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Battle-scarred judge says Lakin decision ignores Constitution

Posted By -NO AUTHOR- On 09/04/2010 @ 12:00 am In Front Page | Comments Disabled

FORT MEADE, Md. – The military judge who curiously noted without explanation that uncovering evidence about President Obama’s birth records could prove “embarrassing” and denied an officer the right to obtain potentially exculpatory evidence in a court-martial simply has forgotten the Constitution, the supreme rule of the United States.

So says Judge Roy Moore, who battled the politically correct climate as chief justice of the Alabama Supreme Court a decade ago and ultimately was removed from office by a state panel that refused to review the constitutionality of a federal court order.

His comments came today in an interview with WND about Lt. Col. Terrence Lakin, who yesterday was denied permission by Army Col. Denise R. Lind to obtain evidence that could document Obama is not eligible to occupy the Oval Office.

Lakin refused to follow his latest deployment orders to go to Afghanistan, because he was unable through Army channels to document Obama’s eligibility, and the president himself has declined opportunities to do so.

Judge Moore, who now operates through the Foundation for Moral Law, has personal experience with challenging the powers that be to follow the Constitution. His dispute centered on a Ten Commandments display he put in a state building to recognize the God who inspired the Founders of America.

A federal judge opined that the monument shouldn’t be there and ordered its removal. Moore refused and ultimately was removed from office by a state commission that he says “blindly” followed the order without evaluating its legitimacy.

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With her decision, Lind mirrored a number of federal judges who have ruled on civil lawsuits over Obama’s eligibility. They have without exception denied the plaintiffs’ access to any requested documentation regarding the president’s eligibility.

Lind ruled that it was “not relevant” for the military to be considering such claims, that the laws allegedly violated by Lakin were legitimate on their face and that the chain of command led up to the Pentagon, and that should have been sufficient for Lakin.

Moore said the ruling is a symptom of a judiciary across the nation that now believes in following “blindly.”

“The highest law in this country is not the order of the Supreme Court of the U.S., not the order of the commander in chief, or any subordinate officer,” he said.

Instead, it is the Constitution, which in this particular case demands that the president be a “natural born citizen,” a requirement not imposed on other officers.

There have been dozens of lawsuits and challenges over the fact that Obama’s eligibility never has been documented. The “Certification of Live Birth” his campaign posted online is a document that Hawaii has made available to those not born in the state.

“Lt. Col. Lakin has every right to question the lawfulness of the orders of the commander in chief. He’s not only the commander in chief, he dictates the whole war effort, as shown by the recent firing of [Gen. Stanley McChrystal],” Moore said.

It doesn’t matter, he said, that orders come from a colonel, or a general or even the Pentagon.

“The same thing applies in the military as in the judicial system,” he explained. “The Constitution is the supreme law of the land, it’s not the order of a higher officer, not the order of a judge.”

Lind found that since Congress allocates money for the war effort and the Pentagon was created, an order tracing back to the military hierarchy should have been sufficient for Lakin.


Lt. Col. Terrence Lakin

“That’s wrong,” Moore said. “They’re not the commander in chief.

“No order in the military can be issued without the authority that backs the order. The president didn’t give the order, but he is the authority that backs the order,” he said.

With the current protocol to simply follow orders, Moore warned, the U.S. will develop more incidents like that involving Lt. William Calley in Vietnam. The atrocities of My Lai were carried out under the guise of “following orders,” Moore noted.

Lakin “not only has a right to follow his personal convictions under the Constitution, he has a duty,” Moore said. “And if the authority running the efforts of the war is not a citizen in violation of the Constitution, the order is unlawful.”

Moore said he’s seen no convincing evidence that Obama is a “natural born citizen” and a lot of evidence that suggests he is not.

“This is the strangest thing indeed. The president has never produced [evidence] in the face of substantial evidence he was not born in our country. People are accepting it blindly based on their feelings, not on the law,” he said.

“They can’t fool all of the people all of the time, and that’s what they’re trying to do,” he said.

Lind’s ruling means Obama will not have to testify at Lakin’s court-martial, scheduled in October, nor will those who have custody of his birth records in Hawaii.

Lakin has been charged by the Army with missing a movement, disobeying a lawful order and dereliction of duty.

The charges have been filed because Lakin refused to deploy to Afghanistan in April, because he believes the president of the United States cannot be the commander in chief and has failed to prove his citizenship.

Paul Jensen, Lakin’s civilian attorney, argued lawful military orders come from the commander in chief, and those military orders are illegal if the authority behind them is fraudulent. He wanted the court to grant access to the president’s birth and educational records.

