LTC Lakin Trial
This page will be limited to discussion of United States v. Lakin. (In the event charges are not referred to trial, then we’ll see where we go from there). You can visit my office website at www.court-martial.com.
Please try to be polite and focus on the legal and procedural issues. I think it is pretty clearly said, and the reasoning, that a portion of the population does not think President Obama should have been sworn in as president — got it. Unfortunately life does not emulate the Snark or the Bellman.
Updated as of 3 September 2010.
I have reported on the pretrial motions session held 2 September 2010, at Fort Meade — here
LTC Brodsky was released from further participation in this case and was not at the session. For whatever reason any decision to have him removed from the case was a wise one. The actions carefully negate any potential further allegations of unlawful command influence and remove a potential distraction.
It appears that the next session of court will be 28 September 2010.
Information below is old as of 3 September 2010.
1. I do not know if the alleged disparaging comments and threats to “tase” happened. However, let’s assume they did and think about what impact if any they have on LTC Lakin’s case. Answer: None.
If the statements were made, and they were made in the presence of LTC Lakin, or the general public for that matter, they should not have been. This is a question of professional behavior and doing the right thing as a prosecutor. Not only would this be unprofessional this type of conduct leads to a poor image of military justice and the practitioners of military justice. See e.g.,
COL Harry Riley Comment: Army officials involved in this action are completely out of line, a disgrace to the US Army, and should be investigated under UCMJ for actions unbecoming. I urge everyone reading this to contact the Commanding General and ask for an investigation. This is outrageous conduct by two commissoned officers.
Posted on Patriots for America blog. (Actually it appears to be only one.)
While such comments don’t have any current impact they could if they were to persist and get to the point where it can be fairly argued the trial counsel or a representative of the command such as the SJA Office is seeking to intimidate witnesses, discourage witnesses from coming forward, or in other ways actually or appearing to impact on the fairness of the trial. For the moment I suspect anyfirestorm will have a cautionary effect rather than a disciplinary one.
2. I do not know if LTC Lakin was denied a media event after the arraignment and that he was whisked away in government car. However, let’s assume he was and think about what impact if any the actions have on LTC Lakin’s case. Answer: None.
The arraignment was held at the military court-house on Fort Belvoir, that was the primary place of duty for LTC Lakin, and he was (likely) required to remain on duty for the rest of the duty day like all the other thousands of Soldiers. LTC Lakin has previously stated and exhibited an intention to avoid being at certain duty places. So, who knows whether he would have avoided his own arraignment as a continuing effort in his publicity stunt. There is nothing wrong in the government providing transportation to and from the court-house under these circumstances. As I’ve posted elsewhere the “rule” seems to be applied differently at different places, to different accuseds, and in different types of cases such that there appears to be no real rule. There is nothing wrong in prohibiting LTC Lakin having a media event during the duty day, in uniform, on a military facility IMHO. If he wants to do that after duty hours, out of uniform, and off-base, then let him. Each time he speaks he adds potentially helpful information to the prosecution.
3. Assuming the two above general allegations to be true do they equal unlawful command influence which is prohibited by Article 37, UCMJ, and case law? Answer: No.
First some general history. It is reliably said that one of the influences and motivating factors leading to the Uniform Code of Military Justice (UCMJ) were legitimate widespread complaints about command influence on courts-martials during the Second World War. You can read the legislative history of the UCMJ through the TJAGSA website, or you can read Report of War Department Advisory Committee on Military Justice [Vanderbilt Report], 13 December 1946. In particular the Vanderbilt Report has a summary list of “charges here frequently leveled at commanders, and still leveled.
UCI is often referred to as the “mortal enemy” of military justice. See. e.g., United States v. Douglas, 68 M.J. 349 (C.A.A.F. 2009); United States v. Thomas, 22 M.J. 388, 393 (C.M.A. 1986), cert. denied, 479 U.S. 1085 (1987); United States v. Weasler, 43 M.J. 15, 16 (C.A.A.F. 1995). I like better the words of Judge John Maksym of the Navy-Marine Corps Court of Criminal Appeals when he was military judge. According to CAAF:
The judge reasoned that the CA improperly “controlled” a prospective defense sentencing witness. This resulted in changing the witness’s anticipated testimony that Appellant should be retained into testimony that only supported the command decision to court-martial Appellant. In fashioning a remedy of dismissal with prejudice, the military judge stated that “the evil here spreads far beyond the four corners of this case . . . .”
In announcing his findings, the military judge stated:
The mandate of United States [v.] Biagase, 50 M[.]J[.] 143 [C.A.A.F. 1999] could not be more clear. Undue and unlawful command influence is the carcinoma of the military justice system, and when found, must be surgically eradicated. And this is going to be what we are about to see, the eradication of something that has shocked the conscience of this court.
United States v. Gore, 60 M.J. 178, 184 (C.A.A.F. 2004).
With that context let’s get back to LTC Lakin’s predicament. Article 37(a), UCMJ, 10 U. S. Code §837(a) states the following:
(a) No authority convening a general . . . court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. (Emphasis added.)
Based on the plain language of Article 37(a), UCMJ, we can develop several thoughts.
1. LTC Brodsky is a commissioned officer on active duty. Therefore he is like LTC Lakin subject to the Code. See Article 2(a)(1), UCMJ, 10 U. S. Code §802(a)(1).
2. He is not the convening authority or commanding officer. Therefore there needs to be some other basis for him to be included within the concept of a person prohibited from exercising UCI.
3. Finally, he has not sought to reprimand, censure, admonish, influence or coerce the members or the tribunal or a member of the tribunal: note (oddly now I look at this closer) that the accused is not listed in the article. But don’t worry, we’ll get to that in a tanker minute (this is an allusion – test for MJWonks).
So, where can this or these issues go. Could the UCI issue get any legs. Well, that depends. Here is where I think it’s important to look at the trial counsel (TC) and staff judge advocate (SJA) role in this process. Let me leave you with this thought.
In United States v. Caritativo, 37 M.J. 175 (C.M.A. 1993) the court noted that the SJA generally acts with the mantle of command authority. In essence the SJA is speaking or perceived to speak for the commander in many ways within the MJ process. See also, United States v. McClain, 22 M.J. 124 (C.M.A. 1986). Is a member of the SJA Office arguably exercising command influence on the IO. Cf. United States v. Argo, 46 M.J. 454 (C.A.A.F. 1997)(actions of the SJA as UCI).
“In light of the unitary function of a staff judge advocate’s office, action by the trial counsel will be imputed to the staff judge advocate absent evidence indicating that the staff judge advocate did not place his blessing thereon.” See United States v. Johnson, 4 M.J. 8, 9 (C.M.A. 1977).
So, let’s get back to the tanker-minute allusion.
