United States vs. Spc4 Michael G. New: what are your thoughts?

I think I agree with you, SGT (Join to see).

SPC New sought guidance on the lawfulness of his order; he was told that it was lawful because the President said it was. But nobody provided a legitimate, legal or rational basis for the order. An unusual battalion briefing said that they should wear the UN uniform because it looked "fabulous."

MAJ Carl Ballinger, if "Constitutionality is not a matter for uniformed Soldiers," then why do both enlisted and officers swear to "support and defend the Constitution of the United States" and to "bear true faith and allegiance to the same"?

You say that "A Soldier can legitimately refuse an order if it compels him to violate law;" the Constitution is the supreme law of the land.

MAJ Carl Ballinger, I certainly disagree on the criteria by which the Constitution must precede an order. The oath to "support and defend the Constitution" precedes the oath to obey orders; I believe this is by design. For the Constitution to nullify an order, the order must simply violate the Constitution. In a way, this is the same as what you said, but I don't think it's what you meant.

I understand that every USG official takes a similar oath to the Constitution. I believe that if such an oath is to have any meaning, it must at least mean that the oath-taker is compelled to understand and comply with the Constitution.

As far as "no Constitutional principle at stake," I encourage you to read SPC New's letter to his chain of command, and consider the Constitutional principles that he believed were at stake. I provide here the relevant portion.
"My chain of command has directed me to study the history and objectives of the U.N. My knowledge of, and my research into the United Nations, (which continues even as I prepare this statement), indicates to me that the U.N. Charter is based upon manmade principles which are incompatible with the Constitution of the United States, and the U.N.'s authority and principles are diametrically opposed to the founding documents of my country. The more I study the U.N. history and American history, the more incompatible they appear to me.
"My studies indicate to me that there are those who would see my country assimilated or brought under the authority of the United Nations, which I interpret to mean a corresponding loss of sovereignty, which is a departure from our Founding Principles and a loss of independence for all Americans. Boutros-Ghali, for example, has written, "The time of absolute and exclusive sovereignty has passed." (1992, An Agenda for Peace) I should expect EVERY American soldier to be concerned about serving under such a Secretary General.
"America against all enemies, foreign and domestic. I believe that the Constitution is the fundamental law of America, and if there is any ambiguity or conflict with treaty or international agreement or organization that the U.S. Constitution would prevail. My oath is to the Constitution. I cannot find any reference to the United Nations in that oath. That oath includes a statement that is more than a passing reference to God Almighty, it is a prayer, "...so help me God." It is no secret that our nation is founded upon Biblical principles. {~" ) Our Founders reflected this fact in their speeches, correspondence and documents from the Mayflower Compact to the Declaration of Independence, and other more recent documents, all of which recognize certain rights such as life, liberty and property as being bestowed from Above, and as, therefore, "unalienable." I believe I will lose something precious and more valuable than the U.N. can possibly grant me, by surrendering my status as an American fighting man."
http://www.mikenew.com/letter.html

"An illegal order one is justified to disobey is one that compliance would expose the Soldier to criminal liability." I'm not aware of any penalties in the Constitution, but it is a law that all in the USG are bound to comply with above all others. After all, we can't very well keep our oath to "support and defend the Constitution," while violating that same document. You are saying that if a soldier could get in trouble for obeying the order, then he should not obey it, but if he will not get in trouble later, then he should obey it. Don't nitpick, but please correct me if I misunderstand.

MAJ Carl Ballinger,
Sir, thank you for the best reply I think has been written on this thread.
While I am not sure that I am in complete agreement with "all" of your explanation, it is the first that has actually attempted to give a good faith explanation.
Thank you!

My profile page pretty well sums it up. Currently working on adding Crestron Control System Programmer to the resume.

For myself, it would be the kind of assignment I was seeking, in terms of finding different experiences and doing the things others could have, but didn't.

My problem with this KIND of thread is the continuous sit down and shut up answers rather than addressing the underlying questions.
Preface: I realize that in this case it may have been a Political action and subject to backlash - but in my humble opinion, Guidance such as MAJ Carl Ballinger gave a few posts above this may never have been given to Mr. New, and if it had, he would have had no recourse but to follow the orders or show his hand that it was PURELY a Political action.

However, the actions "known" show the Command as unresponsive and dismissive of a properly formatted request for guidance "if it was in fact a good faith question". I simply wanted someone/ anyone to address what should have been said other than sit down, shut up and wear the hat - everyone else is doing it. That is a horrible precedent and leads the Troops to distrust leadership. If you have a good faith question, no matter how misguided, and use the proper channels to ask your question, then it should be dealt with, not cast aside with no concern for the state of mind that is created in the Troops or the individual service member.

MAJ Carl Ballinger,
I'm going to agree with you on the specifics of Mr. New.
And, in relation to the word owe, will stipulate under regulations, it is probably incorrect.
But in terms of Good Faith questions, and Loyalty being owed both ways, Up & Down a Chain of Command, in this latter context feel that a proper response is, in fact, owed to a properly asked and timed question.

Sgt Aaron Kennedy, MS, the oath of enlistment says, "I will obey the orders . . . according to regulations . . . ."

He was ordered to wear the UN uniform; did the UN uniform comply with AR 670-1?

The oath of enlistment in its entirety:

""I, (state name of enlistee), do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God"

Both the Regulations & the UCMJ (codified as an Executive Order) are under the purview of the executive branch.

