For the moment it appears that officials in the military justice system intend to show no more respect for their sworn duty to the United States Constitution than those in the civilian judiciary have thus far evinced. The investigating officer in charge of the Article 32 hearing in the case of Lt. Col. Terry Lakin formally refused to consider evidence tending to justify Lt. Col. Lakin’s contention that serious doubt beclouds the claim that Barack Obama satisfies the Constitution’s eligibility requirements for service as Commander-in-Chief. His decision arbitrarily vitiates any effort to substantiate what must be the major premise of Lt. Col. Lakin’s defense against the charges being brought against him, which is the dubious lawfulness of orders issuing from a chain of command that derives its authority from an individual claiming without Constitutional warrant to hold the office of President of the United States.
Daniel J. Driscoll, the Army hearing officer states that, in his view, “our constitutional jurisprudence allows Congress alone, and not a military judicial body, to put the president’s credentials on trial.” The Uniform Code of Military Justice (UCMJ) 809.ART.90 (20), makes it clear that every member of the military personnel must obey the (a) “lawful command of his superior officer”; (b) 891.ART.91 (2), the “lawful order of a warrant officer”; 892.ART.92 (1) (c) any “lawful general order”. However, Driscoll incompetently fails to take into account the unique nature of cases that from the outset involve Constitutional issues. The Constitution, and the laws and treaties made in pursuance thereof are the “supreme law of the land”. Actions that claim legal authority but that disregard or otherwise violate the provisions of the Constitution are not lawful. This includes the actions of any branch of the U.S. government.
This has been recognized practically ever since the U.S. government came into existence. In Little v. Barreme (1804) the U.S. Supreme Court first declared a Presidential order invalid on legal grounds. As a result of the decision the Captain of a U.S. Naval vessel had personally to suffer the consequences of obeying an illegal Presidential order. In that decision Justice Marshall wrote:
I was strongly inclined to think that where, in consequence of orders from the legitimate authority, a vessel is seized with pure intention, the claim of the injured party for damages would be against that government from which the orders proceeded, and would be a proper subject for negotiation. But I have been convinced that I was mistaken, and I have receded from this first opinion. I acquiesce in that of my brethren, which is that the instructions cannot change the nature of the transaction or legalize an act which without those instructions would have been a plain trespass.
From the earliest days of the Republic, therefore, it has been clear that commissioned officers bear personal responsibility for the consequences of obeying unlawful orders. They obey such orders at their own risk. The view the United States and its allies applied to German military officers during the famous Nuremburg trials was not some novelty inspired by the arrogance of victory. It was the logical extension of a longstanding doctrine of personal responsibility. Marshall accepted it despite what he saw as “the implicit obedience which military men usually pay to the orders of their superiors, which indeed is indispensably necessary to every military system.”
Lt. Col. Lakin’s conscientious personal concern for the lawfulness of his conduct falls strictly within that well recognized and established doctrine. Just as the German officers were held accountable for their actions, he may be held accountable for his. In this case, for example, the action in question may involve both the betrayal of his oath to uphold the Constitution of the United States and treason against the U.S. government as established by its provisions. He reasonably doubts that Barack Obama is constitutionally eligible for the Presidency. If, despite that doubt, he obeys orders ultimately deriving their authority from an impostor (i.e., a person claiming to be someone (a natural born citizen) he is not) he cannot escape personal responsibility for the consequences. If the general election in 2012 brought into office a Congressional majority disposed to investigate Obama’s claims; and if that investigation were to substantiate the doubts about his eligibility for the Presidency; then any and all officials of the U.S. government and/or officers of the U.S. Military could reasonably be held accountable for their personal failure to uphold the provisions of the Constitution, which they are sworn to do. At the very least this perjurious dereliction would justify dishonorable termination of their government service. At most, it could warrant the charge they they knowingly subverted the lawful (i.e., constitutionally established) government of the United States.
In light of the individual’s personal responsibility for the consequences of obeying unlawful orders, the notion that only Congress can put the President’s credentials on trial is absurd on the face of it. Legislative and other acts of Congress, like the orders of the President, may disregard or violate the Constitution, and be therefore unlawful. It is irrational to tell individuals in the military that they can be held personally accountable for the consequences of obeying unlawful orders and then withhold from them the latitude of investigation and deliberation required to avoid doing so. This latitude must logically include the right to act on their conscientious judgment as to the doubtful lawfulness of an order, provided they submit to the procedures established to hold them strictly accountable for their decision. This is exactly what Lt. Col. Lakin is doing. (The circumstances remind me of the situation in an officiated tennis match when a player has to stop play in order to challenge a line call. Only in this case the suspension of action avoids possible treason, atrocity or other morally fatal affronts to duty and conscience.)
