Until last summer, Michael New was an unknown 22-year-old Army medic, three years into his eight-year enlistment contract. But in August, New learned that he and his battalion were being assigned to Macedonia, where they would serve under the operational control of the United Nations commander, and wear the baby blue U.N. beret and a U.N, patch on their uniforms. At that news this missionary’s son from Conroe, Texas, balked. How could it be legal for him to wear a foreign uniform, he asked his captain, and serve under foreign command?

Lt. Col. Stephen R. Layfield, who is in charge of the battalion, reacted by promising New he would face a court martial if he disobeyed. Ordered to fall out in the beret and patch on October 10, New, alone among the 550 members of his battalion, did not. He wore his U.S. Army combat dress uniform without any additions. In response, Lt. Col. Layfield made good on his promise: the Army held a hearing on New’s case in Wuerzburg, Germany, in late January. New was found to have refused a lawful order and was given a bad conduct discharge.

In some ways the sentence was lenient; he could have been jailed. Instead, while his battalion went to Macedonia, New remained in Germany, working with full pay as a file clerk and waiting for the review of his court martial.

As this article went to press, the convening authority who will review that court martial, Maj. Gen. Montgomery Meigs, had not yet done so. If Meigs upholds the court martial. New will be given a discharge that will blot his record. He will also lose the right ever again to wear his U.S. uniform.

His lead attorney, a former deputy assistant secretary of defense (under Bush) and a retired Marine colonel named Ron Ray, said that “we’ve never had a soldier charged with a crime, courtmartialed, much less convicted, for declining to wear the badges, insignia and uniform of another government—because up until Bill Clinton, all the way back to the founders, we operated under the principle that a man can’t serve two masters.”

Clothes make the man—at least that is what Michael New thinks. Acting on the advice of his attorneys, who say it is inappropriate for New to criticize the Armed Forces while he is still enlisted, New does not grant interviews. But in a written statement dated September 19, 1995, and presented to the court in Germany, New said:

I interpret the wearing of a uniform, or the accouterments of a uniform, as a sign of allegiance and faithfulness to the authority or power so signified or which issues that uniform. I am an American who was recruited for and voluntarily joined the U.S. Army to serve as an American soldier. I am not a citizen of the United Nations. I am not a United Nations Fighting Person. I have never taken an oath to the United Nations, but I have taken the required oath to support and defend the Constitution of the United States of America.

New read the Army Uniform regulations and “thought the uniform was unauthorized,” Ron Ray said. While Army regulations spell out in detail what can and should be worn, nowhere is there a mention of the U.N, beret or patch. According to Ray, that makes the U.N. accouterments illegal. The Army’s lawyers conceded in a January 9, 1996, Stipulation of Fact for the court martial that the U.N. beret and patch have not been approved, as required by their own regulations.

This would seem to bolster New’s case. Army spokesman Lt, Col, Bill Harkey countered, however, that according to uniform regulations, “A commander in charge of units on a maneuver may prescribe the uniform to be worn within the maneuver area.” Does that mean he could ask his soldiers to wear anything? “Basically, yes,” Harkey replied. But, he added, the larger issue is that “when the senior leadership, I mean the President of the United States and our U.N. ambassador, signed up to take part in this mission, then part of that included wearing these accouterments on the uniform that will identify these folks as part of the U.N. operation.” In other words, the verbal order made by New’s captain and lieutenant colonel stems directly from the President’s authority,

Ray’s response is that the President’s authority does not exist. While New’s court martial centered around his refusal to obey an order, the defense team’s legal arguments are much broader. First, Congress and not the President has the right to change Army uniform regulations, under the constitutional division of powers. Second, a President should not be able to force an American volunteer to serve under foreign command. “The President does not have the authority to involuntarily transform an American fighting man into a U.N. soldier,” Ray said. And third, according to Ray, President Clinton does not have legal justification to send troops to the former Yugoslavia without congressional approval “as Commander-in-Chief or under the Foreign Assistance Act or under the U.N. Participation Act or the U.N. Charter or the U.N. Guidelines.”

In the court martial pretrial hearing, Ray made all three of these assertions. He did not have a chance to discuss them before the hearing panel, however. The military judge refused to admit these arguments and declared the lieutenant colonel’s order lawful, leaving the six-member panel to decide only the limited question of whether or not New had disobeyed the order—which of course he had.