Jensen filed a “motion to compel,” which asked the court to subpoena officials at the Department of Health in Hawaii to produce a formal birth certificate. The motion also requested access to the president’s school records in Hawaii, Occidental College and Harvard University.

Jensen cited UCMJ article 46, which states: “The trial counsel, and the court martial shall have equal opportunity to obtain witnesses and other evidence in accordance with such regulations as the president may proscribe.”

In addressing the court, Jensen said, “If the president is ineligible, you need to know that, Lt. Col. Lakin needs to know that, and the army needs to know that.”

He also argued that obtaining birth and education records was routine and would do the court no harm. He said it was possible to even admit the evidence during this phase of the trial and later determine whether it could be used during the actual court-martial.

Instead, Lind said:

  • That all parties are, entitled to discovery or evidence under USMJ article 46.
    That President Obama is the commander in chief but that Congress also has significant and equal role in military matters under title 10 of the USC (Uniform Service Code.)

  • That Congress has the authority to raise an army, fund it and over the years created a proper chain of command including the secretary of the army.
  • That the issue of eligibility is a constitutional issue and a political question, not matter for a military court to decide.
  • That a court-martial has no jurisdiction in any potential impeachment, and it could be embarrassing, although Lind did not specify whether she meant embarrassing for the president or for the court.

Lind also refused to accept Lakin’s claim that his refusal to obey orders was a matter of conscience.

Another pre-trial hearing is scheduled for Sept 21.

Lind’s decision came just days after a retired U.S. Air Force lieutenant general who commanded forces armed with nuclear weapons said the disclosure of Obama’s documentation is not just critical to Lakin’s defense, but to the preservation of the nation itself.

The vehement statements came in an affidavit from retired Lt. Gen. Thomas G. McInerney, a Fox News military analyst, that was disclosed by an organization generating support for Lt. Col. Terrence Lakin.

Lakin had invited his own court-martial because he is unable to follow orders under the chain of command with Obama at its head unless the president’s eligibility is documented.

McInerney, who retired in 1994 after serving as vice commander in chief of USAF forces in Europe, commander of the 3rd Tactical Fighter Wing and assistant vice chief of staff of the U.S. Air Force, among other positions, said the chain of command issue is critical, since officers are obligated both to follow orders and to disobey illegal orders.

“Officers in the United States military service are – and must be – trained that they owe their highest allegiance to the United States Constitution,” he said in the affidavit.

“There can be no question that it is absolutely essential to good order and discipline in the military that there be no break in the unified chain of command, from the lowliest E-1 up to and including the commander in chief who is under the Constitution, the president of the United States. As military officers, we owe our ultimate loyalty not to superior officers or even to the president, but rather, to the Constitution.”

He explained “good order and discipline requires not blind obedience to all orders but instead requires officers to judge – sometimes under great adversity – whether an order is illegal.

“The president of the United States, as the commander in chief, is the source of all military authority,” he said. “The Constitution requires the president to be a natural born citizen in order to be eligible to hold office. If he is ineligible under the Constitution to serve in that office that creates a break in the chain of command of such magnitude that its significance can scarcely be imagined.”

Lakin is being supported by the American Patriot Foundation, which said the affidavit is for use in Lakin’s trial, scheduled Oct. 13-15.

Lakin is a physician and in his 18th year of service in the Army. He posted a video asking for the court-martial to determine Obama’s eligibility.

He is board certified in family medicine and occupational and environmental medicine. He has been recognized for his outstanding service as a flight surgeon for year-long tours in Honduras, Bosnia and Afghanistan. He was also awarded the Bronze Star for his service in Afghanistan and recognized in 2005 as one of the Army Medical Department’s outstanding flight surgeons.

The controversy stems from the Constitution, Article 2, Section 1, which states, “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

A number of challenges and lawsuits have been based on the constitutional requirement, some alleging Obama does not qualify because he was not born in Hawaii in 1961 as he claims. Others say he fails to qualify because he was a dual citizen of the U.S. and the United Kingdom when he was born, and the framers of the Constitution specifically excluded dual citizens from eligibility.

Complicating the issue is the fact that besides Obama’s actual birth documentation, he has kept from the public documentation including his kindergarten records, Punahou school records, Occidental College records, Columbia University records, Columbia thesis, Harvard Law School records, Harvard Law Review articles, scholarly articles from the University of Chicago, passport, medical records, files from his years as an Illinois state senator, Illinois State Bar Association records, baptism records and his adoption records.

Lakin had posted a YouTube video challenging the Army to charge him over the issue.

As WND reported, Lakin posted the video of his challenge to Obama to document his eligibility March 30.

In his latest video, Lakin said the issue of evidence is important:

Note: A legal-defense fund has been set up for Lt. Col. Terry Lakin.


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