UPDATE: 04.16.10: On Wednesday, on another blog, I was asked to comment on the Lt. Col. Lakin case. Here was my comment on that blog.
I read the Lame Cherry piece recommended here. All sizzle; no steak.
Think of the situation in this way: in deciding the fate of Lt. Col. Lakin, the Constitutional eligibility of Barack Obama under Article II, section 1 of the Constitution is irrelevant. (The fact that he was legally elected will be mentioned but will not be a material issue, either.)
Rather, the only issue is this. When a soldier refuses to obey a direct order from immediate superiors is he subject to a court martial under the UCMJ? And the answer is, yes. Can he offer as a defense he had a good faith belief the lawfully elected CiC is not a NBC? Yes. Is such good faith belief an affirmative defense? No. (In other words, under the law, is it material to the finding of guilt whether he believed what he was doing is right? And the answer is, no.)
Several readers, while asserting their complete respect for my legal opinion on other issues; took issue with my ‘take’ on issues related to the UCMJ. Then, during my appearance on REVOLUTION RADIO, drkate asked for my opinion of this case. I repeated what I had posted earlier, on that blog.
Here is a line from an email I received from drkate, shortly after the show.
Here is information that supports your discussion about Lt. Col. Lakin tonight.
I have read these materials; the legal argument spelled out therein is sound. Nevertheless, normally I would neither post nor propose that you review an unknown source. However, in this case, the author includes images from the relevant sections of the Code which were the basis for his treatise.
I had planned to take the day off to process tomorrow’s lengthy post. But, as fate would have it, I received an email from a respected colleague, asking me to read the article about Lt. Col. Terrance Lakin, the military doctor (surgeon) in the news lately for saying, he would refuse deployment to Afghanistan until Barack Obama produces documentation that establishes he is Constitutionally eligible to be his CiC. My response to her was rather lengthy; I already had not only familiarized myself with his situation but also been asked by others to weigh in with an opinion. I decided to incorporate my response to her email in this post, and refer people here, the next time they ask.
Fw: Army calls “BIRTHER” doc’s bluff (THIS WILL MAKE U MAD)
With all due respect, I am angry; but not perhaps at whom you might think.
I have not read the whole article; but these lines jumped out at me.
Instead, he referred inquiries to Margaret Hemenway, a spokeswoman for the Patriotic American Foundation, a group raising money to defend Lakin should he be prosecuted.
“Unless there is a breakthrough, unless there is a willingness to give [Lakin] the documentation he requests to show that the commander-in-chief is legally in the job … he won’t be able to follow those orders” to report, said Hemenway. Lakin’s refusal to deploy, Hemenway said, is in keeping with a vow not to obey any order he is given until he is satisfied that Obama was born in the United States.
Who is Ms. Hemenway and, what are her credentials to advise Mr. Lakin on the legal consequences of his position?
These ‘eligibility’ challenges have become quite the cottage industry. What I mean to say is, Mr. Lakin’s ‘case’ has no shot in hell – pardon my use of a military-like analogy – where he clearly can be charged, if he maintains his demands for eligibility verification.
(Interestingly, I stopped at this point to see whether the lengthy article will tell me his legal status viz a viz the military, that is, whether he is National Guard awaiting call-up, in which case, as you know, he is not yet under the jurisdiction of the UCMJ but state law, with the Governor as his ‘CiC’; or whether he is active military. And now, I read the rest of the email and found this.
Phil Cave, a retired Navy judge advocate general who now practices military law as a civilian, said that even if Lakin does decide to deploy as scheduled, the Army still may be able to prosecute him. Under Article 88, Cave said, a servicemember can be charged for making disrespectful comments or remarks about the president.
Cave believes that Lakin’s supporters in the birther movement hope that a court-martial will give defense attorneys the authority to seek, through discovery, other documents to help make their case.
“They think that by using [servicemembers in a court-martial] they can get discovery like you could in any criminal prosecution,” he said. “That ain’t gonna happen. They’re not going to have discovery where they’re going to get the president to produce a birth certificate because, I’m reasonably certain, no military judge, no appellate court and no federal court, and no U.S. Supreme Court is going to say they have a right to get that as a matter of discovery.”
So, you have jbjd and a retired Navy judge advocate general now practicing military law both saying, ‘not gonna happen.’ (However, I wish the article had pursued the reasoning underlying Mr. Cave’s prediction.)
Understand, I am not saying Mr. Lakin should not pursue conduct in accordance with the dictates of his conscience. On the contrary; I support his decision to proceed according to his beliefs. I am saying, aligning himself with a group that is determined to argue the rightness of that conduct because of his beliefs without even acknowledging the wrongness of his conduct, including the potential catastrophic harm to the country if individual soldiers determined for themselves when to serve; cannot serve him well.
Here is one of my favorite quotes from the writings of Dr. Martin Luther King, Jr., from “Letters from Birmingham Jail,” in the collection of his works in The Estate of Martin Luther King, Jr.
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.
I hope you understand where I am coming from.