 | ||||
| Dr. David Marlett, Editor | 15 June 2001 | Vol. II, No. 60 | ||
|
| ||||
| ||||
| ||||
| Dr. David Marlett, Editor | 15 June 2001 | Vol. II, No. 60 | ||
|
| ||||
| ||||
** Ex-soldier who refused U.N. emblem plans Supreme Court appeal
Nearly a year and a half after former Army Spc. Michael New argued that an order to don United Nations accouterments over his U.S. military uniform was illegal, the Court of Appeals for the Armed Forces upheld New's bad-conduct discharge.
The unanimous ruling was issued Wednesday by the five-member panel of civilian judges. Three of the judges filed concurring opinions in which they agreed with the decision but varied some of their reasoning.
New's attorneys plan to appeal to the Supreme Court.
New was court-martialed in January 1996 after he chose not to obey what he calls an illegal order to remove his American military uniform patch in favor of the insignia and blue beret of the United Nations. While stationed in Germany in 1995, New was among a few hundred troops President Clinton sent to Macedonia on a U.N. peacekeeping mission. When given the order, New said he would not serve a foreign power.
Consequently, the soldier was slapped with a court-martial charging he had refused to obey a "lawful" order. Henry L. Hamilton, New's attorney and a retired Army judge advocate general, told the court both Clinton's order to deploy troops to Macedonia and his order for soldiers to wear the U.N. uniform were unlawful. Deployment required congressional approval, according to Hamilton, and the U.N. uniform is not authorized by either the Department of Defense or the U.S. Army.
Although his defense centered around the lawfulness of the order, evidence submitted by New's attorney bearing on that issue was set aside by Army Judge Lt. Col. Gary Jewell, New's court-martial judge, who instructed the jury that the orders were indeed constitutional. The military appeals court discussed in its opinion the issue of lawful orders.
The military appeals court cited a 1996 case that states, "Orders are clothed with an inference of lawfulness." Additionally, the Manual for Courts-Martial speaks directly to the issue and is quoted in part by the court: "An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime."
Accordingly, New "has the burden to establish that the order is not lawful," the court continued. "We hold that the military judge did not err in determining that the order given to appellant to wear his uniform with U.N. accoutrements was lawful. The military judge correctly determined that the evidence presented by appellant did not overcome the presumption of lawfulness given to military orders and that the order related to military duty."
As for the legality of the order to deploy to Macedonia, the judges deferred to the political-question doctrine, which does not allow any of the three branches of government to overstep constitutional separation of powers. Specifically, the Constitution gives the president express authority to command the armed forces. That authority cannot be overridden by any other branch of government. Again, the order given to New was not patently illegal and was entitled to a presumption of lawfulness, according to the court.
Despite its ruling against New, the court understood the gravity of the case.
"This case involves some of the most difficult choices that may confront our Government and our men and women in uniform. Faced with increasing instability in the Balkans, the United States had to decide whether to deploy U.S. troops in support of the peacekeeping effort in the former Yugoslavian Republic of Macedonia, how to structure command and control relationships with other national and international forces in the area, what types of orders were needed to implement those relationships, and how to dispose of alleged violations of such orders. [New] had to decide whether he should voice his opposition to those decisions, how to do so, and whether to obey orders that he viewed as unlawful," the judges wrote. In his separate but concurring opinion, Judge J. Sullivan expressed his belief that the question of the orders' lawfulness should have been put to a jury during New's court-martial. Instead, the lower military court instructed the jury to consider the orders lawful rather than allow jury members to make that determination.
Hamilton agreed with Sullivan's position "that it's an error of constitutional dimension for the military judge to decide the issue of lawfulness of the order without submitting the issue to the jury," the attorney said. "And we also agree with Judge Sullivan's statement that the error was 'so egregious that it constituted a radical departure from our political, legal, and military tradition.' Judge Sullivan, in a well-reasoned separate opinion, goes as far back as his own West Point oath, which he took as a cadet, to argue why it's necessary that orders be lawful, not just orders that are given need to be obeyed."
New's petition to the Supreme Court will be based in large part on the arguments made by Sullivan, noted Hamilton, who was disappointed with the ruling.
The majority opinion is based on "a remarkable proposition that lawfulness of the order is not a discrete element of the offense," he said, noting that in his legal career, he has never heard the term "discrete" used in reference to an element of criminal defense. "They invented it," he said, to enable the court's conclusion against New.
The opinion admits that "if we agree that as a matter of statutory interpretation , lawfulness established a discrete essential element, we would hold that the issue should have been submitted to the members."
"What they're saying is that they do not hold that lawfulness is an element of the offense. Judge Sullivan hammers that in his separate opinion," Hamilton continued. "The essence of this one is, it should have gone to a jury."
Now that all New's military justice options have been exhausted, he is free to take his court-martial challenge to civilian courts. Hamilton believes his client has a "good shot" at being heard in the Supreme Court.
