Posted on 09/14/2010 1:00:58 AM PDT by STARWISE
Complete Title:
Retired JAG Officer Says Judge’s Ruling Against Discovery for Lakin Could Derail Case Based on Legal Precedent
###
A retired JAG officer with over 23 years of experience, says the military judge who ruled against discovery for a Greeley Army officer may have derailed the government’s case based on precedent from another high profile case involving a military officer.
Lt. Col John Eidsmoe, a retired Air Force officer who works for former Alabama Chief Justice Roy Moore at the Foundation for Moral Law, said Lakin is “raising legitimate constitutional questions” regarding President Obama’s eligibility to be commander-in-chief.
Eidsmoe said the issue has been around for several years and was first raised by Phillip Berg, a liberal Democrat who was a Hillary Clinton supporter.
“If he is a legitimate citizen of the United States, he could easily clear that up just by releasing the information to prove it,” Eidsmoe said
“When the national interest is at stake, he has a duty to put personal feelings aside and show us he’s legitimate, if he is.”
Last week at a hearing on the motion for documents relating to the President’s eligibility under the Constitution, the judge ruled Lakin did not have any rights to discovery.
Jensen (Ltc Lakin's attorney) said in the morning the judge listened very intently and she “found our arguments very appealing.”
After lunch she issued a motion ruling against Lakin on all counts. In a meeting with the press afterwards, Jensen said he “was astonished that she would leave them with no defense whatsoever.”
He went on to say that they were going to be given “no discovery at all” and they would be barred from “introducing any witnesses on the legality of the order.” Jensen said that they will immediately appeal the ruling to the Army Court of Criminal appeals as this ruling completely prevents them from providing a defense.
In issuing the decision, Lind said Lakin would not be permitted to call witnesses because it has the “potential for embarrassment” of the President. Margaret Hemenway, spokeswoman for Col. Lakin, said the judge appeared to imply Lakin could be a racist by asking if this would be happening if Bush were the commander-in-chief.
~ ~ ~
((Note: this is allegedly how Judge Lind stated the 'embarrassment' issue:
“The potential for embarrassment from multifarious pronouncements by various departments on one question are uniquely powerful to ensure that courts-martial do not become the vehicle for adjudicating the legality of political decisions and to ensure the military’s capacity to maintain good order and discipline in the armed forces.”
~ ~ ~
In the decision the government stated that even if Obama is not eligible it would not matter and all actions taken by the president would still be valid. They also state that Lakin is “duty bound to follow the lawful orders of his superiors even if the eligibility of the President under the constitution is later found deficient.”
The issue of the president’s birthplace is outweighed by “the danger of confusing the issues” according to prosecutors.
Eidsmoe said these statements could possibly cause problems for the government’s case based on precedent set in another recent high profile case involving Lt. Col. Michael Murphy.
Murphy was a high ranking official who served as general counsel to the White House Military office under President George W. Bush.
In 2006 the Air Force discovered he had been disbarred for over 20 years in Texas and Louisiana, however, Murphy had told the Air Force he was never subject to any disciplinary issues. The military charged him with nine counts of conduct unbecoming an officer and one count of failure to obey a general regulation.
At the arraignment his lawyers requested records from his time with the WHMO arguing the records were needed in order to provide a defense. The WHMO refused to release the documents requested and the judge agreed, ruling that the information was not harming the lawyer’s ability to mount a defense to the charges which did not directly relate to his time at WHMO.
The Air Force Times reported that, “The information would not relate to the facts of the case but could have been useful in presenting what is known as the "good airman” defense, a doctrine in military law that allows the defense to present information about the defendant’s character and job performance.”
The judge also ruled that a lack of access to the records would affect the defense’s ability to demonstrate Murphy’s good conduct and performance during the sentencing phase of the trial, calling the ability to present mitigating evidence about conduct “a substantial right of a military accused.”
The judge also ruled that even if found Murphy he could not be punished and the Air Force of Criminal Courts agreed.
