IN THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS

LAKIN, TERRENCE L., LTC, U.S. Army,

) ) ) ) ) ) ) ) COL. DENISE R. LIND, Military) Judge, ) the UNITED STATES ARMY, and ) the UNITED STATES, ) ) ) )

Petitioner,

v.

Respondents.

BRIEF IN SUPPORT OF

PETITION FOR EXTRAORDINARY RELIEF IN THE NATURE OF A WRIT OF MANDAMUS AND APPLICATION FOR A STAY OF PROCEEDINGS

Army Misc. Dkt. No.

20100778

TO THE HONORABLE, THE JUDGES OF THE UNITED STATES ARMY COURT OF CRIMINAL APPEALS

Relie£ Sought

Petitioner seeks to have this Court order the military judge

vacate her order of 2 September 2010 denying Petitioner's

discovery requests and instead enter a new order granting those

requests. In the interim, and until this Court rules on our

request, we seek an order staying all proceedings before the

military judge.

Jurisdictional Statement

Jurisdiction for this Petition is the All Writs Act, 28

U.S.C. §1651 and Article 66(b), U.C.M.J., 10 U.S.C. §866(b).

This Court has explained further that it has supervisory

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jurisdiction, as the "highest judicial tribunal in the Army's court-martial system", to issue extraordinary writs. Dew v.

United States, 48 M.J. 639, 645 (Army Ct .. Crim. App. 1998). further, the relief sought cannot be obtained during the ordinary course of appellate review precisely because the relief sought pertains to Petitioner's constitutional right to have compulsory process to produce critical evidence at trial.

History of the Case

On 6 August 2010, Petitioner was arraigned on 1 charge and 1 specification in violation of Article 87, U.C.M.J. (missing movement through design), and 1 charge and 3 specifications in violation of Article 92 (2 specifications of failure to obey an order and 1 specification of willful dereliction of duty). A motions hearing was held on 2 September 2010, on Petitioner's Request for a Depo s Lt.Lorr' and Motion to Compel Dd.s cove r y". They were supported by an Affidavit of LTG Thomas McInerney, USAF

(Ret.) 3 and a Request for Judicial No t Lce ".

These discovery

motions asked the military judge for compulsory process to produce for deposition in Hawaii the custodian of Hawaii's

'At.t.aohe d as Appendix 1 for convenience of the court.
2Attached as Appendix 2 for convenience of the court.
3Attached as Appendix 3 for convenience of the court.
"At t.achad as Appendix 4 for convenience of the court.
2 records concerning the birth of President Barack Obama, as well

as compulsory process for records of the admissions and financial

aid applications of the schools and universities attended by

President Obama.

The government filed briefs in oppositions.

After hearing argument, the military judge denied both the motion

and the request in a written order6•

The military judge has scheduled another motion hearing for

28 September 2010, this time on the government's motion for an

order determining that the president's constitutional eligibility

is not relevant at trial.

The military judge has scheduled the trial in this matter

for 13-15 October 2010.

Factual History

On or about 30 March 2010, Petitioner went to the office of

his brigade's commander, COL Gordon Roberts, pursuant to an

appointment that he had confirmed with COL Roberts. However, COL

Roberts did not keep that appointment, and Petitioner instead met

with the brigade deputy commander, LTC Crockett-Linn, and

informed her that he was refusing to obey an order he had

5Attached for the court's convenient reference are: Appendix 5, Government Response to Defense Motion to Compel or Other Appropriate Relief; Appendix 6, Government Response to Defense Request for Deposition; Appendix 7, Government Response to Defense Request for Judicial Notice.

6Attached for the court's convenient reference as Appendix 8 is the Military Judge's Order.

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received to deploy to Afghanistan by way of Ft. Campbell, on the grounds that the Commander-in-Chief, Barack Obama, was ineligible under the United States Constitution to hold office and thereby to give any order, most particularly the order announced by him at West Point on 1 December 2009 to surge troop strength in Afghanistan that ultimately had resulted in the deployment order in question. The next day, COL Roberts ordered Petitioner to come to his office and meet with him; LTC Lakin did not do so.