New’s battalion in Macedonia (the 1st battalion, 15th infantry) has been under the operational command of Brig. Gen. Juha Engstrom, a Finn. When New served in a United Nations operation in Kuwait, he was under American command. He did not object to serving in Macedonia, Ray said. He objected to having a foreign uniform and foreign commander there.

With the order to change an American beret and patch for United Nations insignia, the President has also ceded some control over American troops. Spokesmen for both the Army and the Department of Defense carefully drew a distinction between “administrative control,” which President Clinton retains in Macedonia, and the “operational control” exercised by U.N. Commander Engstrom.

Army spokesman Harkey would not agree that the President has ceded any authority to the U.N. commander. Yet it seems evident that Gen. Engstrom has a fair amount of control over American troops. Defense spokesman Lt. Col. Mike Wood said that “operational control” means the U.N. commander cannot modify the basic mission, deploy American forces outside the mission area, separate those forces, divide their supplies, or administer discipline. The troops also retain the right to defend themselves. Wood said. But with operational control. Gen. Engstrom can tell them where to go and what to do. When asked if operational control means the Finnish commander can put his American troops in harm’s way. Wood replied, “Sure.”

Harkey added that “ultimate command” is retained by the President. He also said that under operational control, an American battalion commander reserves the right respectfully to decline a U.N. commander’s order. Harkey could not recall an instance when an order had been declined.

Yet Gen. Engstrom himself seems to think his authority over American troops in Macedonia is a first. At a briefing session for American soldiers and their families held last winter, Engstrom was quoted as saying (in a November 17, 1995, issue of the Army paper the Marneland Crusader), “This is a very unique and historic opportunity. Before Macedonia, a non-American or non-NATO officer has never before had command of an American battalion abroad.”

Harkey could not confirm whether or not the general is correct. He did say that American forces have been in U.N. operations since Korea, including missions in Somalia and the Sinai. But Harkey was unsure if in any of these missions a foreign commander had operational control, as in Macedonia.

Then there is the U.N. identity card. According to a United Nations Aide Memoire for the United Nations Protection Force (UNPROFOR), troops arriving in Macedonia or Bosnia will “be issued an UN peace-keeping force identification card which will be the only identity document required within the area of operation.” Army spokesman Harkey said he did not know if members of New’s battalion in Macedonia were carrying such a card. “But I do know that they are not required to give up their green military ID card,” he said.

Even if troops are carrying both ID cards, Ron Ray said, the fact that the U.N. card is the only one required says something about these troops. At the court martial Ray pointed inside the baby blue U.N. beret, to the label which reads, “Property of the United Nations.” “Does that refer to the beret or the soldier who wears it?” he asked.

New’s best chances for relief may come from Congress—and not just the House, where Roscoe Bartlett (Maryland), James Traficant (Ohio), Tom DeLay (Texas), Robert Dornan (California), and other members have tried to help him. New gained an important Senate champion in late March, when Kentucky Republican Mitch McConnell wrote a letter to the President that called the Macedonian deployment “illegal.” He also promised as head of the Senate Appropriations foreign aid subcommittee that he would withhold “voluntary peacekeeping funds to support activities in the former Yugoslavia.” (The United States pays a mandatory yearly assessment to the U.N. as well.)

The legal issue that concerns McConnell is whether this mission is properly defined as a United Nations Charter chapter VI, or Chapter VII, operation. Since July 9, 1993, when President Clinton wrote to Congress spelling out the legal justification of this deployment, the administration has characterized it as a Chapter VI operation, which means troops are limited to 1,000 people, are there for observation rather than combat, and can be sent by the President without congressional approval. But according to McConnell (and New as well), the entire operation in the former Yugoslavia is really a Chapter VII deployment. This is a vital distinction, because under the United Nations Protection Act, Section 6 (the act that incorporates the U.N. Charter into American law), a Chapter VII deployment must have congressional approval. McConnell said in his letter that the U.N. itself has characterized the entire Yugoslavian mission—of which the Macedonian deployment is a part—as Chapter VII.

