UPDATED 01.04.10: Please see my Comment on 01.04.10, at 11:58.

© 2010 jbjd

There are plenty of villains to go around in the pitiful saga of U.S. v. LTC  Terrence Lakin, the physician convicted in a military court martial of violating the Uniform Code of Military Justice (“UCMJ”) for refusing to obey orders to deploy to Afghanistan.  I would start with the numerous blogs which  encouraged Mr. Lakin to disobey a direct order to report for duty and then hyperbolically deified  him for heeding their advice.  Equally reprehensible is their simultaneous vilification of the military court for prosecuting their sacrificial lamb.

Ostensibly, their positions derive from a good faith belief that Lakin predicated his refusal to obey a direct order, on their shared understanding that Barack Obama, elected President in 2008, is nonetheless Constitutionally ineligible to be his Commander in Chief.   Even so, the blind zealous demonstration of support they publicly maintain for Mr. Lakin’s case, if real, only makes sense if they failed to subject his conduct to a reasonable analysis under the applicable law.  But they also aimed vituperative darts at the military tribunal, which only makes sense if they blindly ignored the court’s enumerated invitations to Defendant to perfect his case.  Only, as usual in these situations, that is, whenever someone publicly questions Obama’s Article II, section 1 eligibility to be President in a forum not designed to entertain such fancy; they adopted the demeanor of spoiled children who in effect supplant reason with holding their collective breath.

Adding insult to injury, these bloggers fail throughout their insufferable pseudo ‘patriotic’ rants to even acknowledge the potentially lethal impact to cause or country which could result from such unilateral decisions by other troops not to serve.

To all of you, again, I highly recommend Dr. Martin Luther King, Jr.’s “Letters from a Birmingham Jail.”  Here is my oft-posted favorite excerpt:

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.

Judging by this rubric, outward appearances to the contrary notwithstanding, LTC Lakin looks to be getting exactly what he asked for.  But, unfortunately, his battle utterly fails “to arouse the conscience of the community over its injustice.”  On the contrary, his inability to clearly and consistently articulate the rationale for his conduct, or reconcile his out-of-court utterances to enthralled supporters, with his statements to the tribunal; coupled with the theatrical antics from supporters as expressed both on these blogs and, at his legal appearances; only manage to further discredit the legitimate ’cause’ of Mr. Obama’s Constitutional ineligibility.

That, along with some real incompetent ‘lawyering.’

Because even if LTC Lakin had asserted a firmly held belief, Obama is not a NBC; it still would have been virtually impossible to successfully defend against a charge he disobeyed military orders by claiming Barack Obama is not Constitutionally eligible to be POTUS, when he failed to assert that the President’s Constitutional eligibility materially relates to the legality of the orders issued by his direct superiors, which he disobeyed. (From the web site of Attorney Philip D. Cave, “Military Law & Justice,” here is a detailed explanation of the specific supporting legal analysis the court asked him to provide, but which he failed to present.  http://court-martial-ucmj.com/lakin/ltc-lakin-update-7/ )

This is the one thing these armchair blog pundits keep leaving out when it comes to promoting their slant on the Lakin case:  soldiers must obey all legal orders; and all orders are presumed legal.

Long ago this Court recognized the foundational principle of military discipline: “Fundamental to an effective armed force is the obligation of obedience to lawful orders.”
Reflecting the authority of this principle, an order is presumed to be lawful, and a subordinate disobeys an order at his own peril.


In other words, under law, where a subordinate is prosecuted for disobeying an order; the burden is never on the People to establish that order was lawful but on the Accused to establish, it was not.  AT THE TIME HE CHOSE TO DISOBEY THE ORDER.  Not in retrospect.  So, to all of you angry ‘birthers’ decrying the inability of Defendant to confirm through “Discovery” whether Obama is a NBC, listen up.