During one or more briefings conducted among officers and noncommissioned officers within his command, General Anderson addressed the subject of testifying at an accused’s court-martial. He stated that he found it paradoxical for a unit commander, who had recommended that an accused by tried by a court-martial authorized to adjudge a punitive discharge, to later appear as a defense character witness at the sentencing stage of the trial, testify as to the accused’s good character, and recommend that the convicted soldier be retained in the service. Some of General Anderson’s remarks were elaborated upon and possibly distorted by his subordinates. Be that as it may, his comments were later interpreted, or misinterpreted, to reflect an intent that a commander, first sergeant, or other person from an accused’s unit, should not give favorable presentencing testimony on behalf of an accused. This interpretation may have also extended to findings. . . .
The exercise of command influence tends to deprive servicemembers of their constitutional rights. If directed against prospective defense witnesses, it transgresses the accused’s right to have access to favorable evidence. U.S. Const. amend. VI; cf. Art. 46, U.C.M.J., 10 U.S.C. § 846. If directed against defense counsel, it affects adversely an accused’s right to effective assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 58 S. Ct. 1019, 82 L. Ed. 1461 (1938); U.S. Const. amend. VI; cf. Art. 27, UCMJ, 10 U.S.C. § 827, and Art. 37. If the target is a court member or the military judge, then the tendency is to deprive the accused of his right to a forum where impartiality is not impaired because the court personnel have a personal interest in not incurring reprisals by the convening authority due to a failure to reach his intended result. Cf. Tumey v. Ohio, 273 U.S. 510, 47 S. Ct. 437, 71 L. Ed. 749 (1927); United States v. Accordino, 20 M.J. 102 (C.M.A.1985).
Thomas, 22 M.J. at 392. (The Tanker Case.)
For further reading on the subject of judge advocates and UCI, check out this article, LTC David Brookhart, “Physician Heal Thyself” How Judge Advocates Can Commit Unlawful Command Influence, ARMY LAW., Mar. 2010, at page 56.
———————————————————————-Below this line is “old” as of 27 August 2010.
I had a chance to go to the Article 39(a), UCMJ, session today at which LTC Lakin was arraigned.
They began with the usual R.C.M. 802 conference in chambers with the military judge and counsel present. This is standard for most judges at the beginning of the court day.
Rule 802. Conferences ( a ) In general. After referral, the military judge may, upon request of any party or sua sponte, order one or more conferences with the parties to consider such matters as will promote a fair and expeditious trial.
The court then convened with Military Judge Denise Lind presiding.
They followed the Army trial guide/script/gouge.
Noteably LTC Brodsky appeared as Assistant Trial Counsel.
Judge Lind followed the script with advice as to counsel. LTC Lakin elected to keep his current counsel and did not ask for an individual military counsel (IMC). Judge Lind assured herself all counsel were qualified and swore Mr. Jensen in.
Next she advised LTC Lakin of his forum rights: a panel of at least five members or military judge alone. As with his counsel rights LTC Lakin affirmed that he understood his rights. When asked about forum Mr. Jensen advised the military judge the defense desired to defer motions, forum selection, and entry of pleas. This is standard practice is courts-martial.
Military Judge Lind also addressed the prior Article 32, UCMJ, waiver. She obtained LTC Lakin’s agreement that he made a knowing and intelligent waiver of all of his rights at an Article 32, UCMJ, hearing unconditionally. The unconditional waiver is an oddity unless it’s a situation where there is a pending pretrial agreement or negotiations. The waiver means, as we have already commented, that there can be no issue raised now or later about the adequacy or fairness of the Article 32, UCMJ, hearing. Therefore LTC Driscoll’s actions and “rulings” are beyond any legal challenge.
The supposed request to the convening authority for a deposition and discovery was not addressed. However, the military judge now has jurisdiction and she will decide on those issues should they be raised (on or before 20 August 2010 according to the pending CMO).
Next the court discussed the schedule.
20 August 2010: Motions and witness requests and discovery due.
27 August 2010: Replies due.
2 September 2010: First Article 39(a), UCMJ, session to address issues.
14 September 2010: Second Article 39(a), UCMJ, session to address issues and final motions.
13 – 15 October 2010: Trial.
Finally MJ Lind gave the standard R.C.M. 804 warning to the non-confined accused. R.C.M. 804(c) states:
(c) Continued presence not required. The further progress of the trial to and including the return of the findings and, if necessary, determination of a sentence shall not be prevented and the accused shall be considered to have waived the right to be present whenever an accused, initially present:
( 1 ) Is voluntarily absent after arraignment (whether or not informed by the military judge of the obligation to remain during the trial); or
(2) After being warned by the military judge that disruptive conduct will cause the accused to be removed from the courtroom, persists in conduct which is such as to justify exclusion from the courtroom.
Safeguard our Constitution reports that:
The Army doctor who is facing a court martial for refusing to obey orders, including a deployment order for his second tour of duty in Afghanistan, has formally requested his Commanding General approve a deposition in Hawaii of the records-keeper of the State Department of Health—and the production of all of their records concerning Barack Obama.
What does this mean in military law practice.
Under Article 49, UCMJ, 10 U. S. Code §849:
(a) At any time after charges have been signed as provided in section 830 of this title (article 30), any party may take oral or written depositions unless the military judge or court-martial without a military judge hearing the case or, if the case is not being heard, an attorney competent to convene a court-martial for the trial of those charges forbids it for good cause. If a deposition is to be taken before charges are referred for trial, such authority may designate commissioned officers to represent the prosecution and the defense and may authorize those officers to take the deposition of any witness.
(Note, Dwight Sullivan and I are of the view that the defense need not ask for permission to conduct a deposition based on a fair reading of the language of Article 49. However, I have litigated that in at least one case and didn’t get anywhere with the issue. )
Under R.C.M. 702, Manual for Courts-Martial, United States (2008), the president using his Article 36, UCMJ, 10 U. S. Code §836, powers has set out the depositions procedure in more detail. There are a number of points that will be contentious.
(a) In general. A deposition may be ordered whenever, after preferral of charges, due to exceptional circumstances of the case it is in the interest of justice that the testimony of a prospective witness be taken and preserved for use at an investigation under Article 32 or a court-martial (emphasis added).
Those of us practicing in the pits know that generally there is no exceptional circumstance if the witness is going to be available for trial. And the deposition request is often denied for this reason. Civilians can be subpoenaed to be a witness at a court-martial. (We can talk more about R.C.M. 703 and witnesses when that becomes an issue.) Assuming a subpoena, the witness will be paid travel, lodging, and meals for attendance. A subpoena may be enforced by a warrant of attachment if necessary. See also, Article 47, UCMJ, 10 U. S. Code §847. The individual business records can be subpoenaed using a subpoena duces tecum. In my experience depositions are most often used with overseas witnesses who are not subject to subpoena or U. S. citizens who cannot be subpoenaed to appear as a witness at a court-martial held outside the United States. I had a case some years ago where all four of the prosecution witnesses were Cypriots and refused to travel to the U. S. to testify. Depositions have also become common in A/Stan and Iraq related cases.
If the deposition is denied by MG Horst, Commander Military District of Washington, the defense can litigate this by pretrial motion.
R.C.M. 702(c)(3)(A) states that:
(A) In general. A request for a deposition may be denied only for good cause.
