United States Court of Appeals 

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued February 16, 2006 Decided May 23, 2006 

No. 05-5023 

UNITED STATES EX REL. MICHAEL G. NEW,

APPELLANT

V. 

DONALD H. RUMSFELD, 

SECRETARY OF DEFENSE, AND

FRANCIS J. HARVEY, SECRETARY OF THE ARMY, 

APPELLEES

Appeal from the United States District Court 

for the District of Columbia 

(No. 96cv00033) 

Herbert W. Titus argued the cause for appellant. With 

him on the briefs were Henry L. Hamilton, William J. Olson, 

and John S. Miles. 

Kevin K. Robitaille, Assistant U.S. Attorney, argued the 

cause for appellees. With him on the brief were Kenneth L. 

Wainstein, U.S. Attorney, and Michael J. Ryan and R. Craig 

Lawrence, Assistant U.S. Attorneys. 

Before: RANDOLPH and GARLAND, Circuit Judges, and 

WILLIAMS, Senior Circuit Judge. 
2

Opinion for the Court filed by Senior Circuit Judge

WILLIAMS. 

WILLIAMS, Senior Circuit Judge: Michael G. New, 

formerly a medical specialist in the United States Army, was 

convicted by a court-martial of violating a lawful order to add 

United Nations insignia—a shoulder patch and a field cap—to 

his basic uniform. The Army Court of Criminal Appeals 

(“Court of Criminal Appeals”) and the Court of Appeals for 

the Armed Forces (“Court of Appeals”) affirmed. New’s 

collateral attack charges several errors in the military courts’ 

analysis of the lawfulness of the uniform order. Because New 

fails to identify fundamental defects in the military courts’ 

resolution of his claims, we affirm the district court’s denial of 

relief. 

* * * 

Shortly after he learned during the summer of 1995 that 

his unit would be deployed to the Republic of Macedonia as 

part of the United Nations Preventive Deployment Force, New 

voiced concerns about the lawfulness of the Army’s 

participation in the mission. In particular, he was troubled

that wearing U.N. insignia as part of his uniform would 

manifest an involuntary or fictional shift in his allegiance 

from the government of the United States to the United 

Nations. Although his superiors discussed these concerns 

with him, they failed to alleviate them. 

Eventually New’s battalion commander issued—and his 

company commander repeated—an order to begin wearing a 

special U.N. mission uniform at a battalion formation on 

October 10, 1995. The uniform consisted of the ordinary 

United States Army battle dress uniform plus a blue U.N. 

patch sewn on one shoulder and a blue U.N. cap. New 
3

reported for the formation on the scheduled date wearing a 

uniform that lacked these features, and his superiors 

immediately removed him from the formation. Although his 

battalion commander offered him a second chance to comply 

with the uniform order, New declined. 

New was court-martialed and charged with violating 

Article 92(2) of the Uniform Code of Military Justice 

(codified at 10 U.S.C. § 892(2)), which provides that any 

person who, “having knowledge of any . . . lawful order 

issued by a member of the armed forces, which it is his duty 

to obey, fails to obey the order . . . shall be punished as a 

court-martial may direct.” New’s defense focused on the 

lawfulness of the order—specifically its consistency with 

Army Regulation 670-1 (1992) (“AR 670-1”), which permits 

commanders to require uniform modifications “to be worn 

within [a] maneuver area,” par. 2-6d, or “when safety 

considerations make it appropriate,” par. 1-18, and with 

Article I, Section 9, of the Constitution, which prohibits any 

person’s acceptance of, inter alia, any emolument from a 

foreign state without congressional consent. New also argued 

that the uniform order couldn’t be lawful because the Army’s 

participation in the U.N. mission was itself unlawful, asserting 

various statutory and constitutional grounds discussed below. 

The military judge—a law officer presiding over the 

panel but not serving as one of its members—rejected both 

sets of arguments: he concluded that the order was consistent 

with AR 670-1 and that the legality of the deployment was a 

nonjusticiable political question. The court-martial sentenced 

New to a bad-conduct discharge. 

