Fitzpatrick was arrested in April after he interrupted a closed door grand jury hearing in an attempt to make a citizens arrest of jury foreman Gary Pettway. Fitzpatrick felt Pettway and the jury was illegally blocking his attempts to indict President Obama. Fitzpatrick has said he believes Obama is not an American citizen and is serving illegally as president.

Reports the AP:

Fitzpatrick is charged along with Darren W. Huff, 40, a former militia member from Dallas, Ga., accused of inciting a riot at the Monroe County Courthouse in April while coming to Fitzpatrick’s defense after Fitzpatrick’s intrusion on the closed grand jury session in Madisonville. Huff, who also faces related federal charges, was among about a dozen armed people who gathered at the courthouse. Records show Huff had said that he and others planned to take over courthouse in Madisonville and arrest “domestic enemies of the United States engaged in treason.”

The Post & EMail has had a series of “interviews” with the retired LCDR about his own case. Reading his interview make for light reading on a dreary day in much the same way as Lewis Carroll’s Through the Looking Glass is a good read. The parody of the the queen of tarts is just too cute.

Now it seems that the retired LCDR is in violation of the civilian courts version of R.C.M. 804. The Monroe County Advocate reports:

A man who is so bound and determined to take President Obama to court that he once made his way into a closed grand jury session failed to appear in Monroe County Criminal Court Friday morning. Circuit Court Clerk Marty Cook said Fitzpatrick was sent notice that he was supposed to be in court Friday, but he did not show by the 10 a.m. start time. Blackwood issued a capias for Fitzpatrick’s arrest and ordered him to be held on no bond when he is picked up.

To say that the military judge destroyed the defense arguments in detail would not be an overstatement. Although the military judge did politely characterize the defense arguments as an “erroneous view of the law.”

The authority to issue orders does not depend on the qualifications of the President, any suggestion that it does is an erroneous view of the law. Any suggestion that there is no duty to obey these orders is equally erroneous.

or words to that effect.

Basically what we have been saying has come to pass.

Arrival. The parking lot immediately around the court-house was blocked and you had to pass through a sentry. They demanded identification from everyone. When questioned the guards indicated that everyone had to identify themselves. To my knowledge no-one was turned away. But I thought it odd that they were “checking creds, to know who you are.” Toward the end of the discussion it appeared the real issue was identifying members of the press (who did require escorts).

Waiting. There seemed to be about four or five media. Interestingly there was a court artist for NBC (courtartist.com) present. There were several military persons stopping by for the view. There seemed to be about 10-12 civilians present observing. Two of the civilians indicated that they work on base and that this was a “historic event,” that they have no standing, and are interested in what happened.

I did ask around – again – to see if there were copies of the motions available for press or public review, but there weren’t.

Good move of the day. LTC Brotsky has been released from further participation in the case. Two new trial counsel (CPT O’Bierne and CPT Odergaard) appeared.

Witness production motion.

The defense had requested over 15 witnesses for merits and sentencing. The military judge initially deferred ruling on witnesses who might be relevant to the “eligibility” issue.

The defense argued the alternative that the witnesses would be relevant on sentencing anyway. Mr. Jensen passionately argued that such sentencing evidence would be the “most eloquent mitigation.” (Ignoring the possibility that such would be the most eloquent aggravation.) Dr. Keyes would be an expert in constitutional law to explain to the panel why LTC Lakin’s actions were mitigated because of various (as yet unstated) constitutional principles. This was part of what was going to be addressed when I had to leave.

The government objected on cumulative grounds to the remaining witnesses. The government also seemed to say or hint that the witness summaries were inaccurate. At least that’s how I interpret prosecutors saying, “that’s not what the witness would say.”

The character witnesses for the recent assignment are a CPT, a 1Lt, a SSG, and two SGT’s, and “some are female and some are African-American.” MAJ Kemkes argued that there was a need to have subordinates (generally considered not a good idea in officer cases) who were female and/or African-American to refute claims or perceptions that LTC Lakin is a racist. An indirect reference to Toobin and others in the media who do appear to have at times conflated LTC Lakin and allegations about birtherism being racially motivated. The military judge ordered the defense to pick “the best three” of the witnesses for duty in Afghanistan and ordered the others. The defense (MAJ Kemkes) made a good argument on the witnesses being of different ranks, different positions, and different perspectives of observation. Essentially the defense made a good standard case for why they can present a “Good Soldier” defense. In the military the defense can raise the persons good character as a soldier as reasons why they would not violate the UCMJ.

