Amicus Curiae Brief — New v. Cohen

6) FILED |

MAR 2 3 1998

OFFICE OF THE CLERK

SUPREME COURT, U.S.

No. 97-1375

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

MICHAEL G. NEw,

Petitioner,

Vv.

WILLIAM S. COHEN,

SECRETARY OF DEFENSE, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF

NATIONAL CITIZENS LEGAL NETWORK

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

MICHAEL Boos WILLIAM J. OLSON* 4

NATIONAL CITIZENS JOHN S. MILES

LEGAL NETWORK ALAN WOLL

11094-D Lee Highway #200 JOHN F. CALLENDER, JR.

Fairfax, VA 22030 WILLIAM J. OLSON, P.C.

(703) 352-4788 Suite 1070

8180 Greensboro Drive

Attorneys for McLean, VA 22102

National Citizens (703) 356-5070

Legal Network

*Counsel of Record

March 23, 1998

TABLE OF CONTENTS

Page

UNG PUI «cine ccvcsvcscceuvccscces ii

INTEREST OF THE AMICUS CURIAE ................ 1

eg. ee bd a a a 2

SUMMARY OF ARGUMENT ...................00. 4

I padre deci ec sce sawe ek beens 5

i

TABLE OF AUTHORITIES

Page

STATUTES

yf a re re peer 14

ip EE 6-655 04d ob oh odsakareek eer 13

CASES

Baker v. Carr, 369 U.S. 186 (1962) ............... 9

Clinton v. Jones, 520 U.S. ___, 117 S.Ct. 1636 (1997) . 9

Commodity Futures Trading Commission v. Shor

| RSS SA SE eS a oR 10

Fay v. Nota, 372 US. Fl CIGGS) . ow cc ccccccssess 12

Marbury v. Madison, 5 U.S. (1 Cranch) 137 (1803) ... 8

McElroy v. Guarliardo, 361 U.S. 281 (1960) ........ 10

New v. Cohen, 129 F.3d 639 (D.C. Cir. 1997) ... passim

New v. Perry, 919 F. Supp. 491 (D.D.C 1996) ..... 3,6,12

Northern Pipeline Co. v. Marathon Pipe Line Co.,

GF I io nibh is ob eke cose 5 sss 9

Noyd v. Bond, 395 U.S. 683 (1969) ............... 11

Powell v. McCormack, 395 U.S. 486 (1969) ......... 8

Reid v.' Covert, 354 U.S. 1 CI9ST) .. 2. ccc cece cees 10

Scheslinger v. Councilman,

er ccc cUecsnunws 6,11

Toth v. Quarles, 350 U.S. 11 (1955) .............. 10

EE Be ED 6 it ose elds 6 oe ecadccs 10

Youngstown Sheet & Tube Co. v. Sawyer,

ES ab xo ran awe ce vekens 9

MISCELLANEOUS

I oo 8 1

BOSS pec pete OF CE EEE TEE Eee 1

IN THE

Supreme Court of the United States

OCTOBER TERM, 1997

No. 97-1375

MICHAEL G. NEw,

Petitioner,

V.

WILLIAM S. COHEN,

SECRETARY OF DEFENSE, ET AL.,

Respondents.

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF OF

NATIONAL CITIZENS LEGAL NETWORK

AS AMICUS CURIAE IN SUPPORT OF PETITIONER

INTEREST OF THE AMICUS CURIAE

Amicus Curiae National Citizens Legal Network (NCLN)

is a project of Citizens United Foundation,’ and it is the

instrument through which Citizens United Foundation

; This brief was not authored in whole or in part by counsel

for any party. It has been funded im its entirety by the amicus

curiae. See Sup. Ct. Rule No. 37.6.

The amicus curiae requested and received the written

consents of the parties to the filing of this brief. Such written

consents, in the form of letters from counsel of record for the

parties, have been submitted for filing to the Clerk of Court. See

Sup. Ct. Rule No. 37.3(a).

2

advances its views in the courts. Citizens United Foundation

is a nonprofit, nonpartisan, educational organization

established to conduct research and to inform and educate the

public on a variety of issues of national importance, including

issues related to sovereignty, separation of powers, the

original imtent of the Framers and the correct interpretation of

the United States Constitution.

