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.
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
“If the charge is disobeying a lawful order, they have to prove it is lawful.”
Not correct: an order (as you note, Gato) is presumed to be lawful and it’s up to the accused to prove by a preponderance (more likely than not) that the order is unlawful.
Colonel, USAFR