Judicial Notice.

The defense sought judicial notice of several documents. One a presidential address regarding deployments to Afghanistan. Other documents related to the chain of command or the eligibility issue – DA PAM 10-1, 10 U.S. Code 162(b), Hawaii Stat. 338.17.8 (this is the one I believe Jensen has referred to with his notorious CNN interview and which wasn’t in effect until the [I think] 1980’s. Again the military judge temporarily deferred ruling on the judicial notice motion. The defense wanted to have judicial notice that “all soldiers have a duty to disobey unlawful orders.” That’s not going to be given. The prosecution argued that’s an instructions issue.

The prosecution had requested judicial notice of AR 600-8-105 and the PPG Chapter 11, to which there was no objection from the defense.

The deposition of the officials for the State of Hawaii who have records relating to births was DENIED.

There was no credible argument that the officials would refuse to abide by a subpoena for documents or come to trial. Subpoenas issued for courts-martial are valid and enforceable in similar fashion to federal district courts.

Follow federal practice rules.

Jensen made a credible effort to get the military judge to accept that federal rules of practice (especially as to subpoena’s) are effectively assimilated via Article 46, UCMJ, 10 U.S. Code 846; and that in effect R.C.M. 703 violates Article 46, UCMJ.

One of Jensen’s arguments in response to a military judge question was that the authority is a “trickle down” concept. Jensen argued that under that theory any order since 20 January 2009 was illegal, including by implication the Manual for Courts-Martial because it was presidentially issued. Actually he’s off on that. President Obama has only signed executive orders regarding the MCM this week (unless I missed one in 2009?). I thought at one point Jensen started to walk-back the “any” order is illegal theme. I also thought I heard him say that Congress has no authority to question the president’s eligibility. (As those of you who have practiced in the Fort Meade courtroom know the acoustics are not the best.)

If 40% of Americans doubt came up several times.

The most dangerous it seemed to me was hinting a “how many of them are on active duty.” Essentially Jensen was trying to argue that there is public doubt, that many doubters may be military (you’ve heard me comment on that, and so there must be discovery. This is where the issue of mutiny might come up?

A novel argument was made that the ease of getting discovery should be a factor to consider on the need and the relevance. Jensen did agree that sealing the records would be appropriate.

The military judge took a long lunch break to finalize her decision and findings on the discovery of school records and other records and on the remaining witness issues.

The prosecution seems to be on track as treating this case in the same manner as they would Private Snuffy accused of the same charges – following the KIS principle. The government approach compared to the defense public pleading on political grounds. Jensen got the most voluble and passionate when pleading that discovery should be had because people had a right to know. Oh, OK, you want to know what happened.

Rulings.

The military judge DENIED all of the discovery requests and witness requests related to the birth controversy. This was not unexpected. But what was unexpected was the breadth and detail of the rulings, because of the obvious impact on the lawfulness motion. Clearly the findings and rulings anticipated the next motions session. At the end of the military judge’s reading of her findings, Jensen appeared beaten down. He seemed so affected that for some time he failed to stand when talking with the military judge on the record. LTC Lakin remained impassive as always. The military judge’s findings and rulings seemed also to put a stake through the heart of LtGen McInerney’s affidavit and its relevance to the trial (by inference this would include MG Vallely and MG Curry).

Basically the documents and witnesses are neither (at times she interspersed logically) relevant nor material. She cited to New, Huet-Vaughn, and Rockwood. The military judge found that Congress through its power to regulate the armed forces appointed the service secretaries and their service leaders to carry out functions such as order people to deploy, etc. She found there was substantial independent authority in law, regulation, and custom to support the issuance of orders in this situation. She gave passing reference to the de facto officer doctrine and focussed more on the political question doctrine as a justification for denial of discovery and witnesses on the strawman that the presidents status might be relevant in some fashion.

The military judge twice said that a court-martial is not “a vehicle to challenge political decisions.”

