Judge removes 'birther' elements from Army doc's court martial

[Tx4obama]

Source: CNN

(CNN) -- A judge on Thursday denied a request for President Barack Obama to testify at a court martial for a U.S. Army flight surgeon who refused to deploy to Afghanistan until he saw proof that Obama was born in the United States.

The judge, Army Col. Denise Lind, said any evidence or witnesses related to Obama's citizenship is irrelevant to the charges against Lt. Col. Terrence Lakin, who has 17 years of service in the U.S. military.

After failing to deploy with his unit in April, Lakin was charged with missing a movement, disobeying a lawful order and dereliction of duty.

The Uniform Code of Military Justice says the maximum punishment for both offenses -- missing his plane and disobeying lawful orders -- is a dishonorable discharge and up to two years in confinement. A guilty verdict could also result in forfeiture of Lakin's pay, which totals $7,959 a month, according to a charge sheet provided by a group sponsoring his defense.

Read more: http://www.cnn.com/2010/CRIME/09/02/birther.court.martial/index.html

[alp227]

1. Judge removes 'birther' elements from Army doc's court martial

Source: CNN

(CNN) -- A judge on Thursday denied a request for President Barack Obama to testify at a court martial for a U.S. Army flight surgeon who refused to deploy to Afghanistan until he saw proof that Obama was born in the United States.

The judge, Army Col. Denise Lind, said any evidence or witnesses related to Obama's citizenship is irrelevant to the charges against Lt. Col. Terrence Lakin, who has 17 years of service in the U.S. military.

After failing to deploy with his unit in April, Lakin was charged with missing a movement, disobeying a lawful order and dereliction of duty.

The Uniform Code of Military Justice says the maximum punishment for both offenses -- missing his plane and disobeying lawful orders -- is a dishonorable discharge and up to two years in confinement.

Read more: http://www.cnn.com/2010/CRIME/09/02/birther.court.martial/index.html

[hlthe2b]

2. As predicted... he is f__ked

Good

[underpants]

26. He denied an order and a troop movement

that is big shakes in the Army.

She removed it because it doesn't matter- Did you fail to follow an order? Yes or No

the answer is clearly YES

[ladywnch]

4. Any military folk........ can he appeal this stuff? If so, how far can he appeal?

I know this can't wind up in SCOTUS but is there some military equivalent?

[happyslug]

5. Yes, he can appeal, but only after the trial and once he is sentenced (if Convicted)

Then it is reviewed by the General who authorized the Court Martialed, then to the "Court of Criminal Appeals" for whatever service the Officer is in (In this case the "Army Court of Military Criminal Appeals"), and then to the "United States Court of Appeals for the Armed Forces" then to the "US Supreme Court" (Both the "United States Court of Appeals for the Armed Services" and the "US Supreme Court" have complete discretion whether to take the case or not, I do not see EITHER court taking the case).

What the Defendant can do, is admit guilt i.e. he admits he missed movement and the other charges and reserve his right to appeal on the ground Obama is not legally the President of the United States. The trial Court will sentence him and then he has the right to appeal on that issue. I suspect the sentence will be he will NOT have to serve any jail sentence (Which I doubt will be ordered), but will be ordered to pay back 2/3rds of his pay as a fine, and get a dishonorable discharge. At that point he can appeal, the dishonorable discharge will be effective at that point, but the courts will hold off as to the Fine (And any possible jail time) till after the appeal process (Just like in regular federal courts in most cases).

I do NOT see the convening General changing the Sentence (he or she can do so). Thus the next real appeal will be to the "Army Court of Criminal Appeals" and then to the "United States Court of Appeals for the Armed Services" (But only if the United States Court of Appeals for the Armed Service decides to take the case, it takes less then 10% of all cases asked to be reviewed by it). I see both courts agreeing with the Trial Judge that it is NOT a defense against that charge, thus denying him his appeal (And this being such a clear argument I see the "United States Court of Appeals for the Armed Forces" saying so when denying the request for review).

The Defendant then can file an appeal to the US Supreme Court, who will refuse to hear the case. At that point the appeal process is over and the fine must be paid (or start to be paid). The Dishonorable discharge remaining on his record.

Now if on Appeals, the Defendant does prevail the dishonorable discharge will be vacated, but I do NOT see any court reversing the decision of the Trial Judge.

