We noted that the guano is likely to get deep leading up to LTC Lakin’s Article 32 investigation.  And it has.

Phil Cave’s Court-Martial Trial Practice blog links to this report by the WorldNetDaily’s Bob Unruh about the Lakin IO’s ruling that evidence concerning President Obama’s constitutional eligibility to serve is irrelevant to the case. 

The article includes a quote from LTC Lakin reacting to the ruling:

But Lakin said the result “makes it impossible for me to have a fair hearing.”

“I cannot even raise the issue of the president’s eligibility, on the grounds that my position has ‘no basis in law,'” he said.

Actually, that doesn’t appear to be correct.  As we previously noted, the IO ruled that the defense could present testimony from retired Major General Paul Vallely or Alan Keyes, both of whom have been cheerleaders for LTC Lakin’s right to refuse to obey orders due to his doubts about President Obama’s eligibility to serve as president.  So it appears that the IO is letting LTC Lakin “raise the issue”; what the IO declined to do is attempt to obtain additional witnesses and documents concerning the issue.

The WND article also states that LTC Lakin’s advisors “told WND he will have an opportunity to raise the question again later during a court-martial process, once the Article 32 hearing is over.”  True, but that won’t result in a more favorable ruling for LTC Lakin.  In fact, the defense will be even more constrained in the evidence it’s allowed to present at court-martial, since I can’t foresee any military judge allowing testimony by retired Major General Vallely or Dr. Keyes.

34 Responses to “LTC Lakin reacts to IO’s ruling that he “will not examine the documents or witnesses pertinent to the President or his credentials to hold office””

  1. Christopher Mathews says:

    I can’t foresee any military judge allowing testimony by retired Major General Vallely or Dr. Keyes.

    Maybe, but I’ve known some pretty whimsical military judges in my time.

  2. DC Steve says:

    LTC Lakin: If you are in Afghanistan right now, please present that evidence at the Art 32.

    If not, perhaps you are now realizing that a mere suspicion (and unfounded at that) that the commander in chief might be unqualified for office, does not disolve the entire military chain of command, and does not remove your obligation to obey the orders of the military officers above you.

    Hopefully you realize this soon, and can present evidence that you have been grossly mislead by those around you, and volunteer to depart the next day. But it probably, (and rightfully), already too late…

    Still feel in a fighting mood? Talk to your military defense counsel. Ask him whether the lawfullness of an order is a question of fact (for the panel to decide) or a question of law (that the judge decides). You may not like the answer.

  3. Seems odd says:

    Why do the proprietors of this blog find it necessary to ridicule LTC Lakin every chance they get? You certainly don’t comment with such bias on any other issue…why call this guy crazy when there are a ton of spurious issues raised in appellate briefs every day…

  4. Bovril says:

    @Seems Odd

    I take it strange thay you feel an individual who directly and defiantly refused the orders of his chain of command in time of miltary action should get a pass.

    Never mind that his actions ensured another individual has stand in his place in danger…..Care to worry about him/her and THEIR family..?

  5. Anonymous says:

    Working in the appellate arena, I can think of few things as spurious as this issue. Having been a trial attorney as well, I can likewise think of few things as spurious as this issue.

    LTC Lakin is worthy of only two things, either pity or ridicule. Or possibly both.

  6. BigGuy says:

    For once, Dwight, I agree with Lakin more than I do with you!

    I think all eligibility evidence will be excluded, notwithstanding the appearance of Vallely and Keyes. The IO was careful to note that the defense made no argument as to why the testimony of these two was relevant, so he was able to permit them to testify while still holding fast to his rule about admissibility.

    If Vallely and Keyes want to come under those circumstances, they’ll be permitted. But the hearing will be all business, and if the witnesses don’t further the IO’s purpose I’m sure he will have no difficulty cutting them off and moving on.

  7. soonergrunt says:

    I’m just a dumb grunt who normally lurks here in the background for my own reasons, but I’ll take a shot at this.
    Perhaps they do because any competent member of the military bar could’ve dispensed with this nonsense in about five minutes if LTC Lakin had availed himself of such readily available and free legal advice. It’s one thing when questions come up that dance on the head of a legal pin, it’s quite another when someone violates black letter law that has all sorts of settled case law behind it, states that they intend to violate the law in order to get court-martialed, does so, and then whines about the inevitable outcome while his chosen counsel seems blissfully unaware of what needs to be done for the best interests of his client? It might be that they’ve all seen this kind of thing multiple times before–Servicemember Smith decides that he doesn’t want to go downrange for whatever reason and tries to come up with some novel idea as to how to avoid deployment, gets slapped down hard, lather, rinse, repeat with SM Jones, SM Johnson, SM Thompson and so on ad infinitum… Is that about it?
    Oh, and there’s the issue of the fact that another doctor had to deploy on short notice to take up the slack. This other doctor is going ‘out of turn’ as it were because LTC Lakin has caused his duty to devolve upon him/her, while he’s still accepting the pay commensurate with his rank. Military personnel tend to take a dim view of people who do such things.