The defense conceded that with the military judge’s rulings, the orders were otherwise lawful. With that this case is back to the standard case one sees where a Soldier has missed movement and disobeyed orders. There was discussion of whether an additional session was necessary based on the lack of “wiggle room” given to the defense as it affected the discovery, witnesses, and lawfulness issues. I did not hear mention of a writ. But if there were one I’d imagine ACCA would deny based on the, “we’ll deal with it if he’s convicted and gets a jurisdictional sentence,” theory.

At this point it seems LTC Lakin will be left to wriggle while his fate is decided in the normal course of business. No doubt there will be some who will try to continue the political aspects of the case but for all intents and purposes LTC Lakin is dead meat. The real question will be sentencing.

Here is a link to some more background to LtGen McInerney who the defense appears to be posturing as their star witness in addition to Dr. Keyes.

LTC Lakin is alleged to have committed offenses in violation of the UCMJ. The conduct alleged cuts to the very heart of military requirements of obedience to orders, fidelity to the oath of office, and the need for seniors to set the example. I’m reliably informed that in addition to formal counselings every effort was made pre-preferral to convince LTC Lakin to obey his orders. In the face of such contumacious behavior the Army had no choice but to prefer charges. Enlisted personnel are regularly disciplined, court-martialed, and jailed for the same or similar conduct and who have better reasons for their AWOL. Such a stunning lack of officership cannot pass unnoticed or undisciplined. Neither President Obama nor his administration has any role in this case at all. Should the administration try to get involved they should be told – politely – to butt out.

This Article 138 discovery process must be done. LTC Lakin now has the right to discovery based on the Articles of the UCMJ. The United States Army is attempting to prosecute LTC Lakin just to cover their tracks because the Army has put other personnel out because of their refusal to deploy because the erroneously accused wanted proof of Barack Obama’s eligibility to be president. In all reason, the controversy surrounding Barack Obama’s eligibility must be put to bed. Under Article 138, he is bound by both federal laws to prove his birth, and since he is, by all accounts the Commander in Chief, he is also bound by the UCMJ.

Article 138, UCMJ, is not a discovery process and never has been. My recollection of media reporting is that LTC Lakin received an answer to his Article 138, UCMJ, letter. Here is his letter to the President, letter (I noticed he uses the “Respectfully” intended for communication to a junior, rather than the “Very respectfully,” used when communicating to a senior). The Manual for Courts-Martial (2008) contains the rules of procedure and evidence applicable to courts-martial. R.C.M. 701 Article 46, UCMJ, and case law regulates discovery in a court-martial. R.C.M. 405 regulates production of evidence at an Article 32, UCMJ, hearing.

Any member of the armed forces who believes himself wronged by his commanding officer, and who, upon due application to that commanding officer, is refused redress, may complain to any superior commissioned officer, who shall foreword the complaint to the office exercising court- martial jurisdiction over the officer against whom it is made. The officer exercising general court-martial jurisdiction shall examine into the complaint and take proper measures for redressing the wrong complained of; and he shall, as soon as possible, send to the Secretary concerned a true statement of that complaint, with the proceedings thereon.

See Article 138, UCMJ, Complaints of Wrongs.

It is apparent that appellant has carefully considered the legality of the orders at issue and that he has formed sincere, deeply held views about the legal basis for the deployment of his unit and the related matters of command and control and uniform arrangements. Congress has provided him with a variety of means to communicate his views to his superiors and national policy makers. He may challenge policy through a complaint under Article 138, UCMJ, 10 USC § 938; he may raise his concerns to the Inspector General of the Department of Defense, 5 USC Appendix; and he may communicate directly with Members of Congress and Inspectors General without interference from his military superiors and with protections against reprisal, 10 USC § 1034. The record indicates that he has exercised his right to communicate with Members of Congress.

United States v. New, 55 M.J. 95, 110 (C.A.A.F. 2001) cert. denied 534 U.S. 955 (2001).

Note that when the United States Supreme Court denies a writ of certiorari they don’t often say why. Michael New was sentenced to a bad conduct discharge for among other things refusing to wear a U.N. related uniform items in preparation for deployment to UNPROFOR.

