Nearly a year and a half after former Army Spc. Michael New argued that an order to don United Nations accouterments over his U.S. military uniform was illegal, the Court of Appeals for the Armed Forces upheld New's bad-conduct discharge.

The unanimous ruling was issued Wednesday by the five-member panel of civilian judges. Three of the judges filed concurring opinions in which they agreed with the decision but varied some of their reasoning.

New's attorneys plan to appeal to the Supreme Court.

New was court-martialed in January 1996 after he chose not to obey what he calls an illegal order to remove his American military uniform patch in favor of the insignia and blue beret of the United Nations. While stationed in Germany in 1995, New was among a few hundred troops President Clinton sent to Macedonia on a U.N. peacekeeping mission. When given the order, New said he would not serve a foreign power.

Consequently, the soldier was slapped with a court-martial charging he had refused to obey a "lawful" order. Henry L. Hamilton, New's attorney and a retired Army judge advocate general, told the court both Clinton's order to deploy troops to Macedonia and his order for soldiers to wear the U.N. uniform were unlawful. Deployment required congressional approval, according to Hamilton, and the U.N. uniform is not authorized by either the Department of Defense or the U.S. Army.

Although his defense centered around the lawfulness of the order, evidence submitted by New's attorney bearing on that issue was set aside by Army Judge Lt. Col. Gary Jewell, New's court-martial judge, who instructed the jury that the orders were indeed constitutional. The military appeals court discussed in its opinion the issue of lawful orders.

The military appeals court cited a 1996 case that states, "Orders are clothed with an inference of lawfulness." Additionally, the Manual for Courts-Martial speaks directly to the issue and is quoted in part by the court: "An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime."

Accordingly, New "has the burden to establish that the order is not lawful," the court continued. "We hold that the military judge did not err in determining that the order given to appellant to wear his uniform with U.N. accoutrements was lawful. The military judge correctly determined that the evidence presented by appellant did not overcome the presumption of lawfulness given to military orders and that the order related to military duty."

As for the legality of the order to deploy to Macedonia, the judges deferred to the political-question doctrine, which does not allow any of the three branches of government to overstep constitutional separation of powers. Specifically, the Constitution gives the president express authority to command the armed forces. That authority cannot be overridden by any other branch of government. Again, the order given to New was not patently illegal and was entitled to a presumption of lawfulness, according to the court.

Despite its ruling against New, the court understood the gravity of the case.

"This case involves some of the most difficult choices that may confront our Government and our men and women in uniform. Faced with increasing instability in the Balkans, the United States had to decide whether to deploy U.S. troops in support of the peacekeeping effort in the former Yugoslavian Republic of Macedonia, how to structure command and control relationships with other national and international forces in the area, what types of orders were needed to implement those relationships, and how to dispose of alleged violations of such orders. [New] had to decide whether he should voice his opposition to those decisions, how to do so, and whether to obey orders that he viewed as unlawful," the judges wrote. In his separate but concurring opinion, Judge J. Sullivan expressed his belief that the question of the orders' lawfulness should have been put to a jury during New's court-martial. Instead, the lower military court instructed the jury to consider the orders lawful rather than allow jury members to make that determination.

Hamilton agreed with Sullivan's position "that it's an error of constitutional dimension for the military judge to decide the issue of lawfulness of the order without submitting the issue to the jury," the attorney said. "And we also agree with Judge Sullivan's statement that the error was 'so egregious that it constituted a radical departure from our political, legal, and military tradition.' Judge Sullivan, in a well-reasoned separate opinion, goes as far back as his own West Point oath, which he took as a cadet, to argue why it's necessary that orders be lawful, not just orders that are given need to be obeyed."

New's petition to the Supreme Court will be based in large part on the arguments made by Sullivan, noted Hamilton, who was disappointed with the ruling.

The majority opinion is based on "a remarkable proposition that lawfulness of the order is not a discrete element of the offense," he said, noting that in his legal career, he has never heard the term "discrete" used in reference to an element of criminal defense. "They invented it," he said, to enable the court's conclusion against New.

The opinion admits that "if we agree that as a matter of statutory interpretation , lawfulness established a discrete essential element, we would hold that the issue should have been submitted to the members."

"What they're saying is that they do not hold that lawfulness is an element of the offense. Judge Sullivan hammers that in his separate opinion," Hamilton continued. "The essence of this one is, it should have gone to a jury."

Now that all New's military justice options have been exhausted, he is free to take his court-martial challenge to civilian courts. Hamilton believes his client has a "good shot" at being heard in the Supreme Court.

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Michael New case still unresolved

Michael New goes to court

Michael New gets court date

Julie Foster is a staff reporter for WorldNetDaily.