United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 16, 2006 Decided May 23, 2006
No. 05-5023
UNITED STATES EX REL. MICHAEL G. NEW,
APPELLANT
V.
DONALD H. RUMSFELD,
SECRETARY OF DEFENSE, AND
FRANCIS J. HARVEY, SECRETARY OF THE ARMY,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 96cv00033)
Herbert W. Titus argued the cause for appellant. With
him on the briefs were Henry L. Hamilton, William J. Olson,
and John S. Miles.
Kevin K. Robitaille, Assistant U.S. Attorney, argued the
cause for appellees. With him on the brief were Kenneth L.
Wainstein, U.S. Attorney, and Michael J. Ryan and R. Craig
Lawrence, Assistant U.S. Attorneys.
Before: RANDOLPH and GARLAND, Circuit Judges, and
WILLIAMS, Senior Circuit Judge.
2
Opinion for the Court filed by Senior Circuit Judge
WILLIAMS.
WILLIAMS, Senior Circuit Judge: Michael G. New,
formerly a medical specialist in the United States Army, was
convicted by a court-martial of violating a lawful order to add
United Nations insignia—a shoulder patch and a field cap—to
his basic uniform. The Army Court of Criminal Appeals
(“Court of Criminal Appeals”) and the Court of Appeals for
the Armed Forces (“Court of Appeals”) affirmed. New’s
collateral attack charges several errors in the military courts’
analysis of the lawfulness of the uniform order. Because New
fails to identify fundamental defects in the military courts’
resolution of his claims, we affirm the district court’s denial of
relief.
* * *
Shortly after he learned during the summer of 1995 that
his unit would be deployed to the Republic of Macedonia as
part of the United Nations Preventive Deployment Force, New
voiced concerns about the lawfulness of the Army’s
participation in the mission. In particular, he was troubled
that wearing U.N. insignia as part of his uniform would
manifest an involuntary or fictional shift in his allegiance
from the government of the United States to the United
Nations. Although his superiors discussed these concerns
with him, they failed to alleviate them.
Eventually New’s battalion commander issued—and his
company commander repeated—an order to begin wearing a
special U.N. mission uniform at a battalion formation on
October 10, 1995. The uniform consisted of the ordinary
United States Army battle dress uniform plus a blue U.N.
patch sewn on one shoulder and a blue U.N. cap. New
3
reported for the formation on the scheduled date wearing a
uniform that lacked these features, and his superiors
immediately removed him from the formation. Although his
battalion commander offered him a second chance to comply
with the uniform order, New declined.
New was court-martialed and charged with violating
Article 92(2) of the Uniform Code of Military Justice
(codified at 10 U.S.C. § 892(2)), which provides that any
person who, “having knowledge of any . . . lawful order
issued by a member of the armed forces, which it is his duty
to obey, fails to obey the order . . . shall be punished as a
court-martial may direct.” New’s defense focused on the
lawfulness of the order—specifically its consistency with
Army Regulation 670-1 (1992) (“AR 670-1”), which permits
commanders to require uniform modifications “to be worn
within [a] maneuver area,” par. 2-6d, or “when safety
considerations make it appropriate,” par. 1-18, and with
Article I, Section 9, of the Constitution, which prohibits any
person’s acceptance of, inter alia, any emolument from a
foreign state without congressional consent. New also argued
that the uniform order couldn’t be lawful because the Army’s
participation in the U.N. mission was itself unlawful, asserting
various statutory and constitutional grounds discussed below.
The military judge—a law officer presiding over the
panel but not serving as one of its members—rejected both
sets of arguments: he concluded that the order was consistent
with AR 670-1 and that the legality of the deployment was a
nonjusticiable political question. The court-martial sentenced
New to a bad-conduct discharge.
On appeal to the Court of Criminal Appeals, New argued
that the military judge erred in ruling that the lawfulness of
the order was a legal question for him to decide rather than an
element of the offense to be decided by the “military jury”
4
(the term that we use, following the Court of Appeals, as
shorthand for the court-martial panel). United States v. New,
55 M.J. 95, 103 (C.A.A.F. 2001) (“CAAF Op.”); see also id.
at 117 & n.2 (Sullivan, J., concurring). And he argued that the
military judge’s conclusion on the merits was erroneous. The
Court of Criminal Appeals rejected these claims and affirmed
New’s conviction and sentence. United States v. New, 50 M.J.
