In a judicial smackdown reminiscent of the Orly Taitz saga, the investigating officer in the court martial of Birther Army doctor Terrence Lakin has denied Lakin’s request to compel President Obama to testify, robbing the Birthers of what they hoped would be a golden opportunity to try the “eligibility” question in a high-stakes trial setting.
Lakin is being court martialed for refusing to follow orders to deploy to Afghanistan on the grounds that Obama is not eligible to be president and that therefore, in Lakin’s view, all military orders are illegitimate.
Investigating Officer Lt. Col. Daniel Driscoll ruled in a June 1 memo that he is denying a request to have Obama testify and that he will not review any materials relating to Obama’s eligibility to be president, including birth records and the like, according to a copy (.pdf) of the order released by the American Patriot Foundation, which is backing Lakin.
“The Defense submitted a Memorandum outlining the concept of chain of command, showing that the President is at the top of the chain, showing that the Constitution requires the President to be a natural born citizen, and stating that soldiers must disobey ‘illegal orders,’” Driscoll explains in the memo. “There is no scholarly discussion of what constitutes an illegal order or under what circumstances such an order can be disobeyed or must be disobeyed. Rather, the Defense baldly asserts. ‘[LTC Lakin’s] submission is that if the president is ineligible under the constitution to serve in office, then axiomatically no order given by him is valid.’”
He continues: “The Government does not charge that the President gave an order directly to LTC Lakin. For the President’s credentials to have any bearing on the charges against LTC Lakin, the Defense proposition must be that military orders issued by superiors to juniors are all ‘invalidated’ during the period the President improperly holds office. This proposition fails to account f or the law of lawfulness of` orders, which in essence requires that a facially proper order be obeyed so long as it does not require the commission of a criminal act. …The Defense alters no legal support whatever for its position, which I find to be far from ‘axiomatic.’ As far as I have found, the position has no basis in law.”
A couple more highlights:
“The Defense also fails to assert a legal basis by which its request might be allowable under the law of political questions, whereby courts will refrain from inserting themselves in matters constitutionally relegated to equal branches of Government. The Defense quest to use a military justice forum to invalidate all military authority while undermining the authority of a sitting United States President certainly appears at first blush to be a nonjudiciable political question.”
“ln my view our constitutional jurisprudence allows Congress alone, and not a military judicial body, to put the President’s credentials on trial. For this reason and the reasons stated … above, it is my opinion the discovery items pertaining to the President’s credentials are not relevant to the proof of any element of the charges and specifications set forth in the charge sheet. Consequently I will not examine the documents or witnesses pertinent to the President or his credentials to hold office.”
Driscoll is however, allowing the Lakin’s attorney to call Alan Keyes as a witness for reasons that are unclear. A preliminary hearing is set for June 11.