There is now a weird disconnect between the announced legal strategy of LTC Lakin’s lawyers and the communications strategy of his supporters.  As we discussed here, LTC Lakin’s new counsel –Neal Puckett — has eschewed a birther defense.  It also appears that LTC Lakin’s new defense team allowed the 20-day deadline to pass without filing a writ appeal challenging ACCA’s denial of the birther petition for extraordinary relief filed by LTC Lakin’s previous counsel, Paul Rolf Jensen.  But LTC Lakin’s brother Dr. Greg Lakin — a doctor and lawyer — apparently didn’t get the memo, as reflected by his comments on this radio interview.  Nor, apparently, has that memo about LTC Lakin’s new defense strategy reached safeguardourconstitution.com, which served as LTC Lakin’s official website and claims to still be involved in his communication strategy.  That website’s latest gambit is to call on LTC Lakin’s supporters to lobby Congress to thwart his prosecution in what it has dubbed “Terry Lakin Action Week.” 

LTC Lakin doesn’t seem to have much leverage in seeking a PTA that could limit some portion of a potential sentence.  As I’ve discussed before, his court-martial panel will probably be made up of bird colonels, and it’s probably worth something to the CA to agree to a deal for a judge-alone trial, since that would spare those colonels from having to be away from their normal duties for a couple of days.  But I would think that whatever chance there might be of obtaining a PTA will be diminished by “Terry Lakin Action Week,” which suggests that LTC Lakin has not abandoned his grossly insubordinate effort to make the duly certified and sworn President of the United States prove his bona fides to LTC Lakin’s satisfaction.  The prosecution surely would never seek to introduce something like “Terry Lakin Action Week” into evidence in aggravation — the prosecution has thus far been commendably conservative in the charges it has brought and its response to potential pitfalls.  But moves like “Terry Lakin Action Week” can — and probably will — influence the convening authority’s highly discretionary decision whether to accept any pretrial agreement that LTC Lakin and his counsel may choose to put on the table.

Here’s the game plan as announced by safeguardourconstitution.com:

On December 14, Army officer LTC Terry Lakin will be appearing in a courtroom at Fort Meade, Maryland- for the court-martial he invited by disobeying military orders in pursuit of the truth about Obama’s Constitutional eligibility under Article II, Section 1, requiring the President and Commander-in-Chief be a “natural born” citizen. LTC Lakin tried many times, without success, through his chains of command, to seek an answer to his nagging question- is Barack Obama legally, Constitutionally eligible, to serve as head of the U.S. Armed Forces?

With Congress back for the “lame duck” session we are urging Terry’s advocates to make calls to Capitol Hill- and to newly elected Members of Congress- during the week of Nov 15-19 to urge them to speak up for LTC Lakin and to provide feedback on the response to those calls. Remember that the U.S. Congress works for you- and that Members have a certain obligation to respond to constituent inquiries- but please be polite and respectful in advancing your point of view.

The Capitol Switchboard is 202/225-3121 and the Senate is 202/224-3121. You may reach any House or Senate office through these telephone numbers. The internet addresses are as follows: www.house.gov and www.senate.gov

The webiste offers these talking points:

  • Ask to speak to the legislative assistant who handles defense issues. If unavailable, ask to speak to the legislative staffer who handles the Judiciary Committee and Constitutional issues. Avoid speaking to the receptionist, as this person generally is a junior staffer and does not have legislative responsibilities. Please be sure to take down the name of the Congressional staffer and keep notes on the content of your conversation.
  • Ask if the Congressman or Senator believes that a decorated military officer should face jail time for upholding his sworn oath to the Constitution- and for seeking assurance that his military orders were legal– issued by a lawful Commander-in-Chief, when a copy of Barack Obama’s original birth certificate would cost less than $20 to obtain?
    • (Keep in mind that the Obama online Certification of Live Birth which appeared on some websites in 2008 is NOT an original birth certificate- it is a laser-printed, computer generated document- the original 1961 birth filing– which produced the two newspapers announcements in Hawaiian papers, remains concealed at Barack Obama’s directive). Also remember that the State of Hawaii has never claimed that the Certification of Live Birth is a state-issued document. Realize most Members of Congress who’ve answered letters on the eligibility issue believe Obama was “natural born” because they believed he was born in Hawaii- therefore, press them on this next question:
    • Why has no hospital in Hawaiil claimed to be the birthplace of Obama and why were two hospital names given out to the press (first, Queens Medical Center and then Kapi’olani)?- and why has no doctor or midwife’s name been identified by any Obama spokesman? What possible explanation could be there be for the lack of a hospital name or attending physician- two standard data points common to original birth certificates?
  • Finally, ask if the Congressman is willing to speak up to and demand Obama act to avert a possible jail sentence for LTC Lakin for staying true to his sworn oath and for doing his duty- to uphold the U.S. Constitution. (and remember, ALL Members of Congress also take an oath to support the U.S. Constitution).

302 Responses to “LTC Lakin’s supporters sponsor “Terry Lakin Action Week””

  1. SueDB says:

    As evidenced by previous conduct…the Lakinista website doesn’t nor these folks seem to care about what is about to happen to LTC Lakin on the 14th. All I have seen the safeguardourconstitution.com folks interested in is money…as long as they can trumpet crap, they can rake in the rube droppings. Somewhere Mr. Puckett said something about not everything appears as it should…yet.

  2. Christopher Mathews says:

    Ask if the Congressman or Senator believes that a decorated military officer should face jail time for upholding his sworn oath to the Constitution- and for seeking assurance that his military orders were legal …

    LTC Lakin had such assurance. It just didn’t meet with his personal satisfaction — hence, his decision to “invite” the court-martial he thought he could use as a mechanism to force discovery. I suspect the same genius behind that strategy is the one who dreamed up this one. I’d be willing to bet that he goes by the name “Terry.”

    The likelihood that the accused can use the “my lawyer made me do it” defense is looking increasingly remote. What are the odds that one or more members of Congress show up to demand a halt to the proceedings?

  3. sg says:

    Five will get you ten that it’s either Michele Bachmann or Allen West.

    This circus isn’t going to end soon, is it? They’ll keep it up (particularly the fund raising) right through the appeals process, won’t they?

  4. BigGuy says:

    “But moves like “Terry Lakin Action Week” can — and probably will — influence the convening authority’s highly discretionary decision whether to accept any pretrial agreement that LTC Lakin and his counsel may choose to put on the table.”
    __

    Do we have any reason to believe that the CA is aware of these shenanigans?

  5. Christopher Mathews says:

    Having prosecuted cases that garnered far less media attention than this one, I would expect the CA to be fully aware of everything that is going on.

  6. sg says:

    With the Birthers’ propensity to burn up phone lines and in-boxes of the people involved? Yeah. He knew about six minutes after that was originally posted, and if they didn’t actually do that, then he knows by now because somebody did call a Congresscritter’s staffer, like the website said to, who would’ve called the Army’s Legislative Liaison Office…

  7. 1% Silver Nitrate says:

    The APF webpage has a long list of phone numbers & e-mail addresses for newly elected members of the House & Senate. An outfit called the Tea Party Patriots has already PO-ed a swath of sympathetic members-elect by publishing their personal cell phone & e-mail addresses, resulting in a surge of calls that “melted their voicemail inboxes,” in the words of blogger Dave Weigel. I haven’t checked, does anybody know if this is the same list? If so, the birther community is about to get on the wrong side of a bunch of folks in Congress who might be willing to lend them a sympathetic ear.

  8. mikeyes says:

    Those new members will have no effect on this trial since they don’t take office until next year. By then the trial will be over (I assume) and LTC Lakin old news with zero potential to raise money for the cause (the cause being greater wealth for certain people.)

  9. Norbrook says:

    I’m fairly certain if one of them does show up to demand a halt to the proceedings, they’re going to get shown the door, and probably get a quick censure from their leadership. Messing in judicial matters like this isn’t calculated to earn friends but it does influence enemies.

  10. BigGuy says:

    Isn’t it possible for Lakin to say something like, “I cannot tell a lie, I still believe the president to be ineligible. But I was entirely wrong to think that would excuse my disobedience, and I throw myself on the mercy of the court.”?

    Could he in this way appease his birther buddies without jeopardizing his PTA?

  11. Christopher Mathews says:

    Good catch, Silver.

    I recall reading that the Tea Party list included some folks who weren’t actually elected this month: for example David Harmer, the GOP candidate who lost to my old congressman, Jerry McNerney, in California’s 11th Congressional District. His name appears on the Lakin supporters’ list, too … which leads me to think the Lakin list came from the Tea Partiers, or that both lists came from the same third party source.

  12. Christopher Mathews says:

    Is there any evidence to suggest LTC Lakin can avoid conveying an air of self-righteousness for long enough to make that presentation?

    To date, he has taken the position that he is a patriot for refusing to obey his orders — which by implication would mean that those who obey their orders are not patriots (or at least, not as patriotic as he). That’s pretty tough to square with the approach you suggest.

    I’m not saying it couldn’t in theory be done; I’m just not sure Lakin is capable of pulling it off.

    (As for whether he can get a PTA — I wouldn’t count on it).

  13. Steve Schulin says:

    Lt. Col. Lakin’s question of whether Barack Obama is eligible to serve as President is a reasonable one. Multitudes of Americans knew of the affadavits filed with US Supreme Court in January 2009, attesting that Obama’s paternal step-grandmother said she was present in the hospital room when Obama was born in Mombasa. That not one of our elected Representatives or Senators upheld their oath to defend the Constitution on the day when the Electoral College votes were counted in no way diminishes Lakin’s responsibility to uphold his oath. I very much admire Lt. Col. Lakin. It’s a poor reflection on our current generation of general officers that they are not doing what Lt. Col. Lakin has done.

    The poster Christopher Matthews suggests that the conclusion that Lakin is patriotic implies that those who don’t act similarly are not. I don’t think that’s a reasonable analysis. My criticism of the general officers above, for example, in no way questions their patriotism.

  14. BigGuy says:

    Of course losing the smug attitude would have to be part of any attempt to show contrition, and I think you’re right about how difficult that would be for him.

    But my question was a little different. If he can be believably repentant about the crimes, can he at the same time argue that his birtherism is simply a statement of his beliefs that should not be held against him?

  15. BigGuy says:

    Are you speaking of the conversation which sounds like Sarah Obama is speaking about being present at the President’s birth, but only in the version of the recording that has been deceptively edited? It seems to me that most Americans are unaware of it, but of those who are, most know it’s a scam.

  16. Dwight Sullivan says:

    There’s a word for general officers attempting to supplant civilian authority.

  17. Norbrook says:

    Are you speaking of the conversation which sounds like Sarah Obama is speaking about being present at the President’s birth, but only in the version of the recording that has been deceptively edited?

    Yes, that one. The one where the full tape shows very clearly that the questioner was trying to get her to say that, and she very clearly denies that she was a witness or that President Obama was born in Kenya. The “multitudes” are a small group of birthers who cobbled together something.

  18. Steve Schulin says:

    I’m speaking of the sworn affadavits by participants in the conversation. They were filed with U.S. Supreme Court by attorney Phil Berg, who happens to be a Democrat — a former county chairman of Pennsylvania Democratic Party — and a former Deputy Attorney General of Pennsylvania.

    I hope that the issues BigGuy and Norbrook raise can be hashed out in court. The sooner the better. This eligibility matter is a constitutional crisis.

  19. soonergrunt says:

    How is it a poor reflection on our current generation of general officers that they are not committing a coup de etat or a mutiny?

  20. BigGuy says:

    Both versions of the recording are available online, so it’s a no-brainer for anyone to determine what actually transpired both during the conversation and in its aftermath, when some tried to lie about its significance.

    Of course, you’re still free to try to get the affidavits admitted in some court case or other, but all efforts so far have failed, and I’m not sure how much more trouble you want to go to over evidence that’s so obviously bogus.

  21. John O'Connor says:

    You need two witnesses.

  22. John O'Connor says:

    Lots of CAs don’t really trust their lawyers, thinking that they are part of a JAG club with no interest in the realities and needs of good order & discipline. Consequently, trial counsel can sometimes burnish their credentials with the CA by making it a point to push for the hard line when that’s the right thing to do. This is the type of classic case where I’d be telling the CA not to deal it, that Lakin can either plead without a deal or go to trial. I think CAs who don’t like skulkers are pretty inclined toward that line of thought.

  23. Norbrook says:

    Berg is an idiot, whose case was thrown out because he lacked standing. Even more to the point, he had unproven provenance on any of those “documents,” and his “evidence” was later shown to be a blatant misrepresentation of fact, along with using an “expert” who was shown to be anything but an expert. He then tried to appeal it ending up with a precedential opinion from the 3rd Circuit:

    That argument is frivolous. Berg’s final claim that the District Court violated his due process rights by dismissing his case is equally frivolous.

    “Absent Article III standing, a federal court does not have subject matter jurisdiction to address a plaintiff’s claims, and they must be dismissed.”[6] Taliaferro, 458 F.3d at 188.

    6 Berg’s arguments that the District Court ignored some of his voluminous motions and other pleadings not only suffer from fatal defects in their reasoning, but are irrelevant. If a District Court does not have subject matter jurisdiction, it must dismiss.

    The only fun thing is that now he’s tied up in a legal battle against the other nut birther, Orly Taitz.

  24. Capt. Obvious says:

    The part of the tape where Sarah Obama says our President was born in America:

    MCRAE: OK I’m sorry. I, I thought she said she was present when he was born. I was—

    TRANSLATOR OGOMBE (sounding exasperated): No, no! The, the woman was not present. She was uh not, a what–you see, she was here in Kenya, and Obama was born in America. That is, that’s obvious.

    MCRAE: OK.

    TRANSLATOR OGOMBE: Because, because the grandmother was married here in Kenya, and Obama was born in America, oh yeah, so his son, the little Obama, was marrying, was marrying, in America, in United States.

    MCRAE: Oh, OK, fine. I mean, I–I just, I misunderstood what she was saying. I thought you said she was present when he was born.

    TRANSLATOR OGOMBE: No, not present there. The present with me here was tonight. Not present so she can leave. No she was here in Kenya while he, uh, her son, the little Obama, was marrying in America. And, uh, he be present if it–

    WOMAN’S VOICE (background): It was in Hawaii.

    TRANSLATOR OGOMBE: –was in America there, why are they for, they go, they go, they go to some place, then the present isn’t here sir, he was born there in America.

    Link to the full audio transcript (But I don’t expect a hardcore birther with obvious confirmation bias to listen to the truth.) :
    http://www.obamaconspiracy.org/wp-content/uploads/2008/12/8167169.wma

    Now, ask yourself why self-appointed, Anabaptist “bishop” and street preacher Ron McRae conveniently left that part of the tape out and instead circulated an edited version which only included a confusion in translation over whether Sarah was referring to the birth of Obama Jr. or Sr.?

  25. Christopher Mathews says:

    Sorry, BigGuy, I wasn’t trying to diss your question.

    Yes, LTC Lakin could maintain that the President is ineligible and still plead guilty. I just don’t think he can do it in a way that’s going to garner him the mercy of the court you mentioned.

  26. Christopher Mathews says:

    Steve, I don’t think it’s a particularly reasonable question; but putting that aside, the problem for LTC Lakin is that as a matter of law, the eligibility of the President or lack thereof isn’t a defense to the charged offenses.

    As for your criticism of our current generation of officers: you may very well not see Lakin’s decision to disobey his orders as evidence of superior patriotism, and if so, I would agree with you. Lakin, however, by his own repeated assertion, does cast the decision in terms of patriotism.

  27. Steve Schulin says:

    Dear Capt Obvious: I too urge folks to listen to the full recording, and to read the affadavits filed with the Supreme Court. It sounded to me like “Translator Ogombe” was doing more than translating — he intervened after grandmother appeared to adamantly state, twice, that she was present at Barack Obama’s birth in Mombasa.

    Your claim that Translator Ogombe’s take on the matter is definitive seems unreasonable to me. I again stress my hope that such issues be fully explored in court. In the affadavit filed with the U.S. Supreme Court, Bishop Ron McRae discusses Vatalis Alec Ogombe’s comments: “When Mr. Ogombe attempted to counter Sarah Obama’s clear responses to the question, verifying the birth of Senator Barack Obama in Kenya, I asked Mr. Ogombe, how she could be present at Barack Obama’s birth if the Senator was born in Hawaii, but Ogombe would not answer the question, instead he repeatedly tried to insert that, ‘No, No, No, He was born in the United States!’ But during the conversation, Ms. Sarah Hussein Obama never changed her reply that she was indeed present when Senator Barack Obama was born in Kenya. A transcript of this taped public interview is attached as Exhibit ‘6’”.

    Bishop McRae’s affadavit also notes that Mr. Ogombe is the step grandson of Sarah Obama and the cousin of Barack Obama. It seems misleading just to refer to him as “Translator Ogombe” as if he was some independent participant.

    The Constitution of the United States is clear in stating that only a natural born citizen is eligible to serve as President. At this point, there’s not even a prima facie case that Barack Obama meets that requirement.

  28. BigGuy says:

    “At this point, there’s not even a prima facie case that Barack Obama meets that requirement.”
    __

    It’s a shame that not a single member of either house of Congress could be persuaded to object on that basis to the vote of the Electoral College.

    But once the vote was taken, the die was cast. Yes, the Constitution requires the President to be a Natural Born Citizen. But the Constitution does not require the President to persuade each and every U.S. citizen of that fact to his or her satisfaction. There is no requirement that he or she dispel the last doubt of the last doubter.

  29. Steve Schulin says:

    Dear soonergrunt: Defending the Constitution is not a coup de etat or a mutiny. The only possible coup de etat involved is if it turns out that Obama is not eligible.

    Dear Christopher Mathews: The Judge’s opinion seemed to express a notion that even if a usurper is serving as Commander-in-Chief, a deployment order is valid. I think a strong case can be made to the contrary, and perhaps we’ll see more on this in an appeal. As to the patriotism aspect, what’s wrong with Lt. Col. Lakin describing his motive?

    If Barack Obama cared about the Constitution, why wouldn’t he bend over backwards to show he’s eligible to serve as President? I don’t pretend to know whether he’s a natural born citizen or not, but whatever reason he has for stonewalling doesn’t seem worth the price to our nation.

