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Thought Experiment
Self ^ | 06 Dec 10 | Self

Posted on 12/07/2010 12:52:05 PM PST by OneWingedShark

I put together a thought experiment on another thread to illustrate the basic problem, as I understand it, in LTC Lankin’s case. Those disapproving of his actions have failed to reply with the much other than “that’s silly,” completely failing to cite regulations, laws, rules, or other such official codification.
 
For that reason, I should like to post that thought-experiment here and get other veteran’s opinions (and hopefully the backing codifications) on the matter.


Let’s say that I were to type up orders assigning myself to the command of some unit, then dig out my old BDUs, get a shave & a haircut, go to the PX and get a nice little rank-patch with a line of stars. Then, after making sure everything was in order present myself and the orders to the unit mentioned in the orders.

Now, let’s say that I ordered the unit to go to the southern AZ border and enforce the border-security with lethal force. These orders are themselves authorized by the Constitution of the United States, to wit:

Article 4, Section 4
The United States shall guarantee to every State in this Union a Republican Form of Government, AND SHALL PROTECT EACH OF THEM AGAINST INVASION; and on Application of the Legislature, or of the Executive (when the Legislature cannot be convened) against domestic Violence.

So then, the only variable concerning the validity of the given orders is the person who is issuing them; in this scenario: me. As in mathematics I have isolated the variable in question, which is that of origin: do those orders which originate from an unqualified source, even if in complete agreement with the Constitution, still carry LAWFUL authority?

That is to say, would those orders be legitimate?
If not, then why are Obama’s orders legitimate?


My thought experiment was criticized as being “Irrelevant to the charges Lakin is facing.” so let’s address that issue by expanding upon the first scenario.


Let’s say that in this unit there was a sergeant from my old National Guard unit who knew that I was only a mere enlisted man who didn’t have the personality to hack and let his enlistment expire. So, he takes this issue to his company commander and the Captain does a song and dance without addressing the issue. Unsatisfied, he takes it up to the Battalion commander and the LTC does a song and dance and refuses to address the issue by confirming whether or not I am indeed a commissioned officer.

Well, by now, the sergeant is getting mighty frustrated as his superiors refuse to address his concerns about the lawfulness of the orders to deploy to AZ and kill the invading Mexican drug cartels who dare invade that state. He can’t take it up to me because me being the commander of the whole mess will [obviously] just give him a direct order to go on with the deployment.

So, now the sergeant says that he will refuse to deploy unless he is shown proof of my eligibility to command the unit, in specific: proof that I am a commissioned officer.

Is he within his rights to question the legality of his orders to deploy? Why or why not?
Is he within his rights to demand proof that I am eligible to command his unit? Why or why not?


Legal reasoning and citations are more than welcome.


Bonus Scenario:


Let’s say PFC Williams shoots and kills an illegal Mexican-immigrant during the execution of some mission under this deployment of the unit. Note that his orders are pursuant to the Article 4, Sec 4 of the Constitution which guarantees all states of the Union to protection from invasion.

Could he be successfully charged with murder?
Under what conditions, if any, can following the Constitution be said to be illegal?
Please cite your sources for that last question as it is my understanding that the Constitution is the highest law in America.


TOPICS: VetsCoR
KEYWORDS: certifigate; constitution; lakin; legal
An excerpt below from the "Military Law and Precedents" in the book collection at Harvard University:
——Thanks for that reference, Red Steel

“The essential attributes of a lawful order include:
(1) issuance by competent authority — a person authorized by applicable law to give such an order;
(2) communication of words that express a specific mandate to do or not do a specific act; and
(3) relationship of the mandate to a military duty.
 
[T]he accused may challenge an order on the grounds that it would require the recipient to perform an illegal act or that it conflicts with that person‘s statutory or constitutional rights.”
— “United States v. Deisher, 61 M.J. 313, 317(2005)”

According to Army Study Guide:
AUTHORITY
Authority is defined as the right to direct soldiers to do certain things. Authority is the legitimate power of leaders to direct soldiers or to take action within the scope of their position. Military authority begins with the Constitution, which divides it between Congress and the President. The President, as commander in chief, commands the armed forces, including the Army. The authority from the Commander-in-Chief extends through the chain of command, with the assistance of the NCO support channel, to the squad, section or team leader who then directs and supervises the actions of individual soldiers. When you say, “PFC Lee, you and PFC Johnson start filling sandbags; SPC Garcia and SPC Smith will provide security from that hill,” you are turning into action the orders of the entire chain of command.

