Lakin says he “invited” a court-martial because he did not see Congress or the courts “stepping up to the plate” to address the question of the President’s eligibility.  The Congress, of course, certified the electoral college vote prior to the President’s inauguration and the courts have repeatedly rejected prior birther suits; but Lakin does not mention these facts in the video or explain why these are not in his view examples of stepping up.  Lakin also does not explain why he believes he was entitled to disobey the orders of his immediate superiors or his deployment orders while at the same time exercising the authority of his own rank and drawing a military paycheck.   Perhaps these issues will be addressed in a future video release, or during his cross-examination.

While mostly a rehash of the accused’s former statements, the video does contain one interesting nugget of information:  Lakin says “If the original birth certificate is released and validated, I would gladly deploy immediately.”  Putting aside the question of what sort of “validation” would be required (the video is silent on that point), it appears that he has for now decided not to pursue any of the various other birther theories of Presidential disqualification.

There’s a great quote from a gunnery sergeant who pronounces it “luh-JERN.”  The reporter asks what he does when he hears a junior Marine say “luh-JUNE.”  He responds, “He gets corrected.”  The reporter then asks the gunny, what if someone senior pronounces it “luh-JUNE.”  He responds, “It might be mentioned.”

Blog of the Legal Times, with a h/t to CAAFlog for breaking the story.

Suits and Sentences from McClatchy.

Judge Baker wrote for a unanimous court.

More later.

A friend o’ CAAFlog called out attention to this announcement from last Thursday’s Federal Register providing notice that DOD has established the panel’s charter.  Here are the areas that the panel is required to study:

i. The emergent operational law requirements of the U.S. Navy and the U.S. Marine Corps, including requirements for judge advocates on joint task forces, in support of rule of law objectives in Iraq and Afghanistan, and in operational units;

ii. New requirements to support the Office of Military Commissions and to support the disability evaluation system for members of the U.S. Armed Forces;

iii. The judge advocate requirements of the Department of the Navy for the military justice mission, including assignment policies, training and education, increasing complexity of court-martial litigation, and the performance of the U.S. Navy and U.S. Marine Corps in providing legally sufficient post-trial processing of cases in general courts-martial and special courts-martial.

iv. The role of the Judge Advocate General of the Navy, as the senior uniformed legal officer of the Department of the Navy, to determine whether additional authority for the Judge Advocate General over manpower policies and assignments of judge advocates in the U.S. Navy and U.S. Marine Corps is warranted;

v. Directives issued by the U.S. Navy and the U.S. Marine Corps pertaining to jointly-shared missions requiring legal support;

vi. Career patterns for U.S. Marine Corps judge advocates in order to identify and validate assignments to non-legal billets required for professional development and promotion[.]

Hintzman initially sought refugee status, which was denied.  He then filed for a Pre-Removal Risk Assessment (PRRA) and permanent residency in Canada on humanitarian and compassionate grounds.  The Immigration Officer who reviewed Hinzman’s PRRA application concluded that the UCMJ’s prohibitions against desertion and absence without leave were laws of general application and that prosecution under such generally applicable laws did not establish a well-founded fear of persecution.  The Immigration Officer also found that there wasn’t convining evidence that the United States was unwilling or unable to protect Hinzman. The same Immigration Officer also rejected teh permanent residency request.

According to the Court of Appeal, in denying the permanent residency request, the Immigration Officer focused on the wrong issue.  According to the court, the key issue was “will Mr. Hinzman be subjected to disproportionate hardship if returned to the United States, regardless of the existence of a law of general application or state protection and notwithstanding other findings on differential treatment and due process?”  The Immigration Officer, ruled the Court of Appeal, failed to address that question when ruling on the permanent residency application.

The Court of Appeal explained:  “The beliefs and motivations of Mr. Hinzman were of important significance to the ultimate decision, given the context of an H&C application.  The appellants had also provided some evidence that the right to conscientious objection ‘is an emerging part of international human rights law’.”  The Immigration Officer erred by failing to discuss these factors in her decision denying permanent residency on humanitarian and compassionate grounds.

The Court of Appeal emphasized that its ruling shouldn’t be construed as suggesting any particular outcome for Hintzman and his family.  The court concluded by setting aside the Immigration Officer’s decision denying the permanent residency application and remanding the application “for redetermination by a different officer.”

Let’s just say that the Lady Gaga angle was not one I expected.

