It rained in D.C. today, which means I got to spend a lot of time in my car this evening.  While trying to drive home, my mind turned to the Lakin case.  And my unexpected reaction to thinking about the case was to become sad.

I don’t know LTC Lakin, but I’ve seen his video and listened to him on the G. Gordon Liddy show.  While I have no way of knowing, I believe that he’s sincere.  Deeply misguided and credulous, sure, but sincere.

The man is a physician and has been selected for promotion to colonel — obviously he’s intelligent and well-educated.  So assuming he’s sincere, then it seems to me one of two things must be true:  (1) he thinks that his court-martial will compel the release of some or all of the documents concerning President Obama that LTC Lakin would like to see; or (2) he knows there isn’t any realistic chance that he’ll obtain the documents he seeks and he wants to martyr himself for his cause, perhaps thereby furthering political efforts, like that passed by the Arizona House of Representatives today, to compel production of documents concerning President Obama’s citizenship.

Let’s look at why there’s no realistic chance that the court-martial discovery process will result in the production of any of the documents LTC Lakin seeks.  First, I assume there will be a court-martial.  One reason I assume that is because LTC Lakin appears to want to be court-martialed, which substantially reduces the likelihood that the case will be diverted to some alternative disposition.  Actions such as his by a lieutenant colonel also merit a general court-martial. 

Once his case has been referred to a GCM, LTC Lakin’s counsel will likely ask the trial counsel to issue subpoenas for the production of documents from non-parties, such as the state of Hawaii, and will probably seek a subpoena to compel the testimony of President Obama. The trial counsel will refuse.  The defense will then litigate the issue before the military judge.  The military judge will (correctly) rule that none of the requested documents or witnesses is relevant to the issue of whether any orders issued to LTC Lakin were lawful.  The military judge will, therefore, deny the defense discovery motion.  The defense will probably challenge that ruling via petitions for extraordinary relief, which will be denied. The case will then go to trial.  But if LTC Lakin wants to challenge the discovery rulings on appeal–and presumably his decision to miss movement and disobey orders is a vehicle to obtain that discovery, so he’ll want to appeal the ruling–he’ll have to be sentenced to either a dismissal or a year or more of confinement.  Will we see the spectacle of the defense requesting a dismissal in order to appeal the discovery rulings?

Let’s say he is sentenced to a dismissal and/or a year or more of confinement — not because he asks for it, but because the fact finder concludes that’s the appropriate punishment.  (BTW, will LTC Lakin choose to go judge alone or elect trial by a panel of O-6s and perhaps general officers?)  His case will then go to ACCA, which will affirm the military judge’s discovery rulings.  LTC Lakin will then file a petition for review at CAAF.  If the only real issue in the case is the discovery issue, then I suspect CAAF would deny review.  And that would mean no opportunity for LTC Lakin to seek cert from the Supremes.

By the time military appellate review is complete, LTC Lakin’s period of confinement would almost certainly have run, thus eliminating his opportunity to file for habeas.  But let’s say that his case didn’t qualify for military appellate review, but he did receive some confinement.  After he filed and lost an Article 69 appeal, he could file a petition for habeas corpus in the district where he is confined.  But if he’s at the USDB, his case would be governed by the extremely narrow scope of review that the 10th Circuit has adopted for collateral attacks of court-martial convictions.  See Lips v. Commandant, U.S. Disciplinary Barracks, 997 F.2d 808 (10th Cir.1993).  Under that scope of review, he wouldn’t be able to obtain review of the merits of the discovery rulings.  Nor would it be likely that he would ever be able to seek Supreme Court review of such a habeas challenge, since his release from confinement would moot a habeas action and it’s unlikely that he would receive a sufficiently lengthy sentence to remain in confinement beyond the amount of time it would take to obtain a ruling on his Article 69 appeal plus a ruling from the district court, much less from the court of appeals.

LTC Lakin could seek collateral review of his court-martial conviction through a Tucker Act proceeding, but once again the scope of review is exceedingly narrow.  See, e.g., Bowling v. United States,  713 F.2d 1558, 1561 (Fed. Cir. 1983). 

