Lt. Col. Terry Lakin is a soft-spoken dedicated, military doctor who has had a distinguished career and a spotless service record. Like most of the people who give honorable service in our armed forces, he takes seriously the sworn oath that epitomizes his duty. Motivated only by his conscientious sense of that duty, he has laid his career on the line in order to seek removal of the cloud of doubt that continues to bedevil the constitutionality of Barack Obama’s claim to hold the office of president of the United States.
Like most Americans, I knew nothing about Lt. Col. Lakin when I first read of his refusal to accept further orders deriving their authority from the military chain of command until the substantial doubt about Mr. Obama’s eligibility to serve as commander in chief has been resolved. I did know that the civilian authority ultimately responsible for the lawfulness of every order emanating from that chain of command is vested in the president of the United States. I was therefore impressed by Lt. Col. Lakin’s respectful request that Obama fulfill his own publicly sworn duty to the Constitution by taking the steps necessary to document that he is constitutionally qualified to hold the office he now claims.
In January 2009, as Obama stepped forward to take the oath of office, I coauthored an article that anticipated the logic that validates Lt. Col. Lakin’s morally courageous action:
If Obama is not eligible, legally, the United States of America will have no president. A usurper will wield such power as few men have ever held, having no constitutional warrant. However beloved of the media or adored by racialist groupies, and irrespective of public support, Obama will be a tyrant, in the original sense of the word (from the Greek tyrannos meaning one who wields power to which he has no lawful claim). As he sends young soldiers to die, even the appearance of his usurpation of presidential powers will insult their sacrifice and thwart the Constitution they give their all to preserve. Even as he utters the oath – hand on Lincoln’s Bible – he will betray it, not upholding, protecting and defending the Constitution, but subverting it.
Lt. Col. Terry Lakin’s work as a flight surgeon directly involves him with the results of the commander in chief’s authority to order soldiers into combat. He has firsthand knowledge of the physical and emotional dangers they must face. The moral principles the Allies relied upon for their prosecution of German military officers at Nuremberg after World War II make clear that individual officers are not relieved of the conscientious responsibility for the moral consequences of their actions. Military discipline, therefore, requires obedience to lawful orders, not those that abuse the formalities of the chain of command and violate the basic principles of justice that substantiate the lawfulness of the authority it represents.
The Constitution of the United States institutionalizes respect for those basic principles. Its requirements and procedures reflect the American people’s duly ratified and conscientious effort to apply them to the exercise of government power. Civilian control of the military, through the commander in chief, is one of the key features of the democratic, republican form of government that effort has produced. The fact that U.S. military forces swear an oath of allegiance to the Constitution signifies the subordination of physical force to the requirements of justice. Military might does not make right. Military orders derive their lawfulness not from raw power but from their observance of constitutional provisions and constraints.
A presumption of lawfulness arises from observance of the Constitution, so U.S. military forces are obliged by their allegiance to the Constitution to obey the orders that flow through the chain of command from a constitutionally elected president. But the presumption of lawfulness does not extend to the authority of a person whose election as president is not consistent with the Constitution’s requirements. Once the presumption of lawfulness is taken away from the individual claiming to act as commander in chief, it no longer extends to the chain of command that depends upon his person. In that case, the Nuremberg principles leave it to the conscience of every soldier, and especially every presidentially commissioned officer, to deal with the question “Is this a lawful order?” A doubt that otherwise arises only in extraordinary and extreme circumstances hangs every day, over every officer, with respect to every order.
This situation confronts the members of the U.S. military with an intolerable choice between discipline and honor. The situation results from the dereliction of responsible civilian constitutional officers in both the legislative and judicial branches of government. They have refused to meet their sworn duty to assure that the Constitution is at all times being upheld. By his actions, Lt. Col. Lakin declares his willingness to rely upon the system of military justice to proceed in a manner that will eventually confront the Supreme Court of the United States with its inescapable duty to provide a constitutionally authoritative answer to the question of Obama’s constitutional eligibility to serve as president.
Whatever the Supreme Court decides, the decision will remove the responsibility for decision from the shoulders of individuals in the military. People may agree or disagree with a Supreme Court decision, but it cannot lawfully be challenged except by constitutional means. The eligibility issue will then be, in the broadest sense, a political question, in the hands of the people at large and their elected representatives. It may remain a vexed question. But with the Constitution’s authority formally affirmed, it will no longer threaten the U.S. government’s claim to legitimacy (lawful power) or erode the good order and discipline of forces vital to the security and domestic tranquility of the nation.
(In numerous posts on my blog, Loyal to Liberty, I have dealt in some depth with the serious constitutional crisis connected with the eligibility issue. Interested readers should select the item “Eligibility issues” under the heading “Featured Series” in the site’s navigation menu. In addition to reading those posts, those so inclined can give Lt. Col. Lakin moral encouragement by signing the Declaration of Support I have made available at the site.)