Another LTC Lakin commentator

Andy Martin, Executive Director, Contrarian Commentary, posits that President Obama is not legally president, therefore LTC Lakin has a legitimate challenge to his orders.

Mr. Martin first tells us that:

I am completely independent and impartial in so far as the Lakin matter is concerned. So far as I am aware I have not had any contact with anyone involved in Lakin’s specific case. I am the author of the Obama book “Obama: The Man Behind The Mask” which first raised questions about Obama’s citizenship.

Then later he further tells us that he’s not really impartial to the issues:

The left-wing media have grouped together everyone who questions the circumstances concerning Barack Obama’s birth and citizenship as a “birther Obama’s original 1961 birth certificate is missing; Obama has refused to release it. I have a lawsuit pending in Hawai’i to open the state’s records. That’s why I am called the original or “King” birther.

In regard to LTC Lakin Mr. Martin asks, “What makes Lakin’s claim unique, and substantial[?]”  He is correct that the military justice system is different than a civilian civil or criminal justice system.  The system is intended to maintain good order and discipline.  GoD means that orders are issued, people follow them, and the country is served.

Thus, while ordinary civilians may lack standing to challenge a commander’s qualifications, that is not true in the case of a military officer.

Col. Lakin is challenging the constitutional qualifications of his commanding officer. (Military law also allows an officer to challenge what may be invalid orders under the “Nuremberg" doctrine and similar modern concepts of military restraint and responsibility.) In my legal opinion, Lakin’s case lacks any indicia of criminal intent. In my legal opinion, Lakin clearly has standing to raise and proffer his concerns because unlike an ordinary civilian in a civil court, Lakin is an officer by Act of Congress. Lakin is in the direct chain of command with the president/commander.

President Obama is not LTC Lakin’s commanding officer, nor is he a commissioned officer.  R.C.M. 103 sets out rules and definitions applicable to court-martial cases.  The people who have issued LTC Lakin his orders and seek to enforce them are likely one of the following.

image image 10 U. S. Code 801 also lists:

image There are other definitions that would be applicable to the persons authorized to issue and enforce orders.

In my legal opinion, the fact that Lakin is in the chain of command and is raising issues related to the legitimacy of the chain of command takes this case out of the prior legal cases that were unsuccessfully raised in the civil courts.

He’s right.  The civilian cases have absolutely no relevance to LTC Lakin.

In my legal opinion, Lakin’s case lacks any indicia of criminal intent.

Actually he’s very very wrong under military law.  LTC Lakin’s public statements made with the assistance of counsel prior to his refusal’s are evidence of intent.  In fact he has given the prosecution a gift because now they can more easily prove missing movement by design, rather than missing movement by neglect.  By design is a more aggravated offense.

In my legal opinion, Lakin clearly has standing to raise and proffer his concerns because unlike an ordinary civilian in a civil court, Lakin is an officer by Act of Congress.

Yes, it is true that an accused may challenge the lawfulness of the orders given to him.  I am not convinced however that LTC Lakin is properly a commissioned officer.  He has not produced sufficient proof that he is U. S. citizen by birth or naturalization – a fact required to obtain a commission.

I don’t think that the military chain of command which culminates in President Obama can make a claim that an officer lacks standing to “stand up” to his commander.

Actually, well – I suppose he can stand up to his commander (which according to the definitions in the R.C.M. and Article 1, UCMJ, is not the president), but he might make himself aware of military law – not civilian law – on orders violations before he does that.  He ought to look at the very least at United States v. New and United States v. Rockwood.

From an early post of mine on this case.

Article 87, UCMJ:  (Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct.)

c. ELEMENTS:
(1) That the accused was required in the course of duty to move with (state the ship, aircraft, or unit alleged);
( 2 )  That  the  accused knew of the prospective movement of the (aircraft) (unit) (ship);
(3) That (state the time and place alleged ), the accused missed the movement of the (aircraft) (unit) (ship); and
(4) That the accused missed the movement through (design) (neglect).

Article 92, UCMJ:  (Any person subject to this chapter who– (1) violates or fails to obey any lawful general order or regulation; (2) having knowledge of any other lawful order issued by any member of the armed forces, which it is his duty to obey, fails to obey the order[.])