So there’s almost zero chance that LTC Lakin will succeed in obtaining any of the documents he seeks.  By all accounts, LTC Lakin has had an outstanding career as an Army doctor, including service for 16 months as a squadron flight surgeon in Afghanistan.  And that’s what saddened me.  He’s throwing away that outstanding career with no realistic chance that the court-martial discovery process will ever result in the production of the documents he seeks.

Knowing that LTC Lakin is a well-educated, intelligent officer, does that suggest that he’s consciously engaging in civil disobedience as a political device?  Or have his legal advisors provided him with an unrealistic assessment of the likelihood that he will either:  (a) succeed in using the court-martial discovery process to obtain the documents he seeks; or (b) be found not guilty by a court-martial?  (Based on the pictures on Paul Rolf Jensen’s new web site, it appears that Mr. Jensen was already advising LTC Lakin when he taped his video explaining that he is “inviting my own court-martial” by choosing to disobey orders, including an order to deploy to Afghanistan.)

34 Responses to “Thinking about the Lakin case”

  1. glenn says:

    I suppose you’re right. I have a hard time feeling sympathy for the birthers. Most of them won’t accept information. They want to believe what they believe, even if you show them they are in error.

    As for military birthers, Major Cook says he has been in touch with Lakin.

    Major Cook was actually promoted recently.

    He goes by ‘roaddog727’ at Free Republic. Birther through and through. His comments:

  2. Gene Fidell says:

    I would add to CAAFlog’s roadmap that we might also see Dr. Lakin try to obtain habeas before the completion of appellate or Art 69 review if he is in confinement (good luck) or plain old 28 USC 1331 collateral review in district court if he is not.

  3. Anonymous says:

    Looks like at least 31 Arizona state representatives are sympathetic to LTC Lakin’s cause:

  4. Marcus Fulton says:

    Your post reminds me of something I read in Neil Sheehan’s book The Arnheiter Affair (I think you made me read it). Toward the end of the book, Sheehan tries to explain why a former battleship CO with a promising future sacrificed his own career viability in a public defense of a rightfully ruined LCDR Arnheiter. Sheehan recounts how another senior naval officer said that some officers go through long and successful careers, and then–as if it had been the point all along–pick some irrational cause for which to “drink their cup of hemlock.” That observation (and it’s more observation than explanation) struck me as consistent with a few cases I’ve seen. We’ve all had to ask ourselves “do I really want to die on this hill?” I can’t fathom why LTC Lakin decided this was the time to answer yes.

  5. Snuffy says:

    Dwight- While I agree with your analysis regarding how this will proceed- you are spot on- I dont really feel the sadness. I have a healthy respect for self determination. I believe people should be free to make stupid choices, even ill informed and obviously self destructive. I can’t waste my pity or sadness on them. There are a large number of people who are worthy of pity and sadness- this guy is not one of them.

    BTW any Army medical corps officer who hangs around long enough will get promoted- it is not a selection for promotion, just a longevity bonus.

  6. Max Power says:

    If anything, I can thank LTC Lakin for his actions which triggered a very informative over view of the military appellate process. Thanks Mr. Sullivan for your thoughts!

  7. Anonymous says:

    Don’t feel sorry for the guy at all. The command has bent over backwards to not court-martial this guy so far and he has continued on.

    He’s a grown man, apparently not insane (although certainly crazy) and he goes to the old adage that education does not equal intelligence, or common sense.

    This is so ridiculous. I could understand folks protesting against the war. At least one can understand their side of it, and in some ways even agree with it, if not their decision to betray their oath.

    But this? Something so patently ridiculous and wrong to anyone with half a brain? Yeah, I have no sympathy for him at all.

  8. Anon says:

    Fantastic post setting out the way ahead in vivid detail. I know what you mean re: feeling sad. Were he an E-3 rather than an O-5 (P) physician I would be convinced he was being exploited by others with a political agenda; as it is, though, he is clearly acting on his own and, as you say, apparently out of conviction. My feelings are a mixture of sadness, revulsion, and disbelief that someone of his rank and experience would pull something like this. It’s been a rough couple of years for the Army Medical Corps (Walter Reed, MAJ Hasan, etc.). LTC Lakin’s seniority and the publicity surrounding his stance clearly ramps up the PGOD aspect of this case. I predict dismissal due to this matter in aggravation.

  9. Anonymous says:

    Some pretty obvious racial components to “roaddog727’s” posts.

