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TABLE OF=20
CONTENTS
Table of Authorities
Interest of the =
Amicus=20
Curiae
Statement of the Facts
Argument
TABLE OF AUTHORITIES
No. 97-1375
Amicus Curiae National Citizens Legal Network (NCLN) is a =
project of=20
Citizens United Foundation,
issues related to sovereignty, separation of powers, the original =
intent of=20
the Framers and the correct interpretation of the United States =
Constitution.
NCLN and Citizens United Foundation believe that the pending case =
presents=20
the Court with important constitutional questions touching American =
sovereignty=20
and separation of powers involving the original intent of the Framers =
and the=20
correct interpretation of the Constitution. In particular, this brief =
urges the=20
Court to grant Mr. New's petition for a writ of certiorari in order to =
determine=20
whether the court of appeals has decided correctly that Mr. New has no =
right to=20
have his habeas corpus petition heard until he exhausts his appeals =
before a=20
military court that has no authority to rule on his constitutional =
claims.
Statement of Facts
On August 21, 1995, United States Army Medical Specialist Michael G. =
New=20
learned that he and the other members of his unit would soon be deployed =
to=20
Macedonia to serve as "United Nations Fighting Persons." As such, Mr. =
New would=20
be required to wear a United Nations uniform, carry United Nations=20
identification, and forfeit the protections afforded United States =
servicemen by=20
the Geneva Convention, in favor of the protections afforded "United =
Nations=20
Fighting Persons" by the UN Charter. He would also fight under the =
command of=20
officers, each of whom swore not to seek or accept instructions with =
respect to=20
the performance of any duties from any government or authority other =
than the=20
United Nations (including anyone in the command structure of the U.S. =
Army up to=20
and including the President of the United States).
Mr. New protested, requesting transfer to a unit not under United =
Nations=20
command, or alternatively, an honorable discharge from the Army. On =
October 10,=20
1995, Mr. New was ordered to don the United Nations uniform, and he =
refused to=20
do so, explaining his belief that the order was illegal and =
unconstitutional. He=20
was convicted by court martial on January 24, 1996 for failure to obey a =
lawful=20
order, and sentenced to a Bad Conduct Discharge.
Mr. New petitioned for a writ of habeas corpus, contending, inter =
alia, that it was unlawful for him to wear the badges or accept the =
office=20
of a foreign government, and seeking an honorable discharge. His =
petition was=20
denied by the district court, New v. Perry, 919 F. =
Supp. 491=20
(D.D.C. 1996), and the district court's judgment was affirmed by the =
court of=20
appeals, New v. Cohen, 129 F.3d 639 (D.C. Cir. =
1997).
Mr. New's sentence was suspended pending appeal, and Mr. New is = currently on=20 involuntary leave from the Army.
Summary of Argument
The Petition for Writ of Certiorari presents an important question = involving=20 the authority and obligation of Article III courts to adjudicate claims = based on=20 the Constitution. The court of appeals denied the claim for habeas = corpus relief=20 of the petitioner, Michael New, on the theory that comity requires = Article III=20 courts to await the adjudication of collateral issues by the Article I = military=20 tribunals. But the law does not require such abstention where the = underlying=20 constitutional claim properly is one for determination by the Article = III court,=20 and not an Article I tribunal, and where the petitioner's claim cannot = be=20 resolved by the Article I tribunal.
In this case, Michael New's constitutionally-based claim that he is =
entitled=20
to an honorable discharge from the United States Army will not be =
adjudicated by=20
the military courts' review of the bad conduct discharge thus far =
decided=20
against him. Such determinations fall within the province of Article III =
courts.=20
Moreover, the prior decisions of this Court indicate that habeas corpus=20
jurisdiction for Article III adjudication of Mr. New's claim presently =
lies.=20
Finally, if there is no such Article III adjudication at this time, and =
the=20
court martial verdict against Mr. New is sustained by the military =
tribunals,=20
the court of appeals offers no assurance that habeas or other relief in =
an=20
Article III court would be available.
