“no officer can legally follow them”
I suspect the courts will say that the civilian authority, i.e. Congress and the USSC, has sworn him in and until he is proven not a US citizen the orders are lawful.
“I suspect the courts will say that the civilian authority, i.e. Congress and the USSC, has sworn him in and until he is proven not a US citizen the orders are lawful.”
Won’t work. Again, the oath officers take is to the Constitution, not the SCOTUS, POTUS, or Congress.
Worse, the military chain of command was designed to have a civilian at the top, not a general. Generals, and other officers, are legally wired to take legal orders, as per the UCMJ, which is a separate system of justice than the civilian system of justice (this is why all the talk of military tribunals instead of civilian legal courts for trying terrorists).
For an officer, it supposed to be simple: Is the order legal? Yes, follow it. Full stop.
If you are JCS, the same rule applies - does the President have the legal authority to issue the order?
No. Full stop. Joint Chiefs should be asking whether they have any legal authority at all to conduct military operations in any theater of war right now, because after last night, the answer is very possibly ‘No’. ‘Very possibly’ (reasonable suspicion) is the only standard an officer needs to question the legality of an order. If he thinks an order is illegal, he’s duty-bound to question it, or go to the brig like Lt. Calley.
One end around an officer can try is to use the same logic law enforcement uses to search a car: exigency. “I searched the car after pulling it over because to take the time to get the warrant from the judge, the suspect would have disposed of the evidence.” You have to have Probable Cause, but you don’t need to get the warrant to search the vehicle. Later, in court, you have to establish Probable Cause to make the evidence obtained from the search admissible in court.
How would an officer use this in this situation? You act on the orders, based on the exigency of the situation - “We were under attack by overwhelming hostile forces” - and you followed orders issued by your commanding officer to order an airstrike on advancing troops, killing hundreds of those troops.
If Obama is not legally allowed to be the National Command Authority, was the order to bomb attacking forces legal? Nope. Should the officer (suspecting Obama’s a Kenyan) ordered to call in the airstrike be subject to court marshall? Technically, yes.
Would they find him guilty of obeying an order he knew to be illegal? Can’t say. They may find him guilty, and find that the punishment to be nothing, not even an entry on his service jacket of the conviction, or in fact, perhaps get a commendation or medal. The problem the jury has is that if he’s found innocent, there goes the Constitution, the Oath, the chain of command, the Calley case precedent, etc.
How do you get around it? Amend the Constitution. The requirement for the President to be a natural born citizen isn’t some arcane bylaw in some United States Code.
For Obama to be legally sworn in by anyone, he’d have to get 2/3 of the States to agree to an amendment allowing foreign-born citizens to be President (otherwise known as the Schwarzenegger Amendment, probably since he made a big deal once of wanting to introduce such a thing). Obama would have to have this done ‘retroactively’, to make all the damage he’s already done, including executive orders signed, stick.
This isn’t going to be a simple fix. As of last night, if you don’t think Obama is a US citizen, you can refuse orders, and apparently the response is going to be that your orders will be rescinded, rather than you go to the brig where you’d normally richly belong.