Oh, For Goodness Sake

What Can Birther Lakin Expect?

The Army has issued this statement:

On Thursday, April 22, the Medical Center Brigade Headquarters Company Commander preferred charges against LTC Terrence Lakin pursuant to the Uniform Code of Military Justice. LTC Lakin was charged with one specification of a violation of Article 87, Missing Movement and four specifications of a violation of Article 92 (three specifications of Failure to Obey a Lawful Order, and one Specification of Dereliction of Duty).

Following the preferral of charges, and service of the charges on LTC Lakin, the Medical Center Brigade Headquarters Company Commander forwarded the charges to the Acting Medical Center Brigade Commander with a recommendation to dispose of the charges at a General Court-Martial. The Acting Medical Center Brigade Commander, in her capacity as the Summary Court Convening Authority, directed the appointment of an Article 32, UCMJ pre-trial investigation to inquire into the truth of the matters set forth in the charges and to secure information to determine what disposition should be made of the case in the interest of justice and discipline.

The date for the Article 32 investigation has not been set. Upon receipt of appointment orders, The Article 32 Investigating officer will establish a hearing date.

A self-identified “JAG, prosecutor, defense counsel and now judge” on Free Republic has posted a likely scenario. He agrees with Phil Cave, a civilian military lawyer and retired Navy judge advocate general, who, earlier in this story, was cited on Military.com:

Cave believes that Lakin’s supporters in the birther movement hope that a court-martial will give defense attorneys the authority to seek, through discovery, other documents to help make their case.

“They think that by using [servicemembers in a court-martial] they can get discovery like you could in any criminal prosecution,” he said. “That ain’t gonna happen. They’re not going to have discovery where they’re going to get the president to produce a birth certificate because, I’m reasonably certain, no military judge, no appellate court and no federal court, and no U.S. Supreme Court is going to say they have a right to get that as a matter of discovery.”

The American Patriot Foundation’s web site for Lakin, “Safeguard Our Constitution,” which started out as a refreshingly clean and professional contrast to the usual Birther site messes, is unfortunately coming to resemble all the others. But that’s by the way. They make their end game pretty clear and the holy grail of Birtherism is the goal:

A vigorous defense of this case presents the ONLY present hope that Americans will finally learn whether their president lawfully holds office. If you want the proof, you can only hope to get it by supporting LTC Lakin NOW. MAKE A TAX DEDUCTIBLE CONTRIBUTION NOW TO TERRY’S DEFENSE FUND NOW.

They issued a press release yesterday, cited on TPMMuckraker, and Lakin said:

“I invited my court martial, and today I stand ready to answer these charges. I was prepared to deploy if only the President would authorize the release of the proof of his eligibility. He refused, and now the court will determine the issue, and my fate. The constitution matters. The truth matters.”

Lakin and his attorney, Paul Jensen, have been making the rounds on right-wing radio shows in recent days. On the G. Gordon Liddy show last week, Jensen hinted that he would try to use discovery to compel Obama to produce a birth certificate.

Getting back to the JAG judge on Free Republic, who goes there, since 2004, by the handle of “jagusafr“:

“This doc’s career is over, and we’ll see whether he spends time in the hoosegow. I expect that, given he’s disobeyed a direct order in time of war, he’ll be dismissed from the service (equivalent of a dishonorable discharge if he were enlisted) and forfeit some pay and allowances.”

“No, they can’t punish him without proving he disobeyed a lawful order. HOWEVER, the UCMJ presumes the order of a superior authority to be lawful. Presumption at law shifts the burden to the person challenging that presumption to show not just reasonable doubt, but a preponderance of proof (more likely than not) that the order was NOT lawful. That’s the hill this light colonel is climbing, and it’s a steep one.”

So, the Army does not have to defend Lakin’s orders to deploy to Afghanistan—there is nothing illegal about an order to deploy. In a Developmental Counseling Form dated March 31, the Army alerted Lakin to that effect and then stated in the charges the order was “lawful.” They simply will show that Lakin disobeyed lawful orders, which he publicly announced he would do and affirmed he has done. It’s Lakin’s heavy burden to prove the orders were not lawful, which he thinks will allow him discovery of the President’s birth certificate for his defense.

“If the accused can show relevance, or that the documents sought are reasonably calculated to lead to the discovery of admissible evidence, then the discovery request will be granted. Speaking as (just establishing a foundation) a JAG, prosecutor, defense counsel and now judge, I think the LTC will have a difficult time convincing the judge that the eligibility of POTUS directly relates to whether the LTC’s superior officer gave him a lawful order to report for deployment.

It bears mentioning here that Lakin is not charged with disobeying orders from the civilian commander in chief, although Lakin’s commission requires strict obedience, no matter who the president is. He is specifically charged with disobeying superior officers, including his commanding officer, who have the delegated authority in his military chain of command. Obama doesn’t enter into Lakin’s court-martial, as far as the charges go, because the orders Lakin disobeyed came from his commander, not his commander in chief.

In effect, if I am understanding properly, Lakin attempts to leapfrog over his chain of command, disqualifying all of their authority, to get at the commander in chief, which could have dire consequences for the services and for the nation, essentially turning our legally authorized combat troops into a huge gang of terrorists, subject to international justice as war criminals. The US military exists through the powers of the civilian government, led by an Executive certified for that role by Congress. Given this Constitutionally mandated order of authority, I wondered, would the military cease to exist as a legal entity—if Lakin ultimately had his way?

Well, that would never happen, because Obama was born in Hawaii, anyhow, and because up and down the chain of command, there are controls in place. The military justice blog CAAFlog explains:

Those orders are lawful regardless of whether the President is constitutionally eligible to serve. No military judge would allow discovery concerning the President’s eligibility to defend against those specs, since any materiaI or testimony obtained would have no relevance to any matter under litigation and couldn’t reasonably lead to the discovery of relevant evidence. I don’t think a military judge would even have to get to the de facto officer doctrine to hold that, but as we’ve previously discussed, the de facto officer doctrine exists for just such cases. If there were a constitutionally ineligible President, the U.S. government wouldn’t grind to a halt and U.S. servicemembers wouldn’t be free to walk away from their places of duty; the de facto officer doctrine would continue to give legal effect to orders by officers such as LTC Judd, COL Roberts, and COL McHugh.

So I took it a bridge too far, and I don’t see this case or any case like it ever getting there, either, but when I looked at this statement by our JAG judge, who also discusses the de facto officer doctrine, I had my nightmare vision.

If you follow that track too far, everybody now in the AOR is an illegal combatant because they’re there pursuant to an “unlawful” order. I’m not willing to put my fellow warriors in that position.”

Let’s pause here to highlight what this highly qualified, fully experienced military lawyer just said about a hypothetically successful conclusion to Lakin’s case: “..everybody now in the AOR is an illegal combatant because they’re there pursuant to an “unlawful” order. I’m not willing to put my fellow warriors in that position.”

Does anybody sane, leaving aside Birthers by definition, really believe the military court-martial, any federal judge in the country, an appellate court, or the Supreme Court of the United States, would ever in a million years put the legitimacy of the armed forces of America in jeopardy, even a little bit, and even if the country were not engaged in two wars?