On appeal to the Court of Criminal Appeals, New argued 

that the military judge erred in ruling that the lawfulness of 

the order was a legal question for him to decide rather than an 

element of the offense to be decided by the “military jury” 
4

(the term that we use, following the Court of Appeals, as 

shorthand for the court-martial panel). United States v. New, 

55 M.J. 95, 103 (C.A.A.F. 2001) (“CAAF Op.”); see also id. 

at 117 & n.2 (Sullivan, J., concurring). And he argued that the 

military judge’s conclusion on the merits was erroneous. The 

Court of Criminal Appeals rejected these claims and affirmed 

New’s conviction and sentence. United States v. New, 50 M.J. 

729 (A. Ct. Crim. App. 1999) (“ACCA Op.”). The Court of 

Appeals then granted review and also affirmed. CAAF Op., 

55 M.J. at 109. 

New had filed a petition for a writ of habeas corpus in 

federal district court shortly before his court-martial. The 

district court dismissed that petition on the ground that New 

had failed to exhaust his remedies in the pending court-martial 

action, United States ex rel. New v. Perry, 919 F. Supp. 491 

(D.D.C. 1996), and we affirmed, New v. Cohen, 129 F.3d 639 

(D.C. Cir. 1997). After the Court of Criminal Appeals and the 

Court of Appeals both affirmed his conviction, New returned 

to the district court. The district court dismissed the petition, 

finding that each of New’s challenges fell outside the scope of 

collateral review, raised a nonjusticiable political question, or 

lacked merit as a matter of law. United States ex rel. New v. 

Rumsfeld, 350 F. Supp. 2d 80, 102 (D.D.C. 2004) (“District 

Ct. Op.”). New appeals. 

* * * 

We begin with jurisdiction and the related issue of the 

scope and standard of review. New, the government, and the 

district court have all assumed that jurisdiction rests on 28 

U.S.C. § 2241, which authorizes federal courts to grant writs 

of habeas corpus. See District Ct. Op., 350 F. Supp. 2d at 88 

n.4, 89; Brief for Appellants at 1; Brief for Appellees at 1. 

But § 2241(c) precludes granting the writ unless the petitioner 
5

is in custody. Upon conviction by court-martial New received 

a bad-conduct discharge; as he is not in custody, § 2241 can’t 

supply subject matter jurisdiction. This is not fatal, however, 

because the Supreme Court has held that Congress didn’t 

intend to confine collateral attacks on court-martial 

proceedings to § 2241. Schlesinger v. Councilman, 420 U.S. 

738, 748-53 (1975). Thus the district court had subject-matter 

jurisdiction to hear New’s collateral attack under § 1331 

(which New’s second amended complaint invoked). 

 The standard of our review is more tangled. In 

Councilman the Supreme Court not only confirmed 

jurisdiction in the absence of custody, but also said that 

collateral relief was barred unless the judgments were “void.” 

Id. at 748. And that question “may turn on [1] the nature of 

the alleged defect, and [2] the gravity of the harm from which 

relief is sought,” id. at 753. Specifically, the defect must be 

“fundamental,” for “[a] judgment . . . is not rendered void 

merely by error.” Id. at 747. Moreover, “both factors must be 

assessed in light of the deference that should be accorded the 

judgments of the carefully designed military justice system 

established by Congress.” Id. at 753. Because Councilman

ultimately denied review pending the court-martial, this 

standard was not part of the holding, but our circuit later 

adopted it for non-habeas review of court-martial judgments. 

Priest v. Secretary of the Navy, 570 F.2d 1013, 1016 (D.C. 

Cir. 1977). 

The Supreme Court pitched the Councilman standard as 

more deferential than habeas review of military judgments, 

which it has in turn described as no less deferential than 

habeas review of state court judgments. This first point was 

explicit in Councilman itself, where the Court said: 

“[G]rounds of impeachment cognizable in habeas proceedings 

may not be sufficient to warrant other forms of collateral 

relief.” 420 U.S. at 753. The second point is part of the 
6

Court’s analysis in Burns v. Wilson, 346 U.S. 137 (1953). 

