“It’s not spelled out as an allowable affirmative defense in UA cases according to the manual for courts-martial, or in any case law in which I’m familiar.”
My only caveat would be that it is a defense to disobedience of a lawful order that the order was not lawful - in fact, that’s one of the elements the prosecution has to prove, and if a proper defense motion was filed, OR the 32 officer (ought to be a JAG, but the Army doesn’t normally do that) had the stones, it might be come an issue at the 32.
Colonel, USAFR
Bingo...and that is the heart of the matter. It would be court negligence not to confirm the lawfulness of the order, and more than an embarrassment to the Army and Department of Defense to successfully prosecute this captain only to find out at a later date that Obama had no Constitutional authority. Mr Deckhand will argue that the deployment order did not come from the President but from the Secretary of Defense, but where does and who does the Secretary of Defense work for? That's right, he works in the executive branch of government and at the pleasure of the president.
As of right now, it is a civilian civil court matter and that's probably where it will stay.