Ex-soldier appeals conviction for refusing order

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A former U.S. soldier asked a federal appeals court yesterday to throw out his decade-old conviction for refusing an order to don a United Nations uniform and deploy as a peacekeeper to Macedonia.

Michael New of Willis, Texas, then a medic stationed in Germany, has petitioned a string of military and federal courts on the grounds that his Army court-martial judge refused to let the jury decide whether Mr. New received a lawful order.

Mr. New contends that the order was illegal because Congress, under the United Nations Participation Act, never approved the Clinton administration's deployment on a U.N. mission to a hostile area, as the law requires.

"It was a foreign insignia totally and wholly unauthorized," his attorney, Herb Titus, told a three-judge panel of the U.S. Court of Appeals for the District of Columbia. The trial judge's ruling "deprived Michael New of his constitutional due process right."

He also said the military judge erred when he refused to hear arguments concerning the U.N. Participation Act because it was a "political issue."

This could mark Mr. New's last appeal, because he lost at the military appeals level and then in U.S. District Court. The government, in a case now called "New, M. v. Rumsfeld, Donald," has argued that the trial judge properly followed the Manual for Courts-Martial. The manual explains military criminal proceedings and dictates that judges, not juries, decide whether an order is illegal.

The judge decided the order was legal. A jury convicted Mr. New of disobeying a direct order and sentenced him to a bad conduct discharge.

Kevin Robitaille, special assistant to the U.S. attorney for the District of Columbia, told the court, "A commander has the authority to order his troops into uniform."

Judge A. Raymond Randolph expressed skepticism that Mr. New's attorney was raising a constitutional issue. If not, the court had no reason to review what the military appeals courts decided. Judge Merrick B. Garland noted that if it was up to juries to decide a lawful order, there could be multiple juries coming to different conclusions on the same order to deploy to a war.

Mr. New balked at wearing the U.N. blue helmet and insignia at a time when some Republicans complained that President Clinton was sending American troops on too many peacekeeping missions and subjecting them to U.N. control.

After the arguments, Mr. Titus said he would like the appeals court to either throw out the conviction or order the lower district court to reconsider the due process argument.

About a dozen supporters of Mr. New traveled to Washington from Texas, Alabama, Virginia and other Southern states to attend the arguments.

Mr. New's father, Daniel, went to Capitol Hill later in the day to drum up support for the proposed Citizen Soldier Protection Act of 2006.

"It bars forced-serving in a U.N. uniform," the elder Mr. New said. "It does not bar serving in the U.N. You could have volunteers."