Skip to comments.LTC Lakin Formally Charged (Violation of UCMJ Articles 87 & 92)
Posted on 04/22/2010 2:54:33 PM PDT by BuckeyeTexan
Lieutenant Colonel Terrence L. Lakin was charged today with four violations of the Uniform Code of Military Justice (UCMJ) under Articles 87 and 92.
(Chargesheet at the link in PDF format.)
(Excerpt) Read more at scribd.com ...
I'm sorry again, but that's not even remotely true. You don't understand how the process works.
You can characterize this as civil disobedience. And what people are missing is that civil disobedience doesn’t have some magic strategy up its sleeve to escape or overcome the law; it subjects itself to it the law in the hopes that the absurdity and injustice of that outcome creates a reaction advocating its change.
First, let me state that I fear that this is not going to end well for Lakin.
In the above statement, there are some interesting words included. Those words are "inferred" and "may". Using the rules of construction, and the rule of lenity, it is pretty clear that a defendant has the opportunity to establish that the order is not lawful.
Note that the words "are" and "will be" are not included. As you certainly know - while others may not - words are to be given their legal meaning (or ordinary meaning when there is no specific legal meaning) and words may not be read either into or out of the passage.
The very real problem for Lakin is being afforded the opportunity to prove the orders are unlawful simply because Obama is not a legitimate President. I don't think he will be allowed to do so; and will thus be convicted unless his defense team can somehow create so much publicity about this case that the members of the court martail board will feel safe enough to essentially engage in jury nullification.
If the judge rules that Obama's legitimacy as President is not relevant, that would also create some media attention. A military judge might not want to say that he doesn't care if Obama in constitutionally qualified.
As much as I wish Lakin well and believe he is earnestly trying to do the right thing for the nation, I am not holding out much hope that he will prevail.
For those who think he will lose his license to practice medicine, I am quite confident that there are a number of states that would readily permit him to practice his profession.
Plus, Obama would fail to pass close scrutiny and it would turn out that Lakin was fully justified in using this type of strategy to expose a fraud.
Maybe Lakin’s only chance is for Lt. Caffey to be appointed as his military defense counsel if he can get a TDY assignment.
Cave is exactly right.
“If the charge is disobeying a lawful order, they have to prove it is lawful.”
Not correct: an order (as you note, Gato) is presumed to be lawful and it’s up to the accused to prove by a preponderance (more likely than not) that the order is unlawful.
The judge? Or the Court. My understanding is that the Court is the judge of the facts, not the judge, Depending on the makeup of the Court, I'd think they'd be highly adverse to the judge telling them they were not to be the judge of defense's arguments, and that the accused would not be given every opportunity to present his case. I certainly would, regardless of the case, and senior officers tend to be more "protective" of their prerogatives and responsibilities than your typical civilian juror, way more. I've seen that myself in a very similar military environment (Judge, JAG prosecutor, JAG defense, Court or Panel (of which I was the junior member) just not a full Court Martial, but run pretty much the same.
Without question. And, it's also clear that it's entirely up to the trial judge to make that determination. What becomes problematic for Lakin is the identity of the issuing authority of his actual orders. It's not the President, it's either SecDEF or his Commanding General. From the perspective of the trial judge, the eligibility of the President (or lack thereof) is irrelevant.
Moreover, even if - and this is just purely for the sake of discussion - the trial judge looks past the irrelevancy of the President's eligibility, there's the additional hurdle of the de facto officer doctrine.
And of course, the relevant case law, much of it surrounding Presidential authority and the political question doctrine does not cut well for Lakin either. The courts have not been kind to this type of affirmative defense, and I doubt this case will break from that tradition.
The fact of the matter is a trial judge is NEVER going to grant discovery on the issue of Obama's eligibility, and any lawyer with a week's worth of military legal experience would know that. This is precisely why his 4856 did everything but beg him to seek the counsel of a military lawyer, which of course he was entitled to. He declined that advice, apparently.
With respect to your statement about his medical license, you might be right about finding a sympathetic state. But, the problem for Lakin will come from the DEA. Without a DEA number, which will be in peril due to the unavoidable show cause hearing for his felony conviction, will be tough to hold on to, at least for a few years. He might be able to regain on a probationary basis after some period of time.
What do you make of this?