729 (A. Ct. Crim. App. 1999) (“ACCA Op.”). The Court of
Appeals then granted review and also affirmed. CAAF Op.,
55 M.J. at 109.
New had filed a petition for a writ of habeas corpus in
federal district court shortly before his court-martial. The
district court dismissed that petition on the ground that New
had failed to exhaust his remedies in the pending court-martial
action, United States ex rel. New v. Perry, 919 F. Supp. 491
(D.D.C. 1996), and we affirmed, New v. Cohen, 129 F.3d 639
(D.C. Cir. 1997). After the Court of Criminal Appeals and the
Court of Appeals both affirmed his conviction, New returned
to the district court. The district court dismissed the petition,
finding that each of New’s challenges fell outside the scope of
collateral review, raised a nonjusticiable political question, or
lacked merit as a matter of law. United States ex rel. New v.
Rumsfeld, 350 F. Supp. 2d 80, 102 (D.D.C. 2004) (“District
Ct. Op.”). New appeals.
* * *
We begin with jurisdiction and the related issue of the
scope and standard of review. New, the government, and the
district court have all assumed that jurisdiction rests on 28
U.S.C. § 2241, which authorizes federal courts to grant writs
of habeas corpus. See District Ct. Op., 350 F. Supp. 2d at 88
n.4, 89; Brief for Appellants at 1; Brief for Appellees at 1.
But § 2241(c) precludes granting the writ unless the petitioner
5
is in custody. Upon conviction by court-martial New received
a bad-conduct discharge; as he is not in custody, § 2241 can’t
supply subject matter jurisdiction. This is not fatal, however,
because the Supreme Court has held that Congress didn’t
intend to confine collateral attacks on court-martial
proceedings to § 2241. Schlesinger v. Councilman, 420 U.S.
738, 748-53 (1975). Thus the district court had subject-matter
jurisdiction to hear New’s collateral attack under § 1331
(which New’s second amended complaint invoked).
The standard of our review is more tangled. In
Councilman the Supreme Court not only confirmed
jurisdiction in the absence of custody, but also said that
collateral relief was barred unless the judgments were “void.”
Id. at 748. And that question “may turn on [1] the nature of
the alleged defect, and [2] the gravity of the harm from which
relief is sought,” id. at 753. Specifically, the defect must be
“fundamental,” for “[a] judgment . . . is not rendered void
merely by error.” Id. at 747. Moreover, “both factors must be
assessed in light of the deference that should be accorded the
judgments of the carefully designed military justice system
established by Congress.” Id. at 753. Because Councilman
ultimately denied review pending the court-martial, this
standard was not part of the holding, but our circuit later
adopted it for non-habeas review of court-martial judgments.
Priest v. Secretary of the Navy, 570 F.2d 1013, 1016 (D.C.
Cir. 1977).
The Supreme Court pitched the Councilman standard as
more deferential than habeas review of military judgments,
which it has in turn described as no less deferential than
habeas review of state court judgments. This first point was
explicit in Councilman itself, where the Court said:
“[G]rounds of impeachment cognizable in habeas proceedings
may not be sufficient to warrant other forms of collateral
relief.” 420 U.S. at 753. The second point is part of the
6
Court’s analysis in Burns v. Wilson, 346 U.S. 137 (1953).
There, reviewing court-martial death sentences allegedly
based on coerced confessions and “an atmosphere of terror
and vengeance,” id. at 138, the Court through a four-justice
plurality described military habeas as follows: “It is the
limited function of the civil courts to determine whether the
military have given fair consideration” to each claim raised by
petitioners. Id. at 144. As to factfinding, the plurality said
that Article III courts should not be in the business of
“reexamin[ing] and reweigh[ing] each item of evidence of the
occurrence of events which tend to prove or disprove one of
the allegations in the applications for habeas corpus.” Id. The
plurality concluded that the petitioners failed to show that the
military review process was “legally inadequate” to resolve
their constitutional claims and affirmed. Id. at 146. (Two
additional justices concurred in the result, one of them writing
that the Supreme Court’s role was limited to assessing the
military courts’ jurisdiction. Id. at 146-48.) In setting out this
standard, the plurality explained that the Court must be at least
as deferential as it is in the civilian habeas context, for in
“military habeas corpus cases themselves, even more than in
state habeas corpus cases, it would be in disregard of the
statutory scheme if the federal civil courts failed to take
account of the prior proceedings—of the fair determinations
of the military tribunals after all military remedies have been
exhausted.” Id. at 142 (emphasis added).
