LTC Lakin Formally Charged (Violation of UCMJ Articles 87 & 92)

American Patriot Foundation ^ | 04/22/2010

[BuckeyeTexan]

Lieutenant Colonel Terrence L. Lakin was charged today with four violations of the Uniform Code of Military Justice (UCMJ) under Articles 87 and 92.

(Chargesheet at the link in PDF format.)

[tired_old_conservative]

“If the defense makes offers a defense that the order is unlawful because Obama is not a legitimate President, the burden would then shift to the government since it has access or can get access to the appropriate documents.”

I'm sorry again, but that's not even remotely true. You don't understand how the process works.

[tired_old_conservative]

You can characterize this as civil disobedience. And what people are missing is that civil disobedience doesn’t have some magic strategy up its sleeve to escape or overcome the law; it subjects itself to it the law in the hopes that the absurdity and injustice of that outcome creates a reaction advocating its change.

[SeaHawkFan]

The Manual of Courts Martial clearly states: “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.”

First, let me state that I fear that this is not going to end well for Lakin.

In the above statement, there are some interesting words included. Those words are "inferred" and "may". Using the rules of construction, and the rule of lenity, it is pretty clear that a defendant has the opportunity to establish that the order is not lawful.

Note that the words "are" and "will be" are not included. As you certainly know - while others may not - words are to be given their legal meaning (or ordinary meaning when there is no specific legal meaning) and words may not be read either into or out of the passage.

The very real problem for Lakin is being afforded the opportunity to prove the orders are unlawful simply because Obama is not a legitimate President. I don't think he will be allowed to do so; and will thus be convicted unless his defense team can somehow create so much publicity about this case that the members of the court martail board will feel safe enough to essentially engage in jury nullification.

If the judge rules that Obama's legitimacy as President is not relevant, that would also create some media attention. A military judge might not want to say that he doesn't care if Obama in constitutionally qualified.

As much as I wish Lakin well and believe he is earnestly trying to do the right thing for the nation, I am not holding out much hope that he will prevail.

For those who think he will lose his license to practice medicine, I am quite confident that there are a number of states that would readily permit him to practice his profession.

[edge919]

You can characterize this as civil disobedience. And what people are missing is that civil disobedience doesn’t have some magic strategy up its sleeve to escape or overcome the law; it subjects itself to it the law in the hopes that the absurdity and injustice of that outcome creates a reaction advocating its change.

Plus, Obama would fail to pass close scrutiny and it would turn out that Lakin was fully justified in using this type of strategy to expose a fraud.

[SeaHawkFan]

Maybe Lakin’s only chance is for Lt. Caffey to be appointed as his military defense counsel if he can get a TDY assignment.

[jagusafr]

Cave is exactly right.

Colonel, USAFR

[jagusafr]

“If the charge is disobeying a lawful order, they have to prove it is lawful.”

Not correct: an order (as you note, Gato) is presumed to be lawful and it’s up to the accused to prove by a preponderance (more likely than not) that the order is unlawful.

Colonel, USAFR

[El Gato]

It's then up to the trial judge to make a determination if that's factually correct

The judge? Or the Court. My understanding is that the Court is the judge of the facts, not the judge, Depending on the makeup of the Court, I'd think they'd be highly adverse to the judge telling them they were not to be the judge of defense's arguments, and that the accused would not be given every opportunity to present his case. I certainly would, regardless of the case, and senior officers tend to be more "protective" of their prerogatives and responsibilities than your typical civilian juror, way more. I've seen that myself in a very similar military environment (Judge, JAG prosecutor, JAG defense, Court or Panel (of which I was the junior member) just not a full Court Martial, but run pretty much the same.

[OldDeckHand]

"In the above statement, there are some interesting words included. Those words are "inferred" and "may". Using the rules of construction, and the rule of lenity, it is pretty clear that a defendant has the opportunity to establish that the order is not lawful."

Without question. And, it's also clear that it's entirely up to the trial judge to make that determination. What becomes problematic for Lakin is the identity of the issuing authority of his actual orders. It's not the President, it's either SecDEF or his Commanding General. From the perspective of the trial judge, the eligibility of the President (or lack thereof) is irrelevant.

Moreover, even if - and this is just purely for the sake of discussion - the trial judge looks past the irrelevancy of the President's eligibility, there's the additional hurdle of the de facto officer doctrine.

And of course, the relevant case law, much of it surrounding Presidential authority and the political question doctrine does not cut well for Lakin either. The courts have not been kind to this type of affirmative defense, and I doubt this case will break from that tradition.

The fact of the matter is a trial judge is NEVER going to grant discovery on the issue of Obama's eligibility, and any lawyer with a week's worth of military legal experience would know that. This is precisely why his 4856 did everything but beg him to seek the counsel of a military lawyer, which of course he was entitled to. He declined that advice, apparently.

