[Congressional Record Volume 142, Number 46 (Friday, March 29, 1996)]
[House]
[Pages H3212-H3215]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                              {time}  1445
                          THE MICHAEL NEW CASE

  The SPEAKER pro tempore. Under the Speaker's announced policy of May 
12, 1995, the gentleman from Maryland [Mr. Bartlett] is recognized for 
60 minutes as the designee of the majority leader.
  Mr. BARTLETT of Maryland. Mr. Speaker, we want to spend a few minutes 
this afternoon looking at the very special case of Specialist Michael 
New. His name is out to a number of our people, but some may not be 
familiar with this case and the issues involved here.
  Michael New is the son of missionary parents. He was home schooled. 
He volunteered for the military. He was stationed in Germany. The group 
he was with was being moved to Macedonia. As a part of that move, they 
were told that they had to wear the insignia of the United Nations.
  Specialist New took the position that the oath he took when he 
entered the military was to defend and protect the Constitution of the 
United States; that he had not taken an oath to defend and protect the 
charter of the United Nations.
  Now, in the helicopter accident over Iraq, when several of our 
military personnel were killed, the Vice President, Al Gore, went to 
their parents and told them they should be proud of their sons who died 
as U.N. soldiers. Specialist New had the conviction that if he were to 
wear the insignia of the United Nations, that he would become, as the 
Vice President indicated, he would become a U.N. soldier, and he 
thought that this was a violation of the oath he took to protect and 
defend the Constitution of the United States.
  He would gladly have gone to Macedonia as a U.S. soldier assisting in 
a U.N. operation. Our military personnel did that by the thousands in 
Korea. We were there and lost many lives over a number of years, but 
not one of our soldiers there was a U.N. soldier. They were all U.S. 
soldiers.
  What Specialist New was asked to do was something he felt was very 
different than this. He felt that he was being required to change his 
allegiance to the Constitution of the United States to the charter of 
the United Nations, and he was not willing to do this.
  He was told in his training that he was not to obey an unlawful 
order. Let me read to you from the 1990 Army field manual. U.S. 
soldiers are instructed that, quoting from the manual,

       Moral courage is as important as physical courage. Do not 
     ease the way for others to do wrong. Stand up for your 
     beliefs and what you know is right. Do not compromise your 
     professional ethics or your individual values and moral 
     principles. If you believe you are right after sober and 
     considered judgment hold your position.

  This is precisely what Specialist New did. He had no problem in going 
to Macedonia. He would have willingly gone. As a matter of fact, he is 
a decorated soldier, once for saving the life of a comrade, and a 
second time for saving the eyesight of a comrade. So he was not trying 
to avoid a dangerous situation.
  His concern was the concern of conscience, that he could not in good 
conscience transfer his allegiance from the Constitution of the United 
States to the charter of the United Nations. He was court-martialed for 
this, and it is now under review within the military, but he was court-
martialed, and he is to be given a bad conduct discharge.
  I have some charts here that will help us to understand how we got 
where we are. Let me put the first one up.
  As you can see in this chart, this defines the relationship between 
the U.N. charter and the law that regulates or controls how we relate 
to the United Nations. This is the United Nations Participation Act of 
1945.
  In the U.N. charter, there are two chapters of relevance here. The 
first of those chapters is chapter 6. Chapter 6 relates to peace 
observations. It defines the role of the United Nations in peace 
observations. Chapter 7 defines the role of the United Nations in peace 
enforcement. There are significant differences between peace 
observation and peace enforcement.
  Now, the United Nations Participation Act of 1995 is the law which 
determines how we as a country relate ourselves to these two chapters 
of the United Nations. Interestingly, the two sections of this law, the 
Participation Act, are section 6 and section 7. But as you can see from 
the chart here, section 6 relates to chapter 7, which is

