birferdreams By Verbalobe » Oh, For Goodness Sake

The trial is now on a lunch break.

The National Institute of Military Justice blog reports:

The court members (aka panel, better known as the jury in the civilian world) have been seated. During voir dire, the defense successfully challenged the lone O-5 for cause, and the defense counsel used its sole peremptory challenge to excuse one of the O-6s.

The trial counsel will start proving up the missing movement specification when court resumes around 3 this afternoon.

The O-5 was excused for cause because Lakin is the same rank, and rank of panelists is required to be higher.

Col. Sullivan reports from the trial:

During the hour-and-a-half long Care inquiry, LTC Lakin acknowledged no less than half a dozen times that the orders he received were lawful, and that he in fact had a duty to obey them. Judge Lind found his guilty pleas to be provident and accepted them. The defense then moved to dismiss the dereliction of duty spec as an unreasonable multiplication of charges in light of the accused’s guilty plea to Specification 3. The prosecution did not oppose the motion, and Judge Lind granted it. She then entered guilty findings on Specifications 1-3 of Charge II and on Charge II itself.

LTC Lakin elected to be tried by a panel of officers. The defense asked the judge to advise the members that LTC Lakin had pled guilty to violating lawful orders, and that his pleas were accepted. Neither side attempted to use voir dire to explore their theory of the case. Of the ten officers named to the court by the convening authority, nine had heard about the case; one expressed an opinion negative to the accused, and the judge granted a challenge for cause for that member. The prosecution did not exercise any peremptory challenges; the defense challenged one member, leaving eight. All are O-6s.

The state of play now is as follows: trial will begin at 1500 hours with opening statements on the missing movement offense. Regardless of how the members find on that offense, LTC Lakin will proceed to sentencing. He is, on the evidence and by his own admission under oath, a criminal to be sentenced in accordance with the UCMJ.

Military.com notices the attention whore of Birfistan:

The birther cause did make it into discussion, however, as Lakin spent more than an hour answering Lind’s questions about his decision to plead guilty to failing to report for duty.

Lakin spoke in low tones throughout the morning session, sometimes with long pauses before answering a question or pausing mid-sentence. Around the time he refused orders to meet with several superiors, he said, he was dealing with advice from legal counsel and was wrestling with his own conscience and personal beliefs.

Lakin’s parents and two brothers were among those seated in the courtroom, as was Orly Taitz, the Russian-born Israeli émigré to the U.S. who has filed numerous lawsuits in an attempt to force Obama to release documents related to his birth in Hawaii.

During a break in the proceedings this morning, Taitz told reporters that trials in the old Soviet Union were more just than what was happening in Lakin’s case. She accused the judge of trying to “put words in [Lakin's] mouth” and get him to acknowledge that his deployment orders were lawful. She also claimed Lind’s previous rulings in the case excluded witnesses Lakin wanted to call and discovery of documents related to Obama’s birth.

Saying twice, a court-martial is not “a vehicle to challenge political decisions,” last Thursday an Army judge ran a tank over Lakin’s Birtheristic hopes for connecting the charges against him with President Obama’s birth in Hawaii (or elsewhere, as Lakin wants to believe). Lakin’s defense had asked for Hawaiian officials to be deposed on the matter of the President’s birth certificate, which was denied by the military judge, Army Col. Denise R. Lind, who ruled, essentially, that Presidential ineligibility, even if that were the true case, is not a legal defense against the charges faced by Lakin. In addition to the birth certificate, Lakin’s defense had asked for school records which might include the birth certificate.

What are the charges and of which of them is Lakin guilty?

1-missing movement to Afghanistan

2-disobeying lawful orders

3-dereliction of duty

We know he is guilty of all of them, because he did those things, but also because, even before the video pimped by the GOP hacks at the American Patriot Foundation, on their site Safeguard Our Constitution, he told us, Lakin told us, he would be guilty of doing these things. And American Patriot Foundation saw to it that he told the whole world. At the same time, in press releases issued by American Patriot Foundation, Lakin says: “I am not guilty of these charges, and will plead ‘not guilty’ to them because of my conviction that our commander in chief may be ineligible under the United States Constitution to serve in that highest of all offices.”