    Also the silly belief that both of President Obama’s parents must have been American citizens for him to be president, proof yet again that this isn’t just about a birth certificate, even a birth certificate wouldn’t be enough for these folks, his Dad wasn’t American, his mom was *gasp* liberal and liked to date guys who were…ahem…not like her.

  10. John Harwood says:

    Col Sullivan, that must have been some drive! I’d have to drive from Bolling to Camp Pendleton to complete that thought chain.

    My typical commute inner monologue usually goes something like “meow meow meow meow, meow meow meow meow, meow meow meow meow meow meow meow meow” to the Cat Chow tune.

  11. WarLawyer says:

    Certainly do agree with your legal analysis. However, the opening premise needs to be questioned. I have represented too many physicians to grant that class of professionals the mantle of “intelligent.” Yes, you would hope so but it is often far from the truth, at least beyond their tight little world of medicine.

  12. Anonymous says:

    I suddenly have this weird craving for kibble.

  13. Anonymous says:

    That is one hilarious (unintentionally I assume) website.

    And the idea of half a million for the attorney fund? Wow.

  14. glenn says:

    They raised it to half million? It was $50k the other day. It looks like they want to milk the Birthers while they can. It makes me wonder how much the other birther lawyers raked in as well.

  15. Dwight Sullivan says:

    To paraphrase Arnold Horschack, very impressive Kabul Klipper! Discussing CAPT Richard Alexander’s decision to essentially bet his career on backing LCDR Marcus Arnheiter after Arnheiter was relieved as captain of USS VANCE, Neil Sheehan wrote:

    Alexander may have been the biggest victim of the many who were taken in by Arnheiter’s mutiny tale. Or he may have tried some manipulating himself. Or he may have been that peculiar kind of military officer, and there are some, whose professional death wish sooner or later finds a cup of hemlock. In the end, however, Richard Alexander remains an enigma, an elegant sphinx.

    Neil Sheehan, The Arnheiter Affair 260 (1971).

  16. Any officer says:

    I, for one, have grown weary of seeing the Army fold like a house of cards whenever it receives any publicity for someone missing movement as some sort of “statement.” It’s time to go to the mat on one of these guys. Folks like this inevitably piss me off: First, there is going to be some other poor schlub who is getting notified he’s deploying in the colonel’s place; second, there is already a doc shortage…no matter what your political stripe failing to do one’s duty to make some arbitrary political point that has been REPEATEDLY disproven is aggravating beyond belief. All of you officers out there: you took an OATH well and faithfully discharge the duties of the office upon you have been appointed. Even in our cynical age, it is a sacred thing.

  17. Jack Grogan says:

    Some who take an oath to “defend the Constitution” are willing to go beyond the call of duty.

    If the Courts and the Congress will not hold the DNC, state election officials, and the candidate himself, accountable for apparently fraudulent Certification letters from DNC Nominating Convention Chair Nancy Pelosi, who will take responsibility?

    “We’re evading it”, so said Justice Thomas to Rep. Jose Serrano at a recent hearing. Is this a mythical case where not a single citizen or entity has “judicial standing”? An unthikable reality? Not so.

    Those who denigrate political debate with scornful labeling have not read the legal essay by Alexander Porter Morse in the N.Y. Albany Law Review: NATURAL BORN CITIZEN OF THE UNITED STATES: ELIGIBILITY FOR THE OFFICE OF PRESIDENT (VOL 66, 1904-1905). It is historically rewarding!

  18. Marcus Fulton says:

    Thanks for the exact quote. I shouldn’t have used quotation marks without having the book out here. I hope they were understood to denote a euphemism.

  19. Norbrook says:

    Having worked with many doctors over the years, it’s more the case that their intelligence has a narrow focus. One of the myths (and classic logical fallacy) is that if someone is intelligent in one aspect of their life, it means they’re intelligent in all aspects. I’ve met enough brilliant doctors and scientists over the years to know that isn’t the case. They were great in their field, but outside of that, you wondered if they’d ever learned to tie their shoes.