So then, I believe that I have a fairly solid case in saying that the authority a commander has is indeed derived from their superior, all the way to the president who, as Commander-in-Chief, derives his authority from the Constitution.

1 posted on 12/07/2010 12:52:10 PM PST by OneWingedShark
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To: OneWingedShark; Red Steel; The Comedian; Dead Corpse; bgill; butterdezillion; Squantos; ...

I thought you guys might be interested in what others have to say on this thread if and when discussion starts going.


2 posted on 12/07/2010 1:01:08 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark
As a soldier you are required to NOT obey illegal orders. The problem comes when you have conditions such as the ones we have here. The question of Obamas eligibility to serve legally as the CIC of the United States Armed Forces. Add an activist judge who refused the defense any use of evidence and you have a railroaded LTC.
3 posted on 12/07/2010 1:27:50 PM PST by 95B30 ( The Professional Left: "Their morals are crooked, their logic is flawed, their honor is stolen)
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To: OneWingedShark
Is he within his rights to question the legality of his orders to deploy? Why or why not? Is he within his rights to demand proof that I am eligible to command his unit? Why or why not?

Yes, it is within his rights to question all orders for legality 'even on the face' [Lind's words] of the order looks legal, but the inferior believes that it is still an unlawful order. The Inferior may have to defend his refusal in court like LTC Lakin, but in Lakin's case, the court has refused by obfuscation to address the issue. The Army has obfuscated and ran away from the issue by relying on related 'process charges' against the defendant.


Military law - Constution trumps Executive regulation As this excerpt says, as it clearly states above, Executive regulation or orders by the president, may not conflict with the US Constitution, and in Obama's case, he inherently conflicts with Article 2, section 1, clause 5 of the US Constitution.

Furthermore, it states Executive regulation "shall not be inconsistent with, or contrary or repugnant to, the laws, or the Constitution and laws of the United States"

4 posted on 12/07/2010 1:57:50 PM PST by Red Steel
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To: OneWingedShark

ping


5 posted on 12/07/2010 2:02:19 PM PST by wintertime (Re: Obama, Rush Limbaugh said, "He was born here." ( So? Where's the proof?))
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To: OneWingedShark
Arrg, it's so complicated.

Let's just jail Soetoro until we figure out what the sentence should be.


Frowning takes 68 muscles.
Smiling takes 6.
Pulling this trigger takes 2.
I'm lazy.

6 posted on 12/07/2010 2:02:39 PM PST by The Comedian (Government: Saving people from freedom since time immemorial.)
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To: OneWingedShark
I think the mistake in the construction of your thought exercise is that you are relying on a sargeant who knew you personally and knew first-hand of your qualifications (or lack of). You position this sargeant as having his concerns fall on deaf ears.

In the real case, nobody (including Lakin) knows for sure of Obama's qualifications because Obama has sealed them off from everyone. Obama is relying on the presumption of innocense to see him through. You will need to find somebody who can either 1) positively attest to Obama being born at the hospital in Hawaii, or 2) positively attest to being born elsewhere (like your sargeant who knows the truth), for your thought exercise to balance.

-PJ

7 posted on 12/07/2010 2:14:53 PM PST by Political Junkie Too ("Comprehensive" reform bills only end up as incomprehensible messes.)
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To: Political Junkie Too
Obama is relying on the presumption of innocense to see him through. You will need to find somebody who can either 1) positively attest to Obama being born at the hospital in Hawaii,or 2) positively attest to being born elsewhere (like your sargeant who knows the truth), for your thought exercise to balance.

We actually do have conflicting testimonies; one of which is that his paternal grandmother claims to have been at his birth in Kenya. {What reason would she have to lie about it either way?}

8 posted on 12/07/2010 2:39:04 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark

Pretty solid logic. Not that I think it will sway the detractors from their stance.


9 posted on 12/07/2010 2:43:00 PM PST by Dead Corpse (III, Alarm and Muster)
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To: OneWingedShark
Excellent synopsis.....I wonder what the folks here who say Lakin should be locked up are going to say when and if the military is ordered to suppress the American people

Will they support bammies CIC status and any who question his Constitutional authority then?

