Lind's entire argument doesn't rest on that. She does not say that military officers can take action independent of the President. She does not say that Congress can authorize individual officers to attack countries. That's a fundamental misunderstanding of the subject that you have.
If that’s too much to ask, there’s a serious problem here, and it’s not me.
There is no serious problem. You're misinterpretation of what Judge Lind said leads you to this nonsense question.
Lind should have known that it’s not enough to say that Congress authorizes SOME orders. What she has to show is that Congress authorized THESE orders to be given independently of the President. She should have cited the appropriate Congressional authorization for THESE orders, showing they are authorized independently from the President.
Lind doesn't say that Congress authorized SOME orders. Linda doesn't say that Congress gives any direct orders to the military. Lind says that Congress has defined the Defense Department's roles and responsibilities and the way in which the armed forces legally operate. Congress has authorized not individual orders, but the legality of giving orders and the legal requirement for obedience to orders.
When she talks about independent statutory authority, she is talking about the legal structure of the armed forces. That has been established by Congress. It has the Constitutional power to do so, and has done so in Article 10 of the United States code. Among other provisions Article 10 requires the Secretary of the Army to establish the authority of officers to give orders. That has been done in Army Regulations. Officers in the Army are this legally required to obey the orders of a superior officer provided those orders don't essentially require the commission of a crime. Period. That legal requirement exists whether the President is eligible or not. It has statutory authority whether the President is eligible or not. Lakin's superior officer has no obligation to justify the order to deploy in any way.
It is the role of Congress to determine if the question of the President's eligibility should be raised. Until it does so, the President is presumed lawful and would be operating under the de facto officer doctrine anyway. In our system of government, once a President's election is verified by Congress and he is inaugurated, that's it. Individual members of the military don't get to independently decide if their civilian rule meets their personal interpretation of the Constitution. If you want that, go live in Turkey.
That's also the same reason we didn't get to quit fighting in Vietnam until someone proved to us there was a Constitutionally legitimate authorization of that war. Which, by the way, is a potentially valid question. But that wasn't our call. And legal orders remained legal orders. The reason for that is the exact one Lind cites.
Why do you think she didn’t do that?
Because no one in the Legislative, Executive or Judicial Branch, or the military specifically, has ever contemplated anything working in the fashion you describe. The question you ask is, from a legal perspective, gibberish.
Obviously officers can issue some lawful orders. That is a duh. All that matters, though, is whether they can LAWFULLY issue the orders they gave Lakin. Lind said those orders have nothing to do with the President; they are independent of the President.
But those orders were orders for Lakin to deploy in the use of force, which Congress only gave the President the authority to do. Lakin’s orders are ABSOLUTELY tied to the President, because nobody but the President has the authority to use force - which means to order the chain of command to do what is necessary to use force.
No President, no lawful orders to use force.
No President, and brigade commanders are acting beyond their authority if they order somebody to Afghanistan in the use of force.
If Obama is not Constitutionally allowed to “act as President” (and he’s not, because he failed to qualify by Jan 20, 2009 - and he was arguably never even lawfully declared the electoral winner) then the orders he issued were not lawful because nobody authorized to use force issued the orders. Without a President’s decision to use force, all the under-officers acted beyond their authority so their orders are similarly not lawful.
You can argue that Obama’s orders had to be obeyed anyway because of the de facto officer doctrine. But that doesn’t make them lawful, according to the elements of Article 92.
And it doesn’t work to say that Lakin’s orders are independent of the POTUS AND to say that he still has to obey them because of the de facto officer doctrine. Either Lakin’s orders are associated with the POTUS or not. If Obama has nothing to do with Lakin’s orders from the brigade commanders, then all that matters is whether the brigade commanders could lawfully give those particular orders to Lakin. Lakin’s brigade commanders are not de facto officers so de facto has nothing to do with Lakin, if Lind’s claim is true. But
In that event all that matters is whether Lakin’s brigade commanders have authority to deploy Lakin in the use of force. If no President ordered the use of force, then the brigade commanders don’t have authority - since only the President has the authority to use force - and their orders to Lakin are beyond their authority.
You can’t have it both ways. Either Lakin’s orders are connected to the POTUS, or they aren’t. If they’re not connected to POTUS, then the brigade commanders had no authority to give them.