Suppose for a second — and I can’t believe I’m writing this — that the birthers’ guano crazy theories are true.  Why would that justify LTC Lakin in disobeying all orders?  Under the de facto oficer doctrine, it wouldn’t.  As the Supremes explained in the military justice case of Ryder v. United States:

The de facto officer doctrine confers validity upon acts performed by a person acting under the color of official title even though it is later discovered that the legality of that person’s appointment or election to office is deficient. Norton v. Shelby County, 118 U.S. 425, 440, 6 S.Ct. 1121, 1124, 30 L.Ed. 178 (1886). “The de facto doctrine springs from the fear of the chaos that would result from multiple and repetitious suits challenging every action taken by every official whose claim to office could be open to question, and seeks to protect the public by insuring the orderly functioning of the government despite technical defects in title to office.”  63A Am.Jur.2d, Public Officers and Employees § 578, pp. 1080-1081 (1984) (footnote omitted). The doctrine has been relied upon by this Court in several cases involving challenges by criminal defendants to the authority of a judge who participated in some part of the proceedings leading to their conviction and sentence.
515 U.S. 177, 180-81 (1995).  (Note that ultimately, however, the Supremes rejected application of the de facto officer doctrine in the Ryder case.)
It looks like the orders that LTC Lakin has expressed his intention to disobey (available in redacted form here) were issued for the Commander, Walter Reed Army Medical Center.  I don’t see why those orders would be invalid even if the birthers’ guano crazy theories were true.  Even a Service Secretary appointed by the current President would seem to fall within the de facto officer doctrine — indeed, the kind of chaos that would result from saying that no order issued to anyone in the military is valid is precisely what the de facto officer doctrine is designed to prevent.

10 Responses to “Sorry — one more stray thought”

  1. Anonymous says:

    For the life of me, I do not understand why the “birthers” think a court-martial (if there is one) is going to get them what they want. To be discoverable, the birth certificate has to be material to the defense. If the military judge decides the order is lawful irrespective of the President’s eligibility, he or she won’t order production. To be discoverable, it has to be within the possession, custody or control of military authorities. The birth certificate is within the possession, custody and control of the State of Hawaii. And even assuming the commander-in-chief personally is a “military authority” for RCM 701 purposes, I doubt the military judge can force him to produce ithatEhat if he refuses? The remedy is to dismiss the charge. I think it’s unfortunate that someone who has served long and well is potentially throwing his career away.

  2. Anonymous says:

    That should say, “… force him to produce it. What if he refuses?…”

  3. JimmyMac says:

    And when you get tired of reading about this “lout” (great word, look it up), I commend for your consideration the other end of the moral character spectrum – Col. William Bernhard, US Army. 79 year old flight surgeon who just volunteered for retired recall and is deploying to Germany. His most recent previous deployments include Iraq (2005), Afghanistan (2006), and Germany (2007). When not on active duty he works as a civilian flight surgeon with the Maryland Army National Guard. And when asked why he volunteered he responded, “I knew they needed someone.” It’s the Colonel Bernhards that make this country great.

  4. John O'Connor says:

    Lout is a good word. I’m sort of partial to “Skulker,” the word used by Colonel Wiener to describe Private Eddie Slovik (Wiener penned an article called something like “Anatomy of a Skulker”).

  5. Ryan says:

    And, why just disobey this order? Why come to work anyday? Why do anything that a superior orders? Why is it only this order that LTC Lakin is contending?

  6. Anon says:

    He is currently obeying his orders because he enjoys drawing his O-5 pay and living and working in DC. Afghanistan, not so much……….this, more than anything, unmasks this guy for what he really is.

  7. Christopher Mathews says:

    Ryan @ 1121 has what I think is the best take on this story: if the order to deploy is unlawful because the President isn’t qualified to hold his office, then every order can be regarded as unlawful, too. Which is a pretty neat deal, if you’re thinking about skipping that mandatory dental check-up …

    Dwight, you probably recall that military 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.

    This well-established military precedent does not bode well for LTC Lakin’s chances at trial. The fact that he did not choose to put up a fuss until given orders that might put him in harm’s way will likely not sit well with the members of his court-martial. All things considered, I think he’s getting pretty lousy advice.

  8. Patrick McKinnion says:

    I suspect the “advice” he’s getting from a civilian attorney is one John Hemenway, the father-in-law of Lakin’s spokesperson, Margaret Hemenway. John Hemenway is the attorney in the Philip Berg-inspired “Hollister v ‘Soetoro'”, where a retired officer was wanting proof of Obama’s birth in case he was recalled to active duty, and which resulted in Hemenway being the first birther lawyer to be sanctioned in the courts.

    Since a lot of Lakin’s claims are rehashed Philip Berg claims (minus the claims of Indonesian citizenship), it would make sense if Hemenway was Lakin’s legal advisor

  9. thorswitch says:

    Too true – and thanks for mentioning this. It’s always nice to be reminded about the good men and women out there who are fighting for us!

  10. sue says:

    One only has to look at the credentials of the “birther lawyers” to realize, IMHO, that none of them appear to be credible, competent or ethical lawyers. Speaks volumes, doesn’t it?