Sunday, September 05, 2010

birther on toast

u.s. army lieutenant colonel dr. terrence lakin is toast:

and he can't say i didn't warn him.

of course it's always possible that what looks, to both layfolk and seasoned practicioners, like a fatal drop kick to the groin, may be, to more astute eyes, a carefully orchestrated manuever in a larger overarching strategy:

if convicted, easy reversal and remand by SCOTUS [*].

this is a case where def[ense] adnits the alledged action but claims justicication in doing so, so pros[ecutor] must show "criminal intent." they are denying him the ability to show the lack of a "criminal state of mind," a "mens rea" in latin, a criminal intent.

[* supreme court of the united states]

umm, ok ... whatever.

or it's possible that he knows he's tilting at windmills and wants all the glitz and glory that comes with martyrdom — or at least as much as he can get from his cheerleading squad.

but whichever narrative is unfolding, everyone seems to agree that he's one step closer to his all-expense-paid vacation to fort leavenworth:

CNN — a judge on thursday denied a request for president barack obama to testify at a court martial for a U.S. army flight surgeon who refused to deploy to afghanistan until he saw proof that obama was born in the united states.

the judge, army col. denise lind, said any evidence or witnesses related to obama's citizenship is irrelevant to the charges against lt. col. terrence lakin, who has 17 years of service in the U.S. military.

after failing to deploy with his unit in april, lakin was charged with missing a movement, disobeying a lawful order and dereliction of duty.

the uniform code of military justice says the maximum punishment for both offenses -- missing his plane and disobeying lawful orders -- is a dishonorable discharge and up to two years in confinement. a guilty verdict could also result in forfeiture of lakin's pay, which totals $7,959 a month, according to a charge sheet provided by a group sponsoring his defense.

lakin's lawyers argued that all military orders stem from the commander-in-chief. without evidence that obama is eligible to be president, they say, the doctor's deployment order was illegal.

in addition to putting obama on their witness list, lakin's lawyers had asked lind to order obama's official birth records from hawaii be brought to court for trial.

"if the president is ineligible, you need to know that," lakin's civilian attorney, paul jensen, told lind. "col. lakin needs to know that, the government needs to know that, america needs to know that."

the prosecutors in the case argued that obama's eligibility is not relevant because the officers who ordered lakin to go to fort campbell and then ordered him to answer questions about why he didn't go were his proper superiors in the military chain of command, and they gave him legal orders. jensen later conceded that point.

the judge ruled that the matter of obama's eligibility is not relevant because he did not give any orders in the case. she pointed out that while the president is commander-in-chief of the military, it is congress that is constitutionally empowered to raise armies, pay them and equip them.

any contention that any orders are invalid if the president is ineligible "is erroneous," the judge said.

lind also said that military law says that a soldier's personal beliefs or convictions are not sufficient to allow that soldier to determine that an order is illegal. the soldier has to have "no rational doubt" that the order is illegal before he or she can ignore it.

finally she ruled that a military court martial is not the forum in which to determine a president's eligibility, because the constitution says only congress has the power to impeach and remove the president.

afterward, jensen said he respected the judge's ruling, but called it distressing.

"it completely deprives us of any opportunity to present a defense in this case," jensen said.

the court martial is set to begin in october, but jensen said he's not giving up on the matter of obama's eligibility.

"we will be giving the army court of criminal appeals in the next week or two the opportunity to take up the issue, and we are going to fight on for justice to be served in this case."

lakin is among 27 percent of americans who doubt or deny that obama is american-born, according to a recent CNN/opinion research corp. poll. they compose the birther movement, which demands that obama present a birth certificate signed by the doctor who delivered him in 1961.

CNN and other news organizations have thoroughly debunked the rumors about the president's birthplace. the obama campaign released a copy of a birth record issued by the state in 2007, called a "certification of live birth," and allowed reporters to examine the document in person in 2008.

last year, hawaiian state officials issued a statement that they had personally viewed the president's original hawaiian birth record, called a "certificate of live birth," and verified it to be authentic. state law bars the release of the original certificate. in addition, two hawaiian newspapers ran notices in 1961 announcing obama's birth in the state.

lakin's fate was sealed the moment he disobeyed his orders to report to duty. under military law all orders are presumed to be legal, which places the burden of contesting an order on the subordinate. there is only one perilous defense for disobedience:

an order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. this inference does not apply to a patently illegal order, such as one that directs the commission of a crime.