NCLN and Citizens United Foundation believe that the

pending case presents the Court with important constitutional

questions touching American sovereignty and separation of

powers involving the original intent of the Framers and the

correct interpretation of the Constitution. In particular, this

brief urges the Court to grant Mr. New’s petition for a writ of

certiorari in order to determine whether the court of appeals

has decided correctly that Mr. New has no right to have his

habeas corpus petition heard until he exhausts his appeals

before a 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 J. New learned that he and the other

members of his unit would soon be deployed to Macedonia to

serve as “United Nations Fighting Persons.” As such, Mr.

New would be required to wear a United Nations uniform,

carry United Nations identification, and forfeit the protections

afforded United States servicemen by the Geneva Convention,

in favor of the protections afforded “United Nations Fighting

Persons” by the UN Charter. He would also fight under the

3

command of officers, each of whom swore not to seek or

accept instructions with respect to the performance of any

duties from any government or authority other than the United

Nations (including anyone in the command structure of the

U.S. Army up to and including the President of the United

States).

Mr. New protested, requesting transfer to a unit not under

United Nations command, or alternatively, an honorable

discharge from the Army. On October 10, 1995, Mr. New

was ordered to don the United Nations uniform, and he

refused to do so, explaining his belief that the order was

illegal and unconstitutional He was convicted by court-

martial on January 24, 1996 for failure to obey a lawful 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 of a foreign government, and

seeking an honorable discharge. His petition was denied by

the district court, New v. Perry, 919 F. Supp. 491 (D.D.C.

1996), and the district court’s judgment was affirmed by the

court of 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 involuntary leave from the Army.

4

SUMMARY OF ARGUMENT

The Petition for Writ of Certiorari presents an important

question volving the authority and obligation of Article III

courts to adjudicate claims based on the Constitution. The

court of appeals denied the claim for habeas corpus relief of

the petitioner, Michael New, on the theory that comity

requires Article [III courts to await the adjudication of

collateral issues by the Article I military tribunals. But the

law does not require such abstention where the underlying

constitutional claim properly is one for determmation by the

Article III court, and not an Article I tribunal, and where the

petitioner’s claim cannot be resolved by the Article I tribunal.

In this case, Michael New’s constitutionally-based claim

that he is entitled to an honorable discharge from the United

States Army will not be adjudicated by the military courts’

review of the bad conduct discharge thus far decided against

him. Such determmations fall within the province of Article

III courts. Moreover, the prior decisions of this Court

indicate that habeas corpus jurisdiction for Article I

adjudication of Mr. New’s claim presently lies. Finally, if

there is no such Article III adjudication at this time, and the

court martial verdict against Mr. New is sustained by the

military tribunals, the court of appeals offers no assurance that

habeas or other relief m an Article III court would be

available.

By refusing to provide Article III review of the merits of

Mr. New’s claim at this time, while requirmg Mr. New to

await final disposition of the collateral charges against him in

ECan nai

5

the military courts, the court of appeals’ decision doubly

prejudices Mr. New’s constitutional rights. Applying the

principle of comity so as to preclude adjudication of Mr.

New’s constitutional claim by an Article III court neither

accords with the Constitution nor follows the prior decisions

of this Court. Therefore, this amicus curiae believes, with the

petitioner, that the court of appeals’ decision should be

reversed. This issue is a proper one for full briefing and

review by this Court. Certiorari should be granted.

ARGUMENT

The Petition for Certiorari being supported by this amicus

curiae presents to the Court for determmation the

fundamental issue of whether the principle of comity as

applied to appeals pending before military tribunals requires

Article [II civil courts to deny habeas corpus relief to a

petitioner whose important constitutional claims could

otherwise escape adjudication by an Article III court.

The decision of the lower courts would require the

petitioner, Michael New, to exhaust military appeals of his

court martial conviction, in a case where that conviction was

based exclusively on Mr. New’s principled refusal to violate

his oath as a member of the Armed Forces by refusing to obey

an illegal and unconstitutional order to transfer his allegiance

to a foreign sovereign by becoming a soldier of the United

Nations. The lower courts refused to entertain habeas relief,

while military appeals are pending, which may be Mr. New’s

only opportunity for review by an Article III court.

