The New decision said, “If “lawfulness” is indeed an “essential element,” the accused in a military trial has a statutory right for the issue to be resolved by the members under Article 51. If, however, “lawfulness” is a question of law, it may be resolved by the military judge. The cases cited in the separate opinion, __ MJ at (6), support the role of the military judge in deciding issues of law, but do not authorize the military judge to withhold “essential elements” from the members.” Contrary to your accusation, no one made crap up.
I’m having trouble finding it right now, but there is a place in the MCM also where it says that if a defense is the only defense a person has then it is a matter of fact rather than a matter of law. I hope I’m remembering that right. I remember reading it and thinking that it should apply to Lakin. I think it was where it was talking about interlocutory v issues of law v issues of fact.
It is so clear to me that Lind violated Lakin’s due process and Sixth Amendment rights on this. Whether there’s any justice left in this country, or whether rights can be violated at will, is another question. I’m afraid to even try to find out the answer to that one, because I hate being disillusioned.
This isn't a discussion about military law in the abstract, but rather a discussion about how military law applied to Lakin. The facts of Lakin's case are crystal clear to anyone with even a remedial understanding of military law - the lawfulness of HIS orders were a matter of law to be decided by the military judge. It really can't be anymore straight-forward.