Good cause for denial includes: failure to state a proper ground for taking a deposition; failure to show the probable relevance of the witness’ testimony, or that the witness’ testimony would be unnecessary. The fact that the witness is or will be available for trial is good cause for denial in the absence of unusual circumstances, such as improper denial of a witness request at an Article 32 hearing, unavailability of an essential witness at an Article 32 hearing, or when the Government has improperly impeded defense access to a witness.
A deposition is not a discovery device under the Federal rule. 8.J. Moore, supra Para. 15.02[1]. See also United States v. Rich, 580 F.2d 929 (9th Cir.), cert. denied, 439 U.S. 935 (1978); United States v. Adcock, 558 F.2d. 397 (8th Cir.), cert. denied, 434 U.S. 921 (1977). The Court of Military Appeals has held that depositions may serve as a discovery device in certain unusual circumstances. See Analysis, subsection (c)(3)(A) infra. Consequently, “exceptional circumstances” may be somewhat broader in courtsmartial. Nevertheless, the primary purpose of this rule is to preserve the testimony of unavailable witnesses for use at trial. See Article 49; Hearings on H.R. 2498 Before a Subcomm. of the Comm. on Armed Services 81st Cong. 1st Sess. 1064–1070 (1949).
The military justice system has been a leader with respect to open discovery and disclosure of exculpatory information to the defense. See Moyer, Procedural Rights of the Military Accused: Advantages Over A Civilian Defendant, 51 Mil. L. Rev. 1, 11-14 (1971). As noted in the Drafters’ Analysis accompanying RCM 701, “[m]ilitary discovery practice has been quite liberal,” with “broader discovery than is required in Federal [civilian] practice.” Manual, supra at A21-31; see United States v. Hart, 29 MJ 407, 410 (C.M.A. 1990).
The foundation for military discovery practice is Article 46, UCMJ, 10 USC § 846, in which Congress mandated that “[t]he trial counsel, the defense counsel, and the court-martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the President may prescribe.” See United States v. Enloe, 15 U.S.C.M.A. 256, 258-59, 35 C.M.R. 228, 230-31 (1965). The President has implemented Article 46 by setting forth specific discovery and disclosure responsibilities in RCM 701. We have interpreted RCM 701 and related rules to ensure compliance with the equal-access-to-evidence mandate in Article 46. See United States v. Eshalomi, 23 MJ 12 (C.M.A. 1986). We also have interpreted these rules to ensure that discovery and disclosure procedures in the military justice system, which are designed to be broader than in civilian life, provide the accused, at a minimum, with the disclosure and discovery rights available in federal civilian proceedings. See, e.g., United States v. Walbert, 14 U.S.C.M.A. 34, 33 C.M.R. 246 (1963) (applying the “Jencks Act,” 18 USC §3500, to military justice discovery practices).
I have already mentioned that the witness would likely be available for trial. So we come back to the issue: what if anything is the relevance of deposing potential witnesses about President Obama’s birth and birth certificate?
Discovery practice is not focused solely upon evidence known to be admissible at trial. See United States v. Stone, 40 M.J. 420, 423 (C.M.A. 1994)(materiality standard normally “is not a heavy burden,” evidence is material as long as there is a strong indication that it will “play an important role in uncovering admissible evidence, aiding witness preparation, corroborating testimony, or assisting impeachment or rebuttal.)(citations omitted); United States v. Roberts, 59 M.J. 323, 325 (C.A.A.F. 2004).
(B) A statement of the matters on which the person is to be examined;
(C) A statement of the reasons for taking the deposition; and)
{ 3 trackbacks }
{ 54 comments… read them below or add one }
I’ll be eagerly following your analysis.
New news : Press Release: Army Refers Charges Against Lakin To Court Martial
http://www.safeguardourconstitution.com./press-release/pressrelease20100812.html
…
On August 6, 2010 at Ft. McNair in Washington, D.C., the court will convene for the purpose of Judge Lind taking Lakin’s plea to the charges which consist of “missing movement” and of refusing to obey orders. Today Lakin stated: “I am not guilty of these charges, and will plead ‘not guilty’ to them because of my conviction that our Commander-in-Chief may be ineligible under the United States Constitution to serve in that highest of all offices.
…
Army Col. Denise R. Lind will preside over the trial. Before becoming a judge, she served tours of duty both prosecuting and defending soldiers in court martial proceedings. She is a 1982 magna cum laude graduate of Siena College, and earned her law degree from Albany Law School in 1985.
…
On The Snark — I fear I must correct you.
It’s the Bellman and his friends who have come to HUNT the Snark.
http://www.literature.org/authors/carroll-lewis/the-hunting-of-the-snark/chapter-01.html
“Just the place for a Snark!” the Bellman cried,
As he landed his crew with care;
Supporting each man on the top of the tide
By a finger entwined in his hair.
“Just the place for a Snark! I have said it twice:
That alone should encourage the crew.
Just the place for a Snark! I have said it thrice:
What i tell you three times is true.”
and also point out that they brought a lawyer (barrister) with them :
The crew was complete: it included a Boots–
A maker of Bonnets and Hoods–
A Barrister, brought to arrange their disputes–
And a Broker, to value their goods.
I’m interested to know more about what you mean when you speak of “cooperating with the defense to get the … documents available in the official records.”
As far as I know, the request for records has not been made public. However, according to a press release purporting to be from the Lakin team, they have requested “the production of all of [the Hawaii Department of Health's] records concerning Barack Obama.”
How is that to be construed? It is highly likely that the Department of Health has data of such a confidential nature that no state would ever include it in a birth certificate, long- or short-form. Surely such a request would be much too broad.
On the other hand, a narrow construction would probably lead to a certified copy of the COLB, unquestionably a valid Hawaiian birth certificate but a document that LTC Lakin has said would not satisfy him.
In your proposed scenario of “acced[ing] to the defense requests,” how would you expect this issue to be resolved?
I echo BigGuy’s concern. I’m not sure exactly why you think this would be a good idea, or what the prosecution would gain from doing it. The only advantage I can see is that it removes one possible point of appeal, but one which clearly lacks all merit, i.e. that it is an abuse of discretion (or whatever the applicable standard for appellate review is in a court-martial for discovery-related decisions) to decline to require disclosure by third parties of completely irrelevant information which would not tend to prove or disprove any fact material to a claim or defense.
Like it or not LTC Lakin is entitled to challenge the lawfulness of his orders.
Military discovery is broad. The evidence need not be admissible, it need only be admissible OR lead to evidence that might be admissible.
Yes, I agree that they will get the COLB back. But remember, the prosecution may need that anyway on the motion to dismiss based on the alleged unlawfulness of the orders.
I also think that this would be a good case where the prosecution first asks the military judge to seal the records and issue a protective order about release of those records. Failure to abide by the protective order by the defense could lead to further prosecution for LTC Lakin, disbarrment action by military courts, and an ethics complaint to the lawyers bars.
@Viking — How would you argue that evidence concerning Obama’s birth could plausibly “lead to evidence that might be admissible”?
TJ, you got me.
LOL — am I TJ?