By refusing to provide Article III review of the merits of Mr. New's =
claim at=20
this time, while requiring Mr. New to await final disposition of the =
collateral=20
charges against him in the military courts, the court of appeals' =
decision=20
doubly prejudices Mr. New's constitutional rights. Applying the =
principle of=20
comity so as to preclude adjudication of Mr. New's constitutional claim =
by an=20
Article III court neither accords with the Constitution nor follows the =
prior=20
decisions of this Court. Therefore, this amicus curiae =
believes, with=20
the petitioner, that the court of appeals' decision should be reversed. =
This=20
issue is a proper one for full briefing and review by this Court. =
Certiorari=20
should be granted.
Argument
The Petition for Certiorari being supported by this amicus =
curiae=20
presents to the Court for determination the fundamental issue of whether =
the=20
principle of comity as applied to appeals pending before military =
tribunals=20
requires Article III civil courts to deny habeas corpus relief to a =
petitioner=20
whose important constitutional claims could otherwise escape =
adjudication by an=20
Article III court.
The decision of the lower courts would require the petitioner, = Michael New,=20 to exhaust military appeals of his court martial conviction, in a case = where=20 that conviction was based exclusively on Mr. New's principled refusal to = violate=20 his oath as a member of the Armed Forces by refusing to obey an illegal = and=20 unconstitutional order to transfer his allegiance to a foreign sovereign = by=20 becoming a soldier of the United Nations. The lower courts refused to = entertain=20 habeas relief, while military appeals are pending, which may be Mr. = New's only=20 opportunity for review by an Article III court.
The Court must determine whether military tribunals are the =
appropriate forum=20
to rule on the validity of the order given to Mr. New, determining the =
merits of=20
Mr. New's constitutional and other claims
which the district court found had raised "important =
issues,=20
implicating the balance of power between the President =
as=20
Commander-in-Chief and the Congress and the relationship between the =
United=20
States and the United Nations" and which the district court "has=20
taken...seriously." New v. Perry, 919 =
F.=20
Supp. 491, 497-500 (D.D.C. 1996) (emphasis added).
The Supreme Court has determined that the principle of "comity" =
dictates that=20
"when a serviceman charged with crimes by military authorities can show =
no harm=20
other than that attendant to resolution of his case in the military =
court=20
system, the federal district courts must refrain from intervention...."=20
Schlesinger v. Councilman, 420 U.S. 738, 758 (1974). =
As=20
explained by the district court, "[d]eference by the federal court =
avoids=20
friction between the two court systems and may avert unnecessary or =
duplicative=20
proceedings in the event that the military outcome obviates the need for =
judicial intervention." New v. Perry, 919 F. Supp. =
491,=20
496.
In the instant case, however, requiring Mr. New to continue =
adjudicating his=20
case before military tribunals is, at best, an exercise in futility. =
Rather than=20
avoiding duplicative proceedings, deference to the military tribunals=20
virtually guarantees duplicative proceedings, assuming =
that Mr.=20
New's claim eventually would be entertained by an Article III court, a =
matter=20
that is far from certain, as discussed infra.
The court of appeals stated that Mr. New's conviction was reviewable = by the=20 Army Court of Criminal Appeals, with the possibility of a discretionary = appeal=20 to the Court of Appeals for the Armed Forces which is composed of = civilian=20 judges, and is a legislative Article I court. New v. Cohen, 129 = F.3d=20 639, 642 (D.C. Cir. 1997).
A military tribunal comprised of military personnel subordinate to = the=20 President of the United States is clearly not the proper forum to = consider=20 "unprecedented" and "important issues, implicating the balance of power = between=20 the President as Commander-in-Chief and the Congress and the = relationship=20 between the United States and the United Nations" as stated by the = district=20 court. The Court of Appeals for the Armed Forces, likewise, as a = legislative,=20 Article I Court, has no meaningful role in determining the proper = constitutional=20 relationship between the Congress and the President. In neither case is = there a=20 need to tap the special expertise of the military courts, as the = constitutional=20 issue raised is clearly beyond both their expertise and competence.
