[Discovery is part of the pre-trial litigation process during which each party requests relevant information and documents from the other side in an attempt to “discover” pertinent facts.]
Lt. Col. Terry Lakin is a Bronze Star-decorated surgeon in the U. S. Army. He is risking imprisonment for refusing orders of deployment to Afghanistan on the grounds of Obama’s questionable authority as Commander-in-Chief because he has not established his eligibility to be President as the Constitution’s specified “natural born citizen.” Article 2, Section 1 of the U.S. Constitution reads:
“No person except a natural born Citizen, or a Citizen of the United States … shall be eligible to the Office of President…”
At least two other active U.S. military officers had brought lawsuits about Obama’s birth eligibility and, in both cases, the military backed down by not pursuing the matter. That the Army elected to court martial Col./Dr. Lakin surprised many. There are three charges against Lakin:
- Missing movement
- Failure to obey orders of three military officers
- Dereliction of duty
All along, Lakin’s hope is that by triggering a court martial, through the defendant’s right of discovery, the military would be forced to subpoena the White House for Obama’s original long-form birth certificate — not the image of the Certificate of Live Birth that the Obama campaign put on Factcheck.org’s website in 2008.
But military lawyers were skeptical, saying that Lakin has chosen the wrong venue to make his case. Fox News reported on April 23, 2010:
“He is likely to lose everything and accomplish nothing,” one attorney lamented. “No military judge will say that (obtaining documents) of the president is necessary to prove the charges,” said Philip D. Cave, a Washington attorney and director of the National Institute of Military Justice. Cave said that the validity of Lakin’s orders, under military law, does not depend on the president but on the chain of command. “He will be convicted and is in jeopardy of dismissal,” he said. Dismissal, for a military officer, is the same as a dishonorable discharge for an enlisted servicemember.
“We all feel saddened,” said David Price, a former captain and 25-year veteran of the Navy Judge Advocate General’s office, now in private practice. “He was issued an order to deploy and didn’t. End of issue,” he said. He said the military has dealt with these types of cases since Vietnam, when soldiers tried to make larger political issues the basis of their trials, and is experienced at keeping the proceedings free of politics.
Price also said that if the case does finally get to a general court-martial and a judge is asked to approve discovery requests by the defense, it is unlikely that it would be allowed to encompass the presidency. He said this wasn’t because of a conspiracy, but because the case is relatively simple and doesn’t require it.
I didn’t want to believe those lawyers, but they are now proven to be correct.
On June 1, 2010, the Prosecution in Lakin’s court martial — the U. S. Army — denied the Defense (Lakin) discovery, specifically, the documents and witnesses Lakin had requested. In order to mount his defense, Lakin had asked for the following:
- Documents: Obama’s financial applications, school admission applications, birth records, “as well as all relevant documentary evidence within the possession and control of the Government.”
- Witnesses: President Obama, the records custodians of the requested records, Army officers Col. William Rice and Col. Dale Block, federal employee Mr. Loren Friedman, and two witnesses for the accused, Maj. Gen. (Ret.) Paul Vallely and Mr. Alan Keyes.
Lt. Col. Daniel Driscoll, J.A., is the Investigating Officer for the U.S. Army on the Lakin case. Writing for the Prosecution in a June 1, 2010, memorandum from the Department of the Army to Lakin’s legal counsel, Maj. Matthew J. Kemkes of the U.S. Army Trial Defense Service, Driscoll states that “The threshold determination I must make is whether examination of the requested items could be relevant to the preferred charges and specification” against Lakin. Driscoll justified the denial of discovery as follows:
This 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 all juniors are all “invalidated” during the period the President improperly holds office. This proposition fails to account for 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….
Moreover the Defense proposition fails to account for the de facto officer doctrine, a military variant of apparent authority.
Driscoll thus concludes that “As far as I have found, the [Lakin’s] position has no basis in law.”
To read the Driscoll’s 4-page memo in pdf, CLICK HERE.
Denied discovery, Col. Lakin today announced that since the Army has made it “impossible for me to present a defense” at the Article 32 “preliminary hearing” previously scheduled for June 11, 2010, he now waives — cancells — that proceeding. Therefore, the case will move inexorably on to a General Court Martial.
The punishment for the charges filed against LTC Lakin carry a maximum term of four years in the penitentiary. Lakin expects the trial to be held in the early fall, but this has yet to be determined. The next step will be the formal referral of the charges by Lakin’s Commanding General, Major General Carla Hawley-Bowland, followed by his arraignment before a Military Judge, both of which are expected before the end of June.
Lakin has released a new 5-minute video explaining why he believes there are reasonable arguments that President Obama is Constitutionally ineligible to serve as Commander-in-Chief:
The American Patriot Foundation, a non-profit group incorporated in 2003 to foster appreciation and respect for the U.S. Constitution, has established a fund to provide a legal defense to LTC Lakin. Further details are available on the Foundation’s website, www.safeguardourconstitution.com.
Sadly, the brave Lt. Col. Lakin’s quest looks to be quixotic. Please pray for him and for our country.