TJ, got me on the hunting of the Snark.
Ah, I got it! But any thoughts on my question of a few hours ago?
And, while I’ve got your attention, what do you make of the deferred plea?
As noted above, deferral of pleas, motions, and forum selection is standard practice. It means nothing.
A proper construction of the defense discovery request is to obtain the official Hawaii record of the president’s birth. It would be a certified true copy of a public record admissible into evidence under Mil. R. Evid. 806(8).
Yes, you get the COLB. That’s all the prosecution is required to do. That is sufficient evidence in a court-martial of the birth and citizenship of the individual for the purposes of discovery obligation.
That’s all he’s entitled to. As noted, anything else received should be sealed by order of the court.
LTC Lakin won’t like it, but that’s everything he’s entitled to. I’ve been dissatisfied with discovery any number of times. You make your record and then have it for appeal. That’s it, you have to move on from there.
I doubt Lind is going to give them any more than that BECAUSE IT’S NOT RELEVANT to the lawfulness of the orders.
We’ll see how that is addressed on either 2 or 14 September. That’s the day his case collapses.
I would be happy to hear a judge pronounce that the COLB is proof of birth and citizenship.
But why is LTC Lakin entitled to it, considering that the President’s birth and citizenship are irrelevant to Lakin’s guilt or innocence?
Because he’s entitled to get what he asked for — proof that the president was born in the United States.
As a Trial Counsel (prosecutor) it was my job to protect the record and that requires defensive lawyering.
Give him his discovery of the COLB, certified and trussed up in a Military Rule of Evidence.
Give him the military judge either saying it’s irrelevant, or that’s sufficient proof of birth in the United States.
While he’s wasting time playing around with that issue the prosecutors can focus on preparing a well researched and written reply to a motion to dismiss.
According to World Net Daily :
Army gags officer challenging Obama eligibility
Escorts him from preliminary hearing under guard to prevent communications
http://www.wnd.com/index.php?fa=PAGE.view&pageId=188649
…
At the conclusion of the arraignment, Lakin was ordered not to speak with the press and was taken back to Reed under military escort, surprising and disturbing a civilian lawyer who has been working on his case.
“This was completely inappropriate. Col Lakin was brought here and taken away from here as if he was a common criminal. He was prohibited from talking to the press for two minutes; he was prohibited from talking to anybody, even me,” Paul Rolf Jenson said.
…
There was decent security for this exercise both in and around the court-room.
Prohibited from talking with his defense counsel? If that’s true that’s a problem.
Prohibited from talking to the press – who are these defense counsels aides helping to keep the accused’s mouth shut from further incriminating himself or providing aggravating comments. That’s a tonque-in-cheek comment.
The report is also factually inaccurate.
“”After Lind requested that Lakin submit his plea of guilty or not guilty, Lakin’s attorney said “No plea.”"”
“”"A motion to dismiss must be brought before the plea is entered, and after the proceedings are commenced,” Jensen explained. “In that thirty second period we didn’t have time to bring the motion, but we will.”"”
He did not say “no plea.” He had said that he would be deferring pleas. As all military lawyers know this is pretty standard practice.
Also, he deferred motions. This “quote” in my view incorrectly implies that the court did not give counsel adequate opportunity to present a motion or that there was something wrong with the procedure. He quite clearly asked to defer motions along with forum selection and pleas. Again, deferral of motions to a later motions session is standard practice. If Mr. Jensen wants to make this practice something it isn’t because he has to appease his “supporters” for not going full tilt to make the motion now that’s something else.
Phil,
I can’t imagine that the Government will provide ANYTHING (at least in regards to the COLB). They should fight the relevance of all of this. Whatever they provide to the defense will never be sufficient (as viewed by the defense). Why even start down the path?
The defense will never be able to articulate a LEGAL reason why the requested evidence is relevant in this case.
That remains my thought too. Why is Lakin entitled to something that’s irrelevant?
I retain my original doubts about Lakin’s “entitlement” to the COLB. One is certainly entitled to discovery as a matter of due process, so long as that discovery is actually relevant to a claim or defense. One is also certainly entitled to raise the defense, in a court-martial charging one with disobeying an order, that the order is unlawful.
I’m just not seeing the connection between a demand for a COLB and the defense of an unlawful order. The de facto officer doctrine clearly precludes a claim that orders are unlawful based on a claim that the chain-of-command is somehow invalid. Therefore, with a COLB showing that Obama was born on Mars, Lakin’s orders to deploy were still lawful, and the COLB is irrelevant and therefore inadmissible.
The exclusion of irrelevant evidence is mandatory, and one is certainly not entitled to the discovery of irrelevant evidence, under Mil. R. Evid. 402: “Evidence which is not relevant is not admissible.”
I am not a military lawyer, but this basically tracks the same evidentiary rule that is universal in the United States. While the COLB may, conceivably, be relevant at sentencing, it is completely irrelevant to Lakin’s guilt or innocence, unless Lakin raises an insanity defense and the proof that he is delusional is the COLB.
I am neither a military nor civilian attorney but that never stopped me from offering an opinion. If LTC Lakin is entitled to any discovery about the legitimacy of the President I think it would be limited to something like the Congressional Record of the certification of the Electoral College vote. Everything else is irrelevant to the legitimacy to President Obama as Commander in Chief. Lakin could try to argue that the Inauguration was all a computer generated 6 hour extravaganza like the moon landing deniers claim that was staged in a movie studio in Arizona. The record of the Congressional electoral vote certification would mean Barack Obama would have become Commander in Chief on January 20, 2009 with or without the ceremony and with or without a “long form” birth certificate.
Lakin’s orders to deploy were given under authority of a Constitutionally authorized. Commander in Chief. I will be interesting to see how the defense approaches such obvious contrary facts to their case.
“Yes, you get the COLB. That’s all the prosecution is required to do. That is sufficient evidence in a court-martial of the birth and citizenship of the individual for the purposes of discovery obligation.”
Since HI law makes no distinction (at least if HRS §338-13 (a) can be considered controlling on this point) between the availability of the COLB and that of the original, why would the latter not be subpoenaed?
yguy has a point, and it’s related to the one I raised in comment #2.
The defense, at least so far as their press releases contend, has requested the full gamut of Obama’s health records. On what basis would the prosecution argue that it is entitled “only” to the COLB?
That strikes me as a difficult argument to make when the fact is the defense is not entitled to any Obama birth data.
I do not understand Phil’s reasoning here.
Dwight also takes me to task with my view of getting the COLB (and sealing it).
But for the moment, as I told him, I’m going to stick with it.
I just happen to think this is the way I would handle this if I were the TC. I don’t have any criticism at all for thoee who take the pound sand position. Absolutely nothing wrong with it.
It will be interesting to see what happens in the near future.
Cheers!!!
I almost choked on my pretzel when I read the start of Big Guy’s comment: “yguy has a point.” Fortunately, before I needed to receive the Heimlich Maneuver, I read the rest of his post.
LOL — yes, I had trouble with it myself. I’m accustomed to arguing with yguy about the sufficiency of the COLB — but that argument presupposes that birth data is being discovered.