Since the very early days of the Republic, it has been firmly =
established=20
that Article III courts are vested with the power and obligation to =
interpret=20
the Constitution and laws of the United States arising thereunder. "The=20
constitution vests the whole judicial power of the United states in one =
Supreme=20
Court, and such inferior courts as congress shall, from time to time, =
ordain and=20
establish. This power is expressly extended to all cases arising under =
the laws=20
of the United States." Marbury v. Madison, 5 U.S. (1 =
Cranch)=20
137, 173-74 (1803). "It is emphatically the=20
province and duty of the judicial =
department=20
to say what the law is." Id. at 177 (emphasis added).
When presented with an actual case or controversy, the judicial =
branch has=20
the obligation to define limits of the powers of the various branches of =
the=20
federal government, the essence of Mr. New's constitutional claims. In=20
Marbury v. Madison, for example, the Court concluded =
that it=20
did not have the power to issue a writ of mandamus to the Secretary of =
State,=20
because the issuance of such a writ required the exercise of original=20
jurisdiction and the Constitution limited the Court's original =
jurisdiction to=20
all "cases involving ambassadors, other public ministers and consuls, =
and those=20
in which a state shall be a party." Id. at 174.
In Powell v. McCormack, 395 U.S. 486 (1969), the =
Court=20
construed Congress's powers. It held that the House of Representatives =
was=20
limited to applying only the standing qualifications expressly =
prescribed by=20
Article I, Section 5 of the Constitution in judging the qualifications =
of its=20
members
The Court has also had occasion to define the contours of =
Presidential powers=20
and privilege. For example, in Youngstown Sheet & Tube Co. =
v.=20
Sawyer, 343 U.S. 579 (1952), the Court held that the President, =
absent=20
statutory authorization, did not have the power to order the seizure and =
operation of the nation's steel mills by the government. More recently, =
in=20
Clinton v. Jones, 520 U.S. ___, 117 S.C. 1636 (1997), =
the=20
Court held that the Constitution does not accord the President temporary =
immunity from civil litigation arising out of events occurring before he =
took=20
office.
Unquestionably, the judicial branch has been viewed by this Court as =
being=20
vested by the Constitution with the power and obligation to define the =
powers=20
and privileges of a particular branch of government. As the Court =
explained in=20
Baker v. Carr, 369 U.S. 186 (1962):
Deciding whether a matter has in any measure been committed by the=20
Constitution to another branch of government, or whether the action of =
that=20
branch exceeds whatever authority has been committed, is itself a =
delicate=20
exercise in constitutional interpretation, and is a responsibility of =
this Court=20
as ultimate interpreter of the Constitution. [Id., at 211.]
Such power should not be delegated to, shared with, or exercised by =
military=20
tribunals or Article I courts. In Northern Pipeline Co. =
v. Marathon Pipe Line Co., 458 U.S. =
50=20
(1982), the Court held that 28 U.S.C. =A7 1471, by which Congress made a =
broad=20
grant of jurisdiction to Article I bankruptcy courts, is =
unconstitutional. As=20
the plurality opinion states: "The judicial power of the United States =
must be=20
exercised by courts having the attributes prescribed in Art. III." =
Id.,=20
p. 59. The Court, in Commodity Futures Trading Commission =
v.=20
Shor, explained the fundamental rationale underlying this rule, =
stating=20
that Article III, section 1 serves "to safeguard litigants' 'right to =
have=20
claims decided before judges who are free from potential domination by =
other=20
branches of government.'" 478 U.S. 833, 848 (1986) (quoting U.S. =
v.=20
Will, 449 U.S. 200, 218 (1980)).