The Order from the President trumps the AR 670-1. That's why he's Commander in Chief (Article 2, Constitution). If you don't believe me, I've got a picture of some Marines holding an umbrella for the President. (Male Marines don't carry umbrellas per uniform regulations).

Sgt Aaron Kennedy, MS, thank you for providing the entire oath of enlistment for our reference.
The interesting thing about PDD-25 is that it was classified at the time; Michael New was not permitted to see it. The judge ordered the prosecution to show PDD-25 to the defense attorneys; they showed a false document. This was revealed upon the 2009 declassification of PDD-25.
The Constitution trumps the President. Consider Michael New's letter to his chain of command: http://www.mikenew.com/letter.html

SGM Mikel Dawson New's unit was to be sent to Macedonia for a UN "peacekeeping" operation; a UN operation, not a allied NATO operation. Were you ordered to wear the UN or a NATO uniform or did the operational requirements keep you in your branches authorized uniform?

In my opinion there is a difference.

I fully remember the case and the circumstances. The U.S. volunteered our services. I also understand his side. As stated above we are in a catch 22 situation. The big difference in my reference and his is, the uniform. We never had a NATO uniform to wear, but we did follow the guidance and orders of commanders of a different country. So not completely the same.

The U.S. entered into a treaty to join the UN. The terms of the treaty are such that military contingents are raised on a case by case basis in support of the UN. The UN somewhat, and NATO definitely were entered to provide collective security. The UN provides a way for nation-states to get along with out resorting to piecemeal alliances and world wars. I served in Afghanistan twice, under command of ISAF, commanded by a NATO appointed commander, with a an ISAF patch on my left sleeve in English and Pashto. The U.S. entered a treaty, which becomes law through Senate ratification. The UN accoutrements identify the service member as a non-belligerent so if they are fired on, the nation and the UN can take action against the belligerent party. It has nothing to do with fashion.

I agree that the US can and will supply troops for a UN operation. However, I do not agree that a unit supplied to the UN should be forced to don there uniform, an arm-band or some other UN identifier, but not an entire uniform.

As far as orders go, we were taught that the chain of command for orders is God, Country, Corps; not God, UN, Country, Corps or God, Country, UN, Corps. I wouldn't have an issue being detached to the UN as part of a global operation. However, I would object to wearing their uniform.

I failed to properly express my position. I do not agree with our personnel EVER being put under UN authority.

You're missing the point. He didn't disobey an order to serve under UN command. He disobeyed an order to wear UN accouterments because they were not authorized by Army regulation, which specifically states what can be worn by a Army service member. Since they were not authorized by Army regulation, the order to wear them was unlawful. Now, I know that sounds somewhat ridiculous to many, however, that is a valid legal defense. Apparently that defense didn't sound so ridiculous to the Army because they went out of their way to specifically bar SP4 New's attorney from using that information on his behalf in his defense. Since the order being lawful is an element of the offense that must be met in order for there to be a violation under Article 92, UCMJ, barring his attorneys from entering into evidence information that the order was not lawful was wrong. I believe had he been allowed to use this in his defense, there is a good chance the charges would have been dismissed by the military judge or he would have been acquitted.

If I understand your final remark correctly, it sounds like you are implying that those of a lessor rank are not as knowledgeable as those of higher rank? Get over your rank. Unless you were a JAG officer, I doubt your knowledge of the UCMJ is any better than mine. My entire time in the Marines was spent in the legal field; I carry MOS's for Marine Corps legal services man, legal notereader/transcriber, and closed-microphone court reporter; meaning I am well versed on the UCMJ and spent as much time in the courtroom as military judges and trial and defense counsels. After leaving the service, I spent 15 years working for law firms. I am not an attorney, but I know how to read and understand legalese. I read the Army uniform regulations that were in effect at that time and, just like SP4 New's attorney, was unable to find any listing of UN accouterments authorized for wear on the U.S. Army uniform.

Now, having said all that, again, I'm not a attorney, so I could be wrong; I'm just not convinced I am yet.

I'm no expert on the UCMJ and either are you; but at least it was my MOS. Presiding over Article 15's and preferring charges aren't exactly rocket science. Most generals have more experience than you and they need SJA to advise them on the UCMJ. The former Commandant of the Marine Corps recently found himself in hot water trying to play fast and loose with the UCMJ.

But I'm sure you do know more than I do regarding Army regulations. However, I just read the entire AR 670-1 regarding your assertion that Army Commanders at any level can prescribe additional uniform items and insignia. I could find no such language in AR 670-1. AR 670-1 lists every type of item that is authorized for wear on the U.S Army uniform and specifically states that only the Deputy Chief of Staff G-1 has authority to approve exceptions or waivers. Nowhere in AR 670-1 does it list UN items as being authorized for wear on a U.S. Army uniform. I also found this unsigned copy of a stipulation of fact from SP4 New's trial stating that UN accouterments are not authorized for wear on U.S. Army uniforms.

http://mikenew.com/facts.html

A. HQ, HRC, MILPER MSG NR. 94-137, DTG 041530Z FEB 94 states the requirements for wear of the UN Medal, and also states that those Army personnel placed under the command of the UN charter WILL wear the UN uniform, to include the beret, in accordance with mission requirements. I'm no lawyer, but it's easy to read between the lines and see implied intent just on this alone.

Ok. I didn't know that. Thanks. You've just changed my mind.