Michael New v. Donald H. Rumsfeld — Reply Brief of Petitioner

Michael Harless Constitutional Law, U. S. Supreme Court

We filed in the United States Supreme Court a reply to the Government’s brief in opposition to former Army Specialist Michel G. New’s petition for review of his January 1995 court-martial conviction (for violation of an order requiring him to wear the United Nations uniform prescribed for deployment to a U.N. operation in Macedonia).

After we had filed the Petition for Certiorari in November 2006, the Government filed a waiver with the Court, presumably indicating thereby that it considered New’s petition to be without merit.  In December 2006, however, the Court requested the Government to file a response which it did on March 20, 2007 with a brief in opposition.

In its opposition brief, the Government essentially conceded that there was conflict and confusion among the courts of appeals over the standard of review of court-martial convictions, some reviewing the military court decisions only for “fairness” and others for actual compliance with federal law and the constitution.  Yet, the Government contended that New’s petition would be a  “poor vehicle” for the Court to resolve this conflict, (a) urging the Court to allow the standard of review issue to “percolate” before imposing a uniform rule and (b) maintaining that, no matter what standard of review would be applied, New’s due process claims are without merit.

Our reply pointed out that the conflict and confusion among the courts of appeal had been “percolating” for over 50 years, and that New’s petition would actually be the best opportunity for the Court to set a uniform rule governing collateral attacks on court-martial convictions in the federal courts.  It also summarized the reasons why New’s due process claims have substantial merit.

Indeed, New’s petition presented the Court with a “unique opportunity” (a) to set a uniform rule ensuring due process of law – not just in some – but in all collateral attacks on court martial convictions; and (b) to set a rule to ensure real due process in the administration of a system of military justice based upon the principle that an American servicemember has a duty to obey only “lawful” orders.

Link to brief