In this case, the “long form” (we’ll defer the argument on just what that means) is just one point along a spectrum that ranges from the COLB to the full panoply of data concerning Obama under the control of the Hawaii Department of Health. It is difficult to single out any particular point on this spectrum as appropriate for discovery as long as the underlying threshold of relevance isn’t met for any of it.
So, in the course of preparing my response to him, I had to concede that, on this very narrow point, we agree.
U>S> Constitution Art II Section 1 Clause 5 states eligibility for Commander in chief must be natural born.
If he is not eligible then he is a urusper.
Military commanders giving legal orders do so on behalf of the Commander-in-Chief, the President; see Clark v Dick, I Dillon, 8. Military Law and Precedents, Colonel William Winthrop.
Orders must not contravene Constitutional law. A natural born citizen is born on US soil to US citizen parents.
Chief Justice, John Marshall who cited Vattel’s Law of Nations in The Venus, 12 U.S. 253 at paragraph 289 and repeated the definition of natural born citizen – “born on the soil of citizen parents.”
If he is not eligible then he is a urusper.
===
Eligibility should be determined before a candidate’s name is allowed to be placed on a ballot.
If an ineligible candidate somehow slips onto the ballot, it is the responsibility of the losing candidate/losing political party to contest the election of the ineligible elected official.
The final check and balance in the case of an ineligible person becoming president-elect is that it only takes two members of Congress (one Senator and one Representative) to submit a written objection to the certification of the electoral votes of an ineligible president-elect at the Joint Session of Congress held to count the Electoral votes. Then both Houses of Congress must immediately adjourn to consider the objections. Each state gets one vote in ruling on the objections. If there were to be a 25 state-25 state tie that is not broken by Inauguration Day, the Vice President-Elect would become Acting President until the President-Elect’s qualifications for office are confirmed or finally rejected.
In the case of Barack Hussein Obama II, there were no objections to the certification of his Electoral College votes from any of the 535 members of Congress and he was administered the Oath of Office by the Chief Justice of the US Supreme Court.
“Usurpers” don’t win 69.4 million popular votes, 365 Electoral College votes, have their Electoral votes confirmed by Vice President Cheney with no objections and then get sworn in by Chief Justice John Roberts.
Military commanders giving legal orders do so on behalf of the Commander-in-Chief, the President; see Clark v Dick, I Dillon, 8. Military Law and Precedents, Colonel William Winthrop.
Orders must not contravene Constitutional law. A natural born citizen is born on US soil to US citizen parents.
Chief Justice, John Marshall who cited Vattel’s Law of Nations in The Venus, 12 U.S. 253 at paragraph 289 and repeated the definition of natural born citizen – “born on the soil of citizen parents.”
—
Lots of legal opinions get cited in judicial verdicts. Vattel, being Swiss and having no direct impact on US Law stated a legal opinon in a treatise written on international law. The full, translated title of “The Law of Nations” is “The Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns.” Its an 18th century law book, nothing more and nothing less.
The current US Supreme Court has seen the issue differently from Justice Marshall probably since the 14th Amendment of 1865 altered the definition of citizenship to only two categories: born citizens and naturalized citizens. The current Supreme Court has denied hearing any of eight different appeals that have attempted to have Obama ruled ineligible: Berg v Obama, Beverly v FEC, Craig v US, Donofrio v Wells, Herbert v Obama, Lightfoot v Bowen, Schneller v Cortes, and Wrotnowski v Bysiewicz.
From James Madison, primary author of the US Constitution: “It is an established maxim that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but in general place is the most certain criterion; it is what applies in the United States; it will, therefore, be unnecessary to examine any other.”
http://press-pubs.uchicago.edu/founders/documents/a1_2_2s6.html
Ohio Congressman John Bingham, principal author of the 14th Amendment, judge advocate in the trial of Abraham Lincoln’s assassination, prosecutor in the impeachment of Andrew Johnson, and ardent abolitionist, delivered a pre-ratification speech to a joint session of Congress in 1866.
The following is a sentence from the speech.
“I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen;”
Obama’s father was a citizen of Kenya.
It is impossible Obama can be a natural born citizen based on the citizenship of his father.
This cannot be suppressed forever. Obama and his supporters are depending on the continued ignorance of the public.
A natural born citizen is born on US soil of citizen parents.
Bingham was not the author of the citizenship clause in the 14th amendment.
This is what Judge Carter had to say about Bingham and de Vattel in Barnett v Obama:
“3 Plaintiffs presume that the words of Emmerich de Vattel, John Jay, and John Bingham alone empower this court to define the natural born citizen clause. The Complaint conveniently chooses to ignore Congress long history of defining citizenship, whether naturalized or by birth. See Charles Gordon: Who Can be President pf the United States: The Unresolved Enigma, 28 Md. L. Rev. 1, 7-22 (1968) (contrasting 150 years of active Congressional legislation against judicial restraint).
Footnote page 22.“
John Bingham, representative from Ohio, who was the primary author of Section 1 of the Fourteenth Amendment.
http://www.loc.gov/today/pr/2000/00-029.html
Amendment XIV
Section 1.
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
http://topics.law.cornell.edu/constitution/amendmentxiv
@dancingrabbit — “Obama’s father was a citizen of Kenya.
It is impossible Obama can be a natural born citizen based on the citizenship of his father.
This cannot be suppressed forever. Obama and his supporters are depending on the continued ignorance of the public.”
___
I do not understand that point of view. As far as the facts go, Obama’s not suppressing anything — he’s been open for years about his father’s Kenyan nationality.
As far as the law goes, are you aware that no one raised the two-citizen-parent issue before the election? There were complaints about the COLB, but the charge that his father’s Kenyan citizenship rendered him ineligible came a lot later.
Are you really holding Obama responsible for the total failure of that view of natural born citizenship to prosper within the legal community for as far back as anyone can remember?
Dancing Rabbit appears to be unaware of the fact that Barack Hussein Obama II wrote a book in 1995 entitled “Dreams From My Father” which went on to become a number one bestseller read by millions of people worldwide. In that book Obama himself details his father’s birth and life in Kenya. There is never any attempt to hide his father’s foreign birth. He wrote a book about it twelve years before he ran for the presidency.
From a federal judge who ruled on an Obama eligibility lawsuit:
“The Court observes that the President defeated seven opponents in a grueling campaign for his party’s nomination that lasted more than eighteen months and cost those opponents well over $300 million. Then the President faced a formidable opponent in the general election who received $84 million to conduct his general election campaign against the President. It would appear that ample opportunity existed for discovery of evidence that would support any contention that the President was not eligible for the office he sought. Furthermore, Congress is apparently satisfied that the President is qualified to serve. Congress has not instituted impeachment proceedings, and in fact, the House of Representatives in a broad bipartisan manner has rejected the suggestion that the President is not eligible for office. See H.R. Res. 593, 111th Cong. (2009) (commemorating, by vote of 378-0, the 50th anniversary of Hawaii’s statehood and stating, “the 44th President of the United States, Barack Obama, was born in Hawaii on August 4, 1961”). “
“A spurious claim questioning the President’s constitutional legitimacy may be protected by the First Amendment, but a Court’s placement of its imprimatur upon a claim that is so lacking in factual support that it is frivolous would undoubtedly disserve the public interest.
