                               United States, Appellee


                                               v.


                             Michael G. NEW, Specialist
                                U.S. Army, Appellant


                                        No. 99-0640

                                Crim. App. No. 9600263


          United States Court of Appeals for the Armed Forces

                            Argued February 4, 2000

                            Decided June 13, 2001


     CRAWFORD, C.J., delivered the opinion of the Court, in
which GIERKE and EFFRON, JJ., joined. EFFRON, J., filed a
concurring opinion. SULLIVAN, J., filed an opinion concurring
in the result. EVERETT, S.J., filed an opinion concurring in
part and in the result.


                                           Counsel

For Appellant: Henry L. Hamilton (argued); Major Norman R.
Zamboni (USAR) and Captain Blair T. O'Connor (on brief).

For Appellee: Captain Kelly D. Haywood (argued); Colonel
Russell S. Estey, Lieutenant Colonel Eugene R. Milhizer, and
Major Patricia A. Ham (on brief).

Military Judge:          W. Gary Jewell




THIS OPINION IS SUBJECT TO EDITORIAL CORRECTION BEFORE FINAL PUBLICATION.
United States v. New, No. 99-0640/AR



     Chief Judge CRAWFORD delivered the opinion of the Court.

                                  INDEX

     FACTS                                                         3

     DISCUSSION

             I.    Denial of a Challenge for Cause                 5

             II.   Consideration of the Legality of an Order
                     as a Question of Law                         10

             III. Legality of the Order                           27

             IV.   Application of the Political -
                     Question Doctrine                            33


     Contrary to his pleas, appellant was convicted by a special

court-martial consisting of officer and enlisted members of

failure to obey an order to wear his U.S. Army uniform modified

with United Nations (UN) accoutrements, in violation of Article

92(2), Uniform Code of Military Justice, 10 USC § 892(2).

Appellant’s sentence to a bad-conduct discharge was approved by

the convening authority.      The Court of Criminal Appeals affirmed

the findings and sentence.      50 MJ 729 (1999).    We granted review

of the following issues:

     I. WHETHER THE MILITARY JUDGE ERRED BY DENYING APPELLANT’S
     CAUSAL CHALLENGE AGAINST A COURT-MARTIAL MEMBER WHO
     PREVIOUSLY ORDERED A SUBORDINATE TO DEPLOY TO MACEDONIA.

     II. WHETHER APPELLANT’S CONSTITUTIONAL AND STATUTORY
     RIGHTS TO BE TRIED BY COURT-MARTIAL MEMBERS AND TO HAVE
     THE MEMBERS DETERMINE WHETHER THE GOVERNMENT HAS PROVED
     EVERY ESSENTIAL ELEMENT OF THE CHARGED OFFENSE BEYOND A
     REASONABLE DOUBT WERE VIOLATED BECAUSE THE MILITARY JUDGE
     RULED THAT THE ORDER GIVEN TO APPELLANT WAS LAWFUL WITHOUT
     SUBMITTING THE ISSUE TO THE MEMBERS, AND BECAUSE THE
                                    2
United States v. New, No. 99-0640/AR


     MILITARY JUDGE INSTRUCTED THE MEMBERS THAT THE ORDER WAS
     LAWFUL AS A MATTER OF LAW.

     III. WHETHER THE MILITARY JUDGE ERRED BY FINDING THAT THE
     ORDER TO DEPLOY IN THE UNITED NATIONS UNIFORM WAS LAWFUL.

     IV. WHETHER THE MILITARY JUDGE ERRED BY AVOIDING THE
     QUESTION OF THE LAWFULNESS OF THE ORDER AND HOLDING THAT
     LAWFULNESS WAS A NONJUSTICIABLE POLITICAL QUESTION.

     For the reasons set forth below, we affirm the decision of

the Court of Criminal Appeals.

                                 FACTS

     In 1992, the UN established a Protective Force (UNPROFOR)

in the Former Yugoslavian Republic of Macedonia (FYROM).   The

United States contributed troops to this force in 1993 and, in

1995, this force was redesignated as the UN Preventive

Deployment Force (UNPREDEP).

     In August of 1995, 1st Battalion, 15th Infantry Regiment,

3d Infantry Division (1/15 Infantry) was ordered to assume the

FYROM UNPREDEP mission as of November 1, 1995.    Appellant, a

medic, was attached to a squad of Company A, 1/15 Infantry.

Appellant expressed concern about wearing the UN accoutrements

on his U.S. uniform.   50 MJ at 733-34.   Specifically, uniform

modifications included in part the UN blue beret and field cap,

a UN blue shoulder patch, blue scarf, and UN badge and

identification card to be issued in the FYROM.    Id. at 734 n.7.

On August 23, 1995, appellant was ordered to do research on the

history and objectives of the UN and submitted a written


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United States v. New, No. 99-0640/AR


statement of his position at the suggestion of his command.    He

stated that he could not assess the legality of the order to

wear the modified uniform because he did not “understand the

legal basis” of the order.

     Appellant’s concerns were discussed by his father on the

Internet and were reported in the popular media and noted by

several members of Congress.   Appellant’s noncommissioned

officer leadership, company commander, and battalion commander

each spoke with him to alleviate his doubts about the legality

of the UNPREDEP mission and the uniform modification.   Appellant

did not inform anyone in his chain of command that he believed

that the UN accoutrements conflicted with Army Regulation (AR)

670-1, Wear and Appearance of Army Uniforms and Insignia

(1 September 1992).

     Prior to deployment, the unit was granted leave and

appellant visited Washington, D.C.   In Washington, he met with

his future counsel and with several legislators who were

concerned about the legality of the UNPREDEP mission and about

President Clinton’s representations to Congress.

     On October 2, 1995, the unit was briefed by the battalion

commander on the legality of the FYROM UNPREDEP mission, but not

on specific battle dress uniform (BDU) modifications.   The unit

was ordered to wear the modified uniform starting on October 10.

50 MJ at 734.   Appellant’s company commander, Captain (CPT)


                                 4
United States v. New, No. 99-0640/AR


Palmateer, reissued these orders at a company formation.

Appellant turned in the required two sets of BDUs to be altered.

     At the next formation, appellant reported in unaltered BDUs

and was removed from the formation.    Two hours later, he was

given a “second chance” to comply with the order by Lieutenant

Colonel (LTC) Layfield and refused.    Appellant was then declared

non-deployable.   50 MJ at 735.   The order and his responses

formed the basis for the charge of disobedience that is the

subject of the present appeal.

                            DISCUSSION

            ISSUE I – DENIAL OF A CHALLENGE FOR CAUSE

     During individual voir dire, a court-member, Colonel (COL)

Dana F. Kwist, was asked whether he had “sent people to

operations where they had to wear the blue beret.”    He responded

as follows to questions by one of his civilian defense counsel

(CDC2):

          COL KWIST: I have a captain in Macedonia that’s the
          headquarters commandant down there. I’m not certain
          if they’re wearing it in Northern Iraq, but I have a
          captain that’s attached down there, as well.

          CDC2: Okay. And did you—what, if any, opinion do you
          have about wearing that blue beret, as you sent two
          soldiers to do?

          COL KWIST: Well, I don’t know that I’ve ever formed
          an opinion. I don’t really think about it.

          CDC2:   Do you think about it?

          COL KWIST:   No, I don’t.


                                  5
United States v. New, No. 99-0640/AR


            CDC2: Well, I mean, do you—you obviously sent two of
            your subordinates to do that, and the gist of this
            order—you’ve read the flyer there—is that somebody
            disobeyed that. Doesn’t that put them at odds,
            basically, with a decision that you’ve already made
            concerning the very same matter?

            COL KWIST: I just don’t think about it like that.
            This comes down as a tasking from our corps
            headquarters, and I fill squares based on the
            taskings. No, I don’t get into that conversation or—
            at all.

      Following voir dire, the defense challenged COL Kwist for

cause partly “because he has a captain . . . in Macedonia on the

very mission that this pertains to.”1         In response, trial counsel

argued:

      And, as to his soldiers, he’s merely doing what he’s
      required to do, and that is receiving an order, executing
      it, and transmitting it. There is no indication that any
      of those soldiers raised the issues that the accused raised
      to him. He wasn’t confronted with this issue in sending
      his soldiers on these deployments. Soldiers obey orders.
      That’s the general rule. And every one of these members of
      the panel obeys orders, and if they obey an order, that’s
      not a basis for them now to be challenged just because
      what’s at issue in this case is disobeying an order.

The military judge denied this causal challenge, stating that he

adopted trial counsel’s argument.

      Appellant asserts that COL Kwist demonstrated actual and

implied bias because he had a personal and professional interest

in the result of appellant’s trial inasmuch as the challenged

member gave precisely the same order as appellant was accused of


1
   Appellant also challenged COL Kwist because he read newspaper articles
concerning this case. The granted issue, however, only addresses that part
of appellant’s objection concerning COL Kwist’s having ordered a subordinate
to deploy to Macedonia. Hence, our review is limited by the granted issue.
                                      6
United States v. New, No. 99-0640/AR


disobeying.    The Government argues that the defense failed to

demonstrate any actual bias by COL Kwist and that appellant

waived any claim of implied bias by failing to challenge COL

Kwist on that basis at trial.

      As we noted in United States v. Ai, 49 MJ 1, 4 (1998), a

servicemember has a “right to impartial court-members to decide

his guilt.”    We have also noted that RCM 912(f)(1)(N), Manual

for Courts-Martial, United States (1995 ed.), codifies a general

ground for challenge” which includes both actual and implied

bias.   United States v. Minyard, 46 MJ 229, 231 (1997).2            The

Rule’s discussion notes examples of grounds for challenge as

including, “a direct personal interest in the result of the

trial.”   Further, RCM 912(f)(3) provides: “The burden of

establishing that grounds for a challenge exist is upon the

party making the challenge.”

      First, we turn to the question whether appellant

established actual bias.       “The test for actual bias [in each

case] is whether any bias is such that it will not yield to the

evidence presented and the judge’s instructions.”            United States

v. Warden, 51 MJ 78, 81 (1999)(internal quotation marks

omitted).




2
   RCM 912(f)(1)(N) states that a member should be excused when it appears
that the person “[s]hould not sit as a member in the interest of having the
court-martial free from substantial doubt as to legality, fairness, and
impartiality.”
                                      7
United States v. New, No. 99-0640/AR


     COL Kwist’s testimony during individual voir dire gave no

indication that he would be unable to “yield to the evidence

presented and the judge’s instructions.”   When asked whether

someone who refused to wear the blue beret would be at odds with

him because he had ordered two of his soldiers to deploy to

areas potentially requiring them to wear blue berets, he

responded: “I just don’t think about it like that.   This comes

down as a tasking from our corps headquarters, and I fill

squares based on the taskings.   No, I don’t get into that

conversation or—at all.”   Moreover, COL Kwist indicated during

group voir dire conducted by the military judge that he would

base his decision on the evidence presented and the judge’s

instructions.

     “Actual bias is a question of fact” which “is reviewed

subjectively, through the eyes of the military judge of the

court members.”   Warden, 51 MJ at 81 (internal quotation marks

omitted).    The evaluation of the potential member’s mental state

is most important:

     Where. . .the totality of the circumstances indicate
     . . . that a member is genuinely open to considering all
     mitigating and extenuating factors which are relevant to
     a just sentence before arriving at a fixed conclusion, a
     military judge has broad discretion to grant or deny
     challenges.

United States v. Rockwood, 52 MJ 98, 106 (1999)(emphasis in

original).   Applying this standard, we hold that the military



                                  8
United States v. New, No. 99-0640/AR


judge did not err in denying the challenge for cause on the

basis of actual bias.

     Next, we turn to the question of whether appellant

established implied bias.   “[I]mplied bias is viewed through the

eyes of the public,” and “[t]he focus is on the perception or

appearance of fairness of the military justice system.”      Warden,

51 MJ at 81 (internal quotation marks omitted).

     Appellant argues that COL Kwist would be biased in that he

would “lose face” unless appellant were convicted because the

legitimacy of his own order would be questioned.      COL Kwist’s

testimony reveals a position quite contrary to appellant’s

assertion.   He indicated that because of the lack of

controversy, he did not view the matter personally but rather as

merely “fill[ing] squares based on the taskings” from “corps

headquarters.”   As a practical matter, all officers who sit on

courts-martial have given or received orders of all kinds as a

standard part of military life.       It is unlikely that the public

would view all officers or all enlisted personnel who have ever

given an order as being disqualified from cases involving

disobedience of orders that are similar to any they may have

given in the past.   Such a standard would make it virtually

impossible to find members to sit on cases involving

disobedience of orders.




                                  9
United States v. New, No. 99-0640/AR


     Although “[w]e give the military judge less deference on

questions of implied bias,” we hold that there was no error

under these facts.   Warden, 51 MJ at 81, citing United States v.

Youngblood, 47 MJ 338, 341 (1997).

    ISSUE II – CONSIDERATION OF THE LEGALITY OF AN ORDER AS A
                         QUESTION OF LAW

     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.

Appellant 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.

     Appellant chose to manifest his opposition through

disobedience of an order from his commander, and he challenged

the legality of that order at his court-martial.   He now asks

this Court to create an exception to the requirement that the

military judge decides questions of law where, as in this case,

appellant claims the question of law is an element of the

alleged offense.   So framed, the issue requires us to make a

                                10
United States v. New, No. 99-0640/AR


choice and decide whether lawfulness of the order was a legal

question for the military judge or an element that should have

been submitted to the members.    There are respectable arguments

on both sides of the question.

       This Court reviews the question of whether the military

judge correctly determined that the issue was a question of law

on a de novo standard of review.      For the reasons set forth

below, we hold that lawfulness of an order, although an

important issue, is not a discrete element of an offense under

Article 92.    We further hold that, in this case, the military

judge properly decided the issue of lawfulness as a question of

law.    See Art. 51(b), UCMJ, 10 USC § 851(b).

       Military personnel are obligated to obey lawful orders and

regulations.    Arts. 90, 91, and 92, UCMJ, 10 USC §§ 890, 891,

and 892, respectively.    The term “lawful” recognizes the right

to challenge the validity of a regulation or order with respect

to a superior source of law.

       A “regulation” is an “authoritative rule or principle

. . . .”    The term includes “a rule or order having the force of

law issued by an executive authority of a government usu[ally]

under power granted by a constitution or delegated by

legislation. . . .”    Webster’s Third New International

Dictionary 1913 (1981).    An “order” means a “rule or regulation

made by competent authority;” “an authoritative mandate


                                 11
United States v. New, No. 99-0640/AR


usu[ally] from a superior to a subordinate;” and “a written or

oral directive from a senior military or naval officer to a

junior telling him what to do but giving him certain freedom of

action in complying.”   Id. at 1588 (emphasis added).

     The role of what is now the military judge (MJ) in ruling

on questions of law was discussed during the 1949 House hearings

that preceded enactment of the UCMJ.   During the hearings,

Congressman DeGraffenried asked whether a ruling by a law

officer (now MJ) on a question of law would be binding on the

court members.   Mr. Larkin, a Department of Defense witness, see

33 MJ LXI, responded:

          It is absolutely binding, except for the fact of
     course that any member of the court whether he is a lawyer
     or otherwise may for his own personal reason not follow
     them, which is a situation that obtains in any court in the
     land. The judge may rule on the questions of law and he
     may instruct the jury and charge them and as it happens the
     jury goes out and pays no attention to them whatever. But
     that is something over which no one has any control in any
     tribunal.

          Mr. DeGraffenried.   He acts as the judge on questions
     of law?

          Mr. Larkin. That is right. He acts as an outright
     judge on questions of law and his rulings
     are final and binding. Whether any individual person
     decides that he doesn’t want to follow them or not of
     course is a different problem.

Hearings on H.R. 2498 Before a Subcomm. of the House Armed

Services Comm. (hereafter Hearings), 81st Cong., 1st Sess. 1154

(1949).