LTC Lakin posted a video on Youtube stating that he had previously written the President asking for proof of his eligibility, and prior to that had filed, through appropriate Army channels, requests under UCMJ Sec. 138 seeking some verification of the President's eligibility under the United

States Constitution.

In his statement, LTC Lakin mentioned

mounting evidence that the President was ineligible because he did not satisfy the "natural born citizen" requirement of Art. II, sec. 1. Since LTC Lakin was convinced his orders were thus illegal, he explained that he was taking the distasteful route of inviting his own court martial.

Notwithstanding the constitutional requirement of natural born citizenship, substantial and credible evidence exists that

President Obama is not a natural born citizen.

Official White

House statements discuss the fact that the President's father was a citizen of Kenya. An eyewitness has stated that the President

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was born in Kenya, and that she were present at his birth.

Kenyan Cabinet Minister Orengo on March 25, 2010 declared on the floor of the Kenyan Parliament that Mr. Obama was born in Kenya, and Kenya's Ambassador to the United States, Peter Ogego, was interviewed on a Detriot radio station in November 2008 and acknowledged that the president-elect was born in Kenya. Some press reports at the time of his campaign for the United States in 2004 that then-Illinois State Senator Obama was born in Kenya.

A (presumably genuine) abstract from the Hawaii's State Department of Health of the data in its system can be seen on the internet stating that their records show the President was born in Honolulu, consistent with his official biography on the White House website, but under Hawaiian law, the source of this information could have come from any number of sources, including sources of very recent origin. The president has refused assent

for Hawaii to release the source documents.

This refusal may

have initially been within his rights, but in light of all of the other evidence that he was born abroad, raises the reasonable conviction that the source documents would prove that he was born elsewhere. Since 1982, Hawaii has had a statute whereby any person can come forward today as an adult and by meeting certain minimal requirements, lawfully claim Hawaiian birth, even if the

person had in fact not been born in Hawaii.

While not the only

way to obtain a birth certificate as an adult when none had

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existed before, had the president used this method to enter Hawaii's record-system as recently as a few years ago, he would be entitled to obtain just such an abstract as is circulating on

the internet.

(No one seems to know, by the way, where the

original of that documents is presently, or its provenance. The government in this case does not offer it in evidence, and no Hawaiian official has ever been quoted as saying it is genuine.) If the president was born in Kenya and yet had made application to the State of Hawaii for recognition as a natural-born Hawaiian under the aforesaid statute, that would explain his refusal to allow Hawaii to release their records.

Petitioner's defense to this case is the truth of his assertion that President Obama is ineligible to hold office and give orders which resulted in the orders Petitioner is charged with disobeying. The military judge has now refused him compulsory process to obtain the records that would show whether he is right, vel non. Accordingly, Petitioner maintains that they are relevant at trial, and especially, relevant at sentencing.

As evidenced by the affidavit of Lieutenant General Thomas McInerney, UASF (Ret.), filed in support of Petitioner's motion, military order and discipline are directly dependent upon the unified and unbroken chain of command, which every soldier is trained from day one begins with the president and extends

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downward from there all the way to the individual soldier.

This

precept is so fundamental to our nation that it is enshrined in

the constitution: "The President shall be Commander-in-Chief of

the Army ... "

(U. S. CONST. ART. II, SEC. 2.) As General McInerney

puts it:

Officers in the United States military service are

-and must be- trained that they owe their highest

allegiance to the United States Constitution. 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-l 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.

The President of the United States, as 'the Commander in

Chief, is the source of all military authority? Affidavit of

7This universally-acknowledged reality was revised and codified by the Goldwater-Nichols Act in 1986:

Chain of Command.---Unless otherwise directed by the President, the chain of command to a unified or specified combatant command runs-(l} from the President to the Secretary of Defense; and (2)

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General McInerney, ~6.

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. Affidavit of General McInerney, ~6. It is

of vital importance to our Republic and to our military services

that soldiers have no need to doubt the president's eligibility.