Manning has been identified as the source of a gun camera video depicting an engagement in Iraq in which a number of civilians, including children, were killed and wounded.  He is also believed to have accessed 150,000 classified State Department cables using his SIPRnet access, some of which were delivered to non-cleared persons.  The persons  in question are presumably the proprietors of WikiLeaks.org, which has published a number of purported classified cables on its internet site.

A copy of the charge sheet appears here.

Eight-year-old Anthony DeWeese from the Rancho Penasquitos neighborhood of San Diego was killed and five members of the three families were injured. The boy died of “blunt force trauma,” according to the county medical examiner.

Witnesses alleged that the Coast Guard vessel was speeding recklessly. The Coast Guard initially said its vessel was rushing to help a stranded boat.

Sounds like a tragedy all the way around.

Judge Sloviter wrote for a unanimous panel.  She’s a Carter appointee.  She was joined by Judges Barry and Hardiman, who were appointed by Presidents Clinton and George W. Bush, respectively.

In addition to rejecting the appeal, the court ordered Mr. Apuzzo “to show cause why just damages and costs should not be imposed on him for having filed a frivolous appeal.”  He has 14 days to show cause.

The court held that the plaintiffs lacked standing.  The court noted that it reached a similar conclusion in Berg v. Obama, 585 F.3d 234 (3d Cir. 2009).

The court notes that two of the plaintiffs “attempt to distinguish themselves from the public at large, point[ing] out that they took oaths to defend and support the Constitution as part of their past service in the Armed Forces and the National Guard.”  The court rejected that argument for standing:

Turning to the argument of Kerchner and Nelsen that their oaths to protect and defend the Constitution “increase[ ] their adversarial posture,” Appellants’ Br. at 56, no court has found that a plaintiff established “injury in fact” simply because s/he had once taken such an oath. Carving out an exception on that basis would still leave an impermissibly large class with unique ability to sue in federal court. See, e.g., 10 U.S.C. § 502(a) (requiring all military personnel to take an oath “swear[ing] . . . [to] support and defend the Constitution of the United States.”). Kerchner’s assertion of  standing on the ground that he, who has been retired from the Naval Reserves since 1995, may be required to serve the Commander in Chief as a combatant in the case of an “extreme national emergency,” Kerchner, 669 F.Supp.2d at 483 (quotation and citation omitted), is to no avail because it is conjectural. See Lujan, 504 U.S. at 560.

The court found the appeal to be frivolous.  The court explained:

We have stated that “an appeal from a frivolous claim is likewise frivolous.” Beam, 383 F.3d at 108.  Appellants had ample notice that this appeal had no merit. They should have  been aware that we rejected almost identical claims in Berg, as have courts in other jurisdictions. . . .

Examination of this precedent would have made it “obvious to a reasonable attorney that an appeal from the District Court’s order was frivolous, [as no] law or facts . . . support a conclusion that the District Court judge had erred.” Beam, 383 F.3d at 109. Moreover, other courts have imposed sanctions for similar reasons.

Congratulations to Mr. DeCicco and Professor Goldblatt!

Ed. Note: Anyone know for sure whether wikipedia and wikleaks are related/unrelated? I have no idea and don’t mean to suggest above that they are. A: From the reading I did on the Metro the answer appears to be no relationship, but feel free to re-educate me.

As I mentioned in my earlier post, the most interesting question in the case was whether the officer had an expectation of privacy in personal text messages sent through the service to the government owned pager.  Unfortunately SCOTUS avoided the issue, though stating that the interest they assumed was “limited,” and avoided establishing a single test to determine if there is a privacy interest in the government employee context, by finding that even if there was a privacy interest the search was reasonable.  SCOTUS will likely wait for a case to percolate up where the search is arguably unreasonable to decide the more interesting issue.  Here are some key portions of the opinion:

Even if Quon had a reasonable expectation of privacy in his text messages, petitioners did not necessarily violate the Fourth Amendment by obtaining and reviewing thetranscripts. Although as a general matter, warrantless searches “are per se unreasonable under the Fourth Amendment,” there are “a few specifically established and well-delineated exceptions” to that general rule. Katz, supra, at 357. The Court has held that the “‘special needs’” of the workplace justify one such exception. O’Connor, 480 U. S., at 725 (plurality opinion); id., at 732 (SCALIA, J., concurring in judgment); Von Raab, 489 U. S., at 666–667.