[ WND ]
If you have had any contact with the media this week you have heard all about the European condemnation of GW for not supporting the Kyoto Treaty. Have you heard anyone in the liberal media mention that the 19 nations firing at Bush have been silent on the fact that the European Union has also failed to ratify the treaty? I haven't either. It isn't part of the media's agenda, so it goes unreported.
Match the last two numbers of your Social Security number to determine when your check ($300 for singles, $500 for single parents, $600 for married couples) will be in the mail:
00 - 09 July 23
10 - 19 July 30
20 - 29 Aug. 6
30 - 39 Aug. 13
40 - 49 Aug. 20
50 - 59 Aug. 27
60 - 69 Sept. 3
70 - 79 Sept. 10
80 - 89 Sept. 17
90 - 99 Sept. 24
TCN Comment: Please note that this is a "rebate" check, not a gift. If you were among the millions that paid no tax, you will not receive a check. If you paid less tax than the amount specified above you will only receive up to the amount you paid.
Rumors that Sen. Strom Thurmond will soon step down, perhaps after the July 4th recess, are beginning anew on Capitol Hill. Thurmond has been keeping a fairly regular schedule and working through much of the legislative session, say aides. "He's been fine, no major problems, no scares. We aren't really that concerned. He's a fighter," says a legislative aide. "Perhaps now that we're out of the majority, he won't feel the pressure he was feeling five months ago. He's not slowing down."
So where are the rumors coming from? Several Senate Democratic leadership staffers were overheard in the Russell Senate Building cafeteria last week talking about Thurmond resigning . "They said Tom Daschle sent [South Carolina governor] Jim Hodges a list of five potential Democratic appointees he's like him to consider when Thurmond exits the Capitol. And that given Thurmond's condition, Daschle expected that exit to be sooner rather than later," says an aide to a western Democratic senator who overheard the conversation. "The Democrats want the Thurmond resignation rumors to just keep rolling along, building up."
Also, Daschle & Co. want to put to rest talk that Hodges might not appoint a Democrat to succeed Thurmond. "They want Hodges to make that seat Democratic, not independent or Republican," says the aide. "By keeping the pressure up, they hope to keep Hodges in line."
[ Washington Prowler ]
"[If the Democrat-controlled Congress had cut spending as promised after Ronald Reagan cut taxes] we wouldn't have had the deficits." --Demo Sen. John Breaux
"The worst thing in this world, next to anarchy, is government." --Henry Ward Beecher
"The fact that people of the stature of Hillary Clinton and Walter Cronkite are now willing to publicly advocate world government is an indication of their confidence that the world is now ready to accept their plan. World government is no longer the exclusive domain of the 'black helicopter crowd.' Finally, the sinister plans to rule the world are being exposed by those who expect to rule. The only way to stop world government at this late date, is for the American people to send a government to Washington in the next election that can muster the courage to just say, 'No'." --Henry Lamb
"...America, itself, is a faith-based institution." --Alan Keyes
"If we continue our current path, future generations will curse us for squandering unprecedented liberty." --Walter Williams
"History fails to record a single precedent in which nations subject to moral decay have not passed into political and economic decline. There has been either a spiritual awakening to overcome the moral lapse, or a progressive deterioration leading to ultimate national disaster." --Douglas MacArthur
"In reality, our moral sense is grounded, not in what we adapt to, but in what is right and true. It may be adaptive to kill unwanted infants, as rats do when they're overcrowded. But it's morally wrong, because infants bear the image of God. And that's something we know objectively." --Charles Colson
"Thanks to the negligence of their opponents, [Leftists] control the terms of every debate by always demanding 'more' while never defining 'enough.' The predictable result is that they always get more, and it's never enough." --Joseph Sobran
"The religious freedom required by the Constitution should not end the moment one enters a school, courtroom, or city hall." --Rep. Ron Paul
"Attorney General John Ashcroft shocked gun-control advocates by taking the 'extreme' position that the Second Amendment to the Constitution enshrines an individual rather than a corporate right to firearms ownership. ... To anyone who has actually read the Second Amendment and has any grasp of the fundamental reason why American colonists rebelled against Great Britain in the first place, Mr. Ashcroft's interpretation is neither controversial nor surprising.
America was founded on the idea of individual not 'corporate' rights. In fact, only individuals can have rights, at least in any meaningful sense. 'Society,' the 'people,' etc. are all abstractions. They have no reality beyond the basic building blocks that comprise them – that is, each individual. To take the opposite position, as demanded by gun-control advocates, is to turn one of the most fundamental founding principles on its head.
The gun-controllers, of course, do not base their arguments on the founding principles, but on the 60-year history of federal encroachment on gun control, including the 1968 Gun Control Act that was itself patterned on the very law used by Hitler and his Nazis to disarm the German people in the 1930s."
[ Washington Times ]
A federal court is forcing the Communications Workers of America to give back to its 71,000 members $70 million in forced union dues illegally used for political purposes over a nine-year period.
Thirteen current and former members of the International Longshoremen's Association were indicted for helping smuggle 20,000 kilos of cocaine through the Port of Miami.