Speaking to this subject LTG McInerney puts it this way:

For the foregoing reasons, it is my

opinion that LTC Lakin's request for

discovery relating to the President's birth

records in Hawaii is absolutely essential to

determining not merely his guilt or innocence

but to reassuring all military personnel once

and for all for this President whether his

service as Commander in Chief is

Constitutionally proper. He is the one

single person in the Chain of Command that

the Constitution demands proof of natural

born citizenship. This determination is

fundamental to our Republic, where civilian

control over the military is the rule.

from the Secretary of Defense to the commander of the combatant command.

10 U.S.C. §162 (bl.

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According to the Constitution, the Commander

in Chief must now, in the face of serious

-and widely-held- concerns that he is

ineligible, either voluntarily establish his

eligibility by authorizing release of his

birth records or this court must authorize

their discovery. The invasion of his privacy

in these records is utterly trivial compared

to the issues at stake here. Our military

MOST have confidence their Commander in Chief

lawfully holds his office and absent which

confidence grievous consequences may ensue.

Affidavit of General McInerney, ~9.

In short, the facts of this

case make relevant the evidence sought.

Issue

WHETHER THE MILITARY JUDGE ERRED IN REFOSING TO PROVIDE COMPULSORY ACCESS TO EVIDENCE C~ITICAL TO THE DEFENSE IN THIS CASE

Reasons for Granting the Writ

The petition presents an important question of first

impression: is an order illegal if there is a break in the chain

of cowmand due to the constitutional ineligibility of the

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president to serve in office. The military judge found the question was amenable to an interlocutory question of law and accordingly, ruled on that question as a matter of pure law. Extraordinary relief is necessary because if the military judge allows this case to proceed to trial knowing that no compulsory process is available to secure the evidence necessary to mount a defense, Petitioner will be denied his right under the constitution to compulsory process in order to secure witnesses

in his defense.

u.s. v. Daniels, 48 C.M.R. 655, 657 (C.M.A.

1974). This denial of a constitutional right will also "gravely impairH Petitioner's ability to receive a fair trial. Id. In United States v. Eshalomi, 23 M.J. 12 (C.M.A. 1986) the Court of Military Appeals held that Congress and the President enacted higher standards for discovery in trials by Courts-Martial. The Court noted that Article 46, UCMJ, provides for "equal opportunity" to obtain witnesses and evidence. Id. at 24. The Eshalomi court, although not directly addressing the issue, noted that Article 46, UCMJ, may impose a heavier burden on the government to sustain a conviction than is constitutionally required when defense-requested discovery is withheld. Eshalomi, rd.

R.C.M. 703 (f) (1) provides: "Each party is entitled to the production of evidence which is both relevant and necessary."

The Discussion to this rule explains that "[r]elevant evidence is

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necessary when it is not cumulative and when it would contribute to a party's presentation of the case in some positive way on a matter in issue.H Because on the facts presented, the issue of the president's actual ineligibility is directly relevant to sentencing seems to be beyond dispute, and its relevancy to the merits, we submit, is also critical.

Another issue of first impression is presented by this Petition. In denying our motion, the military judge explicitly rejected our argument that the president has adopted rules to implement Article 46 U.C.M.J. for obtaining evidence that are inconsistent with that article, and with the United States Constitution.

The Fifth Amendment provides: "No person shall

be ... deprived of life, liberty or property, without due process of law ... " The Sixth Amendment provides: "The accused shall enjoy the right ... to be confronted with the witnesses against him; [and] to have compulsory process for obtaining witnesses in his favor.H These constitutional protections are codified in UCMJ §846, Art. 46: "The 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. Process issued in court-martial cases to compel witnesses to appear and testify and to compel the production of other evidence shall be similar to that which

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courts of the United States having criminal jurisdiction may lawfully issue and shall run to any part of the United States ... n The fact is that in this case the government has already issued one subpoena for their own purposes pursuant to this section, but the defense lacks the same opportunity without order of this court. This disparity is NOT in keeping with Federal Rule of Criminal Procedure Rule 17 where the Clerk of the Court MUST issue a blank subpoena to the defense upon request, without order of court. See also, United States v. Cumberledge, 6 M.J. 204,

205 n. 13 (C.M.A. 1979) and United States v. Chucu_late, 5 M.J. 143, 145 (C.M.A. 1978).