Under the approach of the O’Connor plurality, when conducted for a “noninvestigatory, work-related purpos[e]”or for the “investigatio[n] of work-related misconduct,” a government employer’s warrantless search is reasonable if it is “‘justified at its inception’” and if “‘the measures adopted are reasonably related to the objectives of the search and not excessively intrusive in light of’” the circumstances giving rise to the search. 480 U. S., at 725– 726. The search here satisfied the standard of the O’Connor plurality and was reasonable under that approach.

The search was justified at its inception because there were “reasonable grounds for suspecting that the search [was] necessary for a noninvestigatory work-related purpose.” Id., at 726. As a jury found, Chief Scharf ordered the search in order to determine whether the character limit on the City’s contract with Arch Wireless was sufficient to meet the City’s needs. . . .

Because the search was motivated by a legitimate work related purpose, and because it was not excessive in scope, the search was reasonable under the approach of the O’Connorplurality. 480 U. S., at 726. For these same reasons—that the employer had a legitimate reason for the search, and that the search was not excessively intrusive in light of that justification—the Court also concludes that the search would be “regarded as reasonable and normal in the private-employer context” and would satisfy the approach of JUSTICE SCALIA’s concurrence. Id., at 732. The search was reasonable, and the Court of Appeals erred by holding to the contrary. Petitioners did not violate Quon’s Fourth Amendment rights.

For avid Court followers, an amusing exchange between Justice Stevens and Scalia over the relevance of a dissent in a 4-1-4 decision makes their concurrences worth reading.

Here’s a link to the Fourth Circuit’s published decision in the case.  United States v. Joshua, __ F.3d ___, No. 10-6281 (4th Cir. June 14, 2010).  Judge Duncan wrote for a unanimous panel, affirming the United States District Court for the Eastern District of North Carolina’s ruling.

The Fourth Circuit concluded that as a contractual boarder, Joshua wasn’t “in the custody of the Bureau of Prisons” as that term is used in the Adam Walsh Child Protection and Safety Act of 2006, codified at 18 U.S.C. § 4248(a).

The court noted that the statute’s term “custody” could refer to either physical or legal control. The court concluded that Congress intended the latter for purposes of the civil commitment statute. The court concluded that the Army, rather than the BOP, had ultimate legal control over Joshua. Accordingly, he was not “in the custody of the Bureau of Prisons.”

It’s apparent from one of Mr. Jensen’s web sites, here, that he was personally involved in making LTC Lakin’s initial video (available here)  in which LTC Lakin declared his intent to “disobey what I believe to be illegal orders” and have himself court-martialed.  California Rule of Professional Conduct 3-210, available here, governs “Advising the Violation of the Law.”  It provides:  ”A member shall not advise the violation of any law, rule, or ruling of a tribunal unless the member believes in good faith that such law, rule, or ruling is invalid.  A member may take appropriate steps in good faith to test the validity of any law, rule, or ruling of a tribunal.” 

Thus, Mr. Jensen did not violate Rule 3-210 if, when he at the very least helped LTC Lakin make his video declaring his intention to violate orders, including his order to deploy to Afghanistan, Mr. Jensen believed in good faith that the orders LTC Lakin intended to disobey were invalid.  And that raises a factual issue as to Mr. Jensen’s specific intent about which I have insufficient information to opine whether he violated Rule 3-210.

Of course, no lawyer who had performed adequate research should believe that LTC Lakin’s deployment orders were invalid.  Thus,if Mr. Jensen did have the good faith belief necessary to sail into Rule 3-210’s safe harbor, he might have violated California Rule 3-110 by failing to apply the proper diligence and learning and skill before at the very least helping LTC Lakin make his first video.

I’m on the road right now, so I won’t be discussing the merits of LTC Lakin’s statements.  I’m unlikely to revisit his claims this weekend, both because we’ve discussed some of them before and they are well debunked elsewhere.  But more importantly, LTC Lakin’s arguments about President Obama are irrelevant for purposes of his court-martial.  Even if his suspicions had merit (they don’t), the orders that he received and disobeyed would still be legally valid.  As discussed by the Supreme Court in Ryder v. United States, the de facto officer doctrine would give effect to government officials’ actions even if one of their superiors were improperly in office.  The Supreme Court said the de facto officer doctrine exists to prevent the chaos that would occur were an official’s disqualification to invalidate the government’s actions.  LTC Lakin and his supporters appear to invite such chaos by giving military personnel unilateral discretion to obey or disobey orders at their pleasure.  No military or civilian court will accept that position.  Nor should they.