  8. KyAtty says:

    For once, Dwight, I agree with Lakin more than I do with you!I think all eligibility evidence will be excluded, notwithstanding the appearance of Vallely and Keyes. The IO was careful to note that the defense made no argument as to why the testimony of these two was relevant, so he was able to permit them to testify while still holding fast to his rule about admissibility.
    If Vallely and Keyes want to come under those circumstances, they’ll be permitted. But the hearing will be all business, and if the witnesses don’t further the IO’s purpose I’m sure he will have no difficulty cutting them off and moving on.

    Thats how I read it to. I doubt the military will have much patience for Keyes’ insane ranting.

  9. DC Steve says:

    Because when you post a video, stating in advance your intent to violate an order, and state that you “invite” your court-martial, you also invite scrutiny, and as appropriate, ridicule.

  10. soonergrunt says:

    Because when you post a video, stating in advance your intent to violate an order, and state that you “invite” your court-martial, you also invite scrutiny, and as appropriate, ridicule.

    You know, I could’ve just said that, and saved some typing.

  11. Anonymous says:

    I’m almost at the point where I’d volunteer to leave my luxurious liftstyle in DC and deploy to Afghanistan for LTC Lakin….if that would make this damn story go away once and for all.

    COL Sullivan, as my dying wish*, can we just let this one go?

    *This insanity is killing me.

  12. DC Steve says:

    Not to worry. As someone formerly in the combat arms, your view point is refreshing.

    Someday, however, we may get rid of those pesky CAs, and completely judicialize this system, at which point, you will no longer be weolcome. ;)

  13. Edward Rooney, Dean of Students says:

    I don’t think CAAFloggers are ridiculing the man so much as his argument and his willingness to fall on his sword for his argument. I seriously doubt that anyone on here knows LTC Lakin personally, so there are no grounds for personal attack. People on the internet need thicker skin.

  14. Bill Hearst says:

    Why would CAAFlog stop running a story that generates so many comments? This is yellow journalism at its greatest. Nothing increases subscription better than sensationalizing. I’ll bet the number of birthers reading our posts has increased 10-fold in the last month.

  15. Anonymous says:

    I don’t think CAAFloggers are ridiculing the man so much as his argument and his willingness to fall on his sword for his argument.I seriously doubt that anyone on here knows LTC Lakin personally, so there are no grounds for personal attack.People on the internet need thicker skin.

    Principal Rooney, would you like a gummy bear?

  16. Bill C says:

    I seem to recall the case of an Army doctor who refused to deploy because she said the war was illegal. The MJ allowed a littany of witnesses to testify the war was illegal, but the MJ limited it considerably. ACCA affirmed. I think a Judge will allow him to call these witnesses and then tell the panel to basically ignore it, but it depends on the judge.

  17. Article16 says:

    My view: It should come in as extenuation and mitigation as to what he was thinking, but is irrelevant for purposes of a defense.

    I think this trial should have some similarities to the ones against people who think income taxes are unconstitutional.

  18. soonergrunt says:

    They don’t run ads here, so that can’t be it.

  19. Anonymous says:

    Lakin mis-understands the rights of a criminal defendant, whether in military or civilian court. A defendant is entitled to a defense. However, they are not entitled to raise any issue they feel like in their defense. An accused murderer cannot raise the belief that the victim was a nasty, evil person, whether true or not. An accused terrorist cannot raise US MidEast policy in his defense. And a disobedient officer cannot raise issues related to the last presidential election. It’s that simple.

    Furthermore, Lakin and his supporters are travelling down a very dangerous road. Some countries have actually given the military a role as arbiters of the Constitution. Turkey, for one. A review of their history, will show that how that has been applied in practice is that when the officers corps objects to the actions of the civilian government (say cuts to the military budget) they feel free to stage a coup. Is that what we want?

    If there were truly a controversy within the government as to who the President was, perhaps Lakin would have the bare bones of a case. I’m thinking of a situation where Congress said A was President and the courts said B was President (something that could have conceivably occurred in 2000 had the Dems controlled Congress). Then if A appointed his chain of command and B appointed his, I could see a soldier or officer being confused as to which one to obey. But, in the current situation, we have a President certified by Congress, inaugurated by the Chief Justice and all court challenges have long-since been dismissed. There is no body (and nobody) within the government that disputes who the President is. None. Hence, Lakin is toast.

  20. KyAtty says:

    Furthermore, Lakin and his supporters are travelling down a very dangerous road.Some countries have actually given the military a role as arbiters of the Constitution.Turkey, for one.A review of their history, will show that how that has been applied in practice is that when the officers corps objects to the actions of the civilian government (say cuts to the military budget) they feel free to stage a coup.Is that what we want?