With respect to your statement about his medical license, you might be right about finding a sympathetic state. But, the problem for Lakin will come from the DEA. Without a DEA number, which will be in peril due to the unavoidable show cause hearing for his felony conviction, will be tough to hold on to, at least for a few years. He might be able to regain on a probationary basis after some period of time.

[Smokeyblue]

What do you make of this?

What if Lt. Col. Lakin says I don’t need discovery of the birth certificate. Obama’s own website says he’s “native born” not “natural born.” The constitution says he’s not president. He can’t legally follow any orders.

http://fightthesmears.com/articles/5/birthcertificate

“The truth is, Barack Obama was born in the state of Hawaii in 1961, a native citizen of the United States of America.”

[OldDeckHand]

"The judge? Or the Court"

Per the MCM (and affirmed in New), the lawfulness of an order is a matter of law to be determined by the military judge.

[Red Steel]

One other possibility not discussed. If Obama is ever declared not eligible for office, I would expect that a future president will pardon Lakin.

[OldDeckHand]

"My understanding is that the Court is the judge of the facts, not the judge,"

The Court evaluates evidence, the judge determines matters of law. As an example, it's not the Court that makes evidentiary ruling based on law, but the trial judge.

In this particular instance, the MCM makes the lawfulness of an order, not a matter of fact, but a matter of law.

[OldDeckHand]

"If Obama is ever declared not eligible for office, I would expect that a future president will pardon Lakin."

It would have to be a pardon as I'm not sure ACCA of CAAF would vacate the conviction.

[SeaHawkFan]

An interesting aspect of this court martial is the fact that Lakin is a LTC(P). That would mean that the board with likely be composed of 0-6s and above. Not sure if it could also include any other LTC(P)s. If I was Lakin, I'd want all 0-6s who have no chance of making BG. What other potential members would be in a better, and safe position to say FUBO.

The court martial judge is also likely to be an 0-6 and there aren't many 0-7 JAG officers, so political pressure may not be much of a factor there.

If I was a betting man, I would bet Lakin is going to get convicted. Since the court martial board also determines the sentence, I think Lakin would have a chance with a very light sentence that may include only a small temporary reduction in pay, but not a reduction in rank. At that point, I think he will simply be permitted to retire or spend his last two years in a nothing position.

[El Gato]

(ii) Determination of lawfulness. The lawfulness
of an order is a question of law to be determined
by the military judge.
(iii) Authority of issuing officer. The commissioned
officer issuing the order must have authority
to give such an order. Authorization may be
based on law, regulation, or custom of the service.
(iv) Relationship to military duty. The order
must relate to military duty, which includes all activities
reasonably necessary to accomplish a military
mission, or safeguard or promote the morale, discipline,
and usefulness of members of a command and
directly connected with the maintenance of good order
in the service. The order may not, without such
a valid military purpose, interfere with private rights
or personal affairs. However, the dictates of a person’s
conscience, religion, or personal philosophy
cannot justify or excuse the disobedience of an otherwise
lawful order. Disobedience of an order which
has for its sole object the attainment of some private
end, or which is given for the sole purpose of increasing
the penalty for an offense which it is expected
the accused may commit, is not punishable
under this article.
(v)Relationship to statutory or constitutional rights. The order must not conflict with the
statutory or constitutional rights of the person receiving
the order.

---

Looks like there might be some wiggle room there for the defense team. Especially (III)

[El Gato]

Is it a legal target for attack? If it comes down in the ATO, you assume it is.

Unless it obviously is not. Otherwise it's just a restatement of "I was just following orders".

[matthew fuller]

One notable difference between the officer and enlisted oaths is that the oath taken by officers does not include any provision to obey orders; while enlisted personnel are bound by the Uniform Code of Military Justice to obey lawful orders, officers in the service of the United States are bound by this oath to disobey any order that violates the Constitution of the United States.

Text of the Oath:

I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.

From Wikipedia.

[El Gato]

BTW, what if Obama did produce his birth certificate and it confirmed he was born in Hawaii?

Depends on whether the defense relies strictly on the "not born in the US" disqualification to be a Natural Born Citizen. If the rely on that and/or the "not born of Citizen parents", it wouldn't matter a bit. Unless of course it shows someone other than BHO Sr as the father. A US citizen someone. Or no one at all, but even those might not matter since BHO Sr acknowledged paternity in the divorce papers.

[Mr Rogers]

The ATO doesn’t provide a lot of details. And from the air, many things look like something else. So unless there are comments added like “Religious shrine”, then you assume the target has been vetted and is valid.

Law of war includes things like proportional means, collateral damage, etc - and it isn’t to the pilot to decide how those balance out. If you don’t trust your superiors, you resign.