A WORD TO THE WISE

I decided – again – to post on this blog various comments I have submitted to other blogs, which were posted; or comments I would have submitted to other blogs that have stopped posting my comments; or comments I would have posted on other blogs in the past but which such posting has subjected me to responses based on the tone of which I would otherwise have prevented from appearing on my blog. Especially I have decided to post explanations that counter the ‘legal’ edicts issuing from some other blogs which, absent more reasoned and accurate explanation, is apt to be swallowed up whole by a voting public eager to increase their knowledge of our Constitutional republic so as to perfect it, and who are ill served by such sophomoric ‘legal’ discourse on those blogs.

For example, now that Leo Donofrio has come up with Quo Warranto – after Orly, and Berg, and David Allan Herndon in CA 5 (five) months ago http://www.freerepublic.com/focus/f-news/2121007/posts – he has decided to ‘explain’ that Quo Warranto is the “only” way to involve the court. Further, more than 2 (two) months after I posted my military Complaint, which is brought under the federal Declaratory Judgment Act, having fixed on Quo Warranto, he now opines that any Declaratory Judgment case is legally unsound because it requests an advisory opinion, only, which precludes hearing by a federal court. Of course, he is wrong; and I pointed this out to him in the following comment to his blog, which he has yet to publish.

Leo, you are miseducating your readers as to the scope of relief offered under the federal Declaratory Judgment Act. Basing a petition to the court on this Act does not ask the court to issue an advisory opinion which, while allowed in state court, is prohibited in the federal court. Rather, using this Act allows those who could face liability as Defendants in a future action to ‘reach the court, first’ as Plaintiffs in a Declaratory Judgment action. (See the Federal Practice Manual for Legal Aid Attorneys, http://ejustice.org/federal_practice_manual_2006/chapter_9/chap9sec3.htm.) And while ordering the removal from office of a ‘POTUS’ who is not a NBC, is outside of the scope of a Declaratory Judgment proceeding; once a federal court issues such a Declaratory ruling, I cannot conceive that he could remain in place, can you?

As for your statement that, “In order to protect the Constitution, we must not subvert the separation of powers,” this is precisely why your NJ suit failed. The court – judicial branch – will not order a state official – the executive branch – to carry out a ministerial function where no such function appears in the law – legislative branch. Absent a ministerial duty to vet the candidate for POTUS for Constitutional eligibility in NJ law, you asked the court to infer such a duty from an oath taken by the S of S to uphold the Constitution. The court, crediting counsel for the Defendant, rejected your argument. You say, you got “screwed.” I say, the court ruled to uphold the principle of governmental separation of powers.

Here’s something I posted on Pieter Nosworthy’s blog, http://thenaturalbornpresidency.blogspot.com/.

Pieter is an active duty military who signed Orly’s inflammatory Release consenting to become a named Plaintiff in her proposed military Complaint seeking to determine BO’s Constitutional eligibility for POTUS and then rescinded such consent. He posted this suggestion. Why not identify the top Constitutional law scholars in the country and pool our money to hire these experts to champion the ‘perfect’ case?
Here is my response.

Arguably, the top Constitutional law scholar in the country is Professor Laurence Tribe from Harvard Law School. He taught BO; here is a November 2008 quote from the Harvard Crimson, wherein the recognized legal intellect (Tribe) adeptly avoids any mention as to the caliber of legal scholarship displayed by his former student while simultaneously singing his laurels.
“There are those in whom challenge stirs greatness, those who rise to challenge rather than letting it break their stride or spin their compass,” said Tribe about Obama, the Democratic presidential candidate, whom he called “the most impressive and talented of the thousands of students I have been privileged to teach in nearly 40 years on the Harvard faculty.”
http://www.thecrimson.com/article.aspx?ref=525102
To put things into perspective, here is what Professor Tribe placed into the Congressional Record during the passage of non-binding Senate Resolution 511, declaring Senator John McCain is a NBC, in April 2008.
“[B]ased on the original meaning of the Constitution, the Framers’ intentions, and subsequent legal and historical precedent, Senator McCain’s birth to parents who were U.S. citizens, serving on a U.S. military base in the Panama Canal Zone in 1936, makes him a “natural born Citizen” within the meaning of the Constitution.”
http://thomas.loc.gov/cgi-bin/query/z?r110:S30AP8-0040:

As we have already been taught by almost every other legal practitioner entered into this fray, even the product of great legal minds can be motivated by self-interest, like potential openings on the SCOTUS.

