December 24, 2004 Edition > Section: National > Printer-Friendly Version
BY JOSH GERSTEIN - Staff Reporter of the Sun
December 24,
2004
URL: http://www.nysun.com/article/6763
A federal judge in Washington has upheld the right of the American military to place its personnel under United Nations command and force those soldiers to wear insignia designed by the world body.
The ruling from Judge Paul Friedman came in the case of a former Army specialist, Michael New, who resisted orders that he serve in a U.N. peacekeeping mission in Macedonia nearly a decade ago. He also refused, during unit muster in 1995, to wear the light blue U.N. cap and shoulder patch.
Mr. New was court-martialed for failing to obey the order to don the cap and patch. He was convicted in 1996 and given a "bad conduct" discharge from the Army. Military appeals courts upheld the decision.
In his 35-page decision filed Wednesday, Judge Friedman rejected all of the legal arguments put forth by Mr. New's attorneys. The judge said most of the ex-soldier's assertions involved thorny political disputes best left unresolved by the judiciary.
Judge Friedman wrote that trying to sort out whether the president had ceded too much authority to foreign military officers "would involve policy determinations beyond the competence of the court."
Mr. New could not be reached for comment yesterday. His father, Daniel, said his son was in Germany for the holidays.
"We're disappointed," Daniel New said. "It's not printable what I want to say." He added that an appeal is likely.
A spokesman for the Pentagon said no one was available yesterday to comment on the decision.
In the mid-1990s, Michael New's act of defiance became a cause celebre for those wary of placing American soldiers under the control of the U.N. A Web site devoted to the case, www.mikenew.com, includes a picture of the former specialist and the words, "Michael New was right... Real Americans don't wear U.N. blue."
In legal filings, lawyers for Mr. New argued that under the Constitution and the law that governs America's involvement in the world body, the U.N. Participation Act of 1945, the president may not send American troops into possible combat under U.N. command without express authorization from Congress. The attorneys also said that under the Constitution, no American soldier was obliged to answer to a military officer who was not appointed by the president and confirmed by the Congress.
Mr. New's counsel further argued that forcing him to serve under an international army he never signed up with abridged the ex-soldier's rights against "involuntary servitude" under the 13th Amendment. Their final claim was that American soldiers could not accept the U.N. caps and shoulder patches under a constitutional provision that prohibits federal officials from taking "emoluments" from a foreign government.
Judge Friedman said those claims either had no merit or were given proper consideration by the military courts. The judge also said Mr. New could have pursued his legal points without defying his commanders. "Petitioner had numerous avenues, besides direct disobedience, by which to challenge that order," Judge Friedman wrote.
The author of a book about Mr. New's crusade, Cliff Kincaid, said the judge was right to suggest that Congress could have stepped in.
"The Congress should have done more, but Friedman should have overturned the illegal order and New's badconduct discharge," said Mr. Kincaid, whose book is entitled, "Michael New: Mercenary or American Soldier?"
Much of the initial anger over Mr. New's case was directed at President Clinton, who ordered that American forces take part in the U.N. peacekeeping mission in Macedonia. However, Mr. Kincaid and others fault President Bush for leaving the same procedures in place. "U.S. troops deployed on U.N. missions under Bush still wear U.N. markings on their uniforms, including a U.N. shoulder patch and beret. And even though they serve under a foreign U.N. commander, he insists they are still somehow under U.S. command," Mr. Kincaid said. "It doesn't add up."
A military analyst at the Brookings Institution, Michael O'Hanlon, said that if Mr. New prevailed, the president's authority to defend America would be hurt.
"You'd be undercutting our ability to work with our allies. You'd also be weakening the power of the commander in chief of the United States," he said.
Mr. O'Hanlon said the practice of putting American troops under foreign command has gone on for decades with little objection. "We've put troops temporarily under tactical foreign command in past wars, including last year's in Iraq, more than we ever did with the U.N.," he said.
The Brookings scholar criticized Mr. New and his legal team for claiming that they are adhering to the principles set forth by America's founders. "It's sort of depicted as a defense of the Constitution, but it's actually an affront to the Constitution," Mr. O'Hanlon said.
Mr. New's father said he thinks the Pentagon got a "bloody nose" from the battle with his son and now prefers to look overseas to staff U.N. missions. He described the new approach derisively: "Pakistanis and Indians are cheaper than Americans and there's no political fallout if they die. So let's just outsource it all."
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Comments by Investigative Journalist Cliff Kincaid"Judge Friedman's ruling
essentially blames Congress for allowing Michael New to be court-martialed
by the Clinton Administration for refusing to wear a U.N. uniform and being
forced to serve, in violation of his oath, under a foreign U.N.
commander. The Congress should have done more, but Friedman should have
overturned the illegal order and New's bad-conduct discharge. The tragedy is
compounded by the fact that President Bush has not revoked Presidential
Decision Directive (PDD) 25, under which Clinton claimed the ability to
place our troops under U.N. control and command. What's more, U.N. figures
still show U.S. troops deployed in U.N. missions.
http://www.un.org/Depts/dpko/dpko/contributors/2004/November2004_5.pdf
A summary of the U.S. presence is found at the end of:
http://www.un.org/Depts/dpko/dpko/contributors/2004/November2004_3.pdf
According to William Imbrie, then-Director, Office of Peacekeeping and
Humanitarian Operations, in the State Department's Bureau of International
Organization Affairs (he assumed duties as Deputy Chief of mission in
Brussels in August 2004), U.S. troops deployed on U.N. missions under Bush
still wear 'U.N. markings' on their uniforms, including a U.N. shoulder
patch and beret. And even though they serve under a foreign U.N. commander,
he insists they are still somehow under U.S. command. It doesn't add up.
Bush has continued the Clinton policy."
These figures show U.S.
troops or U.S. military observers in five U.N.
military
operations.
UNOMIG - 2 mil observers
MINUSTAH 3 troops
UNMEE 6 mil
observers
UNTSO 3 mil observers
UNMIL 5 troops, 6 mil
observers