Why do you think that Lakin's counsel - a man with over 25-years of practical military legal experience - stipulated that Lind was right on the law?
Lind took judicial notice that Obama was sworn into office, ergo Obama IS the President of the United States. It is not the pleasure of the military, to especially include the military legal system, to examine Obama for defects in his authority to wield the power in the office that he so clearly holds; Just like - as New centrally held - it's NOT within the purview of the military and its members to determine of the Commander-in-Chief is acting Constitutionally.
This is why Lakin affirmed under penalty of perjury that the orders he received were lawful.
I believe he said that because for him to say otherwise would be contempt of court.
I am not JUST repeating the same things. I am also presenting references and asking for clarification or rebuttals, which nobody except Buckeye Texan is giving me. I appreciate his willingness to actually engage. Obviously he’s not a lawyer, to his credit.
Here is what the footnote I referenced says (again, it’s the footnote on p 160 at http://usmilitary.about.com/library/pdf/mcm2000.pdf :
“Ordinarily the lawfulness of an order is finally decided by
the military judge. See R.C.M. 801(e). An exception might exist when the sole issue is whether the person who gave the order in fact occupied a certain position at the time.”
Rule 801(e)(1)(A) says:
” (A) Finality of rulings. Any ruling by the military
judge upon a question of law, including a motion for a finding of not guilty, or upon any interlocutory question is final.”
With that in mind - that a judge’s rulings of law or interlocutory questions are final - I found the part which seems to me to explain why the above statement is used. It’s at II-76, on page 126 at http://usmilitary.about.com/library/pdf/mcm2000.pdf (emphases mine):
“Questions of the applicability of a rule of law to an undisputed set of facts are normally questions of law. Similarly, the legality of an act is normally a question of law. For example, the legality of an order when disobedience of an order is charged, the legality of restraint when there is a prosecution for breach of arrest, or the sufficiency of warnings before interrogation are normally questions of law. *****It is possible, however, for such questions to be decided solely upon some factual issue, in which case they would be questions of fact. *****For example, the question of what warnings, if any, were given by an interrogator to a suspect would be a factual question.
A question is interlocutory unless the ruling on it would
finally decide whether the accused is guilty. ******Questions which may determine the ultimate issue of guilt are not interlocutory. **** An issue may arise as both an interlocutory question and a question which may determine the ultimate issue of guilt. An issued is not purely interlocutory if an accused raises a defense or objection and the disputed facts involved determine the ultimate question of guilt.”
So if the lawfulness of the order involves whether the person who had to authorize it actually held the position to do so - held the position lawfully and Constitutionally, as required by Article 92(1) - ultimately determines the issue of guilt, then it is not interlocutory.
And if the lawfulness of the order hinges on a factual issue (such as whether the President ever “qualified” by Jan 20th as required by the 20th Amendment), then it is an issue of fact, not of law.
So in the instance where the sole issue that decides guilt is the facts surrounding whether the authorizing person actually holds the position to be able to authorize the order, it is an issue of fact rather than law and it is not an interlocutory question. Thus Rule 801(e)(1)(A) doesn’t apply to it, and it is not stated that the judge’s ruling must be final.
That’s why I think there’s that footnote that I referenced, and it seems to me that the instance I described in the preceding paragraph shows the exception that the footnote refers to.
It is exactly Lakin’s situation.
Reminiscent of the film 'Groundhog Day'.
Re. #560
This is another good post that we might remember as an example of you getting a reasonable and polite perspective from an apparently knowledgable indiviudal.