Any request for an Order of Discovery of materials to be produced by the state relevant to an inquiry as to whether Obama is a NBC evidences an equivocation by Defendant that Obama is not a NBC.  In other words, if the public record contains evidence that BO is not a NBC sufficient that Lt. Col. Lakin based his refusal to obey an order on that public record then, why does he need any additional evidence, anyway? If the Accused needs evidence after the fact that the order s/he disobeyed was illegal; s/he concedes or admits to uncertainty as to the legality of that order at the time s/he refused to obey. Uncertainty as to the legality of an order fails to meet the legal standard required to successfully rebut a charge of disobeying that presumptively lawful order.

Sacrificing an impartial analysis of the Lakin case in order to fan the cynical flames that foment in their readers disgust toward the courts, disdain for the military, or declarations the Constitution is dead; makes these internet pundits the villains in the Lakin morality play.  Of course, they would stop running around like chickens with their heads cut off if their public literally and figuratively stopped buying into the commercial hype.

As for their willingness to sacrifice Terrence Lakin to their ’cause,’ well, this makes them something else altogether.

5 Responses to HEROES and VILLAINS

  1. bob strauss says:

    jbjd, Hello, Ltc Lakin, as part of his indoctrination into the military as an officer, took an oath to protect and defend the Constitution. When does Lakin’s Oath to defend the Constitution stop, and his duty to obey what he believes to be illegal orders begin?

    bob strauss: Since you are asking me to explain this case to you, again, I will repeat what I have been saying for over 2 (two) years now: no provision of either the Constitution or any state election law requires that Electors only elect an eligible President. And, if you follow the link I provided in this article, to the military lawyer’s blog, which contains the court documents from the Lakin case as well as a detailed explanation of the court’s reasoning, you would see, the court had the same problem as me, with Lakin’s defense. That is, he failed in his defense to allege either that Obama’s Constitutional ineligibility foreclosed his lawful election; or that such failure to meet Constitutional eligibility, in conjunction with Defendant’s oath of service, necessitated a refusal of direct orders to report.

    The law is quite clear in this regard. Absent an unambiguous showing a direct order is illegal; Defendant will be convicted for disobeying that order. I have pointed out this fact on my blog and posting on other blogs, relying on legal citations as well as the analysis of other legal practitioners. Too often, people who would have the record read otherwise, have rejected these analyses. But the court acted in complete uniformity with these ‘predictions.’

    I have pointed to 2 (two) ways that could ensure a POTUS is Constitutionally eligible for the job. The first way relies on existing ballot laws; the second requires new laws. 1) Prosecute those people who swore to election officials Obama is eligible in those states where the law already requires eligibility for office to print the candidate’s name on the ballot. 2) Enact laws that require Electors to elect only eligible candidates. (This could include amending the Constitution.) After all, several states previously enacted laws requiring Electors to vote only for the nominee of the party, evidencing that citizens in those states already understand how to restrict the votes of their Electors to electing only particular candidates.

    Again, any efforts to fix the legal standard of eligibility in one state could be negated if the NPVI passes and compels Electors in any state to vote for the winner of the election in another state without such eligibility safeguards in place. (I wrote about this possibility in HOW ADOPTING the “NATIONAL POPULAR VOTE INITIATIVE” CAN STEAL an ELECTION ‘BY HOOK’ and ‘BY CROOK” ADMINISTRATOR

  2. slcraig says:

    Thank you for once again cutting through the crud, hyperbola and ineffective rhetoric from the principled position that the LAW must be supported.

    You may recall that I have my own ‘legal theory’ as to how the Law can be used to arrive at a solution the the conundrum that is the legal loop-hole that allows the farce to continue and because I have myself convinced that I am right I remained supportive of LTC Lakin’s intent but skeptical of the outcome being anything other than has occurred.

    I hold out the hope that the case I am pursueing will vinicate LTC Lakin along with all the others convinced, as I am, of the Usurpation being inflicted upon the U.S. and us.