6

The Court must determine whether military tribunals are

the appropriate forum to rule on the validity of the order given

to Mr. New, determming the merits of Mr. New’s

constitutional and other claims” which the district court found

had raised “important issues, implicating the balance of

power between the President as Commander-in-Chief and the

Congress and the relationship between the United States and

the United Nations” and which the district court “has

taken...seriously.” New v. Perry, 919 F. Supp. 491, 497-500

(D.D.C. 1996) (emphasis added).

The Supreme Court has determmed that the principle of

“comity” dictates that “when a serviceman charged with

crimes by military authorities can show no harm other than

that attendant to resolution of his case m the military court

system, the federal district courts must refram from

intervention....” Schlesinger v. Councilman, 420 U.S. 738,

758 (1974). As explamed by the district court, “[dJjeference

by the federal court avoids friction between the two court

systems and may avert unnecessary or duplicative proceedings

in the event that the military outcome obviates the need for

judicial intervention.” New v. Perry, 919 F. Supp. 491, 496.

. Mr. New has challenged the President’s legal authority, as

Commander-in-Chief of the Armed Forces of the United States, to

order Mr. New to become a soldier in the armed forces of the

United Nations in violation of his oath of enlistment in the U.S.

Army to support and defend the Constitution of the United States

of America, as well as the terms of that enlistment.

7

In the mstant case, however, requirmg Mr. New to

continue adjudicating his case before military tribunals is, at

best, an exercise in futility. Rather than avoiding duplicative

proceedings, deference to the military tribunals virtually

guarantees duplicative proceedings, assuming that Mr. New’s

claim eventually would be entertained by an Article III court,

a matter that is far from certain, as discussed infra.

The court of appeals stated that Mr. New’s conviction was

reviewable by the Army Court of Criminal Appeals, with the

possibility of a discretionary appeal to the Court of Appeals

for the Armed Forces which is composed of civilian judges,

and is a legislative Article I court. New v. Cohen, 129 F.3d

639, 642 (D.C. Cir. 1997).

A military tribunal comprised of military personnel

subordinate to the President of the United States is clearly not

the proper forum to consider “unprecedented” and “important

issues, implicating the balance of power between the

President as Commander-in-Chief and the Congress and the

relationship between the United States and the United

Nations” as stated by the district court. The Court of Appeals

for the Armed Forces, likewise, as a legislative, Article I

Court, has no meaningful role in determming the proper

constitutional relationship between the Congress and the

President. In neither case is there a need to tap the special

expertise of the military courts, as the constitutional issue

raised is clearly beyond both their expertise and competence.

Since the very early days of the Republic, it has been

firmly established that Article III courts are vested with the

8

power and obligation to mterpret the Constitution and laws of

the United States arising thereunder. “The constitution vests

the whole judicial power of the United states in one Supreme

Court, and such inferior courts as congress shall, from time to

time, ordain and establish. This power is expressly extended

to all cases arising under the laws of the United States.”

Marbury v. Madison, 5 U.S. (1 Cranch) 137, 173-74 (1803).

“It is emphatically the province and duty of the judicial

department to say what the law is.” Jd at 177 (emphasis

added).

When presented with an actual case or controversy, the

judicial branch has the obligation to define limits of the

powers of the various branches of the federal government, the

essence of Mr. New’s constitutional claims. In Marbury v.

Madison, for example, the Court concluded that it did not

have the power to issue a writ of mandamus to the Secretary

of State, because the issuance of such a writ required the

exercise of original jurisdiction and the Constitution limited

the Court’s origimal jurisdiction to all “cases imvolving

ambassadors, other public mmisters and consuls, and those in

which a state shall be a party.” Id. at 174. os

In Powell v. McCormack, 395 U.S. 486 (1969), the Court

construed Congress’s powers. It held that the House of

Representatives was limited to applying only the standing

qualifications expressly prescribed by Article I, Section 5 of

the Constitution im judging the qualifications of its members

The Court has also had occasion to define the contours of

Presidential powers and privilege. For example, m

9

Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579

(1952), the Court held that the President, absent 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 Clinton v. Jones, 520 U.S. ___, 117 S.Ct. 1636

(1997), the Court held that the Constitution does not accord

the President temporary immunity from civil litigation arising

out of events occurring before he took office.

