The writ was denied today. A straight line standard denial [thanks to CAAFLog for a copy].

1. Mr. Jensen was excused from further participation in the case at the specific affirmative consent of LTC Lakin, because he’d been “discharged.” See R.C.M. 506(c).

2. Neal Puckett formerly entered his appearance.

3. Mr. Puckett asked for a continuance because he is appearing in United States v. Wuterich, at Camp Pendleton, CA, beginning 2 November 2010.

4. Trial was continued to 14-16 December 2010.

5. The judge indicated that the defense had raised an issue with Specifications 3 and 4, Charge II, indicated that would be taken up later, and referred counsel to United States v. Jones.

6. United States v. Jones , 68 M.J. 465 (C.A.A.F. 2010) is a recent case on multiplicity and LIO’s. A quick look at the specifications indicates that they could be the same offense charged twice and potentially multiplicious – under pre-Jones case law.

Next court event: Wednesday, October 13 at Ft McNair- 12:00 pm Wednesday’s court appearance will address LTC Lakin’s change of counsel and should be only a brief session. Fort McNair is located at 4th and P streets, SW, near the Waterfront/Marina. Some landmarks are the Waterfront Metro, the EPA building at Waterside Mall, Arena Stage. Use the P Street Entrance to enter the installation.

PERHAPS SOMEONE COULD BE ENCOURAGED TO MAKE THE WRITTEN FINDINGS PUBLICLY AVAILABLE?

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.