There, reviewing court-martial death sentences allegedly 

based on coerced confessions and “an atmosphere of terror 

and vengeance,” id. at 138, the Court through a four-justice 

plurality described military habeas as follows: “It is the 

limited function of the civil courts to determine whether the 

military have given fair consideration” to each claim raised by 

petitioners. Id. at 144. As to factfinding, the plurality said 

that Article III courts should not be in the business of 

“reexamin[ing] and reweigh[ing] each item of evidence of the 

occurrence of events which tend to prove or disprove one of 

the allegations in the applications for habeas corpus.” Id. The 

plurality concluded that the petitioners failed to show that the 

military review process was “legally inadequate” to resolve 

their constitutional claims and affirmed. Id. at 146. (Two 

additional justices concurred in the result, one of them writing 

that the Supreme Court’s role was limited to assessing the 

military courts’ jurisdiction. Id. at 146-48.) In setting out this 

standard, the plurality explained that the Court must be at least 

as deferential as it is in the civilian habeas context, for in 

“military habeas corpus cases themselves, even more than in 

state habeas corpus cases, it would be in disregard of the 

statutory scheme if the federal civil courts failed to take 

account of the prior proceedings—of the fair determinations 

of the military tribunals after all military remedies have been 

exhausted.” Id. at 142 (emphasis added). 

The uncertainty implied in these rankings of deference 

level is compounded by the evolution of habeas review over 

time. Until the Supreme Court’s decision in Johnson v. 

Zerbst, 304 U.S. 458 (1938), the scope of habeas corpus 

review was equally narrow in both military and civilian 

cases—limited to verifying personal and subject-matter 

jurisdiction. In Johnson, a civilian federal habeas corpus case, 

the Supreme Court expanded the scope of jurisdictional 

challenges by holding that the trial court could lose 
7

jurisdiction by failing to provide constitutionally-guaranteed 

counsel to the defendant, id. at 468, and this developed into 

explicit review for constitutional violations. See Calley v. 

Callaway, 519 F.2d 184, 195-96 (5th Cir. 1975) (en banc) 

(citing Waley v. Johnston, 316 U.S. 101 (1942), and House v. 

Mayo, 324 U.S. 42 (1945)). Burns took military habeas 

review onto a similar path, though not to the same degree. 

As the military habeas standard of review at one time 

followed review of state court judgments toward less

deference, perhaps it (and other collateral review of military 

decisions) should follow the current path toward more. In 

light of the Burns Court’s view that military habeas review 

must be at as least as deferential as habeas review of state 

criminal judgments, the Third Circuit has held that the former 

enjoy at least as much deference as the latter do now, under 

the statutory standards adopted in the 1996 Antiterrorism and 

Effective Death Penalty Act (“AEDPA”). See Brosius v. 

Warden, 278 F.3d 239, 245 (3d Cir. 2002) (citing 28 U.S.C. 

§ 2254(d)-(e)). But to the extent that Congress’s revision of 

the standards for state court judgments arose out of special 

history and circumstances, its decision to tighten in that 

context may reflect no judgment at all about collateral review 

of court-martial judgments. 

We trace these steps merely as a caution. Except insofar 

as a standard may be quite specific, such as AEDPA’s 

requirement of a violation of “clearly established Federal law, 

as determined by the Supreme Court of the United States,” see 

28 U.S.C. § 2254(d)(1), we have serious doubt whether the 

judicial mind is really capable of applying the sort of fine 

gradations in deference that the varying formulae may 

indicate. See United States v. Boyd, 55 F.3d 239, 242 (7th 

Cir. 1995). It suffices for our purposes to repeat 

Councilman’s statement that errors must be fundamental to 

void a court-martial judgment on collateral review. And in 
8

light of Councilman’s point that non-habeas review is if 

anything more deferential than habeas review of military 

judgments, 420 U.S. at 753, a military court’s judgment 

clearly will not suffer such a defect if it satisfies Burns’s “fair 

consideration” test. 