What if Lt. Col. Lakin says I don’t need discovery of the birth certificate. Obama’s own website says he’s “native born” not “natural born.” The constitution says he’s not president. He can’t legally follow any orders.
“The truth is, Barack Obama was born in the state of Hawaii in 1961, a native citizen of the United States of America.”
Per the MCM (and affirmed in New), the lawfulness of an order is a matter of law to be determined by the military judge.
One other possibility not discussed. If Obama is ever declared not eligible for office, I would expect that a future president will pardon Lakin.
The Court evaluates evidence, the judge determines matters of law. As an example, it's not the Court that makes evidentiary ruling based on law, but the trial judge.
In this particular instance, the MCM makes the lawfulness of an order, not a matter of fact, but a matter of law.
It would have to be a pardon as I'm not sure ACCA of CAAF would vacate the conviction.
The court martial judge is also likely to be an 0-6 and there aren't many 0-7 JAG officers, so political pressure may not be much of a factor there.
If I was a betting man, I would bet Lakin is going to get convicted. Since the court martial board also determines the sentence, I think Lakin would have a chance with a very light sentence that may include only a small temporary reduction in pay, but not a reduction in rank. At that point, I think he will simply be permitted to retire or spend his last two years in a nothing position.
(ii) Determination of lawfulness. The lawfulness
of an order is a question of law to be determined
by the military judge.
(iii) Authority of issuing officer. The commissioned
officer issuing the order must have authority
to give such an order. Authorization may be
based on law, regulation, or custom of the service.
(iv) Relationship to military duty. The order
must relate to military duty, which includes all activities
reasonably necessary to accomplish a military
mission, or safeguard or promote the morale, discipline,
and usefulness of members of a command and
directly connected with the maintenance of good order
in the service. The order may not, without such
a valid military purpose, interfere with private rights
or personal affairs. However, the dictates of a persons
conscience, religion, or personal philosophy
cannot justify or excuse the disobedience of an otherwise
lawful order. Disobedience of an order which
has for its sole object the attainment of some private
end, or which is given for the sole purpose of increasing
the penalty for an offense which it is expected
the accused may commit, is not punishable
under this article.
(v)Relationship to statutory or constitutional rights. The order must not conflict with the
statutory or constitutional rights of the person receiving
Looks like there might be some wiggle room there for the defense team. Especially (III)
Unless it obviously is not. Otherwise it's just a restatement of "I was just following orders".
Text of the Oath:
I, [name], do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.
Depends on whether the defense relies strictly on the "not born in the US" disqualification to be a Natural Born Citizen. If the rely on that and/or the "not born of Citizen parents", it wouldn't matter a bit. Unless of course it shows someone other than BHO Sr as the father. A US citizen someone. Or no one at all, but even those might not matter since BHO Sr acknowledged paternity in the divorce papers.
The ATO doesn’t provide a lot of details. And from the air, many things look like something else. So unless there are comments added like “Religious shrine”, then you assume the target has been vetted and is valid.
Law of war includes things like proportional means, collateral damage, etc - and it isn’t to the pilot to decide how those balance out. If you don’t trust your superiors, you resign.
It's a presumption that can be rebutted, and that's what the defense would try to do.
You raise great points. The rules demand that if he elects to go with a panel, that they must be 0-6s or above. but, it's Lakin's prerogative to go with just the judge. I would actually expect him to take that option.
Once the trial judge rules the orders lawful, a jury's decision is a foregone conclusion. Nullification isn't going to come into play here.
It works the other way, the defense must prove that he's not. How much ability they will be allowed to obtain evidence of that, will be up to the judge.
Of course if they argue that he's not an NBC, because his parents were not citizens, they won't need much evidence.
I will have to disagree here. He's an 0-6. If he's convicted at GCM of the of missing movement and the several specification of failure to obey, he's not going to keep his commission. He'll definitely face some confinement, some forfeiture, rank and dismissal. Those are serious charges for a commissioned officer, and the punishment will be commensurate. The max punishment he's looking at is dismissal (dishonorable), complete forfeiture and around 4 years confinement. He's won't get the max (probably), but he's not going to get a slap on the wrist, not as an 0-6.
His best chance is to go with a panel rather than just a judge. Most O-6s didn't get there because they are unintelligent. If none of them have any hope of making O-7, I would not rule out the possibility of a jury nullification even if it is a very remore possibility. The defense could go on the offence and try to get on the conservative talk shows and explain that there is a USSC case that clearly states that the jury is judge of both the law and the facts.