10 posted on 12/07/2010 5:19:42 PM PST by Las Vegas Ron (The Tree of Liberty did not grow from an ACORN!)
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To: Las Vegas Ron
"Will they support bammies CIC status and any who question his Constitutional authority then? " Oops, should be will they support bammies CIC status and criticize those who fail to obey?

< /end brain fart >

11 posted on 12/07/2010 5:25:29 PM PST by Las Vegas Ron (The Tree of Liberty did not grow from an ACORN!)
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To: Las Vegas Ron

*nod* — An excellent question; and we may yet experience the answer.


12 posted on 12/07/2010 6:06:33 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark

I was hoping to see more comments on this thread...don’t know why it gain more traction....sigh....


13 posted on 12/07/2010 6:13:40 PM PST by Las Vegas Ron (The Tree of Liberty did not grow from an ACORN!)
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To: Las Vegas Ron

>I was hoping to see more comments on this thread...

You and me both.

>don’t know why it gain more traction...

I have a theory on that; it could be that by arguing against LTC Lankin they will be throwing themselves against virtually all of America’s military tradition — and those who would argue for LTC Lankin do not want to be perceived as “supporting insubordination or sedition.*”

*Sedition, as defined by dictionary.com
–noun
1. — incitement of discontent or rebellion against a government.
2. — any action, esp. in speech or writing, promoting such discontent or rebellion.
3. — Archaic . rebellious disorder.

Though probably the first sentence from the wikipeda entry is a bit more appropriate/precise:
“In law, sedition is overt conduct, such as speech and organization, that is deemed by the legal authority to tend toward insurrection against the established order.”

>sigh....

Seconded.


14 posted on 12/07/2010 6:25:14 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: CedarDave; LegendHasIt; Rogle; leapfrog0202; Santa Fe_Conservative; DesertDreamer; ...

I know NM has a lot of military retirees, so I hope that you don’t find my use of the NM ping list to be wholly inappropriate.


15 posted on 12/07/2010 6:28:29 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark

Boy I must have been asleep. Can you point me somewhere that I might figure out who Larkin is?? I know I don’t always pay full attention but right now I feel as if I’ve fallen down the rabbit hole!


16 posted on 12/07/2010 6:46:44 PM PST by brytlea (Jesus loves me, this I know.)
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To: OneWingedShark
I have a theory on that; it could be that by arguing against LTC Lankin they will be throwing themselves against virtually all of America’s military tradition — and those who would argue for LTC Lankin do not want to be perceived as “supporting insubordination or sedition.*”

I think you raise a good point. I have to admit that I too have conflicting thoughts on this.

Military needs to follow orders, but where is the line drawn?

I personally do not believe bammie is eligible because he confessed his pops was a British Citizen.

I love the trolls who come here and say we should be fighting this on his policies and WE are just wasting our time...yeah that is working really well too, eh?

17 posted on 12/07/2010 6:56:38 PM PST by Las Vegas Ron (The Tree of Liberty did not grow from an ACORN!)
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To: OneWingedShark

Sorry, I was cut a little short on my thoughts in my previous post...I have to run for now.

Hope it mad some sense...


18 posted on 12/07/2010 7:11:01 PM PST by Las Vegas Ron (The Tree of Liberty did not grow from an ACORN!)
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To: brytlea

Not a problem; here’s two [rather older] threads about it:
[Before birther row, Lt. Col. Lakin racked up medals (WOW CNN lays it honestly for ONCE!)] http://www.freerepublic.com/focus/f-news/2565970/posts
[Army Refers Charges Against Lakin To Court Martial (refused orders over Obama eligiblity suspicion)] http://www.freerepublic.com/focus/f-news/2564101/posts


19 posted on 12/07/2010 7:44:02 PM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: Political Junkie Too; OneWingedShark

Honolulu elections clerk, Tim Adams has stated on video that Hussein does not have a long form BC but does have a COLB issued to those children born outside Hawaii. He doesn’t grasp the two parents NBC clause, nor that under aged Ann couldn’t transfer her citizenship to him, so feels birthers are simply racists. He further claims that both Hussein and McCain were vetted by the same process which is wrong since it was only McCain who’s NBC status was questioned by SR 511, though he is correct that both parties certified (by varying degrees) their candidates.