[[Page H3213]]

peace enforcement, and it clearly requires prior congressional 
approval.
  Section 7 of the United Nations Participation Act, as you can see, 
relates to chapter 6, and this requires no congressional approval. But 
there are some limitations here. There cannot be more than 1,000 troops 
worldwide, and they have to be noncombatant troops.
  Now, which was this operation? Macedonia is a part of the overall ex-
Yugoslavia operation. There have been a number of U.N. resolutions 
relative to it. Which one was this?
  This is a letter from the President, written by Bill Clinton to then 
Speaker of the House Thomas Foley, and this is justifying his order to 
deploy U.S. troops to Macedonia as a part of the overall effort in what 
used to be Yugoslavia, which, of course, includes Bosnia.
  Here is the significant statement. The President said that this was 
under chapter 6 of the U.N. charter.
  But let us look now at the position that the United Nations has taken 
relative to this. There have been 97 U.N. Security Council resolutions 
and 13 U.N. Secretary General reports that relate to the Yugoslavia 
situation and Bosnia and all of the missions, including Macedonia, 
which are associated with that. Of these 97 U.N. Security Council 
resolutions, 27 of these resolutions specifically refer to chapter 7. 
They say that it is a chapter 7 operation.
  Interestingly, not one of them, not one of them refers to this 
operation as the chapter 6 that the President said it was. So we have 
now a major difference between what the President said it was and what 
27 resolutions of the United Nations said this operation was.
  Now, if it in fact was, and let me go back to the first chart here, 
if in fact it was a chapter 6 operation, then no congressional approval 
would be required. But the United Nations in their 27 resolutions said 
very clearly that it was a chapter 7, and if it was chapter 7, then it 
clearly requires prior congressional approval. There has been no 
congressional approval.
  This next chart is from some of the specific resolutions, and this is 
language which makes it even clearer that they have not made an error 
in designating it a chapter 7, determined to ensure the security of 
UNPROFOR and its freedom of movement for all of its missions, and to 
these ends under chapter 7. So this is another clear indication from 1 
of the 27 resolutions that I mentioned, a clear indication that the 
United Nations felt that this was clearly a chapter 7 activity.
  We now go to several more of these. They used the kind of words that 
are consistent only with a militarized peace enforcement activity, or 
chapter 7. ``Demilitarization, protect, interpose, prevent 
hostilities.'' These are not descriptions of an observation force. 
These are descriptions of an enforcement force. So it is very clear 
from all of these resolutions in the United Nations that the United 
Nations felt this was a chapter 7, not a chapter 6.

  It is interesting that the administration has now admitted that it 
was a chapter 6, but they say, surprisingly, and let me go back to the 
first chart here, they say surprisingly it can be a chapter 6, but it 
can still relate to section 7 of this act. This, of course, is 
impossible. There is no way that you can construe section 6 of the 
United Nations Participation Act to be consistent with chapter 6 of the 
U.N. charter.
  So here we have the basis of the problem, Specialist New taking the 
position that he should not have to wear the insignia of the United 
Nations, that that transfers his allegiance, and his problem with this 
order which has led to the larger question of whether or not this was a 
lawful order.
  There are two levels of whether it is lawful. The first is even if it 
was a lawful mission, and it would appear that the President did not 
have the right to send the troops there because he had not had 
congressional approval and the United Nations said clearly it was a 
chapter 7, but even if he had the right to send the troops there, there 
is still the question of whether or not he could send our troops there 
as U.N. soldiers.
  Now, this gets into a third area, which is a broader one and a very 
interesting one, and that is one which has needed resolution for quite 
a while now. The Congress tried to do this in the so-called War Powers 
Act.
  There is in the Constitution the clear prescription of the 
responsibility of the Congress, and there is the clear prescription of 
the responsibility of the President. But between those two clearly 
defined areas there is a major gray area. I think that this has 
occurred because the Framers of our Constitution could not have 
anticipated the kind of world that we would be living in in 1996.
  Let me read from the Constitution the responsibilities of the 
Congress, because I think it is well to go back to the original 
language. The responsibility of the Congress is to declare war. It is 
to raise and support armies. It is to provide and maintain a Navy. 
Then, very significantly, to make rules for the government and 
regulation of the land and naval forces. I am reading from article I, 
section 8 of the Constitution.

  Now, if I go to the powers of the President, let me read the powers 
of the President relative to the military. They are taken from article 
2, section 2. ``The President shall be commander-in-chief of the Army 
and the Navy of the United States and the militia of the several states 
when called into actual service of the United States.''
  Now, there may be a grammarian's argument as to ``when called into 
the actual service of the United States,'' what does that refer to? 
Does it refer to the Army and the Navy and militia, or is it restricted 
to the militia alone?
  To determine what our forefathers had in mind, one needs to go back 
to put their statement in the context of the time. Remember when this 
was written, the fastest way one could travel on land was on horseback. 
Ordinarily armies marched. The fastest way to travel at sea was in a 
sailing boat. Clearly, nothing was going to happen very quickly in this 
kind of a world. I doubt that our forefathers ever envisioned that 
there would be a need to commit the troops before Congress had the 
opportunity to discharge its responsibilities.
  Again, let me read the responsibilities of the Congress to discharge 
its responsibilities. Let me read the responsibilities of the Congress 
to declare war. Now, sending troops in harms's way, where a number of 
thousands of them, as happened in Korea, could be killed, I am sure, 
and were killed, I am sure our forefathers would have envisioned this 
as the equivalent of declaring war.
  Now, to decide to send our troops to Macedonia in this operation 
there, I am sure they felt would come under either that declaration of 
war, or under to make rules for the government and regulation of the 
land and naval forces.