Here is the site for the "US Court of Appeals for the Military Services" i.e The Court of Military Appeals:
http://www.armfor.uscourts.gov/

If you want to read more about the court here is their PDF pamphlet:
http://www.armfor.uscourts.gov/CAAFBooklet2009.pdf

Wikipedia web site on the "Army Court of Military Criminal Appeals":
http://en.wikipedia.org/wiki/Army_Court_of_Criminal_Appeals

[ladywnch]

6. thank you very much for this explanation. I didn't realize military trials

could ever wind up in front of SCOTUS......just thought they were kinda two different worlds. Based on,'United States Court of Appeals for the Armed Service taking less than 10% of the cases sent for review'....I'm with you, I can't see them taking this one as one of the 10%.

thanks again.

[old mark]

13. The military court will be intereseted in several things - If the Colonel

did in fact refuse to obey his orders (he did, several times), if he did so deliberately (he did, by his own admission) and if his unit was being moved to a combat area (they were, and he knew it). The rest has no bearing on anything.

This guy is a tool of the birthers and rascist haters, and he is going to pay a very high price for that foolishness while they abandon him. They will make comments while he is in prison, but he will pay for their delusions.


mark

[ladywnch]

15. I knew he was toast, I just didn't know how long he could drag out the process.

I didn't really think he could beat this rap. He's standing in quicksand holding an anchor.....it's just a matter of time.

[happyslug]

19. This comes up in cases if Illegal Orders, the law presumes all orders are legal

Thus even if Obama is NOT a US Citizen, the law PRESUMES he is for he is holding the office of PRESIDENT and the burden is on the person alleging that Obama is NOT legally President.

This comes up in cases where someone disobeys what he considers an illegal order. The burden is on the person who disobeyed the order that it is illegal NOT on the person who gave the Order. Thus if an officer ORDERS someone to open fire on Women and Children, the soldier has a choose, dis-obey the order and face a Court Martial OR open fire (In training the lower ranking person is told to ask to make sure that is what the Senior Officer WANTS and can ask for the Order in Writing, either request generally causes the order to be rescinded).

If the Lower Ranking person opens fire, he can claim he believed the ORDER was lawful and the burden is on the person who said the order was UNLAWFUL. i.e. Prove that the Lower Ranking Person KNEW what he was doing was illegal in addition to proving he did the illegal act. On the other hand if the Lower Ranking Person dis-obeys the Order he (or she) MUST prove that the Order was Illegal or be convicted of dis-obeying a lawful order.

Notice the issue is who has the burden of proof. If you dis-obey an Order make sure the ORDER is Illegal BEFORE you dis-obey it. If you obey the ORDER, any burden of proof is on the other side i.e. not only to prove the Order will Illegal BUT you knew it was Illegal.

I bring this up, for he is in quicksand holding onto an anchor. He has to prove that Obama's Orders are illegal. To do so he must present such evidence independent of whatever Obama may say (and the Court will assume Obama will says he is a Citizen).

Furthermore, the law follows a rule in the Catholic Canon Law, an action of a person NOT qualified to do the act (i.e. Someone acting as a priest when he is NOT) does NOT make the act void (i.e. if you are married by a de-flocked priest or someone acting as a priest, the marriage is still valid under Catholic Canon Law, same with penitence, communion and the other sacraments). Please note this assumes the person getting the Sacrement does NOT know the person giving it should NOT be, you must be innocent of the fraud of the person providing the Sacrement.

I bring this up for the Military follows the same concept, the mere fact someone is NOT legally permitted to give an Order, does NOT mean he can not do so AND SUCH ORDERS ARE VALID. Thus even if it is NOT legal for Obama to be President, his Orders as President are still VALID. You can NOT dis-obey an order because you believe someone should NOT be in Command. Orders are to be followed unless illegal.

Illegal orders are orders that are illegal in themselves i.e. being order to do a War crime etc. A lawful Order from a person you do NOT think should be in Command (and NOT "Lawfully" in Command) but who is exercising the Command, in your chain of command, makes the Order a lawful Order even if it is later found you were correct and he was NOT lawfully in Command. In simple terms if the person is in your chain of Command, you MUST obey his or her Orders UNLESS you can show it is an illegal order (I knew one enlistee who did this by pointing out he was doing the repair NOT as his superiors told him but how the Military Repair Manual said to do the repair, the Manual is an ORDER and as such his proof that the order from his superior was "unlawful", the case never went pass the NCO in charge for that reason).

Please note someone NOT you your chain of Command can make an Illegal order to you and as such you have the right (and the Duty) to disobey that Order, but that is NOT an issue here for the President is the top of EVERY chain of Command so claiming he is NOT in your chain of Command is also a not starter of a legal argument.

