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"A good defense counsel will file an appropriate, and fully researched, motion to dismiss, but the judge won’t grant it in the 39a, he or she will let the appeals court deal with it. As is appropriate, if it’s going to have any precedential value."

I agree that the case gets interesting once it's on appeal. Hamdan v. Rumsfeld proves that there are plenty of JAGs out there that aren't afraid to push the envelope in defense of their clients. I do think, however, irrespective of any unlikely success she might enjoy at the appellate level, I think her Article 86 spec is going to stick like glue even if she prevails in some of her other charges, which is unfortunate as that alone may be enough to cost her medical license.

In answering a prior question that was directed at me, I've taken a little heat with respect to the advice I would have given her. My advice would have been then, and would be now for this young officer to report for duty and to leave the presidential eligibility battle to others don't have quite as much to lose - like her liberty and livelihood.

I appreciate you discussing the case especially since you are experienced in this narrow field of Military Justice, and do believe the good Captain should consider the pros and cons of her future actions at length. As you state she has a lot to lose and she needs to recognize that. It doesn't look like she is a “ring knocker” and might catch a break.

I am aware in California when an Attorney like Orly practices in an area that may be somewhat unfamiliar to them they are supposed to seek assistance or advice from someone who is familiar, such as another attorney or judge. I admire Orly's perseverance, drive and belief in her actions, but I am not so sure she is presenting the cases in the best manner. Sometime she reminds me of the movie “My Cousin Vinnie”, I sure hope the outcome will be positive, but there seems to have been some missteps along the way. I wish her the best of luck and good hunting.

As far as the COLB or BC being all that is needed to prove eligibility, that is just the beginning. At FR both real attorneys and to use the Navy term “head lawyers” (er restroom)have been debating the Natural Born Citizen definition (and evidence)for months. I believe and hope public pressure as well as so many lawsuits will eventually end up with the USSC deciding the issue, unless of course Obama is found before hand to not even be a citizen, thus mooting the question. Failure to have the case heard maybe enough to ignite the masses in serious civil disobedience or worse in a quest for Justice and a government responsive to their grievances. The extreme manner in which Obama is presiding is going to also push the issue to a conclusion sooner or later. Grievances can only be ignored for so long before they escalate.

Here is some background on NBC:

http://federalistblog.us/2008/11/natural-born_citizen_defined.html

http://naturalborncitizen.wordpress.com/

Kercher vs Obama by Atty Apuzzo links to filings on lower right, interesting take on standing states the Executive and Legislative Branches have failed in their duty to examine eligibility and if the Judicial Branch does not, then Article II on Presidential eligibility is unenforceable. I am sitting on pins and needles waiting to see the response of the judge in that case.

http://puzo1.blogspot.com/

fair winds and following seas
rs