Here is my explanation as to why military Plaintiffs in federal court must be in jeopardy in order to satisfy Constitutional “case” or “controversy” requirements to survive a Motion to Dismiss for lack of jurisdiction, which I posted on Citizen Wells. http://citizenwells.wordpress.com/

Speedy and everyone else, in reference to your recollection that military Plaintiffs might have received guarantees in advance they would not be in jeopardy by becoming Plaintiffs in a military lawsuit… If military Plaintiffs in a Declaratory Judgment case face no liability in the future then, their case does not present a controversy that can be litigated and, therefore, becomes only a request for an advisory opinion. This means, the federal court has no jurisdiction to hear it. You might have gotten your idea of ‘exoneration before the fact’ for military Plaintiffs from Orly Taitz, who bragged on her blog that she was discussing with Pentagon officials how to free up from jeopardy any military Plaintiffs before she filed a military suit. But even assuming she was telling the truth and, in addition, could have obtained such guarantee from the military not to prosecute military Plaintiffs under the UCMJ; then she would have killed her chances of avoiding a motion to dismiss on this case, too, which motion would have been granted not for lack of standing but for lack of jurisdiction.

As for the cheering section whenever Orly posts another military Plaintiff has joined her suit – I have no idea which suit she is talking about – there is this caution, also on CW.

The South and everyone, the problem is, while individual military can be said to have the obligation to refuse to obey an order from a CIC they have a good faith belief is a threat to the Constitution; absent a ruling BO is not a NBC, from a deliberative body authorized to generate such a ruling, these military will not escape paying the legal consequences for disobeying the POTUS. Even Dr. King pronounced that those who in good faith defy unjust laws must be prepared to endure imprisonment.

“I hope you are able to see the distinction I am trying to point out. In no sense do I advocate evading or defying the law, as would the rabid segregationist. That would lead to anarchy. One who breaks an unjust law must do so openly, lovingly, and with a willingness to accept the penalty. I submit that an individual who breaks a law that conscience tells him is unjust, and who willingly accepts the penalty of imprisonment in order to arouse the conscience of the community over its injustice, is in reality expressing the highest respect for law.”
http://www.africa.upenn.edu/Articles_Gen/Letter_Birmingham.html

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14 Responses to A WORD TO THE WISE

  1. cpabooks says:

    What about a different class of people who would be directly injured by an ineligible POTUS? There are ideas being floated about using people who lose their gov’t jobs due to Obama directed RIF’s. They certainly are an injured class and yet they are not subject to military court marshal.
    I believe that Edwin Vieira, Jr. suggested that there would be many who would have standing in a challenge. He said that any good defense lawyer would challenge the legality of a law coming out of an Obama White House should his client be charged with violating same.

    cpabooks: Great idea. Attorney Vieira’s best idea for standing, I thought, was that person or class of persons prosecuted criminally for an infraction that occurred under legislation signed into law by BO. He proposed that any criminal attorney worth his salt would argue, ‘My client cannot be said to be guilty of committing a crime when that ‘crime’ was signed into ‘law’ by BO, who is not Constitutionally eligible to be POTUS.’ Mr. Vieira proposed counsel would ask the court to order production of documents, including the long form birth certificate, to establish whether BO is a NBC. And he predicted, no court would refuse such a request, in a criminal proceeding. This other proposal, however, attempts to assert standing based on employment status. So, let us assume for the sake of this question that, Plaintiff has some sort of entitlement to that position, say, civil service or, union requirement of termination only for “just cause.” Then, Plaintiff could argue, I have a property right in this job and, therefore, I cannot be denied this right absent due process. A reduction in force ordered by a POTUS not Constitutionally eligible for the job cannot provide such due process. Again, Plaintiff would have to allege BO is not Constitutionally eligible for the job, based only on the record. (I doubt a court of law would order production of documents on a speculative basis in a civil proceeding.) The good news is that, BO’s admission that he was a dual citizen birth, whether true, would now receive a full hearing. (Maybe.) Remember, either way, that is, in either this criminal or civil proceeding, the finding that BO is not a NBC has nothing to do with removing him from office. That is, it could exonerate the person accused of the crime; or preserve the job of the person let go. But it does not order BO out of office. Of course, as I have said all along, all we need is a finding by an authorized body that, BO is not Constitutionally eligible to be POTUS. The rest will take care of itself. ADMINISTRATOR

