Posted on 04/22/2010 2:54:33 PM PDT by BuckeyeTexan
Lieutenant Colonel Terrence L. Lakin was charged today with four violations of the Uniform Code of Military Justice (UCMJ) under Articles 87 and 92.
(Chargesheet at the link in PDF format.)
(Excerpt) Read more at scribd.com ...
marking.....
Concerning one charged with disobeying an order, the three opinions are:
1) You can't argue the legallity of the order or order giver (Non Sequeter)
2) You can so argue, but you have to prove illegality of the order. (El Gato)
3) You can so argue, but the prosecution must prove the legality of the order. (JoSixChip)
I just don’t agree with ether of you. If the charge is disobeying a lawful order, they have to prove it is lawful. If LTC Lakin gets his day in court, and that is a big if, the question of obumbers eligibility will be answered.
And yes, I have participated in a court martial. Though I don’t claim to be an expert, I do know a defendant has the right to defend him/her self and the prosecution has to prove it’s case.
My response would be that all orders are assumed to be legal, unless proved otherwise. Thus in the absence of such proof of illegallity or unlawfullness (if those are not the same thing), all the prosecution needs to prove is that the order was not obeyed.
But, the defendant must be given the opportunity to argue unlawfullness, and must be given the opportunity to obtain evidence or other information in support of that argument.
It must be that way, otherwise the military could go haring off on its own to attack foregin nations or groups. Wouldn't want that would we?
“Sigh...
This makes me sad.”
Me, too. By all appearances this guy has a long, honorable record of service that’s about to be flushed to no constructive purpose. It’s even sadder to see all these people carrying on about discovery when some of us know quite well there’s not a snowball’s chance in the hot place.
FYI
Phil Cave, a retired Navy judge advocate general who now practices military law as a civilian, said that even if Lakin does decide to deploy as scheduled, the Army still may be able to prosecute him. Under Article 88, Cave said, a servicemember can be charged for making disrespectful comments or remarks about the president.
Cave believes that Lakin’s supporters in the birther movement hope that a court-martial will give defense attorneys the authority to seek, through discovery, other documents to help make their case.
“They think that by using [servicemembers in a court-martial] they can get discovery like you could in any criminal prosecution,” he said. “That ain’t gonna happen. They’re not going to have discovery where they’re going to get the president to produce a birth certificate because, I’m reasonably certain, no military judge, no appellate court and no federal court, and no U.S. Supreme Court is going to say they have a right to get that as a matter of discovery.”
Source: http://www.military.com/news/article/army-calls-birther-docs-bluff.html
Then they should go to ObamaForum.com
Well, I hope we get the chance to see. Because I think this retired Navy judge is a partisan hack. The LTC is being charged with a serious offense that, if found guilty, will result in his loss of freedom and carer. He deserves his day in court and if he gets it obumber will have to be shown to be legit. If this guy goes to jail because obumber refuses to show his BC, well I just don’t think that is going to fly in middle America.
I believe that's one of the points in the manual for courts martial, that an order is presumed to be legal. I think this is true even if there are problems with the order, but it is delivered according to a standard procedure.
That would apply to this order, since it probably went through the SecDef and the CJCS and the Army CIC.
That said, I hope (against hope) that Lakin prevails; and I do think that Obama should prove his status.
Really? I'd love to see a source for that little nugget.”
The Manual for Courts Martial states: “An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime.“
Basically, if you can't point to a specific illegal outcome intended by the specific order you received, you are presumed to have violated a lawful order. It goes on to add: “...the dictates of a person’s conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order.”
Lakin is basically asking the judge to determine that the line officers in question did not have authority to issue the orders he received because he has personal doubts about Obama’s birth. That's going to be a total nonstarter.
Complete and utter rubbish. Give me a direct link to this manual.
Yep, that's right. Although the MCM wouldn't characterize it as "an affirmative defense", as a practical matter, that's what it is. Orders are presumed legal on their face. If a defendant believes an order to be illegal, he bears the burden of proof to demonstrate such a claim. It's then up to the trial judge to make a determination if that's factually correct.
There has been some case law developed along the lines of service members questioning the legality of certain orders with respect to either UN or Presidential authority (or lack thereof). Those cases - with Michael New v. US as the most recent - have not been well-received by SCOTUS. The trial judge(s) has ruled those kinds of questions nonjusticiable on the basis that it's a political question. I HIGHLY suspect that a challenge to this President's (or any President's) eligibility will meet the same fate, quickly.
A military judge isn't going to entertain this, and discovery won't be granted.
I feel bad for this guy. He's doing what I'm sure he believes to be the noble act, but it's futile and will probably result in his dishonorable discharge and subsequent loss of his license to practice medicine. It's tragic. Moreover, people shouldn't lose site of the fact that this officer's orders weren't signed by the President, they were probably signed by a two-star, or perhaps Gates if they're deployment orders. Not Obama.
“It will be assumed to be a legal order unless the defense can show Lakin had ample reason to think otherwise. As a rule of thumb, if the 4-star on down to the O-6 thinks it is a legal order, the LTC is expected to trust their judgment.”
If he cannot question the legality of his orders then how were all those guards convicted at Nuremburg? The prosecution specifically held that they should have disobeyed their orders and thus risked joining the Jews in the ‘showers.’ Those guards were caught between a rock and a hard spot - damnned if the did and damned if they didn’t. LTC Lakin is in an arguably similar position.
I doubt we’ll decide his fate here... except through prayer.
“I’d love to see a source for that little nugget.”
25 years in the USAF, son of a USAF officer with 27 years in when he died, father of two kids who enlisted (Marines and Army) with a son-in-law who was in the Marines.
Is it a just war? If you are in the military, you are expected to trust the national leadership - the President and Congress - not to get involved in an unjust war. They have access to more info than you do.
Is it a legal target for attack? If it comes down in the ATO, you assume it is. It isn’t your job to vet every target.
Is it legal to obey orders with Obama as President? If it isn’t, the entire military would cease to exist immediately...so you need to trust the states, voters, Congress and courts. Let someone else fight that fight, or resign your commission. But it isn’t his place to determine if the President is the President. It is outside his jurisdiction.
Just IMHO...but I’ll be the Board will take the same approach.
“Complete and utter rubbish. Give me a direct link to this manual.”
I quoted the manual. It’s not hard to look up.
Here, Lakin was ordered to do something perfectly legal, deploy with his command, by an officer with lawful authority over that activity. The reasons for disobedience do not, therefore, involve avoidance of participation in an obviously illegal act. Consequently, the unlawful order defense is not going to be seriously entertained.
I don’t know I’m wasting my time with you, you pull crap out of the air and state it as fact. You take things completely out of context to bolster your case. Michael New v. US is about a former US soldier who refused to wear the United Nations uniform. The question in that case was can American soldiers be forced to serve a foreign power? Not whether the CIC was eligible to serve as CIC.
You are a noob to FR and a single issue poster, I’ve said it before and I’ll say it again: You are a fraud just like your obumber.
Actually I thought tired_old_conservative posted this, but if the shoe fits wear it.
Post a link. this is the last time I respond to you unless you back up the things you state as fact or written without at least a link. You have no honor or credibility with me.
“He will get a fair trial and receive whatever verdict the evidence supports.”
By “evidence” do you mean all evidence available to the court by normal standards, or do you mean only that which the Obama regime will allow the courts to access?
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