Unquestionably, the judicial branch has been viewed by

this Court as being vested by the Constitution with the power

and obligation to define the powers and privileges of a

particular branch of government. As the Court explamed m

Baker v. Carr, 369 U.S. 186 (1962):

Deciding whether a matter has in any measure been

committed by the Constitution to another branch of

government, or whether the action of that branch

exceeds whatever authority has been committed, is

itself a delicate exercise in constitutional mterpretation,

and is a responsibility of this Court as ultimate

interpreter of the Constitution. [Jd., at 211.]

Such power should not be delegated to, shared with, or

exercised by military tribunals or Article I courts. In

Northern Pipeline Co. v. Marathon Pipe Line Co., 458 U.S.

50 (1982), the Court held that 28 U.S.C. § 1471, by which

Congress made a broad grant of jurisdiction to Article I

bankruptcy courts, is unconstitutional As the plurality

opinion states: “The judicial power of the United States must

be exercised by courts having the attributes prescribed in Art.

10

Il.” Id., p. 59. The Court, in Commodity Futures Trading

Commission v. Shor, explained the fundamental rationale

underlying this rule, stating that Article III, section 1 serves

“to safeguard litigants’ ‘right to have claims decided before

judges who are free from potential domination by other

branches of government.”” 478 U.S. 833, 848 (1986)

(quoting U.S. v. Will, 449 U.S. 200, 218 (1980)).

The right of litigants discussed in Shor has been protected

by this Court despite government appeals for deference to the

military courts. Thus, where an Article I military tribunal has

assumed jurisdiction over an individual, the Court has

recognized that he or she may petition an Article III court for

habeas corpus relief when the petition raises a substantial and

unresolved constitutional clam. In Reid v. Covert, 354 U.S.

1 (1957), the Court affirmed the power to the district courts

to grant relief to the spouses of military personnel who were

unconstitutionally subjected to prosecution under the Uniform

Code of Military Justice. Similarly, m McElroy v.

Guarliardo, 361 U.S. 281 (1960), the Court held that a

civilian employee of the armed forces serving with the armed

forces m a foreign country cannot constitutionally be

subjected to a court-martial in time of peace. And im Tcth v.

Quarles, 350 U.S. 11 (1955), the Court held that a former Air

Force serviceman could not constitutionally be subjected to

trial by court-martial for crimes alleged to have been

committed while he was im the military. In each of these

cases, the Court determimed that adjudication of the

petitioner’s claim should proceed immediately in the Article

III court, and should not await further proceedings by the

Article I tribunal.

11

Although not explicitly stated withm these opimions,

each case the implicit justification for deciding the merits of

the petitioners’ claims was that Article III courts were the

appropriate forum for adjudicating what were found to be

substantial constitutional claims. Indeed, the Court took note

of this very point in Noyd v. Bond, 395 U.S. 683 (1969),

commenting that in Reid, McElroy and Toth, supra, it

“vindicated complainants’ claims without requirmg

exhaustion of military remedies,” because “we did not believe

that the expertise of military courts extended to the

consideration of constitutional claims of the type presented.”

Id. at 696, 0.8.

With respect to the issue of expertise, the court of appeals

found that the case of Schlesinger v. Councilman, 420 U.S.

738 (1975), was controlling, and under that case that “military

courts are capable of, and indeed may have superior expertise

in, considermg challenges to their jurisdiction over

disciplinary proceedings.” New v. Cohen, 123 F.3d 639, 645.

But in Councilman the issue presented was whether a service

member’s alleged offense is “service related.” That authority

is apposite here, where important constitutional issues have

been raised, as discussed, supra.

The decision of the court of appeals violates Mr. New’s

right to have his constitutional claims heard before an Article

III court as the proper forum for adjudicating substantial

constitutional claims. Instead, the court of appeals held that

Mr. New present those claims “to the military authorities

reviewing his case.” New v. Cohen, 129 F.3d 639, 646.

12

The Article III Courts’ refusal to accept jurisdiction of this

substantial constitutional claim should not stand, even if Mr.

