Replies

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.

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.

"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."

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.