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Michael New's Lawyers Get Major Break
© European Stars and Stripes, December 14, 1995
WURZBURG, Germany - Lawyers for Army Spc. Michael New may attack the legality of an order New was given to accept the command of the United Nations, a judge ruled Wednesday.
New is being court-martialed for disobeying the order, which included the wearing of the U.N.'s sky-blue headgear and insignia. His hopes for acquittal remained alive when the judge, Lt. Col. W. Gary Jewell, ruled that New's lawyer could introduce evidence challenging the legality of the order.
Military prosecutors had sought to avoid the legal can of worms and focus instead on the simple question of whether New disobeyed the order, which was issued by his superiors Oct. 10.
New contends he swore to uphold the U.S. Constitution, not the U.N. charter.
The ruling clears the way for a legal debate on defense claims that President Clinton and the Joint Chiefs of Staff, not New, were the ones who broke the law.
New has still not entered a plea in the case, which was continued until Jan. 18 and is tentatively scheduled to go to trial Jan. 23.
If the judge rules the order was illegal, New will be acquitted. If he rules it was legal, the case will likely go to a jury.
If convicted, New could face a bad-conduct discharge, loss of pay and imprisonment for six months.
New's lawyers argued that Clinton violated his own directives - not to mention the U.N. participation act, passed by Congress in 1945 - when he ordered troops to the U.N.-sponsored mission in Macedonia beginning in 1993. The defense claims Clinton did not obtain congressional approval and illegally deployed too many troops.
If the judge had ruled in favor of the prosecution, defense attorneys conceeded that New's case esstentially would have been over.
They have already acknowledged that New had disobeyed the order.
U.S. Army Capt. Gary Klein, the lead prosecutor, said New's attack on the legality of the order amounts to "taking up the mantle of Congress and trying to shove it down the executive (office)'s throat."
Defense attorney Henry Hamilton maintained that New's refusal to wear the U.N. "costume" was not a political protest.
"We're not trying to turn this into a circus," Hamilton said. "We don't wan't to talk about personal, touchy-feely issues here - we want to talk about lawfulness."
"This is a legal question, not a political question. We are not questioning the president's authority to deploy soldiers to Macedonia. We are questioning his authority to do it as United Nations soldiers in United Nations uniforms. If the deployment is not legal, then the order to put on the uniform is not legal."
Jewell also dealt the defense a setback Wednesday. The judge refused to disqualify Klein from the case, ruling that the lawyer's legal briefing to New before the order was issued does not preclude him from prosecuting the case.
On Oct. 2, Klein gave a one-hour briefing to New and 500 other soldiers who were to be deployed to Macedonia. The briefing, which had not been given to other deployed troops, specifically addressed the need for U.S. forces to wear the U.N. headgear and insignia.
"Why do we wear U.N. uniforms?" Klein asked, pointing to an identical question printed on an overhead slide. He then read aloud the next slide, which read: "Because they look fabulous."
Klein explained under questioning by Hamilton that the slides "were an attempt to inject a little humor" into the briefing. "Actually, it got quite a chuckle," he said.
But 30 seconds after the briefing ended, New's commander stood up and told the troops that wearing U.N. uniform items was a direct order. That lead Hamilton to characterize the entire briefing as a "setup," because New had asked some questions that no one knew how to answer.
New, who took the witness stand for the first time, said soldiers around him clearly understood that the briefing was aimed specifically at him.
"They asked me how I liked by briefing," New said.
Klein conceded the breifing may have been held because the "command wanted to stop the cancer from spreading" to other troops, "so that they too don't go down the path that New went down."
The judge also granted defense motions for discovery on a number of documents sought from the prosecution, including a classified presidential directive on the Macedonia mission.
"It will take us down the road from which there is no return," Klein pleaded to Jewell in trying to limit defense access to classified documents. "Sir, I'm giving you my best shot."
"And it wasn't good enough," the judge retorted, granting the defense motion. However, Jewell, did bar the defense from obtaining other documents.
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REAL Americans don't wear U.N. blue!
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Contributed by Steve Washam - Washington