* * * 

New first argues that the military courts violated his Fifth 

Amendment rights to due process by ruling that the lawfulness 

of the uniform order he violated was not an element of the 

offense—and thus not to be decided by the military jury. He 

evidently invokes the Fifth Amendment for two reasons. 

First, it is undisputed that the Sixth Amendment doesn’t create 

any jury right in courts-martial. See Ex parte Quirin, 317 

U.S. 1, 38-41 (1942). Second, the Court’s decision in United 

States v. Gaudin, holding that the issue of materiality must be 

found by a jury beyond a reasonable doubt (it was conceded 

that materiality was an element of the false statements offense 

defined in 18 U.S.C. § 1001), rested on the Fifth Amendment 

as well as the Sixth. 515 U.S. 506, 509-10 (1995). Here, by 

virtue of a statute, 10 U.S.C. § 851(c), any element of the 

offense must be submitted to the military jury for evaluation 

under the reasonable doubt standard. Thus, for the Court of 

Appeals, the New case presented the inverse of Gaudin: 

classification of the factor (lawfulness) as an “element” was 

unclear, but once the classification was made, the judge-jury 

allocation was indisputable. 55 M.J. at 104. Other than the 

idea that lawfulness must be an element of the offense 

(coupled with § 851’s requirement), New appears to offer no 

legal reason why the lawfulness issue should have gone to the 

military jury. 

We find no fundamental defect in the Court of Appeals’ 

conclusion that the lawfulness of an order is not a separate and 
9

distinct element of the offense, but rather is an issue for the 

military judge. Id. at 105. Identifying the elements of a 

statutory provision defining a crime is an exercise in statutory 

interpretation. The Court of Appeals started with the text and 

then turned to traditional aids in statutory interpretation: It 

considered—and identified powerful support in—the meaning 

of the key terms “lawful” and “order,” the relevant legislative 

history, previous decisions of military courts, and the Manual 

for Courts-Martial. Id. at 100-01. And it distinguished 

lawfulness from “wrongfulness” and “materiality,” which 

must go to the military jury when a servicemember is charged 

with violating 18 U.S.C. § 1001 under 10 U.S.C. § 934. 

CAAF Op., 55 M.J. at 105. Finally, the Court of Appeals 

reasoned that if the lawfulness of an order were an element of 

the offense, “the validity of regulations and orders of critical 

import to the national security would be subject to 

unreviewable and potentially inconsistent treatment by 

differing court-martial panels.” Id. at 105. One judge 

contrasted the resulting “patchwork quilt” with “the unity and 

cohesion that is critical to military operations.” See id. at 110 

(Effron, J., concurring). 

New argues that the Court of Appeals’ interpretation 

failed to apply the two-step methodology set out by the 

Supreme Court in Neder v. United States: “[W]e first look to 

the text of the statutes at issue,” id. at 20, and then look to the 

“accumulated settled meaning under the common law” if such 

a meaning exists. 527 U.S. 1, 21 (1999). But there the issue 

was whether the language implied the existence of an element, 

whereas here the statute specified “lawful order,” and the 

issue was that term’s role—whether it set out an element of 

the offense or, as the Court of Appeals found, simply 

underscored the accused’s “opportunity . . . to challenge the 

validity of the regulation or order.” CAAF Op., 55 M.J. at 

105. New also objected that the Court of Appeals’ conclusion 

conflicts with a statement in Unger v. Ziemniak, 27 M.J. 349 
10

(C.M.A. 1989), that in “a prosecution for disobedience, 

lawfulness of the command is an element of the offense.” Id. 

at 358. But the Court of Appeals reasonably found that the 

remark was wholly unnecessary to the judgment. CAAF Op., 

55 M.J. at 102. In any event, the Court of Appeals is “free to 

refine and develop its prior decisions” without our 

interference. Priest, 570 F.2d at 1019. 

