Today, we filed a petition for a writ of certiorari, seeking review by the United States Supreme Court of the dismissal of Michael G. New’s collateral attack on his January 1996 court-martial. (Former Army Specialist New was convicted of disobedience of an allegedly lawful order for failure to wear the United Nations uniform prescribed for his unit’s deployment as part of a U.N. commanded operation in Macedonia.)
At New’s court-martial, New was deprived of his due process right to proof of every element of the crime of which he was charged when the military judge decided that the issue of the lawfulness of the order was not an element of the offense. By taking this issue away from the military jury, New was deprived of his opportunity to show that the U.N. uniform was an unauthorized foreign insignia, and the prosecution was relieved of having to prove that the uniform was authorized under a “safety” exception to the general rule.
Additionally, New was deprived of his due process right to a complete defense by the military courts’ ruling that the legality of the Macedonian deployment — for which the U.N. uniform was prescribed — was a nonjusticiable political question, even though the prosecution was allowed to argue that the Macedonian deployment necessitated the U.N. uniform as a “safety” measure.
At stake in New’s petition for review are not only his due process rights, but his right to a review and determination of his due process claims by an Article III court, independent of the President and the military command structure. The United States Court of Appeals for the District of Columbia refused to make such an independent review and judgment, deferring to the military courts on the ground that they gave “fair consideration” to New’s claims.
New’s petition demonstrates that the court of appeals’ deferential standard of review conflicts with the standard of review not only in other circuits, but with previous decisions in the D. C. Circuit, itself, and that the Supreme Court should exercise its supervisory power to settle this important federal question.
New Petition for Writ of Certiorari with Appendix