Most crimes, with the exception of those involving gross negligence, require a criminal intent.
For example, let's say you were outside and took a picture of the setting sun, and in the process, captured a picture of some new secret airplane. You thought it was a cool picture, so you posted it on the net.
The Russians saw the picture and therefore learned some huge military secret. Are you guilty of espionage or treason? No, because you had no intent to commit a crime.
In this case, the doctor was not displaying cowardice before the enemy, deserting, or anything like that. He is simply saying, “I have a real and deeply held conviction that Mr. Obama may not legally be the president, and therefore any orders issued by him would be illegal and I could be subject to being tried as a war criminal if I followed then.”
The doctor is not denying his refusal to follow the orders. He is saying such refusal is justified, and therefore, the court must consider and explore both the validity of such a contention and even if not valid, the doctor’ dependence on a belief in refusing to follow such orders until; such time as his concern is either put to rest, or proved valid.
And the elements of Article 92 make it clear that orders can be unlawful because they violate the Constitution. So the Constitutional question is absolutely on the table for a court-martial conviction.
The military should not even have been able to accuse Lakin of disobeying a LAWFUL order until they did what Lakin asked them to do all along and ascertained whether the orders were “contrary to the Constitution”, in which case they would not be lawful orders.
The military has no authority to say whether those orders were lawful or not because they can’t determine Constitutionality. They should have filed their own case before the civilian courts in order to get a Constitutional ruling and then on the basis of that ruling decided whether they could charge Lakin with violating a lawful order.
They were chickens. Either that, or they were somehow bribed or threatened into breaking their oaths to uphold and defend the Constitution.
I would add one more thing. Lakin did try in every way possible to get an answer to his question, but was rebuffed at every attempt.
This is a military court of law, not a civilian court of law. Per the Manuel for Courts-Martial (MCM), the elements of this crime (Article 87 Missing Movement) that the government needs to prove are as follows...
(1) That the accused was required in the course of duty to move with a ship, aircraft or unit;It doesn't matter why Lakin did what he did, just that he did it - as far as a military court is concerned.
( 2 ) That the accused knew of the prospective movement of the ship, aircraft or unit;
(3) That the accused missed the movement of the ship, aircraft or unit; and
( 4 ) That the accused missed the movement through design or neglect.
At sentencing, Lakin will have an opportunity to allocute - which means to make a statement - a very broad statement where the MJ will give him wide latitude - and make his case about why he did what he did. Perhaps the panel will find that statement compelling, and will sentence accordingly, and perhaps they won't. But, with respect to Lakin's guilt or innocence, his motivation or intent is plainly irrelevant to the charges he's facing, or so demands the Manuel for Courts-Martial.