Posted on 04/22/2010 2:54:33 PM PDT by BuckeyeTexan
But since he is allowed to argue that the order was illegal, and the MCM indicates that a legal order must proceed from someone with the legal authority to issue such an order, the de facto officer doctrine, which is not as straightforward as you potrary it, not even as indicated in the case you cite, would not apply in this instance.
It would apply in cases where someone was accused of performing an act in pursuat of an order later found to be unlawful, or more properly unauthorized, but not obviously illegal in an of itself.
~~Ping!
“OK, what is illegal about being ordered to deploy to Afghanistan by his brigade commander?”
That’s just it, absolutely nothing. I think we can agree that there are clear guidelines for what constitutes an illegal order and this order to deploy is about as far illegal as can be.
Should Lakin loses his commision and career to no benefit or advancement of the “birther” cause, I am hopeful you will see the inherent sadness here too.
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Could the prosecution argue that LTC Lakin disobeyed his orders specifically to achieve a political agenda. Only to YOU is there a "political agenda" in this case. You keep thinking this is some sort of cheap partisan political game where you take great GLEE in trying to score points for your side. Lt Col Lakin's actions and Sacrifice for us all are Noble, Admirable ... and necessary. Lt Col Lakin is respecting and following the "orders" of the Constitution, to which he took a solemn oath to protect and defend. Furthermore, IF there WERE a “political agenda” here, rest assured that the Army would have slapped Lt Col Lakin with ADDITIONAL charges connected to: — UCMJ Article 88 (Contempt toward officials)
What's next on your little checklist? Are you next going to accuse Lt Col Lakin of being RACIST too?! |
Pathetic, isn’t it, how some vocal and alleged conservatives
here spew keystrokes supporting obscuring it, but aren’t
vested or insistent about just that thing:
the truth, whatever it is, coming out ... THE TRUTH ..
for the vital good. integrity and survival of this blessed
country and the treasure of this form of government,
designed by great men and women who gave everything
they had for it, and whose young men and women suffer
and die today to protect.
You may be the most argumentative person I have ever come across.
First, I was illustrating why - even if Obama was somehow found to be ineligible - it would have no bearing on the validity of the so-called surge order, which is the order that the original poster referenced. Whatever "surge" directives Obama gave to Gates were, they would not be defective if Obama was impeached and convicted for fraud, in my opinion.
Moreover, I remember that you're stuck on the de facto officer, primarily because of Ryder. I won't be able to convince you otherwise. Your mind seems set. That's fine. But, there have been a number of cases where the doctrine has been applied in military law, most of it coming from defendant's challenge to the eligibility of the court-martial convening authority. None of those challenges have prevailed on appeal, and all have been rejected because of varying applications of de facto officer.
You might have some problems finding these cases online, as is frequently the case in Court of Military Appeals(CMA) opinions. I'm reading them from a hard-copy journal I have at home. But, they are...
United States v. Brown, 39 M.J. 114, 117 (C.M.A. 1994);
United States v. Bunting, 15 C.M.R. 84, 87 (C.M.A. 1954)
United States v. Watson, 37 M.J. 166, 168 (C.M.A. 1993)
United States v. Yates, 28 M.J. 60, 61-63 (C.M.A. 1989)
and finally
United States v. Jette, 25 M.J. 16 (C.M.A. 1987)
It would apply in cases where someone was accused of performing an act in pursuat of an order later found to be unlawful, or more properly unauthorized, but not obviously illegal in an of itself.
Right, de facto officer applies to the issuer of the order, not the substance of the order.
I can promise you that is the LAST thing the convening authority would do. Why would prosecution open the door for a defendant to make this case a political statement, by alleging political motivations? They wouldn't. That would be an amateur mistake.
Any competent prosecutor - military or civilian - wants the prosecution case to be as simple and straightforward as possible. Complications generally work towards the favor of the defendant.
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> Should Lakin loses his commision and career ... My FRiend, Lt Col Lakin realizes there's really NO OTHER WAY, especially for him. In a situation like this where the Eligibility of the Chain of Command is in doubt, the ONLY way to challenge the validity of an order IS TO actually challenge the validity of an order. Lt Col Lakin is EYES WIDE OPEN. This case is unfolding EXACTLY as it is meant to. Save your pity and disdain for someone who is far more deserving of it.
