. New v. United States

Michael Harless Constitutional Law, Litigation

The Michael New case is back.

On May 16, 2012, we filed a Petition for a Writ of Coram Nobis based on the Army’s withholding of exculpatory evidence contained in two classified Executive Orders, access to which was unlawfully denied to Mr. New at his 1995 court-martial, at which he was charged and convicted of disobeying a lawful order for refusing to wear the U.N. uniform to serve in a U.N. peace operation in Macedonia.

Uncovered by Mr. New in 2009 by a Mandatory Declassification Review process not available to Mr. New at the time of his court-martial, the petition identifies two classified executive orders — Presidential Decision Directive 25 (PDD 25) and Presidential Review Directive (PRD 13) — as documents containing material and favorable evidence that, had the two documents been produced as Mr. New had requested, would have supported Mr. New’s effort to overcome the presumption that the order that he disobeyed was lawful.

At the heart of Mr. New’s petition is the claim that the court-martial prosecutor represented to the military judge that the classified version of PDD 25 was a document of “eight to 10” pages in length when, in fact, the classified PDD 25 document, as later produced by the Clinton presidential library, was almost three times as long.

Based on this new evidence, Mr. New asserts that the failure of the Army prosecutor to produce the actual PDD 25 rendered the court-martial proceeding fundamentally flawed, depriving Mr. New of his liberty and property without due process of law and of his right of to a complete defense secured by the Uniform Code of Military Justice.

The 35-page petition is available here.
The 48-page brief in support of that petition is available here.
The declassified Presidential Decision Directive 25 and Presidential Review Directive 13 are available here.