    01.21.11: Shortly after writing this, I realized, regardless whether BO is a NBC, he was legally elected President. 1) No law requires Electors to elect only a President Constitutionally eligible for the job; and 2) Electors elected him, Congress Certified their vote, and the CJ of the SCOTUS swore him in, all as prescribed by the U.S. Constitution.

  2. guido says:

    From what we are seeing in the courts,it does appear the only cases that will ever be heard will have to be filed in DC,or no matter how strong the standing or belief in proper jurisdioction is,the judges will use both of those excuses to toss them out,especially as they do not have the means to provide a remedy.SCOTUS will do the same.Going over preelection issues will go nowhere.The last shot at justice has to be done in DC.I’m not saying it has to be Quo Warranto alone.I am saying that after the inauguration the proper jurisdiction to file suit in is DC.At least 2 cases had proper standing and the state constitution to prove their case should be heard on the merits[that of the SOS duties],and yet they were tossed.

    guido: I appreciate your heartfelt opinions about the exchange of ideas among the more well-known practitioners in these issues but, for the sake of the tenor of the blog, I decided to omit those comments and publish these about the status of the legal cases. This gives me the opportunity to repeat information I have been disseminating for months now: no provision of any federal or state law requires any government official to vet the candidate for POTUS from the major political party for Constitutional eligibility. That’s why mandamus was never going to work to force such a vetting, notwithstanding it was tried and tried again. Also, outing BO does not ‘take’ a legal case. Yes, Quo Warranto, if appropriate and successful, will force BO out of office, because that is the nature of the action. But so will a decision by a state AG that the D Party has committed fraud by swearing BO is Constitutionally eligible for the job.

    P.S. Leo posted his wrong information 2 days ago now; I sent my email correction right after he posted this. In these 2 days, he has not posted any new comments; presumably, he hasn’t read my email, either. From now on, as soon as someone posts information about the law I know is incorrect, I will post a correction of that misinformation on my blog, as well as send an email to that blog. ADMINISTRATOR

  3. guido says:

    Correct.But the position ,and valid at that,was that an SOS is not doing their job by accepting Pelosi’s seal of approval without verifying the information on their own.There’s no point in having checks and balances if not employed.A high school student working for the government could put a checkmark on a legal piece of paper stating that particular state received the golden seal of approval from the queen bee in DC.There’s plenty of blame to go around,and far too much lack of accountability.

    guido: You reached the heart of the matter: “There’s no point in having checks and balances if not employed.” To paraphrase you, there’s no point in requiring certification a candidate is Constitutionally eligible for the job, as spelled out in the Constitution, if that Certification is a signature on a piece of paper and nothing more. That is part of my support for alleging fraud to the state A’sG, in those states – and this is most of them – that require the candidate for the major political party must be a NBC. ADMINISTRATOR

  4. Mick says:

    JBJD,
    This is a great reason for the military to use the Federal Declaratory Judgement Act. Obama supposedly may subject American Troops to the ICC, where they can be tried for war crimes outside of the jurisdiction of the US in some kangaroo court. It is becoming more and more apparent that the rationale behind the requirement for POTUS being a NBC was very prescient. Obama is exactly the kind of person that they would have been trying to keep from the office. His lack of allegiance is obvious.

    http://blogs.telegraph.co.uk/gerald_warner/blog/2009/03/06/barack_obama_may_subject_us_troops_to_international_criminal_court