Appellant’s concerns were discussed by his father on the Internet and were reported in the popular media and noted by several members of Congress. Appellant’s noncommissioned officer leadership, company commander, and battalion commander each spoke with him to alleviate his doubts about the legality of the UNPREDEP mission and the uniform modification. At the next formation, appellant reported in unaltered BDUs and was removed from the formation. Two hours later, he was given a “second chance” to comply with the order by Lieutenant Colonel (LTC) Layfield and refused. Appellant was then declared non-deployable. 50 MJ at 735. The order and his responses formed the basis for the charge of disobedience that is the subject of the present appeal.

New, 55 M.J. at 98.

Note first that this is a congressionally established mechanism for a military member to complain about actions done by his commanding officer within his unit. Each service has a mechanism for complaints of wrongs involving non-commanding officers. For example the Navy has Article 1150, U.S. Naval Regulations.

Were LTC Lakin to be Commander Lakin, he might do well to consider the language that he could be held accountable, “if the report is found to be vexatious, frivolous, or false.” The Army I believe uses the Inspector General system. (Note also Articles 1132 and 1133 of U.S. Naval Regulations)

We should note that the right to use a complaint system is protected by statute. See 10 U. S. Code 1034. However, false statements or disrespectful statements in an Article 138, UCMJ, complaint are not protected. In this context a note to prosecutors tempted to over-reach.

Although not raised as error, we will discuss one other aspect of the sentencing testimony. Appellant’s first sergeant testified for the prosecution. When addressing the impact of appellant’s offenses on the unit and the base, he testified, without objection, that, “He’s tied up time with the IG. He’s tied up time with Congressionals having to be answered, Social Actions, every support agency on this base knows AB Newson.” One logical inference from this testimony is that appellant should somehow receive more punishment because he became a thorn in the base’s side by filing complaints with the inspector general (IG) complaint system or a member of Congress, an inference prohibited by statute. See 10 U.S.C. § 1034. Since this case was tried before a military judge sitting alone, we are confident he disregarded any improper inference from the testimony.

United States v. Newson, ACM 30936, 1995 CCA LEXIS 238 (A. F. Ct. Crim. App. September 13, 1995) (emphasis added).

Lest the uniformed feel LTC Lakin is being punished for speaking out, that is not true based on the charges.

It is clear that to violate 10 U.S.C. § 1034, a person must initiate a negative personnel action specifically in retaliation for a service member’s communication with a Member of Congress. In the present case, there is no evidence that the Government prosecuted Appellant, and that the trial counsel subsequently introduced the letter, to retaliate for any action by Appellant. The Government charged Appellant not because he wrote a letter to a Congressman, but because he wrongfully used and distributed LSD — offenses that occurred well before Appellant even wrote the letter. In short, while there may be circumstances where the use of a congressional communication in the context of a court-martial proceeding would constitute a prohibited retaliation under 10 U.S.C. § 1034, those circumstances are not present here.

United States v. Gogas, 58 M.J. 96 (C.A.A.F. 2003).

The Rainier piece agrees that, “Bringing a court-martial to bear against any person because of their refusal to deploy in these times is legitimate.” But not for LTC Lakin?

The United States Army is attempting to prosecute LTC Lakin just to cover their tracks because the Army has put other personnel out because of their refusal to deploy because the erroneously accused wanted proof of Barack Obama’s eligibility to be president.

CAAFLog reports:

President Obama was born in Hawaii subject to the jurisdiction of the United States (in other words, his parents didn’t have diplomatic immunity). He is, accordingly, a natural born U.S. citizen. See, e.g., United States v. Wong Kim Ark, 169 U.S. 649 (1898); Luria v. United States. 231 U.S. 9, 22 (1913); Elk v. Wilkins, 112 U.S. 94 (1884).

It doesn’t matter whether one or both parents were themselves U. S. citizens at the time.

The president of the United States is not bound by the UCMJ, unless he has a double secret commission or enlistment in the National Guard or Reserves. He is bound to issue rules and regulations for the conduct of courts-martial in accordance with Article 36, UCMJ. But as I’ve posted already he’s not issued any new relevant EO’s.

Let me close with the words of Dwight “ML” Sullivan:

But while I find the eligibility debate interesting, it is also profoundly irrelevant to the prosecution of LTC Lakin.

