But aren’t you asking us to consider your “mens rea” before considering whether you’re really an Obama supporter? Is not your position objectively supportive of him regardless of your personal motivations? And is that not inconsistent with the judgment you ask us to apply to Lakin, that the court ought *not* consider his mental state? And so you vigorously protest our presumptuous conclusion, yet you will pay a far smaller price for our adjudication than he will for Lind’s.
Remember, this is a criminal trial, and whether mens rea should be considered depends exclusively, not on the discretionary judgment of the court, but on the elements of the crime the prosecution must prove up. Under US jurisprudence, the “strict liability” standard you are suggesting is simply not used for any crime more serious that a speeding ticket, and for an act so serious as disobeying a military order there must be not only a guilty act but a guilty mental state. Neither you nor the judge can arbitrarily rewrite the criminal law. The prosecution must prove that Lakin had no reasonable basis for questioning the legality of the order to deploy, or they lose. And they are not allowed to win by denying Lakin his exculpatory evidence.
As to the question of Lakin’s judgment, there is case law to suggest that a commissioned officer has a unique responsibility to use independent judgment in deciding whether to obey presidential orders. For example, an officer will be held civilly responsible for obeying the illegal order of even a *legal* President. See Little v. Barreme, 6 U. S. 170 (1804). Please note that officer Little, who offended the Constitution by *obeying* the order of a sitting President, was not able to hide behind a political question or separation of powers defense, even though the judge who rendered the opinion was none other than Mr. Marbury v. Madison himself, Justice Marshall.
That’s a powerful indicator that the “blind obedience” paradigm being offered up by you and your kindred spirits is neither good law nor good morals nor good discipline. You are effectively advocating the “just following orders” rationalization that proved so unsuccessful at Nuremburg. The operation of an officer’s conscience and reason in the execution of orders is, at least in theory, one of the principle functional differences between our military and that of the totalitarian horror shows of the past. The oath an officer takes is principally to uphold the Constitution, not those individuals charged with its keeping.
Therefore, each such officer is duty-bound to use both conscience and reason to evaluate each order he or she receives as to whether it conforms to constitutional requirements and basic human morality. Lakin has done so, and is to be commended. Whether his heroism will be rewarded with justice or venality remains to be seen. I am hoping for justice.
My position is objectively supportive of the Army, and the military I served for close to 30 years. And against those who would disparage it.
As to the question of Lakin’s judgment, there is case law to suggest that a commissioned officer has a unique responsibility to use independent judgment in deciding whether to obey presidential orders.
What about the orders of his brigade commander and officers appointed over him? What does case law say about that?
That’s a powerful indicator that the “blind obedience” paradigm being offered up by you and your kindred spirits is neither good law nor good morals nor good discipline.
There are even more powerful indicators to indicate that it is. What you are suggesting is that every order given by every officer and NCO has to be questioned. That reduces the military to a disorganized, ill-disciplined mob. Is that your intent?
As soon as this sort of ad hominim is thrown out, you lose all credibility. Do you really think that people who have been here 9 or 10 years longer than you are Obama supporters? No, what you are saying is that if you don't agree with me I will attack you with silly insults and nonsensical phrases. Well, I can fart in your general direction as well.
Now to your point. You misunderstand the law. When I was a garrison commander, I was warned that if I carried into effect an order that violated a long litany of federal statutes, I would be doing so at my peril. For example, I receive an order, a plan, and funding to expand a firing range in the training area. I proceed before checking to ensure that it wasn't running afoul of the Endangered Species Act in regard to the Red Cockaded Woodpecker or some such. It could be curtains for me as I could be held both criminally and civilly liable for such negligence.
What you are suggesting is that all orders to deploy to Afghanistan since George Bush ordered troops into combat in 2001 are subject to the same standard. Even if you limit your assertion to orders issued since January, 2009 your argument is absurd in its face.
I would love the eligibility fairy to swoop down with her magic wand and send Mr. Obama into the briar patch. But, that is not going to happen and those voices of sanity that keep pointing out the legal and political realities of this situation are not Obama followers, we just don't choose to ride on the crazy train.