  30. Steve Schulin says:

    Dear Big Guy: It is indeed a shame that not one Member of Congress raised so much as a point of information on that day the Electoral College votes were counted. But the question of whether Barack Obama is a natural born citizen is a factual one, and our system of checks and balances does provide for answering the question even if no member of Congress defended the Constitution that day. Every day that passes gives more people “standing” to question the validity of laws signed by Barack Obama. Perhaps one such case will come before a judge who feels the same obligation as Lt. Col. Lakin to defend the Constitution.

  31. soonergrunt says:

    “This eligibility matter is a constitutional crisis.”
    But it really isn’t any such thing. Nobody who is a remotely credible authority on the subject would agree with you on that.
    Obama was born in the US, to a US citizen. Even if he wasn’t, all of the forms have been followed and he was duly sworn in as President, and so all otherwise lawful orders and acts done by the office of the President have full force they would always have under the de facto officer doctrine, but even if NONE of the above is true (and ALL of it is true) it is utterly irrelevant to the questions of whether or not LTC Lakin was ordered to do lawful things by people he knew to be superior to him, people who had every lawful responsibility and right to order him to do lawful things and to ensure that he complied with those orders.
    The judge has ruled that the orders he was given were lawful. That’s the end of that discussion, full stop. The part about whether or not he actually obeyed those orders won’t take long.
    “Were you his Commander?”
    “Yes.”
    “Did you order him to do things and go places?”
    “Yes.”
    “Did he do things and go places as you ordered him to do?”
    “No.”
    Those are really the only things at issue here. I can see why you, a civilian, can’t understand this, but that’s really all there is to it. The others round these parts will be more than happy (or maybe not cause it might be tiresome to keep repeating at this point) to explain to you that the military justice system is primarily about reinforcing good order and discipline, and not about second-guessing the results of lawful elections.
    As far as the idea of yours that some general should take Lakin’s lead, you just failed fifth grade civics.

  32. gorefan says:

    Actually you should listen to the tape while reading the transcript of the conversation at the same time.

    http://www.obamaconspiracy.org/wp-content/uploads/2009/03/obamatranscriptlulu109.pdf

    http://www.obamaconspiracy.org/wp-content/uploads/2008/12/8167169.wma

    From Bishop McRae’s affadavit, “I asked Mr. Ogombe, how she could be present at Barack Obama’s birth if the Senator was born in Hawaii, but Ogombe would not answer the question, instead he repeatedly tried to insert that, ‘No, No, No, He was born in the United States!’”

    Actually this is not true. He never asks that question and Mr. Ogombe always response that she was not present.

    TRANSLATOR OGOMBE (to McRae): Sir, she says he was born in Hawaii.
    MCRAE: OK.
    TRANSLATOR OGOMBE: Yeah, in 1960 this was Hawaii, where his father, his father was also marrying there. This was Hawaii.
    MCRAE: OK.
    TRANSLATOR OGOMBE: Yeah.
    MCRAE: Was, was, was Mrs. Obama, was sh–was she present? Was, was Mrs. Obama, see I thought you said she was present. Was she, was, was she, was she able to see him being, being born in, in Hawaii?
    TRANSLATOR OGOMBE: (pause, silence) Hoh? (pause) Uh, yeah would you please pronounce?
    MCRAE: OK I’m sorry. I, I thought she said she was present when he was born. I was—
    TRANSLATOR OGOMBE (sounding exasperated): No, no! The, the woman was not present. She was uh not, a what–you see, she was here in Kenya, and Obama was born in America. That is, that’s obvious.
    MCRAE: OK.
    TRANSLATOR OGOMBE: Because, because the grandmother was married here in Kenya, and Obama was born in America, oh yeah, so his son, the
    little Obama, was marrying, was marrying, in America, in United States.
    MCRAE: Oh, OK, fine. I mean, I–I just, I misunderstood what she was saying. I thought you said she was present when he was born.
    TRANSLATOR OGOMBE: No, not present there. The present with me here was tonight. Not present so she can leave. No she was here in Kenya while
    he, uh, her son, the little Obama, was marrying in America. And, uh, he be present if it–
    WOMAN’S VOICE (background): It was in Hawaii.
    TRANSLATOR OGOMBE: –was in America there, why are they for, they go, they go, they go to some place, then the present isn’t here sir, he was born there in America.
    MCRAE: OK. Well tell, tell her I would like to come by and see her when I am there in December. I would love to, uh, meet her personally and pray with her.
    TRANSLATOR OGOMBE: (short pause) When will you soon be sending? (slight pause) Yes, when you come in December–
    MCRAE: OK.

    He was a party to the conversation and has a tape of it and he still cannot get it right! Amazing

  33. Steve Schulin says:

    Dear soonergrunt: Have you seen the affadavit submitted by retired Air Force General McInerney? He doesn’t use the phrase ‘Constitutional crisis’, but he does refer to “a break in the chain of command of such magnitude that its significance can scarcely be imagined.” Dr. Alan Keyes, who served in the Reagan administration, starting as staffer for National Security Council, has used the same language as I do here (he and I were amongst the plaintiffs in a federal suit filed shortly before the 2008 election, seeking to allow Electors to have access to information required to determine the eligibility of the candidates before their vote).

    As to each soldier’s responsibility to determine whether an order is lawful, Gen. McInerney put it like this: “In refusing to obey orders because of his doubts as to their legality, LTC Lakin has acted exactly as proper training dictates. That training mandates that he determine in his own conscience that an order is legal before obeying it…”

    Gen. McInerney gave a practical example of the seriousness of this matter: “… I recall commanding forces that were equipped with nuclear weapons. In my command capacity I was responsible that personnel with access to these weapons had an unwavering and absolute confidence in the unified chain of command, because such confidence was absolutely essential– vital– in the event the use of those weapons was authorized. I cannot overstate how imperative it is to train such personnel to have confidence in the unified chain of command. Today, because of the widespread and legitimate concerns that the President is constitutionally ineligible to hold office, I fear what would happen should such a crisis occur today.”

  34. Steve Schulin says:

    Dear gorefan: McRae’s characterization of his conversation with Ogombe doesn’t change what grandmother said. This isn’t about McRae. It isn’t even about Obama. It’s about the Constitution. If Obama isn’t serving on the basis of the Constitution, then on what basis is he serving?

  35. Christopher Mathews says:

    Steve, I want to be the first to welcome you to CAAFlog; I feel remiss in not doing so before.

    You may want to peruse some of the 43 prior discussion threads concerning LTC Lakin’s case, in which the points you raise here have been addressed, often at great length. These threads can be found under the tag “LTC Lakin.”

    If you do, you’ll note that many of the commentors here have fairly extensive experience in military law, and based on that experience predicted the trajectory of this case — including Judge Lind’s rulings — months ago. I bring this up because you appear to be coming to this discussion rather late and your arguments about the lawfulness of the orders LTC Lakin disobeyed, standing, discovery, a soldier’s duty, and so on are not new.

    You’re by all means welcome to participate here, but coming up to speed on these prior discussions may make your stay more meaningful.

  36. Capt. Obvious says:

    “The Constitution of the United States is clear in stating that only a natural born citizen is eligible to serve as President. At this point, there’s not even a prima facie case that Barack Obama meets that requirement.”

    What a steaming pile of birther crap! I will never expect a hardcore birther with obvious confirmation bias to comprehend the simple truth nor possess very basic common sense.

    “This isn’t about McRae. It isn’t even about Obama. It’s about the Constitution.”

    It was in a birther’s earlier posts. Now it’s not! It’s magic, folks!
    Move those goalposts! Move ’em! Move ’em! So predictable!

    I trust the officials of the state of Hawaii and a legally valid COLB under the Federal Rules of Evidence over any delusional, bigoted, politically and hate driven birther cowardly hiding behind the Constitution and a ridiculous pretension of patriotism while wielding nothing more than baseless speculation and the predictable propensity to constantly move the goalposts. THAT shows no respect for U.S. law.

    It’s amazing how a random birther can pop up suddenly and gleefully seem to proclaim to have some never heard birther smoking gun that amounts to no more than the same trite, debunked, entirely irrelevant talking points. The WND propaganda machine must still be snagging them.

    “The only possible coup de etat involved is if it turns out that Obama is not eligible.”

    That’s a truly vile and perverse birther fantasy with zero regard for the U.S. Constitution.

  37. Steve Schulin says:

    Thanks, Christopher. A link on Twitter to this thread is what brought me here.

  38. Steve Schulin says:

    Capt Obvious: You’re the bigot in this exchange, bub. As for the “Hawaii officials”, whom besides health dept director are you believing? Your claim of moving goalposts re: McRae is an example of your own jumping to conclusions.

  39. RY says:

    I hope TC is prepared to rebut such a tactic. It would be a bit of a gamble by Lakin’s defense to play this defense but if TC was not prepared to contest it, it might work well before members who are generally unfamiliar with the pre-trial shenanigans.

  40. John O'Connor says:

    What has Captain Obvious said that could even remotely be construed as bigoted. That comment is just stupid.

  41. KyAtty says:

    “It’s a poor reflection on our current generation of general officers that they are not doing what Lt. Col. Lakin has done.”

    Yes, of course, at a time when the US military is embroiled in two wars, our generals should abandon their troops in the field in order to second guess the results of the presidential election because of some lunatic conspiracy theory. Fortunately, America’s generals are true patriots and know that their duty is to defend the nation, and not to embroil themselves in domestic politics.

  42. mikeyes says:

    Steve,

    You need to heed what Christopher Matthews says, read the other threads. President Obama’s eligibility is not an issue in this court martial, whether LTC Lakin followed an order given to him by a superior officer (who is a Medal of Honor winner, by the way) is.

    You also need to read those parts of the Constitution that empower the UCMJ, Article I courts, and civilian control of the military. (Hint: Article I, Section 8)

    There is no chain of command issue either. Congress has passed laws that clearly state who has the authority to give orders and that authority is from Congress, not the President. Every officer has authority from Congress including military officers. Military officers and enlisted have specific obligations which include obeying all lawful orders. A lawful order is one that does not ask you to commit a crime. Getting on a plane to Kentucky or visiting your commander is not an unlawful order.

    Title 10 and other laws regarding the military are set up so the military can continue in their mission even if their superior officers are not available (read dead, for example.) One of the flaws of the old Soviet system was that they had the kind of chain of command that you describe – if a superior officer was not on line, everything stopped. This was a fatal flaw in their system.

    The logical outcome of your line of thinking is that because the CINC is not eligible, no order given is legal hence the military should stop operating. While this may be good for the budget, it is tantamount to giving aid and comfort to the enemy, also known as treason in the Constitution. (“Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort.”)

  43. Steve Schulin says:

    KyAtty: It’s not second-guessing an election. The question of eligibility has a factual answer, and the requirements are spelled out in the Constitution. As to how general officers can defend the Constitution, I think your universe of postulated actions is much too narrow. Lakin spent a year pursuing resolution through chain of command before concluding that a different tack was warranted.

  44. sg says:

    Steve,
    If LTC Lakin honestly thought that all orders were invalid because the CinC isn’t the lawful CinC, then why did he continue to accept a paycheck? The order to pay LTC Lakin would’ve been something unlawful, and therefore LTC Lakin would’ve been committing fraud by accepting pay to which he knew or believed that he was not entitled. Did LTC Lakin give an order to a subordinate at any point during the Obama presidency, believing that he himself had no lawful authority to do so? Would LTC Lakin have accepted promotion to full Colonel, as he was selected for by a promotion board that sat during the Obama presidency, believing that such a board didn’t have lawful authority to select him for promotion, and that the Army didn’t have lawful authority to issue a promotion order? If he did any of those things after 20 January 2008, he has no moral or legal leg to stand on in contesting the lawfulness of an order to transfer to Fort Campbell or to present himself to his Commanding Officer. NO Court Martial will accept the premise that some orders are lawful and others are unlawful because the authority for those orders may be questioned by one guy. Since the order to go to Fort Campbell and the order to report to his Commander are not, in themselves, unlawful orders (the court has determined this to be the case) then there really is no leg for LTC Lakin to stand upon.
    You keep trying to get people here to say that the President of the United States is not the President. You keep missing the point that for the purposes of the Lakin case, and the interest in which these military lawyers have, the status of the President, while not really in doubt on any level, is utterly irrelevant to LTC Lakin’s situation. Barrack Obama could be revealed this afternoon to be not just an illegal alien, but a space alien here to execute Plan 9 From Outer Space and Terry Lakin would still be going down hard for breaking the law. About the only way LTC Lakin avoids dismissal and confinement is to throw himself on the mercy of the Court, and admit that he was wrong. It will not help his case for him or for anyone acting on his behalf to claim that he was doing it because he is a patriot, the implication being that those who have not done as he has are not patriots. Perhaps somebody could carry that claim off, but neither Terry Lakin, who comes off as massively egotistic nor his supporters who mostly come off as unhinged racists and loons, can.
    To buy that claim (which the defense hasn’t made, btw) is to buy the premise that Lakin believes that the doctor who deployed in Lakin’s place on short notice is not a patriot. It is to buy the premise that Lakin believes that the Judge and the panel members are not patriots. That will not likely work for him. Especially once the trial counsel points out that by Lakin’s own lights, he’s only patriotic enough to disobey orders that inconvenience him or keep him out of harm’s way.

  45. Black Lion says:

    SG, awesome response….Unfortunately your logic and common sense will escape the birther mind because they are suffering from a case of confirmation bias. In their mind Obama is guilty and not the President, so whatever evidence and logic proves otherwise is not vaild….

  46. Capt. Obvious says:

    Thanks, John O’Connor.

    Birthers seem to have a major reading comprehension problem.

    It’s a vicious combination of cognitive dissonance and confirmation bias. I don’t expect the hardcore birther to understand as it has been demonstrated repeatedly on these threads. Now back to the Argument Clinic.

    “Hawaii officials” – Dr. Chiyome Leinaala Fukino, M.D., the Director of the Hawaii State Department of Health and Dr. Alvin T. Onaka, the Hawaii State Registrar and Head of the Office of Health Status Monitoring (OSHM).

    Duh.

    My pointing out a birther moving the goalposts usually results in an clear illustration of a birther’s inability to comprehend a simple and informal logically fallacious argument. (Birther: “the step-grandmother said he was born in Kenya.” Sane people blow holes into that prove its wrong. Birther: O.K., forget that! It’s about the Constitution!” What’s next Pakistan in 1981, de Vattel or Indonesia? How about name of birth hospital? Go for it.

    “The only possible coup de etat involved is if it turns out that Obama is not eligible.”

    Promoting sedition is hardly patriotic or respectful of U.S. law or the Constitution.

    ‘But the question of whether Barack Obama is a natural born citizen is a factual one”

    No, it’s your irrelevant, erroneous opinion and clearly not based on U.S. history or law.

    “Every day that passes gives more people “standing” to question the validity of laws signed by Barack Obama. ”

    Where did you pass the bar?
    More birther b.s. and another amateur law expert. Pathetic.

  47. Richard The Lion Hearted says:

    In the affadavit filed with the U.S. Supreme Court, Bishop Ron McRae discusses Vatalis Alec Ogombe’s comments:

    Steve, I am still wondering why this is discussed after full two years by now. Even assuming for the sake of the discussion that Phil Berg would have had standing in the first place, the affidavit of McRae is of no value altogether as it only contains third party hearsay.

    Berg should have taken a court approved translator and travelled to Kenya, picked up an US embassy employee and visited the person purported to be “Grandma Obama”. Once the embassy employee had made a positive identification of Mrs Obama Berg could have performed a valid interview and have a transscript taken and translated.

    Please consult the court hearing transcripts of Judge Land in Georgia, who told Orly Taitz in no uncertain words who has the responsibility to verify so called ‘Kenyan Birth Certificates’ ! It is not up to the courts to order the government of the USA to do such things overseas.

  48. Steve Schulin says:

    Christopher’s comment prompted me to start reading other threads — I started with the oldest and have gotten through to April 14, 2010 thread. I’ve observed much more heat than light so far in those old threads, but the folks on this thread seem willing to discuss substantively, so I remain hopeful.

    I see at http://www.armfor.uscourts.gov/digest/IIIA16.htm that “the determination whether lawfulness of an order to deploy is a political question and thus nonjusticiable is reviewed on a de novo standard” (United States v. New, 55 MJ 95). How does that fit into your assessment that [alleged] President Obama’s eligibility is not an issue in this court martial?

    I don’t see how the points I’ve made could possibly be construed as saying the military should stop operating. And if they can so be construed, doesn’t that tend to buttress my questioning observation that, if Barack Obama cared about the Constitution, why wouldn’t he bend over backwards to show he’s eligible to serve as President? Every federal employee takes the oath to defend the Constitution. No enemy could take comfort in knowing that Americans take that oath seriously.

  49. Richard The Lion Hearted says:

    As to each soldier’s responsibility to determine whether an order is lawful, Gen. McInerney put it like this:

    Steve, McInerney is obviously trying to push the Birther case by hiding the proper meaning of an illegal military command.

    An illegal military command has nothing to do with the chain of command, but is about the effect of the command in the theatre of war, and is described in detail by the Geneva Convention.

    As such eg it is illegal for a soldier to torture and kill enemies that have given up and are already in the hand of the own army. Another example is the case of attacking the civilian population with intent, eg taking retaliation for whatever reason.

  50. BigGuy says:

    Steve Schulin: “the question of whether Barack Obama is a natural born citizen is a factual one…”

    Judge Lind: “For purposes of ruling on this motion, the Court takes judicial notice of the following adjudicative facts under MRE 201: President Barrack Obama is the 44th President of the United States.”

    Neal Puckett: “She was right on the facts and right on the law.”

  51. Steve Schulin says:

    My dictionary defines bigot as “one obstinately or intolerantly devoted to his own opinions and prejudices”. His rant reflects such devotion from start to finish.

  52. gorefan says:

    Steve Schulin – please show specifically on the tape where “Mrs, Obama” says that she was present for the birth.

    TRANSLATOR OGOMBE: Yes, they say that yes she was.

    “they say that yes she was”

    Are there more then two Mrs. Obama’s talking?