 New also objects to the military courts’ substantive 

conclusion that the uniform order was lawful in the sense that 

it was consistent with AR 670-1. That regulation allows 

commanders to require “organizational protective or reflective 

items . . . with the uniform when safety considerations make it 

appropriate,” par. 1-18, and allows commanders to prescribe 

the uniform “to be worn within [a] maneuver area,” par. 2-6d. 

The military judge found that “[t]he wearing of distinctive and 

identifiable uniforms or uniform accessories easily 

recognizable in a combat environment or potential combat 

environment has a practical combat function which may 

enhance both the safety and/or tactical effectiveness of 

combat-equipped soldiers performing tactical operations,” and 

thus that the U.N. insignia “had a function specifically 

designed to enhance the safety of United States armed forces 

in Macedonia.” Court-Martial Transcript at 426; see also 

CAAF Op., 55 M.J. at 107 (reaching same conclusion as 

military judge). 

New acknowledges the presumption of lawfulness that 

attaches to military orders, CAAF Op., 55 M.J. at 106, but he 

contests the Court of Appeals’ conclusion that he failed to 

overcome that presumption, id. at 107. He argues that the 

government failed to submit any evidence justifying the 

uniform order by reference to safety considerations or 

maneuver areas. He himself did not proffer any evidence on 

these issues. Before us, he instead points to a Stipulation of 

Fact concerning a totally unrelated provision of AR 670-1, 
11

which states that the uniform modifications “ha[d] not been 

approved by the Director of [t]he Institute of Heraldry, U.S. 

Army, as required and mandated under the provisions of 

paragraphs 27-16a and b of Army Regulation 670-1.” We can 

hardly fault the military courts’ judgment that this stipulation 

failed to rebut the presumption that safety considerations 

justified the uniform order. We note that Judge Sullivan of 

the Court of Appeals, who disagreed with the majority on the 

judge-jury issue, found the allocation of the issue to the judge 

a harmless error because the commanders had indisputably 

ordered use of blue U.N. patches and caps “as part of the 

operations plans for the mission and for safety purposes.” 55 

M.J. at 127 (Sullivan, J., concurring in the result). Again, we 

can find no fundamental defect in the Court of Appeals’ 

consideration of the issue. 

 New appears to rely on the same stipulation as evidence 

that the uniform order violated the Emoluments Clause of 

Article I, Sec. 9 of the Constitution. (“[N]o Person holding 

any Office of Profit or Trust under them, shall, without the 

Consent of the Congress, accept of any present, Emolument, 

Office, or Title, of any kind whatever, from any King, Prince, 

or foreign State.”). But he offers no legal analysis supporting 

his belief the U.N. patch and cap fall within the scope of the 

Emoluments Clause’s prohibition on receipt of various 

possible honors or benefits from foreign states, and we find 

the claim a stretch at best. New argues that the claim did not 

receive fair consideration because it “was not litigated at all,” 

see Brief for Appellants at 45; see also Reply Brief for 

Appellants at 12, but the military judge heard arguments on 

the subject, see, e.g., Court-Martial Transcript at 387, 391, 

406-07, 417, ruled that the U.N. patch and cap “were neither 

gifts from a foreign government nor received by Specialist 

New from a foreign government,” and observed that Congress 

appeared to authorize their receipt in a provision of the United 

Nations Participation Act, id. at 428. For claims as weak as 
12

this, summary disposition is completely consistent with fair 

consideration. See, e.g., King v. Moseley, 430 F.2d 732, 734-

35 (10th Cir. 1970). 