                                12
United States v. New, No. 99-0640/AR


     As a result of these and other hearings, the Code was

passed by Congress.   By statute, “[t]he military judge . . .

shall rule upon all questions of law and all interlocutory

questions arising during the proceedings.”   Art. 51(b), UCMJ, 10

USC § 851(b).   The Manual for Courts-Martial provides that the

military judge shall, “[s]ubject to subsection (e) of this rule

[regarding finality of rulings], rule on all interlocutory

questions and all questions of law raised during the court-

martial.”   RCM 801(a)(4).

     In United States v. Carson, 15 USCMA 407, 408, 35 CMR

379, 380 (1965), our Court noted in dicta that the legality

of an order in a disobedience case is an issue of law, as

follows:

     Whether an act comports with law, that is, whether it
     is legal or illegal, is a question of law, not an
     issue of fact for determination by the triers of fact.
     For example, in a prosecution for disobedience of an
     order, in violation of Article 92, Code, supra, 10 USC
     § 892, the court-martial must determine whether the
     order was given to the accused, but it may not
     consider whether the order was legal or illegal in
     relation to a constitutional or statutory right of
     the accused.

Paragraph 57b, Manual for Courts-Martial, United States, 1969

(Revised edition), expressly treated the legality of an order in

a disobedience case as a question of law to be decided by the

military judge.   See U.S. Dep't of the Army, Pam. No. 27-2,

Analysis of Contents, Manual for Courts-Martial, United States,

1969, Revised Edition (1970), at 10-5 (citing Carson).   The

                                13
United States v. New, No. 99-0640/AR


provisions of the 1969 Manual have been carried forward in this

Discussion accompanying RCM 801(e)(5) in the current Manual:

          Questions of law and interlocutory questions
     include all issues which arise during trial other than
     the findings (that is, guilty or not guilty), sentence,
     and administrative matters such as declaring recesses
     and adjournments. A question may be both interlocutory
     and a question of law. . . .

          Questions of the applicability of a rule of law to
     an undisputed set of facts are normally questions of
     law. Similarly, the legality of an act is normally a
     question of law. For example, the legality of an order
     when disobedience of an order is charged, the legality
     of restraint when there is a prosecution for breach of
     arrest, or the sufficiency of warnings before
     interrogation are normally questions of law. It is
     possible, however, for such questions to be decided
     solely upon some factual issue, in which case they would
     be questions of fact. . . .

(Emphasis added.)   See Art. 51(b)(the rulings of a military

judge are final on “all questions of law,” as well as “all

interlocutory questions,” except for “the factual issue of

mental responsibility”).   See RCM 801(a)(4); RCM 801(e)(1);

RCM 801(e)(4) Discussion; cf. RCM 801(e)(2)(B)(in contrast to

the rulings of the military judge, the rulings of the president

of a special court-martial without a military judge are not

final with respect to interlocutory questions of fact).   See

also RCM 801(e)(5) Discussion.

     Judge Sullivan concludes that the issue of lawfulness in

this case was an element that the military judge had to submit

to the members.   We have several significant points of



                                 14
United States v. New, No. 99-0640/AR


disagreement with that conclusion and with several points raised

by his separate opinion.

     First, although he asserts that his approach represents a

“modern military legal practice,” ___ MJ at (3), this Court has

never held that “lawfulness” is an element that must be

submitted to the members.   At most, the cases cited in his

separate opinion reflect isolated dicta or descriptions of

circumstances in which predicate factual issues were submitted

to the members.   None of the cases cited by the separate opinion

presented an issue in which this Court was required to determine

the relative responsibilities of the military judge and the

members with respect to deciding lawfulness of an order.   In

fact, before the Supreme Court’s 1995 decision in Gaudin, we

were not compelled to choose in a case such as this between

treating lawfulness as an issue of law for the military judge or

an element for the members.   Prior to Gaudin, the Supreme Court

had permitted trial judges to resolve certain legal issues

without determining whether the Sixth Amendment required such

issues to be submitted to a jury as an element.   See, e.g.,

Sinclair v. United States, 279 U.S. 263 (1929).   As we consider

the issue whether lawfulness is an element of the offense of

disobedience under Article 92, we note that the ambiguities in

the Benchbook, lower court opinions, and dicta in our prior

decisions reflect the pre-Gaudin era in which it was not


                                15
United States v. New, No. 99-0640/AR


necessary to resolve that issue.      The case before us represents

the first time, subsequent to Gaudin, that we must answer the

question whether lawfulness is an element that must be submitted

to the members.

     Second, we do not agree that Unger v. Ziemniak, 27 MJ 349

(CMA 1989), controls the present case.     As the separate opinion

notes, Unger contains language suggesting that “[i]n a

prosecution for disobedience, lawfulness of the command is an

element of the offense.”    Id. at 358.   There are critical

differences, however, between Unger and the present case.      The

issue presented to our Court in Unger did not involve a dispute

as to whether lawfulness is a discrete element, nor did the case

require us to determine the appropriate division of

responsibilities between the military judge and the members in a

disobedience case.

     Unger involved a pure question of law.     Unger had submitted

pretrial motions seeking dismissal of charges on the ground that

the order for her to submit to a urinalysis examination was

illegal as a matter of law.    The military judge rejected the

motions, and Unger sought appellate review through a request for

extraordinary relief, which the court below denied.     We in turn

affirmed that decision.    See 27 MJ at 350, 359.   After

concluding that the military judge correctly rejected the

motions to dismiss the charges, the opinion in Unger ventured


                                 16
United States v. New, No. 99-0640/AR


beyond the issue on appeal and suggested how the issue might be

addressed "if" there was a trial, indicating that lawfulness was

an element to be decided by the members.    The Unger opinion did

not discuss Carson and provided only the most cursory rationale

for the suggestion that lawfulness was an element to be decided

by the members.    Viewed in that context, the language in Unger

does not carry the weight that we would accord a decision

directly addressing a controversy briefed by the parties.      That

aspect of Unger has not been followed, and there is nothing in

the opinion which persuades us that we should reject the

longstanding approach of the Manual.

       Third, we disagree with the separate opinion’s suggestion

that lawfulness of an order must be treated as an element of a

disobedience offense as a matter of constitutional law.    __ MJ

(9).    The Supreme Court has made clear that in a prosecution for

violation of an order or regulation, the Constitution does not

require that the validity of the order or regulation be decided

by a jury.    For example, in Cox v. United States,

332 U.S. 442 (1947), both the plurality (id. at 452-53) and the

dissent (id. at 455) agreed that the validity of the regulation

was an issue of law.    (Douglas and Black, JJ., dissenting), but

agreeing with the plurality that the issue of validity was a

question “of law").    See generally Yakus v. United States,




                                 17
United States v. New, No. 99-0640/AR


321 U.S. 414, 433, 444-48 (1944)(Congress may require challenges

to the validity of a regulation governing wartime price controls

to be made in the context of a civil proceeding, thereby

precluding a defendant from asking the judge, as well as the

jury, to rule on the validity of the regulation in a criminal

prosecution for violation of the regulation).

     Fourth, we do not agree with the separate opinion’s

reliance on Winthrop’s classic treatise, W. Military Law and

Precedents (2d ed. 1920 Reprint), for the proposition that

lawfulness is an element that must be submitted to a “military

jury.”   ___ MJ at (9).   Courts-martial in Winthrop's day did not

simply function as a civilian “jury”; they consisted solely of

members -- there was no equivalent of a military judge -- and

the members performed the duties of both judge and jury.      See

Winthrop, supra at 54-55.   It was not until 1951 that courts-

martial included law officers who presided with the authority to

rule finally on matters of law and did not also serve as members

of the panel.   See 1 F. Gilligan & F. Lederer, Court-Martial

Procedure § 14-10.00 at 544-45 (2d ed. 1999); United States v.

Norfleet, 53 MJ 262, 266 (2000).      Thus, until 1951, rulings on

all legal issues in the Army, including rulings on motions, were

made by the president of the court-martial or the law member




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United States v. New, No. 99-0640/AR


(Article of War3 (AW) 8 (1920)), subject to the objection of the

other members (see AW 31 (1920)).          The material from Winthrop

quoted at length simply reflects Winthrop's understanding that

an accused had the opportunity to challenge the validity of

regulations before a court-martial -- a body that acted as both

judge and jury.     The material in Winthrop does not demonstrate

that the issue of validity was treated as an element with the

Government bearing the burden of proof.          Instead, Winthrop made

clear that the court-martial should employ traditional legal

analysis, applying the presumption of a regulation's validity,

to be overturned only if clearly contradicted by other

established authority.      Id. at 575-76.4

      Our fifth point of disagreement involves the differences

between a court-martial panel and a civilian jury.            The Sixth

Amendment right to trial by jury does not apply to courts-

martial.    Ex Parte Quirin, 317 U.S. 1, 39-45 (1942); see also




3
   The Navy and Marines were governed by the Articles for the Government of
the Navy, W. Generous, Swords and Scales 10-11 (1973), and did not have a
“law officer until 1951. Hearings, supra [___ MJ at (12)] at 1153.
4
   Similar considerations apply with respect to W. De Hart, Observations on
Military Law and the Constitution and Practice of Courts-Martial (1846),
cited in the separate opinion, ___ MJ at (9-10), which was published a half-
century before the 1896 original publication of Winthrop’s second edition.
The separate opinion also relies on J. Snedeker, Military Justice Under the
Uniform Code 599 (1953), ___ MJ at (9). Snedeker’s discussion of lawfulness
is not based upon any decisions under the Uniform Code of Military Justice
requiring the military judge to treat lawfulness as an element rather than as
a question of law. The sole citation in Snedeker is to a pre-UCMJ 1945
court-martial, see id. at 599 n.50, which involved the routine issue as to
whether an order was lawful, and did not address the allocation of
responsibilities between the court-martial and the law officer or military
judge -- a position that had not been established in 1945.
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United States v. New, No. 99-0640/AR


United States v. Loving, 41 MJ 213, 285, 287 (1994), aff’d on

other grounds, 517 U.S. 748 (1996); United States v. Curtis,

32 MJ 252, 267 (CMA), cert. denied, 502 U.S. 952 (1991).

Accused servicemembers are tried by a panel of their superiors,

not by a jury of their peers.         Court-martial members are not

randomly selected, but instead are chosen by the commander who

convenes the court-martial on a “best qualified” basis.              See

Art. 25(d)(2), UCMJ, 10 USC 825(d)(2); United States v. Tulloch,

47 MJ 283, 285 (1997).

       Although the court-martial members perform many of the

functions of a jury with respect to the determination of guilt

or innocence, throughout most of our history, the court-martial

panel has served as both judge and jury.           Even today, the UCMJ

retains provisions for special court-martial members to serve as

both judge and jury, with power to adjudicate a sentence of up

to one year’s5 confinement.        If a military judge cannot be


5
    Art. 19 provides in part:

       Special courts-martial may, under such limitations as the President may
       prescribe, adjudge any punishment not forbidden by this chapter [10USCS
       §§ 801 et seq.] except death, dishonorable discharge, dismissal,
       confinement for more than six months, hard labor without confinement
       for more than three months, forfeiture of pay exceeding two-thirds pay
       per month, or forfeiture of pay for more than six months. A bad-
       conduct discharge, confinement for more than six months, or forfeiture
       of pay for more than six months may not be adjudged unless a complete
       record of the proceedings and testimony has been made, counsel having
       the qualifications prescribed under section 827(b) of this title [10
       USCS § 827(b))] (article 27(b)) was detailed to represent the accused,
       and a military judge was detailed to the trial, except in any case in
       which a military judge could not be detailed to the trial because of
       physical conditions or military exigencies. In any such case in which
       a military judge was not detailed to the trial, the convening authority
       shall make a detailed written statement, to be appended to the record,
       stating the reason or reasons a military judge could not be detailed.
                                       20
United States v. New, No. 99-0640/AR


detailed “because of physical conditions or military

exigencies,” the members of a special court-martial may act as

both judge and jury in a case that results in a punitive

discharge and up to 12 months’ confinement.   Art. 19, UCMJ,

10 USC § 819 (as amended Oct. 5, 1999).   These provisions and

the historical functions of a court-martial panel underscore our

conclusion that when Congress inserted the word "lawful" in the

statutes governing disobedience, it was addressing the judicial

role of the court-martial panel rather than creating an element

for consideration by a factfinder.

     Sixth, we do not agree that application of the principles

in United States v. Gaudin, 515 U.S. 506 (1995), requires that

lawfulness of a regulation or order, in terms of its

relationship to other provisions of law, be treated as an

element of a disobedience offense.   The underlying principle in

Gaudin -- that the judge must instruct the jury on the elements

of the offense -- is not a matter in controversy because it is

well established by statute in the Uniform Code of Military

Justice.   See Art. 51(c)(setting forth the relationship between

the military judge and the court-martial panel on elements and

instructions).   Thus, although the Supreme Court found it

necessary to resort to constitutional principles in Gaudin, the

allocation of responsibilities may be addressed as a matter of

statutory interpretation in the military justice system.


                                21
United States v. New, No. 99-0640/AR


      The question in the present case is not whether the

military judge must instruct the court-martial panel on the

elements of an offense.       That question is resolved by Article

51(c).   Accordingly, treatment of the constitutional issues

discussed in Gaudin does not control the present case.             The

question before us is a matter of statutory interpretation --

whether, in this case, the issue of lawfulness was an element,

and therefore should have been submitted to the members under

Article 51(c); and if not an element, whether the military judge

properly decided the issue of lawfulness as a question of law

under Article 51(b).      In that regard, it is noteworthy that

Gaudin focused on the interpretation of a unique statute and did

not purport to set forth general principles of interpretation

applicable to all statutes.       Moreover, in Gaudin, there was no

dispute as to whether the word “material” constituted an element

because the Government “conceded” that point.           Id. at 511.      Both

sides also agreed on the definition of “materiality,” i.e., that

“[t]he statement must have a natural tendency to influence, or

[be] capable of influencing, the decision of the decisionmaking

body to which it was addressed.”           515 U.S. at 509 (internal

quotation marks omitted).6


6
   In Neder v. United States, 527 U.S. 1 (1999), the Supreme Court again
addressed “materiality,” in the context of mail fraud, wire fraud, and bank
fraud, under 18 USC §§ 1341, 1343, and 1344. The Neder opinion makes clear
that materiality is a fact laden concept and includes a finding of fact that
“a reasonable man would attach importance” to the matter or “the maker of the
representation knows or has reason to know ... the matter is important.” 527
U.S. at 22 n.5, citing Restatement (2d) of Torts § 538 (1976).
                                      22
United States v. New, No. 99-0640/AR


      The present case initially involves the question of whether

it is necessary to consider lawfulness of an order as a separate

and discrete element under Article 92.          Inclusion of the word

“lawful” in Article 92 did not add a separate element to the

offense of violating a regulation or order.           The word "lawful"

reflects a question of law -- the validity of the regulation or

order with respect to a superior source of law -- that is

inherent in the terms "order" and "regulation" under Article 92.7

The word "lawful" simply reinforces the opportunity for the

accused to challenge the validity of the regulation or order

with respect to a superior source of law          without establishing a

separate and distinct element of the offense.           In light of the

legislative history of the Code and the Manual, we conclude that

“lawfulness” is a legal question for the judge.            It is entirely

different from many other matters which must be submitted to the

court members such as “wrongfulness” or “materiality” if a

servicemember is charged with a violation of 18 USC §§ 1001

under Article 134, UCMJ, 10 USC § 934.          Adjudicating the issue

of lawfulness as a question of law for the military judge

ensures that the validity of the regulation or order will be

resolved in a manner that provides for consistency of

interpretation through appellate review.          By contrast, if the


7
   Winthrop recognized that point when he noted, “The word ‘lawful’ is indeed
surplusage, and would have been implied from the word ‘command’ alone, but,
being used, it goes to point the conclusion affirmed by all the authorities
that a command not lawful may be disobeyed...." Winthrop, supra, at 575.
                                      23
United States v. New, No. 99-0640/AR


issue of lawfulness were treated as an element that must be

proved in each case beyond a reasonable doubt, the validity of

regulations and orders of critical import to the national

security would be subject to unreviewable and potentially

inconsistent treatment by different court-martial panels.