    Where are the actual words spoken by Mrs. Obama (in any language) not the words of the Mr. Ogombe?

    Notice the confusion between McRae, Brother Tom, and Mr. Ogumbe.

    MCRAE: Was she present when he was born in Kenya?

    BROTHER TOM: I think, uh, uh I think–

    VOICE (in background): (unintelligible)

    BROTHER TOM (in background): He is asking her that, uh, he wants to know something that uh, was uh you, was they, was she present when, ah, he was born. Were they they there then?

    For all this tape shows, she might have said ‘yes, yes, she bought him a present.’

  53. Capt. Obvious says:

    “My dictionary defines bigot as “one obstinately or intolerantly devoted to his own opinions and prejudices”. His rant reflects such devotion from start to finish.

    Hypocrite.

  54. BigGuy says:

    ‘As for the “Hawaii officials”, whom besides health dept director are you believing?’
    __

    One of them is Linda Lingle, the Republican governor of Hawaii who campaigned heavily for John McCain in the 2008 presidential election. She said, “the president was, in fact, born at Kapi’olani Hospital in Honolulu, Hawaii.” (www.wnd.com/index.php?fa=PAGE.view&pageId=150125)

  55. BigGuy says:

    “…Berg could have performed a valid interview and have a transscript taken and translated.”
    __

    And, by the way, this is still possible. Sarah Onyango Obama lives in Nyang’oma Kogelo village, Kenya.

    With all the fund-raising that’s been done for purposes like posting “Where’s the Birth Certificate” billboards or mounting an invalid defense for LTC Lakin, you would think that going after a slam-dunk piece of evidence like a properly authenticated affidavit would be a high priority.

    It really is remarkable that, over two years later, there’s been absolutely no refinement of the supposed evidence that the birthers have trumpeted. Orly’s still ranting about raw SSAN data, others are still claiming that people born outside of Hawaii have COLBs issued by the State of Hawaii though no one has ever been able to show one, and this hearsay affidavit hasn’t been replaced with a valid one.

    And they wonder why even senior Republicans want no part of it.

  56. Steve Schulin says:

    Dear BigGuy: There are indeed a lot of folks who share the Judge’s opinion. Yet, only natural born citizens are eligible to serve as President. Saying that he’s President does not make him President, just as declaring how beautiful the Emperor’s clothes were did not make him clothed.

  57. BigGuy says:

    Yes, and one of the people who shares the judge’s opinion is Neal Puckett, LTC Lakin’s defense attorney. That seems to sound the death knell for the eligibility defense, don’t you think?

  58. gorefan says:

    Steve,
    “McRae’s characterization of his conversation with Ogombe doesn’t change what grandmother said.”

    Actually, it kinda does.

    You see McRae writes, “But during the conversation, Ms. Sarah Hussein Obama never changed her reply that she was indeed present when Senator Barack Obama was born in Kenya.”

    But from the transcript and tape,

    TRANSLATOR OGOMBE (to McRae): Sir, she says he was born in Hawaii.

    MCRAE: OK.

    Also, McRae writes, “but Ogombe would not answer the question” when in fact he did answer the question at least twice.

    MCRAE: Was, was, was Mrs. Obama, was sh–was she present? Was, was Mrs. Obama, see I thought you said she was present. Was she, was, was she,
    was she able to see him being, being born in, in Hawaii?

    TRANSLATOR OGOMBE: (pause, silence) Hoh? (pause) Uh, yeah would
    you please pronounce?

    MCRAE: OK I’m sorry. I, I thought she said she was present when he was born. I was—

    TRANSLATOR OGOMBE (sounding exasperated): No, no! The, the woman was not present. She was uh not, a what–you see, she was here in Kenya, and Obama was born in America. That is, that’s obvious.

    and

    MCRAE: Oh, OK, fine. I mean, I–I just, I misunderstood what she was saying. I thought you said she was present when he was born.

    TRANSLATOR OGOMBE: No, not present there. The present with me here was tonight. Not present so she can leave.31 No she was here in Kenya while he, uh, her son, the little Obama, was marrying in America. And, uh, he be present if it–

    WOMAN’S VOICE (background): It was in Hawaii.

    TRANSLATOR OGOMBE: –was in America there, why are they for, they go, they go, they go to some place, then the present isn’t here sir, he was born there in America.

    Gee, Steve after urging us “folks to listen to the full recording, and to read the affadavits filed with the Supreme Court.”, you are now telling us that “This isn’t about McRae. It isn’t even about Obama.”

    I agree, we can pretty much dismiss this tape as not being worth the powder it would take to blow it to hell.

  59. Christopher Mathews says:

    Steve, I’m glad you took a spin through the other threads.

    Regardless of how you perceive the heat-to-light ratio of the comments therein, I’m sure you noted that this case has hewed fairly closely to the path predicted long ago. The military justice issues involved are neither particularly novel nor difficult.

    What is difficult is the inability or unwillingness of LTC Lakin’s supporters to grasp the fact that their core assumption — that if the President is not validly in office, the orders of military officers are invalid and need not be obeyed — has no support in the law. No matter how important it may be politically to hash out the President’s eligibility, the question is irrelevant as a matter of law to the charges faced by LTC Lakin. And as Mr. Jensen learned — one hopes to his chagrin — the accused has no right to take discovery on an irrelevant matter.

    The notion that President Obama should “bend over backward” to prove his eligibility in order to forestall a shutdown of the military assumes the invalid premise that the orders of military officers are otherwise not valid. Since that’s not the case, there’s no need for such presidential gymnastics.

  60. Christopher Mathews says:

    That’s some pretty deft commentary there, guys. Well done.

  61. BigGuy says:

    @Steve Schulin — “Saying that he’s President does not make him President”
    __

    Well, if a judge saying he’s President doesn’t make him President, why are you pressing for the issue to be heard in court? Do you only respect judicial opinions when they agree with yours?

  62. Capt. Obvious says:

    @Steve Schulin — “Saying that he’s President does not make him President”
    __

    “Well, if a judge saying he’s President doesn’t make him President, why are you pressing for the issue to be heard in court? Do you only respect judicial opinions when they agree with yours?”

    That certainly sounds like someone obstinately or intolerantly devoted to his own opinions and prejudices.

  63. mikeyes says:

    Steve sez: “I don’t see how the points I’ve made could possibly be construed as saying the military should stop operating.”

    When you state that LTC Lakin has the right to question legal orders and that other officers should do the same thing, you are advocating mutiny and anarchy in the military. He has no such right and he has sworn an oath to honor that situation. Such an action is giving aid and comfort to the enemy as it paralyzes our ability to defend ourselves. Members of the military don’t play by the same rules as civilians. When a member is told to get on a plane to Kentucky or go to his CO’s office, he does so. These are legal orders. By disobeying them he puts himself in danger of a UCMJ action. In LTC Lakin’s case, a court martial.

    In case you haven’t noticed this is a military law blog whose regulars are former and active JAG lawyers and other vetrans. We have lived in the culture of the military and honor our oaths to defend and protect the Constitution. In fact there is a lot more in the Constitution regarding service in the military than there is about Presidential eligibility and part of this is adherence to the UCMJ, a Constitutionally mandated set of rules that all members follow. In addition there are several federal laws including Title 10 that give the authority to give orders to a number of specific persons in the military and civilian parts of the DOD including LTC Lakin’s CO. but all of this is laid out in the prior threads.

    I suspect that you are only trolling. It is obvious you are not a veteran and have no concept of what it is like to serve your country. Hell, half of us didn’t even vote for the President, but we know how the system works and find that anyone who is trying to subvert the military contemptible. We don’lt care about the eligibility question because it is not germane to this case. In fact all the birther stuff has done is to make sure that LTC Lakin has lost his job, one in which he was star until he decided to go this route. Now he will be lucky to retain his medical licenses. At least now he has competent lawyers who know about Article I courts and the military.

  64. Joey says:

    It’s kind of sad reading Steve Schulin’s comments as he attempts to defend the “Obama is ineligible” position with so little non-biased information at his disposal. I can see why folks are so impatient with him.
    He was obviously completely ignorant of the fact that the REPUBLICAN governor of Hawai’i has made the definitive statement on Obama’s birthplace in backing up his Certification of Live Birth. Here’s the relevant part of Governor Lingle’s statement in its entirety: “You know, during the campaign of 2008, I was actually in the mainland campaigning for Senator McCain. This issue kept coming up so much in the campaign, and again I think it’s one of those issues that is simply a distraction from the more critical issues that are facing the country. And so I had my health director, who is a physician by background, go personally view the birth certificate in the birth records of the Department of Health, and we issued a news release at that time saying that the president was, in fact, born at Kapi’olani Hospital in Honolulu, Hawaii. And that’s just a fact. And yet people continue to call up and e-mail and want to make it an issue. And I think it’s, again, a horrible distraction for the country by those people who continue this. It’s been established. He was born here.”—Governor of Hawaii Linda Lingle (R)

  65. Capt. Obvious says:

    And ironically, I get the impression that some of the bigotry is towards Democrats.

  66. soonergrunt says:

    And the ONLY time that an accused is going to prevail at Court Martial is if the order is so blindingly obviously illegal under US or international law that merely giving the order would itself constitute a crime.
    “Go to Kentucky” is not an order to do something unlawful, however distasteful going to Kentucky might be. I don’t know. I’ve never been there but I hear they have decent whiskey there.
    “Rob the Credit Union” IS an order to do something obviously illegal, as is “kill all the men, women, and children in the village on the hill.”

  67. KyAtty says:

    Birfer Steve, the U.S. is not a banana republic in which colonels and generals can demand that the civilian government justify its right to govern the nation. Read the Constitution you claim to adhere to. The Electoral College and the Congress elect the President, and the Congress alone can remove him before the end of his term of office. There is no provision of the Constitution which authorizes military officers to second guess the decisions made by the Electors and by Congress.

  68. Norbrook says:

    Steve, this is a really blatant mistatement by the General you’re quoting:

    “In refusing to obey orders because of his doubts as to their legality, LTC Lakin has acted exactly as proper training dictates. That training mandates that he determine in his own conscience that an order is legal before obeying it…”

    There is no such thing in the military, and if the general has forgotten that, he’s got some other problems. In fact, the courts have had quite a bit to say on that, but if you’d like, I’ll refer you to US v New, which is very germane to this case. From the opinion:

    According to appellant, the prosecution failed to prove that he had received a lawful order because the order was in furtherance of actions which he viewed as illegal — the deployment of American troops to the Republic of Macedonia and the development of command and control functions and associated uniform requirements. As noted in the majority opinion, these matters were properly resolved by the military judge under the Supreme Court’s political question doctrine. See Gilligan v. Morgan, 413 U.S. 1, 6-12 (1973).

    The political question doctrine serves a particularly important function in military trials by ensuring that courts-martial do not become a vehicle for altering the traditional relationship between the armed forces and the civilian policymaking branches of government. Since the days of George Washington, America has demonstrated that military professionalism is compatible with civilian control of the armed forces. With few exceptions, American military personnel have been faithful to the concept that once their advice has been tendered and considered, they are duty-bound to implement whatever policy decisions the civilian leadership may make.

    In other words, LTC Lakin does not get to use “the President is ineligible” as an excuse. Oh, and no, you don’t get to determine your conscience that an order is legal, unless it’s blatantly obvious it’s illegal. I’m sure the general would have really appreciated the airman who, because of the dictates of his conscience, decided to not do what the general ordered.

  69. Steve Schulin says:

    Dear BigGuy: It depends. Will Puckett be leading the appeal? I heard Lakin’s civilian attorney Paul Jensen say on Sept 3 that the ruling would be appealed.

  70. Steve Schulin says:

    KyAtty: If Obama is ineligible to serve as President, how could he be eligible to be impeached? This is part of why the phrase ‘constitutional crisis’ is apt. I agree that the USA is not a banana republic. I disagree with your apparent notion that the oath to defend the Constitution means ignoring assaults on the Constitution.

  71. SueDB says:

    Dear Christopher Mathews: The Judge’s opinion seemed to express a notion that even if a usurper is serving as Commander-in-Chief, a deployment order is valid. I think a strong case can be made to the contrary, and perhaps we’ll see more on this in an appeal.

    The deployment order is valid no matter who or in what condition the President is in. You are apparently ignorant of Title 10 rooted in the US Constitution, which gives the Constitutional authority to act directly – to appointed officers of the US. This doesn’t have much to do with the Commander in Chief etc or the Executive Branch.
    Care to try another already debunked lie?

  72. Steve Schulin says:

    Dear gorefan: The notion, that what others said after changes what grandmother said before, seems silly to me. And the notion that bloggery is a substitute for sworn testimony and cross-examination also seems silly to me.

  73. Dwight Sullivan says:

    Mr. Schulin, LTC Lakin fired Paul Rolf Jensen. He is no longer involved in the defense effort. In his place, LTC Lakin retained Neal Puckett.

    Mr. Puckett has publicly stated that Judge Lind’s ruling was correct and that he would not be basing a defense on any question of presidential eligibility.

    LTC Lakin fired Mr. Jensen after Mr. Jensen had filed a petition for extraordinary relief with the Army Court of Criminal Appeals (ACCA). ACCA ultimately denied that petition in a summary order. It appears that Mr. Puckett let the deadline for a writ appeal lapse without seeking further review from the Court of Appeals for the Armed Forces.

    If LTC Lakin is convicted and is sentenced to either a dismissal or a year or more of confinement, he’ll have the right to appeal his case to the Army Court of Criminal Appeals. But there is no serious question that if such an appeal were to challenge Judge Lind’s denial of the discovery request, ACCA would affirm Judge Lind’s ruling. As a matter of well-settled military law, Judge Lind clearly did not abuse her discretion in denying the discovery request.

    As I’ve stated before, well before LTC Lakin chose to attempt to use the court-martial process to attempt to obtain documents concerning President Obama’s constitutional eligibility, legal precedents were in place that doomed the effort. Any attorney who was familiar with military law and who was providing neutral advice would have told him that there was no reasonable prospect that he would succeed. And we know that at least one such attorney actually provided LTC Lakin with just such advice. And now LTC Lakin’s defense has abandoned the doomed discovery effort, meaning LTC Lakin threw away his career for nothing.

  74. Capt. Obvious says:

    “Terry Lakin Action Week”

    Coincidentally, this will also be his welcoming slogan at the U.S. Disciplinary Barracks at Fort Leavenworth.

  75. John O'Connor says:

    Captain Obvious wins the thread.

  76. sg says:

    Awesome.
    Cold blooded, but awesome.

  77. BigGuy says:

    Dear BigGuy: It depends. Will Puckett be leading the appeal? I heard Lakin’s civilian attorney Paul Jensen say on Sept 3 that the ruling would be appealed.

    Oh, Steve, I had no idea how out of touch you are concerning this whole case.

    Much has happened since Sept. 3. Jensen did file the appeal; the appeal was denied; and Jensen was fired. Shortly after that it was announced that Neal Puckett had been hired to replace him, and then Puckett announced that he was completely abandoning the birther defense. He declared himself in total agreement with the judge’s ruling — the one that had eviscerated the original defense plans — and failed to pursue to the next level the appeal that Jensen had initiated.

    Finally, in the past week or so, Puckett has made public his intention to try to hold Jensen “partially responsible” for Lakin’s crimes.

    I understand now why you have been continuing to press the birther defense. You did not realize how deep into the dustbin in has been tossed.

  78. gorefan says:

    Dear Steve – The notion that “grandmother said” anything strikes me as silly. Where is the direct quote from grandma. It seems silly that you are hesitant to produce one.

    It also seems silly that you expect a trail with sworen testimony and cross examination when there is no evidence to support a trail in the first place.

    It also seems silly that in march 7, 2007, Grandma Obama told Tim Jones in an interview that she received news of her grandson’s birth in a letter.

    “Six months after they wed, another letter arrived in Kenya, announcing the birth of Barack Hussein Obama, born Aug. 4, 1961. Despite her husband’s continued anger, Sarah Obama said in a recent interview, she “was so happy to have a grandchild in the U.S.””

    http://articles.chicagotribune.com/2007-03-27/features/0703270151_1_sen-barack-obama-stanley-ann-dunham-coffee-shops/7

  79. KyAtty says:

    Steve,

    I once again suggest that you read the Constitution. The person elected President by the Electors or Congress shall be the President. Obama is President, whether you like it or not. The allegation that he falsified the facts about his past to win election would have to be established as fact in an impeachment trial in the Senate. That is the one and only constitutional method to remove a President from office before the end of his term. If you disagree, please cite to me the Constitutional provision which grants the US armed forces a role in reviewing the election of a President by the Electors and Congress.

  80. SueDB says:

    Finally, in the past week or so, Puckett has made public his intention to try to hold Jensen “partially responsible” for Lakin’s crimes. I understand now why you have been continuing to press the Birther Defense®. You did not realize how deep into the dust bin he has been tossed.

    The old “Throw My Lawyer Under The Bus” TMLUTB defense trick. In a perfect world Jensen would get what is coming to him for allowing his client to commit crimes under his advise and counsel. So far not much has happened to Oily besides losing $20K or Putzy – beating the sanctions rap for a frivolous lawsuit. The wheels of true justice grind slowly, but in the meantime, it gives folks such as Oily and Jensen the opportunity to cause trouble (and damage the profession) for more of her clients. She is busy web-shopping for more…snicker…

  81. Anonymous says:

    Actually, at the end of the day, you are literally promoted by the President in the language of the promotion orders aren’t you?

    Perhaps the accepting of pay, and possible accepting of promotion is the benefit a great patriot gets for questioning what no one else has the, ahem, courage…is that the word I am looking for? No wait, what’s the opposite of courage?

    I think that’s the word I’m looking for.

