(a) There is a Secretary of Defense, who is the head of the Department of Defense, appointed from civilian life by the President, by and with the advice and consent of the Senate. A person may not be appointed as Secretary of Defense within 10 years after relief from active duty as a commissioned officer of a regular component of an armed force.
(b) The Secretary is the principal assistant to the President in all matters relating to the Department of Defense. Subject to the direction of the President and to this title and section 2 of the National Security Act of 1947 (50 U.S.C. 401), he has authority, direction, and control over the Department of Defense.
So by the way you choose to read those words, the moment someone claims doubt about the President's eligibility, literally no one in the armed forces can give an order on anything and require it be obeyed. You don't need SJ Res 23 for your argument. Your position is that the military is, by design, a single point failure system that collapses the moment someone doubts where the President is born. All those guys in active combat operations are just going to have to fend for themselves as best they can.
Obviously, our military isn't designed like that. That's why it's not just subject to the direction of the President. It's subject to the direction of the President and to this title. You don't recognize the significance of that last phrase because you're thinking only of the operational aspects of command. Obviously the President gets to decide who attacks what when. That's what a commander-in-chief does, and why the Constitution establishes one. It was understood that direct combat by committee doesn't work. There is, however, another aspect of command in the military. It is a legal aspect. It is what gives officers the right to order people around like a slave labor force (within limits) without being subject to legal consequences. If you want to think of the President as the brain, this legal aspect is the skeleton. It keeps the body from collapsing into mush independent of whether the brain has just blacked out from a concussion.
In sum, even if the President hoodwinks the Secretary of Defense in some way, the requirement for individual officers to follow the resulting orders cascading down through the Defense Department exists independent of the Presdent's legitimacy, or whatever else. The machine continues to function while the civilian leadership in Congress and the Executive Branch deals with any larger issues.
What's bizarre about this is that you're raising this issue on something where no one with the actual authority or responsibility to do so has questioned Obama's legitimacy. From an individual officer's point of view, he has a duly elected President certified by Congress. You misread the intention of the officer's oath in a way dramatically at odds with what the Founders intended for this country. The oath of office is to the Constitution precisely in reaction to well-documented historical concerns about oaths to any man or office. It symbolizes the military's apolitical nature and submission to the civilian authority defined by the Constitution. The last thing it was ever intended to do was empower every individual officer in the armed forces to decide for him/herself whether the President or his actions are sufficiently Constitutional, in their own personal interpretation, to warrant loyalty and obedience. That's about as unconstitutional an outlook as you can have. And as I said, if that's what you want, move to Turkey. That's what the military there gets to do.
Further, Congress certified the President's election in accordance with the Constitution. You have no evidence that they did so in error. So Constitutionally or legally, your concerns mean nothing. Express them to your elected representatives who have the legitimate power to investigate if they so choose. That they have not done so rather speaks for itself.
Or work to get laws passed in your state that require presentation of birth documentation to get on the ballot. That's a perfectly legitimate thing to do. I strongly suspect that if you get such a law passed, Obama will be easily able to satisfy it, but then you'll know.
Heck. Get someone to write a law that requires proof you were born to two citizen parents. That's a legitimate thing to try. I strongly suspect it will be sued and the courts will throw it out as adding an additional requirement to the Constitution without amendment. But then you'll know the answer to that question unequivocally.
If someone is honestly wanting to know, and not simply insisting on anything to arrive at the only answer they can personally accept, that should be good enough.
http://www.scribd.com/doc/37116443/United-States-v-LTC-Terry-Lakin-Ruling-on-Motions-Discovery-%E2%80%93-September-2-2010
Read items 3-5 of Lind's conclusions. Try to understand that she's talking about the legal structure embodied in statute, not the President's operational authority. No one, least of all Judge Lind, has ever proposed that the SECDEF, the Secretary of the Army, or any individual brigade commander can just decide to attack anyone they want. To even pretend that's what she's saying reveals a complete lack of comprehension of the issue. What she's saying is that within the military, legal orders have to be obeyed by statute and what constitutes an illegal order is well defined and is not someone's hypothetical musings about a President whose election was duly certified by Congress.
Her reasoning and conclusions are neither novel nor forced twisting of statutes. They're utterly conventional. As in, noncontroversial to the JAG Corps and people who try court martial cases. Myself and others told you that was exactly what she would say months before she did. You didn't believe us then, and you obviously never will. But it is what it is. Cling to fantasies that make you bitter and unhappy or move on.