20 posted on 12/07/2010 8:04:45 PM PST by bgill (K Parliament- how could a young man born in Kenya who is not even a native American become the POTUS)
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To: OneWingedShark

The unrelated hypothetical situations... They are stupid...


21 posted on 12/08/2010 10:55:53 AM PST by El Sordo (The bigger the government, the smaller the citizen.)
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To: El Sordo

Which ones are unrelated?
And if they’re so stupid then why aren’t you pointing out their specific flaws?


22 posted on 12/08/2010 11:06:55 AM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark

What would be the point?

You’ve had the flaws pointed out to you before, but like most of those who tend to keep this issue alive, none of it registers and you keep claim that no one has answered your question.


23 posted on 12/08/2010 3:24:18 PM PST by El Sordo (The bigger the government, the smaller the citizen.)
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To: El Sordo

Actually what ‘flaws’ were pointed out were along the lines of:
“You’re either a commissioned officer or not.”

While true, it entirely avoids the issues at hand. Further, I have references which state, in no uncertain terms that ALL authority in the military is derived from some higher authority with the highest military authority (the commander-in-chief) deriving his from the Constitution; the Constitution clearly lays out the requirements for President:
1) Age being at least 35, with 14 years residency within the States, and
2) Natural Born Citizen status, excepting those who were citizens of [one of the] States at the time of the ratification.

The title 10 section which someone pointed out as appointing the Secretary of Defense as “The Guy” failed to realize that the sentence before the one he bolded said that he was ASSISTANT TO THE PRESIDENT. Now, if there is no legitimate President to assist, then ANY action he takes is beyond the scope of his authority.


24 posted on 12/09/2010 9:26:52 AM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark
You posed a thought experiment in which you clearly choose on your own accord to pose as having authority never granted to you by those with the legal authority to do so.

This has zero relevance to the eligibility of BHO.

You might think that BHO is ineligible, but those with the legal authority to make such decisions do not agree with you.

25 posted on 12/10/2010 9:55:19 AM PST by El Sordo (The bigger the government, the smaller the citizen.)
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To: El Sordo

>You might think that BHO is ineligible, but those with the legal authority to make such decisions do not agree with you.

That’s like saying “those with legal authority see the BATFE as not infringing on the right to keep and bear arms” as your counterargument to someone claiming that the BATFE does infringe on those rights despite the second amendment.

>You posed a thought experiment in which you clearly choose on your own accord to pose as having authority never granted to you by those with the legal authority to do so.

So then you claim that Obama had no choice but to accept the nomination for president?

>This has zero relevance to the eligibility of BHO.

It does; if he knew he was ineligible, yet ran anyway and actually won, upon inauguration he would be posing as having legal authority, no?

The *best* argument I’ve heard that BHO is president regardless of his constitutional eligibility issue is that of the phrase “The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed;” in the 12th Amendment. However, it does not specifically nullify the requirements for President (35+ & NBC) and good argument may be made that that no person not eligible for the office should be permitted to run: that is, there should be no way to vote fro an unqualified individual.

However, this is *NOT* your argument, nor is it the argument of any of these “legal authorities.”


26 posted on 12/10/2010 10:30:12 AM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark

No.

No.

No.

No.

Good luck getting anywhere with this.


27 posted on 12/10/2010 10:32:56 AM PST by El Sordo (The bigger the government, the smaller the citizen.)
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To: OneWingedShark

No.

No.

No.

No.

Good luck getting anywhere with this.


28 posted on 12/10/2010 10:33:06 AM PST by El Sordo (The bigger the government, the smaller the citizen.)
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To: El Sordo
I don't have to "get anywhere" with it; it's a thought experiment you moron!

From the wikipedia page on thought experiments:
Given the structure of the experiment, it may or may not be possible to actually perform it, and, in the case that it is possible for it to be performed, no intention of any kind to actually perform the experiment in question may exist. The common goal of a thought experiment is to explore the potential consequences of the principle in question.

29 posted on 12/10/2010 11:00:27 AM PST by OneWingedShark (Q: Why am I here? A: To do Justly, to love mercy, and to walk humbly with my God.)
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To: OneWingedShark
“Getting somewhere” with a thought experiment means coming to a rational conclusion that should be supportable by experiment should the experiment actually be done.
30 posted on 12/10/2010 11:10:02 AM PST by El Sordo (The bigger the government, the smaller the citizen.)
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