    FYI, should you care to read the initial filing now docketed;

    http://www.scribd.com/doc/45620056/USDC … -10-1345-c

    slcraig: I had considered asking you to summarize the arguments in this document you have invited me to read; but decided rather to scan it myself so as to provide the initial impression which might be experienced by the appellate judge whose opinion you now seek. See if I have this right.

    You are trying to compel through the courts a definition of NBC from the Executive branch of government (USCIS) by appealing an adverse decision on the administrative level that, in effect, refused your previous requests to define NBC. You are arguing to the court that the US has the authority to promulgate regulations which would include such definition. Given this understanding of the case, I will tell you what I think.

    1. A discretionary act cannot be compelled. 2. A definition of NBC is outside of the scope of terms which require definition in order for the USCIS to carry out its Congressional mandate. 3. In relation to Lakin, EVEN ASSUMING A DEFINITION OF NBC CAN BE ELICITED FROM ANY BRANCH OF GOVERNMENT, THIS STILL FAILS TO CURE THE FATAL FLAWS OF LAKIN’S DEFENSE. That is, such definition fails to establish the nexus or relationship between being ineligible to be POTUS and, being precluded from election as POTUS! In addition, as the Lakin court pointed out, the NBC status of the POTUS qua CiC fails to automatically establish the illegality of the order of one’s immediate superior.

    Does OK have a law requiring its Electors to only elect a POTUS Constitutionally eligible for the job? Has OK adopted the NPVI? ADMINISTRATOR

  3. Al says:

    An excellent post, jbjd! Where I feel at a loss for Lt. Col. Lakin personally(reasoning that he has diligently up to this point served the country he loves with honor and respect, and deserves a much better fate), just wish the legal team he entrusted with his case were more prepared, and technically sound to handle this matter on the just merits, rather than allow this situation to evolve into “quicksand”, for lack of a better word at the moment. I certainly wish slcraig and anyone else pursuing this matter further all the best. What concerns me most is that this seemingly simple matter, where the former junior Senator from Illinois could simply produce in good faith a legitimate birth-certificate, would clear up this issue in less time than it took me to post this comment, yet not a single Judge to date, if ever, deems it necessary. Why? Why? Why?

    Sorry for mini-rant, jbjd…as always, thanks for your diligence and hardwork over the last couple of years educating the electorate, and giving us fair warning that something is amiss. Have a great week!

    Al: Yeah, I do feel sorry for Lakin. He is not the first member of the military the Birther Industry has sacrificed through depraved indifference to their seeming insatiable hunger for money donations, and notoriety.

    Your comment provides an excellent opportunity to try to shift the discussion on Obama’s Constitutional eligibility for POTUS away from him, and especially away from his production of any documents. (This includes shifting the focus away from enacting new laws that would require the production of any specific documents.)

    As no law requires the Electors, delegated under the Constitution with choosing our President; to elect only a President who meets Article II, section 1 eligibility, what difference does it make whether Obama is Constitutionally eligible for the job? Try assuming he is ineligible, and see whether such ineligibility would negate his ‘otherwise’ lawful election. I maintain, it does not. (But, even assuming after you consider the practical repercussions of his eligibility, his un-confirmed status is still making you crazy, consider this: how on earth can any document currently produced possibly allay fears he was ineligible in 2008?)

    Use your common sense. The only people whose culpability in the unlawful conduct of election fraud is maintained regardless of what paperwork appears in the public domain now, are those people who swore he was eligible in 2008 but who have refused to disclose since then, how they ascertained he was a NBC. ADMINISTRATOR

  4. jbjd says:

    A common commenter on the blog CitizenWells who goes by various names including Leo Patrick Haffey; Leo the Lawyer; and Free Speech has been opining that Terrence Lakin lost his case because of poor lawyering. He further instructs that having plead guilty instead of “Nolo Contendere,” Mr. Lakin has forestalled any appeal of that accepted verdict.

