An embarrassment of guano
The birthers are all atwitter over Judge Lind’s reported use of the word “embarrassment” in her ruling denying discovery in the Lakin case. The birthers think that Judge Lind indicated that she is attempting to save President Obama from personal embarrassment and hence won’t allow discovery. In its most extreme form, this new birther argument takes this form. See also here and here.
I wasn’t at the Lakin motions hearing. In fact, I wasn’t even on this continent when it occurred. But it took me literally less than a minute to find that in discussing the political question doctrine, CAAF’s New decision used the word “embarrassment” in a quotation from Baker v. Carr. I’ll bet dollars to donuts that that was how Judge Lind used the word in her ruling. Here’s the quotation from New:
The Supreme Court has long recognized the principle of “nonjusticiability”: meaning that courts of law should decline to exercise their authority to decide matters where judicial intervention is deemed inappropriate. Based upon the Constitutional principle of separation of powers in the three branches of Government, judicial review of “a political question” is precluded where the Court finds one or more of the following: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 nonjudicial 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.
Baker v. Carr, 369 U.S. 186, 217, 218 (1962); see also Flast v. Cohen, 392 U.S. 83, 95 (1968).
United States v. New, 55 M.J. 95, 108-09 (C.A.A.F. 2001).
Embarrass has, unfortunately for the birthers, other meanings besides the one they thought. In the context used in the ruling, it means “hinder, obstruct, or perplex.” Which is the older meaning of the word, not the “common” meaning.
So all Judge Lind is really saying is “the court cannot do something that is specifically given to Congress.” Her problem is that she’s a judge, so she used all them thar fancy legal words which the birther’s can’t understand.
Heh, heh.
I have donuts, how many dollars do I get?
But, why was there even any need for the court to enter into the discussion of nonjusticiability or the political question doctrine? Did the judge really intend to imply that even if the requested discovery were relevant and necessary to the defense then she would still deny the request and refuse to allow the defense to introduce evidence or argument on the issue?
The Lakin team could release the full text of Judge Lind’s ruling so that the “embarrassment” comment could be evaluated in context. They would first have to acknowledge that the ruling actually happened, however. I suspect that they are too “embarrassed” to post the ruling or even acknowledge it.
There are a couple of possible explanations that come to mind: the issues may have been raised in one or both of the briefs, or the judge was simply being thorough and addressed justiciability sua sponte.
Agreed, but couldn’t the same be said of the court and the prosecution, either of which could have made the written ruling publicly availble?
But, my question also involves an honest confusion as to the proper scope of the application of nonjusticiability and the “political question” doctrine in the context of a criminal prosecution.
Is it proper to apply them to defeat the right of an accused to have access to otherwise relevant and necessary evidence? (Or, are they simply another way of saying the evidence is irrelevant and/or unnecessary?).
P.S. — Adding to my confusion, the Supreme Court’s opinions in both Baker and Flast (referenced in the original post) are in the context of civil actions by plaintiffs seeking injunctive relief.
Is there federal precedent actually holding that the rights of the accused in a criminal prosecution [under the UCMJ?] to have access to otherwise relevant and necessary evidence can be defeated by resort to nonjusticiability and the “political question” doctrine?
The “embarassment” is the delusional lawyers involved.
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The court martial is set to begin in October, but Jensen said he’s not giving up on the matter of Obama’s eligibility.
“We will be giving the Army Court of Criminal Appeals in the next week or two the opportunity to take up the issue, and we are going to fight on for justice to be served in this case.”
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http://articles.cnn.com/2010-09-02/justice/birther.court.martial_1_lawful-order-and-dereliction-military-orders-president-barack-obama?_s=PM:CRIME
Go to page 2.
I smell the beginning of a (the first?) QP on writ or appeal — if only the defense knew what to do with it.
anon 939, you’re circling around the birther section. The “relevant and necessary” evidence is, in this case, neither relevant or necessary to the defense for the charges LTC Lakin is accused of. To make an example, if I douse a house with gasoline and set it alight, my attempt to subpoena the CEO of BP regarding their refinery and drilling operations in the Gulf of Mexico as a part of my “defense” against arson charges is not going to be granted.
As has been pointed out on this blog and on others, the military or the judiciary does not get to question the qualifications of someone who has been elected and sworn in as President. That authority, according to the Constitution, is given strictly to Congress.
Hold on, I think anon 939 has a valid question which was poorly expressed and is now being misunderstood.
If I am correct, the question is: What’s the relevance of the political question doctrine to the issue of the admissibility of evidence in this case? IF the evidence were relevant, could it still be excluded in a criminal proceeding (civilian or military) based on the political question doctrine? And if it could not, why bring it up?