  82. Steve Schulin says:

    Dear gorefan: rather than point to transcript of the call, I point to the sworn affadavits filed with the U.S. Supreme Court by Attorney Phil Berg. I think I posted excerpt earlier from Bishop McRae’s affadavit. Here’s excerpt from the sworn affadavit of man who was actually there with the grandmother that day, Rev. Kweli Shuhubia, official Swahili translator for the annual Anabaptists Conference held each year in Africa:

    Bishop McRae asked Ms. Obama specifically, “Were you present when your grandson Barack Obama was born in Kenya?” This was asked to her in translation twice, and both times she specifically replied, “Yes”. It appeared Ms. Obama’s relatives and her grandson, handling the translating,, had obviously been versed to counter such facts with the purported information from the American news media that Obama was born in Hawaii. Despite this, Ms. Sarah Hussein Obama was very adamant that her grandson, Senator Barack Hussein Obama, was born in Kenya, and that she was present andwitnessed his birth in Kenya, not the United States. When Ms. Obama’s grandson attempted to counter his grandmother’s clear responses to the question, verifying the birth of Senator Obama in Kenya, Bishop McRae asked her grandson, how she could be present at Barack Obama’s birth if the Senator was born in Hawaii, but the grandson would not answer the question, instead he repeatedly tried to insert that, “No, No, No. He was born in the United States!” But during the conversation, Ms. Sarah Hussein Obama never changed her reply that she was in deed present when Senator Barack Obama was born in Kenya. A copy of the Tape transcript is attached hereto as EXHIBIT “A”.

  83. Steve Schulin says:

    Dear KyAtty: I’ve never suggested that there’s any other constitutional way to remove a President from office than via impeachment/trial process. As a matter of fact, I don’t recall mentioning anything about removal from office. You think that Obama is President even if he’s not eligible? I don’t understand any basis for that conclusion.

  84. gorefan says:

    Dear Steve – Please explain why McRea’s and Rev. Kweli Shuhubia’s affidavids are word for word the same.

    McRae, ““When Mr. Ogombe attempted to counter Sarah Obama’s clear responses to the question, verifying the birth of Senator Barack Obama in Kenya, I asked Mr. Ogombe, how she could be present at Barack Obama’s birth if the Senator was born in Hawaii, but Ogombe would not answer the question, instead he repeatedly tried to insert that, ‘No, No, No, He was born in the United States!’ But during the conversation, Ms. Sarah Hussein Obama never changed her reply that she was indeed present when Senator Barack Obama was born in Kenya.”

    Rev. Kweli Shuhubia, “When Ms. Obama’s grandson attempted to counter his grandmother’s clear responses to the question, verifying the birth of Senator Obama in Kenya, Bishop McRae asked her grandson, how she could be present at Barack Obama’s birth if the Senator was born in Hawaii, but the grandson would not answer the question, instead he repeatedly tried to insert that, “No, No, No. He was born in the United States!” But during the conversation, Ms. Sarah Hussein Obama never changed her reply that she was in deed present when Senator Barack Obama was born in Kenya.”

  85. The Magic M says:

    Dear KyAtty: I’ve never suggested that there’s any other constitutional way to remove a President from office than via impeachment/trial process. As a matter of fact, I don’t recall mentioning anything about removal from office. You think that Obama is President even if he’s not eligible? I don’t understand any basis for that conclusion.

    You think that Obama is President even if he’s not eligible? I don’t understand any basis for that conclusion.

    He holds the office of President, even if he was not eligible in the first place.
    So impeachment is the (only) legal way to remove him from said office if an actual ineligibility was to be uncovered.

    You birthers pretend there is a “crisis” or “deadlock” because you claim impeachment would only be possible against a “legal”/”real” president.
    That is not so.

    You underestimate the Constitution (and the Founders) by claiming it doesn’t have any provision for the situation that, for whatever reason, the President might be found ineligible after being elected and sworn into office. That is not so.

    You are claiming a “constitutional crisis” where there is none.

    Your main problem is that in your lunatic world, Congress and all courts and just about everyone else is “in on the conspiracy” and does not want to act.

    However that may be, it doesn’t change the fact that impeachment is the one and only procedure in such a situation.

  86. Steve Schulin says:

    gorefan: the two men did not independently compose their sworn affadavits is my conclusion.

  87. Steve Schulin says:

    The hearsay may be of no value in proving where Obama was born, but it is of value in overcoming any presumption that there’s some prima facie case that Obama was born in Hawaii. It’s quite a different point than the burden of authenticating birth certificates.

  88. Norbrook says:

    Not only that, but, should such an event happen, there’s a very clear line of succession. So we’d end up with President Biden, or President Pelosi. We could also watch them shriek in horror about President Inouye (another durn Hawaiian).

    The really pathetic part about these birthers is that they’re acting as if the country was one of those banana republics where the government falls apart on a whim, and military coups are fairly regular occurrences.

  89. jamese777 says:

    It seems to me that the Twelfth Amendment to the Constitution is quite clear:
    “The President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted.

    The person having the greatest Number of votes for President, SHALL BE PRESIDENT, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President.”

    The time to challenge Obama’s eligibility was at the Joint Session of Congress held to count and certify the votes of the Electoral College. With Vice President Cheney presiding in his constitutional role of President of the Senate, the Electoral College votes were counted and certified by Vice President Cheney with NO objections from ANY of the 535 members of Congress. If any one Representative and any one Senator had submitted a written objection to the certification of Obama’s electoral college votes, both Houses would have immediately adjourned to consider the objections. No objections were filed and Barack Hussein Obama II fulfilled the other Constitutional requirement before assuming the office of the presidency, he took the Oath of Office administered in this case by Chief Justice John Roberts.

  90. gorefan says:

    Dear Steve – Does it bother you that they changed Ogumbe’s statements from ” No, no! The, the woman was not present.” to “No, No, No, He was born in the United States!”?

    Making that change reinforces their theory that the Obama clan had been coached to always say ‘Obama -born in US’.

    Oh, and aren’t affadavits only suppose to contain facts, not theories, hypothesis and opinion.

    I find it very disturbing that they, a)collaborated on their affadavits, or did some one write them for them? And b)changed witness’ statements in order to fit their theories. After all they had both the tape and the transcript to make sure they were quoting Ogumbe correctly. And since McRae only talked to Ogumbe (not Grandma Obama), how can he swear to anything she said?

    Yes, this is very disturbing. Is filing a false affidavit a form of prejury?

  91. Steve Schulin says:

    Dear Joey: You say the Governor’s statement is definitive? I respectfully disagree. In fact, her claim that the 2008 news release specified the hospital is wrong. http://hawaii.gov/health/about/pr/2008/08-93.pdf

    McCain had his own eligibility problems, so the fact that his political allies did things that tended to minimize the whole subject should not be accorded the extra weight that your all-caps emphasis might imply.

  92. Capt. Obvious says:

    “Dear Joey: You say the Governor’s statement is definitive? I respectfully disagree. In fact, her claim that the 2008 news release specified the hospital is wrong. http://hawaii.gov/health/about/pr/2008/08-93.pdf

    McCain had his own eligibility problems, so the fact that his political allies did things that tended to minimize the whole subject should not be accorded the extra weight that your all-caps emphasis might imply.”

    Irrelevant birther nonsense as usual. Nothing to see here.

  93. Steve Schulin says:

    Dear jamese777: The time to challenge Obama’s eligibility is not over. That none of the Members of Congress raised the matter on that day the Electoral College votes were counted in no way diminishes the responsibiity of us all to defend the Constitution today.

  94. Christopher Mathews says:

    Steve Schulin @ 1122:

    The hearsay may be of no value in proving where Obama was born, but it is of value in overcoming any presumption that there’s some prima facie case that Obama was born in Hawaii. It’s quite a different point than the burden of authenticating birth certificates.

    I wanted to post this quote in its entirety, Steve, so you’ll fully understand why I find further discussion on this point with you futile.

    Where President Obama was born has no bearing whatsoever on the question of LTC Lakin’s guilt or innocence. As a matter of law, the orders issued by the accused’s superiors do not require that the President be eligible to hold his office.

    Suggesting, as you do, that we rely on hearsay to overcome the prima facie case created by the President’s certificate of live birth is really not a particularly original idea (as I’m sure you know by now) nor does it have any bearing here. I hope you understand that no matter how much you want questioning the President’s place of birth to be the proper focus of a trial under the UCMJ, it just isn’t.

    While I don’t doubt you can continue to chew over this topic at interminable length, to both your own amusement and that of others, you still haven’t faced up to the core fact that it is irrelevant under military law. The solution to your concerns lies in the political realm. It cannot be found in a court-martial.

  95. Steve Schulin says:

    Earlier in the thread, I asked a question that I haven’t noticed anyone address yet: “I see at http://www.armfor.uscourts.gov/digest/IIIA16.htm that ‘the determination whether lawfulness of an order to deploy is a political question and thus nonjusticiable is reviewed on a de novo standard’ (United States v. New, 55 MJ 95). How does that fit into your assessment that [alleged] President Obama’s eligibility is not an issue in this court martial?”

  96. BigGuy says:

    Your question isn’t entirely clear to me, but you seem to be confusing two issues.

    In the Lakin case, the lawfulness of his orders was determined independent of the political question doctrine:

    “4. The Secretary of the Army has promulgated numerous Army Regulations pursuant to his authority under 10 U.S.C. 3013.1 These Army Regulations provide an independent authority for military officers to issue lawful orders. Authorization for officers to issue lawful military orders may be based on law, regulation, or custom of the service. MCM, pt. IV, paragraph 14.c.(2)(a)(iii). The authority of military officers to issue lawful orders and the concomitant duty of military service members to obey such lawful orders does not depend on whether the President is qualified under the Constitution to hold office.” (From Judge Lind’s order.)

    Then the court further rules that, even if the President’s eligibility were relevant, the court would lack the authority to render a judgment on the issue under the political question doctrine:

    “The Court further concludes that it is impossible for this Article 1 Court to undertake independent resolution of whether President Obama is a natural born citizen or is qualified under the Constitution to hold office without expressing lack of respect due coordinate branches of government.” (From the same order.)

    If you feel this constitutes an inconsistency with the snippet concerning New that you cite, please explain your reasoning.

    And please tell us whether or not your recognize the fact that LTC Lakin’s defense team has agreed that the eligibility defense has no part in the case.

  97. Steve Schulin says:

    Magic M: Did you see the Congressional hearing where Supreme Court Thomas brought up the eligibility issue? http://www.youtube.com/watch?v=KmX4F3gW_vY – The notion that many officials do not want to act is hardly a lunatic thing.

    As to your claim that impeachment is the only possible remedy: In January 1935, Thomas H. Moodie was inaugurated as Governor of North Dakota. He had won the Democratic Party nomination, and won the general election. Shortly after taking office, it was discovered that Moodie had voted in a municipal election in Minnesota in 1932. Since North Dakota constitution specifies that the only people eligible to serve as Governor must have ived in the state for five consecutive years before the election, this was a problem. The State Supreme Court determined that Governor Moodie was ineligible to serve, and he was removed from office on February 16, 1935.

    – from “Courts do have authority to remove elected executives due to eligibility – N.D. precedent (1935)”, AIP News, Sept 9, 2010

  98. Capt. Obvious says:

    “The State Supreme Court determined that Governor Moodie was ineligible to serve, and he was removed from office on February 16, 1935.”

    Because we all know that the wording, interpretation and execution of the U.S. Constitution is entirely subject to a 1935 SC decision on the laws pertaining to eligibility for the governorship of North Dakota. The Constitution of North Dakota must supersede the U.S. Constitution because it said so on an anonymous birther blog on the intarwebs.

  99. Steve Schulin says:

    Dear gorefan: I hope that the issues you raise get a chance to be fully explored in a venue where all involved are under oath. As for your questions about me, no, I don’t take kindly to perjury or misrepresentations.

  100. Capt. Obvious says:

    I think what Steve (A FRWNJ) has been repeatedly trying to explain is that he is far more knowledgeable in every aspect of U.S. law, including case law and precedence and the history of U.S. law both military and civilian than the many actual attorneys on this site. He memorized it from WND or the Post & E-Mail or better yet, from Safeguard Our Constitution and they’ve never lied.

    Right?

  101. interested onlooker says:

    Steve’s undoubtedly the unstoppable political animal who garnered a whopping 75 write-in votes in the 2008 election in the 4th district in Maryland. Apparently he wasn’t any more convincing then than he is now. No surprise that he’s an Alan Keyes supporter, either, always a sign of a superior intellect! He’s invited the readers of the aipnews.com site to join this discussion, so we can look forward to others asking his same questions again, no doubt.

  102. Capt. Obvious says:

    “The time to challenge Obama’s eligibility is not over.”

    Yeah. Good luck with that. Idiot.

  103. Capt. Obvious says:

    “No surprise that he’s an Alan Keyes supporter, either, always a sign of a superior intellect!”

    Re: Alan Keyes – Keyes v. Bowen – “The California Court of Appeal affirmed the dismissal on October 25, 2010.”

    Yep. Another losing birther trial. What are we up to now? 72 to ZERO?

    It’s no surprise that Keyes (like his little RWNJ buddies) clings to the thoroughly debunked and entirely irrelevant step-grandmother’s interview nonsense.

  104. Steve Schulin says:

    Judge Lind was never asked to determine whether [alleged] President Obama is a natural born citizen, nor is such a finding necessary to vindicate Lt. Col. Lakin’s actions. The mere fact that we don’t know if [alleged] President Obama is eligible at this point is sufficient for that part of this case. So I do find her reasoning woefully deficient – Lt. Col. Lakin is being railroaded. It is a national travesty. If Judge Lind and folks at this blog feel obliged or inclined to further that travesty, more’s the pity.

  105. Norbrook says:

    Right. It tracks right along with what each civilian court has said as well. It doesn’t matter whether the judge was considered “conservative” or “liberal.” They’ve all bounced the birther cases out because of a lack of standing due to the political question doctrine. In short, Steve, the court’s can’t do anything about it.

    Now, even if the the birthers could find a court willing to give them “discovery,” all that would happen would be the President would present his Hawaii COLB, it would be accepted as valid, and the case dismissed. You might look up the “full faith and credit” part of the Constitution. The really sad thing is that even that wouldn’t satisfy the birthers. Which says a lot about where they’re coming from.

  106. Steve Schulin says:

    Dear Christopher: I’ve been happy to try to answer questions posed by others to me here as best I can. Sorry to learn that you think I’m amused by any of this.

    Your blanket conclusion about relevance seems clearly opposed to the de novo review concept for deployment, as apparently specified in New. It seems clear to me that Lt. Col. Lakin is being denied de novo review by Judge Lind, with your enthusiastic support.

  107. Capt. Obvious says:

    Steve Schulin says:
    November 17, 2010 at 12:59 am (Quote)
    Dear KyAtty: “I’ve never suggested that there’s any other constitutional way to remove a President from office than via impeachment/trial process. As a matter of fact, I don’t recall mentioning anything about removal from office.”

    Steve Schulin says:
    November 16, 2010 at 12:24 am (Quote)
    Dear soonergrunt: “Defending the Constitution is not a coup de etat or a mutiny. The only possible coup de etat involved is if it turns out that Obama is not eligible.” (35 minutes earlier)

    So, either the birther truly doesn’t understand the meaning of words he uses like “coup de etat” or he’s lying. Or there is a mental defect involving short term memory?

    A coup d’état is the sudden, illegal deposition of a government, usually by a small group of the existing state establishment—typically the military—to replace the deposed government with another body; either civil or military.

  108. Steve Schulin says:

    Capt. Obvious may have some reason for speculating about the ND Constitution superseding US Constitution, but it’s not because I believe that to be the case.

  109. Capt. Obvious says:

    “The mere fact that we don’t know if [alleged] President Obama is eligible at this point is sufficient for that part of this case.”

    Severe reading comprehension / grip on reality problems. Allegedly.

  110. Steve Schulin says:

    The coup I was referring to wasn’t some prospective removal from office, it was the 2008 coup (if it turns out that Obama is not eligible to serve as President)

  111. Capt. Obvious says:

    Steve Schulin says:
    November 17, 2010 at 2:57 pm (Quote)
    Capt. Obvious may have some reason for speculating about the ND Constitution superseding US Constitution, but it’s not because I believe that to be the case.

    Interpretation: So what the birther is spraying is that his previous post regarding precedence per the laws of ND is admittedly nonsense and was just spewed here to waste everyone’s time.

    Nice pick-up on the sarcasm too, btw.

  112. Capt. Obvious says:

    I see now. The birther blower thinks the legal (by all relevant authorities) and democratic Presidential election of 2008 was a putsch.

    That’s incredibly un-American and disgusting. It’s a good thing his deranged opinions are and will remain irrelevant.

  113. Steve Schulin says:

    Dear Big Guy: It’s true enough that if you want an expert in the Lakin defense team strategy, I’m not on the list. I’m not so sure that regulars here on this blog have a clear understanding of Jensen’s current relationship with Lakin either. Relying on news reports seems to be the basis for much speculation.

  114. Capt. Obvious says:

    “McCain had his own eligibility problems, so the fact that his political allies did things that tended to minimize the whole subject should not be accorded the extra weight that your all-caps emphasis might imply.”

    False equivalence.

  115. MaybeNaut says:

    President [some have alleged he is not] Obama’s eligibility is not an issue in this court-martial because the judge ruled that his eligibility was irrelevant to the question of the lawfulness of the orders under military law, and in any event the political question doctrine placed his eligibility beyond judicial review. Lakin appealed that order and the Army Court of Criminal Appeals (ACCA) affirmed the order. Lakin did not appeal ACCA’s decision to the Court of Appeals for the Armed Forces, which is not surprising given his counsel’s public statement that Judge Lind got it right.

    After Lakin pleads guilty (that’s the prediction at any rate), and if he has an approved sentenced to a year or more of confinement or a dismissal from the service, he can raise all this again on appeal. But he’ll lose.

  116. Capt. Obvious says:

    “In fact, her claim that the 2008 news release specified the hospital is wrong.”

    Another entirely irrelevant, meaningless and nonsensical birtherism. Name every birth hospital for every single U.S. President before Carter. Oh, so It didn’t matter then but somehow it’s required now without any actual legal basis.

    The birthers seem to have scribbled that legal requirement in crayon into Article II, Section 1, Clause 5 and somehow that happened somewhere between 2008 and now.

  117. Anonymous says:

    his current relationship is he is a former attorney for Lakin, emphasis on the word former (not so much on the word attorney).

  118. Anonymous says:

    That question has nothing to do with the CICs “eligibility.”

    That is simply the standard of review for determining whether something is a political question, and therefore “nonjusticiable.”