    Free Speech | January 3, 2011 at 7:44 pm |

    Unfortunately in following the bad advice of his lawyer and pleading guilty rather than pleading Nolo Contendere, he gave up his right to sue in Civil Court for False Imprisonment and virtually all rights that he had for appeal.

    Here is a response to similar comments posted by Mr. Haffey on the blog Post & Email, from someone calling himself dwight.sullivan, posting on a blog called Fogbow, from which this blog has received hits.

    There is no nolo contendere plea in the military. If an accused attempted to enter such a plea, the military judge would be obligated to enter a plea of not guilty on his or her behalf and the case would proceed as a contested trial. In this case, that means the government would have had the fun of proving the orders violations to the members and the accused wouldn’t have received an instruction during sentencing that he had taken the first step toward rehabilitation by pleading guilty.

    And this, from the same commenter.

    “Because accused servicemembers may not plead nolo contendere or plead guilty while proclaiming innocence, these alternative methods of establishing a factual basis for guilty pleas have not been adopted for military practice.” United States v. Sweet, 38 M.J. 583, 589 (N.M.C.M.R. 1993) (en banc), aff’d, 42 M.J. 183 (C.A.A.F. 1995).

    “The importance of a guilty plea is further exemplified by the fact that the intent of Congress was to preclude pleas of nolo contendere by any military defendant for any offense (HR 1054, 81st Congress, 1st Session).” United States v. Currie, 37 C.M.R. 601, 602 (A.B.R. 1966).

    And this.

    From the drafters’ analysis to Rule for Courts-Martial 910 of the Manual for Courts-Martial:

    “(a) In general. Subsection (1) is based on Article 45 and paragraph 70 a of MCM, 1969 (Rev.). The first sentence parallels the first sentence in Fed. R. Crim. P. 11(a)(1), except that no provision is made for pleas of nolo contendere. Such a plea is unnecessary in courts-martial. Hearings on H.R. 4080 Before A Subcomm, of the Comm. on Armed Services of the House of Representatives. 81st Cong., 1st Sess. 1054 (1949). See 8A.J. Moore, Moore’s Federal Practice Para. 11.07(1) (1980 rev. ed)
    concerning the purpose of nolo pleas in civilian practice, and a discussion of the controversy about them. Furthermore, the practice connected with nolo pleas (see Fed. R. Crim. P. 11(f) which does not require that a factual basis be established in order to accept a plea of nolo contendere; see also Moore’s supra at Para. 11.07(1) is inconsistent with Article 45.”

    Here’s the exchange that occurred on page 1054 during the House Armed Services Commmittee’s hearing on the UCMJ that’s referred to above. Mr. Brooks was the chairman of the HASC subcomittee considering the UCMJ. Mr. Larkin was a DOD counsel who was one of the principal drafters of the UCMJ:

    Mr. Brooks: Does this [Article 45] contemplate a plea of nolle contendere?
    Mr. Larkin: No, sir, it does not.
    Mr. Brooks: That is not a proper plea in a court martial?
    Mr. Larkin: That is right, Mr. Chairman; I do not know of any such plea.

    Finally, here’s Article 45(a), which would require the military judge to enter a plea of not guilty on the accused’s behalf if an accused tried to plead nolo contendere, which would be an “irregular pleading”:

    “If an accused after arraignment makes an irregular pleading, or after a plea of guilty sets up matter inconsistent with the plea, or if it appears that he has entered the plea of guilty improvidently or through lack of understanding of its meaning and effect, or if he fails or refuses to plead, a plea of not guilty shall be entered in the record, and the court shall proceed as though he had pleaded not guilty.” 10 U.S.C. 845(a).


  5. […] simple enough, and has been broadly addressed. For example, I wrote about Lakin’s travails in HEROES and VILLAINS; and several others in the blogosphere have more than covered any aspects I might have missed. (The […]

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