A federal grand jury in Colorado indicted Shelly Pfeifer for allegedly embezzling $16,000 from the Operative Plasterers' & Cement Masons' Int'l Ass'n Local 577 in Denver.
Union pension manager Todd J. LaScola pleaded guilty in U.S. Dist. Court in Providence, R.I., Feb. 26 to embezzling from his clients to subsidize a lavish lifestyle and to shore up a failing union investment. LaScola admitted defrauding several clients of more than $6 million to pay for a $9,600 diamond engagement ring, among other personal items.
[ NLPC Union Corruption Update ]
"Pfc. David Hobbs and Pvt. Josh Beam had enlisted in the Marines, gone to San Diego for three months of basic training and returned to graduate with their class in Elkhart. They might as well not have bothered: 'Hobbs said he was pulled aside by school officials and given a choice on his attire. 'They said I either had to take my (jacket) off and put on a shirt and tie or put a tie on my military uniform.' Hobbs said he told school officials that neither one would be possible because military personnel can neither wear an incomplete uniform or add anything to it that is not part of the uniform. 'I told him several times that I was going to wear the cap and gown,' he said. It was at that time Hobbs said he and Beam were asked to leave and escorted out of the Joyce Center.'"
[ Best of the Web ]
By David Hackworth
This week, the U.S. Army celebrates its 226th birthday. And while it's an institution that's served our country well, it's sure showing its age.
Like most organizations that have grown long in the tooth, the Army has become a massive, top-heavy bureaucracy that's thin on fighters and heavy on memo-writers and brass. Chances are it no longer has the right stuff to storm the beaches like Col. Jim Van Fleet's regiment did at Normandy or smash a powerful Chinese Red foe the way Col. Paul Freeman's regiment did at Chipyong-ni.
Feats like those are the Army's reason for being - defending America – and we can't afford to take chances with our national security and risk our warriors' lives in the interests of social experiments that run against the grain of soldiering.
Instead of protecting us in the 21st century by maintaining the high and hard kill-or-be-killed standards key to surviving the Normandys and Chipyong-nis, the U.S. Army has become a flabby, politically correct corporation that no longer has the kind of senior leadership the Van Fleets and Freemans provided.
For the past 50 years, I've watched the Army slowly disintegrate. It's gone from an Army where sergeants were sergeants and captains were captains and where no one above them would dare do their jobs, to generals micromanaging squads and companies - and where trust in any rank above major seldom exists. Unless, that is, a soldier is fortunate enough to be in a Ranger battalion or in a unit with a CO who's somehow escaped the corporate mentality that's been strangling our Army since it started copying Big Business's management techniques.
Back in the Van Fleet/Freeman Army, commanders didn't flit into command, punch their corporate card and flit out. They stayed with their soldiers year after year, gaining their trust by their own example - and along the way they learned how to fight and lead.
Recently retired Army Gen. Wesley Clark, who's now busy bad-mouthing the Pentagon for his screwing up the Serbian War, is one of the new corporate-general types. Clark, with a total of seven years with troops out of 33 years of service, spent the other 26 years punching his corporate ticket in "career essential assignments" such as getting a graduate degree, serving in the White House, being a general's aide and doing time on high staffs. All were critical punches for him if he wanted to wear stars in our modern Army.
Freeman and Van Fleet didn't go to Harvard Business School, nor did they have graduate degrees from fancy universities. But they had degrees in their soldiering trade earned at the University of Hard Knocks, where they learned to lead troops well and win battles by doing.
The corporate copycatting and ticket-punching started during the Korean War; by the time we got into Vietnam, it had so accelerated that few at the top understood that guerrilla war. Battalion and brigade COs were rotated out every six months, and the average company CO's time with troops was three months. Officers were too busy playing musical chairs, advancing their careers, to learn their trade, and the grunts quickly – and survival-smartly - lost all trust for their officer leadership.
The lion's share of our Army's serving generals' resumes are frighteningly similar to Clark's. Few have a clue about what's going down with the troops. Most are a reflection of their gurus. A corporate general mentors a bright captain - who reminds him of himself way back when - and guides his career, then the captain eventually becomes a general - an exact clone of his mentor - and the institutionalized sickness is passed on.
Five years ago, I told the Army Chief of Staff that hundreds of disheartened sergeants and captains were telling me they were quitting because the Army had lost its way. He said I was wrong: "My staff assures me that Army attrition is well below average."
The general was into big-time denial. Tens of thousands of our best and brightest have since quit, and the hemorrhage continues.
The black beret that our soldiers will slap on their heads this week as "An Army of One" birthday present won't fix the problem. Only leadership can do that. Sadly, I see few serving generals made of the same stuff as Freeman or Van Fleet.
[ Http://www.hackworth.com ]
The homepage and archives for The Conservative Newsletter are located on the WWW at http://www.wilderness-cry.net/tcn/
This newsletter is sent by subscription only. If you do not wish to be on the mailing list, please let us know and you will be removed immediately. To be removed from this mailing list, simply reply to this newsletter with the word REMOVE in the body of your reply. You may also send your request to tcn@wilderness-cry.net .
Thank you.