[Hekate]

21. Fascinating, especially the reference to Canon Law, which goes back to the Middle Ages.

I knew this guy was going to be screwed six ways from Sunday for believing the Birthers, but it is amazing just how thoroughly.

Hekate

[happyslug]

27. I found that clause of Canon Law when looking something else up

Canon Law in NOT applicable to this case, my point was to show THE CONCEPT that if someone is holding a position illegally, his or her actions are still legal if a person holding that position lawfully could do the same actions. Obama is holding the office of the President of the United States and as such any order he issues is a VALID Order everyone below him MUST obey.

There are exceptions to this rule, for example an Order from a person NOT in your Chain of Command (Not an issue here for Obama is on top of EVERY Military Chain of Command), someone who illegally holds an office by force, i.e. someone who calls himself President after a coup.

The problem is the rule is quite clear and the exceptions do NOT apply, thus this officer is dead in the water.

[librechik]

16. his delusions as well--he bought in to that nonsense, so it's on his shoulders

even though his idiocy is so convenient. After he's out of prison he can gho on Fox as a military expert. They'll love him like they love Ollie North.

[jberryhill]

18. Abandon him? He'll be a "political prisoner" and "martyr of the cause"!

What would be absolutely hilarious is for him to be convicted and receive a pardon from Obama.

I want to see him in Leavenworth arguing that Obama doesn't have the authority to pardon him.

[old mark]

20. You might have a long wait for that - very few people stay in Leavenworth

voluntarily, although I understand conditions have improved, even to the extent of having a female warden...I'm sure it's just wonderful now.


mark

[Tx4obama]

7. Thanks for the info and links! n/t

[savalez]

23. Now that's a fact-filled response! Impressive. Thanks.

[Lasher]

28. Will he also be required to pay back the cost of his education?

I ask this because I assume his medical education was funded by the military, and I believe there is potential for abuse. That is to say, if someone were to disobey orders after obtaining their medical degree, with a motive to renege on their military obligation, then go on to practice medicine in the private sector.

[Name removed]

11. Deleted message

Sub-thread removed by moderator. Click here to review the message board rules.

[happyslug]

17. What his distractors want does NOT exist

What his distractors want is a "Birth Certificate" written by someone present at his birth and was notarized and approved by a Judge at the same time (and even THAT will NOT be suffice for some distractors).

The law this has been clear since the 1920s, when the Daughter of Three Time Democratic Nominee, William Jennings Bryan was elected to Congress. During WWI she had served with the State Department in Britain, and married a Citizen of that Country. Under the Common Law, she lost her US Citizenship and gained British Citizenship. She and her husband moved back to the US, she took the oath for Citizenship to restore her US Citizenship but was elected less then Seven years after she took the oath of Citizenship. Under the US Constitution a non native born American Citizen can NOT be a member of Congress unless that person has been a Citizen for at least Seven years. Thus her election caused a dilemma for the GOP Controlled Congress of that time period. Should this Democratic Congresswoman be seated? Furthermore it was a strong Democratic Seat, so no chance of the Republican winning the seat. Thus the GOP was facing a situation where they were to deny a woman, born in the US, elected to the House her seat on a technical ground that she "Lost" her seat by marring a Citizen of an Allied Country.

After a lot of Debate the House of Representation ruled that she had NEVER lost her citizenship and sat her. To make this clear Congress wrote the PRESENT LAW ON WHAT IS NATIVE BORN. Basically taking the Case of Congresswoman Bryan as the base, Congress ruled that you do NOT lose your Citizenship upon Marriage, and you are a "Native Born" American if one of your parents is an American Citizen at the time of your birth.

In simple terms even if Obama was born in Kenya, he is still a "Native Born American" as defined by Congress. And the only Court in which that finding of fact can be Challenged is the House of Representatives and then ONLY on the day the House hears who the Presidential Electors who voted for. That was in January 2009 thus the issue is moot even for Congress.

[Hekate]

22. Sonovagun. There it is in the law based on the case of Congresswoman Bryan

My gods, it was there all the time. The Birthers and those who claim to be their legal brains are even more complete idiots than I gave them credit for. I knew he was considered a citizen from birth no matter where he was born because of his mother, but I never knew when and how that came about -- or that it was so late in our history.

