LTC Lakin is spinning

The spinning has begun, and yes there’s a pun in there, or at least an attempted one.  Based on cherry-picked comments from a number of Lakin supporters it appears that all of this is merely the military judge saving the President “embarrassment.”  They are grasping at a straw as a way to explain a complete and utter refutation of what they have been trying to incorrectly advertize as the state of military law, assuming they were present.  Some comments about the military judge as an individual have become so personal, so obnoxious, and downright nasty that I have decided to remove or not post such comments.  Yes, this is a change from my normal attitude of let what’s said be said and the sayer  and his/her worth as a person be evaluated.


I was present for the “40 minute” reading of her written findings and conclusions.  These written findings and conclusions are now part of the record of trial, and are also now available to Jensen, LTC Lakin, and the prosecutors.  Perhaps APF could post the findings so we can see just how badly the military judge ruled – APF let’s get those wrong headed arguments of the judge out in the open where the full text can be read and dissected?

Here is a summary of the some of the issues to be thought about when deciding if the political question doctrine precludes judicial review or judicial decision-making (taken from the Cornell Law website).

Prominent on the surface of any case held to involve a political question is found a textually demonstrable constitutional commitment of the issue to a coordinate political department; or a lack of judicially discoverable and manageable standards for resolving it; or the impossibility of deciding without an initial policy determination of a kind clearly for non judicial discretion; or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government; or an unusual need for unquestioning adherence to a political decision already made; or the potentiality of embarrassment from multifarious pronouncements by various departments on one question.

Rather than focus on the word embarrassment readers should consider that the military judge was using different words to express the same prong of a political question doctrine analysis.  The correct focus, as it was for the military judge, is the phrase, “or the impossibility of a court’s undertaking independent resolution without expressing lack of the respect due coordinate branches of government.”  That’s what the military judge said along with an analysis of a number of other factors relevant to her application of the political question doctrine to the issues before her.  This was all clearly in the context of her other statements that a court-martial is not a forum to raise and litigate political issues.  Whether or not the president has properly served since 20 January 2010 is at this point clearly a matter for political discussion with no place in a military court-room.

In Baker v. Carr, the Supreme Court outlined the doctrine as follows:

We have said that "In determining whether a question falls within [the political question] category, the approriateness (sic) under our system of government of attributing finality to the action of the political departments and also the lack of satisfactory criteria for a judicial determination are dominant considerations." . . . The nonjusticiability of a political question is primarily a function of the separation of powers. Much confusion results from the capacity of the "political question" label to obscure the need for . . . case-by-case inquiry. Deciding whether a matter has in any measure been committed by the Constitution to another branch of government, or whether the action of that branch exceeds whatever authority has been committed, is itself a delicate exercise in constitutional interpretation, and is a responsibility of this Court as ultimate interpreter of the Constitution. To demonstrate this requires no less than to analyze representative cases and to infer from them the analytical threads that make up the political question doctrine.

Baker v. Carr, 396 U.S. 186 (1962).

Without objection from the defense the military judge took judicial notice that the President has served in office since 20 January 2010 and continues to do so.  Thus, the defense acceded to the notion that the legality of President Obama’s service is “final,” in my view for purposes of applying the political question doctrine.  The president’s status in fact became final on 20 January 2010 when he was sworn in.  That, as best as I can tell, had been committed to the Congress to determine the results of the election.  the president decide to run for re-election in 2012, the political process can be exercised.

The doctrine has its roots in the federal judiciary’s desire to avoid inserting itself into conflicts between branches of the federal government. It is justified by the notion that there exist some questions best resolved through the political process, voters approving or correcting the challenged action by voting for or against those involved in the decision.

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2 responses to “LTC Lakin is spinning”

  1. justasking says:

    Please educate me. I’m at a loss to understand your line explanation because this is a court martial of an individual, Lt. Col Lakin. The actions of this court, in absolutely no way, can remove a sitting POTUS, as it has NO jurisdiction over a sitting POTUS, as the Judge has stated and you have eloquently agreed. However, this is a rather ‘silly’ position since everyone is in agreement. What isn’t in agreement, because the evidence has not been allowed, is if Lt. Col Lakin acted correctly to avoid an illegal order. Evidence released that could ‘clear’ Lt. Col Lakin in no way would result in removal of a sitting POTUS without due process. Removal of an ‘ursurper’ is not outlined within the Constitution, but suffice to say that the SCOTUS and Congress must take some mutual efforts here. Thus, in no way does discovery of obviously defense relevant evidence to ‘provide best defense’ remove any power from other branches of government as this court martial only has jurisdiction over Lt. Col. Lakin.

    Your arguement, and that of the judge, is a ‘straw man’. Politically motivated and intended to divert attention and deny the right of the accused to evidence to ‘prove’ his innocence. I would put forth, that discovery of Obama’s records will not in anyway prevent the military prosecutors from defending the position that orders come from the Pentagon, and not derived from the consent and power of the POTUS. This ruling by the judge is an ’embarressment’ as it clearly re-defines the Constitution, or at a minimum completely re-interprets it, which should be the SCOTUS domain.

    What I see is an attempt to prevent this soldier from obtaining due process, by a judge whom has already ’embarressed’ the SCOTUS and now is attempting to ‘cover’ for a severe military error, by preventing simple discovery. The military error was that the USMC didn’t seek to explore if Lt. Col Lakin’s claim was correct.


  2. Dwight Sullivan says:

    Justasking — don’t bring the USMC into this — the Marine Corps has nothing to do with this case. The irony of an apparent Lakinista criticizing the military judge’s ruling as “political” is overwhelming.

    Here’s the central problem with your position: an order to drive from Walter Reed to Arlington isn’t “illegal” regardless of who the President is. An order to fly from the Washington, DC area to Charlotte, North Carolina isn’t “illegal” regardless of who the President is. An order to fly to Fort Campbell, Kentucky isn’t “illegal” regardless of who the President is. And what I just mentioned is the substance of the orders LTC Lakin is charged with disobeying. So, as a matter of both law and logic, President Obama’s constitutional eligibility is irrelevant to any defense to the charges LTC Lakin faces. Hence no discovery.

    If there were any legal merit to the proposition taht doing what LTC Lakin did is actually “illegal,” then you are saying that every action by every member of the United States military today is a crime. That’s not only wrong, but also profoundly unpatriotic — not a word I use very often, but it fits here.

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