Ltc Lakin (JAG blog analysis)

LTC Lakin is no longer pending an Article 32, UCMJ, hearing, most likely he is pending consideration for a general court-martial.

Here is a link to the preferred charges pending against LTC Lakin which will be considered by MG Horst, Commander, Military District of Washington, the general court-martial convening authority.

According to a press release from LTC Lakin and others he has waived his right to be present at an Article 32, UCMJ, hearing. The command could proceed with the hearing anyway.

There have been times when an accused waives the hearing but the command goes ahead with it anyway. Apparently in this case the command has decided to accept the waiver and forward the case to Commander Military District of Washington for the next steps in the process.

Note, IMHO, LTC Lakin has waived, forfeited, given up, any complaints he had about the Article 32, UCMJ, process so far by his waiver of the hearing. Having waived his right to a hearing he cannot be heard to complain.

LTC Lakin waived his Article 32 hearing on 4 June 2010. Once the Article 32 was waived, the charges were forwarded by Walter Reed commanding general with a recommendation as to disposition to MG Horst, the Military District of Washington Commander, on 8 June 2010.

It is now up to MG Horst, to determine if the case will go to court-martial and the level of court-martial. MG Horst could also decide that some other disposition is more appropriate than court-martial.

MG Horst is the General Court-Martial Convening Authority for Soldiers assigned to Walter Reed Army Medical Center.

Under Article 34, UCMJ, the Staff Judge Advocate, Commander, Military District of Washington must review the case and make a recommendation to the commander.

The SJA then has to get on MG Horst’s calendar to discuss the case. MDW, like most GCMCA’s, has a regular meeting on legal matters several times a month. So the timing of a decision on this case depends on when the next legal meeting is scheduled for.

2. Return the case to the commander at WRAMC for the commander to deal with administratively (Article 15, UCMJ, action, adverse OER).

4. Forward the case to HRC with a recommendation and request for administrative discharge action.

*** One effect of this waiver is that LTC Lakin has also waived a challenge to the pre-hearing decisions of the IO on evidence and witnesses.

He can no longer argue that the IO (or as he and others say, “the Army”) denied him a fair Article 32, UCMJ, hearing. Gone, done, finished with. He has rendered all of his and his lawyer’s crying about how the hearing was unfair to the wastebasket as meaningless.***

The first step will be for the trial and defense counsel to prepare and submit an Electronic Docket Notice (EDN) to the judiciary. In the document the prosecution will state a proposed trial date.

The defense will either agree or request a different date. A date for arraignment will be set. At that first Article 39(a), UCMJ, hearing little will be accomplished: a trial schedule will be agreed, and the formality of arraignment takes place. Note that many deadlines are already set out in the court rules — Rules of Practice Before Army Courts-Martial.

Upon referral of charges there are certain items of discovery they must provide the defense, and the defense can serve a request for discovery. See R.C.M. 701.

In the event the defense is not satisfied with the discovery provided they can file a motion to compel discovery with the military judge. The military judge will decide the issue.

In addition to a discovery motion the defense can file other motions. One anticipates the defense will file a motion to challenge the lawfulness of the orders given to LTC Lakin. Under United States v. New, it is up to the military judge to rule whether or not an order is lawful.

Col. Lakin is a highly decorated surgeon. People have a high regard for doctors in general and surgeons in particular. In addition the good doctor has an exemplary record and is well respected. If he somehow receives a harsh punishment, it will be covered by the mainstream media and people who are currently unaware of the circumstances will want more detail. They will also want to know why our commander in chief would allow a good man's life to be destroyed by continue to hide his long form birth certificate. It won't be pretty.

I think you're exaggerating. How many people ever heard of Dr. Yolanda Huett-Vaughan? She refused an order to mobilize and deploy during Gulf War I and was court martialed for desertion. No mainstream media. No outraged demonstrations. No wailing about a good doctor being persecuted. She was convicted, sentenced to 30 months, and spent 8 months in Leavenworth before having her sentence commuted. Lakin will make a mild splash among conservatives and then fade away.

These two people, their cases, and the current political atmosphere are so vastly different that I am just not sure that there are many meaningful conclusions that can be drawn by comparing them. Trying to compare the political situation today to what was happening twenty years ago is the first opposite that I would mention. 1990 was a very different time and atmosphere than today. I would be interested in any specific parallels you would like to draw.

I do not have the greatest understanding of Dr. Huet-Vaughn circumstances but the following is my attempt at a condensed summary. More complete information would be welcome. She was seeking conscientious objector status for herself after her reserve unit was activated and about to be sent to Southwest Asia. She believed that war crimes would be committed during the combat that seemed immanent in the Persian Gulf. She had no objection to violence in general, but in the actions which she anticipated in the possible upcoming military operation in which she felt she might be taking part in. She didn't believe that she personally was going to be forced to engage in any crimes.