Lakin’s case was not this crowd’s first venture into Birfistan. Margaret Hemenway, Executive Director, CEO and Vice President of Public Affairs for the American Patriot Foundation, who is also a contributing editor of Family Security Matters and worked in the Bush administration, was involved in her father-in-law’s failed Birther lawsuit, Hollister v. Soetoro, originally filed in late 2008. John Hemenway is registered agent for the American Patriot Foundation.

Founded in 2003 by former US Senator Bob Smith (R-NH), soon after his Senate term ended, the 501(c)(3) group’s mission, which seems to change with the prevailing winds, was to support “the families of soldiers lost in war”–a project on which they spent no money, according to reports on GuideStar, except for $1000 in 2004 to American WWII Orphans Network. By then, the group’s purpose had changed to “foster[ing] patriotism and relevance to society.” For 2006, it changed again, retrospectively from 2010, when a three-year tax filing was made, to “interest in and respect for the US Constitution.”

Lakin’s civilian lawyer, Paul Rolf Jensen, is the foundation’s Chairman of the Board, President and General Counsel, with both his law office on the east coast and the foundation office conveniently located at 1101 Thirtieth Street, N.W., Washington DC, in Suite 500, one of those rent-an-address places. In 2003, Jensen was Secretary of the American Patriot Foundation and signed its IRS papers for that year, showing $28,000 in donations; $16,000 was spent on “office space, fundraising and organizational conference.”

After seven years with no IRS filings, on May 7, 2010, Margaret Hemenway, as Treasurer, filed for 2004, 2005, and 2006, showing no donations for those years. In 2006, the American Patriot Foundation transferred its assets, $11,000, leaving a zero balance, to the Everglades Foundation, at a time when Bob Smith was Executive Director there and his wife was Administrator. However, in 2009, Smith was still involved with American Patriot Foundation, starting a sub-entity called Americans for Accountability, which concerned itself with Democrat Tom Daschle’s income tax. Both Hemenway and Jensen had been staffers in Smith’s Senate office. In 2010, the American Patriot Foundation, without Smith, again started collecting donations and introduced, as its new and exciting project, LTC Terrence Lakin.

American Patriot Foundation refers to Jensen this way in their fundraising on Safeguard Our Constitution:

American Patriot Foundation’s Legal Defense Fund will pay for all of LTC Lakin’s attorneys fees and costs, and so we urgently need your tax deductible contribution. A noted civilian California trial lawyer has now been hired to be LTC Lakin’s lead counsel. It is expected these fees and costs will exceed $500,000 and therefore it is essential that LTC Lakin’s supporters come to his aid NOW.

Without mentioning that the “noted civilian California trial lawyer” has this ongoing leadership role in American Patriot Foundation. So what did Jensen do, hire himself for $500,000? Nice work if you can get it.

An interesting thread on the military justice blog, CAAFLog, about the poor quality of Lakin’s civilian legal representation, has a comment from former JAG defense attorney, Charles Gittins:

I told LtCol Lakin that he was being badly advised when he called me to join his legal team. I gave him my (very) candid advice. I told him to seek opinions from other military justice experts if he was not willing to accept my advice. He is where he is for a reason. I am very sad for him. He has been deluded by a very incompetent attorney, who has done a disservice [to] our profession and military justice.

It appears Lakin shopped this around, then, and he still ended up with a “legal team” of Paul Rolf Jensen, who, with Margaret Hemenway, runs the American Patriot Foundation; and a military lawyer, whose advice Lakin is apparently not following, supplied by the Army. So what do they need a half-million dollars for exactly and why should donations to this legal fund to pay Paul Rolf Jensen be tax-deductible? It’s at least a curious situation and one I hope somebody more expert in this sort of thing addresses at some point.

Jensen is long associated with GOP Dirty Trickster, Roger Stone, as well. And this is the motley crew Lakin chose for his legal representation. It can only be because of the shared political agenda, since Lakin received a military lawyer gratis. It couldn’t possibly have been for the legal expertise: Jensen’s law practice is in dog bites, seat belt failure, and asbestos cases.