    It says nothing about the merits of said argument in general or specifically to New or Lakin. It simply says that the standard of review for such cases is de novo, aka without regard to what the lower court/judge decided vis-a-vis the law (and if at the service court level the law and the facts).

    The appellate courts will never even get to that standard because the president’s eligibility is completely irrelevant to the offense charged. That’s what the military judge found, that’s what ACCA will find, and CAAF won’t even hear the case in all likelihood, but if by some strange reason they do, that is what they will find too.

  119. interested onlooker says:

    There’s no question of deployment, presidential eligibility, etc. needed to be answered here. There was a legal, valid order from COL Roberts (Lakin’s superior, and the guy with the MOH, commissioned as an officer long before Obama was on the scene) to Lakin to report to his office. Lakin deliberately disobeyed that order, with no justifiable grounds for doing so. It is very unlikely that either the judge or the panel will choose to overlook a senior officer attempting to set such a bad example, regardless of what they may think about Obama.

  120. BigGuy says:

    I bet your pardon? You’re under the impression that I’m relying on news reports?

    I suggest that you take a look at the web site of Puckett and Faraj, PC (www.puckettfaraj.com/2010/11/ltc-lakin-trial-update/). Unless you wish to make the case that the highly respected attorney is lying, their role in the case is quite well documented.

    Would you read it, please, and then answer my question? “And please tell us whether or not your recognize the fact that LTC Lakin’s defense team has agreed that the eligibility defense has no part in the case.”

  121. Christopher Mathews says:

    *sigh*

    Steve, since you’re in a question-answering mode and since you’ve seized upon the New case to argue that

    Lt. Col. Lakin is being denied de novo review by Judge Lind

    let me ask you this: what do you imagine the phrase “de novo review” to mean?

  122. John O'Connor says:

    “I wanted to post this quote in its entirety, Steve, so you’ll fully understand why I find further discussion on this point with you futile.”

    ——-

    You’re a little late to the party on that one, Chris Mathews. ;-)

  123. Christopher Mathews says:

    Well, yeah.

    But he seems a polite fellow, and that counts in my book, as you know.

  124. BigGuy says:

    Steve Schulin says: “So I do find her reasoning woefully deficient – Lt. Col. Lakin is being railroaded.”

    Neal Puckett, who represents LTC Lakin, says: “She was right on the facts and right on the law.”

  125. gorefan says:

    Dear Steve:

    You do understand that Congressman Serrano and Justice Thomas have had a long running (10 years?) joke about the congressman’s eligibility to be President (he was born in Puerto Rico)

    Here is the Supreme Court Budget Hearing from March 8, 2007, about two and one half minutes in.

    http://www.c-spanvideo.org/program/197007-1

    Here is the March 13th, 2008, hearing.

    Congressman Serrano: “Although I must say on a personal level that for about 10 years I’ve been trying to get out of you an unofficial comment on whether or not someone born in Puerto Rico can serve as president. And from what I understand from a California case, you may have to decide on Mr. McCain.

    So if you do, I’ll try to get myself included in the same…

    (LAUGHTER)”

    http://findarticles.com/p/news-articles/political-transcript-wire/mi_8167/is_20080313/rep-jose-serrano-holds-hearing/ai_n50720147/

    Here is the same hearing from April 23, 2009 about one minute and twenty seconds in.

    http://www.c-spanvideo.org/program/285453-1

    Now April 16, 2010,
    SERRANO: I’m glad to hear that you don’t think there has to be a judge on the court because I’m not a judge. I have never been a judge.

    THOMAS: And you don’t have to be born in the United States. You never have to answer that question.

    SERRANO: Oh really?

    THOMAS: Yes.

    SERRANO: So you haven’t answered the one about whether I can serve as president, but you answer this one.

    THOMAS: We’re evading that one. We’re giving you another option.

    SERRANO: Thanks a lot.

    THOMAS: Thank you, Mr. Chairman.”

    http://findarticles.com/p/news-articles/political-transcript-wire/mi_8167/is_20100416/rep-jose-serrano-holds-hearing/ai_n53191821/pg_20/?tag=content;col1

    They have apparently been joking about this for a number of years.

    I suspect your are making too much of what Justice Thomas said to Congressman Serrano as it was a personal joke between two people.

  126. MaybeNaut says:

    “The State Supreme Court determined that Governor Moodie was ineligible to serve, and he was removed from office on February 16, 1935.”

    So what? In 1969 Muammar al-Gaddafi deposed King Idris of Lybia in a coup d’etat. That doesn’t mean it would be permissible under our constitution for such a thing to happen here. Similarly, just because the State of North Dakota apparently had a mechanism which permitted its Supreme Court to remove the governor doesn’t mean the result would or should be the same under the U.S. constitution.

  127. Dwight Sullivan says:

    Mr. Schulin, the lawfulness of the orders issued to LTC Lakin do not depend on the President’s constitutional eligibility. As Judge Lind ruled, the superior commissioned officers and Department of the Army officials who issued the orders that LTC Lakin knowingly and intentionally disobeyed have independent legal authority that required him to obey their orders. Furthermore, even if it were ever to be determined that President Obama was not constitutionally eligible (a farfetched possibility), then under the de facto officer doctrine, legal effect would still be given to his actions. So even if President Obama’s constitutional eligibility were for some reason in play, LTC Lakin could not prevail on that question because under well-established precedent, his actions would be legally effective even if a defect in eligibility were established at some future point.

    Here’s my serious question to you: do you believe that any member of the U.S. military has a legal right to refuse any order given to him or her today simply by stating that he or she doubts the President’s constitutional eligibility? Could a Parris Island recruit lawfully refuse a DI’s order to drop and give him 20, citing doubts about President Obama’s birthplace as a justification? Could a pilot in Afghanistan today lawfully decline to fly a helicopter to retrieve a wounded Soldier by citing such doubts? I’m seriously interested in your answer to those questions — though, as a legal matter, it is clear that the answer is no and the de facto officer doctrine exists precisely to preclude such arguments. (Judge Lind, by the way, didn’t even reach the de facto officer doctrine, concluding that LTC Lakin had no right to discover information concerning President Obama’s constitutional eligibility even without regard to that doctrine.)

  128. Norbrook says:

    The State Supreme Court determined that Governor Moodie was ineligible to serve, and he was removed from office on February 16, 1935.

    Which was allowed under North Dakota’s state constitution, and you might note that all that happened was that the lieutenant governor was made the governor.

    In the case of the Federal government, the Constitution is very clear on the only way a President can be removed from office – and the Courts can’t do it. It’s one of those fine distinctions that so many of the self-styled “defenders of the Constitution” seem to miss.

    I’ve also seen them delusionally saying that there would be another election. Which, of course, there will be – in 2012. In terms of the 2008 one, it isn’t going to be changed.

  129. Anonymous says:

    Steve,

    The basis for the conclusion that President Obama is the President is the Twelfth Amendment to the Constitution. Read it for comprehension. There is absolutely no question whatsoever that Barack Obama is President of the United States.

  130. jamese777 says:

    The appropriate way to challenge Barack Obama’s eligibility to be president is via a Grand Jury investigation in any state where his name was on the ballot.
    With a grand jury, documents can be subpoenaed and witnesses can be compelled to testify under oath. There can be expert testimony taken as well.
    If there is evidence that a crime has been committed such as document fraud or election fraud, then indictments can be handed down and Congress would have evidence of a high crime/misdemeanor having been committed.
    That could lead to impeachment, trial and removal.
    If grand juries were good enough for Nixon in Watergate, Reagan in Iran-Contra and Clinton in Whitewater, why isn’t a grand jury investigation good enough for the Obama eligibility issue?
    The fact that it has now been more close to four years since Barack Obama first announced his candidacy for the presidency and no grand jury investigation in any jurisdiction has ensued tells me all that I need to know about the moral bankruptcy of the “birther” movement specifically and the questions on Obama’s eligibility in general.

  131. BigGuy says:

    This is true only insofar as Obama is seen as ineligible in conjunction with criminal activity, such as the use of a fraudulent birth certificate. It does not apply, for example, to the Vattellite school, whose members hold that NBCship devolves only from two citizen parents.

    This brand of birthers has the advantage of not having to come up with actual evidence. On the other hand, it is much harder for them to blame this deficiency on Obama since, even if SCOTUS were ever to make such a bizarre and unexpected ruling in the future, it would be difficult to say that Obama was knowingly in violation of a requirement that had not yet been articulated.

    Anyway, this is just to point out that there are routes to ineligibility that are not necessarily susceptible to grand jury investigation.

  132. Capt. Obvious says:

    “In terms of the 2008 one, it isn’t going to be changed.”

    But . . but . . but . . . that’s the birthers’ biggest fantasy!

    It makes them misty eyed and all sedition-y.
    They are delusional and stupid enough to think they can have a mulligan. Plan B is for a team of their brightest (hah!) to feverishly recreate the flux capacitor from super top secret blueprints they found buried in the Free Republic online forums. Or was it WND (Weapon of Nut’s Destruction) ?

  133. Capt. Obvious says:

    “In terms of the 2008 one, it isn’t going to be changed.”

    But . . but . . but . . . that’s the birthers’ biggest fantasy!

    It makes them misty eyed and all sedition-y.
    They are delusional and stupid enough to think they can have a mulligan. Plan B is for a team of their brightest (hah!) to feverishly recreate the flux capacitor from super top secret blueprints they found buried in the Free Republic online forums. Or was it WND (Weapon of Nut’s Destruction) ?

    “In terms of the 2008 one, it isn’t going to be changed.”

    But . . but . . but . . . that’s the birthers’ biggest fantasy!

    It makes them misty eyed and all sedition-y.
    They are delusional and stupid enough to think they can have a mulligan. Plan B is for a team of their brightest (hah!) to feverishly recreate the flux capacitor from super top secret blueprints they found buried in the Free Republic online forums. Or was it WND (Weapon of Nut’s Destruction) ?

  134. Norbrook says:

    But . . but . . but . . . that’s the birthers’ biggest fantasy!

    It’s a not a fantasy! It’s double secret clause in the Constitution! Slipped in there just in case something like this happened! It keeps getting left out of all the official copies of Constitution! You can get a copy of it if you go to Kenya, it’s stored in the Coast General Hospital records room.

  135. soonergrunt says:

    Judge Lind was never asked to determine whether [alleged] President Obama is a natural born citizen, nor is such a finding necessary to vindicate Lt. Col. Lakin’s actions. The mere fact that we don’t know if [alleged] President Obama is eligible at this point is sufficient for that part of this case.

    But it isn’t sufficient. At least not in any legal sense.

    “Lt. Col. Lakin is being railroaded.”
    How so? Any competent lawyer, and most senior NCOs could have very easily told LTC Lakin that the best thing he could have done was to resign his commission or failing that, to obey his orders. A case could be made that he was led down the primrose path by an incompetent lawyer and some shady characters and that might mitigate in the sentencing phase, but the actions were his and his alone. Every time he went on Youtube or Fox News or CNN and said “I invite my court-martial” he was nailing his own ass to the cross. Even Christ didn’t do that, and at least He had an actual good reason.

  136. soonergrunt says:

    Oh, but you did, in fact present that, buttressing your claim that courts had that authority, here;
    http://www.caaflog.com/2010/11/14/ltc-lakins-supporters-sponsor-terry-lakin-action-week/#comment-19766

    In fact, the very document you cited was called – from “Courts do have authority to remove elected executives due to eligibility – N.D. precedent (1935)”, AIP News, Sept 9, 2010

  137. mikeyes says:

    I notice that Steve Schulin in not answering Dwight Sullivan’s question about the legal right to refuse any order. I doubt he will answer since 1) he is wrong (Title 10, UCMJ, New, Huet-Vaughn, etc.) and 2) he is advocating mutiny and treason by doing so.

  138. Christopher Mathews says:

    I was sort of hoping he’d answer my question about what he thinks the phrase “de novo review” means.

    I suppose I can be patient.

  139. sg says:

    Well Judge, he hasn’t answered Col. Sullivan’s question about the individual right to disobey orders or my question about disobeying some orders vs. others when the apparent source of all orders (the President) is ‘illegitimate’ so I wouldn’t hold my breath if I were you.

  140. Christopher Mathews says:

    Sage advice, sir.

  141. BigGuy says:

    He hasn’t even acknowledged that Jensen was fired and that Puckett replaced him and jettisoned the birther defense.

  142. Norbrook says:

    I think the “mulligan” election is in the double secret part of the Constitution. The part that only the true defenders of the Constitution know about. The rest of us common, ordinary people never get to see it.

  143. Capt. Obvious says:

    Apologies for the multiple posts.

  144. Capt. Obvious says:

    You can always post your question on Schulin’s Facebook Wall.

    http://www.facebook.com/schulin?v=wall

  145. Steve Schulin says:

    If Obama is not eligible, the 2008 election may have indeed been used as part of a coup. Capt Obvious writes as though I claim to know whether Obama is eligible. I’ve made no such claim. In fact, I’ve clearly stated that I do not know whether he is eligible.

    I see elsewhere in this thread that some folks are awaiting replies on other subjects. It’s my intent to continue to answer your questions, although I doubt I can continue to spend as much time on them as I did in recent days.

  146. Christopher Mathews says:

    It’s part of the “spirit clause.”

  147. Capt. Obvious says:

    “If Obama is not eligible, the 2008 election may have indeed been used as part of a coup.”

    Therein lies the insanity. Part of a coup? As in a clandestine takeover of the government. You’re out of your mind. Are you quoting Alan Keyes again?

    Your disregard for U.S. law, the Constitution and our democratic process is vile and reprehensible.

    Are most birthers inherently paranoid and delusional?

    And then there is this:

    The Dunning–Kruger effect is a cognitive bias in which an unskilled person makes poor decisions and reaches erroneous conclusions, but their incompetence denies them the metacognitive ability to realize their mistakes.
    http://en.wikipedia.org/wiki/Dunning–Kruger_effect

    “In fact, I’ve clearly stated that I do not know whether he is eligible.”

    As BigGuy so eloquently wrote, ” . . . the Constitution does not require the President to persuade each and every U.S. citizen of that fact to his or her satisfaction. There is no requirement that he or she dispel the last doubt of the last doubter.”

    And a birther’s Ockham’s Razor is as dull as putty.

  148. Steve Schulin says:

    More than one poster here has commented about the ability of officials to ignore those who continue to point out that we don’t know if Barack Obama is eligible to serve as President. I saw a news report this week about a bill just introduced in Texas’ legislature designed to prevent recurrence of this kind of situation. The sponsor of the bill is reported as saying “‘This bill is necessary because we have a president whom the American people don’t know whether he was born in Kenya or some other place,’ Rep. Leo Berman, R-Tyler, said in reference to President Barack Obama and of House Bill 295.” http://lubbockonline.com/local-news/2010-11-17/birth-certificate-bill-filed-presidential-candidates

  149. Christopher Mathews says:

    Welcome back, Steve! It’s good to see you’ve returned.

    Perhaps you’ll now take a crack at some of the questions that have piled up for you. In particular, since you’ve cited the New case and opined that

    Lt. Col. Lakin is being denied de novo review by Judge Lind

    I’d like to know what you imagine the phrase “de novo review” means.

  150. interested onlooker says:

    Steve, don’t insult our intelligence by pretending that your only quibble with President Obama is that you think he was possibly born elsewhere. You expect us to believe that if he produced proof that he was born at Walter Reed AMC you and all of the other birthers would suddenly have no complaint with his being POTUS?

  151. BigGuy says:

    Yes, Steve, we know there are other birthers; no one here was under the impression that you were the only one.

    But I and others are patiently waiting for you to answer some questions. Mine was, are you now in agreement that President Obama’s eligibility to hold office bears no relevance to the question of whether LTC Lakin is guilty or innocent of the crimes of which he stands accused?

  152. Capt. Obvious says:

    Information needed to prove natural born citizenship for a person born in the U.S.:

    Place of birth (born on US Soil equals natural born citizen).

    Provided by Hawaii: COLB – a state certified, self-authenticating copy stating place of birth valid in any U.S. court as well as the State Department as proof of place of birth.

    Not provided by Hawaii: Vault, archived or original vital records – a record within stating place of birth.

  153. Steve Schulin says:

    Dear Christopher: When I saw the term de novo review referenced to the New case, I presumed it was referring explicitly to the scope of appellate review. I continue to presume that. As you may recall, I asked you how the snippet “the determination whether lawfulness of an order to deploy is a political question and thus nonjusticiable is reviewed on a de novo standard” fit into your assessment that [alleged] President Obama’s eligibility is not an issue in this court martial. The basis for my question was not the appellate stage, and neither was it the basis for my comment about Lakin being denied de novo review by Judge Lind. Rather, the basis of my comment is the notion that there is some precedent that covers the situation we find ourselves in — that multitudes of Americans, including military personnel (including those described by retired General McInerney) have eminently reasonable doubt whether Barack Obama is eligible to serve as President. Judge Lind’s Sept ruling was based on the specious notion that there is precedent.

    Dear interested onlooker: If Obama is eligible to serve as President, I’ll be happy to learn that. It doesn’t mean I’ll be silent when fundamental principles or other vital national interests are involved. When I say this isn’t about Obama, it’s what I sincerely believe. For example, I supported a lawsuit to disqualify Sen. McCain from being placed on the ballot because the evidence seems clear that he was born in the Republic of Panama and, due to the circumstances of his parents’ marriage, he did not meet the quite specific requirements for citizenship. I’d be asking “How can one be a natural born citizen if one is not a citizen at all?”

  154. Christopher Mathews says:

    Steve, you wrote

    The basis for my question was not the appellate stage, and neither was it the basis for my comment about Lakin being denied de novo review by Judge Lind.

    Then what did you mean when you said

    It seems clear to me that Lt. Col. Lakin is being denied de novo review by Judge Lind

    Steve? Your explanation that “Judge Lind’s Sept ruling was based on the specious notion that there is precedent” doesn’t address it. As you may perceive, you’re not really using the term “de novo review” correctly, and I’m curious to learn whether that’s something you did on your own, or whether there’s some source you’re relying on.

