Saturday, May 08, 2010

birther morituri

the interview is just under eight minutes. i doubt the court-martial lasts as long:

cooper: he's a decorated army doctor, and tonight lieutenant colonel terrence lakin has become the face of the so-called birthers movement, whose followers believe president obama may not have been born in the U.S. and may not be eligible to be president of the united states.

lieutenant colonel lakin, who's been an active-duty physician for the military for 18 years, has been ordered to deploy to afghanistan for a second tour of duty. but lakin is refusing that command, saying the order is coming from a commander in chief who he believes may not, in fact, be a natural-born citizen.

lakin has also invited his own court-martial and says he wants proof the president was born in the U.S.

lieutenant colonel terrence lakin joins me now, along with his attorney, paul jensen. i appreciate both of you being with us.

colonel, you say you're refusing your orders because, quote, "there is significant evidence or unanswered speculation that mr. obama is not eligible to be president." you said that in a note to general casey.

now, ignoring the idea that you actually cited speculation as a justification for your decision, but to say there's significant evidence that the president was not born in america is just false. i mean, you're an honorable guy. you've served your country incredibly well. you're a doctor. do you honestly believe president obama was not born in hawaii?

jensen: well, anderson, let me answer as his lawyer ...
cooper: no, no, no. excuse me. wait, this is a doctor — excuse me. this is a doctor. this is a man who served his country for 18 years. i think he can answer a question by himself.
jensen: i think that the lawyer should protect the client from incriminating himself. you say it's false. you're not prosecuting this case.
cooper: ok, lieutenants colonel, if you call up the state of hawaii and you ask for a birth certificate, you're sent a certificate of live birth. that is the official document. and the president has ...
jensen: that is not correct.
cooper: and the president ...
jensen: that is absolutely not correct.
cooper: and the president has released — and the president has released that certificate of live birth — there it is — to newspapers. in 1961, had birth announcements provided by the state of hawaii health department. certificates. the republican governor of hawaii sent someone to personally view the birth certificate at the department of health and says it's there.
jensen: that's not ...
cooper: again, can the colonel not talk for himself? the guy's an adult.
jensen: you said that that's a birth certificate, mr. cooper. now you want to tell the truth to your viewers.
cooper: according to the state of hawaii ...
jensen: that's an abstract, a computer-generated abstract ...
cooper: according to the state of hawaii, the certificate of live birth, and i'm quoting from the state of hawaii health department. the certificate of live birth is the standard form acceptable by federal agencies.

so are you saying, colonel, but you're not actually saying anything. but i would appreciate it if you actually would, and not hide behind your attorney. are you actually saying that all soldiers who currently serve who are from hawaii should be suspect because that's what they provide?

lakin: this is a constitutional matter. and the truth matters, and ...
cooper: well, and answers matter. can you answer my question? should all soldiers who are from hawaii and who have given certificate of live births as their proof of citizenship, should they all be suspect now?
lakin: this isn't a matter about all soldiers. this is a matter about ...
cooper: well, you're saying the president ...
lakin: ... the two positions that are — require — that require a natural-born citizen.
cooper: you've taken countless orders in your — in your laudable service over the years. have you ever asked for any superior's birth certificate?
jensen: you know, that really is — begs the question...
cooper: no, no, no, sir, please let your client answer. you served under general casey. where was he born?
jensen: i'm the lawyer, and i'm going to tell you, mr. cooper, the issue isn't about where general casey was born, where mr. ...
cooper: he doesn't know. because you've never asked the question, because you just assume that they're americans.
jensen: he doesn't have to be a natural-born citizen to be the chief of staff of the army.
cooper: actually, to serve in the united states army, according to your own documents, citizenship papers have to be brought to bear. in fact ...
jensen: that's not the issue. to serve as president of the united state...
cooper: in your own letter ...
jensen: mister — mr. cooper, please.
cooper: in your own letter ...
jensen: ... to be president of the united states ...
cooper: ... to general casey you have said that you had to provide your birth certificate.
jensen: you're afraid of letting me answer. are you afraid of letting me answer?
cooper: no, i'd like your client to answer.
jensen: the issue under the united states constitution is whether the president is eligible to hold the office. that determine — is determined by whether he's 35 years old and a natural-born citizen. those are not requirements for the chief of staff of the army, sir.

and what colonel lakin has said is that there's mounting evidence that he is not. and the original birth certificate has not been released.