Of the 97 U.N. Security Council resolutions passed between 1991 and 1995 concerning the former Yugoslavia, none mention Chapter VI, McConnell wrote. But “there are 27 resolutions which specifically refer to both ‘UNPROFOR’ and the mandate for UNPROFOR, which includes UNPROFOR Macedonia, as ‘Chapter VII’ under the UN Charter,” he said. He quoted language from these resolutions showing that the U.N. expected this deployment to involve combat, a Chapter VII criterion. (Chapter VI troops, remember, are there to observe.) He also cited the Army’s own lawyers in New’s case as stating that this battalion was “combat-equipped” and being sent into a “combat environment.” “It appears that the Administration is using . . . Chapter VI to avoid the need for [congressional approval] on the deployment of U.S. troops in Macedonia,” he concluded.

As we go to press, the President has not yet answered McConnell’s letter. But whatever happens, New’s case can no longer be characterized as a simple court martial of a young man who refused to follow orders. “What [New] has opened up here is an issue far larger than his concern about wearing the U.N. insignia,” said Congressman Bartlett. “He’s opened up the whole constitutional question of the responsibilities of Congress and the President.”

While it seems unlikely that his court martial will be overturned by Gen. Meigs, New may get a second chance in federal court. In March, U.S. District Judge Paul L. Friedman in the District of Columbia refused to hear New’s arguments for habeas corpus, but left the door open for New to return once he has exhausted possible remedies in military court. McConnell’s press secretary, Robert Steurer, said the senator intended to hold a hearing on peacekeeping in late May, which may touch on New’s case.

Then there is the court of public opinion. Both New’s battalion and New himself will probably be back in the States this summer. Though New has told his lawyer that “he would rather go to jail than give a speech,” he may be in great demand as a speaker, if his popularity as a talk radio subject is any indication.

It remains to be seen just what legal effect his case will have. Until Mc- Connell’s letter, New had relatively little support in the Senate. Sen. Larry Craig of Idaho has cosponsored a resolution to make wearing the U.N. uniform illegal, but even if this resolution is attached to a Defense Appropriations bill that becomes law, it cannot help New retroactively. And it does not address the question of foreign command of American troops.

Senator Robert Dole has spoken against U.N. command of American soldiers and Americans in U.N. uniforms, and consequently would seem to be a likely source of support. But as of April he had not yet interested himself in New’s case specifically.

And so New’s case works its way through Congress and two courts, while Americans continue to serve under foreign command—and not just at the brigadier general level, either. The Washington Times reported on March 5 that 18 U.S. soldiers were serving under a Russian colonel named Alexander Lentsov in Bjeljina, Bosnia-Herzegovina. Lentsov, wrote the Times, “helped lead the bloody attack on the Chechen capital, Grozny, more than a year ago.” “Frankly, we don’t have the bodies to defense ourselves, so we have to rely on the Russians for defense,” said Maj. Tom Wilhelm to the Times. “We are putting our lives in their hands—literally.”

While neither the Army nor the Department of Defense spokesmen could say how many American soldiers are currently wearing the U.N. uniform, a Joint Chiefs of Staff report prepared by Lt. Col. Pat Larkin showed that as of February, the total number of troops wearing the U.N.’s blue beret was 2,656. These troops were stationed in Haiti, Macedonia, the Western Sahara, the Middle East, and Georgia.

Another 86,000 troops in American uniform were supporting U.N. peace and humanitarian operations, or enforcing United Nations Security Council resolutions. Of that total, 29,000 troops were in Bosnia-Herzgovina and the rest in Korea and Iraq. As these numbers show, many more troops than New’s battalion are now or could potentially be ordered to serve under foreign command.

“I am not trying to avoid a difficult or dangerous assignment or to get out of the .Army,” New wrote in his September 19, 1995, statement. “I served in Kuwait last year and have offered to serve anywhere in the world, in my American uniform, in the capacity as a U.S. Army medic under American command and U.S. Constitutional protections.” But, he continued, “I simply cannot understand the legal basis of the Army order to change my uniform and, thus, shift or alter my status and allegiance against my oath of enlistment, my conscience and against my will.”

Every volunteer in the U.S. Armed Services, by taking a service oath which includes a promise to obey orders, gives up certain rights he had as a civilian. Michael New’s fate will show if the right to refuse to serve in a foreign army is now one of them.