 We turn next to New’s arguments that the uniform order 

was unlawful because it was issued pursuant to a military 

deployment that was itself unlawful on several grounds. As 

he sees it, the deployment violated the United Nations 

Participation Act because the President incorrectly 

characterized the deployment as noncombatant and therefore 

governed by 22 U.S.C. § 287d-1; in fact, New claims, it was a 

combatant operation that required Congressional approval 

under 22 U.S.C. § 287d. He further argues that because 

during the deployment he would be placed under the 

operational control of U.N. officials, the deployment violated 

the Commander-in-Chief Clause, the Appointments Clause, 

and the Thirteenth Amendment. Brief for Appellant at 13. 

The military judge rejected these attacks on the 

deployment on two grounds—what appears to be a standing 

analysis, i.e., finding that the dispute over the uniform’s 

legality “did not effectively call into issue the underlying 

legality of the deployment,” Court-Martial Transcript at 429; 

see also id. at 432, and the political question doctrine, id. The 

Criminal Court of Appeals found consideration barred by the 

latter, ACCA Op., 50 M.J. at 737, 739, as did the Court of 

Appeals, CAAF Op., 55 M.J. at 108-109. As either want of 

standing or the political question doctrine would prevent 

adjudication on the merits, we may resolve them in any order. 

See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 585 

(1999) (“It is hardly novel for a federal court to choose among 

threshold grounds for denying audience to a case on the 

merits”); Hwang Geum Joo v. Japan, 413 F.3d 45, 47-48 

(D.C. Cir. 2005). Finding that the military courts’ use of the 

political question doctrine deserves deference, we do not 

address standing. 
13

Our courts have adjudicated claims based on two of the 

constitutional provisions New invokes—the Appointments 

Clause and the Thirteenth Amendment—without interposing 

the political question doctrine. See, e.g., Weiss v. United 

States, 510 U.S. 163 (1994) (whether method of appointing 

military judges violates Appointments Clause); Selective 

Draft Law Cases, 245 U.S. 366 (1918) (whether military draft 

law violates Thirteenth Amendment). But no such 

adjudication has occurred in the context of a court-martial 

defendant who had refused to obey an order that he claimed 

was illegal because the Appointments Clause or the Thirteenth 

Amendment invalidated the deployment underlying the 

disobeyed order. 

Whatever the application of the political question 

doctrine to these four challenges to a deployment order in an 

otherwise properly framed civil suit, the military justice 

context compels a somewhat broader doctrine in light of the 

implications of any alternative view. As the Court of Appeals 

observed, nothing gives a soldier “authority for a self-help 

remedy of disobedience.” 55 M.J. at 108 (quoting United 

States v. Johnson, 45 M.J. 88, 92 (C.A.A.F. 1996)). Two of 

the canonical factors from Baker v. Carr, 369 U.S. 186, 217 

(1962), “an unusual need for unquestioning adherence to a 

political decision already made,” 369 U.S. at 217, and “the 

potentiality of embarrassment from multifarious 

pronouncements by various departments on one question,” id., 

are uniquely powerful when the context is a soldier’s use of 

the “self-help remedy of disobedience.” Also supporting a 

broader sweep to the political question doctrine in military 

trials is the point made by Judge Effron in his concurring 

opinion—that the doctrine “ensur[es] that courts-martial do 

not become a vehicle for altering the traditional relationship 

between the armed forces and the civilian policymaking 

branches of government” by adjudicating the legality of 

political decisions. Id. at 110. Thus we find no defect in the 
14

Court of Appeals’ application of the political question 

doctrine, even though that application might be highly 

contestable in another context. Compare Campbell v. Clinton, 

203 F.3d 19, 24-28 (D.C. Cir. 2000) (Silberman, J., 

concurring) (finding that no “judicially discoverable and 

manageable standards” exist for application of the 

Constitution’s war powers clause or the War Powers 

Resolution, 50 U.S.C. § 1541 et seq.), with id. at 37-41 (Tatel, 

J., concurring) (concluding that such standards do exist). 

Given the threat to military discipline, see Court-Martial 

Transcript at 433, we have no difficulty accepting the military 

courts’ reliance on the doctrine. 

* * * 

For the foregoing reasons, the district court’s dismissal is 

Affirmed.