    There are Birthers who have been calling for a military coup to remove the civilian government.

  21. Edward Rooney, Dean of Students says:

    There are Birthers who have been calling for a military coup to remove the civilian government.

    Wouldn’t be the first time…

    The Business Plot (also the Plot Against FDR and the White House Putsch) was a supposed political conspiracy in 1933. Retired Marine Corps Major General Smedley Butler claimed that wealthy businessmen were plotting to create a fascist veterans’ organization and use it in a coup d’état to overthrow United States President Franklin D. Roosevelt, with Butler as leader of that organization. In 1934 Butler testified to the McCormack-Dickstein Congressional committee on these claims.[1] In the opinion of the committee, these allegations were credible. One of the purported plotters, Gerald MacGuire, vehemently denied any such plot. In their report, the Congressional committee stated that it was able to confirm Butler’s statements other than the proposal from MacGuire which it considered more or less confirmed by MacGuire’s European reports.[2] No one was prosecuted.

    The Business Plot (also the Plot Against FDR and the White House Putsch) was a supposed political conspiracy in 1933. Retired Marine Corps Major General Smedley Butler claimed that wealthy businessmen were plotting to create a fascist veterans’ organization and use it in a coup d’état to overthrow United States President Franklin D. Roosevelt, with Butler as leader of that organization. In 1934 Butler testified to the McCormack-Dickstein Congressional committee on these claims.[1] In the opinion of the committee, these allegations were credible. One of the purported plotters, Gerald MacGuire, vehemently denied any such plot. In their report, the Congressional committee stated that it was able to confirm Butler’s statements other than the proposal from MacGuire which it considered more or less confirmed by MacGuire’s European reports.[2] No one was prosecuted.

    http://en.wikipedia.org/wiki/Business_Plot

  22. KyAtty says:

    This time there is no plot, just crazed birthers posting on the internet wishing someone would make Obama go away.

  23. Anonymous says:

    I wonder what most people here would be saying if it were 5 years ago and some accused was saying the same thing based on an argument that Buish really was never elected in 2000. You’d all be on the accused’s side.

  24. Dave says:

    I don’t know if you’re entertaining dumb questions from the peanut gallery, but here goes. I know in the civilian courts anybody can march into the clerk’s office and get a copy of most any court filing. Is the same true in the military courts? Is there a way for a person not involved in this proceeding to get a copy of the filings?

  25. Anonymous says:

    What I find interesting about this whole thing is that Lakin’s counsel asked the IO to order the government to produce certain documents and witnesses. But under Lakin’s theory, wouldn’t such an order be unlawful? On the face of things it seems kind of silly, but when he starts complaining to the military judge or the appellate courts, isn’t he going to have to admit that some orders are lawful?

  26. soonergrunt says:

    I doubt that very much, and my doubts about that have nothing to do with my perceptions of these people’s personal politics.
    When OIF first came around and we were gearing up for it, I went to ask a couple of lawyers, one civilian, one JAG how I could get out of it. I had real problems with it on many levels. I thought it might illegal. I thought it was certainly immoral I knew it was just plain freaking stupid (attacking the wrong people, getting into a three-way ethnic/religious fight, etc) and so I asked.
    One of the questions that I asked was about Bush’s legitimacy vis a vis the whole Florida thing.
    I won’t hide the fact (now that I’M RETIRED) that I hated Bush with passion you can only guess at.
    Both lawyers set me straight on the path that was going to lead me to, with a Dishonorable or Bad Conduct discharge and probably some time in confinement.
    I shut my mouth and did my duty.
    LTC Lakin is in this circumstance solely of his own making and he bears sole responsibility for what has happened to him and what may happen to him in the military justice system.

  27. Anonymous says:

    I thought Bush was the worst thing that happened to this nation in decades. I could write long screeds on how bad of a president he was, on all of the myriad ways he trashed this country with poor economic decisions and poor foreign policy decisions.

    I think Bush v. Gore was wrongly decided to have a state law question decided by the Supremes. I thought it was partisan. I think Gore if we had a “God’s eye” view of Florida probably won Florida. In short, few folks are more liberal than me (at least in the military).

    And even thinking all of that, the reality is, Congress did with Bush what they did with Obama, they certified each President. And that is the end of the game. Done. Bush then and Obama now were/are legitimately president.

    I’d think the accused would be crazy to make that kind of challenge “5 years ago” and throw away a retirement and health benefits for life for something that was clearly a non-starter.

    So you’d be wrong in your wonderment.

  28. DC Steve says:

    Has anyone else noticed LTC Lakin’s picture, in full uniform, as part of an add on WND soliciting funds for his defense?