cooper: right, ok. there's not mounting evidence. and he has ...
jensen: that's what you said.
cooper: excuse me. let me respond. he has taken orders for years from people, probably thousands of orders. countless orders. he has never questioned the legitimacy of the people he is taking orders from. general casey. but he doesn't know where general casey is born. for all he knows, general casey could be a foreign-born, not an american citizen.
jensen: mr. cooper, if you've done your research, you know that, in the state of hawaii, there's a statute that allows anyone born outside the state of hawaii, including in a foreign country, to obtain a hawaiian birth certificate at any age by going back and filling out a form...
cooper: right. and if you'd done your research, you'd know that, on the certificate of live birth, it would indicate if the person was born in another country. it would say they were born in another country ...
jensen: that's not correct.
cooper: that is correct. that is the fact.
jensen: i beg your pardon. under hawaiian statute 338-17.8, there's nothing that says that in the statute.
cooper: ok.
jensen: you point it out to me if i'm wrong.
cooper: in your complaint to general casey, colonel, you say, quote, that you're not seeking any grandstanding or publicity for this action. how can you seriously say that? i mean, you put out a youtube video with your — talking, frankly, more than you've talked here tonight.

you have this group paying all your legal fees, the american patriot foundation legal defense fund. they've provided the attorney who's sitting next to you. and they're fundraising based on you. they're raising money using you.

lakin: i attempted all avenues i could over a year ago. i submitted an article 138, which is the only way that i could research how to — how to address this issue, asking and begging my leadership for guidance in how to — how to address this issue. and the answers that i got were not ...
jensen: mr. cooper, you — the standard is not satisfying you — the standard is to satisfy ...
cooper: lieutenant colonel, you sound like an honorable man — excuse me. i'm addressing your client. lieutenant colonel, you seem like an incredibly honorable man who's obviously served his country. you're a doctor; you're an educated man. why is it this issue? i mean, of all the orders you've taken, of all the people you've served under, why this, why now? what is it that has got you so, you know, sticking on this issue?
lakin: it's a fundamental of the constitution, and my oath of office is to the constitution. and i believe we need truth on this matter.
cooper: but i mean, what's wrong with the certificate of live birth, in your opinion? what's wrong — i mean, how do you explain a newspaper — two newspapers in 1961 announcing the birth of barack obama in hawaii? which is not something his parents did or his grandparents did. those are based on health records sent by the health department, as it does for every person born in hawaii. and everyone gets a newspaper now.
jensen: mr. cooper, that's simply not correct. and the issue is instead why hasn't the president released the original birth certificate, if one exists? this could be over tonight. tonight. release the birth certificate, if it exists, signed by the doctor in 1961. it's in the state of hawaii's records. if —
cooper: i'm just going to read you a quote from janice okubu from the department of health: "our certificate of live birth is the standard form which was modeled after national standards that are acceptable by federal agencies and organizations."
jensen: but it is not the only form ...
cooper: the governor of hawaii, a republican, has said, and i quote, "i had my health doctor, who is a physician by background, go personally view the birth certificate in the birth records of the department of health, and we issued a news release."
jensen: and she is not going to be testifying at the court-martial. this is a criminal case. the president should release the original birth certificate, and this would be over tonight. these other documents and testimony are not admissible and will not be admitted in court.
cooper: well, i appreciate you being on the program tonight. lieutenant colonel terrence lakin, i appreciate it, as well. thank you, sir.
jensen: thank you.
cooper: you can join the live chat. let us know what you think about this issue at

none of these birther claims will be admissible at trial, which will go something like this:

judge: did you disobey a direct order?
lakin: yes, but ...
judge: guilty. welcome to leavenworth.
lakin: b-b-but ...

or, as the military justice blog caaflog explains:

... while i find the eligibility debate interesting, it is also profoundly irrelevant to the prosecution of LTC lakin. LTC lakin is guilty of missing movement and violating lawful orders regardless of whether the president is or isn't constitutionally eligible to serve. there is no real prospect that his court-martial will result in the production of any documents or testimony concerning the irrelevant issue of president obama's constitutional eligibility to serve as president. instead, the case is likely to be a circus leading to an inevitable conviction. attempts to press the issue on direct appeal will fail because ACCA will hold that discovery into eligibility issues isn't relevant and CAAF will either agree or, more likely, simply deny review, thus foreclosing a cert petition on direct review. collateral review attempts will fail under abstention (if filed before the completion of direct appeals) or because the issue was fully and fairly resolved by the military (if filed after completion of direct appeals). some courts on collateral review may add that they agree with the military courts' determination that president obama's eligibility was irrelevant.


  1. So, IF Obama is not legally Commander-in-Chief, you think that his orders to deploy soldiers to Afghanistan are still legal orders?

  2. the supreme court has already said yes they are:

    "the de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. norton v. shelby county, 118 U.S. 425, 440, 6 S.Ct. 1121, 1124, 30 L.Ed. 178 (1886). "the de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office." 63a am.jur.2d, public officers and employees § 578, pp. 1080-1081 (1984) (footnote omitted). the doctrine has been relied upon by this court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence."