I believe he said that because for him to say otherwise would be contempt of court.
I am not JUST repeating the same things. I am also presenting references and asking for clarification or rebuttals, which nobody except Buckeye Texan is giving me. I appreciate his willingness to actually engage. Obviously he’s not a lawyer, to his credit.
Here is what the footnote I referenced says (again, it’s the footnote on p 160 at http://usmilitary.about.com/library/pdf/mcm2000.pdf :
“Ordinarily the lawfulness of an order is finally decided by
the military judge. See R.C.M. 801(e). An exception might exist when the sole issue is whether the person who gave the order in fact occupied a certain position at the time.”
Rule 801(e)(1)(A) says:
” (A) Finality of rulings. Any ruling by the military
judge upon a question of law, including a motion for a finding of not guilty, or upon any interlocutory question is final.”
With that in mind - that a judge’s rulings of law or interlocutory questions are final - I found the part which seems to me to explain why the above statement is used. It’s at II-76, on page 126 at http://usmilitary.about.com/library/pdf/mcm2000.pdf (emphases mine):
“Questions of the applicability of a rule of law to an undisputed set of facts are normally questions of law. Similarly, the legality of an act is normally a question of law. For example, the legality of an order when disobedience of an order is charged, the legality of restraint when there is a prosecution for breach of arrest, or the sufficiency of warnings before interrogation are normally questions of law. *****It is possible, however, for such questions to be decided solely upon some factual issue, in which case they would be questions of fact. *****For example, the question of what warnings, if any, were given by an interrogator to a suspect would be a factual question.
A question is interlocutory unless the ruling on it would
finally decide whether the accused is guilty. ******Questions which may determine the ultimate issue of guilt are not interlocutory. **** An issue may arise as both an interlocutory question and a question which may determine the ultimate issue of guilt. An issued is not purely interlocutory if an accused raises a defense or objection and the disputed facts involved determine the ultimate question of guilt.”
So if the lawfulness of the order involves whether the person who had to authorize it actually held the position to do so - held the position lawfully and Constitutionally, as required by Article 92(1) - ultimately determines the issue of guilt, then it is not interlocutory.
And if the lawfulness of the order hinges on a factual issue (such as whether the President ever “qualified” by Jan 20th as required by the 20th Amendment), then it is an issue of fact, not of law.
So in the instance where the sole issue that decides guilt is the facts surrounding whether the authorizing person actually holds the position to be able to authorize the order, it is an issue of fact rather than law and it is not an interlocutory question. Thus Rule 801(e)(1)(A) doesn’t apply to it, and it is not stated that the judge’s ruling must be final.
That’s why I think there’s that footnote that I referenced, and it seems to me that the instance I described in the preceding paragraph shows the exception that the footnote refers to.
It is exactly Lakin’s situation.
If Lakin’s defense attorney felt that Judge Lind was wrong on the law, he would not have convinced Lakin to plead guilty.
Note, howevr, that Lakin plead not guilty to the charge of missing movement. Perhaps, he did so because his attorney intends to argue upon appeal that the Judge was wrong on the law and that the superior who issued the order didn’t have the authority to issue it and/or that Lakin didn’t have a duty to obey it. We’ll have to see why he plead not guilty on that one.
It is impossible to have an intellectual conversation about the law with someone who believes that the only way to avoid a finding of contempt is to violate Article 131.
I am a lawyer but not a military lawyer. Having said that, I read that to mean that if the issue is whether the person who gave the order was actually General So-and-So or an imposter, that is a question of fact for the panel, but if it is undisputed that the named person gave the order, the question of whether the order was legal was a pure question of law for the judge. This goes to the basic rule that judges decide law and juries decide facts.
Here, the orders came not from Obama but from LTC Lakin's immediate superior. In any event, Obama is certainly "in fact occupying the position" of President at this time. (This goes back to the "de facto" vs. "de jure" debate we had on another thread). The question Lakin tried initially to raise was whether Obama was legally entitled to be President, not whether he in fact is President, so his defense raised an issue of law for the judge.
By the way, you are off in the weeds on that business about "final" and "interlocutory" rulings. That distinction goes to when the ruling can be appealed; it has nothing to do with who gets to make the ruling.
All of this is of course moot now, because LTC Lakin pleaded guilty to disobeying orders and swore under oath that the orders were legal, that he knew they were legal and that he had been advised by his lawyer that they were legal. And no, he would not have been in contempt of court to say otherwise; he could have stuck to his position, pleaded not guilty, and preserved the issue for appeal that way. He of course had to agree with the judge if he wanted her to accept his guilty plea, but he didn't have to plead guilty. He chose to do that.