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MAY / JUNE 1997
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C O V E R   S T O R Y

Court of Appeals Rejects Government Attempt to Short-circuit Michael New Appeal

The United States Court of Appeals has slapped down a move by the Clinton Justice Department to deny a full appellate hearing to U.S. Army Specialist Michael New—the home school graduate who was court-martialed in February of 1996 for refusing to wear United Nations uniform while serving in the U.S. Army. New's unit had been assigned to combat in Macedonia under UN command which would have placed New under foreign commanders and outside of normal U.S. chains of command.

On Wednesday, March 5, 1997, the U.S. Court of Appeals for the District of Columbia rejected a motion by Secretary of Defense William Perry which attempted to deny a full appeal to Specialist New. Secretary Perry's motion argued that New's case was of such a routine nature and the outcome so clear that the lower court ruling should be summarily affirmed.

Michael Farris, New's chief federal counsel, assisted by attorney Herbert Titus, opposed Secretary Perry's motion. "We're grateful that the Court of Appeals is going to listen to our important legal and constitutional arguments despite the government's attempt to truncate the case," Farris said.

"This ruling means that Michael New's arguments will now get the serious review they deserve," Farris continued. "The Constitution and laws of this country make it clear that the President cannot unilaterally assign soldiers to fight under a foreign commander in foreign uniforms. Michael New has courageously stood on the side of our country and our law. We now will have an opportunity to demonstrate the clear illegality of Clinton's decision to commit our bravest men and women to foreign commanders who have the power to place them in harm's way in a battle zone."

Prior to his court-martial, New filed a petition for a writ of habeas corpus in federal district court in the District of Columbia. New pointed to constitutional, statutory, and regulatory provisions which prohibit the Army from allowing U.S. soldiers to be assigned to the UN for military purposes without the specific approval of Congress. He also pointed to numerous legal provisions which prohibit the display of medals or badges from other governments—including international organizations—on Army uniforms without the consent of Congress. One regulation prohibits all foreign insignia—even with the consent of Congress—on the Battle Dress Uniform (BDU). New was court-martialed for his refusal to wear the UN insignia and badges on his BDU.

Federal district judge Paul Friedman heard New's case on March 17, 1996. Although the judge said that "This court has taken [the issues] seriously," he denied the request for an immediate habeas corpus, ruling that New should first exhaust his military appeals. The district court decision was released on March 28, 1996. The habeas request would have resulted in New being immediately released from the military with an honorable discharge. It is anticipated that the military appeals will take nearly three years to complete.

New appealed the decision to the Court of Appeals on May 23, 1996. On July 15, 1996, the U.S. Attorney's office, on behalf of Perry and the Clinton Administration, filed a motion for summary affirmance. In its supporting papers, the government argued that New's appeal was completely without merit and should be summarily affirmed without full briefing or oral argument.

New's two federal attorneys, Michael Farris and Herb Titus, filed their response on July 25, 1996. In the intervening seven-plus months since the government motion was filed, the appeal was placed on hold pending the outcome of the motion.

Oral arguments are scheduled for September 26, 1997. HSLDA will keep members updated on the development of Specialist Michael New's case.