                              {time}  1500

  So we have a problem today, and that problem is that our military 
today must act in a fashion that our forefathers could never have 
imagined that they would need to act. For example, if an enemy in Asia 
were to launch an intercontinental ballistic missile and we knew the 
moment they launched it, it would be here in half an hour, that is 
clearly not time for the Congress to be convened and to make a 
declaration of war. Clearly our President has to have the ability to 
respond to that threat.
  Nobody wants to deny the President the opportunity to respond to that 
threat and others that may not be so severe and imminent but may not 
permit the Congress to convene and to go through the formal declaration 
of war.
  But there are many activities that our troops have been engaged in in 
the past and are now being engaged in which fall in this gray area. 
Clearly, clearly it was no great urgency that we send our troops to 
Somalia, no great urgency that we send them to Haiti, no great urgency 
that would have precluded the Congress from meeting that we sent our 
troops to Macedonia or to Bosnia. Yet in each of these instances, the 
President felt as Commander in Chief that he had the authority to 
commit our troops there.
  So this case of Specialist New has unearthed this much larger area, 
and that is what are the constitutional prerogatives of the Congress 
and what are the constitutional prerogatives of the President. This 
case is now going to foster a debate on this very important subject.
  Mr. Speaker, there have been disagreements among Presidents and 
Congresses. When we had a Republican President and Democrat Congress, 
we had a disagreement. We have that same

[[Page H3214]]

disagreement now that we have a Democrat President and a Republican 
Congress. So Specialist New unwittingly, I think, has opened up this 
larger venue, an issue that really needs to be addressed. The Congress 
has the responsibility of funding the military, to raise and support 
armies, to provide and maintain a Navy.
  If the President can commit our troops to have expensive ventures, 
then it could be argued that he has wandered into the congressional 
area of responsibility because we cannot commit troops without 
committing the moneys that are necessary to support them. So these are 
some very important issues that need to be addressed.
  Also there is another area of the Constitution that those who are 
pursuing legally the Specialist New case have mentioned. That is 
article I, section 9, which they think made the command that he got to 
put on the U.N. insignia not only a lawful command but a United States 
constitutional command.
  Let me read that and my colleagues use their judgment as to what they 
think our forefathers meant by this. Let me read the whole paragraph. 
It is the last short paragraph in article I, section 9: No title of 
nobility shall be granted by the United States, and no person holding 
any office of profit or trust under them--that certainly includes the 
military--shall, without the consent of the Congress, accept of any 
present, emolument, office, or title, of any kind whatever, from any 
king, prince, or foreign state.
  Specialist New made the argument, we will remember, that he felt that 
being required to put on the insignia of the United Nations and then 
fighting as a United Nations soldier and, as the Vice President has 
said, dying as a United Nations soldier if dying in that fight, that he 
transferred his allegiance from the oath he took to defend and protect 
the Constitution of the United States to the charter of the United 
Nations. He felt this to be an unlawful order. He felt that this was a 
violation, and those who are pursuing his case agreed, that this is a 
violation of article I, section 9 of the Constitution that prohibits 
this action without the consent of the Congress.