    Mick: I am glad to hear from you. Could you look up something? In my original memo on military standing in federal court, I proposed that a good set of Plaintiffs would be members of the National Guard about to be deployed. National Guard is a state organization, under the auspices of the Governor. Thus, the UCMJ is not implicated (not that the way I drafted the military Complaint would place any inactive military in legal jeopardy under the Code, anyway). But I seem to recall that, some NG units know in advance they will be called up. Perhaps you could 1) search for news reports on NG units being called up at any time in the past, so we can get an idea as to how this is done; and 2) look up the mechanism that converts the NG unit from the command of the Governor to the command of the CIC. (I recommend that you contact your own Governor for this; it is about time we expected more from our elected paid officials.) ADMINISTRATOR

  5. Mick says:

    JBJD,
    Here are a couple news reports about NG being called up.

    http://www.globalsecurity.org/org/news/2004/040624-iraq-callup.htm

    http://www.baltimoresun.com/bal-te.troops07nov07,0,7954862.story

    Title 10 USC describes the Federalization of the National Guard. Usually state NG is under USC 32, within control of the governors of the states. The Militia Clause of the Constitution (Article 1 section 8) gives the Federal Government and the POTUS power to “Federalize” the title 32 NG and make them title 10, under Federal Control, for purposes of active deployment or to repel invasion.

    http://en.wikipedia.org/wiki/National_Guard_of_the_United_States

    National Guard units may be activated in a number of ways as prescribed by public law. Most of the laws for Federal Mission operations are in Title 10 of the U.S. Code. When serving under Title 10, “active duty” means full-time duty in the active military service of the United States. Title 10 allows the President to “federalize” National Guard forces by ordering them to active duty in their reserve component status or by calling them into Federal service in their militia status. This includes the following forms of active service:
    Voluntary Order to Active Duty. With his or her consent and the consent of the Governor.
    Partial Mobilization. In time of national emergency declared by the President for any unit or any member for not more than 24 consecutive months.

    Presidential Reserve Call Up. When the President determines that it is necessary to augment the active forces for any operational mission for any unit or any member for not more than 270 days.
    Federal Aid for State Governments. Whenever an insurrection occurs in any State against its government, the President may, upon the request of its legislature or of its governor call into Federal service such of the militia of the other States. This is a statutory exception to the Posse Comitatus Act.
    Use of Militia and Armed Forces to Enforce Federal Authority. Whenever the President considers that unlawful obstructions, assemblages, or rebellion make it impracticable to enforce the laws of the United States in any State or Territory, he may call into Federal service such of the militia of any State. This is another statutory exception to Posse Comitatus.
    Interference with State and Federal law. The President, by using the militia or the armed forces, or both, or by any other means, shall take such measures as he considers necessary to suppress, in a State, any insurrection, domestic violence, unlawful combination, or conspiracy.
    Air and Army National Guard. Air and Army National Guard can specifically be called into Federal service in case of invasion, rebellion, or inability to execute Federal law with active forces.

    Mick: This is fabulous! I need to research the cites you have found. I will get back to you. Thank you so much for doing the initial leg work. ADMINISTRATOR

  6. curi0us0nefromthe60s says:

    FYI, jbjd, Leo did post your comment with his own editorial afterward.

    curi0us0nefromthe60s: Thank you. I saw this. Imagine, a few days ago, he lectured his readers that federal courts cannot hear Declaratory Judgment cases – keep in mind, he is well aware that my military Complaint is a Declaratory Judgment case – because this is asking for advisory opinions, which the Constitution prohibits in the federal courts. And he said all this, notwithstanding, the federal Declaratory Judgment Act authorizes the use of federal courts to seek Declaratory Judgment in cases where the litigants are likely to face further controversy absent such a Declaratory Judgment. And I called him on this. Now that you have read the subsequent editorials he posted in response to my comments, did you ‘get’ that, having realized his legal error, he is conceding Declaratory Judgment can be brought in federal court? Surely you ‘get’ he predicts any Declaratory Judgment case will be unsuccessful, now that he ‘concedes’ it can be brought. Also, he insists his NJ case failed not because he brought an infirm cause of action but because the court erred in its legal interpretation. But the court was right; the law that Leo cited to that court and now, again, cites in his response to me, means something other than what he would have it mean. And the NJ AG, representing the Defendant, the NJ S of S, pointed out to the court he was misinterpreting NJ law. (Here’s a link to page 4 of the AG Reply; page 5 completes the applicable remarks. http://www.blogtext.org/naturalborncitizen/myimages/album2143.image18586.html) And, failing to utilize the law he cited, there was no other law in NJ that said, the S of S must vet the candidate for POTUS from the major political party as to Constitutional eligibility. And, absent a clear legislative mandate, the courts will not breach the governmental separation of powers to order a member of the executive branch – the NJ S of S – to do anything. In other words, mandamus was never going to fly, all of his temper tantrums to the contrary notwithstanding. ADMINISTRATOR