I would summarize that basically she did not want to participate and that her reasons were sincere but diffuse and rather complicated. I believe she felt that she would be able to raise the public's awareness by filing for conscientious objector status. If you can provide a more coherent summary I would be grateful.

Col. Lakin has a specific objection to his orders. They originate from a Commander in Chief who has not provided enough information to verify his constitutional eligibility. He has a very specific remedy that he wants. I believe he has stated that when Obama produces the long form birth certificate with verifiable information that shows that he was born in Hawaii... that he will deploy. This is a much easier message for people to grasp than what Dr. Huet-Vaughn vague attempt to raise awareness of the evils of war. For a message to be effective with the public it needs to be kept simple.

So to summarize: there are huge differences in the political climate now and twenty years ago, hugely different backgrounds and political orientations of these two different doctors. This is an apples to oranges comparison. Col. Lakin’s message is much easier for people to grasp than Dr. Huet-Vaughn effort to raise awareness of why she felt the upcoming conflict was bad. I think Col. Lakin's efforts are worthwhile and will be notable regardless of the findings of the court.

Partly right. She refused to deploy with her Guard unit and was declared a deserter. She returned to her unit after six weeks or so and then tried to claim conscientious objector status. She was convicted of desertion first, so her CO status remained undecided. At her trial she did indeed attempt to claim the 'Nuremberg Defense' on the grounds that the war was illegal and a crime by the U.S. against humanity, and she feared being held liable for her actions in supporting it.

The cases are, I believe, completely comparable. In both cases you have an officer refusing to obey the orders of their superior in the belief that such an order is illegal. So both refused orders to deploy with their unit. Both claim justification because of illegalities they believe have occured - for Huet-Vaughan it was the war itself while with Lakin it is the status of the commander in chief. In neither case has the defense shown why the order given by their immediate superior was illegal or invalid - not quoted any UCMJ article or any federal law or any court precedent. In both cases it can be said that there was an underlying political agenda, though at opposite ends of the political spectrum.

The cases bear an uncanny resemblance with each other. And I suspect the outcomes will be the same.

Is there nothing in military history or legal actions in which the status or legitimacy of a superior officer was an issue?

I imagine there may well be. But Lakin is charged with disobeying the orders of his brigade commander, not the orders of Barack Obama. Lakin offered nothing to show that his brigade commander was illegitimate or that his orders were unlawful. As I have pointed out on numerous occasions, Obama could be found ineligible and removed from office tomorrow, and Lakin would still be guilty of disobeying orders and missing movement.

I see, so the brigade commander is running the war. Good deal for the CIC. The failure to ascribe responsibility to the CIC is contrary to the way the military functions. Junior officers don't have the authority to deploy troops and execute war plans unless approved and directed by the commander.

All of this is just political masturbation because the guy won't open his records for public view. Something we have a right to know about a person in the presidency.

The cases bear an uncanny resemblance with each other. And I suspect the outcomes will be the same.

Thank you for your summary. The charges are similar, but nearly every other aspect could not be more different. It is possible that the outcomes will be the same but I believe that even in the unlikely event it made it to Court Martial... the verdict is still probably a coin toss. Col. Lakin has a very specific demand that is quite easy to understand and sympathize with.

Obviously Obama is not going to produce his long form birth certificate. If he could... he would have done it already. I am sure that Col. Lakin realizes this. This is all about raising the awareness about the issue. Unlike Dr. Huet-Vaughn this is a specific clear cut issue that Obama would like to go away. This is a surgical strike so to speak. Any opportunity for this to be settled short of a Court Martial and prison sentence will be taken by the government. They will drag it out as long as possible to discourage others from trying the same tactic, but I "suspect" the likely outcome is that it will be swept under the rug with as little fanfare as possible.

I don't know if it will even be possible for Col. Lakin to insist on receiving a Court Martial. But we will see. Obviously you are a very astute person who knows more about obscure military legal history than myself. I do appreciate your opinion and observations. Thank you again.

Col. Lakin has a very specific demand that is quite easy to understand and sympathize with.

Captain Huet-Vaughan had a simple demand as well - a congressional declaration of war legitimizing the conflict.

Unlike Dr. Huet-Vaughn this is a specific clear cut issue that Obama would like to go away.

The Army takes a dim view of people who refuse to obey orders. Be it Terry Lakin, Yolanda Huet-Vaughan, Ehren Watada, or Michael New. All felt that they were better judges of what constituted a lawful order and what did not. All wound up being wrong.

I see, so the brigade commander is running the war.

Nobody other than you suggests that he was.

Junior officers don't have the authority to deploy troops and execute war plans unless approved and directed by the commander.

Again, nobody says that they do. But they do have the authority to issue orders that are necessary to place the orders they receive from their superiors into effect.

All of this is just political masturbation because the guy won't open his records for public view. Something we have a right to know about a person in the presidency.

I'm not disagreeing with that at all. But it is also irrelevant to the charges Lakin is facing.