Unfortunately, by his action the Article 32 hearing Investigating Officer suggests that the military will refuse to allow Lt. Col. Lakin to prepare and present the reasons for his action. He will therefore be convicted without being heard, in a trial that makes a mockery of justice. Given this evidently serious possibility, we can reasonably suspect that Lt. Col. Lakin will not receive a fair trial in the military venue? This suspicion is aggravated by the fact that, strictly because of his conscientious question about Obama’s claim to Presidential authority, military officials have already doctored Terry Lakin’s previously outstanding fitness evaluation .
The U.S. Army recommended that Lt. Col. Terrence Lakin be promoted to colonel and described him as “an extremely talented, highly knowledgeable senior Army clinician with significant field and consultant experience” in an evaluation that came two weeks after he posted an online video declaring he would refuse orders until President Obama documents his eligibility to be president.
Now military officials have gone back into their records and altered their evaluation, chastising Lakin for not having “the sound judgment required of a senior officer.”
Such action strongly suggests that a prejudicial environment now exists in the military, sponsored at the highest levels of de facto authority, precluding the possibility that Lt. Col. Lakin can receive a fair hearing at court martial. The suggestion will be proved with certainty should the court martial proceedings be marred by the same ‘kangaroo court’ denial of due process the Article 32 Investigating Officer incompetently imposed. Will the military’s current hierarchy casually sweep aside basic elements of due process of law that distinguish a fair and lawful hearing from the show trials and ‘kangaroo courts’ used to deodorize a tyrannical, lawless application of force? Will the long and honorable military tradition of respect for the Constitution of the United States be thus shamefully brought to an end?
The doctrine of each individual’s responsibility to disobey unlawful orders distinguishes the armed forces of a free and decent people from the conscienceless automatons who stolidly accept and execute the commands of atrocious dictatorship. Without armed forces honorably disciplined by this moral and internal self-respect, the idea of government limited by respect for the rights of the people must speedily deteriorate into a manifest, and therefore short lived, delusion. The unjust treatment thus far accorded Lt. Col. Lakin means that America’s armed forces are being unconscionably pressured to surrender this vital point of honor. His courage and integrity prove that they have not yet altogether done so. By supporting and encouraging him we can help to assure they never will.
You can help: Sign this Declaration of Support. Circulate the link and encourage the people you know to do so. Then visit Lt. Col. Lakin’s support site, Safeguard our Constitution, and donate whatever you can.
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After reading every word in this discussion, and without my input until now. I must say the legal arguments are fascinating and they work well in a Perry Mason show, but we are actually talking about a man and his country. The man could be ruined for life over this simply because the illegal alien in the white house is above the law and no less the Constitution. Not being an expert at law I will submit to you that none of this discussion need be. The REAL culprit in this case is NOT Col. Larkin, rather it is the person in the white house. If you wish to convict someone for wrong doing , put obama on trial. They ran a birth certificate check on Sen. John McCain to prove his eligibility, why not obama too ? He’s the one thumbing his nose at the Constitution. Without that one fact being addressed , the blame in all of this falls on innocent shoulders, Col. Larkin. One man with courage is a majority. It would seem to me that the so called vindicators of liberty sitting in their comfortable Washington offices could bring themselves to grow some gonads and stand up to the dictator and force him to submit to the same laws as Col. Larkin then and only then will the remnants of liberty be salvaged. Otherwise what you have in the white house is a 21st century Hitler. At a lofty height where no law can go. I love my country and I am so sad to see it being torn into little pieces. I don’t trust ANY politician anymore. We, the American people, have been betrayed. Trust is like a mirror. If it gets broken it can be repaired, but the image is never the same.
When Lt Col Lakin failed to obey an order by his superior officers then Uniform Code of Military Justice will be applicable. The Article which governs failure to obey order or regulation is Article 92 which provides:.
ART. 92. FAILURE TO OBEY ORDER OR REGULATION 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 any 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.
The government needs to show the following elements to meet its burden of proof that Lt Col Lakin violated Article 92:
Elements.
(1) Violation of or failure to obey a lawful general order or regulation.
