by Harold M. Hyman
"Ex-Army medic says court-martial unfair," headlined a Houston Chronicle (February 5, 2000) article concerning Conroe native Michael New. Then a military medical technician, in 1995 New refused to obey orders requiring all American Army units, including his, to wear United Nations headgear and insignia while on a peacekeeping duty abroad. A court-martial found him guilty of willful disobedience.
Journalist report that New's able civilian attorney is appealing the guilty verdict and the consequent bad-conduct discharge sentence the court-martial imposed. Stretching the issues from hats to treaties, his lawyer is arguing that without prior approval by Congress the President had unconstitutionally ordered Americans soldiers to serve under foreign - that is, United Nations - command. Therefore New justifiably disobeyed his superiors' allegedly illicit orders.
While his appeal from this judgement advanced, New returned to his Texas hometown. There regional isolationists praised him as a principled defender of correct constitutional principles. But in mid-1999 local police arrested this local celebrity for forging physicians' prescriptions, presumably for addictive drugs.
Presently on probation after a guilty verdict in the state criminal trial for this offense, New, according to a newspaper account, is also appealing this judgement, and is again enjoying representation by a resourceful attorney. The latter's defense strategy for New reportedly rests on a bedrock concept that virtually all law students learn in Criminal Law I.
Embedded in state bar associations' rule, this fundamental precept is that every attorney owes every client every possibly useful argument-in-the-alternative, even if by ordinary logic these arguments are inconsistent with, or even contradict, each other. To illustrate: "My client never saw the stolen watch. Therefore he did not steal the watch. So he could not have broken it. And when he returned the watch to its owner it was in perfect condition."
Applying this strategy, new's lawyers in both military and civilian appeals are, apparently, coupling the unsuccessful constitutional defense in the court-martial proceedings to a new claim. It adapts for New's defense something like the TV comic's "the-devil-made-me-do-it" signature line.
Each limb of this multi-legged defense strategy stands in independently from every other. Knock one leg down and the others remain. This strategy is, apparently, fully justifiable for legal defenses.
But history is a more-or-less seamless web. In historical research, if a major "leg" of inquiry falls from lack of ascertainable facts, then all interwoven evidence requires re-evaluation. As a World War II ex-Marine and as a historian who for 50 years has been studying American civil-military relationships, it appears to me that the lawyer's technique lacks the essential connective that are available only from ascertainable facts.
New's attorney in his appeal from the prescription forgery verdict has added still another claim, of "leg". It is that the former soldier's anxieties, festering since he decided to disobey the supposedly "illegal" presidential orders requiring U.S. peacekeeping troops to wear UN insignia and hats, drove the ex-"medic" to commit the civilian offenses. But if the disputed orders were proper, then this leg falls.
And fall it does. Our Constitution specifies that all treaty obligations the United States undertakes after approval by the Senate, including those to be United Nations, are the supreme law of the land, and that the President is the commander-in-chief over the armed forces. Every enlistee, whether general or private, in our now wholly volunteer military branches, swears an oath to obey orders implementing these fundamental civil-military relationships.
To describe all these protective techniques being used on New's behalf it not to trivialize them. In the history of our justice systems every precious, hard-won protection for defendants accused of serious offenses developed tragically slowly and uncertainly. The praiseworthy extension of these defenses to members of our armed forces is recent and, some say, still too shallowly rooted. Available facts, however, suggest that the "guilty" verdict his court-martial reached was justified.
By their nature, civil-military relationships have frequently been imprecise, especially when military decisions involved hotly disputed civilian policies. Examples include Union Army Gen. George B. McClellan's unwillingness to enforce Lincoln's Emancipation Proclamation in conquered areas of the crumpling Confederacy, Gen. Douglas MacArthur's insistence on expanding the Korean conflict despite Truman's contrary stance that the war be contained, and Marine Col. Oliver North's participation in President Reagan's illicit Iran-Contra intrigues.
Such high-level discordance's over strategy are, seemingly, far distant from New's unhappy concerns about headgear and emblems. His deliberate choice to disobey a command, like the recent refusals of a still-small but increasing number of other military personnel to be vaccinated before shipping out, raise serious concerns. Individual rejections of legitimate orders by substantial numbers of armed soldiers can become far worse than problems. Distressingly frequent recent headlines reaffirm history's sad verdict. It is that split among themselves about obeying or disobeying orders, then bloody coup d'etat - military attacks on their own nation's constitutional government - can result.
- Harold M. Hyman is professor emeritus of history at Rice University
See Daniel New's response 31 July 2000 Huntsville Item