While the days when General Washington would have had him shot at sunrise are behind us, on the advice of the American Patriot Foundation, Lakin has forged a straight path to years in prison, professional devastation, burned-over reputation, and a financial loss in salary and pension of something more than a million dollars; unless something radical happens, this is his future. What will happen to the people who led him there? Nothing. They will go on to the next schmuck, the next political op, the next adventure in disrupting a democratically elected government, and call it saving the Constitution.

Well, they make me sick. But Lakin likes them fine and that’s all that matters. He’ll just have to take what comes of it. No pity party for LTC Lakin. Save it for the family of the physician who had to go to Afghanistan in Lakin’s place or the soldier who died when Lakin might have made the difference. Save it for the proud military tradition, in this country, of respect, honor and obedience to civilian leadership, he has disgraced. Save it for the culture of good order and discipline in the armed services he has undermined. He wants to be a martyr to the Birther cause? Hey, schmuck, you’re a martyr!

Retired US Navy Commander, presently a military litigator in private practice, Phil Cave, was a guest on Reality Check blog talk radio and cleared up one confusing point being spread around right wing sites, concerning the judge’s use of the term “embarrassment.” Cave attended the Article 39(a) UCMJ pretrial motions hearing at Ft. Meade in Maryland on Thursday, covering the story for his blog, Court-martial.com.

He observed in his report:

The military judge DENIED all of the discovery requests and witness requests related to the birth controversy. This was not unexpected. But what was unexpected was the breadth and detail of the rulings, because of the obvious impact on the lawfulness motion. Clearly the findings and rulings anticipated the next motions session. At the end of the military judge’s reading of her findings, Jensen appeared beaten down. He seemed so affected that for some time he failed to stand when talking with the military judge on the record. LTC Lakin remained impassive as always. …

Basically the documents and witnesses are neither (at times she interspersed logically) relevant nor material. … The military judge found that Congress through its power to regulate the armed forces appointed the service secretaries and their service leaders to carry out functions such as order people to deploy, etc. She found there was substantial independent authority in law, regulation, and custom to support the issuance of orders in this situation. She gave passing reference to the de facto officer doctrine and focussed more on the political question doctrine as a justification for denial of discovery and witnesses on the strawman that the presidents status might be relevant in some fashion. …

The defense conceded that with the military judge’s rulings, the orders were otherwise lawful. With that this case is back to the standard case one sees where a Soldier has missed movement and disobeyed orders. …

At this point it seems LTC Lakin will be left to wriggle while his fate is decided in the normal course of business. No doubt there will be some who will try to continue the political aspects of the case but for all intents and purposes LTC Lakin is dead meat. The real question will be sentencing.

As is often the case, the misperception in Birfistan about the judge’s use of the word “embarrassment” in her ruling, stems from reporting on World Net Daily:

Jensen had argued that under U.S.C. Rule 46, a defendant put on court martial has the right to call any and all witnesses and obtain any evidence in his or her defense.

Lind, who took 40 minutes to read her decision to the court, disagreed.

She said opening up such evidence could be an “embarrassment” to the president, and it’s up to Congress to call for impeachment of a sitting president.

As Phil Cave explained on Reality Check, the judge was not talking about embarrassing the President in the sense of shaming him personally, and wasn’t even talking about the President. Rather, as a factor in the Political Question Doctrine, the Judiciary cannot embarrass itself, on one level, by issuing orders it could not enforce, since it is the function of another branch of government, Congress, to impeach a sitting president. Even if she had been talking about embarrassing the President, she would have meant the Executive Branch, because the term is used in the law in relation to other branches of government, not individuals. But in the context, it is Congress, with its specific charge by the Constitution, who would be “embarrassed.”

Dwight Sullivan on CAAFlog cited the SCOTUS decision in Baker v. Carr:

The Supreme Court has long recognized the principle of “nonjusticiability”: meaning that courts of law should decline to exercise their authority to decide matters where judicial intervention is deemed inappropriate. Based upon the Constitutional principle of separation of powers in the three branches of Government, judicial review of “a political question” is precluded where the Court finds one or more of the following:

a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Sullivan also commented:

It’s not that the evidence that LTC Lakin seeks is relevant but won’t be produced due to the political question doctrine. Rather, under the political question doctrine, it’s inappropriate for a court-martial to opine on the constitutional eligibility of the President. And because a court-martial can’t say the President is ineligible, no amount of evidence regarding the President’s eligibility would be admissible (and, hence, it’s not discoverable) because it couldn’t affect the case’s outcome.