“–US Federal District Court Judge for the Middle District of Georgia Clay D. Land in dismissing “Rhodes v MacDonald” September 16, 2009
Judge Land, a former Republican state Senator from Columbus, Georgia was recommended for the federal judiciary by Georgia’s Republican Senator Saxby Chambliss and Judge Land was nominated to the district court bench by George W. Bush.
http://www.greeleygazette.com/press/?p=4755&utm_source=rss&utm_medium=rss&utm_campaign=second-general-backs-lakin-says-president-should-produce-birth-certificate
Second General backs Lakin, says President should produce birth certificate
…
Army Major General (Ret) Jerry Curry a decorated combat veteran has issued statement saying he agrees with Lakin that the President should provide proof of eligibility. Curry served as Deputy Assistant Secretary of Defense for the Carter Administration, as Press Secretary to the Secretary of Defense for the Reagan Administration, and has worked in international relations, public affairs, management, aviation, and research and development.
While on active duty, General Curry’s other duties included commanding the U.S. Army Test and Evaluation Command (TECOM) headquartered at Aberdeen Proving Ground, Maryland. TECOM is responsible for performing Engineering Development Testing to determine whether all Army equipment including jeeps, trucks of all types, self propelled artillery, tanks, electronics, airplanes, helicopters and missiles is safe to operate, free from defects and is in compliance with all of the Army’s technical specifications.
General Curry lamented that members of the military were having to raise the issue “It shouldn’t be the Lieutenant Colonels, Sergeants and Generals in the Army it should be the Congressman and Senators on both sides of the issue asking this man to step up to the plate” and provide the proof to the American people. Curry expressed concern for Lakin telling the Gazette “the administration will do its best to destroy him personally.”
…
Another politijabber says it’s from a month-old interview :
http://www.youtube.com/watch?v=fO8n4Pij158
dancingrabbit
I will concede my error on Bingham having authored the original (not final) citizenship clause in the Fourteenth Amendment. However, according to Wikipedia the citizenship clause was modified substantially from Bingham’s original text during ratification.
“Except for the addition of the first sentence of Section 1, which defined citizenship, the amendment weathered the Senate debate without substantial change.[3] The 14th Amendment was ratified in 1868.”
The quote from Bingham that you cited was actually from the debate on the on the 1866 civil rights bill [S61] and not from the 14th amendment ratification debate as you stated.
http://nativeborncitizen.wordpress.com/2010/04/29/educating-the-confused-14th-amendment-and-bingham/
Then, of course, there the Ankeny decision in Indiana, which directly opposes your claim about the definition of natural born citizen:
“Then, in U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S. Ct. 456 (1898), the United States Supreme Court confronted the question of “whether a child born in the United States, of parents of Chinese descent, who at the time of his birth are subject to the emperor of China . . . becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the fourteenth amendment . . . .” 169 U.S. at 653, 18 S. Ct. at 458. We find this case instructive. The Court in Wong Kim Ark reaffirmed Minor in that the meaning of the words “citizen of the United States” and “natural-born citizen of the United States” “must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution.” Id. at 654, 18 S. Ct. at 459. They noted that “[t]he interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Id. at 655, 18 S. Ct. at 459 (quoting Smith v. Alabama, 124 U.S. 465, 478, 8 S. Ct. 564, 569 (1888)). The Wong Kim Ark Court explained:
‘The fundamental principle of the common law with regard to English nationality was birth within the allegiance-also called „ligealty,‟ „obedience,‟ „faith,‟ or „power‟-of the king. The principle embraced all persons born within the king‟s allegiance, and subject to his protection. Such allegiance and protection were mutual,-as expressed in the maxim, „Protectio trahit subjectionem, et subjectio protectionem,‟-and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king‟s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.
This fundamental principle, with these qualifications or explanations of it, was clearly, though quaintly, stated in the leading case known as „Calvin‟s Case,‟ or the „Case of the Postnati,‟ decided in 1608, after a hearing in the exchequer chamber before the lord chancellor and all the judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co. Litt. 8a, 128b; Lord Hale, in Harg. Law Tracts, 210, and in 1 Hale, P. C. 61, 62; 1 Bl. Comm. 366, 369, 370, 374; 4 Bl. Comm. 74, 92; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173-177, 741.’ “
http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf
The fact that his father was not a citizen is a separate question and stands independent of his birth location.
A natural-born citizen has been defined as one whose citizenship is established by the jurisdiction which the United States already has over the parents of the child.
The Founders included the natural born citizen requirement to exclude aliens by birth and blood.
“Because he was born to American citizens, there is no doubt in my mind that Senator McCain is a natural born citizen,” said Leahy.
“I expect that this will be a unanimous resolution of the Senate.”
“It is silly for anyone to argue that Senator McCain is not eligible to become president,” said McCaskill.
“I would hope that this is something we can all agree on, for goodness sakes.”
At a Judiciary Committee hearing on April 3, Leahy asked Homeland Security Secretary Michael Chertoff, himself a former Federal judge, if he had doubts that McCain was eligible to serve as President.
“My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen,” Chertoff replied.
“That is mine, too,” said Leahy.”
John McCain enabled Barack Obama to be president by providing cover because neither candidate is a natural born citizen as required by the Constitution.
In a case specifically addressing the question of Obama’s eligibility, the Indiana Court of Appeals wrote:
“Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.”
Now, this is a state court, so it is not binding upon federal courts. But it clearly represents the widely prevailing view in the legal community, to the extent that there isn’t even a contemporary law journal article espousing a contrary view.
Note, by the way, that it is misleading to use the quotations about McCain, as they were made in consideration of the possibility that he was not born on U.S. soil. There is no credible legal source arguing for the requirement of two citizen parents for those born here.
You know, the popcorn and beer is portable. I can bring that over here, too if need be. Of course, I never did hear back from Norbrook about the cheese ball or (as I have since learned it is called) the ‘chafing dish’ and the cocktail weenies that I asked Col Sullivan to bring.
You know, this is just like the military. Leave all the details to the NCOs or nothing would get done and we wouldn’t have a party at all.
“There is no credible legal source arguing for the requirement of two citizen parents for those born here.”
“Vattel, being Swiss and having no direct impact on US Law”
Chief Justice Marshall quoting Vattel ” Page 12 U. S. 289, The Venus: ” Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says
“The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.”
Benjamin Franklin to To: Charles William Frederic Dumas
Dear Sir,
Philadelphia, 9 December, 1775.
“I am much obliged by the kind present you have made us of your edition of Vattel. It came to us in good season, when the circumstances of a rising state make it necessary frequently to consult the law of nations.”
Dancingrabbit
No comment on rulings by Judge Land, Judge Carter, and the Ankeny case? Of course, as has been clearly demonstrated all this has nothing to do with LTC Lakin’s case anyway.