  20. Gorefan says:

    For a more contemporary discussion and historical review, one should also review Charles Gordon, Maryland Law Review: “WHO CAN BE PRESIDENT OF THE UNITED STATES: THE UNRESOLVED ENIGMA” (Vol 28, 1968),



  21. Christopher Mathews says:

    Jack, it’s refreshing to see a birther admit that the Lakin case is all about “political debate.” Truly, there is no higher purpose for the military justice system than to be used as a tool to advance a partisan agenda.

  22. Trevor says:

    @Jack Grogan,

    Leaving aside the whole tenor of your diatribe which basically states that everyone is “is on it”.

    Lets take one piece shall we?

    “We’re evading it”, so said Justice Thomas to Rep. Jose Serrano at a recent hearing.

    And what pray tell does the ACTUAL background of that story have to do with the current POTUS….?

    Answer nothing, nada, bugger all, squat etc.

    The good Justice was answering a very specific point about the POTENTIAL issues that MAY arise if an NBC, born in Puerto Rico, such as to Rep. Jose Serran, was running for President.

    This falls out of the specific status of Puerto Rico not being a wholly subsumed and individual state of the USA (not one of the “several” states) but an Unincorporated Organized Territory.

    Last I checked, Hawai’i is a state and was at the time and date of birth of Obama.

    Justice Thomas’s response was meant to be jocular but as is inevitable in Birther Land, humor is a foreign (and probably Communist/Nazi/Socialist) sentiment.

    He was also giving a back handed reminder to the Rep that the SC doesn’t pass laws, it hears and rules on cases on the Constitutionality of laws. So, unless a case is presented to them, they can’t rule on it, ergo “dodging it”.

  23. glenn says:

    Jack Grogan speaks like a true birther.

    BTW, the Serrana/Thomas thing is a running joke between them. This video is from April, 2009. Serrano jokes in his opening remarks (maybe about 1:15 or 1:30 mark) about SCOTUS deciding if he can run for President.

    There is no fraud. There is no big conspiracy. I might be entertained with Glenn Beck should he use his magic blackboard and list everyone that birthers believe to be involved:

    The Supreme Court
    Democratic Party
    Governor of Hawaii
    Department of Health
    Judge Land
    Judge Carter
    Dick Cheney (after all, he didn’t ask for objections)
    The list goes on and on and on.

    Every single thing the birthers have brought up has been debunked, including several fake birth certificates.

    Their “experts” have been discredited. Techdude gave himself a resume. Well, he stole one from the internet.

    Polarik doesn’t have the qualifications he claimed either. When he was ‘outed’, he slunk away.

    Lucas Smith has a criminal history of fraud and forgery! Smith is so low as to attempt to extort money from a dying man:

    Again, the list goes on and on and on.

    Birthers choose to believe. And, when shown to be wrong, they just move the goalpost. Lakin is the current fool.

    First they believed the military would never court martial Lakin. That the birth certificate would be released (like it hasn’t already been!) to avoid a trial.

    Then they said the court martial was all part of the big plan. It’s about Lakin getting Discovery during the court martial.

    And now there is talk of the big plan after Lakin loses.

    Because they need to move their goalpost. It’s an ongoing thing.

  24. billvanallen says:

    USDC-DC 10-151

    worth reading Strunk (former USAF) short legal/constitutional oath of office rant in his Motion to reconsider denial of intervention by USDC Chief Judge Lamberth in Lamberth attempt at jocularity in declining to tilt with windmills and the BO eligibility issue

  25. bill says:

    Why do u consider something as simplistic as Colonel Lakin demanding that obama show proof of natural born citizenship status in oder to be constitutionally qualified to be POTUS??…Is this not the duty ansd responsibility of every american who took an oath to protect and defend the US Constitution against all enemies foreign and domestic so help me God??..You are like soo many who have made post to this story that would rather save ur ass or ur career than expose a fraud and a usurper in the White House..The evidence against obama is beyond doubt..There is NO DOUBT whatsoever he is a fraud and not even an american citizen..If every high ranking military officer would demand to see proof from obama of his birth certificate, it would happen in the next 10 minutes..I applaud Colonel Lakin and wish him Gods’ speed..He is a true american patriot and not some arm chair flunky as urself who wouldnt have the spine or guts to stand up next to a school yard bully…Your pathetic as is most of the people on this blog leaving such negative comments!!

  26. glenn says:

    You mean Chris Strunk, in esse? LOL!
    He is a nuisance.