    It’s likely that “multitudes” of people have “eminently reasonable doubt” about lots of things which — like the question of the President’s eligibility to hold his office — are irrelevant to the question of LTC Lakin’s guilt. I would venture to say that “multitudes” of people have no doubt whatsoever that President Obama lawfully holds his office and is perfectly eligible to do so. Their opinions, of course, are likewise irrelevant to the question of whether LTC Lakin should be convicted.

    Steve, you may think the country is facing, to borrow an overused term, some sort of “constitutional crisis.” Regardless of how fervently you believe that to be so, I hope you will at some point accept that a court-martial is just not the place to resolve it.

  155. Maureen says:

    What about the boys they put in Leavenworth for obeying orders they thought were lawfull.

    ‘Congressional analysis: Obama eligibility never was confirmed’ http://www.aipnews.com/talk/forums/thread-view.asp?tid=17865&posts=1

  156. sg says:

    @Maureen–
    Even as that may have happened, and it’s FAR more likely to have been a claim at defense than something actually believed by the accused at the time of the offense, what does that have to do with Lakin?
    There is no doubt that he was given lawful orders, first to report to Fort Campbell, Kentucky, and then to his Brigade Commander to explain why he wasn’t at Fort Campbell.
    As I’ve mentioned before, no matter how distressing the thought of going to Kentucky may be, a Soldier cannot legally refuse to go there when ordered to do so by his/her superiors, and that Soldier for damn sure cannot legally refuse to report to his/her Commanding Officer when summoned.
    That’s ALL this case is about.

  157. BigGuy says:

    @Maureen —

    Instead of relying on the AIP summary of the WND article that presents a skewed analysis of the CRS report, why don’t you just read the report itself?

    It can be found at http://www.scribd.com/doc/41131059/Members-of-Congress-Memo-What-to-Tell-Your-Constituents-in-Answer-to-Obama-Eligibility-Questions, and it explains in detail how Obama’s eligibility was treated — just as the Constitution requires, just as every previous presidential candidate’s eligibility was treated.

    You will see the various ways in which questions could have been raised during the campaign and in the period between the election and the inauguration. You will even see the constitutional ways in which such questions could be raised now.

    The court-martial of a disobedient Army officer is not one of them. Even LTC Lakin’s lawyer agrees with that.

  158. Reality Check says:

    I would pose to Steve Schulin the same question that Loren posted for Birthers at Free Republic:

    “What are your top five reasons/arguments/pieces of evidence for believing that Barack Obama was not born in Hawaii?”

    I think the de Vattel, two citizen parent argument, is so completely silly that it is hardly worth discussion. Can anyone find a single legal article, civics book, or court ruling that said that a US citizen born on US soil is not a natural born citizen written before 2008? Several have searched Google Books and found hundreds of these that say the opposite. There are none that quote de Vattel on the subject prior to 2008.

    So if you want to advocate the two citizen parent theory then please answer this question:

    Please cite one article written by a serious Constitutional Law expert, Constitutional law text book, or even a civics book that quoted de Vattel on the meaning of the term “Natural Born Citizen” written prior to the 2008 election cycle.

    I am not conceding the fact that any have been written since 2008 either. However, if the two citizen parent theory has any validity it should have been discussed seriously somewhere in the time after the Wong Kim Ark decision.

  159. KyAtty says:

    Steve,

    I know the Constitution is important to you, so you recognize based on the 12th Amendment that President Obama is the President. You also realize that the only way to establish that he falisfied his past to win the Presidency is in an impeachment trial in the Senate. Now that the House will be controlled by the GOP, your time has come. You and all other birthers should demand that the House launch an investigation of the President’s birth, and vote articles of impeachment if the evidence shows he was really born in Kenya. I would suggest that Birthers schedule a demonstration on the Mall for President’s Day. If 100,000-1,000,000 birthers march on Washington demanding the President’s birth certificate, that would be hard to ignore.

  160. sg says:

    @KyAtty, 2150
    “I would suggest that Birthers schedule a demonstration on the Mall for President’s Day.”
    Washington, D.C. in mid-February? That’s cold. Literally and figuratively.

  161. yguy says:

    An illegal military command has nothing to do with the chain of command, but is about the effect of the command in the theatre of war, and is described in detail by the Geneva Convention.

    Anyone who thinks the effect of a command is the sole criterion for judging its legality lacks either understanding or regard for the Constitution, or both.

  162. BigGuy says:

    @yguy:

    Judge Lind ruled that the orders that LTC Lakin disobeyed were legal orders. His attorney, Neal Puckett, said that “[s]he was right on the facts and right on the law.”

    Is this yet another case where you alone understand the true meaning of the Constitution?

  163. interested onlooker says:

    yguy, we’ve missed your special nuttiness!

    Pray tell, where and how does the GC weigh in on the legality of an order from one’s commanding officer to report to his or her office?

  164. Patrick McKinnion says:

    It’s not even that they’re acting like the US is a banana republic. At many of the birther sites, you see alternating whining that the military HASN’T staged a coup against Obama, and demands that the military do exactly that. They’re willing to see a military coup and the complete destruction of both the Constitution and a Democratically-elected government if it means getting Obama out of the White House and behind bars – or up against the wall.

  165. yguy says:

    @yguy:Judge Lind ruled that the orders that LTC Lakin disobeyed were legal orders.

    The only way she would know that is if she knows either that the command was not issued in direct pursuance of a command originating with the CiC or that Obama meets the constitutional eligibility requirement; and she has given no indication of such knowledge, AFAIK.

  166. yguy says:

    Pray tell, where and how does the GC weigh in on the legality of an order from one’s commanding officer to report to his or her office?

    Is there some reason I should find this question interesting?

  167. BigGuy says:

    Well, have you read her ruling? One of the things she said was this:

    “The three orders at issue in specifications 1-3 of Charge II are alleged to be authorized by LTC William Judd, COL Gordon Roberts, and COL Peter M. McHugh, respectively. Whether President Obamais a natural born citizen or is qualified under the Constitution to hold office is not relevant to determine whether they are authorized to issue the orders charged.”

    And, as I pointed out earlier, Lakin’s counsel has declared Judge Lind’s rulings to be correct: “All those issues concerning the president’s eligibility to hold office are completely irrelevant as to whether Lt. Col. Lakin was issued lawful orders and whether he obeyed them.”

  168. yguy says:

    Well, have you read her ruling?

    If I did, would I find either of those possibilities addressed?

    One of the things she said was this:

    […]

    Guess not.

  169. BigGuy says:

    So, are you saying that her ruling was incorrect?

  170. Steve Schulin says:

    Dear soonergrunt: I’ve skimmed the ND constitution and read the 1935 ND court opinion, and it seems to me that the North Dakota court had no unique North Dakota grant to protect the public, above and beyond what courts in other states and the federal courts have. I brought up the ND case because a poster asserted that impeachment was the only way to handle the Obama eligibility matter.

  171. Mary Adams says:

    Justice Thomas was specifically addressing the fact that whether a U.S. citizen born in Puerto Rico is eligible has never been addressed.IOW whether these people are Constitutional or statutory citizens.Similar to Vegas, what happens in ND stays in ND.

    According to this 2000 U.S. Library of Congress, Congressional Research Service report:

    “Citizens born in Guam, Puerto Rico, and the U.S. Virgin Islands are legally defined as “natural born” citizens, and are, therefore, also eligible to be elected President, provided they meet qualifications of age and 14 years residence within the United States. Residence in Puerto Rico and U.S. territories and possessions does not qualify as residence within the United States for these purposes.”

    http://www.senate.gov/reference/resources/pdf/RL30527.pdf

  172. BigGuy says:

    @Steve Schulin — The question is not whether there is a “unique North Dakota grant”; no one has suggested that there is.

    The question is whether there exists the equivalent of a “political question doctrine” under the ND Constitution that protects the Governor against removal by a court, analogous to what exists on the federal level. Your example would seem to indicate that there is not, but the situation in ND has no impact on the Lakin case.

  173. Dwight Sullivan says:

    Note that section 4 of the 25th Amendment provides another constitutionally prescribed manner in which the powers and duties of a President may be removed. The existence of this other constitutionally prescribed approach further supports the judiciary’s invocation of the political question doctrine.

  174. Mary Adams says:

    I’d also be interested to know what Steve Schulin thinks are the top 5 pieces of “evidence” the birthers think they have to support their crackpot beliefs.

    So far, all he has brought forth is the supposed “Sarah Obama” recording.

    Not only do we have NO evidence she was actually the interviewee, She speaks Luo, NOT Swahili, making the interpretation suspect.

    Saying that yes, she was present when Obama II was born does in no way say she was present at the birth (I love the way birthers add “at the hospital, in the delivery room”). “Present” very likely means “living” and “present” where she was at the time of the interview – in Kenya.

    Never did she say she witnessed the birth of Obama II.

    So what else you got, Steve?

  175. Steve Schulin says:

    Dear KyAtty: If Barack Obama isn’t eligible to be President, he’s not the President. He may be the de facto president, but that’s different. A President is one who serves under the Constitution. On what basis does a de facto President serve? Based on previous reactions to such comments here, I’ll repeat that I do not claim to know whether Obama is a natural born citizen or not. Those of you who appear to claim to know that he is a natural born citizen are defending something other than the Constitution.

  176. BigGuy says:

    @Steve Schulin — “Those of you who appear to claim to know that he is a natural born citizen are defending something other than the Constitution.”
    __

    No, the “Full Faith and Credit” clause is part of the Constitution.

  177. Steve Schulin says:

    Christopher, I fully understand your question about my use of “… de novo review”. My previous explanation, however, does address it. The term “de novo” is used in its appellate sense for an underlying reason, and it is that underlying sense in which I used it. The notion that there is precedent for the current eligibility questions is a real travesty, and asserting that notion as a reason to convict LTC Lakin is a miscarriage of justice for the accused and the nation.

    The Constitution needs defending. Many of those who have sworn to do so have been slackers. You say a court martial isn’t the place to defend the Constitution? I say every venue is such a place.

  178. Steve Schulin says:

    I’m happy to discuss the meaning of the Constitution with all comers. I don’t know of any examples where I alone understand the true meaning of the Constitution. The ease with which you bandy such charges about tends to weaken, I hope, the proclivity of anyone to give much presumptive weight to your other conclusions.

  179. BigGuy says:

    I believe the comment about the “true meaning of the Constitution” was mine, and if that’s the one you are referring to, please look back at it. It was directed at yguy, not at you.

  180. BigGuy says:

    LOL, I meant for this to appear in sequence, and since it did not it only added to the confusion. The following was addressed to Steve Schulin:
    __

    BigGuy says:
    November 19, 2010 at 6:02 pm

    I believe the comment about the “true meaning of the Constitution” was mine, and if that’s the one you are referring to, please look back at it. It was directed at yguy, not at you.

  181. yguy says:

    He holds the office of President, even if he was not eligible in the first place.

    So the eligibility clause is an option rather than a requirement. Right?

  182. Steve Schulin says:

    Hi gorefan – did Justice Thomas ever talk about evading the issue before?

  183. BigGuy says:

    @yguy: “So the eligibility clause is an option rather than a requirement. Right?”
    __

    No, it is a requirement, and if he were found to be ineligible he would most likely be removed by impeachment and conviction.

  184. Christopher Mathews says:

    Thanks for your answer, Steve.

    You’re quite mistaken in thinking that the “de novo review” standard for appellate review has applicability to the trial court. In this instance, the court — having determined that evidence of the President’s eligibility would have no bearing on the question of the accused’s guilt — correctly declined to permit discovery on the subject. The judge has no obligation, under the rubric of “de novo review” or otherwise, to permit an inquiry into matters which are not relevant to the determination of guilt or the assessment of a sentence.

    Leaving aside the “political question” doctrine of abstention for the moment, your beef with Judge Lind appears to be that you think she was wrong on the question of relevance. I have yet to see you cite a case, however, establishing that the authority of officers to give orders depends on the qualifications of the President. Officers have authority that derives from statute, and even were you to make the argument that, for example, the accused’s commander should not hold his post because he was promoted or assigned under orders issued in the President’s name, the de facto officer doctrine means that as long as the commander has apparent authority to act, his orders are just as lawful as they would otherwise be. Since the orders given to LTC Lakin are not facially unlawful he simply has no defense based on the President’s eligibility.

    Although your histrionics are a bit overblown, I’ll agree with you that the Constitution does indeed need defending. Many who have served have endured substantial hardship to defend it. I’m sure — given your gratuitous use of the ephithet “slackers” to describe those in the military who don’t share your personal obsession, or who simply believe that the President’s eligibility has been established — that you must have endured great hardship in its defense as well, although doubtless hardship you are far too modest to share here.

    Regardless of your personal travails and heroism, LTC Lakin will be tried in accordance with the Uniform Code of Military Justice and the Rules for Courts-Martial as they exist — not as you imagine them to.

  185. yguy says:

    @yguy: “So the eligibility clause is an option rather than a requirement. Right?”
    __No, it is a requirement, and if he were found to be ineligible he would most likely be removed by impeachment and conviction.

    And impeachment is required to remove from the office of the Presidency a person who does not legally exercise presidential authority because…?

  186. Steve Schulin says:

    BigGuy, please understand that I brought up the ND case because of an assertion that someone made here about impeachment being the only remedy. I do not claim that any military court martial would be able to order Obama to do anything. What the military court could and should do is defend the Constitution by looking fully and fairly at the question that Lt. Col. Larkin raised. There is no precedent for applying the law as Judge Lind did, because never before has there been this question about the [alleged] President.

    And BTW, I mentioned that ‘unique … grant’ matter because of the comments of several folks (MaybeNaut, Norbrook and Capt. Obvious).

  187. Mary Adams says:

    Hi gorefan – did Justice Thomas ever talk about evading the issue before?

    What is the significance of Justice Thomas evading the issue of whether or not Rep. Serrano, born in Puerto Rico, is eligible to be POTUS?

    Justice Thomas is an idiot and probably doesn’t know that Serrano is eligible.

  188. Dwight Sullivan says:

    Mr. Schulin, the law often involves an exercise of determining how on point various precedents are to the case at hand. There’s always something different about a given case and a previous case. And in some cases, there may be conflicting precedents. But in the Lakin case, there has never been any doubt among military justice practitioners about the manner in which existing precedent — including United States v. New, Baker v. Carr, and Ryder v. United States — affect LTC Lakin’s claims. Any military justice practioner when confronted with the hypothetical scenario of LTC Lakin doing what he did — either in this administration based on a birther rationale or during the previous administration based on a “Gore won” rationale — would tell you that existing law establishes that even if the President had been incorrectly certified and sworn, it would provide no defense and that a court-martial is not the correct tribunal to make a pronouncement about the President’s bona fides. Charlie Gittins — one of the leading members of the military defense bar — apparently told that to LTC Lakin himself before he was charged. Christopher Mathews — with whom you’ve been debating — is one of the most highly respected military appellate judges in recent times; he reached the same conclusion. Judge Lind — a highly respected trial judge — reached the same conclusion. And LTC Lakin’s own civilian defense counsel — a former Marine Corps trial judge and a highly respected (and successful) civilian defense counsel — reached the same conclusion. And the Army Court of Criminal Appeals denied Paul Rolf Jensen’s petition for extraordinary relief.

    LTC Lakin was warned not to do what he did. He did it anyway. I don’t believe for a second that LTC Lakin is a coward or was trying to get out of going to Afghanistan. Rather, I believe that he willingly made himself a tool of the birther cause, thinking that he would succeed in forcing discovery where others had failed. He was wrong in that legal judgment. But he was even more wrong in trying to use his military rank and status as a tool to forward a political objective.

    Now that Republicans control the House of Representatives, a committee chairman can subpoena records from Hawaii to establish that President Obama was born there. Or states can enact statutes requiring a certified birth record from a candidate’s state of birth. Those are political remedies — and that’s where remedies lie. I really don’t care whether such political avenues are pursued. I’m also entirely confident that if such measures are pursued, they will establish that the state of Hawaii certifies that President Obama was born there — just as Dr. Fukino said after examining Hawaii’s official birth records. (I still have yet to hear anyone provide a plausible rationale as to why Dr. Fukino’s statements don’t extinguish any reasonable doubt that President Obama was born in Hawaii.) What I do care about is a fellow military officer misusing his rank and status for political ends — and misusing the military justice system as a tool.

    With LTC Lakin’s defense counsel having abandoned his birther defense, even LTC Lakin’s supporters must see that there’s no chance that his gambit will succeed in obtaining still more documentary proof as to President Obama’s birthplace. LTC Lakin was told ahead of time he wouldn’t succeed. For unknown reasons, he nevertheless proceeded to throw away his career. That isn’t a miscarraige of justice or a travesty — it’s simply career suicide.

  189. Capt. Obvious says:

    North Dakota’s state laws are irrelevant to the U.S. Constitution.

    It was a stupid and meaningless example.

    Birther’s seem to also be severely logic and relevancy impaired along with being incredibly delusional.

  190. BigGuy says:

    @Steve Schulin: “What the military court could and should do is defend the Constitution by looking fully and fairly at the question that Lt. Col. Larkin raised.”
    __

    By law, the military court can only look into questions relevant to LTC Lakin’s guilt or innocence. Since the judge has concluded (and I think you know that Lakin’s counsel has agreed) that the President’s eligibility does not fall into that category, it would be contrary to law for the court to consider it.

    That doesn’t mean the President’s eligibility can’t be looked into. It can be looked into through the House’s power of impeachment. But a court-martial has no authority to do so — in part because the potential for impeachment pre-empts it, and in part because it has no relevance to Lakin’s guilt or innocence.

    I know those aren’t the results you would like to see, but it really is based on well established law.

  191. BigGuy says:

    @yguy: “And impeachment is required to remove from the office of the Presidency a person who does not legally exercise presidential authority because…?”
    __

    The characterization, of course, is yours. Impeachment is required to remove anyone who has been inaugurated into the office of the presidency.

  192. Capt. Obvious says:

    Hear, hear.

