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.
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.
The judge? Or the Court. My understanding is that the Court is the judge of the facts, not the judge, Depending on the makeup of the Court, I'd think they'd be highly adverse to the judge telling them they were not to be the judge of defense's arguments, and that the accused would not be given every opportunity to present his case. I certainly would, regardless of the case, and senior officers tend to be more "protective" of their prerogatives and responsibilities than your typical civilian juror, way more. I've seen that myself in a very similar military environment (Judge, JAG prosecutor, JAG defense, Court or Panel (of which I was the junior member) just not a full Court Martial, but run pretty much the same.