     Seventh, we note a significant internal contradiction in

Judge Sullivan’s approach.   The separate opinion asserts that

“lawfulness of an order” is “an essential element of a

disobedience offense,” __ MJ at (2), and takes note of “the

basic constitutional right of a criminal defendant ‘to have a

jury determine, beyond a reasonable doubt, his guilt of every

element of the crime with which he is charged.’”    __ MJ at (27)

(citing Gaudin, supra at 522-23) internal quotation marks

omitted (emphasis added in the separate opinion).   The separate

opinion also notes that “a military accused has a codal and

constitutional right to have members of his court-martial, not

the military judge, determine whether the Government has proved,

beyond a reasonable doubt, each and every element of the offense

of which he is charged.”   __ MJ at (12) (footnote omitted).

Elsewhere, however, the separate opinion endorses the

proposition that the military judge may treat “lawfulness” in a

disobedience case as a question of law and that the military

judge properly did so in the present case, at least with respect

to most of the issues raised by appellant.   See __ MJ at (2, 6).


                                24
United States v. New, No. 99-0640/AR


We cannot have it both ways.    This case requires us to decide,

with respect to regulations and orders under Article 92, whether

“lawfulness” is a discrete element or whether it is a question

of law.   If “lawfulness” is indeed an “essential element,” the

accused in a military trial has a statutory right for the issue

to be resolved by the members under Article 51.    If, however,

“lawfulness” is a question of law, it may be resolved by the

military judge.   The cases cited in the separate opinion, __ MJ

at (6), support the role of the military judge in deciding

issues of law, but do not authorize the military judge to

withhold “essential elements” from the members.    If we agreed

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.    Because we

conclude in this case that “lawfulness” is a question of law,

the military judge did not err by resolving it himself without

submission to the members.

     Finally, we do not agree with Judge Sullivan's assessment

of the impact of any error.    The separate opinion asserts that

the issue of lawfulness of an order was “an essential element of

this criminal offense,” ___ MJ at (21); that it was an error of

constitutional dimension for the military judge to decide this

issue without submitting it to the members; and that the error

was so egregious that it constituted a “radical departure from


                                 25
United States v. New, No. 99-0640/AR


our political, legal, and military tradition.”    __ MJ at (2).

The separate opinion nonetheless concludes that these

considerations are of no moment because, in his view, the order

was lawful, and any misstep by the military judge was harmless

under Neder, 527 U.S. at 4.   ___ MJ at (37).

     As noted above, if Judge Sullivan is correct in his

assertion that lawfulness is an element that must be submitted

to the members, we -- as an appellate court -- would have no

more authority than the military judge to render a decision

without requiring further proceedings to submit it to the

members.   Judge Sullivan's analysis of the order, which embodies

the characteristics of judicial reasoning on an issue of law,

underscores our conclusion that the issue at trial was a

question of law for resolution by the military judge, rather

than an element of an offense requiring a factfinding panel or

jury to weigh the evidence.

     Judge Sullivan's conclusion that this is a harmless-error

case is inconsistent with Neder, which provided that omission of

an element could be viewed as harmless only when “supported by

uncontroverted evidence” on the question of materiality in tax-

fraud charges.   527 U.S. at 18.    If, as Judge Sullivan suggests,

the issue of “lawfulness” of an order is a matter which involves

introduction of evidence to be weighed by the members, appellant

clearly produced at trial a large volume of material contesting


                                   26
United States v. New, No. 99-0640/AR


the lawfulness of the order.    Had this been a question for the

members of the court-martial panel, it would have been within

their province to analyze the controverted material and reach a

judicially unreviewable decision to acquit appellant.      Similar

considerations apply to Senior Judge Everett’s separate opinion

on this point.   Both opinions apply Neder in a manner that

discounts the large volume of material submitted by appellant

contesting the lawfulness of the order, which would be more than

sufficient to go before a panel if this were an element for

resolution by the members.    In rejecting that material, they

effectively treat the question as a matter of law rather than as

an element of an offense.    As a result, both reach the

conclusion -- with which we agree -- “that the order to wear the

UN patches and cap was lawful, i.e., it was properly authorized,

related to a military duty, and violated no applicable service

uniform regulations."    __ MJ at (37).

                 ISSUE III – LEGALITY OF THE ORDER

     This Court reviews the question of whether the military

judge correctly determined that an order was lawful on a de novo

basis.   48 MJ at 277.   The test for assessing the lawfulness of

an order under Article 92 comes from paragraph 14c(2)(a)(iii),

Part IV, Manual for Courts-Martial, United States (1995 ed.)

which states in pertinent part:

          The order must relate to military duty, which
     includes all activities reasonably necessary to

                                  27
United States v. New, No. 99-0640/AR


     accomplish a military mission, or safeguard or promote
     the morale, discipline, and usefulness of members of a
     command and directly connected with the maintenance of
     good order in the service. The order may not, without
     such a valid military purpose, interfere with private
     rights or personal affairs. However, the dictates of a
     person’s conscience, religion, or personal philosophy
     cannot justify or excuse the disobedience of an
     otherwise lawful order.

See United States v. Hughey, 46 MJ 152, 154 and n.2 (1997).

     Orders are clothed with an inference of lawfulness.       See

Hughey, 46 MJ at 154; United States v. Nieves, 44 MJ 96, 98

(1996).   “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."   Para. 14c(2)(a)(i), Part IV,

Manual, supra (1995 ed.).   Appellant has the burden to

establish that the order is not lawful.     Hughey, 46 MJ at

154; United States v. Smith, 21 USCMA 231, 234, 45 CMR 5, 8

(1972).

     We hold that the military judge did not err in determining

that the order given to appellant to wear his uniform with UN

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.




                                28
United States v. New, No. 99-0640/AR


      Appellant argues that (1) the UN insignia violates Army

uniform regulations (AR 670-1) by transferring his allegiance to

the United Nations, 50 MJ at 734, and (2) the order stems from

an illegal deployment of the Armed Forces because President

Clinton misrepresented the nature of the deployment to Congress

and failed to comply with the United Nations Participation Act

[UNPA].8   50 MJ at 736.     These arguments fail because they would

unacceptably substitute appellant’s personal judgment of the

legality of an order for that of his superiors and the Federal

Government.

      This Court has held that an Air Force Captain disobeyed a

lawful order when he refused to fly as a training instructor on

a fighter plane that was used in Vietnam.          United States v.

Noyd, 18 USCMA 483, 485-86, 40 CMR 195, 197-98 (1969).             The Noyd

court noted that “[m]ilitary service is . . . a matter of

status,” like becoming a parent, rather than just a contractual

relationship and that status establishes special duties between

the soldier and the Government.        18 USCMA at 490, 40 CMR at 202.

It further noted that “the fact that a person in a military

status determines that he has undergone a change of conscience

does not, at that instant and from that time on, endow him with




8
   As we will rule on Issue IV (see ___ MJ at (34-36)) that the lawfulness of
the order to deploy troops as part of the U.N. mission is beyond judicial
review because it is a political question, we will decline to address any
aspect of appellant’s argument on Issue III that implicates this issue.
                                      29
United States v. New, No. 99-0640/AR


the right to decide what orders are compatible with his

conscience.”    18 USCMA at 491, 49 CMR at 203.

     The Supreme Court has recognized the importance of the

military mission over the beliefs of the individual soldier

on the specific issue of uniform requirements.    The Court held

that Air Force regulations that prohibited wearing a yarmulke

are not prohibited by the First Amendment, “even though their

effect is to restrict the wearing of the headgear required by

his religious beliefs.”    Goldman v. Weinberger, 475 U.S. 503,

510 (1986).    The Court reasoned that “[t]he desirability of

dress regulations in the military is decided by the appropriate

military officials, and they are under no constitutional mandate

to abandon their considered professional judgment.”    Id. at 509.

the Court stated:

        The considered professional judgment of the Air Force
     is that the traditional outfitting of personnel in
     standardized uniforms encourages the subordination of
     personal preferences and identities in favor of the
     overall group mission. Uniforms encourage a sense of
     hierarchical unity. . . . The Air Force considers them
     as vital . . . because its personnel must be ready to
     provide an effective defense on a moment’s notice; the
     necessary habits of discipline and unity must be
     developed in advance of trouble.

Id. at 508.    Based on this reasoning, we conclude that

uniform requirements are considered essential to the military

mission for the purpose of determining lawfulness.

     Although the Goldman decision was overtaken by statute, 10

USC § 774, which now permits wearing religious apparel under

                                 30
United States v. New, No. 99-0640/AR


certain conditions, its reasoning on uniform requirements is

still sound.    If uniform requirements relate to military duty,

then an order to comply with a uniform requirement meets the

“military duty” test set forth in paragraph 14c(2)(a)(iii).

     We recently considered the issue of the “military duty”

requirement in finding lawful an order given to a Marine not to

drive his personal vehicle because he had been diagnosed with

narcolepsy.    United States v. McDaniels, 50 MJ 407 (1999).

Distinguishing that case from orders held to be illegal, such as

not to drink alcohol or speak to other soldiers, see cases cited

at 50 MJ 408, we held that the order in McDaniels was within

military authority because it protected other persons.    In

appellant’s case, it is difficult to think of a requirement more

necessary to promoting the basic FYROM UNPREDEP military mission

or to safeguarding discipline and morale of deployed troops than

uniform requirements.    See United States v. Young, 1 MJ 433, 435

(CMA 1976)(identification of personnel and development of esprit

de corps justify military uniform requirements for hair cuts).

     It is not a defense for appellant to claim that the order

is illegal based on his interpretation of applicable law.      An

order is presumed to be lawful and the defense has the burden to

prove illegality unless the order is “palpably illegal on its

face.”   United States v. Kapla, 22 CMR 825, 827 (AFBR 1956)

quoting Winthrop’s Military Law and Precedents 585-76 (2d ed.


                                 31
United States v. New, No. 99-0640/AR


1920 Reprint).   This does not, however, allow a soldier to

disobey an order because he believes it to be palpably illegal.

A case remarkably similar to this one is United States v.

Wilson, 19 USCMA 100, 41 CMR 100 (1969).    Private Wilson was

denied conscientious-objector status and, after an unauthorized

absence, wrote a statement explaining, in part, “I will refuse

to wear the uniform of a soldier ever again.    I am doing this

out of my deeply felt convictions . . . and because the Army has

given me no other alternative.”    19 USCMA at 100-101, 41 CMR at

100-01.   When he later refused to obey an order to wear his

uniform, he was charged with willful disobedience.    This Court

upheld an instruction that personal scruples were not a defense.

Citing United States v. Noyd, supra, the Court in Wilson

reasoned that personal beliefs could not justify or excuse

disobedience by a soldier of a lawful order.

     His position is like that of the civilian whose religion
     or conscience is in conflict with lawful orders of the
     Government . . . [T]o allow scruples of personal
     conscience to override the lawful command of constituted
     authority would “in effect . . . permit every citizen to
     become a law unto himself.” Reynolds v. United States,
     98 U.S. 145, 167, 25 L. Ed. 244 (1879). As Noyd
     indicated, the freedom to think and believe does not
     excuse intentional conduct that violates a lawful
     command.

19 USCMA at 101, 41 CMR at 101.    The Court in Noyd also noted

that allowing private judgment by a soldier as to which orders

to obey would be “unthinkable and unworkable,” and would mean

that “the military need for his services must be compromised.”

                                  32
United States v. New, No. 99-0640/AR


18 USCMA 491, 40 CMR at 203.   Appellant’s arguments are

essentially the same ones that were made there, and they should

be rejected on the same basis.

     We recently reiterated the limited nature of the grounds

upon which the lawfulness of an order may be challenged in the

context of denied conscientious-objector status.   We determined

that there was no constitutional right or statutory provision

that gave an appellant “authority for a self-help remedy of

disobedience.”   United States v. Johnson, 45 MJ 88, 92 (1996),

citing United States v. Lenox, 21 USCMA 314, 319, 45 CMR 88, 93

(1972).

    Issue IV – APPLICATION OF THE POLITICAL QUESTION DOCTRINE

     The Supreme Court has long recognized the principle of

“nonjusticiability”:   meaning that courts of law should decline

to exercise their authority to decide matters where judicial

intervention is deemed inappropriate.   Based upon the

Constitutional principle of separation of powers in the three

branches of Government, judicial review of “a political

question” is precluded where the Court finds one or more of the

following:

     a textually demonstrable constitutional commitment of the
     issue to a coordinate political department; or a lack of
     judicially discoverable and manageable standards for
     resolving it; or the impossibility of deciding without an
     initial policy determination of a kind clearly for
     nonjudicial discretion; or the impossibility of a court’s
     undertaking independent resolution without expressing lack
     of the respect due coordinate branches of government; or an

                                 33
United States v. New, No. 99-0640/AR


        unusual need for unquestioning adherence to a political
        decision already made; or the potentiality of embarrassment
        from multifarious pronouncements by various departments on
        one question.

Baker v. Carr, 369 U.S. 186, 217, 218 (1962); see also Flast v.

Cohen, 392 U.S. 83, 95 (1968).

        The Constitution assigns specific military responsibilities

to the Executive and Legislative branches of the Government.

The President is Commander-in-Chief of the Armed Forces,9 but

Congress has the power to declare war and to organize, arm, and

govern the military.10

        The determination whether lawfulness of the order to deploy

is a political question and thus nonjusticiable is reviewed on a

de novo standard.        Padgett, 48 MJ at 277.

        While the military judge determined that the order to wear

the U.N. insignia was lawful, he properly declined to rule on

the constitutionality of the President’s decision to deploy the

Armed Forces in FYROM as a nonjusticiable political question.

Courts have consistently refused to consider the issue of the

President’s use of the Armed Forces.            Two recent examples from

the Persian Gulf War era are Ange v. Bush, 752 F. Supp. 509

(D.D.C. 1990), and United States v. Huet-Vaughn, 43 MJ 105

(1995).      In the Ange case, the District Court declined to rule

on the legality of deployment of troops in the Persian Gulf



9
     U.S. Const. Art. II § 2.
10
      U.S. Const. Art. I § 8, cl. 11-14.
                                           34
United States v. New, No. 99-0640/AR


despite inconsistent views of Congress and the President.    752

F. Supp. at 512.   In Huet-Vaughn, we reaffirmed the idea that

personal belief that an order is unlawful cannot be a defense to

a disobedience charge, holding: “The duty to disobey an unlawful

order applies only to a positive act that constitutes a crime

that is so manifestly beyond the legal power or discretion of

the commander as to admit of no rational doubt of their

unlawfulness.”   43 MJ at 114 (internal quotation marks omitted).

The Court further upheld the military judge’s decision not to

consider evidence relating to the legality of the decision to

deploy the Armed Forces.   43 MJ at 115.

     The basic nature of the separation-of-powers issue was also

discussed in a Vietnam-era case where soldiers disobeyed an

order to board a sedan for further transportation to Vietnam on

the grounds that American involvement there was itself illegal.

United States v. Johnson, 17 USCMA 246, 247, 38 CMR 44, 45

(1967).   This Court noted that the Supreme Court refused to

consider challenges to the President’s use of the armed forces

abroad.   In addition, the Court distinguished Youngstown Sheet

and Tube Co. v. Sawyer, 343 U.S. 579 (1952), since it involved

use of military power in a purely domestic dispute.   The Court

noted Justice Jackson’s concurrence in Youngstown Sheet and Tube

Co., where he stated: “I should indulge the widest latitude of

interpretation to sustain [the President’s] exclusive function


                                35
United States v. New, No. 99-0640/AR


to command the instruments of national force, at least when

turned against the outside world for the security of our

society.”   343 U.S. at 645.

