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.

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.

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.