LOL, soonergrunt. Let me see if I can find a pack of MRE kielbasas.
I must say I prefer DancinRrabbit’s minimalism to most birther prose.
Regarding the Venus, note there are a few issues. First, Chief Justice Marshall wasn’t writing for the majority. Rather, he was writing a concurrence for himself and one other Justice. Second, he wasn’t addressing who is a natural born citizen. He was addressing who is a citizen. The 14th Amendment has definitively resolved that question.
Next, let’s look at the 14th Amendment’s actual language: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.” Let’s assume that on the same day President Obama was born, his father robbed a bank in Honolulu. Could he have been prosecuted in U.S. district court? Since the answer is “yes,” he was “subject to the jurisdiction thereof.” That language was designed to exclude those with diplomatic immunity and enemy prisoners of war. Perhaps that’s what Rep. Bingham meant by “parents not owing allegiance to any foreign sovereignty.” But if he meant to convey born of parents not citizens of another country, that interpretation would be plainly inconsistent with the 14th Amendment’s plain language.
Less than two decades after the 14th Amendment was ratified, the United States elected a Vice President (Chester Arthur) whose father had been a British national. He was sworn into office and became President when James Garfield was assassinated.
Finally, the Supreme Court has interpreted the phrases “natural-born citizen” and “native citizen” to include those born in the United States regardless of their parents’ citizenship. See, e.g., United States v. Wong Kim Ark, 169 U.S. 649 (1898); Luria v. United States. 231 U.S. 9, 22 (1913).
In the Ankeny et. al. v The Governor of Indiana, Mitch Daniels lawsuit, the plaintiffs who were seeking to have Indiana’s Electoral College votes invalidated on the grounds that Obama didn’t have two American citizen parents, the Indiana Court of Appeals made mention of Vattel in their decision but they gave it short shrift and went on to rule that two American citizen parents are not required in order to be considered a natural born citizens for purposes of Article 2, Section 1. The plaintiffs appealed to the Indiana Supreme Court and the appeal was rejected.
The exact quote from the Indiana Court of Appeals’ decision is: “The Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief, they primarily rely instead on an eighteen century treatise (Vattel) and quotations of Members of Congres made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court’s interpretation of what it means to be a natural born citizen, we believe that the Plaintiff’s arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim.”–Indiana Court of Appeals, November 12, 2009.
All that about “natural born” in WKA is dicta, not bearing on the actual ruling. The ruling was that WKA was a citizen, by virtue of the 14th amendment and having been born in the US. They did not declare or rule him to be natural born, since that was not an issue before the court.
From the opinion.
The facts of this case, as agreed by the parties, are as follows: Wong Kim Ark was born in 1873 in the city of San Francisco, in the State of California and United States of America, and was and is a laborer. His father and mother were persons of Chinese descent, and subjects of the Emperor of China; they were at the time of his birth domiciled residents of the United States, having previously established and still enjoying a permanent domicil and residence therein at San Francisco; they continued to reside and remain in the United States until 1890, when they departed for China, and during all the time of their residence in the United States, they were engaged in business, and were never employed in any diplomatic or official capacity under the Emperor of China.
Wong Kim Ark, ever since his birth, has had but one residence, to-wit, in California, within the United States, and has there resided, claiming to be a citizen of the United States, and has never lost or changed that residence, or gained or acquired another residence, and neither he nor his parents acting for him ever renounced his allegiance to the United States, or did or committed any act or thing to exclude him
…
The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.
Nothing in that ruling about “natural born”, just citizen.
Nothing in that ruling about “natural born”, just citizen.
However there has never been a Supreme Court decision or a law passed by Congress that distinquishes between the requirements to be a citizen and those to be a natural born citizen.
Current US Law (Title 8, Chapter 12, Subchapter 3, Part 1, Section 1401 of the US Code)
designates “Nationals and citizens of the United States at birth”. The law of the land states precisely who is to be considered a “citizen of the United States at birth”. Again, no court, no other law has ever ruled that there is a distinction between a “natural born citizen” and a “citizen of the United States at birth.”
If there was such a distinction in the law, I am certain that the Supreme Court of the United States would have entertained one of the eight Obama eligibility appeals that have reached the High Court for Justices’ cert conferences. All eight have been denied a hearing before the full Court.
Again, only one court in the United States has actually ruled on the natural born citizen status applied to Barack Hussein Obama II. That was the Indiana Court of Appeals in Ankeny, et. al. v The Governor of Indiana.
The Court ruled: “Based upon the language of Article II, Section I, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born citizens” for Article II, Section I purposes, regardless of the citizenship of their parents. Just as a person “born within the British dominions {was} a natural-born British subject” at the time of the framing of the U.S. Constitution, so too were those “born in the allegiance of the United States natural-born citizens.”–Indiana Court of Appeals, Ankeny v The Governor of Indiana, Mitch Daniels, November 12, 2009.
Ankeny was appealed to the Indiana Supreme Court but rejected. It has not been appealed to the federal appeals court system.
Lets take a look at the Indiana ruling…
“Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents”
What does the “language of Article II, Section 1, Clause 4″ say?
Art II, Section 1, Clause 4…The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.
The natural born citizen requirement is found in clause 5.
dancingrabbit’s “clause 5″ vs. “clause 4″ argument is silly even by birther standards.
Clauses in Article II of the Constitution aren’t numbered. For decades, courts have differed over whether the “natural born citizen” clause is clause 4 or clause 5. A 1936 decision of the United States District Court for the District of Columbia, for example, included the following: “I do not think that the authorities sustain his claim that he is a natural born citizen within the meaning of the provisions of the Constitution, either of section 1, clause 4, of article 2, that ‘No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of the Constitution, shall be eligible to the Office of President,’ or of the Fourteenth Amendment, that ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.’” United States ex rel. Guest v. Perkins, 17 F. Supp. 177, 179 (D.D.C. 1936).
As the Third Circuit recently observed in footnote 1 of its opinion in Kerchner v. Obama, __ F.3d ___, No. 09-4209 (3d Cir. July 2, 2010): “There is a dispute, among courts and commentators, as to whether the provision known as the ‘Natural Born Citizen’ clause should be cited as clause 4 or clause 5 of Article II, § 1 of the Constitution. Compare Hollander v. McCain, 566 F.Supp.2d 63, 65 (D.N.H.2008) (citing the provision as clause 4), Rhodes v. MacDonald, No. 4:09-CV-106, 2009 WL 2997605, at *1 n. 1 (M.D.Ga. Sept. 16, 2009) (same), and Gerard N. Magliocca, Constitutional False Positives and the Populist Movement, 81 Notre Dame L.Rev. 821, 874 (2006) (same), with Mathews v. Diaz, 426 U.S. 67, 78 n. 12, 96 S.Ct. 1883, 48 L.Ed.2d 478 (1976) (citing the provision as clause 5), and Andrew B. Coan, The Irrelevance of Writtenness in Constitutional Interpretation, 158 U. Pa. L.Rev. 1025, 1051 (2010) (same). In any event, the parties agree as to the substance of the Natural Born Citizen clause, and we use the same citation as we used in Berg v. Obama, 586 F.3d 234, 237 n. 1 (3d Cir.2009).”
dancingrabbit asserts that Wonk Kim Ark’s language about who is a “natural-born” citizen had no “bearing on the actual ruling.” Actually, it did have bearing on the actual ruling. And bear in mind that stare decisis applies not only to holdings, but also to ratio decidendi. See, e.g., Harkless v. Sweeny Ind. School Dist., 427 F.2d 319, 321 (5th Cir.1970) (“under our system of law, a decision of a higher court is binding as a precedent to the extent of the ratio decidendi of the case”).