"After a lot of Debate the House of Representation ruled that she had NEVER lost her citizenship and sat her. To make this clear Congress wrote the PRESENT LAW ON WHAT IS NATIVE BORN. Basically taking the Case of Congresswoman Bryan as the base, Congress ruled that you do NOT lose your Citizenship upon Marriage, and you are a "Native Born" American if one of your parents is an American Citizen at the time of your birth.
In simple terms even if Obama was born in Kenya, he is still a "Native Born American" as defined by Congress. And the only Court in which that finding of fact can be Challenged is the House of Representatives and then ONLY on the day the House hears who the Presidential Electors who voted for. That was in January 2009 thus the issue is moot even for Congress."

Happyslug, you've made me very happy. It's learning stuff like this that made me stay at DU after I came for refuge from Bush, and there's been all too little of it lately. Thank you.

Hekate

[Lasher]

29. Me too, wish I could double dog rec this thread on account of happyslug's contributions.

:thumbsup:

[Toots]

12. Out of curiosity, what is the purpose of copying and pasteing the original post

Is it just to build your post count without having to add anything to the discussion? :shrug: I don't get it..

[Brother Buzz]

14. Our efficient moderators combined threads for our reading enjoyment

Simple, really.
http://www.democraticunderground.com/discuss/duboard.php?az=show_mesg&forum=102&topic_id=4527037&mesg_id=4527037

[struggle4progress]

3. Well, that's no surprise. The alternative would invite every crackpot in uniform

to litigate some favorite half-baked theory about the chain-of-command: "General Putz legally just can't be my CO because he is actually not a real person but a douche-bag" or whatever :eyes:

[47of74]

8. TRENDING: Judge removes ‘birther’ elements from Army doc's court martial

Source: CNN

(CNN) - A judge on Thursday denied a request for President Barack Obama to testify at a court martial for a U.S. Army flight surgeon who refused to deploy to Afghanistan until he saw proof that Obama was born in the United States.

The judge, Army Col. Denise Lind, said any evidence or witnesses related to Obama's citizenship is irrelevant to the charges against Lt. Col. Terrence Lakin, who has 17 years of service in the U.S. military.

Read more: http://politicalticker.blogs.cnn.com/2010/09/02/judge-rejects-consideration-of-obamas-birth-record-in-trial/

---

May I just say to this doctor...

[rpannier]

9. Granstanding BS

The guy is trying to get media attention and sympathy by refusing to deploy

[Tansy_Gold]

10. Dupe

http://www.democraticunderground.com/discuss/duboard.php?az=view_all&address=102x4527036

[24601]

24. The President's is irrelevant and in any case, he didn't any orders

to this officer. You can bet that LTC Lakin receives movement orders from far lower subordinates. Further, the Manual for Courts Martial says nothing about the President's birth status being an element of proof for this article. Here's the Article for Missing Movement:

"Any person subject to this chapter who through neglect or design misses the movement of a ship, aircraft, or unit with which he is required in the course of duty to move shall be punished as a court-martial may direct.”

Elements.

(1) That the accused was required in the course of duty to move with a ship, aircraft or unit;

(2) That the accused knew of the prospective movement of the ship, aircraft or unit;

(3) That the accused missed the movement of the ship, aircraft or unit; and

(4) That the accused missed the movement through design or neglect.

Nope, nothing about "At the time of project movement, the President has to prove he is a natural-born citizen."


Let's check out disobeying Orders....

Any person subject to this chapter who—


(1) violates or fails to obey any lawful general order or regulation;

(2) having knowledge of any other lawful order issued by a member of the armed forces, which it is his duty to obey, fails to obey the order; or

(3) is derelict in the performance of his duties; shall be punished as a court-martial may direct.”

Elements.

(1) Violation of or failure to obey a lawful general order or regulation.


(a) That there was in effect a certain lawful general order or regulation;

(b) That the accused had a duty to obey it; and

(c) That the accused violated or failed to obey the order or regulation.

(2) Failure to obey other lawful order.


(a) That a member of the armed forces issued a certain lawful order;

(b) That the accused had knowledge of the order;

(c) That the accused had a duty to obey the order; and

(d) That the accused failed to obey the order.

(3) Dereliction in the performance of duties.


(a) That the accused had certain duties;

(b) That the accused knew or reasonably should have known of the duties; and

(c) That the accused was (willfully) (through neglect or culpable inefficiency) derelict in the performance of those duties.

Hmmm, not there - he's Fracked. "7 years of College down the drain"

[Name removed]

25. Deleted message

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