The filing of charges may, however, be part of the still-unrevealed strategy Lakin and his legal counselors are pursuing.
Not sure what “strategy” there is in making sure your client announces he will commit an offense, commits an offense and announces it in writing, video, and radio, and forces or encourages the Army to prefer charges. IMHO I always thought a defense strategy was different.
Graphic from www.safeguardourconstitution.com
In order to prove LTC Lakin guily of the charged offenses the government must prove, beyond reasonable doubt the following:
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.)
(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[.])
(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.
United States v. New, 55 M.J. 95 (C.A.A.F. 2001).
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.
And, is the issue raised by LTC Lakin actually a political question that the military courts must decline to rule on. Further reading of New may be appropriate.
The website posits that:
A vigorous defense of this case presents the ONLY present hope that Americans will finally learn whether their president lawfully holds office.
In facing court-martial, LTC Lakin is just the latest victim of the determined effort of the President not to provide simple proof of his eligibility under the constitution to hold office.
The website also posits that:
The first is "Missing Movement" a serious crime in the nature of a felony for failing to deploy to Afghanistan.
I disagree that conviction on any of these offenses is actually a felony conviction. Yes, it would be a federal conviction. These are purely military offenses as charged. Based on my experience and research over the years they would not qualify as a felony in any state.
The second is disobeying a direct order, and there are four specifications (separate instances) of this charge. Any soldier convicted on all charges and specifications would expect to be sentenced to years at "hard labor" in the penitentiary.
Here is an item at wizbang.
There is nothing inherently illegal about the orders issued to Dr. Lakin. They were not issued directly by President Obama, but by Dr. Lakin’s chain of command. Further, as far as the military is concerned, the issue of Obama’s eligibility is a closed matter. Quite frankly, it’s not up to the president to prove to the military that he is qualified to be their Commander In Chief. We have civilian control of the military, and that means that the civilian governing structures decide who controls the military — not the military itself. And Obama was certified as the president by Congress, the Supreme Court, and the Electoral College when they confirmed him in office.
On a separate but related point, here is a piece from MCB Camp Pendleton:
The Marine Corps’ motto is Semper Fidelis (Always Faithful), and Marines understand that unwavering loyalty, up and down the chain of command, is crucial for keeping good order and discipline.
That loyalty is sometimes tested by individual Marines when decisions made by political leaders conflicts with their personal political preferences.
Department of Defense Directive 1344.10, a punitive general order, exclusively conveys guidelines for participation in political activities.