  7. curi0us0nefromthe60s says:

    JBJD,

    I think you should give Leo a little more credit than you do. In fact, you two should be working in concert rather than the contrary. You have to remember people are people. Leo has his own idiosyncracies, but in my opinion he is a gifted mind. I believe you possess a gifted mind as well. I think Leo proceeds with caution as do you unlike Orly, Berg and others.

    I think it is best at this point that the gifted minds get together for the greater good.

    curi0us0nefromthe60s: Funny you should say that. I contacted him several times before writing my military Complaint, asking for his input. I even sent him my November memo, laying out the idea. (The memo is posted below on the blog.) I never heard back. But, bottom line, regardless of my opinion of his legal acumen, once I saw that photo he posted on his blog, of the Justices of the SCOTUS, onto which he had superimposed the word, “WUSSY,” I was thankful I had never entered into any kind of working relationship with him. ADMINISTRATOR

  8. Northshorelover says:

    In my opinion, JBJD is a better lawyer than Mr.Leo Donofrio. As I posted before, Mr. Donofrio is an artist, a musician, a performer, and a gambler, but a not very good lawyer. Again this is IMHO, in my humble opinion. My problem with him is that Mr. Donofrio lacks consistency and substance. He changes his mind so often I cannot keep up. This is in regard with his blog’s theme as well as his legal opinions. Whenever or whatever he feels like… Last month Mr. Donofrio said he would’t do this legal thing anymore and would pursue art and music, etc. Now he is back! or is he?
    I think his ego became really big and he feels like he is a some kind of celebrity.

    Northshorelover: One could be several other things and a good lawyer. But thanks. ADMINISTRATOR

  9. jbjd,

    I appreciate the clarity and perspective of your article. It is quite difficult for me to judge the veracity of your contentions due to my lack of knowledge of the law. A couple points as per the military plaintiff and standing;
    1. In the eyes of a military court, the current President is dutifully elected and thus can hold accountable all subject personnel to violated regulations that are applicable (i.e. contempt, failure to obey order or regulation, etc.).
    2. Only a military judge can determine whether an order has failed to meet the requirements of “lawful” which is a direct reflection of the authority that gave that order (i.e POTUS).
    3. Military personnel that vilolate the restrictions of officially representing their branch of service, DOD, or the United States Government (through statements or pictures in uniform); and/or have stated in print, or otherwise, thier unwillingness to obey certain orders or lack of loyalty to the POTUS, without the support of the decision of a civilian authoritive body ARE, in fact, guilty of UCMJ regardless of the eligibility of the POTUS.
    4. In some regards the threat of UCMJ agianst the military is PRIMARILY a reflection of acts committed by service personnel that have no bearing on a questionable chain of command.

    I am concerned that some litigators have muddied the waters through their lack of foresight and general understanding of DOD policy and regulations. Perhaps they should have requested guidance from retired JAG lawyers or retained the service of those that have indepth knowledge of such.

    Thanks.

    SFC Noz

    Pieter: Great synthesis of military jurisdiction in these matters. I posted elsewhere that until someone who is authorized to make such a determination, says BO is not a NBC then, he is the CIC of the armed forces. And even Dr. Martin Luther King, Jr., said to fight an unjust law but don’t expect not to go to jail. (I posted this ‘posting’ on my blog, too.) Some people were outraged. ‘Of course, we “know” he is not a NBC!’ But I persisted. And here, you put what I was trying to say, in words. You will recall that, I preferred not to use active military as Plaintiffs in what I consider to be the viable military Complaint I drafted months ago now. In fact, as you can see from some of the exchanges with “Mick,” from the beginning, I proposed as Plaintiffs, National Guard about to be deployed. At that time, I did not elaborate how these troops would have been the suitable Plaintiffs least likely to suffer negative externalities for their conduct. What I had in mind was, even though participating in the legal action I envisioned would not have subjected troops to discipline under the UCMJ, anyway; Plaintiffs who were not even subject to the Code, that is, NG under the command of the state Governor, could not have been harassed or otherwise surreptitiously pestered for speaking their minds. ADMINISTRATOR

  10. drkate says:

    Thank you, jbjd. I look to your wisdom for some clues as to how we are, or are not, proceeding.

