This isn't a discussion about military law in the abstract, but rather a discussion about how military law applied to Lakin. The facts of Lakin's case are crystal clear to anyone with even a remedial understanding of military law - the lawfulness of HIS orders were a matter of law to be decided by the military judge. It really can't be anymore straight-forward.
And to someone like me with far less than a remedial understanding. So it doesn't take a genius. Obviously.
And to someone like me with far less than a remedial understanding. So it doesn't take a genius. Obviously.
The judge ignored 4 legally-binding references which all agreed that the lawfulness of the orders depends on legal authorization, which for combat deployments must come through the President:
1) Article 90 (ii under “lawfulness”),
2) Article 92 (must not be contrary to the Constitution or laws, and must not be given by someone acting beyond their authority),
3) the Authorization for the Use of Force (AUOF, which gives sole authority to use force in the War on Terrorism to “the President”) and
4) the statute (I’d have to look up that reference; sorry) which authorizes the SecDef to implement combat deployments and movements WITH APPROVAL FROM THE PRESIDENT.
So while generically citing the authority of Congress, Lind ignored 4 different places where Congress makes the lawfulness of combat deployment orders ABSOLUTELY DEPENDENT on the President.
Is there anything that forbids a military judge from making rulings that are contrary to the law, or can she make stuff up wholesale as she goes along? What accountability is there when a judge ignores 4 pieces of actual legislation which contradict her ruling on what the legal requirements are?
Also - I referenced this before but received no response. In cases where the sole issue is whether the person giving the order actually holds the position to be able to give the order, the judge does not necessarily have the authority to rule on the lawfulness of the orders, according to a footnote on p 160 at http://usmilitary.about.com/library/pdf/mcm2000.pdf )
What determines whether the judge has that authority? From what I read elsewhere, it seemed that the salient issue is whether that is the ONLY defense the accused has - in which case the defense of “unlawful orders” is an issue of fact, not of law - and must therefore be decided by vote of the members of the court-martial jury, not by any one person (either the judge or the president/chairman of the jury). I need to find that reference again to make sure I understood it correctly, and hopefully others can clarify this point as well.
I cited case law. It's not an abstract concept and could or should have been applied to the Lakin case.