It is more than a little strange that you mention only leftist pawn soldiers from previous times but none who have brought up Obama's eligibility problems. Why don't you give us the details on what has happened to them? A slap on the wrist? Being black balled by their civilian employer who had defense contracts? And then the discharges? What about the Court Martials? These situation have actual relevance to what is going to happen to Col. Lakin. He is not the first to challenge Obama, just the highest ranking and the biggest threat. You have a very selective memory. You also seem to be incapable of acknowledging that times and circumstances change. Because of this your predictions are nearly meaningless.

“It is more than a little strange that you mention only leftist pawn soldiers from previous times but none who have brought up Obama’s eligibility problems. Why don't you give us the details on what has happened to them? A slap on the wrist? Being black balled by their civilian employer who had defense contracts? And then the discharges? What about the Court Martials? These situation have actual relevance to what is going to happen to Col. Lakin. He is not the first to challenge Obama, just the highest ranking and the biggest threat. You have a very selective memory. You also seem to be incapable of acknowledging that times and circumstances change. of this your predictions are nearly meaningless.”

Actually, I think Non-Sequitur has a very good handle on the facts and the issue.

The situation with Major Cook, if that is what you are referring to, was not similar, as the facts demonstrate:

“On February 1, 2009, Stefan F. Cook, a Major in the United States Army Reserve, contacted lawyer Orly Taitz via e-mail, asking to be part of her lawsuit. On May 8, he volunteered to serve for one year in Afghanistan beginning on July 15, 2009. The Army accepted his offer and ordered him to report on that date. On July 8, however, he filed suit, with Taitz as his lawyer, seeking a temporary restraining order and status as a conscientious objector, arguing that his deployment orders were invalid because Obama was not a natural-born U.S. citizen, and therefore ineligible to serve as commander-in-chief of the armed forces. His orders were thereupon revoked; an Army spokesperson stated, “A reserve soldier who volunteers for an active duty tour may ask for a revocation of orders up until the day he is scheduled to report for active duty.” Accordingly, Cook's case was dismissed as moot on July 16.

Basically, Cook created the circumstance specifically for his litigation. The Army took his litigation as an indication that he wanted his orders revoked and did so. The character defects demonstrated by the above time line would be expected to cause problems in his regular job with a private company contracted by the Defense Security Services, an agency of the Department of Defense.

Orly Taitz’s other client, Captain Connie Rhodes, made her deployment.

This guy and any others should be able to challenge the decision maker at that level and his or her qualifications.

So would you say that officers like Ehren Watada or Yolanda Huet-Vaughan or enlisted men like Michael New were correct when they refused to obey orders for similar reasons? And that rather than be court martialed, the government should instead have taken any steps necessary to satisfy their concerns?

Forcing him to restrict his case to the junior officers merely lets the CIC off the hook for the orders that the CIC initiated.

Lakin is charged with refusing to obey the orders of his brigade commander. That officer gave him the order, not Obama. Why should Lakin be charged with an offense that didn't occur?

It is more than a little strange that you mention only leftist pawn soldiers from previous times but none who have brought up Obama's eligibility problems.

I mention soldiers who refused to obey the lawful orders of their commanding officers and who were court martialed as a result, and I submit that Michael New and his supporters with strongly dispute the 'leftist pawn' label you bestowed on him.

As for the second part of your question, to date Lakin is the only officer who is being court martialed for refusing to obey orders. Other officers, like Connie Rhodes, tried civil suits to avoid going overseas with no better results. Captain Rhodes, to her credit, immediately deployed when her restraining order was denied thus avoiding a court martial of her own.

Why don't you give us the details on what has happened to them? A slap on the wrist? Being black balled by their civilian employer who had defense contracts? And then the discharges? What about the Court Martials?

Why don't you enlighten us?

He is not the first to challenge Obama, just the highest ranking and the biggest threat.

He is the first active duty officer to refuse to deploy because he doubts Obama's eligibility. Other higher ranking officers, retired or reserve, have participated in civil suits. But none have actively courted a trial and jail time over this. Of course, if you have information to the contrary then by all means bring it up.

You also seem to be incapable of acknowledging that times and circumstances change.

Refusal to obey the orders of your commanding officer and refusing to deploy with your unit are serious offenses, regardless of the times and the circumstances.

More specifically, the application for conscientious objector status that Cook filed automatically meant that he no longer qualified for the security clearance that his job required. He was badly served by his attorney.

They’ll choose administrative discharge. They get cover and no discovery.

Birthers can never get in through their heads that you only get access to relevant material with discovery. The Court Martial will not decide if LTC Lakin missed a movement of an aircraft, and failed to report to his Brigade Commander. Nothing else. BO's place of birth isn't relevant to those charges, so LTC Lakin won't get discovery of BOs' birth certificate. Period. No matter how much wishful thinking and speculation Birthers indulge in.

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