Paul Jensen, tried to imply things that were false by clever irrelevancies and innuendo, but he told one outright whopper: In the state of Hawaii there’s a statute that allows anyone born outside the state of Hawaii, including in a foreign country, to obtain a Hawaiian birth certificate, at any age, by going back and filling out a form. Jensen then cited HRS § 338-17.8 Certificates for children born out of State. That law does not allow “anyone” to obtain a Hawaiian birth certificate. It is limited to applicants who can prove to the director that “the legal parents of such individual while living without the Territory or State of Hawaii had declared the Territory or State of Hawaii as their legal residence for at least one year immediately preceding the birth or adoption of such child.” . . . He said “anyone” but of the billions of people in the world, it only applies to a handful of Hawaii residents who give birth to children out of state. . . . The law HRS 338-17.8 was not passed until 1982. President Obama’s birth registration was filed August 8, 1961. A registration could not have been filed in 1961 under this (or any) Hawaiian statute.

I thought I’d use this case as a way to refresh ourselves on how a defense counsel should approach an Article 32, UCMJ, hearing regardless of the accused or the charges. (I HAVE CREATED A LTC LAKIN PAGE here – which I will update as a relevant event happens or I have time.)

Cooper dominated the combative interview, demanding answers from Lakin, telling his lawyer, Paul Rolf Jensen, to let his client answer and then forging ahead with his own arguments. “I submitted Article 138 [requests],” he said. “It was the only way I could research the issue. I was asking and begging my leadership for guidance on how to address this issue.

It’s my understanding that he has been given guidance on the issue: he received a written response to his Article 138, UCMJ, complaint (an answer which he didn’t like and doesn’t agree with), and he was formally counseled (on the standard Army counseling form) of what his obligations were and the consequences of not following orders (again, not the answer he wants). At this point he has to follow orders, or he could have submitted a resignation request (which would possibly refused, that’s true).

Cooper argued that Lakin previously had taken orders from many officers without demanding their birth verification, and Jensen explained that was because the Constitutions sets the specific requirement for the president, not military officers.

Sorry, don’t see the distinction at all. This is an all or nothing issue. Either all orders issued by the President to all the armed forces are legal or they are not. Sorry LTC, can’t pick and choose on this one. Whether or not the certifications of President Obama as president and the fact that the Congress of the United States treats with him as President is irrelevant to the charges pending against LTC Lakin. At least one observer in the Washington Post implies that the LTC Lakin case may really be all about fundraising: David Weigel, “A good day for the birthers,” WPBlog 7 May 2010.

The filing of charges, however, may be part of the still-unrevealed strategy Lakin and his legal counselors are pursuing.

I found a humorous note in the article. The writer points out a typo in the charge sheet.

n support of Operation Enduring Freedom with the 32nd Calvary (sic) Regiment, 101st Airbor

The writer appropriately ‘sics’ the typo. In doing so the writer perhaps highlights what might be LTC Lakin’s calvary.

Any strategy appears to be a political one, not a legal one at this stage. At best his public statements and reasons for his misconduct might in the future be squeezed into R.C.M. 1001 as extenuation or mitigation evidence. As we know, the accused’s right to bring up matters in his sworn or unsworn statement is very broad. See e.g. United States v. Grill. Whether the reasoning is compelling enough to reduce a sentence, as opposed to aggravating a sentence, will have to be determined by the fact-finder.

Note also this point from Grill:

In United States v. Rosato, 32 MJ 93, 96 (1991), we observed that an accused’s right to make an unsworn statement “is a valuable right . . . [that has] long been recognized by military custom” and that has been “generally considered unrestricted.” We also noted that the right was not wholly unrestricted and that it would be inappropriate, for example, for an unsworn statement to include matter that was “gratuitously disrespectful toward superiors or the court [or] a form of insubordination or defiance of authority.” Under the Manual and Rosato, the right to make a statement in allocution is not wholly unfettered, but if there are abuses, they should be addressed in the context of the statements made in specific cases. The mere fact that a statement in allocution might contain matter that would be inadmissible if offered as sworn testimony does not, by itself, provide a basis for constraining the right of allocution. If, in the future, the Manual’s traditional, largely unfettered right of allocution should lead to a plethora of mini-trials, the President has the authority to provide appropriate guidance in the Manual for Courts-Martial. Under the present rules, however, as we noted in Partyka, 30 MJ at 246, “[S]o long as this valuable right is granted by the Manual for Courts-Martial, we shall not allow it to be undercut or eroded.” See also United States v. Martinsmith, 41 MJ 343, 349 (1995) (right to make unsworn statement “considered an important right at military law, whose curtailment is not to be lightly countenanced”).