(a) That there was in effect a certain lawful general order or regulation;
(b) That the accused had a duty to obey it; and
(c) That the accused violated or failed to obey the order or regulation.
(2) Failure to obey other lawful order.
(a) That a member of the armed forces issued a certain lawful order;
(b) That the accused had knowledge of the order;
(c) That the accused had a duty to obey the order; and
(d) That the accused failed to obey the order. Manual for Court Martial United States, page IV-23 (2008 Edition) http://www.uscg.mi l/legal/mj/MJ_Doc/ mcm2008.pdf
As such, the government only needs to show that Lt Col Lakin violated an order, that the order was lawful, that Lt Col Lakin had a duty to obey the order and that Lt Col Lakin failed to the order.
If Lt Col Lakin wants to show that the order was unlawful then he
has the burden of overcoming the presumption of lawfulness of the order. United States v. Hughely 46 M.J. 154 (1997). However, the order to deploy soldiers is a nonjusticiable political question. United States v. New, 55 M.J. 95, 109.(2001). Moreover, the accused may not excuse his disobedience of an order to proceed to foreign duty on the ground that it does not conform to his notions of legality. United States v. Johnson, 17 U.S.C.M.A 246 (1967).
Since motive is not an element of the offense under Article 92 then his beliefs about the lawfulness of the order is irrelevant on the merits. See United States v. Huet-Vaugh, 43 M.J. 105 (1995)(violation of Article 87 “missing movement”)
Moreover, since the issue of lawfulness of an order is to be decided by the military judge presiding a court martial, the military jury in the court martial who is the trier of the facts will not heard LTC Lakin’s explanation and/or motives as to why he violated the order. See United States v. New, 448 F.3d 403 (D.C. Cir. 2008)(accused court martial for failing to follow order in wearing United Nations insignia — a shoulder patch and a field cap — to his basic uniform)
As such, LTC Lakin’s beliefs as to the illegitimacy of Obama’s presidency as a defense to his disobedience to an military order is irrelevant since his belief is not an element of the offense he is charged. United States v. Huet-Vaughn, 43 M.J. 105 (1995)
See my previous reply. The lawfulness of the deployment order is not questioned as to its content. Where the credentials of the issuing authority are in doubt, verifying those credentials simply involves investigating a matter of fact. If a military judge or any other tribunal or jury decides a matter of fact without examining the facts, what they do is not a trial, but a travesty.
By the way, Col. Lakin does not appear to question the legitimacy of Obama’s presidency as a matter of philosophy, politics or ideology, etc. When I was serving as an Ambassador at the UN the guards at the entrance to the State Department building required that I show my credentials every time I entered it. They were not questioning the legitimacy of my Ambassadorship, they were simply making sure that I was who I purported to be. Where the Presidency is concerned, this is not just a question of the identity of a particular individual. It has to do with the integrity of the constitution’s vestment of power in that individual. By its terms, no such vestment takes place unless the person is of age (35 years) and a natural born citizen. If, on examination of the facts, the vestment of power is shown to be constitutionally impermissible then the individual is not and never was who he claims to be (President, Commander in Chief). In that case no orders or other actions dependent on his authority could ever have the authority of law. (Whoever claims that they could would have to show the authority, higher and other than the constitution that is the source of that lawfulness, i.e., they would have to appeal to an extra-constitutional authority, on which they rely instead of the Constitution. Such reliance would literally involve abrogating the Constitution. But all U.S. civilian and military officers are sworn to uphold it. In what sense is an order that requires military personnel to abrogate the Constitution (the Supreme Law of the land) a lawful order? Only in a sense that puts a new order, a new form of government, in place of the Constitutional one. That’s a revolutionary order that it is surely not acceptable for the U.S. military to carry out. Col. Lakin raises a simple question of fact. Those trying to justify their refusal to address it are the ones using arguments that raise the mother of all political questions.)
LTC Lakin’s attempts to challenge Obama’s orders will fail under the political question doctrine.
The judge in LTC Lakin’s court martial will not allow the defendant to go on a fishing expedition through discovery to find out if Obama is constitutionally eligible to be president. The judge will denied his request as being immaterial and irrelevant to his violation of Article 92 (FAILURE TO OBEY ORDER OR REGULATION) and furthermore, the judge will ruled as a matter of law that the deployment order was lawful. See Manual of Court Martial (2008 Edition) Paragraph 14 (2)(a) page IV-19
Upon his conviction for violating Article 92 and after exhausting his administrative remedies in the military court system, LTC Lakin will file a petition
for Habeas Corpus in the federal district court arguing that court martial judge violated his Fifth Amendment rights in refusing to permit him to discover whether or not Obama is constitutionally eligible to be president .