    My favorite is when he has a stamp made for his documents. See page 25.

    Strunk’s own folder at Scribd:

    Part of an Interview on YouTube.

    Illuminati and all.

  27. billvanallen says:

    yes, now that you mention it, Chris is the same person who states to Judge Lamberth (as I hope counsel for Col. Lakin also states during his trial) as follows:
    “4. As for the Court’s use of the adjective quixotic behavior that is noble in an absurd way or the desire to perform acts of chivalry in a radically impractical manner, neither Plaintiff nor Declarant believes that fighting to save the sovereignty of the nation under our great constitution is either absurd or impractical. It should be noted that Cervantes had enlisted as a soldier in a regiment of the Spanish naval elite corps, Infantería de Marina, stationed in Naples, then a possession of the Spanish crown. He was there for about a year before he saw active service. 5. That the Don Quixote story is more than mere reference by Cervantes to himself in his own military exploits, in fact were informed by the heroic exploits of the Jesuit Basque Ignatius Loyola whose distinguished service in both the Spanish Court and to the Jesuit company of the Pope’s militia was really the model for Don Quixote in considering the Jesuit contemporary of Cervantes as a devout Catholic. 6. Perhaps metaphorically quixotic may be a true expression of any federal court action
    today that attempts to defend the chimera of the U.S. Constitution as the Court suggests, for the Jesuits like Cervantes would revile the premise of the underlying protection of the individual granted in the U.S. Constitution, which are the principles Plaintiff and Declarant fight for. 7. That the term quixotic special meaning that does not apply to Declarant as to that militia the Jesuits and their collective whom I fight openly without dicing words. 8. That chivalry is not gone as the Court suggests; and to the contrary exists in just the same way as when Barry Goldwater declared in the 1964 convention “Extremism in the defense of liberty is no vice. And let me remind you also that moderation in the pursuit of justice is no virtue.” he was merely quoting Cicero two millenniums thereafter, just like JFK had rhetorically stated “Ask not what your country can do for you but what you can do for your country” came
    from a Warren Harding convention speech too flowed from early history. Wherefore, Declarant urges the Court to reconsider what we endeavor to do as worthy of the Court’s grant of relief as in keeping with the Court’s oath of allegiance, and that Declarant’s intervention without substantive due process be stricken from the judgment as premature until say June 17, 2010 when I am obliged to speak freely; and that Declarant requests other and different relief that the Court may deem necessary. /s/ Dated: April 20th , 2010 Brooklyn, New York _________________________________

    Christopher-Earl: Strunk in esse 593 Vanderbilt Avenue – #281 Brooklyn, New York 11238 (845) 901-6767 email:

  28. glenn says:

    I need to buy shares in tin foil.

  29. billvanallen says:

    — not knowing much about your shares of tin foil, but finally begin sorting out the various foreign interest collaborators using say the Logan Act. i.e. sort of an IFF treason detection device (identify the made-in-the-USA natural born citizen “friend” from the foreign dual-citizenship born agent “foe” — at least as far as the office of POTUS/CINC is concerned.)

  30. billvanallen says:

    comparing the court martials of colonels Lakin and Billy Mitchell

    A scene taken from Mitchell’s court-martial, 1925. This scene was recreated for the 1955 movie “The Court Martial of Billy Mitchell”In response to the Navy dirigible Shenandoah crashing in a storm, killing 14 of the crew, and the loss of three seaplanes on a flight from the West Coast to Hawaii, Mitchell issued a statement accusing senior leaders in the Army and Navy of incompetence and “almost treasonable administration of the national defense.”[21] In November 1925 he was court-martialed at the direct order of President Calvin Coolidge. Frank Reid served as Mitchell’s chief counsel.