The WND article goes on in reference to an earlier birther case of a reservist:

“Rather than contesting the suit,” Day wrote, “the Army took the highly peculiar step of revoking the major’s deployment order, suggesting that the Pentagon generals are not entirely confident that they can demonstrate the legitimacy of their purported commander in chief. “The Pentagon’s decision to back down rather than risk exposing Obama’s birth records to the public means that every single American soldier, sailor, pilot and Marine now holds a ‘get out of war free’ card.”

To some extent this has been true in several cases. However, the prosecution of LTC Lakin illustrates that a person refusing legitimate orders does in fact risk a court-martial and that prior “highly peculiar” results are in fact the outlier. Perhaps the WND position of a get out card has motivated the Army to take a firm position to ensure military personnel are made aware of the risks of refusing deployment orders. The WND article goes on:

“In the (Uniform Code of Military Justice), just as you would expect, criminal defendants have the process of the court, for subpoenas and depositions under the rules that are prescribed,” Jensen said.

Um, has WND read the current version of R.C.M. 405, 701, 703, and applicable case law? WND will get a surprise when it reads about depositions in the military. It does happen that I (and DMLS at least) believe that the current R.C.M. on depositions is inconsistent with and unconstitutionally restrictive of Article 49, UCMJ. So a part of me is rooting for LTC Lakin as a way to possibly get the appellate courts to invalidate the unconstitutional restrictions on Article 49, UCMJ — actually, this reminds me to post something about a defense approach to Article 49, UCMJ and R.C.M. 703. I’ll have to break out some prior deposition notices and a motion from several years ago – case ended with a PTA.

The (Greeley, CO) Tribune opinion says:

When you become a soldier of the United States of America, you lose some of your rights. Except in extreme cases, you no longer have the right to refuse orders of superiors. You don’t have the same freedom of speech that other Americans enjoy. You serve at the pleasure of your commander in chief. Lt. Col. Terry Lakin, while exercising rights that many Americans enjoy, now needs to suffer the consequences for his actions. He has violated the requirements of his office.

Greeley is LTC Lakin’s home town I believe.

Columnist John Kanelis, on amarillo.com has this to say.

It will surprise no one to disclose that some – perhaps many – Panhandle residents do not believe President Obama is constitutionally qualified to serve as commander in chief. How might this play out in civilian court? Randall County Assistant District Attorney Richard Gore also believes the burden of proof falls on the defense. Gore compared it to someone alleging that an arresting police officer isn’t duly certified by the state to slap handcuffs on a suspect. “It would be ridiculous to ask the officer to prove he is certified to do his job,” Gore said. A court-martial could answer a lot of questions once and for all, even for the nut jobs who keep suggesting the ridiculous. Take this guy to court – and hope we can bid farewell to this moronic birther cult.

Unfortunately for Mr. Kanelis, I don’t see that happening, even if LTC Lakin is court-martialed. Military law and the rules of evidence, are likely arrayed against LTC Lakin. If proof is for some strange reason offered, it won’t be believed by those outside the court-room, and if the rules of procedure, law, and evidence are followed, and LTC Lakin is in fact convicted, the military will be accused of a cover-up. A court-martial is a political no-win. But, a court-martial might be the appropriate palliative for good order and discipline.

Hopefully Mr. Apuzzo has a similar depth of knowledge about the UCMJ, R.C.M., and Military Rules of Evidence, to his knowledge of constitutional law. Or will he dump that on learned military counsel, that’s another part of Article 38, UCMJ.

This comment evidences a lack of understanding of chain of command issues and the Rules of who does what and how it is done.

If Lt. Col. Lakin is a patriot, then just who are the tyrants. In closing they are the ones who have debased the honor of our men and women serving our country in the Army, Navy, Air Force, Marine Corps,and Coast Guard by having the Congressional Medal of Honor recipient Col. Gordon R. Roberts act as a cop on the beat and issue Lt. Col. Lakin his Miranda warning. Was this the Political Puppets of the Pentagon’s idea of a public relations? Using the Congressional Medal of Honor in the hope of some talking head at the Marxist Statist Media (MSM) saying, “look America a Medal of Honor winner is condemning Lt. Col. ‘Birther’,” is not public relations, it is politically motivated PUBIC relations!

