Butter,
I’m copying a few people to this who have more knowledge of the military and the law than I. They’ll correct me if I get too far out into the weeds. (I copied JimRob in case he’s interested in the discussion.)
Congress authorized Operation Enduring Freedom (combat ops in Afghanistan) through the Authorization for Use of Military Force Against Terrorists (AUMF), Pub.L. 107-40, 115 115 Stat. 224, enacted September 18, 2001. The specific resolutions were House Joint Resolution 64 and Senate Joint Resolution 23, both passed on September 14, 2001.
In the AUMF, the Congress stipulates that the AUMF itself is consistent with sections 8(a)(1) and 5(b) of the War Powers Act (War Powers Resolution of 1973). The WPA stipulates that the POTUS can commit our forces to combat only with authorization of Congress or if the U.S. is already under attack. It requires that he notify the Congress within 48 hours of sending forces into action and limits such actions to a total of 90 days, including troop withdrawal, without Congressional authorization.
Now as to your specific questions/comments:
- Yes, the destination matters. A brigade commander cannot order combat in Iran. Doing so would get him court martialed. But if he did, a soldier would be legally justified to disobey such an order because he knows it to be contrary to the Constitution and because he knows his superior doesn’t have the authority to make the order.
- Congress certified the votes of the Electoral College without objection and the Chief Justice of the SCOTUS swore Obama into the office of POTUS. Therefore, Obama is POTUS. Any legal challenges to his ability to perform the duties of the office must be adjudicated. Unless and until such challenges are adjudicated, Obama is the POTUS. The office cannot, by law, be empty. So unless and until someone else is sworn into the office, Obama has duties to perform as CIC and the military has a duty to obey his orders.
- Yes, Obama can order combat ops in Pakistan, Iran, or elsewhere under the AUMF. And the military would have a duty to obey such orders.
- Biden can’t order anything. He’s not POTUS. The AUMF authorized combat ops in Afghanistan, which President Bush ordered. No further authorization from Congress is necessary for additional forces. The POTUS can send however many troops he believes are appropriate. Obama is executing the office at present. The military is not in a position to question the legitimacy of Obama. We the People installed him. Until We the People remove him, the military must obey his orders. And frankly, that’s the way it should be.
Can I assume that you have been following this issue for a while?
If you have you then know that almost all attempts to get this matter resolved legally (even before the elections) have been stymied by all sorts of legal maneuvering whose sole purpose was to prevent Obama's eligibility from being examined in a court of law.
With a question of this magnitude, our government has failed to protect the Constitution by allowing such tactics to be used to allow Obama to become president.
The cases that need to be adjudicated for this issue - have been on the books since before Jan 20th.
If Obama and Biden were lawfully certified as the electoral winners (which is questionable, given that Cheney failed to ask for objections as required by law), then Obama became the POTUS at noon on Jan 20th. But if he “failed to qualify” by then he cannot assume the powers and duties of the presidency; only the VP elect can do that.
The AUMF that you reference gives the authority to use force specifically to “the President” and doesn’t mention the countries by name. We used force in Iraq because a valid Constitutional POTUS ordered it. We used force in Afghanistan because a valid Constitutional POTUS ordered it. Since then, Obama has ordered MORE FORCE in Afghanistan through a specific order, which resulted in Lakin being ordered to deploy.
If Biden is the one the Constitution requires to “act as President” since Jan 20, 2009, and preside over the decision regarding what force, if any, should be used in Afghanistan (in accordance with the AUMF), then additional deployments since Jan 20, 2009 that were not authorized by Joe Biden are unlawful. They were not properly authorized by Joe Biden, who alone can “act as President”, with the President alone being able to decide what force to use.
If the orders had been to Iran Lakin would have been right to disobey because the orders were contrary to the Constitution and because his superior didn’t have the authority to make the order. That’s what you said, and that sure seems accurate to me, because no valid President has ordered combat operations in Iran. A valid POTUS is AUTHORIZED to order combat operations in whatever country the POTUS believes necessary, including Iran. So a valid POTUS COULD order deployments to Iran.
The question is whether a valid POTUS ever DID. That is the central issue in deciding whether a deployment order to Iran is lawful or not.
Lakin is asking a question of fact: DID a valid POTUS order additional troops to Afghanistan? If a valid POTUS didn’t, then the deployment orders to Afghanistan are just as unconstitutional and the superior officer was just as un-authorized to give the orders as would be the case if orders were to Iran. What would make the orders to Iran unlawful is the absence of a valid POTUS order, which would be exactly the same thing as a troop surge to Afghanistan without the order of Joe Biden, who alone is able to “act as President”.
And if Lakin is allowed the latitude to disobey a deployment order to Iran because he knows as a matter of fact that a valid POTUS has not made an order for use of force there, then he also has the latitude to disobey a deployment order to Afghanistan based on the same fact.
The whole thing hinges on a factual matter: Did a valid, Constitutionally-acting POTUS give an order for additional troops in Afghanistan?
We can argue about the answer to that factual question. That is actually what Lakin wanted, regardless of what the ultimate finding of fact would be. But Lind is saying that the fact of the matter - whether a valid, Constitution-compliant POTUS had ever given the order for additional troops - is IRRELEVANT.
The same authorization that applied to Afghanistan would apply to Iran. If the fact of a Constitutionally-valid POTUS authorizing the use of force is irrelevant for Afghanistan, it is also irrelevant for Iran.
IOW, the logical conclusion to what Lind is claiming is that any brigade commander anywhere can deploy combat troops to Iran or anywhere else, and Presidential orders would be IRRELEVANT.
Is that really where we want to go with this?
BTW, if a brigade commander issued combat deployment orders to Iran right now, what Article would they be charged under in a court-martial?