I have just returned from watching most of the Article 39(a), UCMJ, hearing. (I left as the last item on the table was a defense request for Alan Keyes and LtGen McInerney.)
To say that the military judge destroyed the defense arguments in detail would not be an overstatement. Although the military judge did politely characterize the defense arguments as an “erroneous view of the law.”
The authority to issue orders does not depend on the qualifications of the President, any suggestion that it does is an erroneous view of the law.
Any suggestion that there is no duty to obey these orders is equally erroneous.
or words to that effect.
Basically what we have been saying has come to pass.
Arrival. The parking lot immediately around the court-house was blocked and you had to pass through a sentry. They demanded identification from everyone. When questioned the guards indicated that everyone had to identify themselves. To my knowledge no-one was turned away. But I thought it odd that they were “checking creds, to know who you are.” Toward the end of the discussion it appeared the real issue was identifying members of the press (who did require escorts).
Waiting. There seemed to be about four or five media. Interestingly there was a court artist for NBC (courtartist.com) present. There were several military persons stopping by for the view. There seemed to be about 10-12 civilians present observing. Two of the civilians indicated that they work on base and that this was a “historic event,” that they have no standing, and are interested in what happened.
I did ask around – again – to see if there were copies of the motions available for press or public review, but there weren’t.
Good move of the day. LTC Brotsky has been released from further participation in the case. Two new trial counsel (CPT O’Bierne and CPT Odergaard) appeared.
Witness production motion.
The defense had requested over 15 witnesses for merits and sentencing. The military judge initially deferred ruling on witnesses who might be relevant to the “eligibility” issue.
The defense argued the alternative that the witnesses would be relevant on sentencing anyway. Mr. Jensen passionately argued that such sentencing evidence would be the “most eloquent mitigation.” (Ignoring the possibility that such would be the most eloquent aggravation.) Dr. Keyes would be an expert in constitutional law to explain to the panel why LTC Lakin’s actions were mitigated because of various (as yet unstated) constitutional principles. This was part of what was going to be addressed when I had to leave.
The government objected on cumulative grounds to the remaining witnesses. The government also seemed to say or hint that the witness summaries were inaccurate. At least that’s how I interpret prosecutors saying, “that’s not what the witness would say.”
The character witnesses for the recent assignment are a CPT, a 1Lt, a SSG, and two SGT’s, and “some are female and some are African-American.” MAJ Kemkes argued that there was a need to have subordinates (generally considered not a good idea in officer cases) who were female and/or African-American to refute claims or perceptions that LTC Lakin is a racist. An indirect reference to Toobin and others in the media who do appear to have at times conflated LTC Lakin and allegations about birtherism being racially motivated. The military judge ordered the defense to pick “the best three” of the witnesses for duty in Afghanistan and ordered the others. The defense (MAJ Kemkes) made a good argument on the witnesses being of different ranks, different positions, and different perspectives of observation. Essentially the defense made a good standard case for why they can present a “Good Soldier” defense. In the military the defense can raise the persons good character as a soldier as reasons why they would not violate the UCMJ.
Judicial Notice.
The defense sought judicial notice of several documents. One a presidential address regarding deployments to Afghanistan. Other documents related to the chain of command or the eligibility issue – DA PAM 10-1, 10 U.S. Code 162(b), Hawaii Stat. 338.17.8 (this is the one I believe Jensen has referred to with his notorious CNN interview and which wasn’t in effect until the [I think] 1980’s. Again the military judge temporarily deferred ruling on the judicial notice motion. The defense wanted to have judicial notice that “all soldiers have a duty to disobey unlawful orders.” That’s not going to be given. The prosecution argued that’s an instructions issue.
The prosecution had requested judicial notice of AR 600-8-105 and the PPG Chapter 11, to which there was no objection from the defense.
The deposition of the officials for the State of Hawaii who have records relating to births was DENIED.