    The youngest of the judges was Major General Douglas MacArthur, who later described the order to sit on Mitchell’s court-martial as “one of the most distasteful orders I ever received.”[22] Of the thirteen judges, none had aviation experience and three (including Major General Charles Pelot Summerall, the original president of the court) were removed when defense challenges revealed bias against Mitchell. Among those who testified for Mitchell were Edward Rickenbacker, Hap Arnold, Carl Spatz and Fiorello La Guardia. The trial attracted significant interest, and public opinion supported Mitchell.[23] However, the court found Mitchell guilty of insubordination, and suspended him from active duty for five years without pay.[3] The generals ruling in the case wrote, “The Court is thus lenient because of the military record of the Accused during the World War.”[24] MacArthur later claimed he had voted to acquit, and Fiorello La Guardia claimed that MacArthur’s “not guilty” ballot had been found in the judges’
    anteroom. [25] MacArthur felt “that a senior officer should not be silenced for being at variance with his superiors in rank and with accepted doctrine.”[22] The case was presided over by Major General Robert Lee Howze,[26] who replaced Summerall. Mitchell resigned instead, as of February 1, 1926, and spent the next decade writing and preaching air power to all who would listen.[3] However, his departure from the service sharply reduced his ability to influence military policy and public opinion.

  31. CDR Kerchner says:

    Concerned Americans Have Good Reason to Doubt that Putative President Obama Was Born in Hawaii.

  32. Tucci78 says:

    Every lawyer plays the “good case / bad case” game. The procedural Kabuki theater ritualism of American law invites all sorts of mental contortionism, its purpose invariably to enable the lawyer in question to use language for what Orwell had described as political purposes, “…to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”

    That lawyers hold physicians in contempt is understandable. To the medico, things are always simple, at base, no matter how complex they may appear. Like anyone else who works in the sciences, the purpose of every inquiry is to tunnel down to the fundamental simplicity at the base of everything in the phenomenal world, and upon getting that understanding, take such actions as are possible to get better results for someone in trouble.

    Not so the lawyer. Which is, I suppose, one of the reasons why so very, very many of America’s successful (they get elected, they evade indictment, they make off with bucketloads of money for themselves, and they ruin their enemies) politicians are lawyers, not doctors.

    Again and again and again in the case of Barry Soetoro (née Barack Hussein Obama) and his qualification as a “natural born citizen” to have stood for, been elected to, and exercise the powers of the office of President of these United States, those of us trained and inclined and practiced in seeking the fundamental simplicities at the base of all objective reality have tended to press for open and lucid analytical consideration of a situation that is, in truth, about as simple as what most Americans go through every time he applies for a passport, or seeks to renew a driver’s license.

    If such an average American can be expected to produce certified physical documentation of this nature – not an allegedly scanned-from-the-original JPG image but a physical item which can be submitted to analysis by trained and experienced forensic document analysts who are prepared to utter under oath attestations as to their opinions of that document’s provenance and validity – why can the current occupant of the White House who is exercising the authority of the U.S. military’s Commander-in-Chief not take the same action?

    Behind the lawyerly bafflegab of Mr. Soetoro’s proponents in the legal profession, there is an effort to deceive, to dissemble, and “…to make lies sound truthful and murder respectable, and to give an appearance of solidity to pure wind.”

    Members of the medical profession aren’t like that. LTC Lakin is an example of that. When members of the medical profession begin thinking and behaving like members of the legal profession, then we will no longer have a “health insurance crisis” because people will no longer trust medical doctors to have their patients’ best interests in mind, and will not seek their care until they are literally at death’s door and nothing worse can happen to them than that they die in agony.

    The legal profession has already achieved this, as is being proven by the lawyerly support of Barry Soetoro and his still quite unconstitutional presidency.

  33. Mark F. says:

    Tucci78, you are a nut.

    Hawaii officials have confirmed that Obama was born in Hawaii and has a valid birth certificate. This would be good enough to establish “natural born status” and citizenship for anyone in any court of law.

    Reporters have examined Obama’s certified birth certificate on file in his office.

    2 Honolulu newspapers, who got their information from local hospitals, printed Obama’s birth notice.

    There is no eveidence that Obama was born in Kenya. His Kenyan grandmother has denied it.

    And, even if Obama was born in Kenya, his mother was a United States citizen and this establishes his “natural born” status according to current law.

    Congress unanimously agreed that Obama was born in Hawaii and certified his election.

    There is no reason Obama has to indulge any crackpot group at this point.

    And what the hell difference would it make if somehow the birthers claims were true and somehow Obama could be forced out of office? A President Biden would be an improvement?

    And arguing over Constitutional interpretation is a fool’s game. What matters, as a practical matter, is what the government thinks the Constitution means, not what you do.