     Under these standards, we hold that this question qualifies

as a nonjusticiable political question.

     The decision of the United States Army Court of Criminal

Appeals is affirmed.




                               36
United States v. New, No. 99-0640/AR




EFFRON, Judge (concurring):

     I concur in the majority opinion.   I write separately to

address a number of issues identified in the course of

considering the present case that may bear on future litigation

concerning the legality of orders.



        I. Application of the Political Question Doctrine


                                   A

     According to appellant, the prosecution failed to prove

that he had received a lawful order because the order was in

furtherance of actions which he viewed as illegal -- the

deployment of American troops to the Republic of Macedonia and

the development of command and control functions and associated

uniform requirements.   As noted in the majority opinion, these

matters were properly resolved by the military judge under the

Supreme Court's political question doctrine.   See Gilligan v.

Morgan, 413 U.S. 1, 6-12 (1973).

     The political question doctrine serves a particularly

important function in military trials by ensuring that courts-

martial do not become a vehicle for altering the traditional

relationship between the armed forces and the civilian

policymaking branches of government.   Since the days of George
United States v. New, No. 99-0640/AR


Washington, America has demonstrated that military

professionalism is compatible with civilian control of the armed

forces.   With few exceptions, American military personnel have

been faithful to the concept that once their advice has been

tendered and considered, they are duty-bound to implement

whatever policy decisions the civilian leadership may make.

     Appellant would have us change the nature of that

relationship by requiring courts-martial to adjudicate the

relationships between Congress and the President regarding the

deployment of military forces.    Consider, for example, the

implications of appellant's approach in the context of the

Korean conflict, where adversity in frozen fields far from home

intensified a bitter national debate over the propriety of U.S.

participation in an undeclared war conducted under the United

Nations' auspices.   Under appellant's approach, courts-martial

would have been authorized to adjudicate the relationships

between Congress and the President, potentially permitting

members of the armed forces to disobey unpopular orders.    There

is nothing in the more than 2 centuries of our history as a

Nation that suggests courts-martial should be empowered to rule

on the propriety of deployment orders as a matter of either

constitutional or military law.




                                  2
United States v. New, No. 99-0640/AR


                                 B

     Appellant not only insists that courts-martial should rule

on the legality of deployment orders, but he also contends that

the military judge should submit the issue of legality to the

members as an essential element of the offense.    Such an

approach would be even more problematic than permitting judges

to adjudicate the legality of deployments because dispositions

by members would produce unreviewable decisions.    See Art. 63,

UCMJ, 10 USC § 863 (an acquittal is final and unreviewable).

Rather than producing the unity and cohesion that is critical to

military operations, appellant's approach could produce a

patchwork quilt of decisions, with some courts-martial

determining that orders were legal and others determining that

the same orders were illegal, without the opportunity for

centralized legal review that is available for all other issues

of law.


                                 C

     It is apparent that appellant has carefully considered the

legality of the orders at issue and that he has formed sincere,

deeply held views about the legal basis for the deployment of

his unit and the related matters of command and control and

uniform arrangements.   Congress has provided him with a variety

of means to communicate his views to his superiors and national



                                 3
United States v. New, No. 99-0640/AR


policy makers.   He may challenge policy through a complaint

under Article 138, UCMJ, 10 USC § 938; he may raise his concerns

to the Inspector General of the Department of Defense, 5 USC

Appendix; and he may communicate directly with Members of

Congress and Inspectors General without interference from his

military superiors and with protections against reprisal, 10 USC

§ 1034.   The record indicates that he has exercised his right to

communicate with Members of Congress.   Although Congress has

acted from time to time to limit deployments, regulate command

and control arrangements, and specify uniform requirements, it

has not done so with respect to the issues raised by appellant.

Congressional inaction does not entitle him to address such

issues through disobedience and then seek the protection of a

court-martial, at least to the extent that the issues of concern

to him involve political questions committed to the policymaking

branches of government rather than rights granted to him by the

Constitution, statutes, or regulations.


                                 D

     It is important to emphasize that the political question

doctrine may not be used as an excuse for avoiding issues

committed by law to the court-martial process.   The political

question doctrine in a disobedience case arises in a context

very different from civil litigation.   In the typical civil



                                 4
United States v. New, No. 99-0640/AR


case, a party initiates litigation as a means of interjecting

the courts into a dispute between the two policymaking branches

of government.   In a court-martial for disobedience, the

Government -- not the accused -- has initiated the litigation.

Reliance on the political question doctrine in such

circumstances is appropriate only when the legal principles at

issue are directed at the allocation of responsibilities between

the two policymaking branches of the government.   Where the

legal principles are directed at the rights and responsibilities

of servicemembers, the political question doctrine may not be

used to avoid addressing the legality of orders invoking those

principles, even if those questions touch upon the

responsibilities of the policymaking branches.   Cf. United

States v. Caceres, 440 U.S. 741 (1979) (distinguishing between

those rules designed to protect the rights of citizens and those

designed to affect the management of governmental functions).

     Military courts have long considered the legality of orders

in cases in which an accused was directed to commit a crime or

in which the purported order violated a legal standard designed

to preclude commanders from abusing the fundamental rights of

their subordinates or directing their subordinates to engage in

criminal activities.   Likewise, military courts traditionally

have permitted servicemembers to defend against other charges by

asserting obedience to lawful orders.   Nothing in today's


                                 5
United States v. New, No. 99-0640/AR


opinion should be viewed as permitting a military judge to avoid

ruling on the legality of an order in such a case simply because

the issue bears certain attributes of a political question.



 II. The Tension Between Prompt Obedience and Challenges to the
                      Lawfulness of Orders

                                   A

     The Supreme Court has emphasized that "it is the primary

business of armies and navies to fight or be ready to fight wars

should the occasion arise."   United States ex rel. Toth v.

Quarles, 350 U.S. 11, 17 (1955).       To persevere and prevail

amidst the danger, death, destruction, and chaos of armed

combat, military personnel must develop the disciplined habit of

prompt obedience to the directives of their superiors.

     Although modern military practices typically foster

opportunities for discussion before a decision is made, prompt

obedience is expected once an order is given.       The Supreme Court

has observed that "[a]n Army is not a deliberative body.        It is

the executive arm.   Its law is that of obedience.       No question

can be left open as to the right to command in the officer, or

the duty of obedience in the soldier."       Parker v.   Levy, 417

U.S. 733, 744 (1974), quoting In re Grimley, 137 U.S. 147, 153

(1890).   "[T]o accomplish its mission the military must foster

instinctive obedience, unity, commitment, and esprit de corps."



                                   6
United States v. New, No. 99-0640/AR


Goldman v. Weinberger, 475 U.S. 503, 507 (1986) (emphasis

added).

     Although the law expects prompt and instinctive

implementation of orders, it does not envision unquestioning

obedience.   Only "lawful" orders must be obeyed.   Art. 92; see

RCM 916(d), Manual for Courts-Martial, United States (1998 ed.).

There has always been an uneasy tension between the concept of

"instinctive obedience" and the expectation that servicemembers

will not obey unlawful orders.    The present case has brought to

light several issues growing out of that tension that may

warrant further attention.

     First, should the Manual for Courts-Martial provide more

detailed guidance as to the appropriate means by which the

legality of an order should be raised and adjudicated in a

court-martial?    Should it be through a motion to dismiss for

failure to state an offense on the ground that the illegality

deprives the directive of its status as an "order"?    Should it

be recast as an affirmative defense?    Should both approaches be

available?

     It is noteworthy that the legality of an order is treated

as a defense when it is raised in the context of crimes other

than disobedience offenses - for example, assault or homicide.

See RCM 916(d).    In one of our earliest cases, United States v.

Trani, 1 USCMA 293, 3 CMR 27 (1952), we considered the procedure


                                  7
United States v. New, No. 99-0640/AR


for assessing the legality of an order in a disobedience case.

We observed that

          [i]t is a familiar and long-standing
          principle of military law that the command
          of a superior officer is clothed with a
          presumption of legality, and that the burden
          of establishing the converse devolves upon
          the defense.


1 USCMA at 296, 3 CMR at 30 (citing W. Winthrop, Military Law

and Precedents   575-76 (2d ed. 1920 Reprint)).   After noting

that "it does not appear that the order was unlawful on its

face," we commented that "it remains to be seen whether it has

been shown affirmatively to be illegal."   1 USCMA at 297, 3 CMR

at 31 (emphasis added).   Trani has never been overruled or

distinguished.   It could be viewed as consistent with either an

affirmative defense approach or an approach based upon failure

to state an offense.

     Second, what circumstances should be encompassed by the

terms "lawful," "unlawful," and "illegal" as applied to offenses

involving obedience or disobedience of orders?    Paragraph 415,

Manual for Courts-Martial, United States, 1917, at 210, sets

this high standard:

               To justify from a military point of
          view a military inferior in disobeying the
          order of a superior, the order must be one
          requiring something to be done which is
          palpably a breach of law and a crime or an
          injury to a third person, or is of a serious
          character (not involving unimportant


                                 8
United States v. New, No. 99-0640/AR


           consequences only) and if done would not be
           susceptible of being righted.

     Subsequent editions of the Manual streamlined this

language, relying instead on descriptions of various types of

orders within or outside the statute.   See para. 134b, Manual

for Courts-Martial, U.S. Army, 1928; para. 152b, Manual for

Courts-Martial, U.S. Army, 1949; para. 169b, Manual for Courts-

Martial, United States, 1951; para. 169b, Manual for Courts-

Martial, United States, 1969 (Revised edition); para. 14c(2)(a),

Part IV, Manual, supra (1998 ed.).   The current guidance,

however, does not address what types of deficiencies affect the

validity of an order in the context of a disobedience offense.

Aside from matters involving the political question doctrine,

what other questions should be excluded from or included in the

concept of lawfulness as it pertains to orders?

     Third, are other changes warranted as a result of the

manner by which the complexity and scope of modern military

operations have significantly altered the nature of military

life?   The 19th century model, in which military personnel were

directed primarily by personal orders from an immediate

superior, has been transformed by the 21st century reality into

an environment governed by thousands of pages of directives,

regulations, standard operating procedures, and policy manuals

issued by a variety of military and civilian authorities at



                                 9
United States v. New, No. 99-0640/AR


service, joint, and international command levels.    Under what

circumstances should a servicemember be permitted to rely on one

of these issuances to disobey a direct command from a superior?

       It is well established that a servicemember may defend

against a disobedience charge by demonstrating that compliance

with the order would constitute a crime or would violate a

standard of law intended to protect significant rights of the

servicemember or a third party.    Should an order be treated as

not "lawful" if it is inconsistent with another issuance, even

if that issuance addresses only routine administrative matters?

If not, under what circumstances should a servicemember who

alleges reasonable reliance on the administrative issuance be

permitted to raise a defense of mistake of fact or mistake of

law?

       Fourth, how should the burden of demonstrating the legality

or illegality of an order be allocated?    Do the references in

the Manual and case law to a "presumption" or "inference" of

legality suggest that the production of any information to the

contrary negates the presumption and places the burden on the

prosecution to prove the legality of the order?    Alternatively,

in the context of an issue of law, should the presumption or

inference simply mean that the issue of legality does not arise

until raised by some information presented to the military judge




                                  10
United States v. New, No. 99-0640/AR


in an appropriate motion and that, once presented, the military

judge considers the issue de novo like many other issues of law?

     Fifth, should the relative responsibilities of the military

judge and the members of the court-martial panel be revisited?

As noted above, the present Manual (2000 ed.) provides some

guidance in paragraph 14c(2)(a), Part IV, on which types of

orders may be considered lawful or unlawful, but provides no

guidance on the allocation of duties within the court-martial

itself.

     RCM 801(e), governing the power of the military judge to

rule finally on interlocutory questions and questions of law,

provides the following general guidance: first, any ruling on a

question of law or interlocutory question is final--RCM

801(e)(1)(A); and second, the military judge decides questions

of fact within an interlocutory question under a preponderance-

of-the-evidence standard--RCM 801(e)(4).   The text of the rule

does not address the legality of orders.   The non-binding

Discussion accompanying RCM 801(e)(5) briefly notes that "the

legality of an act is normally a question of law.   For example,

the legality of an order when disobedience of an order is

charged . . . normally [is a] question[] of law."   In short, the

Rule is silent and the Discussion contemplates no role for the

court members.   Regardless whether it is an issue of law or an




                                11
United States v. New, No. 99-0640/AR


issue of fact, the Discussion contemplates that the matter will

be resolved by the military judge.

     The Military Judges' Benchbook, however, takes a different

approach.    The non-binding model instructions for Article 92

offenses provide:

            When it is clear as a matter of law that the
            order was lawful, this should be resolved as
            an interlocutory question . . . .

                                *    *    *

            If there is a factual dispute as to whether
            or not the order was lawful, that dispute
            must be resolved by the members in
            connection with their determination of guilt
            or innocence. . . .

                                *    *    *

            If the military judge determines, as a
            matter of law, that the order was not
            lawful, [the judge] should dismiss the
            affected specification . . . .


Para. 3-29, Military Judges’ Benchbook at 3-59 (Dept. of the

Army Pamphlet 27-9 (Oct. 1986)).         This guidance appears to be

inconsistent with RCM 801(e).       If the question of lawfulness

should continue to be treated as an interlocutory question or a

question of law, then under RCM 801(e), it is the responsibility

of the military judge -- not the members -- to decide questions

of law and any questions of fact arising thereunder.

     The Benchbook, however, clearly reflects a degree of

discomfort with the removal of any role for the members in such


                                    12
United States v. New, No. 99-0640/AR


a case beyond determining whether the order was, in fact, issued

and received.   Although there have been lower court opinions

rejecting defense challenges to the adequacy of instructions

following the Benchbook approach, e.g., United States v. Tiggs,

40 CMR 352 (ABR 1968), pet. denied, 18 USCMA 630, 39 CMR 293

(1969), it does not appear that any cases have addressed the

relationship between the Manual and the Benchbook in terms of

the roles of the members and the military judge.

     In contrast to the Manual's focus on the military judge as

the decision maker on the issue of legality in disobedience

cases, the Manual contemplates a role, albeit somewhat limited,

for the members in considering the legality of an order when

raised as a defense to another crime.    RCM 916(d), which governs

the defense of obedience to orders, provides:

          It is a defense to any offense that the
          accused was acting pursuant to orders unless
          the accused knew the orders to be unlawful
          or a person of ordinary sense and
          understanding would have known the orders to
          be unlawful.


     The prosecution has "the burden of proving beyond a

reasonable doubt that the defense" of obedience to orders "did

not exist." RCM 916(b).   The military judge decides as a matter

of law whether the order raised by the defense was lawful.    If

so, the defense of justification applies and the charge is

dismissed.   See RCM 916(c).   If the military judge rules that


                                 13
United States v. New, No. 99-0640/AR


the order was unlawful, the judge so instructs the members and

the members then decide whether the prosecution has proved

beyond a reasonable doubt that the accused actually knew that

the order was unlawful or that a person of ordinary sense would

have known that the order was unlawful.    See United States v.

Calley, 22 USCMA 534, 541-42, 48 CMR 19, 26-27 (1973).

     In view of the role given to the members in assessing the

reasonableness of a servicemember's interpretation of the

legality of an order when raised as a defense, should they be

given a similar role under the Manual in assessing legality in a

disobedience case?    If so, what role should they be given?

Should the guidance in the Benchbook be given stature in the

Manual?    If so, how should it be reconciled with RCM 801(b),

under which the factual components of an interlocutory issue are

resolved by the military judge, not the members?