That strikes me as a fair question, though I am not a lawyer and perhaps the answer is obvious.
As I think about it, it looks like it’s a matter of COL Lind’s approach to the case. Before the hearing, many of us stressed the de facto officer doctrine. If that is relied upon, the President’s eligibility is absolutely irrelevant to the charges, because no facts at issue could possibly show Lakin’s orders to have been illegal.
But COL Lind took it further. She is pointing out that not only is Lakin not entitled to a ruling on Obama’s eligibility, the court is not permitted to make one.
And that is how the political question doctrine came up.
I’ve been offline all day, so I’m coming into this discussion late. I actually think Anon 939 asked quite a good question, which Big Guy hits out of the park above. It’s not that the evidence that LTC Lakin seeks is relevant but won’t be produced due to the political question doctrine. Rather, under the political question doctrine, it’s inappropriate for a court-martial to opine on the constitutional eligibility of the President. And because a court-martial can’t say the President is ineligible, no amount of evidence regarding the President’s eligibility would be admissible (and, hence, it’s not discoverable) because it couldn’t affect the case’s outcome.
I actually think there are better reasons for denying discovery in the case, but I get the impression that Judge Lind cited additional reasons as well.
The best reason to deny discovery is that the President made no orders to LTC Lakin and there’s nothing even potentially illegal about obeying an order to drive from Walter Reed to Arlington, an order to fly from the Washington, D.C. area to Charlotte, North Carolina, and an order to report to Fort Campbell, Kentucky. Failing to perform those acts is what LTC Lakin is charged with. The President’s eligibility has no legal or logical relevance to those alleged offenses. We can then go into “even if” land and talk about the de facto officer doctrine and the political question doctrine. But even if those didn’t exist or exceptions applied here, LTC Lakin still wouldn’t be entitled to discovery concerning the President’s constitutional eligibility.
I agree with Dwight. As to the second question presented in this thread (can the PQ doctrine shield evidence that is relevant, and not cumulative, to a criminal defense), I’m not sure I agree with Anon 1814 that it would be proper to deny that evidence to the defense. In my mind, if the government doesn’t want to produce relevant, non-cumulative, admissible evidence, then the burden of that decision ought not be visited on the accused (at least without some remedy for the prejudice caused). But then, I’m just a defense hack.
Caveat before anyione calls me a Birther: I do not think any of this stuff is relevant here.
Thank you BigGuy, John O’Connor, and Dwight Sullivan:
However poorly expressed, that was exactly my question. I am not suggesting Judge Lind withheld any evidence which was relevant and necessary, I’m just wondering whether the PQ doctrine would support her doing so, especially in the context of a criminal prosecution. I’m honestly not aware of any federal precedent which would suggest she has the authority to do.
My apologies for misunderstanding your question. As has been stated, there are other reasons besides the PQ question to deny discovery. We don’t know the precise motions filed by Jensen, so she may well have been – and probably was – responding to the justifications used for them.
As Dwight Sullivan pointed out, the charges LTC Lakin faces do not involve orders from the President to LTC Lakin, they involve his disobeying orders given to him by direct superiors. Using the apparent argument that since the President is CinC, and all orders and authority to give orders depend on his eligibility is not only wrong because of the de facto officer doctrine, it’s also wrong legally – an officer’s authority is given by Congress. Thus, a second sort of PQ. Which, again, means that the only “relevant” defense in that instance would be to show that Congress was wrong when it appointed them and gave them that authority.
Either way, I can’t see any court – and particularly a military court – going there.
We can go round and round with all the high speed legal jargon till we’re blue in the face, and that’s exactly what the Communist Hussein supporters game plan is. We can cut to the chase so that any layman can understand it. Hussein Sr was a Kenyan citizen. That is a proven fact. Therefore Hussein Jr is nullified from holding the office of President of the USA. All you have to do to put this into context is ask any true patriot, “would u rather show ur birth certificate or give me $3Mil??? Duh!!!!
Norbrook, you aren’t comparing apples to apples. Its obvious you are a Hussein supporter. Nevertheless, the CEO of BP didn’t give the guy orders to committ arson, but if he did, then he should have to answer up to it. In the Lakin case, all military orders ultimately are handed down by the highest level of the chain of command. In this case that is the dreaded Hussein himself. If I were in Judge Linds’ shoes, I would allow for discovery and put an end to the whole charade. We all know what would come from the discovery phase. I would then set Lakin free and have Hussein arrested and jailed on fraud and conspiracy charges. 25 years in Leavenworth for Hussein sounds pretty darn good for us True Patriots. Get you some of that!!