There was no credible argument that the officials would refuse to abide by a subpoena for documents or come to trial. Subpoenas issued for courts-martial are valid and enforceable in similar fashion to federal district courts.
Follow federal practice rules.
Jensen made a credible effort to get the military judge to accept that federal rules of practice (especially as to subpoena’s) are effectively assimilated via Article 46, UCMJ, 10 U.S. Code 846; and that in effect R.C.M. 703 violates Article 46, UCMJ.
One of Jensen’s arguments in response to a military judge question was that the authority is a “trickle down” concept. Jensen argued that under that theory any order since 20 January 2009 was illegal, including by implication the Manual for Courts-Martial because it was presidentially issued. Actually he’s off on that. President Obama has only signed executive orders regarding the MCM this week (unless I missed one in 2009?). I thought at one point Jensen started to walk-back the “any” order is illegal theme. I also thought I heard him say that Congress has no authority to question the president’s eligibility. (As those of you who have practiced in the Fort Meade courtroom know the acoustics are not the best.)
If 40% of Americans doubt came up several times.
The most dangerous it seemed to me was hinting a “how many of them are on active duty.” Essentially Jensen was trying to argue that there is public doubt, that many doubters may be military (you’ve heard me comment on that, and so there must be discovery. This is where the issue of mutiny might come up?
A novel argument was made that the ease of getting discovery should be a factor to consider on the need and the relevance. Jensen did agree that sealing the records would be appropriate.
The military judge took a long lunch break to finalize her decision and findings on the discovery of school records and other records and on the remaining witness issues.
The prosecution seems to be on track as treating this case in the same manner as they would Private Snuffy accused of the same charges – following the KIS principle. The government approach compared to the defense public pleading on political grounds. Jensen got the most voluble and passionate when pleading that discovery should be had because people had a right to know. Oh, OK, you want to know what happened.
Rulings.
The military judge DENIED all of the discovery requests and witness requests related to the birth controversy. This was not unexpected. But what was unexpected was the breadth and detail of the rulings, because of the obvious impact on the lawfulness motion. Clearly the findings and rulings anticipated the next motions session. At the end of the military judge’s reading of her findings, Jensen appeared beaten down. He seemed so affected that for some time he failed to stand when talking with the military judge on the record. LTC Lakin remained impassive as always. The military judge’s findings and rulings seemed also to put a stake through the heart of LtGen McInerney’s affidavit and its relevance to the trial (by inference this would include MG Vallely and MG Curry).
Basically the documents and witnesses are neither (at times she interspersed logically) relevant nor material. She cited to New, Huet-Vaughn, and Rockwood. The military judge found that Congress through its power to regulate the armed forces appointed the service secretaries and their service leaders to carry out functions such as order people to deploy, etc. She found there was substantial independent authority in law, regulation, and custom to support the issuance of orders in this situation. She gave passing reference to the de facto officer doctrine and focussed more on the political question doctrine as a justification for denial of discovery and witnesses on the strawman that the presidents status might be relevant in some fashion.
The military judge twice said that a court-martial is not “a vehicle to challenge political decisions.”
The defense conceded that with the military judge’s rulings, the orders were otherwise lawful. With that this case is back to the standard case one sees where a Soldier has missed movement and disobeyed orders. There was discussion of whether an additional session was necessary based on the lack of “wiggle room” given to the defense as it affected the discovery, witnesses, and lawfulness issues. I did not hear mention of a writ. But if there were one I’d imagine ACCA would deny based on the, “we’ll deal with it if he’s convicted and gets a jurisdictional sentence,” theory.
At this point it seems LTC Lakin will be left to wriggle while his fate is decided in the normal course of business. No doubt there will be some who will try to continue the political aspects of the case but for all intents and purposes LTC Lakin is dead meat. The real question will be sentencing.
Here is a link to some more background to LtGen McInerney who the defense appears to be posturing as their star witness in addition to Dr. Keyes.