And in the process maligns a person of honor.

And in another piece of military political news, SignOnSanDiego reports:

A Camp Pendleton Marine is running smack up against the limits of what uniform-wearing Americans are allowed to say about their government after his Facebook page for “Armed Forces Tea Party Patriots” sparked concern among his superiors Tuesday.

His Greeley relatives are putting distance between themselves and his birther campaign. Lakin’s father Frank told the Greeley Tribune Friday that his son’s video wasn’t representative of the family. “This does not reflect the opinions or the attitude of the family by any means,” he said. “We’re Obama supporters.”

A posting at Buzzflash.com asserts that LTC Lakin is also a member of the Tea Party.

A comment from LtCol Christopher Matthews, USAF (Ret.) on CAAFLog

[M]ilitary appellate courts adopted the de facto officer doctrine long ago — see, e.g., United States v. Jette, 25 M.J. 16 (C.M.A. 1987); United States v. Watson, 37 M.J. 166, 168 (C.M.A. 1993); and United States v. Brown, 39 M.J. 114 (C.M.A. 1994). CAAF not long ago denied petitions on a pair of Air Force cases where we upheld convictions by courts-martial convened by an officer ineligible to assume command as the GCMCA, so I believe the law on this point to be unchanged.

An article at Huffington Post posits that the ultra conservatives are “taking advantage” of military people such as LTC Lakin, as part of an all out assault on the military – a strange position for the far right who once accused those who didn’t support the wars in Iraq and Afghanistan as being traitors.

Why put this man’s career in jeopardy over a lie? For the same reason Glenn Beck is taking advantage of the Special Operations Warrior Foundation to pay for a hate filled rally or Sean Hannity is scamming wounded warriors and their kids.

(There have been a number of reports about the extravagant expenditures of Sean Hannity that are charged off to the charity. I believe the Salvation Army has an overhead of about 4%, the rest of their donations going to the charity work.)

The Colorado Independent reports that:

Terry Lakin, the Army Doctor who has refused orders to deploy to Afghanistan, hasposted online the letter he wrote to Pres. Obama last week explaining his decision.

If he is correct, then all orders are illegal since President Obama was sworn in? Thus an additional charge at his court-martial (in addition to Article 88, UCMJ, Article 92, UCMJ, for unlawful political activity) should include theft perhaps or wrongful receipt of government funds or some other wrongful taking – like his pay checks? Military personnel are routinely prosecuted for taking and keeping BAH they are knowingly not entitled to and failing to report the matter?

Query. If President Obama is not lawfully president, who is? Well is it not Vice-President Biden? There has been no issue raised that VP Biden is not lawfully elected. Either way, military orders, assuming they come from the president qua president, must come from VP Biden then. So LTC Lakin is getting lawful orders. See, we can all make silly arguments about this.

Here’s an interesting piece from the Guardian in the UK (a liberal paper):

Lakin’s outburst of birtherism should not be seen in isolation. Instead, it’s further evidence that rightwing hate, aided and abetted by leading Republicans, has gone mainstream. Remember when people, especially conservatives jumped on DHS for issuing a warning about extremism.

The first warning came a year ago, when the department of homeland security predicted a rise in rightwing extremism fuelled by economic calamity and the election of our first black president. News of the report, and especially about a warning contained therein that military veterans might be pulled into the movement, set off criticism among conservative bloggers. Yet it proved prescient.

A decorated active duty Army medical officer, Lieutenant Colonel Terry Lakin (selected for promotion to Colonel), is calling upon his chain of command and his Congressional delegation to force President Obama to release his original birth certificate. He is the highest ranking officer to go public over this controversy and in late February, was notified that he is subject to near-term deployment to Afghanistan. A website, SafeguardtheConstitution.com, outlines his efforts to seek the truth and prepare for his legal defense. You can make a tax deductible (?) contribution to his defense fund here.

It appears that the American Patriot Foundation has 501(c)(3) status. I suppose the question is whether such use of the status qualifies under the tax code?