ELEMENTS:
(1) That there was in existence a certain lawful (order) (regulation) in the following terms: (state the date and specific source of the alleged order or regulation and quote the order or regulation or the specific portion thereof);
(2) That the accused had knowledge of the (order) (regulation);
(3) That the accused had a duty to obey such (order) (regulation); and
(4) That (state the time and place alleged ), the accused failed to obey this lawful (order) (regulation) by (state the manner alleged ).

NOTE 2: Order or regulation determined to be lawful . When it is clear as a matter of law that the order or regulation was lawful, the military judge should resolve this as an interlocutory question and the members should be advised as follows:

As a matter of law, the (order) (regulation) in this case, as described in the specification, if in fact there was such (an order) (a regulation), was a lawful (order) (regulation).

The lawfulness of an order:

lawfulness of an order is not a discrete element under Article 92, the MJ decides lawfulness as an interlocutory question.

In United States v. New, 55 M.J. 95 (C.A.A.F. 2001), the court talked about the issues now apparent in LTC Lakin’s case.

This case involves some of the most difficult choices that may confront our Government and our men and women in uniform.  Faced with increasing instability in the Balkans, the United States had to decide whether to deploy U.S. troops in support of the peacekeeping effort in the former Yugoslavian Republic of Macedonia, how to structure command and control relationships with other national and international forces in the area, what types of orders were needed to implement those relationships, and how to dispose of alleged violations of such orders.  Appellant had to decide whether he should voice his opposition to those decisions, how to do so, and whether to obey orders that he viewed as unlawful.

Appellant chose to manifest his opposition through disobedience of an order from his commander, and he challenged the legality of that order at his court-martial. He now asks this Court to create an exception to the requirement that the military judge decides questions of law where, as in this case, appellant claims the question of law is an element of the alleged offense.

This Court reviews the question of whether the military judge correctly determined that the issue was a question of law on a de novo standard of review. For the reasons set forth below, we hold that lawfulness of an order, although an important issue, is not a discrete element of an offense under Article 92. We further hold that, in this case, the military judge properly decided the issue of lawfulness as a question of law. See Art. 51(b), UCMJ, 10 USC § 851(b).

Orders are clothed with an inference of lawfulness. See Hughey, 46 MJ at 154; United States v. Nieves, 44 MJ 96, 98 (1996). “An order requiring the performance of a military
duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently illegal order, such as one that directs the commission of a crime." Para. 14c(2)(a)(i), Part IV, Manual, supra (1995 ed.). Appellant has the burden to establish that the order is not lawful. Hughey, 46 MJ at 154; United States v. Smith, 21 USCMA 231, 234, 45 CMR 5, 8 (1972).

This Court has held that an Air Force Captain disobeyed a lawful order when he refused to fly as a training instructor on a fighter plane that was used in Vietnam. United States v. Noyd, 18 USCMA 483, 485-86, 40 CMR 195, 197-98 (1969). The Noyd court noted that “[m]ilitary service is . . . a matter of status,” like becoming a parent, rather than just a contractual relationship and that status establishes special duties between the soldier and the Government. 18 USCMA at 490, 40 CMR at 202.  It further noted that “the fact that a person in a military status determines that he has undergone a change of conscience
does not, at that instant and from that time on, endow him with the right to decide what orders are compatible with his conscience.” 18 USCMA at 491, 49 CMR at 203.

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2 responses to “Another LTC Lakin commentator”

  1. Peter E. Brownback III says:

    I agree with everything you have written in this post except for your inclusion of the following:

    “I am not convinced however that LTC Lakin is properly a commissioned officer. He has not produced sufficient proof that he is U. S. citizen by birth or naturalization – a fact required to obtain a commission.”

    Why insert this comment? It doesn’t add anything to your discussion; it simply, in my opinion, takes away from the seriousness of a court-martial.

    I realize that it is meant as a joke, but the tone and tenor of your post/discussion is not a light-hearted one. If the entire discussion had been one which was casting ridicule upon LTC Lakin and his position, perhaps the comment would have been more apt.

  2. Phil Cave says:

    Peter, as always you are probably right.

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