The right of litigants discussed in Shor has been protected =
by this=20
Court despite government appeals for deference to the military courts. =
Thus,=20
where an Article I military tribunal has assumed jurisdiction over an=20
individual, the Court has recognized that he or she may petition an =
Article III=20
court for habeas corpus relief when the petition raises a substantial =
and=20
unresolved constitutional claim. In Reid v. Covert, =
354 U.S. 1=20
(1957), the Court affirmed the power to the district courts to grant =
relief to=20
the spouses of military personnel who were unconstitutionally subjected =
to=20
prosecution under the Uniform Code of Military Justice. Similarly, in=20
McElroy v. Guarliardo, 361 U.S. 281 (1960), the Court =
held=20
that a civilian employee of the armed forces serving with the armed =
forces in a=20
foreign country cannot constitutionally be subjected to a court-martial =
in time=20
of peace. And in Toth v. Quarles, 350 U.S. 11 (1955), =
the=20
Court held that a former Air Force serviceman could not constitutionally =
be=20
subjected to trial by court-martial for crimes alleged to have been =
committed=20
while he was in the military. In each of these cases, the Court =
determined that=20
adjudication of the petitioner's claim should proceed immediately in the =
Article=20
III court, and should not await further proceedings by the Article I=20
tribunal.
Although not explicitly stated within these opinions, in each case =
the=20
implicit justification for deciding the merits of the petitioners' =
claims was=20
that Article III courts were the appropriate forum for adjudicating what =
were=20
found to be substantial constitutional claims. Indeed, the Court took =
note of=20
this very point in Noyd v. Bond, 395 U.S. 683 (1969),=20
commenting that in Reid, McElroy and Toth,=20
supra, it "vindicated complainants' claims without requiring =
exhaustion=20
of military remedies," because "we did not believe that the expertise of =
military courts extended to the consideration of constitutional claims =
of the=20
type presented." Id. at 696, n.8.
With respect to the issue of expertise, the court of appeals found =
that the=20
case of Schlesinger v. Councilman, 420 U.S. 738 =
(1975), was=20
controlling, and under that case that "military courts are capable of, =
and=20
indeed may have superior expertise in, considering challenges to their=20
jurisdiction over disciplinary proceedings." New v. =
Cohen, 123=20
F.3d 639, 645. But in Councilman the issue presented was =
whether a=20
service member's alleged offense is "service related." That authority is =
inapposite here, where important constitutional issues have been raised, =
as=20
discussed, supra.
The decision of the court of appeals violates Mr. New's right to have =
his=20
constitutional claims heard before an Article III court as the proper =
forum for=20
adjudicating substantial constitutional claims. Instead, the court of =
appeals=20
held that Mr. New present those claims "to the military authorities =
reviewing=20
his case." New v. Cohen, 129 F.3d 639, 646.
The Article III Courts' refusal to accept jurisdiction of this =
substantial=20
constitutional claim should not stand, even if Mr. New would ultimately =
be able=20
to pursue his claims in an Article III Court. There is no reason to =
require Mr.=20
New to suffer needless delay, force him and his attorneys to waste =
precious=20
resources, and put his life on hold for an even longer period, while the =
military courts conduct a judicial exercise for which they were never =
designed.=20
The factual record in this case is fully developed, and an Article I =
court is=20
not competent to rule on Mr. New's constitutional claims in any event. =
As a=20
consequence, requiring Mr. New to exhaust his military appeals prior to =
seeking=20
habeas relief would be pointless and wasteful. As the Court explained in =
Fay v. Noia, 372 U.S. 391, 437 (1963),"comity =
does=20
not demand that such a price in squandered judicial resources be paid; =
the needs=20
of comity are adequately served in other ways."
But there is an even greater risk. Unless the district court is =
directed to=20
proceed with the habeas corpus petition, there is no guarantee that Mr. =
New=20
would eventually be able to have his claims aired in an Article III =
court. Both=20
the district court and the court of appeals appeared to indicate that =
Mr. New=20
might, but not necessarily would, have his claims heard on the merits in =
an=20
Article III court.
The district court stated: "[o]nce the military proceedings are =
completed,=20
Specialist New may either move to reopen this proceeding or file a new =
petition=20
for a writ of habeas corpus." The district court did not, and perhaps =
could not,=20
say whether the district court would consider the petition on its =
merits.