Eidsmoe said the circumstances in the Murphy case are very similar to Lakin’s case with the refusal to allow documents and witnesses related to the President’s eligibility.
Two days prior to the ruling, a former three-star Air Force general I who was a command pilot with 407 combat missions, filed an affidavit supporting of Lt. Col. Terry Lakin. Retired Lt. General Thomas McInerney said in an affidavit filed prior to Lakin’s September 2nd court hearing that officers are and must be “trained that they owe their highest allegiance to the United States Constitution.” He goes on to state as part of a training officers received is that they “must disobey an illegal order.”
On the eligibility issue, McInerney said “if he is ineligible under the Constitution to serve in that office, that creates a break in the chain of command of such magnitude that its significance can scarcely be imagined.”
He went on to note part of his duties including commanding forces equipped with nuclear weapons and it was important “that the personnel with access to these weapons have unwavering in absolute confidence in the unified chain of command, because such confidence was absolutely essential in the event the use of those weapons were authorized.”
Gen. McInerney was the former assistant vice Chief of Staff, headquarters U.S. Air Force Washington, DC. Additionally he has logged over 4100 flying hours, including 407 combat missions as a command pilot. Commenting on Lakin’s refusal to obey orders, the general praised him saying, “In refusing to obey orders because of his doubts as to the legality, LTC Lakin has acted exactly as proper training dictates.”
Praising Lakin for following his conscience, McInerney said it was vital for the judge to grant Lakin’s request for discovery pertaining to the President's birth records as “absolutely essential to determining not merely his guilt or innocence, but to reassuring all military personnel once and for all for this president whether his service as commander-in-chief is constitutionally proper” noting that the President “is the single person in the chain of command that the Constitution demands proof of natural born citizenship.” He also said that “allowing access to these records is critical to our Republic.”
Supporters of the President have said there is no need for Obama to release any of the records requested because the online copy of the certification of live birth released during the campaign is sufficient proof. They also claim that the President is under no obligation to release them citing privacy laws.
McInerney disputes that saying, “The invasion of his privacy in these records is utterly trivial compared to the issues at stake here.
McInerney is the third former general to come out in support of Lt. Col. Lakin, and the highest ranking member of the military thus far.
Other discrepancies in the President’s childhood history have also helped fuel the controversy. Obama's half-sister, Maya Soetoro, claimed in an interview with the Rainbow Newsletter in 2004 that he was born at Queens Medical Center in Honolulu on August 4, 1961. In an interview with the Honolulu Star Bulletin in February 2008, she stated that he was born at the Kapiolani Medical Center for Women and Children.
Additionally, there are numerous foreign news sources disputing his Hawaiian birth. The Kenyan Observer in 2008 made reference to “the Kenyan born senator.” African Travel Magazine declared “as Kenyan born, US Senator Barrack Obama gets into Kenya today…”
“No, what you want is for Lakin to be able to haul Obama into court, regardless of the irrelevance of his eligibility. That is not going to happen. Lakin WILL get a full defense. He will have access to every scrap of relevant evidence he needs to defend himself against the charges he’s facing. Just because you think he should have free reign to go fishing for anything and everything doesn’t mean his trial won’t be fair.”
No, I don’t want him to “haul” the POTUS into court. I want him to be able to subpeona any original documents his defense choses to use and to conduct a defense they chose to conduct. If you want to call that fishing....so be it; I’m for fishing. You can call it nonsense, which you have, but if examination of passport and birth records could potentially indicate that LTC Lakin’s assertions are correct it should be allowed; it does not harm the President if false...it affirms him. Challenging the consitutional legitimacy of a POTUS is a new thing. As I have already conceded, the issue about his Father is something that must be decided by SCOTUS because it is an issue of COTUS interpretation. However, IF any of the so-called “birther” allegations are true, and the Colonel has staked his future on it...he needs to be able to prove his assertions or shown that they are incorrect. The careful drafting of a charge sheet is a JAG ploy to avoid the issue. Granted it is common practice.