  193. Capt. Obvious says:

    Mr. Schulin, the law often involves an exercise of determining how on point various precedents are to the case at hand.There’s always something different about a given case and a previous case.And in some cases, there may be conflicting precedents.But in the Lakin case, there has never been any doubt among military justice practitioners about the manner in which existing precedent — including United States v. New, Baker v. Carr, and Ryder v. United States — affect LTC Lakin’s claims.Any military justice practioner when confronted with the hypothetical scenario of LTC Lakin doing what he did — either in this administration based on a birther rationale or during the previous administration based on a “Gore won” rationale — would tell you that existing law establishes that even if the President had been incorrectly certified and sworn, it would provide no defense and that a court-martial is not the correct tribunal to make a pronouncement about the President’s bona fides.Charlie Gittins — one of the leading members of the military defense bar — apparently told that to LTC Lakin himself before he was charged.Christopher Mathews — with whom you’ve been debating — is one of the most highly respected military appellate judges in recent times; he reached the same conclusion.Judge Lind — a highly respected trial judge — reached the same conclusion.And LTC Lakin’s own civilian defense counsel — a former Marine Corps trial judge and a highly respected (and successful) civilian defense counsel — reached the same conclusion.And the Army Court of Criminal Appeals denied Paul Rolf Jensen’s petition for extraordinary relief.LTC Lakin was warned not to do what he did.He did it anyway.I don’t believe for a second that LTC Lakin is a coward or was trying to get out of going to Afghanistan.Rather, I believe that he willingly made himself a tool of the birther cause, thinking that he would succeed in forcing discovery where others had failed.He was wrong in that legal judgment.But he was even more wrong in trying to use his military rank and status as a tool to forward a political objective.Now that Republicans control the House of Representatives, a committee chairman can subpoena records from Hawaii to establish that President Obama was born there.Or states can enact statutes requiring a certified birth record from a candidate’s state of birth.Those are political remedies — and that’s where remedies lie.I really don’t care whether such political avenues are pursued.I’m also entirely confident that if such measures are pursued, they will establish that the state of Hawaii certifies that President Obama was born there — just as Dr. Fukino said after examining Hawaii’s official birth records.(I still have yet to hear anyone provide a plausible rationale as to why Dr. Fukino’s statements don’t extinguish any reasonable doubt that President Obama was born in Hawaii.)What I do care about is a fellow military officer misusing his rank and status for political ends — and misusing the military justice system as a tool.With LTC Lakin’s defense counsel having abandoned his birther defense, even LTC Lakin’s supporters must see that there’s no chance that his gambit will succeed in obtaining still more documentary proof as to President Obama’s birthplace.LTC Lakin was told ahead of time he wouldn’t succeed.For unknown reasons, he nevertheless proceeded to throw away his career.That isn’t a miscarraige of justice or a travesty — it’s simply career suicide.

    Thank you.

  194. yguy says:

    Christopher Mathews — with whom you’ve been debating — is one of the most highly respected military appellate judges in recent times;

    However respected he may be, he has opined that the US military would work very under the command of a usurper; and it is abrasively clear that there is nothing respectable about such an opinion.

  195. Dwight Sullivan says:

    yguy, in your delusional view, there is a usurper as Commander-in-Chief. And the U.S. military is working very well.

  196. yguy says:

    @yguy: “And impeachment is required to remove from the office of the Presidency a person who does not legally exercise presidential authority because…?”

    __The characterization, of course, is yours.

    Since you have agreed that eligibility is a requirement, on what basis would you take issue with it?

    Impeachment is required to remove anyone who has been inaugurated into the office of the presidency.

    It’s certainly required to remove any President who was legally inaugurated, but we’re talking about a scenario in which he was not.

  197. yguy says:

    yguy, in your delusional view, there is a usurper as Commander-in-Chief.

    Direct quote and link, please.

  198. BigGuy says:

    @yguy — “It’s certainly required to remove any President who was legally inaugurated, but we’re talking about a scenario in which he was not.”
    __

    We’re talking about a scenario in which you assert he was not, and perhaps your assertions will receive a hearing to determine whether they are factual.

    But, since he was inaugurated, it will have to be done through impeachment proceedings.

    Fortunately, you are a great supporter of the Constitution, so you shouldn’t have any problem going along with its provisions.

  199. Dwight Sullivan says:

    Well, for starters, there’s this:

    “yguy
    Submitted on 2010/07/30 at 6:28pm

    . . . .

    No, I see his refusal to provide credible evidence of his eligibility for office as a mark of culpability, seeing it would have been every bit as easy to publish that as it was to publish the COLB.”

    Are you now suggesting that you do not believe that President Obama is constitutionally ineligible? I, for one, would welcome such a pronouncement.

  200. Capt. Obvious says:

    Well, for starters, there’s this:“yguy
    Submitted on 2010/07/30 at 6:28pm. . . .No, I see his refusal to provide credible evidence of his eligibility for office as a mark of culpability, seeing it would have been every bit as easy to publish that as it was to publish the COLB.”Are you now suggesting that you do not believe that President Obama is constitutionally ineligible?I, for one, would welcome such a pronouncement.

    BAZINGA ! ! :-D

  201. yguy says:

    Well, for starters, there’s this:

    “No, I see his refusal to provide credible evidence of his eligibility for office as a mark of culpability, seeing it would have been every bit as easy to publish that as it was to publish the COLB”

    You’ve taken it out of context. As anyone can see who follows the conversation from here can see, I referred to culpability for the Lakin situation specifically, and there was no accusation of usurpation.

    Are you now suggesting that you do not believe that President Obama is constitutionally ineligible?

    I have not changed my position, which never included any assertion that he is ineligible. You have merely misrepresented it.

  202. Dwight Sullivan says:

    yguy, without regard to whether you have ASSERTED that President Obama is constitutionally ineligible, do you BELIEVE it? We all believe a great many things that we’ve never asserted in comments on a blog. So do you or do you not believe that President Obama is constitutionally ineligible?

  203. gorefan says:

    did Justice Thomas ever talk about evading the issue before?

    Hi Steve

    Actually, Congressman Serrano mentioned it, in 2008.

    Congressman Serrano: “Although I must say on a personal level that for about 10 years I’ve been trying to get out of you an unofficial comment on whether or not someone born in Puerto Rico can serve as president.”

    See, Justice Thomas has been evading the question for 10 years.

    You are reading way too much into an old private joke.

  204. sg says:

    I am left with nothing but awe for the most classy rapier strike I’ve seen a long time.

  205. sg says:

    And there you are wrong. The military branches of the United States government are working exceptionally well at executing their constitutionally and legislatively mandated responsibilities.
    The military just isn’t working well for yguy’s purposes.
    These are not the same things.

  206. sg says:

    For some reason, this didn’t nest properly earlier, so I am reposting it.

    I am left with nothing but awe for the most classy rapier strike I’ve seen a long time.

  207. Capt. Obvious says:

    However respected he may be, he has opined that the US military would work very under the command of a usurper; and it is abrasively clear that there is nothing respectable about such an opinion.

    Then PLEASE, PLEASE, we beseech thee! Reward the poor, knowledge hungry masses with your real name and jurist credentials AS WELL so that we may bask in the awesome credibility and highest legal authority of he who has heretofore only been known to us on this grand stage and other forums as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . YGUY.

    Won’t you, can’t you grant us that small privilege, o wondrous sage?

  208. KyAtty says:

    Steve,

    Apparently, you still haven’t read the 12th Amendment to the Constitution, as I recommended. The determination has already been made by the constitutionally appointed authorities that President Obama is the President. He will remain the President until the end of his term of office, or until the Senate establishes the fact that he committed a “high crime or misdemeanor”, such as altering or forging an official document of the State of Hawaii, by convicting him in an impeachment trial. No provision of the Constitution allows a colonel or any other member of the armed forces to question the determination by the Electors and Congress as to who shall be President. If you want to stand on the Constitution, you have to accept all of it, and not just the parts you like.

  209. Reality Check says:

    @BigGuy

    You don’t understand. The inauguration never really happened. You may have thought you saw it on your TV. It was all a hoax staged in the Arizona desert using trick photography and mirrors. Just ask yguy.

  210. Reality Check says:

    @yguy –
    “However respected he may be, he has opined that the US military would work very under the command of a usurper; and it is abrasively clear that there is nothing respectable about such an opinion.”

    I am not sure I understand what “abrasively clear” is supposed to mean but in this case I will assume you meant to say “abundantly clear”.

    It is sad that you fail to appreciate one of the most beautiful and brilliant concepts in the United States Constitution. It has been explained to you before by Judge Mathews and others who understand it perfectly. It is the concept of civilian control of the military. That also means a complete separation of the process of selecting those civilian leaders from the military. You are advocating that any officer can violate one of the basic tenants of the Constitution. IMO the writers of the document would say that is the first step toward a military junta.

  211. yguy says:

    So do you or do you not believe that President Obama is constitutionally ineligible?

    Neither. I recognize it as an open question.

  212. yguy says:

    @yguy — “It’s certainly required to remove any President who was legally inaugurated, but we’re talking about a scenario in which he was not.”
    __We’re talking about a scenario in which you assert he was not, and perhaps your assertions will receive a hearing to determine whether they are factual.

    It doesn’t matter whether there is a hearing or not, since my assertion that no one who is ineligible for the Presidency can be President is factual – and you know it as well as I do, even if you’d sooner die than admit it.

  213. BigGuy says:

    @yguy — “my assertion that no one who is ineligible for the Presidency can be President is factual”
    __

    No, it is not factual, it is farcical. It implies that, should it be determined some time in the future that a historical, long-deceased President wasn’t eligible, we would have to conclude that that person never was President.

    Cite the authorities who hold that view, please.

  214. yguy says:

    Then PLEASE, PLEASE, we beseech thee! Reward the poor, knowledge hungry masses with your real name and jurist credentials AS WELL so that we may bask in the awesome credibility and highest legal authority of he who has heretofore only been known to us on this grand stage and other forums as . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . YGUY.Won’t you, can’t you grant us that small privilege, o wondrous sage?

    I have no legal credentials whatsoever. Is it not a crying shame, then, that a nobody like me has brains enough not to say anything as thunderously idiotic as a man of letters like Mathews saw fit to put his name to?

  215. Dwight Sullivan says:

    yguy, what Judge Mathews said wasn’t a legal judgment — it was a military judgment. He was making the point that the military can continue to operate efficiently even if there’s a defect in the Presdident’s constitutional eligibility.

    You say it’s an open question as to whether President Obama is constitutionally eligible. I disagree. Given the statements that Dr. Fukino has made and the fact that the U.S. government actually investigated President Obama’s citizenship in 1967 and determined that he was a U.S. citizen because he was born in Hawaii, I think there’s no reasonable doubt that President Obama is constitutionally eligible. But you apparently believe otherwise. So unless you think that the U.S. military isn’t operating well, then you must believe that the U.S. military can act well even if asomeone who may not be constitutionally eligible is in office.

  216. Dwight Sullivan says:

    Well, then it’s not actualy “[n]either.” You don’t beleive that President Obama is constitutionally ineligible. (Nor do you believe that he’s constitutionally eligible.)

  217. yguy says:

    @yguy –
    “However respected he may be, he has opined that the US military would work very under the command of a usurper; and it is abrasively clear that there is nothing respectable about such an opinion.”

    I am not sure I understand what “abrasively clear” is supposed to mean

    It’s a way of noting that clarity is always abrasive to those who are wedded to their delusions.

    It has been explained to you before by Judge Mathews [] who understand[s] it perfectly.

    He doesn’t understand the first thing about the Constitution. No one who does would make a pronouncement so flamboyantly insane that even his allies can’t defend it except by attacking me.

    It is the concept of civilian control of the military. That also means a complete separation of the process of selecting those civilian leaders from the military.

    I’m perfectly aware of it, and nothing I’ve said contravenes it.

    You are advocating that any officer can violate one of the basic ten[e]ts of the Constitution.

    No, I merely note that no officer may constitutionally obey any order that originates with a person claiming presidential authority who does not have it.

  218. Steve Schulin says:

    Christopher: You are mistaken in your description of my claim. I’ve already distinguished between the scope of appellate review and the underlying meaning of “de novo”.

    Your observation that I haven’t cited a case establishing that the authority to give orders depends on the qualifications of the President is true enough. I have been clear, however, in emphasizing that there is no precedent for our current situation, so the lack of a prior case should not be so surprising.

    Let’s get back to the underlying meaning of “de novo”, the reason that the term was chosen as appropriate to use in the sense that you choose to exclusively focus upon.

    de novo: Anew, afresh, from the beginning; without consideration of previous instances, proceedings or determinations

    Lt. Col. Lakin said why he was going to disobey deployment orders. The reason I cited the New snippet about de novo review was because it clearly notes that there’s something different about deployment orders than other types of orders. That difference, I continue to contend, shows that the kind of dismissive and disparaging comments here grouping deployment with other types of orders have been unwarranted.

    You appear to claim that ‘de facto officer’ doctrine prevents Lt. Col. Lakin from lawfully defending the Constitution as he said he was trying to do. A true “from the beginning” review of this argument has not been performed, and Judge Lind’s ruling forecloses such a review in the court martial.

    You comment on my use of the term slackers. You mistakenly claim that I used it to describe folks in the military. I did not. The slackers I had in mind are those who have demonstrated that they are slackers, such as the Members of Congress who failed to defend the Constitution on the day that the Electoral College votes were counted. One of the Reps. that day ran for Senate this year, and came on to one of AIP’s regular America’s Summit calls. I had the chance to ask him why he remained silent on the eligibility matter that day. His answer was that he did not know at the time that there was a problem, although he now understands that there is. He’s an example of those who have demonstrated themselves to be slackers.

    Another poster says you’re a respected judge. Well, your own gratuitous comments here, and the insulting prior speculation you raised don’t seem so judicious to me.

  219. BigGuy says:

    @ygug — “I merely note that no officer may constitutionally obey any order that originates with a person claiming presidential authority who does not have it.”
    __

    Not even close. In the first place, as Judge Lind made clear, “The three orders at issue in specifications 1-3 of Charge II are alleged to be authorized by LTC William Judd, COL Gordon Roberts, and COL Peter M. McHugh, respectively. Whether President Obama is a natural born citizen or is qualified under the Constitution to hold office is not relevant to determine whether they are authorized to issue the orders charged.”

    And, in the second place, you are neglecting the well establish de facto officer doctrine.

    Claiming that recognized experts don’t know what they’re talking about, by the way, doesn’t help your credibility one bit, especially since you have yet to cite the credible authorities who share your view. Even Lakin’s attorney says you’re wrong.

    You have a staggering sense of self-importance, don’t you!

  220. yguy says:

    @yguy — “my assertion that no one who is ineligible for the Presidency can be President is factual”
    __No, it is not factual, it is farcical.

    Then so is the Constitution.

    It implies that, should it be determined some time in the future that a historical, long-deceased President wasn’t eligible, we would have to conclude that that person never was President.

    Your point being…?

    Cite the authorities who hold that view, please.

    Cite those who have addressed it directly.

  221. Steve Schulin says:

    BigGuy, you’re right to suspect that I mistakenly replied to your comment about “true meaning of the Constitution” as if you had directed the comment to me. My mistake. Thanks for pointing that out.

  222. BigGuy says:

    @yguy: “Your point being…?”
    __

    My point is simple. The Constitution (12th Amendment) says that “The person having the greatest Number of votes for President, shall be the President.” Barack Obama had those votes; he is the President.

    The Constitution also says, “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” Therefore, if Obama did not meet those requirements, he was not eligible to be President.

    Both of those Constitutional provisions have full force. Therefore, if the President is ineligible, he is an ineligible President rather than a non-President.

    But, you know, you’ve come up with a great idea for defense attorneys! For example, if you look up New York State law, you will find Section 509, which says, ” ..no person shall operate or drive a motor vehicle … unless he is duly licensed …”.

    So, anyone found behind the wheel without a license has nothing to fear — under the law, if he’s not duly licensed, he cannot have been driving.

  223. yguy says:

    yguy, what Judge Mathews said wasn’t a legal judgment — it was a military judgment. He was making the point that the military can continue to operate efficiently even if there’s a defect in the Presdident’s constitutional eligibility.

    That’s nowhere close to a fair interpretation of what he said.

    I do not claim that any nominal President who is ineligible is a usurper ipso facto, nor do I dispute that the military can kill people and break things regardless of who is running it. My claim was that a with usurper as CiC, the military cannot serve well the purposes of the American people, and Mathews directly contradicted that.

  224. Reality Check says:

    @yguy

    So tell us. Just who makes the final call on eligibility? Is it the 50 secretaries of state plus the equivalent in the District of Columbia who certified the ballots and the election results? Is it the voters who made their choice? Is if the electoral college who cast their ballots? Is it Congress who certified the vote without objection? Is it the courts who have ruled 71 times that they have no business getting involved? Or, is it you and LTC Lakin?

    All elections have an end. The election of 2008 is over. Unless I am mistaken Barak Obama won and won Constitutionally. President Obama has the Constitutional authority of the office and anyone who thinks he doesn’t is living in a fantasy world. The only consequence of denying that reality on a blog are to make oneself look like an idiot to the readers. Unfortunately, LTC Lakin acted upon his idiocy and will likely suffer more severe consequences for that action.

  225. yguy says:

    ineligible President

    Under the Constitution there is no such thing, obviously.

    But, you know, you’ve come up with a great idea for defense attorneys! For example, if you look up New York State law, you will find Section 509, which says, ” ..no person shall operate or drive a motor vehicle … unless he is duly licensed …”.So, anyone found behind the wheel without a license has nothing to fear — under the law, if he’s not duly licensed, he cannot have been driving.

    I never said an ineligible person can’t wield the authority of the office, I just said he can’t do it legally. Nevertheless, while actions taken by a driver cannot be disavowed, many actions taken by a nominal President can be; and since the Constitution requires that bills be signed into law only by someone only by someone with the authority to do so, no bill which passes by a simple majority can properly be considered law absent the signature of an eligible President.

  226. Dwight Sullivan says:

    On the contrary, that seems to be precisely the point he made:

    http://www.caaflog.com/2010/07/19/ltc-lakin-speaks-again/#comment-16442

    But since Judge Mathews is a contributor to this blog, perhaps we will hear from the horse’s mouth what he meant.