     Underlying these concerns is the question of which issues

involving the legality of an order call for the expertise that a

blue ribbon court-martial panel brings to the process and which

call for the expertise that a military judge brings to the

process.    As our men and women in uniform are increasingly

deployed to serve as peacekeepers and peace enforcers in

challenging circumstances in which traditional rules of

engagement are difficult to employ, it is quite possible that

these questions will arise in a real, rather than theoretical,


                                 14
United States v. New, No. 99-0640/AR


situation.    It is an area in which a fresh review and possible

modification of the guidance in the Manual could be most

helpful.   To the extent that this guidance would involve

procedural matters, the President has the authority to establish

authoritative rules in the Manual under Article 36, UCMJ, 10 USC

§ 836.   To the extent that such guidance would involve

interpretation of substantive offenses, it would be binding to

the extent that it provided rights greater than those available

under the statute.   In any case, such guidance would be given

considerable deference.

     Although the temptation often is great -- with good

justification -- to allow the law to develop through the process

of litigating specific cases, this is an area in which many

weighty questions affecting the fundamental rights and

obligations of servicemembers remain unanswered.   In that

context, a serious effort to address the questions concerning

the process of adjudicating the legality of orders would appear

to be in the best interest of our Nation and our men and women

in uniform.




                                 15
United States v. New, 99-0640/AR



      SULLIVAN, Judge (concurring in the result):



                                 INDEX



I     Overview                                      2

II    The Political-Question Doctrine               5
      Resolves All Claims But One

III   General View of the Case                      7

IV    General View of the Law                       9

V     Trial                                         12

VI    Lawfulness of Order As Element                16


VII   Lawfulness of Order is Not an Interlocutory   21
      Question of Law

VIII Error under Gaudin                             25


IX    Harmless Error under Neder                    33

X     Conclusion                                    37
United States v. New, 99-0640/AR



                                  I
                              Overview

     Thousands of military orders are given each day in our armed

forces as they have been given throughout the history of our

great country.   Article 92(2), Uniform Code of Military Justice,

10 USC § 892, legislatively reflects the traditional Anglo-

American view that only the disobedience of “lawful” orders is

prohibited.   See, e.g., Articles 90(2), 91(2), and 92(1), UCMJ,

10 USC §§ 890(2), 891(2), and 892(1), respectively.     Today, the

majority characterizes the lawfulness of an order as mere

“surplusage” and judicially eliminates it as an essential element

of a disobedience offense.    ___ MJ at (23 and n.7).   I strongly

disagree with this radical departure from our political, legal,

and military tradition.    See Unger v. Ziemniak, 27 MJ 349, 358

(CMA 1989).


     The instant case is ultimately about the process due an

American servicemember on trial for the crime of disobedience of

a lawful order, i.e., how the lawfulness of the disobeyed order

is to be determined at a court-martial and whether that procedure

is constitutional.   See generally Weiss v. United States, 510

U.S. 163, 176-81 (1994).    Today, the majority opinion holds that

the lawfulness of an order was properly decided as “a question of

law” by the military judge in this case and cites Article 51(b),

UCMJ, 10 USC § 851(b).    I view the lawfulness of an order in a

disobedience case as an element of that offense which in


                                   2
United States v. New, 99-0640/AR


appellant’s case presented a justiciable mixed question of fact

and law that the members of his court-martial should have

decided.    See Article 51(c) and United States v. Gaudin, 515 U.S.

506, 522-23 (1995) (elements of a criminal offense which are

mixed questions of fact and law must be determined by the jury

members).


     Finally, modern military legal practice has long provided a

procedure for determining the lawfulness of an order in

disobedience cases.   See para. 3-16-3 n.3, Military Judges’

Benchbook (Department of the Army Pamphlet 27-9 (01 April 2001)

and (30 Sept. 1996)); see also paras. 3-14-2 n.4; 3-15-2 n.3; 3-

16-1, n.3; and 3-16-2 n.4, Benchbook, supra (1996 & 2001 eds.).

It is well established that the military judge determines the

lawfulness of an order and so instructs the members if no

question of fact is raised pertaining to this question.      See

Unger v. Ziemniak, supra at 359.       However, if there are questions

of fact raised pertaining to the lawfulness of the order

violated, the members of the court-martial are required to

determine lawfulness as a mixed question of fact and law.      Id.

See United States v. Robinson, 6 USCMA 347, 356, 20 CMR 63, 72

(1955); United States v. Zachery, 6 CMR 833, 837 (AFBR 1952)

(factual questions concerning legality of order to be decided by

members).   Today, the majority disregards this long-existing

military practice and broadly creates a new rule that the

military judge finally decides the lawfulness of an order in all


                                   3
United States v. New, 99-0640/AR


cases prosecuted under Article 92.     But see United States v.

Ornelas, 2 USCMA 96, 99-101, 6 CMR 96, 99-101 (1952) and Article

39(a)(1) and (2), UCMJ, 10 USC § 839(a)(1) & (2); see generally

C. Wright, Federal Practice and Procedure:    Criminal 3d § 194 at

366-67 (1999) (pretrial motion raising defenses and objections

which implicate trial of general issue should only be decided by

jury).   I must disagree with this additional departure from

established military practice and its application to appellant’s

case where I conclude questions of fact were raised concerning

the lawfulness of the order violated.    See generally United

States v. Scheffer, 523 U.S. 303 (1998); see also United States

v. Tualla, 52 MJ 228, 231 (2000) (“[a]dhering to precedent is

usually the wise policy” (internal quotation marks omitted)).


     The majority’s unsettling approach to all these questions is

completely unnecessary to resolve appellant’s case.    As explained

below, appellant had a single justiciable legal claim against his

commander’s order which was based on a service uniform

regulation.   The evidence in this case, however, overwhelmingly

established that this order did not violate that Army uniform

regulation and was otherwise lawful.    See Neder v. United States,

527 U.S. 1 (1999); see also Johnson v. United States, 520 U.S.

461, 470 (1997).




                                   4
United States v. New, 99-0640/AR


                                  II
              The Political-Question Doctrine Resolves
                  All of Appellant’s Claims But One

     My separate opinion in this case is expressly limited to the

single claim of appellant that the disobeyed order was unlawful

because it violated a U.S. Army Uniform Regulation under the

facts of his case.   This particular claim is the only claim that

raised a contested question of fact.     Appellant made other legal

claims that the order to wear certain United Nations (UN)

accoutrements on his United States Army uniform was unlawful.     In

these other claims, he particularly argued that the order was

unlawful based on the constitutional prohibition against

involuntary servitude (Amend. XIII), the UN Participation Act,

and his enlistment contract. (R. 423)     These arguments involved

no real factual disputes and pertained to the legality of his

deployment order to Macedonia as part of the UN Peacekeeping

Force.    See also United States v. Lenox, 21 USCMA 314, 45 CMR 88

(1972).


     It is my view that these particular legal claims (challenges

to deployment) are not justiciable issues at a court-martial in a

trial for disobedience of orders.      See United States v. Johnson,

17 USCMA 246, 38 CMR 44 (1967).    In this regard, I agree with

Judge Effron and Senior Judge Everett that these legal arguments

were properly rejected by the military judge.     The disposition of

these claims under the political-question doctrine was a pure

question of law for the military judge alone (see United States


                                   5
United States v. New, 99-0640/AR


v. Austin, 27 MJ 227, 230, 234 (CMA 1988); United States v.

Phillips, 18 USCMA 230, 234, 39 CMR 230, 234 (1969)) and did not

legally violate appellant’s right to a decision by the

factfinders on all the elements of a crime.    See United States v.

Brown, 50 MJ 262, 265 (1999); see also United States v. Bridges,

12 USCMA 96, 99-100, 30 CMR 96, 99-100 (1961) (decision on what

law to apply to determine whether element of crime established is

solely question of law for president of court-martial).    See

generally Article 51(b), UCMJ, 10 USC § 851(b) (1968) (adding

“questions of law” authorization for military judge).


     The political-question doctrine, however, cannot be used to

resolve appellant’s additional claim that the order in question

violated the U.S. Army Uniform Regulation.    This claim did not

require a ruling on the legality of the deployment and raised

justiciable questions of fact pertaining to an element of the

offense that needed to go to the military jury for resolution.

See United States v. Robinson, supra at 353-56, 20 CMR at 69-72.

See generally Article 51(c) and United States v. Gaudin, supra.

On this point I join the wise and thoughtful opinion of Senior

Judge (former Chief Judge) Everett.    His resolution of this

particular issue is consistent with my view of this issue.




                                   6
United States v. New, 99-0640/AR


                                   III
                        General View of the Case

     This is the case of Specialist Michael New, an American

soldier in Germany, who was ordered by his U.S. Army superiors to

put on a United Nations blue beret and UN insignia on his uniform
                                                             1
when his unit was alerted for deployment to Macedonia.           He

refused this order and was ordered to stand trial for that

disobedience at a court-martial.        Specialist New chose a trial by

a court-martial panel of members [hereinafter called a “military
          2
jury”].


1
   Although this case involves a uniform order, the case is far
from being simple. Justice Oliver Wendell Holmes, Jr., once
said:

                   Great cases like hard cases make bad
              law. For great cases are called great,
              not by reason of their real importance in
              shaping the law of the future, but because
              of some accident of immediate overwhelming
              interest which appeals to the feelings and
              distorts the judgment. These immediate
              interests exercise a kind of hydraulic
              pressure which makes what previously was
              clear seem doubtful, and before which even
              well settled principles of law will bend.

Northern Securities Company v. United States, 193 U.S. 197, 400-
01 (1904) (Holmes, J., dissenting). The present case may be a
great case, but we must be mindful not to bend the cherished
principle that properly contested elements of a crime are to be
decided by the jury whether it is a civilian or a military jury.
2
   A military accused does not have a right to a trial by jury of
his peers as provided in the Sixth Amendment. He does have a
right to a trial by his military superiors (see Article 25(d)(1),
UCMJ, 10 USC § 825(d)(1)) who are selected by the convening
authority (see Article 25(d)(2)). I have suggested that the
Uniform Code of Military Justice be amended to provide for random
selection of members. See United States v. Roland, 50 MJ 66, 70
(1999) (Sullivan, J., concurring in the result).


                                    7
United States v. New, 99-0640/AR



     At the court-martial of Specialist New, in order to

successfully prosecute him, the Government basically needed to

prove three facts:


          1. that Specialist New received and
          understood the order to put on the UN
          Beret and UN insignia;

          2. that the order was lawful; and

          3. that Specialist New disobeyed the
          order.


     At trial Specialist New did not dispute that the order was

given, that he understood it or that he disobeyed it.   However he

made clear that his intended defense at trial was that the order

was unlawful for several different reasons.   Thus, his guilt or

innocence at trial was to turn largely on the determination by

the “military jury” whether the order he disobeyed was lawful or




     Nevertheless, court-martial panel members in a functional
sense are commonly referred to as a military jury. See F.
Gilligan and F. Lederer, 2 Court-Martial Procedure § 15-11.00 at
3-4 (1999) (“As a consequence, as long as a military judge is
present, court members are merely military jurors lacking any
powers that would be considered unique in the civilian world.”
(Footnote omitted; emphasis added); D. Schlueter, Military
Criminal Justice: Practice and Procedure § 15-2(e) at 635 (5th
ed. 1999) (“The court members comprise the military’s counterpart
of the civilian jury.”); H. Moyer, Justice and the Military § 2-
602 at 529 (1972) (“As with civilian juries, military court
members vote on the findings of guilty or innocence.”). This
Court has also held that certain due process requirements
pertaining to civilian juries are applicable to military courts
of members even though the military accused has no Sixth
Amendment right to trial by jury. See United States v. Witham,
47 MJ 297, 300-03 (1997); United States v. Tulloch, 47 MJ 283,
285 (1997).


                                   8
United States v. New, 99-0640/AR


unlawful.    As shall be discussed in detail below, his judge

instructed the “military jury” before they deliberated that the

order was lawful.    Thus, the issue of Specialist New’s guilt was,

in effect, determined by the judge in his instructions, rather

than by the “military jury” in its deliberations.    In my view,

this was an error under established military procedure and as a

matter of constitutional due process.


                                  IV
                       General View of the Law

     As a cadet at West Point3 and as a soldier, I was taught

that (i) all lawful orders in the U.S. Army were to be obeyed;

and (ii) however, if you believed that an order was unlawful, you

could disobey it but you would risk a court-martial where a

“military jury” would either validate or reject your decision to

disobey.    See J. Snedeker, Military Justice under the Uniform

Code 593, 599 (1953); W. Winthrop, Military Law and Precedents

575-76 (2d ed. 1920 Reprint); W. De Hart, Observations on




3
   Every cadet takes the following oath when he enters the United
States Military Academy at West Point, New York:

     I, (full name), do solemnly swear that I will support the
Constitution of the United States, and bear true allegiance to
the National Government; that I will maintain and defend the
sovereignty of the United States, paramount to any and all
allegiance, sovereignty, or fealty I may owe to any State or
country whatsoever; and that I will at all times obey the legal
orders of my superior officers, and the Uniform Code of Military
Justice.” 10 USC § 4346 (emphasis added).




                                   9
United States v. New, 99-0640/AR


Military Law and the Constitution and Practice of Courts-Martial,

165-66 (1846).


     Colonel Winthrop stated the following regarding a soldier’s

decision to disobey an order he thought was unlawful:


            “Lawful command.” The word “lawful”
          is indeed surplusage, and would have
          been implied from the word “command”
          alone, but, being used, it goes to point
          the conclusion affirmed by all the
          authorities that a command not lawful
          may be disobeyed, no matter from what
          source it proceeds. But to justify an
          inferior in disobeying an order as
          illegal, the case must be an extreme one
          and the illegality not doubtful. The
          order must be clearly repugnant to some
          specific statute, to the law or usage of
          the military service, or to the general
          law of the land. The unlawfulness of
          the command must be a fact, and, in view
          of the general presumption of law in
          favor of the authority of military
          orders emanating from official
          superiors, the onus of establishing this
          fact will, in all cases-except where the
          order is palpably illegal upon its face-
          devolve upon the defence, and clear and
          convincing evidence will be required to
          rebut the presumption.

            The legality of the order may depend
          upon the period, whether one of peace or
          war, (or other emergency,) at which it
          is issued. An order which would be
          unlawful in peace or in the absence of
          any public exigency, may be perfectly
          lawful in war as being justified by the
          usages of civilized warfare. Thus an
          order for the seizure of citizens’
          property for the subsistence or
          transportation of the troops, the
          construction of defences, &c., or for
          its destruction to facilitate the
          operations of the army in the field, or


                               10
United States v. New, 99-0640/AR


          to prevent its falling into the hands of
          the enemy, would be not only authorized,
          but to disobey it would be a grave
          military crime. But, in general, in
          time of peace an order similarly in
          disregard or private right would be
          repugnant to the first principles of
          law, and to fail to obey it would
          constitute no violation of the present
          Article.

            But while a military inferior may be
          justified in not obeying an order as
          being unlawful, he will always assume to
          do so on his own personal responsibility
          and at his own risk. Even where there
          may seem to be ample warrant for his
          act, he will, in justifying, commonly be
          at a very considerable disadvantage, the
          presumption being, as a rule, in favor
          of the legality of the order as an
          executive mandate, and the facts of the
          case and reasons for the action being
          often unknown in part at least to
          himself and in the possession only of
          the superior. In the great majority of
          cases therefore it is found both safer
          and wiser for the inferior, instead of
          resisting an apparently arbitrary
          authority, to accept the alternative or
          obeying even to his own detriment, thus
          also placing himself in the most
          favorable position for obtaining redress
          in the future. On other hand, should
          injury to a third person, or damage to
          the United States, result from the
          execution of an order by a subordinate,
          the plea that he acted simply in
          obedience tot he mandate of his proper
          superior will be favored at military
          law, and a court-martial will almost
          invariably justify and protect an
          accused who has been exposed to
          prosecution by reason of his
          unquestioning fidelity to duty, holding
          the superior alone responsible. How far
          he will be protected by the civil
          tribunals, if sued or prosecuted on
          account of a cause of action or offence



                               11
United States v. New, 99-0640/AR


            involved in his proceeding, will be
            considered [elsewhere].

Winthrop, supra at 575-76 (most emphasis added; footnotes

omitted).