Why do we keep repeating the same stuff....aren’t you tired of this? I know I am. It is going nowhere. Watada, etc. were different cases, although you disagree, and they treatement they received is NOT that warranted towards LTC Lakin. So, how many times must we keep diagreeing?
BTW - The information about the pacifist tendencies of previous defendents you cite are found in the open literature. No....I’m not going to dig up the material...you wouldn’t accept it anyway.
I think you trully believe the cases are the same. I will not question your integrity. I accept that you think you are “acting” in the best for military order and discipline. Once again, I simply disagree with you.
I also concede that from a military law position, you are correct on the technicalities of the military justice system. However, even though I’m a military man, I can see the error in being too much by the book. Once again, that is my opinion and not fact.
Well, as before, we are just repeating the same things over and over. Goodnight and keep safe and warm.
Apparently I hit a nerve. Was it the Obama basketball you gave to your son?
Now go out to your car shine up the “Got Hope” bumper sticker. Enjoy it before he gets impeached.
You are consistent with your insults.
Did you ever take anger management classes?
These insults of yours are sprinkled in so many posts. We are really pissing you off.
Why all the hostility Brother? Wheres the Love? The hope, change?
Jackasses generally do.
You think that just because I identified you as a Birther you hit a nerve? Truly a legend in your own mind.
And as I pointed out, he is entitled to subpoena any original documents relevant to defending himself against the charges against him. He cannot subpoena anything and everything. If he wanted to subpoena defense secrets, crypto codes, or intelligence on China or Pakistan on the grounds that he needed it for his defense then should he be able to?
You can call it nonsense, which you have, but if examination of passport and birth records could potentially indicate that LTC Lakin’s assertions are correct it should be allowed; it does not harm the President if false...it affirms him.
Shouldn't Lakin be more concerned with defending himself against the charges he's facing? That's what the court martial is about. If Lakin wants to continue to expose Obama and uncover his eligibility then he can certainly do that...right after he gets out of Leavenworth. But the court martial is not the forum for that.
The careful drafting of a charge sheet is a JAG ploy to avoid the issue. Granted it is common practice.
How is charging Lakin with the offenses he committed a 'careful drafting of the charge sheet'? Can you explain that to me?
BTW - The information about the pacifist tendencies of previous defendents you cite are found in the open literature. No....I’m not going to dig up the material...you wouldn’t accept it anyway.
Won't? Or can't?
I can take it, hurl a few more. I got the mitt on.
“How is charging Lakin with the offenses he committed a ‘careful drafting of the charge sheet’? Can you explain that to me?”
Before I continue this...I need you to be forth coming on your background. What is your, if any, past and current military background, your general rank, etc and what you did or do for the military. I need to know your political views. For instance, did you support and vote for President Obama in the last election? Are you a conservative...if so, what category. What is your ethnicity. I am a WASP and made it clear on my profile page....yours is blank. It is difficult to rationally discuss an issue with someone who is a blank slate.....I cannot tell, in some circumstances, if you are genuinely unaware or just being obtuse.
You cannot seem to understand that we have different opinions and that really puts an end to a circular arguement. So, before this proceeds....you need to state who and what you are.
My last few posts I have been very civil to you, but you always act like a prosecuting attorney and generally unpleasant. Time for some discovery on you.
Come clean or please leave me alone. I expect the same courtesty I have extended to you.
You do like irrelevant information, don't you? I was Navy ROTC. I spent almost 9 years on active duty and years in the reserves so I can safely say I spent most of my adult life in the military. As far as rank is concerned I was at the same level as Lakin is. I was SWO so I am not a lawyer, but am aware of legal proceedings and military law. I'm a conservative, and have no idea what you mean by 'what category.' I know you Birthers love to claim that anyone who does not follow you in lockstep just has to be a liberal but I have to disappoint you on that. I did not vote for Obama, do not support Obama, I think that Obama has been a disaster, and I hope and pray he's a one term president. I love the military and will defend it against those who would weaken it or accuse it of corruption in Lakin's case. I disapproved of the actions of people like Huett-Vaughn and Watada and New, and place Lakin in the same category as them. But you already knew that part. My ethnicity is none of your damned business.