The uncertainty implied in these rankings of deference
level is compounded by the evolution of habeas review over
time. Until the Supreme Court’s decision in Johnson v.
Zerbst, 304 U.S. 458 (1938), the scope of habeas corpus
review was equally narrow in both military and civilian
cases—limited to verifying personal and subject-matter
jurisdiction. In Johnson, a civilian federal habeas corpus case,
the Supreme Court expanded the scope of jurisdictional
challenges by holding that the trial court could lose
7
jurisdiction by failing to provide constitutionally-guaranteed
counsel to the defendant, id. at 468, and this developed into
explicit review for constitutional violations. See Calley v.
Callaway, 519 F.2d 184, 195-96 (5th Cir. 1975) (en banc)
(citing Waley v. Johnston, 316 U.S. 101 (1942), and House v.
Mayo, 324 U.S. 42 (1945)). Burns took military habeas
review onto a similar path, though not to the same degree.
As the military habeas standard of review at one time
followed review of state court judgments toward less
deference, perhaps it (and other collateral review of military
decisions) should follow the current path toward more. In
light of the Burns Court’s view that military habeas review
must be at as least as deferential as habeas review of state
criminal judgments, the Third Circuit has held that the former
enjoy at least as much deference as the latter do now, under
the statutory standards adopted in the 1996 Antiterrorism and
Effective Death Penalty Act (“AEDPA”). See Brosius v.
Warden, 278 F.3d 239, 245 (3d Cir. 2002) (citing 28 U.S.C.
§ 2254(d)-(e)). But to the extent that Congress’s revision of
the standards for state court judgments arose out of special
history and circumstances, its decision to tighten in that
context may reflect no judgment at all about collateral review
of court-martial judgments.
We trace these steps merely as a caution. Except insofar
as a standard may be quite specific, such as AEDPA’s
requirement of a violation of “clearly established Federal law,
as determined by the Supreme Court of the United States,” see
28 U.S.C. § 2254(d)(1), we have serious doubt whether the
judicial mind is really capable of applying the sort of fine
gradations in deference that the varying formulae may
indicate. See United States v. Boyd, 55 F.3d 239, 242 (7th
Cir. 1995). It suffices for our purposes to repeat
Councilman’s statement that errors must be fundamental to
void a court-martial judgment on collateral review. And in
8
light of Councilman’s point that non-habeas review is if
anything more deferential than habeas review of military
judgments, 420 U.S. at 753, a military court’s judgment
clearly will not suffer such a defect if it satisfies Burns’s “fair
consideration” test.
* * *
New first argues that the military courts violated his Fifth
Amendment rights to due process by ruling that the lawfulness
of the uniform order he violated was not an element of the
offense—and thus not to be decided by the military jury. He
evidently invokes the Fifth Amendment for two reasons.
First, it is undisputed that the Sixth Amendment doesn’t create
any jury right in courts-martial. See Ex parte Quirin, 317
U.S. 1, 38-41 (1942). Second, the Court’s decision in United
States v. Gaudin, holding that the issue of materiality must be
found by a jury beyond a reasonable doubt (it was conceded
that materiality was an element of the false statements offense
defined in 18 U.S.C. § 1001), rested on the Fifth Amendment
as well as the Sixth. 515 U.S. 506, 509-10 (1995). Here, by
virtue of a statute, 10 U.S.C. § 851(c), any element of the
offense must be submitted to the military jury for evaluation
under the reasonable doubt standard. Thus, for the Court of
Appeals, the New case presented the inverse of Gaudin:
classification of the factor (lawfulness) as an “element” was
unclear, but once the classification was made, the judge-jury
allocation was indisputable. 55 M.J. at 104. Other than the
idea that lawfulness must be an element of the offense
(coupled with § 851’s requirement), New appears to offer no
legal reason why the lawfulness issue should have gone to the
military jury.
We find no fundamental defect in the Court of Appeals’
conclusion that the lawfulness of an order is not a separate and
9
distinct element of the offense, but rather is an issue for the
military judge. Id. at 105. Identifying the elements of a
statutory provision defining a crime is an exercise in statutory
interpretation. The Court of Appeals started with the text and
then turned to traditional aids in statutory interpretation: It
considered—and identified powerful support in—the meaning
of the key terms “lawful” and “order,” the relevant legislative
history, previous decisions of military courts, and the Manual
for Courts-Martial. Id. at 100-01. And it distinguished
lawfulness from “wrongfulness” and “materiality,” which
must go to the military jury when a servicemember is charged
with violating 18 U.S.C. § 1001 under 10 U.S.C. § 934.