    I wanted to invite you over to TD blog, there is an interesting idea of suing factcheck.org for placing two forged documents on their website…..the COLB and the Selective Service registration…what do you think?

    I agree thank god the judge did not ‘take notice’ of footnote 1 in the hollister case, which cites fact check.org. The more judges throw out cases like that with such invective the more credibility we lose in general.

    drkate: I am always pleased to hear from you. Here is what I posted at Citizen Wells on the subject, in response to suggestions by his readers that FactCheck should be sued.

    jbjd // March 7, 2009 at 12:13 pm

    I have seen the idea of a lawsuit against FactCheck.org suggested on Orly’s site; and I have seen her propose this. However, this makes no sense, as FactCheck.org has no “privity” with the voting public. That is, there is no relationship between them and us that creates legally cognizable obligations or, expectations of such.

    This is what came back.

    JeffM // March 7, 2009 at 1:26 pm

    jbjd @March 7, 2009 at 12:13 pm,

    Your observation is an excellent one. As there is no “privity” with the public, their information can not be considered legally binding either. Since neither organization can be sued for damages based on false or misleading legal paperwork, their information can not be utilized as legal documentation for eligibility either.

    This obvious fact should be noted to the courts in every eligibility case. Arguments should be made stating the obvious:

    “Factcheck.org and snopes.com are not legal or government-regulated for accuracy and provide no ‘privity’ to the American people regarding any documentation verified. Therefore any ‘verifications’ of Obama’s place of birth are not legal or binding in any court within the jurisdiction of the United States of America. Neither Factcheck.org nor snopes.com carry any private investigation licenses, nor follow any state and federal regulations for evidence collection, nor are sanctioned by any federal, state, or local agency to provide any artifact legally allowed as evidence in any court of law in the United States of America. That being said, Barry Soetoro, aka Barack Obama has yet to provide legal evidence or proof of eligibility to the American public to become President of the United States as mandated by the qualification requirement stated in Amendment XX of the U.S. Constitution.”

    And this.

    ccc // March 7, 2009 at 2:48 pm

    “Factcheck.org and snopes.com are not legal or government-regulated for accuracy and provide no ‘privity’ to the American people regarding any documentation verified. Therefore any ‘verifications’ of Obama’s place of birth are not legal or binding in any court within the jurisdiction of the United States of America. Neither Factcheck.org nor snopes.com carry any private investigation licenses, nor follow any state and federal regulations for evidence collection, nor are sanctioned by any federal, state, or local agency to provide any artifact legally allowed as evidence in any court of law in the United States of America. That being said, Barry Soetoro, aka Barack Obama has yet to provide legal evidence or proof of eligibility to the American public to become President of the United States as mandated by the qualification requirement stated in Amendment XX of the U.S. Constitution.”

    That paragraph should be copied to all of the congressmen who had the audacity quote factcheck or snopes as their source to find BO qualified!!!!!

    And this.

    Maddie // March 7, 2009 at 3:41 pm

    Even though Annenberg FactCheck is
    not a legally-binding source of the obama
    documentation, Obama himself sent the
    challengers to this organization to verify
    same.

    Here was my response.

    jbjd // March 7, 2009 at 4:17 pm

    JeffM, ccc, Maddie, and others: you all need to combine your ideas into one paragraph suitable for mailing. Because it is not only the concept that FactCheck.org has no privity to the voting public that is at issue, but also the fact that, knowing this, BO nonetheless represented that, he is for real BECAUSE they said so, even posting the link to FactCheck on his Fight the Smears web site. (I will write more later; I am on the road. Please, don’t start mailing until we can re-visit the final form of the message. Maybe we can get CW to post this!)

    Unfortunately, I never followed up.

