Thought Experiment

Self ^ | 06 Dec 10 | Self

[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.

[OneWingedShark]

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.

[OneWingedShark]

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

[95B30]

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.

[Red Steel]

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.

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"

[wintertime]

ping

[The Comedian]

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.

[Political Junkie Too]

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

[OneWingedShark]

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?}

[Dead Corpse]

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

[Las Vegas Ron]

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?

[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 >

[OneWingedShark]

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

[Las Vegas Ron]

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

[OneWingedShark]

>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.

[OneWingedShark]

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.

[brytlea]

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!

[Las Vegas Ron]

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?

[Las Vegas Ron]

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...

[OneWingedShark]

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

[bgill]

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.