Act of Conscience or Party Politics?

AS United States troops pour into Bosnia under the terms of the Dayton peace treaty, conservative opponents of President Clinton are trying to use the stand taken by a young Army medic to force the president into a constitutional showdown. The Army decided to court martial Specialist Michael New, who refused to wear a United Nations insignia as part of a US peacekeeping force dispatched from Germany to Macedonia, and in the process turned him into a cause celebre among conservatives.

Mr. New's refusal is being hailed by conservatives in Congress as a triumph of conscience over the "new world order." GOP House members have praised the young Texan, and Rep. Tom DeLay (R) of Texas has even introduced legislation that would make it illegal for American soldiers to be forced to don the UN insignia against their wishes.

There is an element of hypocrisy in all this concern. It seems that newfound Republican respect for matters of conscience - conspicuously absent during the Vietnam and Gulf wars - is no coincidence. With a Democratic president in the White House and a GOP majority in Congress for the first time in 40 years, the temptation to flex political muscle regarding presidential war powers is overwhelming. What makes New's case interesting is not the fact that he chooses not to sport a powder-blue helmet, but rather that he and his supporters are trying to set the stage for a constitutional confrontation with Mr. Clinton over his ability to conduct foreign policy.

New, by way of explanation, has said he disobeyed orders because "I am not a United Nations citizen or a UN soldier. I am an American and an American soldier." He argues that the order given to him by the Army was illegal and unconstitutional. In his support, House members are calling on Clinton to provide them with a full legal and constitutional opinion addressing his authority to send US troops abroad and to serve under foreign command. (Ironically, the US Army owes its very existence to foreign commanders such as the Baron von Steuben and the Marquis de Lafayette.)

Under whose command?

What is the basis for his challenge? So far, New and his attorneys have claimed vaguely that assigning American soldiers to foreign command is illegal and unconstitutional - arguments heavy on rhetoric and light on fact. American troops were sent, without challenge, to Europe throughout the cold war, and they formed a substantial part of a UN force in Korea.

There is nothing in the Constitution expressly prohibiting the president from sending American troops abroad to serve under foreign command. His power as commander in chief is limited in the text of the Constitution only by Congress's power of the purse and its sole ability to declare war. Further, the president has the power to make treaties which, if ratified by two-thirds of the Senate, carry the force of law, becoming, according to Article VI of the Constitution, "the supreme Law of the Land." One such treaty was the 1946 United Nations charter.

Assuming that the ratification of the UN charter by the Senate was valid, New is not, contrary to his attorney's protestations, being forced to choose between serving as a US soldier and as a "minion of the UN." Nor is he being forced to choose between his oath to the Constitution and allegiance to the UN charter, as Representative DeLay has suggested. According to Article VI of the Constitution, a duly ratified treaty is on par with the Constitution and laws passed by Congress.

Thus, by refusing to follow an order issued on the basis of a treaty, New is actually violating his oath to uphold the Constitution. Further, since Congress has passed no law making it illegal for the president to send troops to serve under United Nations command, the attorney's argument that New was "given an illegal order" is nonsensical.

New's civilian attorney, Ronald Ray, has been quoted as saying the UN charter and its objectives are incompatible with the Constitution. But, since this country has long agreed to abide by the charter - a decision ratified in accordance with constitutional rules - are there now legal grounds for declaring the charter itself to be in violation of the Constitution?

Since federal courts are loath to referee disputes between the executive and legislative branches of government over the conduct of foreign policy (the courts would never rule on the constitutionality of the Vietnam War, for example), Mr. Ray will have to do much better than vague allegations of unconstitutionality to be afforded a hearing in federal court, much less in the Supreme Court.

War-powers debate

The New case sets the stage for a renewed debate about the relationship between the president and Congress regarding war powers. There was a tension in the framers' division of power between the president and Congress. On the one hand, they wanted civilian control of the military, vested in one person to provide clarity and coherence in the chain of command. On the other hand, the framers recognized the danger of placing a standing army under the control of one man. To counterbalance the power of the commander in chief, they gave Congress the power to declare war and to raise and fund the Army. By so doing, they clearly indicated a desire for a deliberative body to play a role in the conduct of "politics by other means."

If Republicans, momentarily bereft of an ideological ally in the Oval Office, wish to reallocate war powers between the president and Congress, and to clarify the legal status of treaties while they are at it, their congressional majority provides a good start in obtaining the required two-thirds congressional majority needed to propose such an amendment. Such honesty would be as refreshing as it is unlikely.

Conservatives seem content to use an ill-informed Army medic, whose misguided act of conscience will likely cost him his military career, to strike at the president where he is most vulnerable and at a time when American resolve is most important. Should a Republican win the White House in 1996, however, do not be surprised to see such challenges to the president's power to conduct foreign policy drop from sight.