Like I said, if you want to do something constructive, work to get ballot eligibility laws passed in your state. If you do, and Obama actually is proven to be ineligible, I will personally congratulate each and every one of you while gladly admitting you were right and I was wrong. I respect extant reality and the facts thereof.
Hope the Christmas thing went well. Don't expect any replies from me anytime soon after this. I'm taking grandkids to see people dressed up like rodents with big ears, electric light parades, beaches and what not for the next week or so.
And for what it's worth, I do hope Lakin's sentence is light.
The law which LEGALLY defines what constitutes a lawful order is Article 92. It says an order is lawful if it is not contrary to the Constitution or laws and is not given by someone acting beyond their authority.
According to LAW (SJ Res 23) only the President has the authority to decide to use force. If a Constitutional president has not decided to use force, then nobody can use force. Anybody who does is acting beyond their authority.
That means that if the SecDef orders combat deployments without a Constitutional president’s decision to do so, he acts beyond his authority and his order is unlawful. Without a lawful order from the SecDef the joint chiefs would be acting beyond their authority if they gave orders to implement the unlawful order of the SecDef. And on down the line.
I am not talking about whether people have to obey the orders. I am talking about whether they are “lawful” according to the definition of Article 92 - the Article Lakin is accused of violating. That is where you get the definitions that LEGALLY apply to Lakin’s case.
I’ve shown you the LAWS, not the structure. Others have argued on the basis of the structure, and their arguments are worthy. I’m addressing it from the actual laws, and those laws are clear. I showed you the Constitution which gives authority to Congress and the POTUS. I showed you SJ Res 23 where Congress gives the authority to use force to the President alone. You showed me Article 10 of the US Code and then I pointed out that it TWICE says (just in the one section I posted here) that the SecDef implements the decisions of the President and that the President is the head of the chain of command.
Lind wants to argue that Congress somehow allows the chain of command to operate independently of the President. That may or may not be true regarding routine maintenance, but I have shown the laws which clearly state that combat operations are ABSOLUTELY dependent on the authority of the President. Neither you, Lind, nor anybody else has presented laws which contradict or supersede the laws I cited.
I’ve asked you repeatedly for the laws Congress passed saying that the decision to use force can lawfully be made by somebody besides the President. I’m still waiting. You say I’m misinterpreting. What law am I misinterpreting? I’m asking for the LAW which does what you and Lind say has been done. If it’s out there somewhere just point it out.
You highlighted the part saying that the SecDef has authority over the Dept of Defense. The charge nurse has authority over the nurses on the hospital floor but that doesn’t mean that she can write prescriptions. Only the doctor or PA’s are legally authorized to do that. What the charge nurse can do is make sure that the prescriptions written by the proper authorities (doctors and PA’s) are properly dispensed, as ordered, to the patients in the hospital.
Likewise, the SecDef is in charge of getting the DOD to carry out the president’s orders. The SecDef is NOT in charge of making the decisions that only the President, by law, can make. If the SecDef were to “dispense” a prescription that an unqualified impostor posing as a doctor made, that prescription would still be illegal. If the charge nurse doesn’t know the “doctor” is a fake she would order the nurses to dispense it. They, likewise, would dispense it because they didn’t know it was an illegal prescription. And the only way you would ever find out that the prescription was illegal is if somebody along the line said, “Hey, I don’t think this ‘doctor’ is licensed to prescribe this.”
That’s what Lakin did. For that he was charged with refusing to dispense a lawful prescription. The judge says it doesn’t matter whether the doctor qualifies to order that prescription; the prescription is lawful anyway because the charge nurse told the nurse to dispense it.
It’s just screwy. The logic is totally warped. It’s not lawful to fill a prescription that was written by somebody not qualified to prescribe.
You talk about how crippling it would be if the whole chain depended on one link (the top one) which could be crippled at some point and then everything would turn to mush. But that’s why there is a clearly delineated order of succession to the presidency. That is to insure that we always know who is to act as President if that top position in the chain of command would be killed or incapacitated.
The reason it is so important is precisely because the whole chain of command DOES depend on the CINC - if not for everything then at LEAST for the emergency things like combat operations and martial law. If the SecDef could just do everything even if the head was chopped off, then it would not be so critical to have such a long line of succession for the presidency, because the SecDef could do anything the CINC could do and there would thus be no emergency to worry about.
Anyway, have a great time with your grandkids.