  There has been no consent of the Congress.
  Mr. Speaker, this case is now going through the military court 
process. It is going through the appeals there. It is now being 
reviewed by a senior officer who will indicate shortly whether or not 
he concurs with the decision that was made by the court-martial.
  Let me mention, by the way, to make something very clear here that in 
this court-martial, the judge in the court-martial instructed the jury 
that it was beyond their pay grade to consider whether or not this was 
a lawful order. The word he used was that this had some political 
overtones and that this could not be decided in the military courts. So 
he instructed his jury that they had to consider that this was a lawful 
order.
  Mr. Speaker, if we consider it was a lawful order, obviously he did 
not go by the order. So the court-martial was no great surprise once we 
have the prescription that the jury had to consider this a lawful 
order. But the judge has made the point, as I read earlier, that he is 
willing to hear this argument after it has gone through the military 
courts. It is not that he has rejected the argument of Specialist New. 
It is just that he does not think this is an appropriate time for this 
to be heard in the civilian courts, in the Federal court system.
  As a matter of fact, in that last statement I read, he held the door 
open not just a little but he held the door open a great deal. He said, 
once the military proceedings are completed, and I would gather that he 
does not expect because of the position of the military that Sergeant 
New is going to get the kind of decision he wants, once the military 
proceedings are completed, Specialist New may either move to reopen 
this proceeding or file a new petition for a writ of habeas corpus.
  He had earlier said in his conclusions, just the page before, that 
the court takes his allegations very seriously. The court has taken 
them seriously, he says.
  So where we are now is that this case is proceeding through the 
military courts. It is now being reviewed by the senior officer. If 
that review, if he upholds the court-martial decision, then there is a 
formal appeals process and Specialist New's lawyers--who, by the way, 
are providing their services pro bono; they have recognized that this 
is a case that goes far beyond the heartfelt conviction of this young 
man--that this is a case that will be important in defining, helping to 
define the relationship between the President and the Congress and may 
go a long way to avoiding the kind of indiscriminate deployment of our 
troops around the country that many view are not necessarily in our 
vital national interest and would sap large amounts of money from the 
limited funds that we have to maintain a military that we desperately 
need to protect us against real enemies now and in the future.
  I hope that in the military courts that Sergeant New gets 
satisfaction. If they continue to take the position that his order was 
lawful, then he will not get satisfaction there, and it will move in 
due time into the Federal courts. We need a dialog all across America. 
The great wisdom of the country is not the 545 people who are inside 
the Halls of the Congress here, inside the beltway. The great wisdom of 
the country is out all across America.

  We need a dialog across America so that we have an input from our 
constituents in all of our districts across the country because we may 
need legislation in the Congress. We may need legislation here in the 
Congress to solve the problems that are brought out by Specialist New's 
courageous action. We would like our citizens to become very 
knowledgeable on this subject. We would like them to research the 
Constitution. We would like them to search their conscience, and we 
would like them to communicate with their legislators so that we have 
the advantage of an input from our constituents when we come to the 
point that we make a decision whether or not we are going to offer 
legislation and the kind of legislation that we are going to offer.
  There is, apart from the legal arguments here, the recognition that 
here we have a brave young man, who has been twice decorated, once for 
saving the life of one of his fellows, and secondly for saving the 
eyesight of another. He is a medic, by the way. And he has now taken a 
position of conscience. In an America where increasingly anything goes 
and where we are more appalled each day by the kind of fare that we get 
over our radios and our televisions, we ought to stand up and applaud a 
young man who at great risk to his future takes a courageous position 
like this.
  However this comes out, and I have to believe that not only is 
Specialist New going to be exonerated but that we are going to have the 
opportunity to enact some very important legislation that will define 
the roles of the Congress and the President so we do not have the kinds 
of misunderstandings that have come up not just during this 
administration but previous administrations as well, but whatever 
happens in this, I think that we need to remember that this is a brave 
young man who has taken a position of conscience.
  Mr. Speaker, how many of us would have had the same kind of courage 
to risk a bright future by taking a position of conscience like this? 
He could have rationalized it: This is somebody else's problem. I am 
just a lowly specialist. I do not need to take, to dig my heels in and 
take this position.
  He did not do that. He did what I hope more and more of us across the 
country do every day. That is to recognize that we have a 
responsibility.
  Let me read again, let me read again from the Army field manual. I 
will close with this because I think this speaks the minds and the 
hearts of most of our people:
  Moral courage is as important as physical courage. Do not ease the 
way for others to do wrong. Stand up for your beliefs and what you know 
is right.
  America, we need more of this. Do not compromise your professional 
ethics or your individual values and moral principles. If you believe 
you are right after sober and considered judgment, hold your position.
  Mr. Speaker, this was not only great advice for Specialist New and 
every other brave young person who has volunteered for our military, it 
is also great advice for all the rest of us. My hat is off to 
Specialist New and his position of courage.

[[Page H3215]]

  I hope that everyone out there will become better informed about this 
and will convey to their Representatives what they would like them to 
do in solving the problems that have been brought up by this very 
special case of Specialist New.

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