     It is also my view today that a military accused has a codal

and constitutional right to have the members of his court-

martial, not the military judge, determine whether the Government

has proved, beyond a reasonable doubt, each and every element of

the offense of which he is charged.    See Article 51(c), UCMJ, 10

USC § 851(c), and United States v. Glover, 50 MJ 476 (1999);

United States v. Brown, 50 MJ at 265; United States v. Mance, 26

MJ 244, 254 (CMA 1988) (duty of military judge to instruct

members on all elements of the offense).      See also United States

v. Gaudin, 515 U.S. 506; see generally Weiss v. United States,

510 U.S. at 177-78 (recognizing Fifth Amendment due process

standard for measuring court-martial procedures).


                                  V
                          Appellant’s Trial

    Appellant was charged and found guilty of failure to obey a

lawful order in violation of Article 92(2), UCMJ.     The

specification he was found guilty of states:


            SPECIFICATION: In that Specialist Michael
            G. New, US Army, having knowledge of a
            lawful order issued by LTC Stephen R.
            Layfield on 2 OCT 95 and CPT Roger H.
            Palmateer on 4 OCT 95, to wear the
            prescribed uniform for the deployment to
            Macedonia, i.e., U.N. patches and cap, an


                                 12
United States v. New, 99-0640/AR


          order which it was his duty to obey, did,
          at or near Schweinfurt, Germany, on or
          about 10 OCT 95, fail to obey the same.

(Emphasis added.)


    In a pretrial session under Article 39(a), UCMJ, 10 USC §

839(a), the military judge addressed a series of government and

defense motions, including motions to dismiss which he denied.

Then, the judge held as a matter of law that the uniform order

given to appellant was lawful and that the members of the jury

would be so instructed with regard to their deliberations on his

guilt of disobeying that order. (R. 285, 376)   Defense counsel

strongly objected to both these rulings. (R. 423-433, 448-49)


    Appellant had raised several claims that the order to attach

UN accoutrements (i.e., patches and cap) to his U.S. Army uniform

was unlawful.   As noted earlier, these arguments pertain to the

legality of appellant’s deployment and are not justiciable issues

under our case law.   See United States v. Johnson, 17 USCMA 246,

38 CMR 44 (1967).   I agree with Judge Effron and Senior Judge

Everett that appellant’s claims that the order was illegal on

these bases were properly rejected by the judge as a matter of

law (“political-question doctrine”).   See United States v.

Johnson, supra.


    A remaining argument, however, that the defense asserted at

trial was that the order in question, i.e., to wear the UN

patches and cap, violated a Department of the Army Regulation,


                                13
United States v. New, 99-0640/AR


i.e., Army Regulation (AR) 670-1, Wear and Appearance of Army

Uniforms and Insignia (1 September 1992).   It pointed to

paragraph 3-4, which stated:


          Insignia and accouterments authorized for
          wear with these uniforms are * * * (k)
          Foreign badges, distinctive unit insignia,
          and regiment distinctive insignia will not
          be worn on these uniforms.

(Emphasis added.)


    Both the military judge and the Court of Criminal Appeals

found that this regulation did not invalidate the disobeyed order

in this case because paragraphs 1-18 and 2-6d of the same

regulation permitted these uniform additions.


    Paragraph 1-18 provides:


          Wearing of organizational protective or
          reflective clothing.

          Commanders may require the wear of
          organizational protective or reflective
          items or other occupational health or
          safety equipment with the uniform when
          safety considerations make it appropriate.
          These items will be furnished at no cost
          to the individual.

(Emphasis added.)


     Paragraph 2-6d provides:


          The commander in charge of units of
          maneuver may prescribe the uniform to be
          worn within the maneuver area.

(Emphasis added.)


                                14
United States v. New, 99-0640/AR


Both the judge at trial and the Court of Criminal Appeals found

as fact that the disobeyed order was issued for “safety” purposes

and while on “maneuver.”    (R. 426, 428) (R. 443-44 & 449)


     The military judge then made a ruling that the order given

to appellant was a lawful order.      See R. 431.   Later, prior to

trial counsel’s and defense counsel's arguments on findings, the

military judge gave the members the following instructions on

findings:


            In order to find the accused guilty of
            this [disobedience] offense, you must be
            convinced by legal and competent
            evidence beyond a reasonable doubt of
            the following elements: One, that a
            member of the armed forces, namely,
            Lieutenant Colonel Stephen R. Layfield,
            on 2 October 1995; and Captain Roger H.
            Palmateer, on 4 October 1995, issued a
            certain lawful order to wear the
            prescribed uniform for the deployment to
            Macedonia, i.e., UN patches and cap;

                              * * *

            Members of the court, as a matter of law,
            the order in this case, as described in
            the specification--if, in fact, there was
            such an order--was a lawful order.

                              * * *

            You should consider, along with all the
            evidence in this case, the following: I
            previously instructed you that, as a
            matter of law, the order in this case,
            as described in the specification--if,
            in fact, there was such an order--was a
            lawful order. I further instruct you at
            this time that, as a matter of law, the
            accused would not have violated AR 670-1
            by obeying the order in this case as


                                 15
United States v. New, 99-0640/AR


          described in the specification, if, in
          fact, there was such an order.

(R. 782-84 (emphasis added)).


     After the arguments on findings, the military judge again

instructed the members on the findings in the following manner:


          I have judicially noticed that AR 670-1
          is a lawful regulation [and] that the
          accused had a duty to obey that
          regulation.

                            * * *

          You should consider, along with all the
          evidence in this case, the following:
          I previously instructed you that, as a
          matter of law, the order in this case,
          as described in the specification--if,
          in fact, there was such an order--was a
          lawful order. I further instruct you at
          this time that, as a matter of law, the
          accused would not have violated AR 670-1
          by obeying the order in this case, as
          described in the specification, if, in
          fact, there was such an order.

(R. 829-30 (emphasis added)).


                                 VI
                        Lawfulness Of Order
                             As Element
                           Of The Offense

     The first question I will particularly address is whether

the lawfulness of the order allegedly violated in this case is an

element of the offense of disobedience of an order under Article

92(2), UCMJ.   This criminal statute states:


               § 892. Art. 92.      Failure to obey
          order or regulation


                                 16
United States v. New, 99-0640/AR



                 Any person subject to this chapter
          who—

          (1) violates or fails to obey any lawful
          general order or regulation;

          (2) having knowledge of any other lawful
          order issued by a member of the armed
          forces, which it is his duty to obey,
          fails to obey the order; or

          (3) is derelict in the performance of his
          duties;

          shall be punished as a court-martial may
          direct.

(Emphasis added.)


     I conclude for several reasons that the lawfulness of the

order allegedly violated in this case (the order to wear UN

patches and cap) was an element of the charged offense and,

accordingly, under Article 51(c), UCMJ, and United States v.

Gaudin, 515 U.S. at 522-23, should have been presented to the
                    4
“military jury.”




4
   The majority’s citations to Cox v. United States, 332 U.S.
442, 453 (1947), and Yakus v. United States, 321 U.S. 414 (1944),
do not support its contrary position in this case. In Cox, the
legality of the classification which was alleged to have violated
the applicable regulation was not an element of the charged
criminal offense. In Yakus, Congress expressly provided that a
person could be prosecuted for violating certain regulations or
regulatory decisions without regard to the validity of such a
regulation unless the accused previously challenged them in an
appropriate civil proceeding or exhausted his administrative
remedies. Cf. Article 96, UCMJ, 10 USC § 896 (prohibiting
releasing prisoner without authority “whether or not the prisoner
was committed in strict compliance with law.”).


                                 17
United States v. New, 99-0640/AR


     First, I note that Article 92, UCMJ, as well as other codal

provisions noted above, expressly prohibit failure to obey a

“lawful” order, language recognizing the historical and political

importance of requiring servicemembers to obey only lawful

orders.   See G. Davis, A Treatise on the Military Law of the

United States 378-82 (1913 3d ed. rev.); C. Clode, The

Administration of Justice Under Military and Martial Law 30-31

(2nd ed. 1874); Winthrop, Military Law and Precedents 575 (2nd

ed. 1920 Reprint).   See generally United States v. Gentle, 16

USCMA 437, 441, 37 CMR 57, 61 (1966); United States v.

Milldebrandt, 8 USCMA 635, 639, 25 CMR 139, 143 (1958) (Quinn,

C.J., concurring in the result) (American servicemembers “are

neither puppets nor robots”).


     Second, I note that the President in the Manual for Courts-

Martial, United States, has repeatedly identified the lawfulness
                                               5
of the order as an element of this offense.        See paras.

16b(2)(a) and 16c(1)(c), Part IV, Manual for Courts-Martial,

United States (1995 ed.) (“That a member of the armed forces

issued a certain lawful order”).     See also para. 16(b)(2)(a),


5
  This was a change from previous Army Manuals which did not
expressly describe lawfulness as an element of the offense of
disobedience of orders but simply noted commands can be presumed
lawful in its explanation of the elements of this offense.
Paras. 152b and 153b, Manual for Courts-Martial, U.S. Army, 1949;
paras. 134b and 135b, Manual for Courts-Martial, U.S. Army, 1928;
paras. 415 and 416, Manual for Courts-Martial, U.S. Army, 1917.
See United States v. Trani, 1 USCMA 293, 295, 3 CMR 27, 29 (1952)
(discussing Article of War (AW) 64 and paragraph 152b, Manual for
Courts-Martial, U.S. Army, 1949.


                                18
United States v. New, 99-0640/AR


Manual, supra (1994 ed.); para. 16a(1) and c(1)(C), Manual, supra

(1984 ed.); para. 171b, Manual for Courts-Martial, United States,

1969 (Revised Edition); para. 171b, Manual for Courts-Martial,

United States, 1951.


     Third, this Court, in an opinion authored by then-Chief

Judge Everett, unanimously stated that “[i]n a prosecution for

disobedience, lawfulness of the command is an element of the

offense.”    Unger v. Ziemniak, 27 MJ 349, 358 (1989).   See

Articles 90(2), 91(2), and 92(1) and (2), UCMJ; United States v.

Martin, 1 USCMA 674, 676, 5 CMR 102, 104 (1952); United States v.

Young, 1 MJ 433, 437 (CMA 1976).      See United States v. Trani, 1

USCMA 293, 295, 3 CMR 27, 29 (1952); see also United States v.

Hill, 5 CMR 665, 669 (AFBR 1953) (presumption of lawfulness in

Manual is “tantamount to saying that the lawfulness of the

regulation was an element of the offense”).


     Fourth, military law commentators over many years have

consistently stated that lawfulness of an order in disobedience

case is an essential element of this offense or those related

thereto.    See J. Snedeker, Military Justice under the Uniform

Code §§ 2902-03 at 593-94, 597-99; Davis, supra at 380-81; cf.

Winthrop, supra at 575-76 (suggesting it may be a statutory

defense).


     Finally, the majority opinion asserts that the lawfulness

language in Article 92(2) is mere “surplusage” and that the


                                 19
United States v. New, 99-0640/AR


word “lawful” simply reinforces the nature of the order without
                                                                    6
establishing a separate and distinct element of the offense.

___ MJ at (23) and n.7.   For this proposition it cites Winthrop,

supra at 575, who there states:


          The word “lawful” [in AW 21] is indeed
          surplusage, and would have been implied
          from the word “command” alone, but, being
          used, it goes to point the conclusion
          affirmed by all the authorities that a
          command not lawful may be disobeyed, no
          matter from what source it proceeds.

(Most emphasis added (footnote omitted.))


     This quote from the “Blackstone of Military Law” (see Reid

v. Covert, 354 U.S. 1, 19 n.38 (1957) (plurality opinion))

provides relevant background for interpreting Article 92(2) and

determining its essential elements.      See Staples v. United

States, 511 U.S. 600, 619 (1994).      Winthrop clearly recognized

that if the statutory word “lawful” is used in the disobedience

context, it has meaning in terms of the type of military order

whose disobedience is punishable at a court-martial.      It also

shows that Congress could have enacted a statute prohibiting

disobedience of orders without regard for the order’s lawfulness

but chose not to do so.   See Article 97, UCMJ, 10 USC § 897

(”except as provided by law”); cf. Article 95, UCMJ, 10 USC § 895


6
   The majority cannot have it both ways. If the lawfulness of
an order is surplusage and implied in the element of an order,
the members would still be required to decide lawfulness as part
of their findings on the order element of the offense. See para.
16b(2)(a), Part IV, Manual, supra (1995 ed.).


                                  20
United States v. New, 99-0640/AR


(arrest, custody, confinement); Article 96 (“whether or not the

prisoner was committed in strict compliance with law”).       Finally,

his quotation clearly reflects the traditional Anglo-American

view that a servicemember may not be punished at a court-martial

for disobeying all orders of whatever mature issued by a

competent superior authority.    In these circumstances, I disagree

with my fellow Judges that Congress did not intend the lawfulness

of the order violated to be an essential element of this criminal

offense.   See Unger v. Ziemniak, supra at 358.


                                VII
                      Lawfulness of Order is
            Not an Interlocutory Question or Question
                              Of Law

     The Court of Criminal Appeals held that the question whether

a disobeyed order was lawful in this disobedience prosecution was

“an interlocutory question.”    50 MJ 729, 738 (1999).   An

interlocutory question, however, is generally understood to be

one that “does not bear on the ultimate merits of the case.”      See

United States v. Ornelas, 2 USCMA at 100, 6 CMR at 100.

Moreover, we have expressly held that a question is not

interlocutory where it is “concerned with disputed questions of

fact regarding a matter which would bar or be a complete defense

to the prosecution.”   United States v. Berry, 6 USCMA 609, 613,

20 CMR 325, 329 (1956).   Since a servicemember may not legally be

found guilty of violating an unlawful order (see Winthrop, supra,

and Unger v. Zeimniak, supra) and questions of fact were raised



                                 21
United States v. New, 99-0640/AR


in this case concerning the lawfulness of the order, it cannot

logically or legally be considered an interlocutory question

within the meaning of Article 51(b).


     The majority of this Court further contends the lawfulness

of an order is a “question of law” which must be decided by the

military judge.   See United States v. Carson, 15 USCMA 407, 408,

35 CMR 379, 380 (1965).7   We have generally held that a question

of law is one where no facts are at issue and only a “legal

effect” need be determined.   United States v. Ware, 1 MJ 282, 284

n.4 (1976); United States v. Bielecki, 21 USCMA 450, 454, 45 CMR

224, 228 (1972); see United States v. Boehm, 17 USCMA 530, 38 CMR

328 (1968).   None of those cases, however, approved judicial

determinations on elements of an offense, nor has the dicta of

this Court in Carson ever been reconciled with the decision of

the Supreme Court in United States v. Gaudin, 515 U.S. 506.     Cf.

Dennis v. United States, 341 U.S. 494, 511-15 (1951) (plurality

opinion) (holding that pretrial motion challenging

constitutionality of criminal statute on First Amendment grounds

was question of law for judge); United States v. Viefhaus, 168

F.3d 392, 396-97 (10th Cir.) (distinguishing Dennis, as not

involving element of offense), cert. denied, 527 U.S. 1040




7
   Para. 57b, Manual for Courts-Martial, United States, 1969
(Revised Edition) (no longer in effect) did say, based on Carson,
that the lawfulness of orders is “customarily” a question of law.


                                22
United States v. New, 99-0640/AR


(1999).    Moreover, there are facts at issue in this case which

had to be resolved before the lawfulness of the order under the

uniform regulation could be decided.    See United States v.

Robinson, 6 USCMA at 355, 20 CMR at 71.


     The majority’s position that the lawfulness of an order in a

disobedience prosecution is “a question of law,” not to be

decided by the members, is based on language in this Court’s

opinion in United States v. Carson, supra at 408, 38 CMR at 380.

