Wasn’t there a guy who actually did that - did present himself as having a position he didn’t really have? I don’t know how he did it or how they found it out and had him removed. Do you remember that? It was within the last year.
The Article 92 elements are clear that orders given beyond the authority of the person who gave them are not lawful. So neither you (in that scenario) nor Obama (in our current demise) could give lawful orders if you had no legitimate position giving you the authority to give those orders.
The anti-birthers will probably say it is only equivalent to ask whether the orders to move (which would be given by your subordinate) would be lawful if you gave orders to deploy, in that scenario. I don’t see that it makes any difference whether we’re talking about your order to deploy or the subordinate’s order to move. Either way what invalidates the lawfulness of the order is not the issue of criminality but the issue of authority. An order is not lawful - regardless of how non-criminal or Constitutional it is - if it is given by someone acting beyond their authority.
If you acted beyond your authority to order deployment, then there was no valid order for your subordinates to implement and their orders to implement deployment would be beyond their authority to give.
Does that make sense?
In Lakin’s case, the authority to “use appropriate force” in response to 9-11 and terrorism was specifically given by Congress to “the President” only. Anybody else implementing the use of force is acting beyond their authority if they don’t have the orders of a valid, Constitution-compliant “President”.
Lind’s argument is that the military can be authorized by Congress to give orders independent of “the President” so Lakin’s orders don’t depend on “the President”. Whether any orders through the chain of command are truly independent of “the President” can be debated, but in Lakin’s case it is irrelevant because the specific orders Lakin received were in support of combat operations that Congress specifically allowed only “the President” to use. Without “the President” deciding to use force in Afghanistan, any brigade commander implementing the use of force is acting beyond their authority.
That’s my understanding. Is there anything I’m overlooking on this?
Another point is that Lind uses “lawful” to mean anything that must be obeyed. Until you know that the person doesn’t hold the position he claims to have, the orders he gives must be obeyed because of the de facto officer doctrine. But the orders were NEVER “lawful”, according to the definitions included in the elements of Article 92.
Lind worms her way around that in her judgment by totally ignoring the elements of Article 92 when saying what constitutes a “lawful order”, even though she does mention the “beyond their authority” language. In effect she says orders are not lawful if given by someone acting beyond their authority, but they have to be obeyed anyway because of the de facto officer doctrine, and anything that has to be obeyed is lawful, so it’s lawful after all.
Chasing tails. Not lawful but lawful all at the same time, if you believe her convoluted spin.
They’re going to convict a man of violating Article 92 by ignoring what ARticle 92 actually says. Blatant violation of due process.