Michael New v. United States — Petition for Certiorari

Michael Harless Constitutional Law, U. S. Supreme Court

On Monday, September 10, 2001, nearly six years after he refused to put on the United Nations uniform and to submit to the command and control of a foreign military officer, Michael New has taken his fight for justice to the United States Supreme Court.

At the heart of his appeal is New’s right to his day in court. In a petition for writ of certiorari, New is asking the High Court to overrule the judgment of three military courts which essentially refused to deal with his claims that the Constitution does not allow the President unilaterally to order American soldiers to fight for a foreign government.

At New’s January 1996 court-marital, the military judge decided before trial that the order to don the UN uniform was lawful and that New had a duty to obey it. Although two judges sitting on the highest military appellate court found this pretrial ruling “a radical departure form our political, legal and military tradition,” the military appeals court nevertheless upheld the trial judge, so that the Army has never had to prove its case by sworn testimony subject to cross examination.

In fact, the Army has never been required to prove that President Clinton’s deployment of American soldiers under UN command and control was lawful. Instead, the highest military court dismissed New’s claim that such a deployment was both contrary to statute and the U.S. Constitution as one raising “political questions” that can only be answered by the President and Congress.

In his petition before the Supreme Court, New calls this ruling “indefensible.” “At the very heart of the constitutional prohibition against the deprivation of life, liberty, and property except by Due Process of Law,” the New petition states, “is the rule of law, not politics.” Quoting from a 1994 opinion of Justice Sandra Day O’Connor, New reminds the Supreme Court that “one of the hallmarks of due process in our adversary system is the defendant’s ability to meet the State’s case against him.”

Link to petition