CAAF Op., 55 M.J. at 105. Finally, the Court of Appeals
reasoned that if the lawfulness of an order were an element of
the offense, “the validity of regulations and orders of critical
import to the national security would be subject to
unreviewable and potentially inconsistent treatment by
differing court-martial panels.” Id. at 105. One judge
contrasted the resulting “patchwork quilt” with “the unity and
cohesion that is critical to military operations.” See id. at 110
(Effron, J., concurring).
New argues that the Court of Appeals’ interpretation
failed to apply the two-step methodology set out by the
Supreme Court in Neder v. United States: “[W]e first look to
the text of the statutes at issue,” id. at 20, and then look to the
“accumulated settled meaning under the common law” if such
a meaning exists. 527 U.S. 1, 21 (1999). But there the issue
was whether the language implied the existence of an element,
whereas here the statute specified “lawful order,” and the
issue was that term’s role—whether it set out an element of
the offense or, as the Court of Appeals found, simply
underscored the accused’s “opportunity . . . to challenge the
validity of the regulation or order.” CAAF Op., 55 M.J. at
105. New also objected that the Court of Appeals’ conclusion
conflicts with a statement in Unger v. Ziemniak, 27 M.J. 349
10
(C.M.A. 1989), that in “a prosecution for disobedience,
lawfulness of the command is an element of the offense.” Id.
at 358. But the Court of Appeals reasonably found that the
remark was wholly unnecessary to the judgment. CAAF Op.,
55 M.J. at 102. In any event, the Court of Appeals is “free to
refine and develop its prior decisions” without our
interference. Priest, 570 F.2d at 1019.
New also objects to the military courts’ substantive
conclusion that the uniform order was lawful in the sense that
it was consistent with AR 670-1. That regulation allows
commanders to require “organizational protective or reflective
items . . . with the uniform when safety considerations make it
appropriate,” par. 1-18, and allows commanders to prescribe
the uniform “to be worn within [a] maneuver area,” par. 2-6d.
The military judge found that “[t]he wearing of distinctive and
identifiable uniforms or uniform accessories easily
recognizable in a combat environment or potential combat
environment has a practical combat function which may
enhance both the safety and/or tactical effectiveness of
combat-equipped soldiers performing tactical operations,” and
thus that the U.N. insignia “had a function specifically
designed to enhance the safety of United States armed forces
in Macedonia.” Court-Martial Transcript at 426; see also
CAAF Op., 55 M.J. at 107 (reaching same conclusion as
military judge).
New acknowledges the presumption of lawfulness that
attaches to military orders, CAAF Op., 55 M.J. at 106, but he
contests the Court of Appeals’ conclusion that he failed to
overcome that presumption, id. at 107. He argues that the
government failed to submit any evidence justifying the
uniform order by reference to safety considerations or
maneuver areas. He himself did not proffer any evidence on
these issues. Before us, he instead points to a Stipulation of
Fact concerning a totally unrelated provision of AR 670-1,
11
which states that the uniform modifications “ha[d] not been
approved by the Director of [t]he Institute of Heraldry, U.S.
Army, as required and mandated under the provisions of
paragraphs 27-16a and b of Army Regulation 670-1.” We can
hardly fault the military courts’ judgment that this stipulation
failed to rebut the presumption that safety considerations
justified the uniform order. We note that Judge Sullivan of
the Court of Appeals, who disagreed with the majority on the
judge-jury issue, found the allocation of the issue to the judge
a harmless error because the commanders had indisputably
ordered use of blue U.N. patches and caps “as part of the
operations plans for the mission and for safety purposes.” 55
M.J. at 127 (Sullivan, J., concurring in the result). Again, we
can find no fundamental defect in the Court of Appeals’
consideration of the issue.
New appears to rely on the same stipulation as evidence
that the uniform order violated the Emoluments Clause of
Article I, Sec. 9 of the Constitution. (“[N]o Person holding
any Office of Profit or Trust under them, 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.”). But he offers no legal analysis supporting
his belief the U.N. patch and cap fall within the scope of the
Emoluments Clause’s prohibition on receipt of various
possible honors or benefits from foreign states, and we find
the claim a stretch at best. New argues that the claim did not
receive fair consideration because it “was not litigated at all,”
see Brief for Appellants at 45; see also Reply Brief for
Appellants at 12, but the military judge heard arguments on
the subject, see, e.g., Court-Martial Transcript at 387, 391,
406-07, 417, ruled that the U.N. patch and cap “were neither
gifts from a foreign government nor received by Specialist
New from a foreign government,” and observed that Congress
appeared to authorize their receipt in a provision of the United
Nations Participation Act, id. at 428. For claims as weak as
12
this, summary disposition is completely consistent with fair
consideration. See, e.g., King v. Moseley, 430 F.2d 732, 734-
35 (10th Cir. 1970).
