Here is a link to the S.O.C. press release announcing that LTC Lakin’s motions for deposition of various Hawaiian officials will be heard of Sep 2 at Ft. Meade. It also provides excerpts for a declaration for a Retired Air Force–Air Force, not Army–Lieutenant General supporting LTC Lakin’s request for President Obama’s birth records. Some of the declaration is reprinted on the website, but here is the gist:

If [Pres. Obama] is ineligible under the Constitution to serve in that office that creates a break in the chain of command of such magnitude that its significance can scarcely be imagined.
 
As a practical example from my background 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.

I couldn’t agree more. As to relevance . . .

Here’s a link to a Leavenworth Times article about the “Leavenworth 10 Freedom Ride,” which will be held on 4 September in Leavenworth, Kansas.  The event, organized by Army First Lieutenant Michael Behenna’s father, is a rally for eight servicemembers confined at the USDB who were convicted of homicides in Iraq.  (Two of the “Leavenworth 10,” including Marine Sergeant Lawrence G. Hutchins III, have been released.)

The event will be held entirely off-post.

Here’s a link to the event’s website.

Here’s a link to the Navy Times‘ coverage of the BOI for Navy CAPT Lisa Nowak (better known as the diaper-wearing astronaut attempted kidnapper).  As the Navy TImes reports, the BOI comprised of three Navy admirals recommended that she be separated with an OTH and reduced to commander for retirement pay purposes. What the Navy Times doesn’t report is that one of the recorders was our very own CDR Jason Grover, the Super Muppet of Advocacy.

NIMJ’s blog provides this link to DOD’s final report on the Fort Hood shootings.

I thought about titling this post using a line from Hawkeye Pierce, with friends like that, who needs enemas? I mean do these people really think their loud support will help PFC Manning with a convening authority, military judge or, particularly a members panel?

But, this WaPo article took me to another question. And it arises from this indisputable fact, PFC Manning volunteered–in fact, volunteered rather recently–to be in the Army.

My question is, why would someone with these beliefs volunteer to be in the Army and volunteer to be an intelligence specialist? I don’t get the feeling that PFC Manning was in the Army for years and the horrors of war convinced him that this whole thing was wrong. Though I could be wrong about that and am open to being re-educated.

And one last piece of advice for PFC Manning, when you retain an attorney, I’d think about getting a recently RAD’d Army MAJ/LTC that has served in an infantry unit or a forward area or put his life in another mans hands, and in return, asked him to put his life in the officer’s hands. Just a thought.

Talk amongst yourselves.

Here is a link to the decree (it is in Dari and I haven’t had it translated yet), the press conference (partially in English), and today’s WaPo article on the situation (here).  This will raise interesting questions about who stands guard at the gates of US bases in Afghanistan.  Not totally MilJus but an interesting set of events.

Editorial comment: The Spokesperson’s Office for the Afghan Ofice of the President was incredibly helpful and efficient in getting me the presidential decree.  Makes me think there is hope for the Afghan government.

Thanks to one of our highly valued readers for alerting us to this split published 9th Circuit opinion holding the Stolen Valor Act unconstitutional.  United States v. Alverez, __ F.3d ___, No. 08=50345 (9th Cir. Aug. 17, 2010).  Judge Milan Smith wrote for himself and Judge Nelson.  Judge Bybee dissented.  I see a request for en banc rehearing on the horizon.

The beginning of Judge Bybee’s dissent summarizes the case’s factual setting:

Xavier Alvarez, a California public official, stood in a public meeting and announced that he was a retired Marine, a wounded veteran, and the recipient of the Congressional Medal of Honor. Alvarez was lying on all counts. He pleaded guilty to violating the Stolen Valor Act of 2005 (“Act”), which punishes a person who “falsely represents himself or herself, verbally or in writing, to have been awarded any decoration or medal authorized by Congress for the Armed Forces of the United States.” 18 U.S.C. § 704(b).

(The majority explains that Mr. Alvarez, a member of the Three Valley Water District Board of Directors, unsuccessfully moved to dismiss his indictment on First Amendment grounds.  He then pleaded guilty, reserving his right to appeal the First Amendment question.)

The majority opinion relies, in small part, on the Onion, the Daily Show, and the Colbert Report:

[T]here can be no doubt that there is affirmative constitutional value in at least some knowingly false statements of fact. Satirical entertainment such as The Onion, The Daily Show, and The Colbert Report thrives on making deliberate false statements of fact. Such media outlets play a significant role in inviting citizens alienated by mainstream news media into meaningful public debate over economic, military, political and social issues.

Judge Bybee’s dissent distinguishes known satire or dramatic presentations from the sort of false claim that Mr. Alvarez made and concludes:  “Assuming, as I must, that the Act will be applied with some modicum of common sense, it does not reach satire or imaginative expression.”

The Supreme Court has declined to stay the $20,000 fine levied by U.S. District Court Judge Clay Land against California attorney Orly Taitz.