but lakin wants to argue that:

  1. his orders come from the president.
  2. barack obama might not really be president.
  3. obeying obama's orders could therefore be a crime.

unfortunately for lakin, his argument fails on all three points.

first, while obama is certainly his commander-in-chief, lakin's april orders to report came from his immediate superiors, as reflected in the specific formal charges leveled against him:

THE SPECIFICATION: in that lieutenant colonel terrence l. lakin, US army, did. at or near arlington, virginia. on or about 12 april 2010, through design, miss the movement of US airways flight number 1123. departing from baltimore/washington international airport arriving in charlotte. north carolina. in order to deploy for a temporary change of station in support of operation enduring freedom with the 32nd calvary regiment, 101st airborne division (air assault), fort campbell, kentucky. with which he was required in the course of duty to move
SPECIFICATION 1: in that lieutenant colonel terrence l. lakin. US army. having knowledge of a lawful order issued by lieutenant colonel william judd. to report to the office of his brigade commander. colonel gordon r. roberts. at 1345 hours. or words to that effect. an order which it was his duty to obey. did. at or near arlington, virginia. on or about 31 march 2010, fail to obey the same by wrongfully not reporting as directed.

SPECIFICATION 2: in that lieutenant colonel terrence l. lakin. US army. having knowledge of a lawful order issued by colonel gordon r. roberts. to wit: a memorandum signed by the said colonel gordon r. roberts, dated 31 march 2010, an order which it was his duty to obey. did, at or near arlington. virginia. on or about 31 march 2010, fail to obey the same by wrongfully not reporting as directed.

SPECIFICATION 3: in that lieutenant colonel terrence l. lakin. US army. having knowledge of a lawful order issued by colonel peter m. mchugh. to wit: temporary change of station orders 099-17. dated 9 april 2010, issued by colonel peter mchugh. requiring the said lieutenant colonel terrence l. lakin to report to fort campbell, kentucky not later than 1500 hours on 12 april 2010, an order which it was his duty to obey. did at or near washington. district of columbia. on or about 12 april 2010, fail to obey the same by wrongfully failing to report to 32nd calvary regiment. 101st airborne division (air assault), fort campbell, kentucky.

SPECIFICATION 4: in that lieutenant colonel terrence l. lakin. US army. who knew or should have known of his duties at or near washington. district of columbia. on or about 12 april 2010. was derelict in the perforrmance of those duties in that he willfully failed to report to fort campbell, kentucky in accordance with temporary change of station orders 099-17. dated 9 april 2010, issued by colonel peter mchugh. in support of operation enduring freedom. as it was his duty to do.

note that the name "barack h. obama" does not appear anywhere in these charges, and even if it could be demonstrated that every military order traces back to the president, no court is going to agree that every latrine assignment since noon january 20, 2009 has been illegal.

second, lakin takes careful pains to avoid claiming that obama isn't the lawful president (possibly to avoid added charges of contempt). he only claims that he's unsure and just needs his mind put at ease. unfortunately for soldiers, there is no room for doubt in the chain of command, no matter how sincere. lakin is obligated to follow orders unless he has damning evidence in hand at the time of his refusal. asking for the judge's help to find the evidence that he's required to bring to court himself counts for real chutzpah if nothing else.

third, even if obama were proven ineligible, his orders would nonetheless remain perfectly valid, according to the de facto officer doctrine:

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.

... 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.

all of lakins arguments collide head-on with well-established mechanisms essential to maintaining military discipline and those mechanisms are designed to turn recalcitrants like lakin into toast, which he must full well know:

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 &mdash 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 ...

... answers that he wanted to hear, apparently — confirmed by 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.

now that lakin's legs have been predictably cut from under him, his attorney and his cheerleaders claim that he's not being allowed a defense. but the judge, rightly, wants lakin to defend against the charges he's facing. all that lakin's being denied is the opportunity to rant incoherently. during his trial for the murder of dr. george tiller, scott roeder was not allowed to rant incoherently about perfectly legal abortion procedures. instead, facing a charge of first degree murder, roeder was allowed only to explain if he believed someone's life was in imminent danger or if he were legally insane when he pulled the trigger, because those are the only justifications allowed.

as noted in the cnn report above, lakin's attorney has already been forced to concede in court that lakin's orders were legal. if that leaves lakin without a defense, the person at fault is not the judge.

the toast is ready. it is only waiting to be served.

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