Specialist New appeared in formation on October 10, 1995, but did not wear the prescribed uniform. He was charged with failing to obey a direct, lawful order, a violation of Article 92 of the Uniform Code of Military Justice. Pet.'s Ex. E, Charge Sheet. Specialist New was arraigned on November 17, 1995. He moved to dismiss the charges against him, arguing that the order was unlawful and raising many of the same arguments contained in his petition for a writ of habeas corpus. See Pet.'s Exs. H and J, Memoranda in Support of Motion to Dismiss. On January 16, 1996, he moved in this Court for an emergency stay of the court martial and petitioned for a writ of habeas corpus. The Court heard oral argument and denied the motion for a stay because the novelty of Specialist New's arguments led the Court to conclude that Michael New was unable to demonstrate a likelihood of success on the merits of his petition, because he was unable to demonstrate any risk of irreparable harm and because the public interest clearly lay in permitting the court martial proceeding to go forward. Memorandum Opinion and Order of January 16, 1996.
After a court martial proceeding on the merits, Specialist New was sentenced to a bad-conduct discharge. Resp.'s Exs. 8 and 9, Findings and Sentence Worksheets. Review of the court martial decision by the Army Court of Criminal Appeals has not yet occurred. After that appeal, Specialist New may seek discretionary review in the Court of Appeals for the Armed Forces, which is composed of civilian judges, and, possibly, in the United States Supreme Court (although the Supreme Court will not consider a petition for certiorari if the Court of Appeals for the Armed Forces denies the petition to review). In the meantime, Specialist New remains on active duty, is not incarcerated and continues to receive his standard pay. Resp.'s Ex. 10, Declaration of Gregory T. Baldwin; Resp.'s Ex. 11, Affidavit of Chris Cassin. He is working, however, as a file clerk rather than as a Medical Specialist.
Specialist New seeks dismissal of the charges against him on the grounds that the unlawful orders changed his status such that he is a civilian and not subject to court martial. He seeks a release from the remaining five years of his term of enlistment by way of an honorable discharge from the Army. The United States insists that Specialist New is a member of the Armed Forces until the Army releases him from his commitment and that the Court therefore should refrain from dealing with the merits of petitioner's arguments and let the military justice system proceed unhindered.
Article I of the Constitution authorizes Congress to subject persons in the military to trial by court martial for military offenses. Toth v. Quarles, 350 U.S. 11, 14, 100 L. Ed. 8, 76 S. Ct. 1 (1955). And military courts "have the same responsibilities as do the federal courts to protect a person from a violation of his constitutional rights." Burns v. Wilson, 346 U.S. 137, 143, 97 L. Ed. 1508, 73 S. Ct. 1045 (1953). Civilians, however, are entitled to have the benefit of additional safeguards afforded those tried in civil courts authorized by Article III of the Constitution; thus civilians may not be subjected to trial by court martial. Toth v. Quarles, 350 U.S. at 23; McElroy v. Guagliardo, 361 U.S. 281, 4 L. Ed. 2d 282, 80 S. Ct. 305 (1960).
Army Specialist New concedes that he "submitted himself personally to the jurisdiction of the military courts by signing the United States Armed Forces Enlistment Contract and entering into active duty as a member of the nation's armed forces." Pet.'s Mem. in Support of Pet. at 8. He contends, however, that the military no longer has any authority over him because the Army tried to transform him into a United Nations soldier when it ordered him to wear United Nations' insignia on his uniform, carry a United Nations' identity card and serve as a member of the United Nations Peacekeeping Force. He says that those orders effected a breach of his enlistment contract and changed his status from U.S. military to civilian, thereby depriving the military courts of jurisdiction. He further contends that the orders are unlawful because the acceptance of the emblems and office of a foreign government is prohibited by the United States Constitution, federal statutes and regulations, and because the President of the United States is prohibited by the United Nations Participation Act from deploying United States troops to serve in a foreign force unless he obtains the consent of Congress (which has not been obtained here).
As a result of the alleged breach, and restoration to civilian status, he maintains that he is being unlawfully retained in the United States Armed Forces and is entitled to habeas corpus.
Specialist New brings this habeas corpus action under 28 U.S.C. § 2241; a petition for a writ of habeas corpus is recognized as an appropriate remedy for servicemen who claim to be unlawfully retained in the Armed Forces. Parisi v. Davidson, 405 U.S. 34, 39, 31 L. Ed. 2d 17, 92 S. Ct. 815 (1972). The United States does not deny that the Court would have habeas corpus jurisdiction, but argues that principles of equitable jurisdiction counsel against the Court accepting jurisdiction until after the military justice system has finished reviewing Specialist New's court martial conviction.
The military justice system was established pursuant to Article I of the United States Constitution and is governed by the Uniform Code of Military Justice ("UCMJ"), 10 U.S.C. § 801, et seq. In enacting the UCMJ,
Congress attempted to balance ... military necessities against the equally significant interest of ensuring fairness to servicemen charged with military offenses, and to formulate a mechanism by which these often competing interests can be adjusted. As a result, Congress created an integrated system of military courts and review procedures, a critical element of which is the Court of Military Appeals, consisting of civilian judges "completely removed from all military influence of persuasion," who would gain over time thorough familiarity with military problems. ... Implicit in the congressional scheme embodied in the Code is the view that the military court system generally is adequate to and responsibly will perform its assigned task.