The federal district court will affirm LTC Lakin’s conviction and following established Supreme Court precedent in Baker v. Carr (Political Question doctrine) it will also hold that LTC Lakin’s discovery of Obama’s eligibility is barred by the Political Question doctrine.
The federal district court will rely on the language in the United States v. New, 448 F.3d 403 (D.C. Cir. 2006) decision in which the New court observed:
“[N]othing 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, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962), “an unusual need for unquestioning adherence to a political decision already made,” 369 U.S. at 217, 82 S.Ct. 691, 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 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, we have no difficulty accepting the military courts’ reliance on the doctrine. Id.
As such, the judge of LTC Lakin’s court martial will ruled as a matter of law that the deployment orders were lawful and under the Political Question doctrine, LTC Lakin’s attempts to disprove Obama’s eligibility is immaterial and irrelevant.
Colonel Lakin’s defense depends upon matters of fact and requirements plainly stated in the U.S. Constitution, which is Supreme law of the land. These matter do not per se involve any political judgment or decision. The possibility that the establishment of those facts has this or that political consequence does not make the decision about them a political question. (For example, the decision to bind the participants in the infamous Watergate burglary over for trial, and the investigation of the facts required to do so, had enormous political consequences, reaching to the very highest level of the U.S. government. That in no way made a judicial determination of those matters a political question.) In fact, judicial integrity requires that such extraneous political considerations be set aside. Once the facts (Obama’s age and circumstances of birth) are established, the question of whether an issue exists as to his eligibility is immediately clarified by those facts. If an issue exists then Col. Lakin can justify his action on the basis of the substantial and conscientious risk that obedience to the order violates his sworn duty to the constitution, which he is morally obliged to fulfill. Obeying the order of a constitutionally unauthorized person strikes a mortal blow against the existence of the constitutional sovereign just as plainly as firing a weapon into a ditch filled with unarmed civilians strikes a mortal blow against their lives.
No question of fact bearing on the lawfulness of the armband order was at the root of Michael New’s actions. Col. Lakin is not saying that the contents of the order he has received are somehow unconstitutional- rather he is taking note of the fact that substantial doubt exists as to whether the person on whom the authority of the order depends is who he purports to be. (An otherwise lawful order coming from someone pretending to hold a certain position or rank but not actually entitled to do so is not a lawful order. If in the ordinary course of things an officer in the military encounters substantial reason to doubt that the person issuing an order is factually who he or she claims to be, common sense dictates that anyone would recognize as such require that, in a prudent effort to maintain the actual integrity of the chain of command, the officer suspend his execution of the order until the claim is verified. (Just as ships sometimes fly false flags, people have been know to wear false uniforms or make use of false credentials.) This is especially true if, in and of itself, the acceptance of a false claim of authority involves a substantial risk that the officer will harm or destroy what he and the military as a whole exist, and are sworn, to defend. In this case, obeying the false authority involves an assault on the real one, i.e., on the Constitution itself.
In such a situation of possible imposture the officer would of course be obliged to take every possible step to verify the real facts so that one way or another the lawfulness of the order is clarified. Anyone at a guard post might encounter such a situation. The major difference in this case is that the individual with questionable credentials happens to claim the position of Commander in Chief (on whose authority that of the whole chain of command ultimately depends), and the credentials required are not mandated by some routine regulation, but by the Supreme Law of the land. Col. Lakin does not claim to be in a position to ascertain the facts needed for a resolution. Nor does his suspension of execution involve any “self-help” disobedience. He is simply asking that those in a position to ascertain the required facts do their duty so that he and all other members of the military may in good conscience proceed with theirs.
The tragedy in all this is that the question involved is of such magnitude that, without meaning to do so, America’s military leaders could end up cooperating in the overthrow of the constitution they are sworn to uphold simply because they refused to demand that the civilian authorities they are duty bound to respect follow the orders of the Constitution, as both military and civilian officers are sworn to do.