The concept that the tribunal is the sole judge of the law is a judicially created fiction and was never contemplated by the founding fathers. Another judicially created fiction is the whole standing issue as it relates to violations of the Constitution. Every citizen should have the right to question the constitutional qualifications of a President through a quo warranto action.
everything is explained here..
Military Law and Precedents, Volume 1
I think that the comparison of the legal cases of Spc.4 New and LTC Lakin is inappropriate because of the difference in rank, i.e. enlisted vs. Commissioned officer.
Might be interesting to see if the Army screws up (maybe intentionally) the prosecution like they did in the 1LT Watada case at Ft. Lewis and wound up having to dismiss all the charges and giving the guy an honorable discharge.
In the end, Lakin will likely lose unless he wins BIG in the court of public opinion prior to the actual trial.
I've discussed this possibility too. His lawyer has got to do his best Perry Mason impersonation against a stacked deck.
It's an interesting argument. You base this on.....?
Watada hit the jackpot when Obama was elected. The Army stood a reasonable chance of prevailing on appeal. Holder's DOJ dropped the case.
And the political converse is that Obama loses from the bad publicity.
Now you’re throwing obama’s website at us? Whatever credence you had previously is now toast.
Please cancel my last post to you, thought you were someone else. Did not mean that to apply to you.
This is what I base my statement on. I posted this and the officer oath in my post 118.
I see. To be more specific, what language in US v. Michael G New do think lends itself to distinction between the officer and enlisted service oaths?
Can you point to any specific examples in either the lower court's decision, or the appellate affirmation of that decision that would change because of the officer or enlistment oath?
Do you believe that the trial judge in deciding that the question of legal authority was nonjusticiable based on the political question doctrine would come to a different conclusion had the defendant been a commissioned officer?
Or, do you believe that because of the defendant's enlisted status as opposed to a commission, the appellate court would have found some infirmity in the legal reasoning of the trial judge when he decided that the defendant's orders were legal? And, if you do believe that, what infirmity do you think the appellate court would have hung their hat on?
I'm fairly familiar with the Manuel for Courts-Martial, and I don't believe that it makes any distinction with respect to commissioned or non-commissioned status of the defendant when directing the trial judge to decide an orders lawfulness. But, if you're aware of such an instruction, please point it out as I'd love to educate myself.
Not a problem. : )
I can’t believe they even have “native born” listed there.
> Sigh... This makes me sad.
Why sad?! Lt Col Lakin anticipates and welcomes these charges.
Lt Col Lakin's SACRIFICE should make you happy that this is all unfolding as expected.
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
We sure hope so ... Lakin needs Injury to get into Federal court.
Crocodile tears, anyway.
And repeating again.
Probably not. Lakin is not charged with disobeying Obama's orders but instead the orders of his commanding officer.
The order of his brigade commander is a lawful order, and I cannot imagine how the defense can demonstrate that it was not.
If LTC Lakin gets his day in court, and that is a big if, the question of obumbers eligibility will be answered.
Lakin will get his day in court. And Obama will never enter into it.
Though I dont claim to be an expert, I do know a defendant has the right to defend him/her self and the prosecution has to prove its case.
Before it gets there the defense has to prove to the court that Obama's eligibility is relevant. Based on these charges, it isn't.
OK, what is illegal about being ordered to deploy to Afghanistan by his brigade commander?
By 'evidence' I mean all evidence relevant to the case. Obama's citizenship isn't part of that since he's not charges with disobeying Obama's order but that of his brigade commander.
Amen to that.
More power to Lt. Col. Lakin.
He has followed his conscience. His causeseeking to resolve doubt on Obama’s birth certificate and hence Obama’s qualification to be commander in chiefis reasonable and just.
Lt. Col. Lakin’s military record of long-time and distinguished service speaks for itself. Obama has no valid reason not to permit the birth certificate to speak for itself.
General question: If it were proven that Obama faked his credentials in order to fool people into thinking that he was born in Hawaii and that he is in fact not Constitutionally eligible to be POTUS, would a court martial of LTC Lakin stand??
Yes, Obama's fraudulent candidacy for, and installation into political office would have no impact on the legal authority of Lakin's superior commissioned officers, and civilian command authority to issue orders, including deployment orders. Why this escapes so many people - including Lakin and his representation is a mystery.