The majority concedes this statement in Carson was dicta.      ___ MJ

at (13).   Moreover, it recognizes that the dicta in Carson is

inconsistent with subsequent pronouncements of this Court in

Unger v. Zeimniak, 27 MJ 349.   In addition, I note the Supreme

Court in Gaudin expressly rejected the notion that members of a

jury were incompetent to decide mixed questions of law and fact,

the lynchpin of the Carson dicta noted above.   See United States

v. Gaudin, supra at 521; cf. United States v. Carson, supra at

408-09, 35 CMR at 380-81.   Accordingly, Carson is not persuasive

authority for holding that the lawfulness of an order in a

disobedience prosecution is a question of law for the military

judge.


     There is another reason why I disagree with the majority’s

holding that lawfulness of an order in a disobedience prosecution

is a question of law for the military judge under Article 51(b).

Article 51(b) does not delineate what a “question of law” is for



                                 23
United States v. New, 99-0640/AR


purposes of final decision by a military judge.      Other provisions

of the Uniform Code of Military Justice, however, do indicate

Congress’ intent in this regard.       In Article 51(c), Congress

clearly recognized that members of a court-martial must decide

whether the elements of an offense are proved by the Government

beyond a reasonable doubt.   Moreover, in Article 39(a)(1) and

(2), UCMJ, 10 USC § 839(a)(1) & (2), Congress implicitly

recognized that “motions raising defenses or objections which are

[not] capable of determination without trial of the issues raised

by a plea of not guilty” are a “matter . . . appropriate for

later consideration or decision by the members of the court.”


     In this codal context, it is clear that a “question of law”

for purposes of Article 51(b) does not include elements of an

offense which raise mixed questions of fact and law (e.g., United

States v. Gaudin, supra) or pretrial motions which raise

questions of fact “intermeshed with questions on the merits of a

case” (United States v. Medina, 90 F.3d 459, 463-64 (11th Cir.

1996); see United States v. Grimmett, 150 F.3d 958, 962 (8th Cir.

1998)).   To the extent that dicta in Carson suggests the

contrary, it should be ignored.    Accordingly, whether lawfulness

of an order is an element of an offense or simply “an important

issue” or an indiscrete element of the offense as suggested by

the majority, it was not “a question of law” to be finally ruled

on by the military judge under Article 51(b).      See also United

States v. Wallace, 2 USCMA 595, 598-99, 10 CMR 93, 96-97


                                  24
United States v. New, 99-0640/AR


(1953)(similarly sending to jury question of knowledge of order

under Article 90(2)).


     In my view, Article 51(c) requires the military judge to

instruct the members on the law pertaining to the elements of a

charged offense.     See United States v. Brown, 50 MJ at 265.   The

content of these instructions are questions of law for the

military judge.    United States v. Bridges, 12 USCMA at 99-100, 30

CMR at 99-100; see generally Article 51(b), UCMJ, and 114 Cong.

Rec. 29401 (1968).    The ultimate decision, however, on an element

of the crime which is a mixed question of fact and law is a

matter for the members’ determination under Article 51(c), and

Gaudin.


                               VIII
                           Error Under
          United States v. Gaudin, 515 U.S. 506 (1995)

     Having concluded that the lawfulness of the order violated

is an element of the offense of disobedience of orders under

Article 92(2), it is necessary to determine whether the military

judge erred in withdrawing that question from the members’

consideration.    The Supreme Court in Gaudin addressed a similar

question where a federal district court judge refused to submit

to the jury the question of the materiality of a fact contained

in a false statement allegedly made in violation of 10 USC §

1001. 515 U.S. at 507.    The question before the Supreme Court was




                                  25
United States v. New, 99-0640/AR


whether the accused “was entitled to have this element of the

crime determined by the jury.”     515 U.S. at 509.


     In Gaudin, a case remarkably similar in concept to the

instant case, a real estate broker was charged with making

several false material statements on different federal loan

documents in violation of 18 USC § 1001.    Two counts charged him

with “knowingly inflating the appraised value of the mortgaged

property” and one count with falsely stating that the buyer paid

some closing costs.   The prosecution offered testimony of several

government officials “who explained why the requested

information” on the form “was important.”    The Supreme Court

noted what happened next:


            At the close of the evidence, the
          United States District Court for the
          District of Montana instructed the jury
          that, to convict respondent, the
          Government was required to prove, inter
          alia, that the alleged false statements
          were material to the activities and
          decisions of HUD. But, the court
          further instructed, “[t]he issue of
          materiality . . . is not submitted to
          you for your decision but rather is a
          matter for the decision of the court.
          You are instructed that the statements
          charged in the indictment are material
          statements.” App. 24, 29. The jury
          convicted respondent of the § 1001
          charges.

515 U.S. at 508-09 (emphasis added).    The Ninth Circuit, sitting

in panel and later en banc, reversed because case law required

that the issue of materiality in a § 1001 prosecution be decided



                                 26
United States v. New, 99-0640/AR


by the jury.   The Supreme Court affirmed the Ninth Circuit by 9-0

vote.


     The Supreme Court in Gaudin recognized the basic

constitutional right of a criminal defendant “to have a jury

determine, beyond a reasonable doubt, his guilt of every element

of the crime with which he is charged.”   515 U.S. at 522-23

(emphasis added).   It traced this right directly to the Fifth

Amendment of the United States Constitution.   It said:


               The Fifth Amendment to the United
          States Constitution guarantees that no one
          will be deprived of liberty without “due
          process of law”; and the Sixth, that “[i]n
          all criminal prosecutions, the accused
          shall enjoy the right to a speedy and
          public trial, by an impartial jury.” We
          have held that these provisions require
          criminal convictions to rest upon a jury
          determination that the defendant is guilty
          of every element of the crime with which
          he is charged, beyond a reasonable doubt
          Sullivan v. Louisiana, 508 U.S. 275, 277-
          278, 124 L.Ed. 2d 182, 113 S.Ct. 2078
          (1993). The right to have a jury make the
          ultimate determination of guilty has an
          impressive pedigree. Blackstone described
          “trial by jury” as requiring that “the
          truth of every accusation, whether
          preferred in the shape of indictment,
          information, or appeal, should afterwards
          be confirmed by the unanimous suffrage of
          twelve of [the defendants] equals and
          neighbors . . . .” 4 W. Blackstone,
          Commentaries on the Laws of England 343
          (1769) (emphasis added). Justice Story
          wrote that the “trial by jury” guaranteed
          by the Constitution was [**2314]
          “generally understood to mean . . . a
          trial by a jury of twelve men, impartially
          selected, who must unanimously concur in
          the guilt of the accused before a legal


                                27
United States v. New, 99-0640/AR


          conviction can be had.” 2 J. Story,
          Commentaries on the Constitution of the
          United States 541, n.2(4th ed. 1873)
          (emphasis added and deleted). This right
          was designed “to guard against a spirit of
          oppression and tyranny on the part of
          rulers,” and “was from very early times
          insisted on by our ancestors in the parent
          country, as the great bulwark of their
          civil and political liberties.” Id., at
          540-41. See also Duncan v. Louisiana, 391
          U.S. 145, 151-154, 20 L.Ed. 2d 491,
          88S.Ct. 1444 (1968) (tracing the history
          of trial by jury).

515 U.S. at 509-11 (most emphasis added; footnotes omitted).


     In Gaudin, supra, the Supreme Court ruled against the

Government’s argument that “materiality” was a legal question,

not a factual question, and therefore, should be decided by the

trial judge alone.   The majority today, however, with a familiar

echo to the losing government position in Gaudin, holds that the

lawfulness of an order is a “question of law” for the judge alone

under Article 51(b), UCMJ.8


     The Supreme Court, however, rejected this type of thinking

in Gaudin when it said:


               Other reasoning in Sinclair, [279
          U.S. 263 (1929),] not yet repudiated, we
          repudiate now. It said that the question

8
   The majority’s position in this case also cannot be squared
with numerous decisions of this Court after Carson which hold
that the question of an accused’s military status (in personam
jurisdiction) must also be submitted to the members if military
status is an element of the offense. See United States v.
McGinnis, 15 MJ 345 (1983); United States v. Marsh, 15 MJ 252
(1983); United States v. McDonagh, 14 MJ 415 (1983); United
States v. Laws, 11 MJ 475, 476 (CMA 1981) (opinion of Cook, J.).


                                28
United States v. New, 99-0640/AR


          of pertinency “may be likened to those
          concerning relevancy at the trial of
          issues in court,” which “is uniformly held
          [to be] a question of law” for the court.
          279 U.S. at 298. But how relevancy is
          treated for purposes of determining the
          admissibility of evidence says nothing
          about how relevancy should be treated when
          (like “pertinence” or “materiality”) it is
          made an element of a criminal offense. It
          is commonplace for the same mixed question
          of law and fact to be assigned to the
          court for one purpose, and to the jury for
          another. The question of probable cause
          to conduct a search, for example, is
          resolved by the judge when it arises in
          the context of a motion to suppress
          evidence obtained in the search; but by
          the jury when it is one of the elements of
          the crime of depriving a person of
          constitutional rights under color of law,
          see 18 USC §§ 241-42. Cf. United States
          v. McQueeney, 674 F.2d 109, 114 (CA1
          1982); United States v. Barker, 178 U.S.
          App. D.C. 174, 546 F.2d 940, 947 (CADC
          1976). [9]

515 U.S. at 520-21 (emphasis added).


     Admittedly, this Court’s opinion 35 years ago in United

States v. Carson, 15 USCMA at 408, 35 CMR at 380, might be viewed

as counter to Gaudin.   Carson suggests in dicta that a law

officer, not a court of members, must decide whether a disobeyed


9
   Article 51(b), UCMJ, 10 USC § 851(b), addresses the proper
procedure for handling “all questions of law and all
interlocutory questions arising during the proceedings . . . .”
Article 51(c), however, addresses the proper procedure for
handling “the elements of the offense . . . .” Avoiding a
constitutional problem (see Weiss v. United States, 510 U.S. 163,
176-81 (1994)), I would construe these provisions in accordance
with United States v. Gaudin, 515 U.S. 506 (1996), and recognize
that “[i]t is commonplace for the same mixed question of law and
fact to be assigned to the court for one purpose, and to the jury
for another.” Id. at 521.


                                29
United States v. New, 99-0640/AR


order was lawful in a disobedience-of-orders case.    However,

Carson was decided thirty years before Gaudin and its dicta rests

largely on civilian authorities overturned or limited by the

Gaudin decision.   See United States v. Ornelas, 2 USCMA at 100, 6

CMR at 100.   See also Dennis v. United States, 341 U.S. 494.

Moreover, in a subsequent case, this Court more narrowly applied

the Carson dicta to the particular situation where a law officer

construed a regulation as inapplicable as a matter of law to the

order violated.    See United States v. Phillips, 18 USCMA at 234-

35, 39 CMR at 234-35.     See also United States v. Austin, 27 MJ at

230-31.


     In any event, where a regulation is found applicable as a

matter of law to a disobeyed order but its violation is at issue,

we have held, consistent with Gaudin, that this question must be

sent to the members to resolve depending on the facts and

circumstances of a particular case.    See United States v. Smith,

21 USCMA 231, 235, 45 CMR 5, 9 (1972); United States v. Robinson,

6 USCMA at 356, 20 CMR at 72.    See also United States v. Carson,

supra at 409, 35 CMR at 381; United States v. Gray, 6 USCMA 615,

618-20, 20 CMR 331, 334-36 (1956); United States v. Phillips,

supra at 235, 39 CMR at 235; United States v. Ornelas, supra at
                     10
101, 6 CMR at 101.


10
  The majority suggests a different practice based on dicta in
United States v. Carson, 15 USCMA 407, 35 CMR 379 (1965), and its
gloss of the discussion to various Rules for Court-Martial. (___
MJ at 14-15) I disagree for several reasons. First, the


                                  30
United States v. New, 99-0640/AR



     It must be recognized that Gaudin definitively explained a

jury’s responsibility to decide all the elements of a charged

offense.   See United States v. Swindall, 107 F.3d 831, 835 (11th

Cir. 1997).   Some circuits have subsequently attempted to

distinguish Gaudin where the question withheld from the jury

constitutes a pure question of statutory construction.   See

United States v. Credit, 95 F.3d 362, 364 (5th Cir. 1996), cert.

denied, 519 U.S. 1138 (1997); United States v. Amparo, 68 F.3d

1222, 1225 (9th Cir. 1995).   However, in appellant’s case, the

military judge and the Court of Criminal Appeals found as fact

that appellant’s unit was on maneuvers and that safety conditions

arising from the deployment of appellant’s unit to Macedonia

warranted the wearing of the United Nations badges and



Military Judges’ Guide (now the Benchbook) for some 30 years has
expressly recognized and followed this approach. See para. 4-29,
Military Judges’ Guide (Dept. of the Army Pamphlet 27-9 (1969)).
Second, United States v. Carson, 15 USCMA 407, 35 CMR 379 (1965),
and paragraph 57b, Manual for Courts-Martial, United States, 1969
(Revised Edition), cited by the majority, actually recognized and
approved the Ornelas procedure. Third, although the President
promulgated paragraph 57b, 1969 Manual, supra, this provision did
not exist prior to 1969 and was omitted in the binding provisions
of all versions of the Manual starting in 1984. Fourth, the
Manual for Courts-Martial makes it quite clear that the
Discussion [see ___ MJ at (14)] is not an enforceable part of the
Manual. Para. 4, Discussion, Part I, Preamble. Finally, the
Discussion of RCM 801(e)(5) only provides that the legality of
orders may be questions of fact; it does not say who decides
these questions of fact. Accordingly, this is not a case asking
whether a certain longstanding military procedure is
constitutional as presented in Weiss v. United States, 510 U.S.
at 176-81, but instead is a case where this appellate court
institutes a new military procedure inconsistent with that
longstanding practice; see United States v. Scheffer, 523 U.S.
303 (1998).


                                 31
United States v. New, 99-0640/AR


accoutrements.   Accordingly, the post-Gaudin decisions on

elements raising pure questions of law are not relevant here.


     Even if the trial judge correctly decided appellant’s

challenge based on AR 670-1 as a pure question of law, error
                                             11
under Gaudin still occurred in this case.         The military judge

might have concluded that appellant’s regulatory challenge was

not applicable to the order disobeyed in this case (see United

States v. Phillips, supra) or that the regulation conferred no

right on appellant to disobey his commander’s order (see United

States v. Hangsleben, 8 USCMA 320, 322-23, 24 CMR 130, 132-33

(1957)).   Nevertheless, he was still required to instruct the

members that they must determine the lawfulness of the violated

order in this case in general without regard to appellant’s

legally rejected claims of unlawfulness (i.e., the general-

inference-of-lawfulness question).     See Article 51(c) and paras.

14 and 16, Part IV, Manual, supra (1995 ed.).      Error under Gaudin

occurred on this basis as well.




11
  Appellant’s additional arguments are that the UN-patches-and-
cap order violated the constitutional prohibition against
involuntary servitude (Amend. XIII), the UN Participation Act,
and his enlistment contract. These arguments pertain to the
legality of his unit’s deployment order to Macedonia as part of
the UN Peacekeeping Force, not the legality of the order to wear
the UN accoutrements in Germany prior to that deployment. See
United States v. Lenox, 21 USCMA 314, 45 CMR 88 (1972).


                                  32
United States v. New, 99-0640/AR



                                 IX
                        Harmless Error under
                      Neder v. United States,
                          527 U.S. 1 (1999)

     Having concluded that the military judge erred in removing

the question of the lawfulness of order allegedly violated in

this case from the members’ consideration, a question of

prejudice remains.   See Neder v. United States, supra at 4.    In

Neder, the Supreme Court held that a federal district court’s

refusal to submit the materiality element of offenses under the

federal tax, mail, wire, and bank-fraud statutes was subject to

harmless-error analysis.    Id. at 4.   It further held such error

as to the tax fraud was harmless in Neder’s case because based on

the whole record it concluded “beyond a reasonable doubt that the

error complained of did not contribute to the verdict obtained.”