New would ultimately be able to pursue his claims m an

Article II] Court. There is no reason to require Mr. New to

suffer needless delay, force him and his attorneys to waste

precious 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. The factual record m

this case is fully developed, and an Article I court is not

competent to rule on Mr. New’s constitutional claims in any

event. As a consequence, requiring Mr. New to exhaust his

military appeals prior to seeking habeas relief would be

pointless and wasteful. As the Court explained m Fay v.

Noia, 372 U.S. 391, 437 (1963), “comity does not demand

that such a price in squandered judicial resources be paid; the

needs of comity are adequately served m other ways.”

But there is an even greater risk. Unless the district court

is directed to proceed with the habeas corpus petition, there is

no guarantee that Mr. New would eventually be able to have

his claims aired m an Article III court. Both the district court

and the court of appeals appeared to imdicate that Mr. New

might, but not necessarily would, have his claims heard on the

merits m an Article III court.

The district court stated: “{o}nce 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.”

The district court did not, and perhaps could not, say whether

the district court would consider the petition on its merits.

13

The court of appeals was much more guarded im its

assessment of the likelihood of Mr. New obtaiming review in

an Article III court, and implicitly questioned whether the

district court was correct in stating that habeas corpus would

be an available remedy. The court of appeals seemed to assert

that only if the court-martial jury had ordered his

incarceration in a military prison, a scenario which the Court

said is “now foreclosed,” could he have filed a habeas 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 discharge would leave him only two

possible options, according to the court of appeals. First, “(if

: The court of appeals’ view of the unavailability of post-

discharge habeas relief could be accurate. Federal habeas corpus

relief is available to persons held “in custody” in violation of the

Constitution of the United States or the laws enacted thereunder,

28 U.S.C. § 2241. Mr. New’s sentence does not include

incarceration; he was sentenced to a bad conduct discharge only.

Once Mr. New’s last military appeal is concluded, arguably, he

could be considered to no longer be in the custody of the military

if his sentence is affirmed by military authorities; yet he would

continue to suffer the stigma of a bad conduct discharge without

the certainty of having his constitutional claims ruled on by an

Article III court via a habeas petition. Under the Army’s theory of

the case, by not having incarcerated Mr. New, and then arguing

comity to avoid habeas review at this time, the Army could be

attempting to manipulate circumstances so as to avoid an Article

III court’s review of Mr. New’s bad conduct discharge and the

important constitutional issues he raises about the authority of the

Army to issue the very orders Mr. New is challenging.

14

he suffers monetary losses as a result of his discharge, he may

be able to collaterally attack the underlymg conviction im the

United States Court of Federal Claims, an Article I court

under 28 U.S.C. §§ 171(a). Second, “New also might be able

to bring an action m district court seeking nullification of the

conviction underlying his bad conduct discharge. And by way

of further caveat, the court of appeals stated that “[ijn

delineating these scenarios, however, we do not mean to

suggest that New’s claims have merit or that a federal court

would even reach the merits of his arguments.” New v.

Cohen, 129 F.3d at 648 (emphasis added).

In truth, by requirmg Mr. New to exhaust his military

remedies before an Article III court will entertain a habeas

corpus petition, the court of appeals may have effectively

denied Mr. New the right to have his important constitutional

claims ruled on by an Article III court within the judicial

branch of the federal government. Surely, the principle of

comity, however important, cannot be allowed to result m the

complete abrogation of Mr. New’s right to a hearing on the

merits of his constitutional claims before an Article II court.

To provide Mr. New his proper day in court, the district court

should be directed by the court of appeals to entertain Mr.

New’s habeas petition without further delay.

15

CONCLUSION

For the reasons stated above, the National Citizens Legal

Network urges the Court to grant the Petition for Writ of

Certiorari of Michael New.

Respectfully Submitted,

WILLIAM J. OLSON*

JOHN S. MILES

ALAN WOLL

JOHN F. CALLENDER, JR.

WILLIAM J. OLSON, P.C.

8180 Greensboro Drive, Suite 1070

McLean, Virginia 22102-3823

(703) 356-5070

MICHAEL BOOS

NATIONAL CITIZENS LEGAL NETWORK

11094-D Lee Highway #200

Fairfax, VA 22030

(703) 352-4788

Attorneys for

National Citizens Legal Network

*Counsel of Record

March 23, 1998