Henry L. Hamilton, New's attorney and a retired Army judge advocate general, told the court both President 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 nor the U.S. Army.
"Superiors may not compel subordinates to obey illegal orders," Hamilton said. "The government must prove lawfulness. ... If it's not a legal order, there's no duty to obey it."
He added, "President Clinton lied to Congress to effect the deployment in Macedonia. It all stemmed from his duplicity in failing to inform Congress."
New was among a few hundred troops Clinton began sending in 1992 to Macedonia, one of six republics of former Yugoslavia, to guard against the spread of unrest from other areas torn by ethnic turmoil because of Yugoslavia's dismemberment. They served in a peacekeeping force dispatched by the U.N., and New refused to submit himself to the U.N. commander given charge of his unit.
A native of Conroe, Texas, New refused to remove his American military uniform patch in favor of the insignia and blue beret of the U.N., saying he would not serve a foreign power. Hamilton describes his client as a patriot.
"What's at stake here is whether or not it's illegal for a soldier to wear the uniform of foreign nations, of foreign commanders," New told reporters outside the courthouse on Friday.
New was slapped with a court-martial charging he had refused to obey a "lawful" order. Although his defense centered around the lawfulness of that order, evidence submitted by New's attorney to that effect was set aside by Army Judge Lt. Col. Gary Jewell, New's court-martial judge who told the jury the orders were indeed constitutional.
"All we wanted to do was address the unlawfulness of the orders to deploy and change uniforms," Hamilton told WorldNetDaily.
The appeals court must now decide whether Jewell's actions were incorrect and warrant another trial.
While New's court-martial four years ago took just 20 minutes, oral arguments in the appeals court lasted over an hour. Hamilton and government attorney Capt. Kelly Haywood were each given approximately half of the time to present their cases. No witnesses are called in such a proceeding, which was described by Hamilton as a "constant dialogue" between each attorney and the panel of judges.
Questions asked by the panel indicated they had carefully reviewed New's case. One judge in particular had serious misgivings about the military justice system as a result of Jewell's refusal to address the lawfulness of the orders given to New and his fellow soldiers.
Haywood appeared unprepared for the direct inquiries, according to Herb Titus, general counsel to the Michael New Action Fund.
"The judges were obviously paying attention to legal questions rather than just military concerns," Titus told WorldNetDaily.
The government's attorney returned to the Army's standard position from previous court proceedings.
"The mission lives and dies by the soldier following an order," said Haywood, arguing that the order's legitimacy was never for the seven-member military jury to decide, and that New had a duty to obey the commander in chief.
Neither of New's attorneys would speculate on the court's decision, which is expected within two to three months.
"You can never predict on the basis of oral arguments, even though [the judges] may give your opponent a pretty hard time," said Titus.
If the court upholds the decision, New will petition the Supreme Court, which is not required to take his case. However, should the court decide in New's favor, the court-marital decision resulting in New's bad conduct discharge will be reversed, leaving the medic with the possibility of a new trial.
For the latter scenario, New's father Daniel has already begun what he calls "terms of surrender" for the Army. Daniel New is considering a request for reinstatement and honorable discharge for his son.
While awaiting the outcome of his case, New is on involuntary leave -- his discharge is being held in abeyance during appeals. The 26-year-old medical specialist has been working for a Texas manufacturing firm and studying computers at a local college. Perhaps due to the stress of his ordeal, New was arrested in July for forging prescriptions for a drug commonly used to battle anxiety. The arrest follows New's January 1998 conviction for the same crime for which he was fined $500 and sentenced to seven years probation.
Julie Foster is a staff reporter for WorldNetDaily .