Now let’s look at Wong Kim Ark. The majority opinion states:
“The constitution of the United States, as originally adopted, uses the words ‘citizen of the United States’ and ‘natural-born citizen of the United States.’ . . .
“The constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’ Amend. art. 14. In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the constitution. . . . The language of the constitution, as has been well said, could not be understood without reference to the common law.
. . . .
“The fundamental principle of the common law with regard to English nationality was birth within the allegiance-also called ‘ligealty,’ ‘obedience,’ ‘faith,’ or ‘power’-of the king. The principle embraced all persons born within the king’s allegiance, and subject to his protection. Such allegiance and protection were mutual,-as expressed in the maxim, ‘Protectio trahit subjectionem, et subjectio protectionem,’-and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the king’s dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the king.
“This fundamental principle, with these qualifications or or explanations of it, was clearly. though quaintly, stated in the leading case known as ‘Calvin’s Case,’ or the ‘Case of the Postnati,’ decided in 1608, after a hearing in the exchequer chamber before the lord chancellor and all the judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin’s Case, 7 Coke, 1, 4b-6a, 18a, 18b; Ellesmere, Postnati, 62-64; s. c. 2 How. St. Tr. 559, 607, 613-617, 639, 640, 659, 679.
“The English authorities ever since are to the like effect. Co. Litt. 8a, 128b; Lord Hale, in Harg. Law Tracts, 210, and in 1 Hale, P. C. 61, 62; 1 Bl. Comm. 366, 369, 370, 374; 4 Bl. Comm. 74, 92; Lord Kenyon, in Doe v. Jones, 4 Term R. 300, 308; Cockb. Nat. 7; Dicey, Confl. Laws, pp. 173-177, 741.
. . . .
“Lord Chief Justice Cockburn, in the same year, reviewing the whole matter, said: ‘By the common law of England, every person born within the dominions of the crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled, or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.’ Cockb. Nat. 7.
“Mr. Dicey, in his careful and thoughtful Digest of the Law of England with Reference to the Conflict of Laws, published in 1896, states the following propositions . . . ‘Natural-born British subject’ means a British subject who has become a British subject at the moment of his birth.’ ‘Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject. This rule contains the leading principle of English law on the subject of British nationality.’”
After surveying this law, the Wong Kim Ark majority concluded:
“It thus clearly appears that by the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.” The Court added: “The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established.”
The Court goes on to explore other sources indicating that anyone born in the United States, with the limited exceptions already noted, is a “natural-born citizen.”
So this issue was thoroughly, thoroughly discussed by the Supremes. Wong Kim Ark’s ratio decidendi falls within the stare decisis doctrine.
The 14th Amendment makes absolutely clear that one who is born in the United States subject to the United States’ jurisdiction is a citizen. Because he was born in Honolulu and didn’t have diplomatic immunity, President Obama became an American citizen “at the moment of his birth.” As explained in Wong Kim Ark, as a result of becoming an American citizen at the moment of his birth, he is a natural born citizen.
Lets take a look at the Indiana ruling…
“Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents”
What does the “language of Article II, Section 1, Clause 4″ say?
Art II, Section 1, Clause 4…The Congress may determine the time of choosing the electors, and the day on which they shall give their votes; which day shall be the same throughout the United States.
The natural born citizen requirement is found in clause 5.
The Indiana Court of Appeals addresed “DancingRabbit’s” concern in the Ankeny decision, in footnote number 9, to wit:
” 9 The Plaintiffs cite the “natural born Citizen” clause as Article II, Section 1, Clause 5 of the U.S. Constitution, but it is properly cited as Article II, Section 1, Clause 4. See also Ind. Code § 3-8-1-6.”
Since the original clause 3 in Article 2, Section 1 was rendered moot by the passage of the 12th Amendment to the Constitution, the numbering system moves other clauses up one.
It is important to note that the clauses were not numbered in the original Constitution and reference to numbered clauses in current practice is only for purposes of convenience.
If anyone goes to usconstitution.net, you’ll see that they are one of many versions of the Constitution that puts clauses that are now moot due to Amendments in italics to show that they are excluded in updated versions of the Constitution. So in the original constitution the natural born citizen requirement is in clause five while in contemporary versions it is in clause four.
How can a natural born citizen be governed by Great Britain?
“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.”
http://fightthesmears.com/articles/5/birthcertificate.html
Factcheck.org goes on to say this about Obama Sr., Jr. and the British Nationality Act of 1948:
“In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC.”
http://www.factcheck.org/askfactcheck/does_barack_obama_have_kenyan_citizenship.html
The U.S. Supreme Court has stated that dual nationality is a “status long recognized in the law” and that “a person may have and exercise rights of nationality in two countries and be subject to the responsibilities of both.” See Kawakita v. United States, 343 U.S. 717 (1952).
State Department rules discusses the problems associated with dual citizenship:
7 FAM 081: U.S. Policy on Dual Nationality:
(e)While recognizing the existence of dual nationality, the U.S. Government does not encourage it as a matter of policy because of the problems it may cause. Dual nationality may hamper efforts by the U.S. Government to provide diplomatic and consular protection to individuals overseas. When a U.S. citizen is in the other country of their dual nationality, that country has a predominant claim on the person.
Outstanding detail in this post. I’ll be following.
It looks like 2 and 14 September are going to be interesting dates as we see how various motions and issues are handled by the parties at the 39a sessions.
It seems a lot is going to depend on how stubborn the Trial Counsel decide to be on the various issues, and, of course, how creative his defense team decides to be.
Md. Judge Denies Request For Obama School Records
http://wjz.com/wireapnewsmd/Md.judge.denies.2.1892398.html
…
The judge ruled Thursday that those records and any other evidence or
witnesses pertaining to Obama’s birth are not relevant to the case and
will not be admitted. Prosecutors have argued that Obama’s birth
certificate shouldn’t be part of the case, especially since the order
for Lakin to deploy to Afghanistan didn’t come directly from the
president.
…
My only thought is this: If Obama has nothing to hide, why does he not provide verification of his birth, or citizenship status and put the whole thing to rest? If that was me in that position, I would “plaster that birth certificate to my forehead” as so aptly said by Obama on a news program recently.
And I have a similar thought about why LTC Lakin and APF (safeguardourconstitution) don’t publish all of the legal documents. If they have nothing to hide and want to quote from those documents why not put them all up for public view, rather than cherry-pick.