Furthermore, the legal usage of “embarrass” has a different meaning than in common English: to obstruct or hinder or hobble. It’s not the Judiciary’s job, in other words, to get in the way of other branches of government doing their jobs. Legal scholar William R. Long wrote an amusing essay in 2005, in which he explored the use of the word “embarrass” as employed in law:

One of the most embarrassing things about language is when you think you know what a word means but then are repeatedly brought up against a different and unfamiliar usage of the term–a usage which turns out to be better attested than the usage you assumed was the “only one” there was. Well, I will take this out of the stratosphere and come right down to earth. I was embarrassed to learn that the way I used “embarrass” in conversation and writing, though correct, was so limited as to be misleading. …

“Embarrass” is derived from the French, where embarrasser means to “block” or “obstruct.” Thus, the first meaning in the OED, going back to 1683 is “to encumber, hamper, impede (movements, actions, persons moving or acting). “The Character of Ambassador, which would delay or embarrass me with Preparations of Equipage.” Or, from 1734, “Hannibal..ran to the assistance of his troops, who were thus embarrassed.” One might also say, in 19th century form, that the contours of the country would embarrass the enemy to a considerable degree. This doesn’t mean that it would make them feel ashamed of themselves; it suggests, rather that it would set up a road block, an impediment, a hindrance, a difficulty.

In a criminal case in the following term, the Court could say:

“This is a criminal case. The motion to advance is made on behalf of the United States, upon the representation of the Postmaster-General, in substance, that the questions in dispute will embarrass the operations of the government…” (91 US at 558).

Phil Cave cautions:

Rather than focus on the word embarrassment readers should consider that the military judge was using different words to express the same prong of a political question doctrine analysis. The correct focus, as it was for the military judge, is the phrase, “or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.” That’s what the military judge said along with an analysis of a number of other factors relevant to her application of the political question doctrine to the issues before her. This was all clearly in the context of her other statements that a court-martial is not a forum to raise and litigate political issues. Whether or not the president has properly served since 20 January 2010 is at this point clearly a matter for political discussion with no place in a military court-room.

Mere earthlings such as we, of course, are not conversant in such arcane legalistic folderol, so the confusion by non-lawyers is understandable. However, you can bet your sweet bippie the myth that the judge in LTC Lakin’s court-martial pre-trial hearing said she didn’t want to embarrass President Obama will be with us until the end of time. Have the false claim emails started yet? I told my sister-in-law I would block her email address, if she sent me a single one more, so I don’t know.

Bearing in mind that Lakin’s crack legal team is calling Birther Alan Keyes as a constitutional law expert for the defense, someone you might think knows something about the Political Question Doctrine, his ignorance of the legal use of the term “embarrassment” is shocking:

She suggests that the evidence might be embarrassing to Obama. Since when is the embarrassment that may attend the discovery that a public official has sworn or acted dishonestly a lawful reason to suppress evidence tending to establish his official malfeasance? Since when does the mere possibility of such official embarrassment justify suppressing the constitutional rights of a person accused of a serious crime and liable, upon conviction, to onerous punishment?

Judge Lind’s words appear at the very least, prejudicial. However, they may also raise the possibility of serious malfeasance on her part. How has she reached the conclusion that the evidence in question may be embarrassing to Obama? Has she privily received communications to that effect? If so, why did she not publicly indicate the source or sources of these communications, so that Lt. Col. Lakin could claim his constitutional right to confront, in a proper hearing, the witnesses against him?

And embarrassing.

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Update: 9/8/2010 – Phil Cave has posted two relevant excerpts from the ruling: Should LTC Lakin be embarrassed?

The above is from the discussion of the political question doctrine. The sole use of the word embarrassment is here:

Does the above compute with what World Net Daily or others have said? You decide.