You cannot seem to understand that we have different opinions and that really puts an end to a circular arguement. So, before this proceeds....you need to state who and what you are.
If you keep doing what you're doing, you'll keep getting what you're getting. If you want take the discussion a different tack then read Colonel Lind's decision and tell me where and why you think she's wrong. As it is, you keep repeating the same bogus claim that all orders originate with the president which has to mean all orders given since January 2009 are illegal. Justifying that claim would also be a start.
“I love the military and will defend it...”
I too love the military. So, that much of your statement I can agree with. The other particuliars I cannot agree with you. I respectfully submit, IMO, you are wrong in regards the LTC/Dr. Lakin.
I thank you for the honest answer about your background. I thank you for your military service.
“I love the military and will defend it...”
An additional PS. You might find it amusing that I am a very old, but still serving, field grade officer, Army Reservist.
However, my initial military service was from 1972-1976 in the USN in enlisted service. I was a Yeoman, and about two years of that time I functioned as my command’s legal yeoman and mast yeoman. My commanding officer was a Navy Captain and the XO a Commander (like yourself). This doesn’t even remotely make me a expert on the UCMJ and military justice, but I’m not entirely ignorant of it either, having seen it work where the rubber meets the road. I spent many hours using the MCM in drafting charges and specifications.
Also, I want to say that even though my views on the Lakin case are different than your own. I appreciate your desire to protect the military from a breakdown in discipline. I am fully convinced that is your sole motive, and as such I respect you. You are taking a very hard line, but I understand where you are coming from, and cannot belittle or fault you for doing so. Even though I still disagree with you, I feel I owe you an apology for snide or rude remarks I have made in the forum about you.
Once again, this American and vet thanks you, Commander, for your service.
It “amazes” real CONSTITUTIONALISTS to see you laying in this pan as left-overs!!!
http://en.wikipedia.org/wiki/File:Cord_%26_Placenta.jpg
A class act from a real honest person???
N-S instead is using derogatory name-calling toward other FRiends constantly. Thank you Sola!!!
Surely you don't include yourself in that category?
We have established that, yes.
No one here on this thread is going to change that with any argument. Minds have been set with cement. Lakin must be nailed to keep the fraud alive. He is now a political prisoner.
No logical argument will persuade. They know Obama is a fraud. But he is Black. And Lakin, to them, has come to represents every cracker they have wanted to punch out.
The truth just hurts too much to have it exposed.
We grew up honoring “Honest Abe”. Truth, Justice and the American way was the creed. We expect honesty, honor, integrity and forthrightness from our President. Its the least we expect. Yet, the very records that this man says qualify him for the office are off limits to the people he governs. From my perspective, this man has become a joke. He is obviously not qualified. He is a con man, plain and simple.
Arguing with his supporters is futile. They know he's a con.
After your bragging to Sola Veritas, it's supprising you can be so dense!
You always amuses yourself and refer to some FRiends as being "Birthers" when they raises the questions about your dear leader's eligibility!!
Meaning that you must be an "AFTER-BIRTHER." FYI a placenta is AKA an "After Birth" leftover, which then would precludes "Birthers" to be included in that category, logically, hmmmm!!!
In the mean time, everyone else must march to his tune because he is above setting the record straight. Poor Michele must continue to eat lobster and Fly to the French Riviera.
Its become a joke. What he needs to plaster to his Forehead is “LOSER” as in disqualified “LOSER” who refuses to leave the stage.
He now governs without the consent up the people. He is a disgrace. The contempt between he and the people is getting thicker by the day.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.