Ms. Taitz, who represented Army CPT Connie Rhodes in her challenge to the President’s eligibility (and who may have exceeded her client’s direction in doing so, according to this letter from CPT Rhodes), was cited last year by Judge Land for violating Fed.R.Civ.P. 11.  In a foreshadowing of United States v. Lakin, Judge Land noted that Ms. Taitz “provided no legal authority to support the proposition that even if the President were found not to be eligible for the office, that this would mean all soldiers in the military would be authorized to disregard their duty as American soldiers and disobey orders from their chain of command.”  Rhodes v. MacDonald, 670 F. Supp. 2d 1363, 1376-77 (M.D. Ga. 2009), aff’d, No. 09-15418 (11th Cir. Mar. 15, 2010).  The judge concluded that the action brought and maintained by Ms. Taitz was an attempt “to use the legal process for an improper purpose” — i.e., the political goal of removing the President. Id., 670 F. Supp. 2d at 1379.

After losing her bid to have the sanctions overturned by the Eleventh Circuit, Ms. Taitz sought a stay from Justice Thomas, who turned her down.  She was undeterred: “It was never seen by Justice Thomas, there’s not evidence it was seen by Justice Thomas.”  With her request now rejected by the full Court, she reportedly questions whether the justices actually decided her request:

Taitz told TPMMuckraker she is convinced that none of the members of the court read her request, and that clerks made the decision for the justices.

Ms. Taitz claims she is in no danger of failing to pay her fine, when and if she accepts its legitimacy: “I have means to pay, the public is collecting funds … Within a month, I will have the $20,000.”

One of the most remarkable things about the 2009 term — other than the small number of cases that CAAF decided — was the imbalance in opinion writing.  CAAF decided 43 cases by formal opinion.  Two of those were issued per curiam.  Another two of those (Smith, 68 M.J. 445, and Cowgill, 68 M.J. 388) didn’t have an opinion of the court.  That leaves 39 opinions of the court to divvy up among CAAF’s five judges.  But instead of four judges writing eight opinions and one writing seven, here’s what we had:

Judge Erdmann:  10

Judge Stucky:  9

Judge Ryan:  9

Judge Baker:  6

Chief Judge Effron:  5

This term saw an increase in polarized outcomes compared to last term; 9 of CAAF’s 43 formal opinions (21%) were resolved by 3-2 or 2-1-2 votes, up from 15% last year, though the percentage is almost the same as that from the term before that.  Judge Stucky was the most likely to be in the majority in a 3-2 outcome (8/9).  (As we’ll see, Judge Stucky was in dissent only twice all this term.)  Judge Erdmann was by far the least likely to be on the winning side of a 3-2 opinion (2/9).  Judge Baker was second most likely to be in the majority of a 3/2 opinion (7/9), while Chief Judge Effron and Judge Ryan were tied for third place (5/9).

As those numbers would suggest, Judge Erdmann cast the most dissenting votes:  7.  Chief Judge Effron and Judge Baker were tied for second place with 5.  Judge Ryan dissented 4 times while, as noted above, Judge Stucky dissenting only twice.  But Judge Baker was the most likely judge to cast a sole dissenting vote, with 3.  Judge Erdmann, who dissented the most, never dissented alone.  Nor did Judge Ryan.  Chief Judge Effron and Judge Stucky each dissented alone once.

Judge Baker was the most likely to write a separate concurring opinion (5), with Judge Stucky second (3).  Chief Judge Effron wrote 2 while neither Judge Erdmann nor Judge Ryan penned a concurrence.

Remarkably, while Judge Erdmann cast the most dissenting votes, he tied with Judge Ryan for writing the fewest dissenting opinions — 2.  Chief Judge Effron and Judge Baker tied for writing the most dissenting opinions — 5 each.

And now for the pairings of which judges are most to least likely to vote together, with the number of times those two judges voted together in non-unanimous cases indicated in parentheses [note that for this purpose, two judges are considered to have voted together if they supported the same outcome, even if they issued or joined separate opinions reaching that result]:

1.  Judge Stucky & Judge Ryan (10/13)

2.  Judge Erdmann & Judge Ryan (9/13)

3.  Chief Judge Effron & Judge Erdmann (8/13)

4.  [TIE] Chief Judge Effron & Judge Stucky (7/13)

                   Judge Baker & Judge Stucky (7/13)

6.  Chief Judge Effron & Judge Baker (6/13)

7.  [TIE]  Chief Judge Effron and Judge Ryan (5/13)

                   Judge Baker & Judge Ryan (5/13)

                  Judge Erdmann & Judge Stucky (5/13)

10.  Judge Baker & Judge Erdmann (3/13)

These pairings are fairly consistent with last year’s with two principal exceptions:  the Judge Stucky-Judge Ryan pairing moved quite a ways up the list while the Chief Judge Effron-Judge Baker pairing moved quite a ways down.

When I crunched the Silver CAAF Tongue Award numbers, I overlooked the oral argument in United States v. Moore, No. 09-5005, which resulted in a summary disposition.  Once Moore is added to the mix, my former colleague Maj Marla Gillman ties Maj Coretta Gray as this year’s Silver CAAF Tongue Award winner.  Congratulations to Maj Gillman, our first-ever appellate defense winner.