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Authority can be deligated, but ultimately derives from “National Command Authority” i.e. POTUS/CINC.
“Are you saying that the prosecution does not have to prove the elements of the charges? I just don’t agree.”
No, what I’m saying is that once the prosecution establishes that the order was given by his commander, the order is presumed to be lawful. The other element is that he disobeyed/failed to obey the lawful order. If he has a reason, that’s an affirmative defense, which he (the accused) will have to prove.
Colonel, USAFR
ps - thanks for your service.
This will give Lt Col Lakin: Injury — Court Martial proceedings, forfeiture of pay and incarceration because he is following his Oath to "protect and defend the Constitution of the United States"
Causation — Injury incurred because Obama continues to hide his original birth certificate and other records that would confirm his Eligibility to be the CinC
Redressability — subpoenas issued later from Federal court(s) — via a quo warranto trial in the Jurisdiction of the District of Columbia — that would order the (defacto) POTUS & CinC to supply documentation that he continues to hide
a/k/a ... Standing
Your words, not mine. You suggested the political agenda.
LTC Lakin's lawyer's problem will not be a "stacked deck," it will be that he is asking the Court Martial to over rule the United States Constitution, and make the United States Army, not the Congress, the final arbitrator of who is, or is not, the lawful President of the United States. Anyone who thinks that the Army will set its self up to decide who is President, much less decide that Congress got it wrong, and start obeying the orders of its own choice to be President, and ignoring the orders of the guy that Congress says won, is delusional.
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I can promise you that is the LAST thing the convening authority would do. Why would prosecution open the door for a defendant to make this case a political statement, by alleging political motivations? They wouldn’t. Yep. For once, we agree. And if the JAG even insinuates it during the Court Martial hearings, Lakin’s attorneys will rightfully jump on it and readily discredit the Army for acting in a partisan and political manner. |
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> You suggested the political agenda. Negative. YOU suggested it first. Go back and look. Furthermore, this is a matter of prima facie. And the fact is, Obama has never produced it to anyone possessing a hint of credibility or political neutrality.
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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.”
Plus, if anyone checked LTC Lakin’s time line it is clear he did EVERYTHING he could through the proper procedures and chain of command to get help and answers to his questions. He was ignored, replied to by many (all documented) and given no help or answers. Lakin then proceeded to do what he felt he had to do which was to refuse to follow ANY orders until his questions were answered.
Those who wish to contribute to LTC’s defense fund may do so here: http://www.safeguardourconstitution.com/
SPs have a field day!
But he was ordered to go to a war zone in Afghanistan!!
Orders vs, orders, logic, hmmmm!!!
Neither you or I KNOW squat about that!!!
He may have a trump card in his back pocket like Blago???
Speculative scenario:
Let’s say the Courts Martial convenes and Lakin’s representation tries to force the eligibility issue. At that point someone (a courier, a State Department flunky, a Perkins & Coie lawyer, whatever. Besides, I don’t know how the court’s rules would allow for this and I’m just speculating) asks to address the court and submit a certified copy of BHO’s BC in a sealed envelope from Hawaii. How the President is disappointed that a decorated officer has been fooled into sacrificing his career over this issue, blah… blah… blah… And might he be allowed to submit the President’s birth certificate for the court’s consideration.
It seem that then Lakin would be dead in the water. And BHO get a club to beat birther’s with of something like: “Look! I gave a certified copy to a court to try and save an officer’s career. And they just moved on to their next talking point and still won’t shut up!”
Now I don’t think this will necessarily happen, but it might be a clever stratagem.
It certainly wouldn’t shut anyone up.
That's BS. They are asking if Barack Obama is constitutionally qualified to be the CinC of the US Military. Lakin is seeking to whether the US Constitution is being upheld, which is the converse of NOT trying to overrule it. And the US Army would not be the "final arbitrator" that would be the people of the United States to whether Obama is a lawful or an unlawful president.
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