    Now, I will go over to td and see how I can help. ADMINISTRATOR

  11. jbjd,

    You are one of the few who “get it”. Last two thoughts…
    1. First, as far as I can determine, the Soldier has no right, whatsovever, to ACTIVELY express a weighted political opinion. They have no right to participate, influence, or determine the outcome of a non-military related political activist group. They have no right to officially represent, even casually, their respective branch of service, DOD, or US GOVT. They have no rights. So, the alternative is to comply with oath OR to abrogate professional duty, and take upon yourself as an individual citizen, the luxury of unencumbered opinion. True Soldiers, unfortunately, cannot maintain a foot in both worlds.
    2. You are the only litigator to put forth a suit that even remotely resembled a case in which a Soldier could seek redress as a COMMON citizen but POTENTIALLY and ACTUALLY subject to harm as a result of the unique reality that exists for their profession. The threat of UCMJ should be obvious for that person, solely in that they see EXCESSIVE doubt as to the authority of their CIC in light of the incontrovertible nature of several of the eligibility contentions. The stress of amibiguity is insurmountable for those that are sworn to obey a “lawful order”, there should be no wonder as to the palpatible harm.

    Great blog, great effort, great mind.

    Thanks.

    Noz

  12. Northshorelover says:

    JBJD:

    Just to clarify my previous post.

    Yes, you are right. One can be several other things and a good lawyer. NO question about it.
    What I said, Mr. Donofrio is not a very good lawyer, IMHO,was partly based upon his own words. In his website, NBC, under the sub title “A change of plans,” he wrote:

    ” …. am having a panic attack contemplating being responsible for “clients”. It was one thing to handle my original case pro se, but clients have always freaked me out.

    I originally dropped out of the practice of law because having clients just didn’t fit my personal way of life. I do love research and theory. I just don’t like answering to people.”

    http://naturalborncitizen.wordpress.com/

    Well, please you decide, if he is a good lawyer.

  13. Mick says:

    Are you saying that Title 32 (under control of state Governors) NG are not subject to UCMJ?

    Mick: That’s right. But as soon as they come under federal jurisdiction, they are subject to the Code. And, one of the beauties of the federal Declaratory Judgment Act is that, it operates as sort of a class action without having to certify the class. That is, one Plaintiff can obtain a Declaration that applies to similarly situated Plaintiffs, just like in a class action. So, if a NG Plaintiff gets called up then, another NG Plaintiff can easily be substituted for him, so that he – Plaintiff 1 – will not be subject to any discipline under the Code (not that he would be, anyway, the way the Complaint is drafted). Here is a partial list of personnel covered by the UCMJ. (Title 10, ch. 47) (NG are covered under number 3.) ADMINISTRATOR

    802. ART. 2. PERSONS SUBJECT TO THIS CHAPTER
    (a) The following persons are subject to this chapter:
    (1) Members of a regular component of the armed forces, including those awaiting discharge after expiration of their terms of enlistment; volunteers from the time of their muster or acceptance into the armed forces; inductees from the time of their actual induction into the armed forces; and other persons lawfully called or ordered into, or to duty in or for training in the armed forces, from the dates when they are required by the terms of the call or order to obey it.
    (2) Cadets, aviation cadets, and midshipman.
    (3) Members of a reserve component while on inactive-duty training, but in the case of members of the Army National Guard of the United States or the Air National Guard of the United States only when in Federal Service.
    (4) Retired members of a regular component of the armed forces who are entitled to pay.
    (5) Retired members of a reserve component who are receiving hospitalization from an armed force.
    (6) Members of the Fleet Reserve and Fleet Marine Corps Reserve.
    (7) Persons in custody of the armed forces serving a sentence imposed by a court-martial.
    (8) Members of the National Oceanic and Atmospheric Administration, Public Health Service, and other organizations, when assigned to and serving with the armed forces.
    (9) Prisoners of war in custody of the armed forces.
    (10) In time of war, persons serving with or accompanying an armed force in the field.

  14. rlqretired says:

    jbjd-Having troublewith my machine. Can’t seem to get through. this is a test to see if I can see the moderation post.

    rlqretired: Did it work? ADMINISTRATOR

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