I. Until I looked it up, I mistakenly thought court martials were like military tribunals and could not be appealed. Note the last paragraph of this quote. Is there hope after all that the Lakin case could make a difference by getting to SCOTUS through appeal? Very far-fetched, but apparently possible. Hopefully, my worst fears are unfounded and this court martial will not be a kangaroo court.
http://legal-dictionary.thefreedictionary.com/Court-Martial
“Greater convictions [more than 6 months confinement] are automatically appealed to a court of military review, which considers matters of fact and law. Consisting largely of higher-ranking military judges, these courts exist for each branch of the military and have a total of 31 appellate military judges. The Uniform Code of Military Justice requires them to review serious sentences such as confinement of one year or more, dishonorable discharge, or dismissal of officers or cadets. Sentences to general officers and flag officers are also reviewed automatically. In all cases, defendants are granted free counsel for their appeals.
At the next level, the Court of Military Appeals—composed of five civilian judges who are appointed by the president of the United States—may decide to hear any petition from an unsuccessful appeal to a court of military review.
Finally, once military remedies have been exhausted, federal courts, including the U.S. Supreme Court, will review a court-martial conviction for claims of denial of constitutional rights.”
II. Here’s a comment from “Alec” on Repubx.com regarding LTC Lakin’s case:
http://69.84.25.250/blogger/post/Video-Officer-to-Obama-See-you-in-court.aspx
I noticed a profound difference between the officer’s oath and the enlisted oath. This difference is significant in regard to the Army’s stated position that LTC Lakin takes orders from his immediate superiors and not directly from the (usurper) “president.” Here are the two oaths to compare:
U.S. Military Oaths:
The Commissioning Oath
“I, _____ , having been appointed an officer in the (Service) of the United States, as indicated above in the grade of _____ do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign or domestic, that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservations or purpose of evasion; and that I will well and faithfully discharge the duties of the office upon which I am about to enter; So help me God.” (DA Form 71, 1 August 1959, for officers.)
The Enlistment Oath
“I, _____, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; and that I will obey the orders of the President of the United States and the orders of the officers appointed over me, according to regulations and the Uniform Code of Military Justice. So help me God.” (Title 10, US Code; Act of 5 May 1960 replacing the wording first adopted in 1789, with amendment effective 5 October 1962).
You will note that the enlistment oath requires to “obey the orders of the President of the United States and the orders of the officers appointed over me…” The officer’s oath makes no such affirmation. The difference is by design. An officer’s SOLE obligation is to support and defend the Constitution, which is EXACTLY what LTC Lakin is doing. If he were an enlisted man, then the Army might have a case, but the differences in the oaths are not by accident.
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Alec
If this is accurate, it would be hard for any attorney to botch this case, just let the truth speak for itself. The Lakin case is of monumental importance. All the previous cases were dismissed for bogus reasons, such as lack of standing, but if this trial is given enough exposure it will be more difficult for the socialist regime to fool the American public.
Nice reply Alec, well written and to the point. Thanks.
This military court is part of the Executive Branch. The president controls this court because it is part of the Executive Branch, not part of the (theoretically) independent Judicial Branch.
So the situation is analogous to a situation where the plaintiff and the judge are controlled by the same entity. So there is an inescapable conflict of interest. If not the president’s eligibility were in question but some generals’ wrongdoing, this conflict would not exist, because the general has no control over the executive branch and the military court.
What do you think? Is there a conflict of interest? And if there is one, can the defense use that to their advantage?
Also, what is the path of appeal from this court, if any?
Can the defense, on appeal, transfer the case to a court under the Judicial Branch? In that event, the new court would have difficulty blocking it with the Standing Doctrine, as the defendant will have suffered particular and personal injury.
The point here is most important of all. Suppose that an officer commanding troops in Afghanistan decides that the ROE are nefarious thus putting his troops in jeopardy and decides to issue orders countermanding those ROE. That CO gets brought up on charges for disregarding those ROE which put his troops in jeopardy, he now has to defend his actions in the same manner as LTC Lakin stating that the ROE are in themselves unlawful because of the issue here before us.
If I were to become the next POTUS, the eligibility investigation would commence immediately. All high command officers would be brought up on charges of dereliction of duty in regards to their oath to constitution. Resignation wouldn’t be allowed because they would just get their pension thus trial will be the only option
Obama had the choice to court marshall lakin or re-assign him like he did to the other person that questioned him.
Before he chose which path to take, I think we all knew that he would never select the court marshall path unless the fix was in and he was guaranteed there would be no discovery. Otherwise, he never would have had lakin court marshalled.
So it’s great to be outraged by this terrible injustice, but there’s no reason to be surprised.