We turn next to New’s arguments that the uniform order
was unlawful because it was issued pursuant to a military
deployment that was itself unlawful on several grounds. As
he sees it, the deployment violated the United Nations
Participation Act because the President incorrectly
characterized the deployment as noncombatant and therefore
governed by 22 U.S.C. § 287d-1; in fact, New claims, it was a
combatant operation that required Congressional approval
under 22 U.S.C. § 287d. He further argues that because
during the deployment he would be placed under the
operational control of U.N. officials, the deployment violated
the Commander-in-Chief Clause, the Appointments Clause,
and the Thirteenth Amendment. Brief for Appellant at 13.
The military judge rejected these attacks on the
deployment on two grounds—what appears to be a standing
analysis, i.e., finding that the dispute over the uniform’s
legality “did not effectively call into issue the underlying
legality of the deployment,” Court-Martial Transcript at 429;
see also id. at 432, and the political question doctrine, id. The
Criminal Court of Appeals found consideration barred by the
latter, ACCA Op., 50 M.J. at 737, 739, as did the Court of
Appeals, CAAF Op., 55 M.J. at 108-109. As either want of
standing or the political question doctrine would prevent
adjudication on the merits, we may resolve them in any order.
See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585
(1999) (“It is hardly novel for a federal court to choose among
threshold grounds for denying audience to a case on the
merits”); Hwang Geum Joo v. Japan, 413 F.3d 45, 47-48
(D.C. Cir. 2005). Finding that the military courts’ use of the
political question doctrine deserves deference, we do not
address standing.
13
Our courts have adjudicated claims based on two of the
constitutional provisions New invokes—the Appointments
Clause and the Thirteenth Amendment—without interposing
the political question doctrine. See, e.g., Weiss v. United
States, 510 U.S. 163 (1994) (whether method of appointing
military judges violates Appointments Clause); Selective
Draft Law Cases, 245 U.S. 366 (1918) (whether military draft
law violates Thirteenth Amendment). But no such
adjudication has occurred in the context of a court-martial
defendant who had refused to obey an order that he claimed
was illegal because the Appointments Clause or the Thirteenth
Amendment invalidated the deployment underlying the
disobeyed order.
Whatever the application of the political question
doctrine to these four challenges to a deployment order in an
otherwise properly framed civil suit, the military justice
context compels a somewhat broader doctrine in light of the
implications of any alternative view. As the Court of Appeals
observed, nothing gives a soldier “authority for a self-help
remedy of disobedience.” 55 M.J. at 108 (quoting United
States v. Johnson, 45 M.J. 88, 92 (C.A.A.F. 1996)). Two of
the canonical factors from Baker v. Carr, 369 U.S. 186, 217
(1962), “an unusual need for unquestioning adherence to a
political decision already made,” 369 U.S. at 217, and “the
potentiality of embarrassment from multifarious
pronouncements by various departments on one question,” id.,
are uniquely powerful when the context is a soldier’s use of
the “self-help remedy of disobedience.” Also supporting a
broader sweep to the political question doctrine in military
trials is the point made by Judge Effron in his concurring
opinion—that the doctrine “ensur[es] that courts-martial do
not become a vehicle for altering the traditional relationship
between the armed forces and the civilian policymaking
branches of government” by adjudicating the legality of
political decisions. Id. at 110. Thus we find no defect in the
14
Court of Appeals’ application of the political question
doctrine, even though that application might be highly
contestable in another context. Compare Campbell v. Clinton,
203 F.3d 19, 24-28 (D.C. Cir. 2000) (Silberman, J.,
concurring) (finding that no “judicially discoverable and
manageable standards” exist for application of the
Constitution’s war powers clause or the War Powers
Resolution, 50 U.S.C. § 1541 et seq.), with id. at 37-41 (Tatel,
J., concurring) (concluding that such standards do exist).
Given the threat to military discipline, see Court-Martial
Transcript at 433, we have no difficulty accepting the military
courts’ reliance on the doctrine.
* * *
For the foregoing reasons, the district court’s dismissal is
Affirmed.