  227. BigGuy says:

    @yguy — “ineligible President/
    Under the Constitution there is no such thing, obviously.”
    __

    Pure poppycock. If he’s satisfied Article XII, he is the President. If he hasn’t satisfied the eligibility clause, he’s ineligible. If both are true, he’s an ineligible President. I’ll go with logic rather than your declarations about what’s obvious. It’s logically possible to be an ineligible President just as it’s logically possible to be an unlicensed driver. Neither situation is legal, and both have legal remedies.

    “I never said an ineligible person can’t wield the authority of the office, I just said he can’t do it legally.”

    And part of the authority of office is being protected by the political question doctrine. If he’s occupying the office illegally, impeachment is the perfect solution — and even constitutional.

  228. Dwight Sullivan says:

    Mr. Schulin, your post above confirms that you don’t understand what the term of art “de novo review” means.

    You wrote: “The reason I cited the New snippet about de novo review was because it clearly notes that there’s something different about deployment orders than other types of orders.” No; no it doesn’t. (Of course, LTC Lakin isn’t charged with violating deployment orders, so such a concept would be inapplicable even if it were true, which it isn’t.)

    In New, CAAF stated: “This Court reviews the question of whether the military judge correctly determined that an order was lawful on a de novo basis. 48 MJ at 277.” United States v. New, 55 M.J. 95, 106 (C.A.A.F. 2001). The citation is to United States v. Padgett, 48 M.J. 273 (C.A.A.F. 1998), which involved not a deployment order but an order not to be involved with a 14-year-old girl. New then quotes United States v. Hughey, 46 M.J. 152 (C.A.A.F. 1997). That case involved not a deployment order, but rather an order to pay the balance of a government credit card.

    Later, CAAF stated: “The determination whether lawfulness of the order to deploy is a political question and thus nonjusticiable is reviewed on a de novo standard. Padgett, 48 MJ at 277.” New, 55 M.J. at 109. Again, that concept isn’t limited to deployment orders; nor could it be, since as we’ve already seen, Padgett isn’t a deployment order case.

    New can’t be limited to deployment orders, since it relied on and applied precedent having nothing to do with deployment orders.

    Note also CAAF said the issued is REVIEWED under a de novo standard. The term “reviewed” refers to the standard of review that an appellate court applies upon appeal from the court-martial level; it doesn’t speak to the legal test to be applied by the military judge. (By the way, Christopher Mathews, with whom you’re debating, was a highly respected military appellate judge who literally applied standards of review for a living. He knows what he’s talking about.)

    You then once again demonstrate your misunderstanding of the term by stating: “You appear to claim that ‘de facto officer’ doctrine prevents Lt. Col. Lakin from lawfully defending the Constitution as he said he was trying to do. A true ‘from the beginning’ review of this argument has not been performed, and Judge Lind’s ruling forecloses such a review in the court martial.” Under New, Judge Lind was tasked with determining whether the orders given to LTC Lakin were lawful. She held that they were because the officers who issued those orders had independent legal authority to do so, meaning that those orders were legally enforceable without regard to the President’s constitutional eligibility. That was a complete “from the beginning” (to use your words) analysis of the issue. Once that determination was made, it was irrelevant whether the President was or wasn’t constitutionally eligible. Courts are told not to decide irrelevant issues and under the doctrine of constitutional avoidance, they are especially admonished to avoid speaking unnecessarily about constitutional matters. Again, these are longstanding jurisprudential rules that anyone advising LTC Lakin before he decided to commit career suicide should have briefed him about.

    Finally, Judge Lind didn’t even rely on the de facto officer doctrine, holding that the orders were legal without regard to that doctrine. But that doctrine, as enunciated (among other places) in Ryder v. United States, 515 U.S. 177, 180-81 (1995), provides that orders given by President Obama while in the Office of the President would be given legal validity even if it were later determined that he was constitutionally ineligible. So that doctrine would preclude LTC Lakin from successfully arguing that he was not legally required to obey his orders even if discovery were to establish that President Obama wasn’t constitutionally eligible. And since discovery couldn’t have changed the answer to the lawfulness question, the documents and testimony sought to be discovered were legally and factually irrelevant.

  229. yguy says:

    @yguy — “ineligible President/
    Under the Constitution there is no such thing, obviously.”
    __Pure poppycock. If he’s satisfied Article XII, he is the President. If he hasn’t satisfied the eligibility clause, he’s ineligible. If both are true, he’s an ineligible President.

    Yeah, I get it. You think eligibility is optional, even though you said just the opposite earlier. Dunno if I’m allowed to say what that reveals about your honesty, but I’m pretty sure you can do the math.

  230. Christopher Mathews says:

    On the contrary, that seems to be precisely the point he made … But since Judge Mathews is a contributor to this blog, perhaps we will hear from the horse’s mouth what he meant.

    Thank you, Colonel Sullivan. I’m especially grateful that you specified the part of the horse’s anatomy that you did.

    The colonel’s paraphrase is precisely what I meant, yguy, as you’ll recall I pointed out to you several months ago. You may believe that understanding to be “nowhere close to a fair interpretation” of what I said, but inasmuch as it’s correct, it’ll have to do. Life’s not fair sometimes.

    Since you seem to have taken my words to heart, though, it would perhaps be helpful to ensure we share a common understanding of what you meant when you originally wrote that the military “won’t work very well with a usurper running it, at least as far as the purposes of the American people are concerned.” I understood you to be referring to the performance of the military, but perhaps you meant something else.

    So, what are the purposes of the American people you believe the military should be serving, yguy, and do you believe the military is doing so well today?

  231. Christopher Mathews says:

    Colonel Sullivan has nicely explained the error in your understanding of the term “de novo review,” Steve.

    When and if LTC Lakin’s case reaches the appellate stage, Judge Lind’s determination that the orders he disobeyed were lawful will be entitled to that level of scrutiny. I don’t doubt that she will be upheld — and, apparently, neither does his new attorney. But then, as I explained before, this is not a particularly difficult case from a legal standpoint. I know you don’t believe that to be true, and you’re of course entitled to your opinion, although it’s not one shared by people with experience in this particular area of expertise.

    Finally, I’m pleased to learn that you did not mean to imply that Judge Lind — whose rulings you previously described as “specious” and said were furthering a “travesty” — is someone who also deserves to be called a “slacker.” Your clarification is appreciated.

  232. yguy says:

    @yguySo tell us. Just who makes the final call on eligibility? Is it the 50 secretaries of state…

    Wrong question. What should be asked is whether those people exercised due diligence in light of the eligibility clause, for which there is no evidence in the affirmative, as none have claimed to have seen a certified copy of the original BC. Once the relevant documentation has been released, the final call goes to the Judiciary, assuming it doesn’t do anything outrageous.

    Unless I am mistaken Barak Obama won and won Constitutionally.

    Then discovery of the relevant documentation won’t be a problem for you.

  233. BigGuy says:

    @yguy — “Yeah, I get it. You think eligibility is optional, even though you said just the opposite earlier.”
    __

    No, you continue to show that you do not get it. Eligibility is required, it is not optional. Just as a driver’s license is required to drive, it is not optional.

    But there is a difference between a legal requirement and a logical requirement. Logically, it is possible for an unlicensed person to drive. Similarly, it is logically possible for an ineligible person to become President. Both situations are contrary to law and require remedy, which the law provides in both cases.

    It is true that it would be illegal for an ineligible person to be become President. But it is not impossible, any more than it is impossible for an unlicensed person to drive.

  234. obsolete says:

    If not Obama, who is the legal President since 2009?
    Bush would be very near the ten year limit on holding the office, and Biden was never sworn in as President….
    What a sticky wicket birthers have woven!

  235. obsolete says:

    If not Obama, who is the legal President since 2009?
    Bush would be very near the ten year limit on holding the office, and Biden was never sworn in as President….
    What a sticky wicket birthers have woven!

    (sorry- my reply was supposed to be here)

  236. yguy says:

    The colonel’s paraphrase is precisely what I meant, yguy,

    Then what you meant is rather different from what you said.

    as you’ll recall I pointed out to you several months ago.

    I recall no such thing.

    You may believe that understanding to be “nowhere close to a fair interpretation” of what I said, but inasmuch as it’s correct

    No, it is not. I made a clear and unequivocal statement, and you contravened it in like manner; so if that is not what you meant to do, the error is yours to correct.

    Since you seem to have taken my words to heart, though, it would perhaps be helpful to ensure we share a common understanding of what you meant when you originally wrote that the military “won’t work very well with a usurper running it, at least as far as the purposes of the American people are concerned.”I understood you to be referring to the performance of the military, but perhaps you meant something else.

    Yeah, sure, maybe I meant the performance of the Ecuadorian Olympic gymnastics team, huh?

    So, what are the purposes of the American people you believe the military should be serving, yguy,

    It doesn’t matter. What matters is that it cannot serve those purposes well with a usurper in the role of CiC.

    Do I really have to explain why? Really??

  237. yguy says:

    it is logically possible for an ineligible person to become President.

    Sure it is, if one takes care to exclude the eligibility clause from one’s logical framework, which is precisely what your contention demands.

  238. Christopher Mathews says:

    Since you’ve advanced the proposition that the military cannot serve certain purposes, but you refuse to say what those purposes are — no, I rather think our discussion is finished.

  239. Dr. Conspiracy says:

    A state court action removing a state governor is not a federal precedent any more than the state constitution is the US Constitution.

  240. Reality Check says:

    yguy:

    Wrong question. What should be asked is whether those people exercised due diligence …Once the relevant documentation has been released, the final call goes to the Judiciary, assuming it doesn’t do anything outrageous.

    Wrong question? Only because you choose not to or simply cannot answer it. So just what part of the Constitution are you citing and what US Code that says the Judiciary can remove a sitting president (unless they do something outrageous)?

    yguy:

    Then discovery of the relevant documentation won’t be a problem for you.

    Not a problem at all. http://video.google.com/videoplay?docid=3268535214706484890#

  241. BigGuy says:

    @yguy — “Sure it is, if one takes care to exclude the eligibility clause from one’s logical framework, which is precisely what your contention demands.”
    __

    Ah, yes. I have often smiled at your self-important delusion that your view of the Constitution trumps that of all the experts.

    But now you have invented your own logic. You have outdone yourself.

  242. sg says:

    It doesn’t matter. What matters is that it cannot serve those purposes well with a usurper in the role of CiC.

    Do I really have to explain why? Really??

    Yes, you do. Nobody here sees what purpose you think you’re getting at.
    We still kill people and break things just as well as we did on the 19th of January, 2008. We still threaten to kill people and break things just as well as we did. We still deliver humanitarian aid wherever and whenever necessary.
    Congress still controls the purse strings and in fact controls the very authority for the various military branches to exist, and for officers to give and enforce orders.
    In other words, we still do the things that we are required by law and by the constitution to do, just as well as we did them under President Bush.
    I noted as much earlier, and in that same post I noted that we weren’t performing YOUR purposes.
    So, since no one here understands what you’re after, it’s on you to either explain it or to live with the various suppositions as to your goals, motives, and intelligence.

  243. Rickey says:

    What matters is that it cannot serve those purposes well with a usurper in the role of CiC.Do I really have to explain why? Really??

    If, as you claim, the military cannot serve the purposes of the American people well with a usurper as CiC, it would logically follow that if Obama is a usurper, there would be evidence that the military has not served the American people well during the past 22 months.

    On the other hand, if the military has served the American people well during the past 22 months, by your standards that would be evidence that Obama is not a usurper.

    Feel free to introduce evidence that the U.S. military has not served the American people well since Obama took office.

  244. Greg says:

    Yguy:

    Nevertheless, while actions taken by a driver cannot be disavowed, many actions taken by a nominal President can be; and since the Constitution requires that bills be signed into law only by someone only by someone with the authority to do so, no bill which passes by a simple majority can properly be considered law absent the signature of an eligible President.

    Nope. There’s this thing in the law that predates the United States, it’s called apparent authority.

    Instead of explaining basic law to you, can you not see the stunning absurdity of your position?

    Perhaps a hypothetical will elucidate:

    The year is 2125 and a time-traveler goes back in time and discovers iron-clad evidence that George Washington was ineligible for the Presidency when he took office.

    You REALLY think that everything that Washington did was invalid? That not a single bill signed by him was ever really a law?

    The law doesn’t work that way, yguy. The world doesn’t work that way.

    Another example:

    COO contracts with supplier to provide material for a major project. The supplier delivers the material and asks for their money. The company says, “Wait, we found out that the COO was ineligible for his position. Our bylaws require that he have been an employee for 12 years, and he was only an employee for 12 months! So, we won’t be paying you – he was never COO.”

    The company loses and the supplier wins.

    THAT’S the way the law works, yguy.

    Maybe you should stop talking about the law until you learn about the basic concepts – those that will allow you to understand what I’ve said above. What I’ve described is how the world ACTUALLY works. You have a different view of how it SHOULD work. Your view is wrong and, therefore, you should be able to conclude that your understanding of the law is similarly flawed!

  245. Maureen says:

    Questions were raised during the campaign all not answered. The chain of command starts with the Pres., if he’s not eligible the chain is broken.
    ———–
    Urgent Keyes Update – Obama Silencing Decorated Army Colonel

    Obama is openly attacking those who dare force him
    to prove his eligibility to be President.

    This time it’s a decorated Army officer…

    ALERT: IN DECEMBER Lieutenant Colonel Terrence (“Terry”) Lakin is being COURT-MARTIALED in an effort to SILENCE HIM and others for daring to demand proof that their orders are constitutionally lawful!
    The United States Constitution clearly states that a U.S. President must be a NATURAL BORN CITIZEN. If this is a non-issue as Obama and his minions continue to insist, WHY has Obama spent millions of TAXPAYER dollars on lawyers and court proceedings to block any and all proof of his citizenship?

    Colonel Lakin needs you to TAKE ACTION NOW… Proof Positive has set up an easy way for you to DONATE and make your voice heard LOUD AND CLEAR — by sending “Blast Fax Petitions” to Obama and hundreds of U.S. Congressmen and Senators AT ONCE to their home offices.

    Lieutenant Colonel Terrence (“Terry”) Lakin serves as Chief of Primary Care and Flight Surgeon for the Pentagon’s DiLorenzo TRICARE Health Clinic. He was the lead Flight Surgeon charged with caring for Army Chief of Staff General Casey’s pilots and air crew. LTC Lakin’s numerous awards and decorations include the Army Flight Surgeon Badge, Combat Medical Badge, the Bronze Star Medal, the Meritorious Service Medal, the Army Commendation Medal with two Oak Leaf Clusters, the Army Achievement Medal with one Oak Leaf Cluster, the National Defense Service Medal with Bronze Service Star, the Armed Forces Expedition Medal, the Army Reserve Component Achievement Medal, the Army Service Ribbon, the Overseas Service Ribbon sixth award and the NATO service medal. He has served previously in Honduras, Bosnia, El Salvador, Korea, and Afghanistan. LTC Lakin is a highly decorated American hero.

    LTC Lakin received military orders in late February for redeployment to Afghanistan. Those orders included a requirement that he provide “copies of his birth certificate.” As LTC Lakin prepared to provide a certified copy of his certification of vital record that lists his birth hospital, physician’s name and other key information; he found it incredibly ironic and troubling that the current Commander in Chief, Barak Obama, has never provided the same information.

    As an Army Officer, LTC Lakin has sworn an oath to “support and defend” the U.S. Constitution. In addition, he and all other military personnel are bound by the Uniform Code of Military Justice 809.ART.90(20) which states military personnel have an obligation and a duty to only obey Lawful orders and indeed have an obligation to disobey Unlawful orders, including orders by the president that do not comply with the UCMJ. Their moral and legal obligation is to the U.S. Constitution and not to those who would issue unlawful orders.

    And here is the crux of LTC Lakin’s dilemma, and that of every other commissioned officer now serving in the U.S. military. If a superior officer issues a command relying on the authority of an individual claiming to be President of the United States, who is not constitutionally eligible for the office, is obedience to that order consistent with the officer’s sworn duty to uphold, “support and defend” the Constitution? Can an order be lawful if it violates the Supreme law of the land?

    LTC Lakin is risking his distinguished 18-year military career — and facing the prospect of a dishonorable discharge, loss of his military pension, and years at hard labor in a military prison — by conscientiously refusing to redeploy to Afghanistan until the “President” submits to the rule of law. LTC Lakin is not attempting to avoid deployment. In fact his record of service and previous deployments stand as a testament of LTC Lakin’s willingness to serve his country whenever and wherever he must.

  246. BigGuy says:

    @Maureen —

    Judge Lind said: “The three orders at issue in specifications 1-3 of Charge II are alleged to be authorized by LTC William Judd, COL Gordon Roberts, and COL Peter M. McHugh, respectively. Whether President Obama is a natural born citizen or is qualified under the Constitution to hold office is not relevant to determine whether they are authorized to issue the orders charged.”

    Neal Puckett, LTC Lakin’s attorney, said: “She was right on the facts and right on the law” and “All those issues concerning the president’s eligibility to hold office are completely irrelevant as to whether Lt. Col. Lakin was issued lawful orders and whether he obeyed them.”

    Do you understand that? The attorney representing LTC Lakin disagrees with you and has rejected the prospect of using the President’s eligibility as an element in his defense. You are beating a very, very dead horse.

  247. Capt. Obvious says:

    As well as presumably, give and receive many other orders.

  248. yguy says:

    Since you’ve advanced the proposition that the military cannot serve certain purposes,

    Pretty sad that such a respected personage has, or pretends to have, so much difficulty understanding plain English.

  249. yguy says:

    yguy:
    Wrong question? Only because you choose not to or simply cannot answer it.

    But as you can plainly see, I did answer it.

    So just what part of the Constitution are you citing and what US Code that says the Judiciary can remove a sitting president (unless they do something outrageous)?

    You didn’t ask about removal. You asked who has the “final call”. The relevant provision, of course, is A3S2C1

    yguy:
    Not a problem at all. http://video.google.com/videoplay?docid=3268535214706484890#

    I don’t click on video links just because they’re there. ;)

  250. yguy says:

    Yes, you do.Nobody here sees what purpose you think you’re getting at.

    It doesn’t matter what the job is, it only matters who wants it done, which in the case of the US military is the American people. Can a usurper, who by definition has contempt for the will of the American people, reasonably be expected to use the military so as to carry out their purposes, yes or no?