Id. at 15.


     The Supreme Court in Neder clearly delineated the harmless-

error inquiry required for the type of error we have in the

instant case, as follows:


               We believe that where an omitted
          element is supported by uncontroverted
          evidence, this approach reaches an
          appropriate balance between “society’s
          interest in punishing the guilty [and] the
          method by which decisions of guilt are to
          be made.” Connecticut v. Johnson, 460
          U.S., at 86 (plurality opinion). The
          harmless-error doctrine, we have said,
          “recognizes the principle that the central
          purpose of a criminal trial is to decide
          the factual question of the defendant’s


                                 33
United States v. New, 99-0640/AR


          guilt or innocence, . . . . and promotes
          public respect for the criminal process by
          focusing on the underlying fairness of the
          trial.” Van Arsdall, supra, at 681. At
          the same time, we have recognized that
          trial by jury in serious criminal cases
          “was designed ‘to guard against a spirit
          of oppression and tyranny on the part of
          rulers,’ and ‘was from very early times
          insisted on by our ancestors in the parent
          country, as the great bulwark of their
          civil and political liberties.’” Gaudin,
          515 U.S., at 510-511 (quoting 2 J. Story,
          Commentaries on the Constitution of the
          United States 540-541 (4th ed. 1873)). In
          a case such as this one, where a defendant
          did not, and apparently could not, bring
          forth facts contesting the omitted
          element, answering the question whether
          the jury verdict would have been the same
          absent the error does not fundamentally
          undermine the purposes of the jury trial
          guarantee.

               Of course, safeguarding the jury
          guarantee will often require that a
          reviewing court conduct a thorough
          examination of the record. If, at the end
          of that examination, the court cannot
          conclude beyond a reasonable doubt that
          the jury verdict would have been the same
          absent the error -- for example, where the
          defendant contested the omitted element
          and raised evidence sufficient to support
          a contrary finding -- it should not find
          the error harmless.

527 U.S. at 18-19 (emphasis added).


     Turning to the present case, the Government was required to

prove to the members the essential elements of the offense of

disobedience of orders, including the lawfulness of the order to

wear the UN patches and cap.   See United States v. Gaudin, 515

U.S. 506, and Article 51(c), UCMJ.    In this regard, it normally



                                34
United States v. New, 99-0640/AR


would be entitled to rely on an inference of lawfulness provided

by the President in paragraph 14c(2)(a)(i), Part IV, 1984 Manual,

supra (1995 ed.).   However, the defense evidenced paragraph 3-

4(k), AR 670-1 (1 Sept. 1992), and paragraph 113, Part IV,

Manual, supra (1995 ed.) (wearing unauthorized insignia as

offense under Article 134).   The former provided that “[f]oreign

badges, distinctive unit insignia and regiment distinctive

insignia will not be worn on these uniforms [BDUs].”   The latter

prohibited the unauthorized wearing of “insignia, decoration,

badge, ribbon, device, or lapel button upon the accused’s

uniform,” in violation of Article 134.


     This is some evidence that appellant’s order to wear UN

badges was “patently illegal” because it “direct[ed] the

commission of a crime."   Para. 14c(2)(a)(i), Manual, supra (1995

ed.); see Article 92(1) (Disobedience of a Lawful General

Regulation).   See also United States v. White, 17 USCMA 211, 214,

38 CMR 9, 12 (1967) (evidence of violated regulation sufficient

to offset presumption confinement lawful); cf. United States v.

Wartsbaugh, 21 USCMA 535, 540, 45 CMR 309, 314 (1972) (where no

evidence order violated regulation, defense evidence insufficient

to rebut presumption of lawfulness of order).   In these

circumstances, the Manual for Courts-Martial generally provides

that the Government must prove the lawfulness of the disobeyed

order without benefit of the inference of lawfulness, and it was

required to affirmatively show that the order did not violate


                                35
United States v. New, 99-0640/AR


paragraph 3-4(k), AR 670-1; see United States v. Wartsbaugh,

supra.   As noted above, paragraph 1-18 permits a commander to

“require the wearing of organizational protective or reflective

items or other occupational health or safety equipment with the

uniform when safety considerations make it appropriate.”

(Emphasis added.)   Moreover, paragraph 2-6d provides that “[t]he

commander in charge of units on maneuver may prescribe the

uniform to be worn within the maneuver area.”   (Emphasis added.)

Accordingly, the prosecution could easily meet its burden by

proving as fact to the members that the wearing of the UN badges

and cap was otherwise authorized by an authority superior to that

issuing the U.S. Army Uniform Regulation (Department of the Army)

or that the above-cited sections of the uniform regulation

authorized the wearing of the UN accoutrements.


     As noted earlier in this opinion, it was uncontroverted in

appellant’s case that he was ordered to wear the UN badges and

cap pertinent to the official deployment of his unit to Macedonia

as part of a peacekeeping mission. (R. 581)   Its mission was “to

observe, monitor, and report along the Macedonian and Serbian

border.” (R. 581)   It was also uncontroverted that the order to

wear these badges was given by his commanders as part of the

operations plans for the mission and for safety purposes. (R.

710; 667).   Finally, although the defense asserted that there

were questions of fact to decide in this case, it proffered no

evidence that the safety conditions in Macedonia did not make the


                                36
United States v. New, 99-0640/AR


wearing of these badges appropriate or that this deployment was

not a maneuver within the meaning of AR 670-1.    See United States

v. Wartsbaugh, supra at 540, 45 CMR at 314; United States v.

Smith, 21 USCMA at 234-35, 45 CMR at 8-9.    Accordingly, there was

no real contest in this case on the lawfulness of this order in

terms of this regulation, and appellant was not prejudiced by the

failure of the military judge to instruct on this element of the

offense.   See also Johnson v. United States, 520 U.S. at 470.


                                 X
                            Conclusion

     In sum, I conclude that the military judge erred in

withdrawing from the members’ consideration an element of the

charged offense of disobedience of orders, i.e., the lawfulness

of the order disobeyed.    See generally United States v. Gaudin,

supra.   See Unger v. Ziemnick, 27 MJ at 358; United States v.

Robinson, 6 USCMA 347, 20 CMR 63.     However, this error in my view

was harmless beyond a reasonable doubt in this case.    See   Neder

v. United States, supra. There was overwhelming evidence

presented in this case, uncontroverted by the defense, that the

order to wear the UN patches and cap was lawful, i.e., it was

properly authorized, related to a military duty, and violated no

applicable service uniform regulations.    See generally para.

16c(1)(a) and (c), Part IV, Manual, supra (1995 ed.).

Accordingly, I join my colleagues in affirming appellant’s

conviction in this case.



                                 37
United States v. New, 99-0640/AR



     In reaching this legal decision, I am not unmindful of the

concept of military duty.   When one takes a broad view of the

factual context and circumstances of the order Specialist New was

given, it is clear that he had a duty to obey it.    Specialist New

was being sent in harm’s way at the command of his Nation.     The

wearing of UN insignia and headgear would only help him and his

fellow soldiers to more safely perform their peacekeeping mission

to Macedonia. New had a duty to his unit---a duty to help his

unit accomplish its mission with the least risk of loss of life.

I am reminded of a passage of Justice Oliver Wendell Holmes, Jr.,

in an address to the Harvard Graduating Class of 1895.   The

speech was entitled, “The Soldier’s Faith,” and it clearly

reflected the views of a Judge who in his youth had seen war as a

soldier:


           [I]n the midst of doubt, in the collapse
           of creeds, there is one thing I do not
           doubt . . . and that is that the faith is
           true and adorable which leads a soldier to
           throw away his life in obedience to a
           blindly accepted duty, in a cause which he
           little understands, in a plan of campaign
           of which he has little notion, under
           tactics of which he does not see the use.

           “The Soldier’s Faith,” May 30, 1895, in
           Holmes, Speeches 56,59 (1913).


     Although I have found legal error in this case, I find that

the error in the context of this case was harmless beyond a

reasonable doubt, and I see no reason to reverse this case.    See



                                38
United States v. New, 99-0640/AR


also Article 59(a), UCMJ, 10 USC § 859(a).   As the renowned

English Judge, Sir John Powell, so wisely said a long time ago:


          Let us consider the reason of the case.
          For nothing is law that is not reason. 3/

          __________
          3/ Coggs v. Bernard, 2 Lord Raymond
          Reports 909, 911 (1703).




                               39
United States v. New, No. 99-0640/AR


     EVERETT, Senior Judge (concurring in part and
concurring in the result):
     I concur fully with the principal opinion that the
defense challenge for cause was properly denied.
     In deciding whether an issue as to lawfulness of the
order should have been submitted by the military judge to
the court-martial members, my starting point is the Uniform
Code of Military Justice’s provision that in a general or
special court-martial the military judge “shall rule upon
all questions of law and all interlocutory questions arising
during the proceedings.”    See Article 51(b), 10 USC §
851(b).    An “interlocutory question” may involve fact, law,
or both.   For example, if the question concerns
admissibility of a confession made while the accused was a
suspect, the judge will decide any factual dispute as to
whether the accused was a suspect at the time of the
statement and whether a warning was given pursuant to
Article 31(b), UCMJ, 10 USC § 831(b).    If the dispute is not
whether certain language was spoken by way of warning but
whether the language sufficed to meet the requirements of
Article 31(b), the judge will decide this issue of law in
determining the “interlocutory question” of admissibility.
Finally, if the dispute concerns not only the fact of
whether any warning was given but also whether the language
used was sufficient to satisfy Article 31(b), the judge must
determine the facts and may then confront a question of law
in deciding the “interlocutory question.”    See generally
United States v. Miller, 31 MJ 247 (CMA 1990).
     Likewise, if the defense by motion to dismiss raises an
issue of sufficiency of the evidence, the military judge
will decide as an "interlocutory question" whether, if all
the prosecution evidence is believed by the court-martial
members, they could reasonably find the accused guilty
United States v. New, No. 99-0640/AR


beyond a reasonable doubt.    However, when the ultimate
question of guilt or innocence is submitted to the court-
martial members, the military judge must refrain from
deciding any issue of fact; and if he does make such a
decision, he has erred.   On the other hand, the military
judge must instruct the court-martial members as to matters
of law; and, in so doing, he may have to decide a “question
of law.”   That “question of law” is not to be presented to
the court-martial for second-guessing on their part.
     In my view the roles of the military judge and the
court-martial members correspond to those of judge and jury
in federal criminal trials.    This result –- although
probably not constitutionally required -- was intended by
Congress when the Uniform Code of Military Justice was
enacted a half century ago.    When Congress later passed the
Military Justice Act of 1968 and changed the "law officer"
title to "military judge," it made this intent even clearer.
Accordingly, I conclude that precedents like United States
v. Gaudin, 515 U.S. 506 (1995) -- which apply to trials in a
federal district court -- apply equally to courts-martial.
Therefore, in a fraud case tried in a court-martial, the
members would have the same responsibility to decide whether
the accused’s statements were “material” that civilian
jurors would have if the case were tried in a federal
district court; and the trial judge -- whether a federal
district judge or a military judge -- should give the same
instructions as to materiality.    Failure to give such
instructions in a trial by court-martial should carry the
same consequences as would the same failure of a federal
district judge in a criminal trial.
     New was convicted of disobeying an order in violation
of Article 92(2), UCMJ, 10 USC § 892(2).    The explicit

                               2
United States v. New, No. 99-0640/AR


language of Article 92(2) states that conviction requires a
“lawful order", cf. Art. 92, 10 USC § 992.    However, even
without this language, the requirement of lawfulness of the
order would be implied.    According to appellant, that
requirement was not complied with and -- at the very least
-- the court-martial members should have been instructed
thereon. The analogy drawn is to the reversible failure to
instruct on materiality in Gaudin.
     In Gaudin, a consideration of facts was necessary to
decide materiality, but in the case at bar, the facts on
which appellant chiefly relies to raise an issue as to
lawfulness are not even admissible in determining New’s
guilt or innocence.   Appellant’s defense that the order
given him was not lawful rests largely on the premise that
the order was given incident to a military operation that
was beyond the constitutional authority of the President and
Congress.   In my view, the doctrine of “political question”
precluded the court-martial –- whether the military judge or
the court members –- from considering evidence as to this
defense. According to this doctrine, certain issues are non-
justiciable because their decision by a court would unduly
hamper the Executive and Legislative Branches and violate
separation-of-powers theory.    Cf. Harisiades v. Shaughnessy,
342 U.S. 580, 589(1952).    The constitutionality of the
military operation to which appellant was assigned presents
a “political question” not suitable for a court-martial or a
district court to decide.    Moreover, I am unsure that, for
purposes of standing, New had a sufficient individualized
interest to contest in a court-martial for disobedience the
constitutionality of the military operation to which he was
assigned.   Schlesinger v. Reservists Committee to Stop the
War, 418 U.S. 208 (1974).    Since appellant’s contention as

                               3
United States v. New, No. 99-0640/AR


to unlawfulness of the order sought to present an issue that
could not properly be considered by the court-martial, it
required no instruction by the military judge to the court-
martial members -- just as no jury instruction as to
lawfulness of the order would have been required if
lawfulness of the order had been at issue in a federal
criminal trial.
     In other contexts an entirely different approach may be
required.   For example, if no political question exists and
the accused has standing to raise a pure question of law,
the military judge will need to decide that question but
will have no reason to submit that question to the court-
martial members.   For example, if the question is whether an
order was given pursuant to a statute which violated the
Constitution, this “question of law” will be decided by the
military judge without instructing the members to consider
the constitutionality of the statute.   Such a question is
quite unlike the issue of materiality in the Gaudin case, as
to which the Supreme Court held that the trial judge should
have instructed the jurors.
     On the other hand, in Unger v. Ziemniak, 27 MJ 439 (CMA
1989), the Court recognized that as to disobedience of an
order there may be not only a legal issue for final
determination by the military judge, but also a factual
issue to be decided by the court-martial members under
proper instructions.   The question of law for the judge
concerned whether, under any circumstances, an officer could
be ordered to provide a urine specimen to an enlisted person
to be tested for drugs.   The factual determination –- to be
made by the court-martial members –- concerned whether the
order given the accused had required that her urine specimen



                              4
United States v. New, No. 99-0640/AR


be provided under degrading and humiliating conditions.*
Id. at 359.
      I can conceive of other situations in which the issue
of lawfulness of an order should be submitted to the court-
martial members under proper instructions.          For example, if
an order was lawful only if it called for performance within
a specific geographic area and during a specific time
period, the court-martial members must decide the facts as
to that time and place.       What if the questioned order was
given by company commander Captain David to his subordinate,
Sergeant Uriah, who disobeyed it because he believed that
David was trying to get him killed and steal his wife
Bathsheba?    2 Samuel 11 and 12.      In that case, the intent of
David might present a question of fact to be determined by
the court-martial members under proper instructions.
      In addition to relying on the alleged
unconstitutionality of the military operation in which
appellant New was ordered to deploy, the defense also claims
that a factual question was raised as to the existence of
safety considerations for the orders.         If a question of fact
as to safety considerations was raised by the evidence
concerning lawfulness of the contested order, this question
would be for the court-martial members to decide under
proper instructions.      However, even a failure to instruct on
an element of an offense is subject to harmless error
analysis under some circumstances.         Cf. Neder v. United
States, 527 U.S. 1 (1999).       In this case, I conclude that if
there was any question of fact as to whether the order to

*   This is a situation like those referred to in the current Manual’s
Discussion accompanying RCM 801(e)(5) quoted in Chief Judge Crawford’s
opinion when it states that “[i]t is possible, however, for such
questions to be decided solely upon some factual issue, in which case
they would be questions of fact . . . .”


                                   5
United States v. New, No. 99-0640/AR


wear battle dress insignia promoted safety, it was so
insubstantial that the judge’s failure to instruct thereon
was not reversible error.
     Since I conclude that, if the military judge erred at
all, the error was not prejudicial to New, I concur in
affirming the decision below.




                                6