The court of appeals was much more guarded in its assessment of the=20
likelihood of Mr. New obtaining review in an Article III court, and =
implicitly=20
questioned whether the district court was correct in stating that habeas =
corpus=20
would be an available remedy. The court of appeals seemed to assert that =
only if=20
the court-martial jury had ordered his incarceration in a military =
prison, a=20
scenario which the Court said is "now foreclosed," could he have filed a =
habeas=20
petition in federal district court. New v. Cohen, 129 F.3d at =
647.
That option having been foreclosed, a conviction with an other than =
honorable=20
discharge would leave him only two possible options, according to the =
court of=20
appeals. First, "[i]f he suffers monetary losses as a result of his =
discharge,=20
he may be able to collaterally attack the underlying =
conviction=20
in the United States Court of Federal Claims, an Article I court under =
28 U.S.C.=20
=A7=A7 171(a). Second, "New also might be able to bring =
an action=20
in district court seeking nullification of the conviction underlying his =
bad=20
conduct discharge. And by way of further caveat, the court of appeals =
stated=20
that "[i]n delineating these scenarios, however, we do not mean =
to=20
suggest that New's claims have merit or that a federal =
court=20
would even reach the merits of his arguments." New v. =
Cohen,=20
129 F.3d at 648 (emphasis added).
In truth, by requiring Mr. New to exhaust his military remedies =
before an=20
Article III court will entertain a habeas corpus petition, the court of =
appeals=20
may have effectively denied Mr. New the right to have his important=20
constitutional claims ruled on by an Article III court within the =
judicial=20
branch of the federal government. Surely, the principle of comity, =
however=20
important, cannot be allowed to result in the complete abrogation of Mr. =
New's=20
right to a hearing on the merits of his constitutional claims before an =
Article=20
III court. To provide Mr. New his proper day in court, the district =
court should=20
be directed by the court of appeals to entertain Mr. New's habeas =
petition=20
without further delay.
Conclusion
For the reasons stated above, the National Citizens Legal Network =
urges the=20
Court to grant the Petition for Writ of Certiorari of Michael New.
Respectfully Submitted,
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1. This brief was not authored in whole or in part = by=20 counsel for any party. It has been funded in its entirety by the = amicus=20 curiae. See Sup. Ct. Rule No. 37.6.
The amicus curiae requested and received the written = consents of the=20 parties to the filing of this brief. Such written consents, in the form = of=20 letters from counsel of record for the parties, have been submitted for = filing=20 to the Clerk of Court. See Sup. Ct. Rule No. 37.3(a).
2. Mr. New has challenged the President's legal = authority,=20 as Commander-in-Chief of the Armed Forces of the United States, to order = Mr. New=20 to become a soldier in the armed forces of the United Nations in = violation of=20 his oath of enlistment in the U.S. Army to support and defend the = Constitution=20 of the United States of America, as well as the terms of that = enlistment.
3. The court of appeals' view of the = unavailability of=20 post-discharge habeas relief could be accurate. Federal habeas corpus = relief is=20 available to persons held "in custody" in violation of the Constitution = of the=20 United States or the laws enacted thereunder, 28 U.S.C. =A7 2241. Mr. = New's=20 sentence does not include incarceration; he was sentenced to a bad = conduct=20 discharge only. Once Mr. New's last military appeal is concluded, = arguably, he=20 could be considered to no longer be in the custody of the military if = his=20 sentence is affirmed by military authorities; yet he would continue to = suffer=20 the stigma of a bad conduct discharge without the certainty of having = his=20 constitutional claims ruled on by an Article III court via a habeas = petition.=20 Under the Army's theory of the case, by not having incarcerated Mr. New, = and=20 then arguing comity to avoid habeas review at this time, the Army could = be=20 attempting to manipulate circumstances so as to avoid an Article III = court's=20 review of Mr. New's bad conduct discharge and the important = constitutional=20 issues he raises about the authority of the Army to issue the very = orders Mr.=20 New is challenging.