    Looks like a possible violation of the Joint Ethics Regulation’s (JER) prohibition on endorsement, fundraising in an official capacity, and (more tenuously), using official position for personal gain.

    For example, under JER Sec. 3-209 “DoD employees shall not officially endorse or appear to endorse membership drives or fundraising for any non-Federal entity” (with specific, and unrelated, exceptions).

    Allowing your uniformed image to raise money (especially for a fund that is raising money for you), is, IMHO, prohibited. Surely he could not appear in uniform in advertisements to raise money for a political party, or other charitable enterprises.

    Now, admittedly, few people following this story are likely to believe that by appearing in uniform, LTC Lakin is implying that the Army has endorsed this cause. However, he is still prohibited from endorsing (or appearing to endorse) a private cause in his official capacity – which by appearing in uniform, he does.

    Now, he should probably just ask WND to stop using the photo, and submit one of him in civilian clothes instead. And, since some of these prohibitions are punitive, (and could be charged as a Art. 92 general order violation) he should probably do this soon – in case an aggressive IO decides to look into additional allegations of misconduct.

  29. soonergrunt says:

    Has anyone else noticed LTC Lakin’s picture, in full uniform, as part of an add on WND soliciting funds for his defense?

    Looks like a possible violation of the Joint Ethics Regulation’s (JER) prohibition on endorsement, fundraising in an official capacity, and (more tenuously), using official position for personal gain.

    When you’re in a deep, deep hole, you should stop digging.
    sigh.

  30. Norbrook says:

    Besides the lack of basis in fact, every birther case to date has resulted in the court saying in effect “not our business.” For people who claim to be defending the Constitution, they have consistent inability to understand the very clearly stated idea of separation of powers in that document. The Constitution grants the power to determine the eligibility of, or the ability to remove, the President to Congress. Not the courts, and the courts know that. So they’re not going to go there.

  31. ParatrooperJJ says:

    I wonder if the judge will issue an order for the original birth certificate registration documents to be produced?

  32. soonergrunt says:

    Well, according to all of the military lawyers here, President Obama’s birth and facts and suppositions related thereto have nothing to do with whether or not LTC Lakin disobeyed orders from his superior officers who were known to him to be his superior officers who had the authority to order him to do things.
    If you’d read the other thirty or so posts in this thread, you wouldn’t wonder that.

  33. Desamus says:

    I’m not an attorney, please, be aware of this as you read what I say.

    What concerns me most – as a civilian, father, US citizen, husband, voter, law abiding citizen etc. – is the opinion LTC Lakins motivation (however unwise) is a just manifestation of the failure(s) of the “system” (judicial – both civilian and military; chosen leaders; the national media; judges; boards; political parties; comedians -add to the list, pick just one or make a platter).

    Why does the manifestation of Lakins actions matter to me? I believe he’s a rare courageous individual, that aside I believe his belief, is common (rampant) within all branches of the military of the US. Let us just say few have been willing to take their beliefs as far as Lakin has. If this question is not dealt with by the uncovering of facts – provable ones – the fabric of the military is weakened more and more each time something similar happens and that makes us vulnerable! Will this be the time it gives? The worst thing that can happen – a dry and hard court is perceived to be as ambitious in ignoring the question Lakin asks as it is harsh in dealing out a sentence. That’s my concern and it looks like that is what will happen.

    How can I say such a thing? I’ll just mention a couple, add your own if you wish, there have been numerous civilian polls asking the questions – is Obama a “natural-born citizen?” and “was Obama born in the US?”. The poll numbers reflect non-statistically insignificant results. In fact they are over-whelmingly consistent with Lakin. Now, all the “soldiers” have mothers, fathers, brothers, sisters, husbands, wives, cousins, aunts, uncles, nephews, etc (add your own, pick one or make a platter) and they will communicate with these soldiers.

    Combine this evidence with the “actions” of Obama “the Commander and Chief” and “Congress” in the bills passed, the words chosen, the treatment of Israel, the “presidential bow(s)”, etc. summed up to say this “their actions seems so disconnected from the promises” and in a way that completely ignores the individual’s desires for the wants of an unknown collective.

    As a civilian I can say these are truly scary times but, as a soldier (both individually and as a collective) these truly must be dreadful, lonely and fearful times.

  34. Brian G. says:

    Thank you for all your down to earth comments. Your comments have been very helpful. Although I confess I have had some sympathy some Ltc Lakin cause, you hit the nail on the head earlier on when it comes to the consequences of not only defying lawful orders but at the consequences of defending your conscience and principles while serving.

    Being retired Army as well; I would never choose the venue Ltc Lakin has chosen without some very very serious consideration and counsel. This would conclude that the end price is not worth the struggle. A new rule of thumb I’ve learned since being a civilian is the ROI (Return of Investment) . I see no ROI for Ltc Lakin in the matter. He’s getting some pretty crappy advice from those around him.