Today, the legal team for Michael New filed a petition for rehearing en banc of New’s collateral attack on his court-martial conviction for disobedience of a “lawful” order. In his petition, New documents the unmistakable fact that the three-judge panel decision — affirming the district court’s dismissal of his complaint that he was denied due process of law at his court-martial — departed completely from the standard of review established in the District of Columbia Circuit for nearly 40 years.
Urging the full court to rehear his appeal, New not only supported his petition for rehearing by demonstrating that the panel opinion contained absolutely no reason for disregarding established precedent, but that the due process issues raised in New’s collateral attack were of utmost importance to vindicate the ordinary soldier’s constitutional and legal duty to obey only lawful military orders.
If New’s court-martial conviction were allowed to stand, it will send the wrong message, weakening the duty of the commander-in-chief and his subordinate military officers to issue only lawful orders, and placing an inordinate burden on the enlisted man or woman who attempts to discharge his duty to disobey an order that is contrary to his oath of office to preserve, protect and defend the Constitution of the United States.