The United States has civilian control of its military.
POTUS ordered the “surge” in afghanistan and also Ordered changes to the rules of engagement that apply to every soldier once deployed to that country.
The Deployment order required the legal authority of the president. If he is not eligible according to the terms of the constitution, the surge order does not have the authority of POTUS.
Without the presidential authority of a legal eligible POTUS, the deployment order does not have legal authority.
What you are arguing is that the local commander is isolated from the chain of command. This is not so, there is a cascade of orders following from Obama’s surge order downwards to Lakin, then linking back to Obama himself if traced back up the chain of command to the CIC.
If Obama is not eligible, he is a domestic enemy, and it is Lakin’s duty under his officier’s oath to challenge and or disobey an order with no legal authority.
Since lakin has been charged he already has standing, and can even proceed separately with a Quo Warranto suit in the DC courts. I doubt he will do so.
Since Lakin is the defendant, he has to be proved guilty of disobeying an legal order from a local commander who has the legal authority to give it from the chain of command.
Moving troops to a war zone requires the Authority of a legal, eligible POTUS.
Remember, *civilian control of the military.*
The result will depend on the Military Judges and their views of the role of the constitution. If they believe in the constitution as supreme law they sould allow Lakin discovery.
No, that's not accurate, at all. This is well-settled law. It's called the de facto officer doctrine and it says "The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient.". This doctrine has been incorporated into military law for decades - see: US v. Jette and US v. Watson. Of course, none of this will even be considered by the court because the military judge will rule Obama's eligibility irrelevant. That ruling will be upheld on appeal, easily.
"Since lakin has been charged he already has standing, and can even proceed separately with a Quo Warranto suit in the DC courts. I doubt he will do so."
Obama is neither the issuer of the order that was disobeyed, nor was he the convening authority for Lakin's court-martial. Why would a prerogative writ be granted in such circumstances?
"Since Lakin is the defendant, he has to be proved guilty of disobeying an legal order from a local commander who has the legal authority to give it from the chain of command."
This statement doesn't acknowledge that in a military court of law, orders are presumptively legal. Do you know what presumptively legal means, and how that affects burden of proof? For the government to prove its case, all it has to demonstrate is that Lakin missed a movement, and that he disobeyed an order(s). These are two charges that are proved EASILY.
"The result will depend on the Military Judges and their views of the role of the constitution. If they believe in the constitution as supreme law they sould allow Lakin discovery."
This is how liberals think - they want jurists to ignore statutory law, case law and principles of jurisprudence to arrive at the conclusion that that feel is just, rather than legal. This is not how a competent and conservative trial court works.
I'm sure the military judge will take their jobs seriously, and no doubt are aware of the Constitution. I'm equally sure that if LCOL Lakin and his team try a defense along the lines of your argument then they will be laughed out of court.
It also seems to me that the military court is duty bound to act under the presumption that Obama’s HI vital records will conform to his representations, and under that presumption Obama would have nothing to hide, as an honorable CIC sworn to uphold the Constitution, and would have no basis to obstruct a request from the court directly to HI Vital Records.
Obama does not have the DOJ obstructing discovery in a court-martial. HI statutes authorize HI DOH to release Obama’s vital records to any proper court request, if I remember correctly.
http://court-martial-ucmj.com/discovery/discovery/
Discovery
December 31, 2009
Discovery obligations apply to court-martial motions practice, for example when there is to be a suppression hearing.
The government has a mandatory duty to disclose evidence in its possession that is favorable to the defense, “either because it was exculpatory or of impeachment value . . . .” . The government breaches the duty established by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny, including Giglio v. United States, 405 U.S. 150 (1972), when it withholds such evidence, either willfully or inadvertently, and the withheld evidence is found to be “material.” Id. In the context of non-disclosed impeachment evidence, materiality is assessed in terms of whether the reliability of the witness in question may well be determinative of the outcome of the proceedings. See Pennsylvania v. Ritchie, 480 U.S. 39 (1987). That is, the evidence must be such that “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.” (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)). Stated otherwise, “the relevant question is: ‘when viewed as a whole and in light of the substance of the prosecution’s case, did the government’s failure to provide . . . [the] Brady impeachment evidence to the defense . . . lead to an untrustworthy [result]. . . .” (some citations omitted).
United States v. Best, No._________, 2009 U.S. Dist. LEXIS 119802, at *19–20 (M.D. Pa. Dec. 23, 2009).
“Mandatory duty” is what I usually refer to as a self-executing duty that does not require the defense to make a discovery request. Trial counsel at court-martial sometimes state that they didn’t (or don’t) have to give “Brady” discovery until there’s a defense request, or until the MJ has arraigned and docketed. Not so. Also, it is my view that the prosecution has an affirmative obligation to seek out Brady-plus discovery.
Best stands for the proposition that Brady and impeachment evidence should be disclosed prior to a suppression hearing if the information relates to a prosecution witness who will be testifying.