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Does the destination matter? We’re told the orders were lawful because all he was supposed to do was get on a plane. It doesn’t matter that the plane was to take him to the first leg of what would end up to be a combat post in Afghanistan. So my question is if the arguments would be any different if the plane was going to land him in Iran at a combat post.

And it’s a critical question, IMHO. I’ve been told (by implication) that because Article 10 allows brigade commanders to order men onto planes that any of their orders to get on a plane is lawful and it doesn’t matter where the plane will land or for what purpose.

Yet I’ve also been told directly that if Lakin’s brigade commanders had deployed him to Iran for combat operations Lakin would be totally justified to disobey and the brigade commanders would be in deep trouble.

My question is what’s the difference? Either the destination of the plane matters, or it doesn’t. What is so special about a deployment for combat operations in Iran?

I can’t remember if it was you who said it, TOC, but it was said that Congress authorized Operation Enduring Freedom. I asked where that was done, because when I search all I can find is SJ Res 23, which did not authorize any PARTICULAR operation but authorized only “the President” to use force in pursuit of those who perpetrated 9-11 or support terrorism. That could be Iraq, Afghanistan, Iran, North Korea, Syria, Lebanon, etc. So unless there’s something I’m missing - and if so I sure hope somebody would just come out with it, because I can’t find anything else - the authorization is open-ended and depends totally on the discretion and decision of “the President”.

IOW, the President could just as easily authorize deployments to Iran as to Afghanistan. The legality of the combat deployments - to wherever - however, would be TOTALLY dependent on whether someone Constitutionally acting as “President” had actually ordered the use of force in Iran, or wherever.

The Iran question cuts to the quick on where the authorization to order COMBAT deployments actually comes from. The legal authorization to use force in Afghanistan is the same as was used for Iraq, and is the same as would be used for Iran or a couple dozen other places. And Article 90 makes the lawfulness of deployment orders absolutely dependent on whether the legal authorization for those specific orders has ever happened. Congress legally authorized “the President” to decide to use force. If Joe Biden is the person the Constitution allows to “act as President” and he didn’t give the order, then there has been no lawful order for the use of additional force in Afghanistan. And if an unconstitutional “President” has ordered the use of force, then the order is “contrary to the Constitution” and thus unlawful according to the terms of Article 92(1)

So it is appropriate for us to argue about whether Obama is or isn’t allowed by the Constitution to “act as President”, because that is the CRUX of the issue of lawfulness, according to the actual law and MCM. It is NOT “irrelevant”, and for Lind to say so is in effect to say that brigade commanders can deploy troops for combat anywhere they want, regardless of whether the legal authorization criteria are met (i.e. regardless of whether a Constitutional “President” has ordered the use of force).

That is dangerous, dangerous territory. Those who say that officers should not be able to decide which orders to follow are voicing a legitimate concern, but an even BIGGER concern would be if officers are allowed to decide, on their own, to invade other countries. That’s what’s being swallowed here, in the effort to make sure that an officer isn’t allowed to question the Constitutional legitimacy of the CINC so he can know whether the orders he receives are lawful. In order to prevent due diligence on the part of officers who are sworn to protect and defend the Constitution, Lind has laid groundwork that would allow any brigade commander to decide, on his own, to invade Iran or Yemen.

This is not chicken doo-doo. This is basic, gut-level, rubber-to-the-road application of the whole philosophy behind the chain of command. If we allow this to be undone, we are treading dangerous, unprecedented territory.

And what bothers me so much about this issue - why I am so emotionally invested in this and why to be less than emotionally invested would be to forget everything I am and care about - is the fact that the very CRUX of the issue has been called irrelevant in order to make sure that Lakin can’t defend himself or secure witnesses in his behalf as the Sixth Amendment guarantees for every accused person.

We can argue all day and beyond, whether Obama is Constitutionally able to “act as President”. All I’m saying is that argument deserves to be made. And it is a travesty to deny a defendant his Sixth Amendment rights, forcing him to have to try to convince a judge that up is down as his only defense.

This is not a political question. It is a question of the rule of law. Courts-martial are not the right place for this debate to take place. The right place is SCOTUS, but the stinkin’ cowards would rather put the country in jeopardy than make an uncomfortable decision. Unless the military had investigated - as Lakin asked them for a year to do, and got nothing from them - and had KNOWN that Obama is Constitutionally able to “act as President” they should never have charged him with disobeying a lawful order, because neither they nor anybody else in this country can even say whether Obama’s orders or the orders down the chain of command to implement them are “lawful”.

Obama isn’t even supposed to be able to get a federal paycheck unless he has proven that he is a legal resident of the US. He hasn’t even done that, and yet he’s holding the nuclear football. He couldn’t be a maid cleaning out toilets in the White House with the documentation he’s provided.

Every soldier out there - your son and my nephews included - is in a position where they really can’t know for sure whether they have lawful authorization to do what they’re doing. I don’t know about you, but I don’t like the thought that my nephews could be found guilty of war crimes in some international war tribunal because the US military system didn’t bother to check whether the CINC could even legally clean latrines for your son, my nephews, and men like Lakin.

A person can argue that the oath of office makes a person “the President”. I don’t see that in the Constitution anywhere. The process I see in the Constitution allows SCOTUS to decide all cases involving the laws and Constitution, but that doesn’t mean that Roberts can decide on his own whether the Pres elect “qualifies”, without it being an actual CASE.

But my point in all this is that these questions are critical to the lawfulness of combat deployment orders based on Obama’s orders rather than Joe Biden’s.

TOC, I think it was you who clarified how the Article 90 charge translates to Article 92 charges. That discrepancy hadn’t made sense to me and your explanation was exactly what I needed. Thank you so much. The phrase about the orders given through the chain of command wasn’t clear to me. It’s still not totally clear to me. Is 92(1) saying that the specific, direct orders used to implement a general order are themselves considered to be general orders as well?

Sorry this is so long. I’m REALLY sorry that my poor use of words has side-tracked what really matters about this issue. I am nothing; my emotions are neither here nor there to the bigger picture. But we’ve got serious damage being done by this precedent. Or - if this will never be precedent because everybody knows brigade commanders can’t send troops to war without valid orders from the legally-authorized person - we’ve got an innocent man singled out to be in a court-martial where everybody violates his Sixth Amendment rights by willfully ignoring what everybody knows.

No matter how you slice it, it’s an incredibly sad day for the US Constitution and everybody who loves and defends it.