On November 23, 2005, Michael New’s legal team filed a hard-hitting reply brief to the United States government’s continuing attempt to avoid New’s claim that his 1996 court-martial conviction for disobedience of a “lawful” order was unconstitutional. For over 10 years now, the government has sought to dismiss New’s claim that a 1995 order to wear a U.N. uniform and submit to the operational control of a foreign military officer was a political question. In his reply brief, New argues convincingly that the cases upon which the government has relied are totally irrelevant, having to do with orders issued to American soliders to serve under American, not foreign, command.
Also, for 10 years now the government has insisted that the issue of the lawfulness of an order to wear the U.N. uniform was to be decided by a military judge, not by a military jury, thereby imposing the burden of proving the order’s unlawfulness upon New. In his reply, New demonstrates that the government’s position rests upon the mistaken, and un-American, premise that necessity requires that all military orders unhesitatingly be obeyed. What is at stake, according to the New reply brief, is whether the American military will be governed by the rule of law, or by the judicially-unreviewable political policies of a president.
Oral argument before the U. S. Court of Appeals for the D.C. is expected to be scheduled in the spring of 2006.