By implementing the existing procedure where the defense must first go to the government seeking it to issue a subpoena and then bring a motion when the request is denied, the burden of persuasion in that motion shifts to the defendant. This shifting of the burden is contrary to the mandate of Art .. 46, D.C.M.J.'s mandate of parity between civilian and military criminal procedure. We submit this is also a profound deprivation of the defendant's constitutional rights to procedural due process.

The right of an accused to compel attendance of a witness whose relevance has yet to be est~blished but who is reasonably believed to be relevant to negate the government's case is

constitutionally and statutorily protected. M.J. 919 (A.F.C.M.R. 1982).

u.s. v. Rhodes, 14

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The United States Constitution and federal statutes

guarantee an accused servicemernber the right to compulsory

process. U. S. v .. Stombaugh, 40 M.J. 208 (C.M.A. 1994); u.s. v.

Davidson, 4 M.J. 702 (A.C.M.R. 1977).

The duty to insure the accused receives a fair trial is a

part of the military judge's duty to assure that the court-

martial is conducted in a fair and impartial manner and in

accordance with law.

u.s. v. Cover 16 M.J. 800 (N.M.C.M.R.

1983) .

While the military judge found the political question

doctrine a bar to our requests, this is in error, because

contrary to her findings, the constitution does not commit to a

coordinate branch of government the responsibility to insure the

president's eligibility. While the constitution indeed provides

the Congress with the power of impeachment, that power is not

provided for issues of eligibility, only for "high crimes and

misdemeanors".

No suggestion has been made that being ineligible

to hold office is a crime of any kind. Therefore, the political

question doctrine should not bar the defendant's right to pre-

trial discovery,S

8The military judge's relianc-e on U.S. v. New, 55 M.J. 95 (C.A.A.F. 2001) in this regard was misplaced for the reasons just mentioned. Moreover, the general proposition of that case's discussion of the doctrine is questionable. "Thus we find no defect in the [CAAF's] application of the political question doctrine, even though that application might be highly contestable in another context. Compare Campbell v. Clinton, 203

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On 1 December 2009, at the United States Military Academy,

the president announced his long-awaited decision on the

recorrunendation of GEN Stanley A. McChrystal regarding our force

strength in Afghanistan, saying "As your Commander-in-Chief, I

owe you a mission that is clearly-defined, and worthy of your

service. That is why ... ! insisted on a thorough review of our

strategy. ... [CJI] This review is now complete. And, as Commander-

in-Chief, I have determined that it is in our vital national

interest to send another 30, 000 troops to Afghanistan ... "9

Further to this pr~sidential decision, the orders were

issued for which the defendant stands charged today. The question

of the president's eligibility is therefore most profoundly

important to the defense in this case.

Conclusion

This Court should not allow this case to proceed to trial

without the discovery so essential to the de£ense's presentation

F.3d 19, 24-28 (D.C. Cir. 2000) (Silberman, J., concurring) (finding that no "judicially discoverable and manageable standards" exist for application of the Constitution's war powers clause or the War Powers Resolution, 50 U.S.C. §1541 et seq.), with id. at 37-41 (Tatel, J., concurring) (concluding that such standards do ex i s t ) . " Uni ted Sta tes ex reI. New v.

Rumsfeld, 448 F.3d 403, D.C.Cir. 2006).

9"Remarks by the President in "Address to the Nation on the Way Forward in Afghanistan and Pakistan", December 1, 2009, Eisenhower Hall Theatre, United States Military Academy at West Point, West Point, New York, http://www.whitehouse.qov/the-pressofflce/remarks-president-address-nation-way-forward-afghanistanand-pakistan, accessed 11 May 2010.

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of its case. Accordingly, the Petitioner respectfully requests

that this Court stay all proceedings below and issue a Writ to

order the military judge to grant the motion and request for

deposition so the defendant can have compulsory process to

produce evidence essential to his defense.

Dated: 27 Sept 2010

Respectfully submitted,

~M/ItJf~

PAUL ROLF JENSEN

Civilian Defense Counsel

JENSEN & ASSOCIATES, APC, Trial Lawyers 650 Town Center Drive, 12th Floor

Costa Mesa, California 92626

(714) 662-5528 voice

(714) 708-2321 fax

pri@iensenlawyers.com

Certificate of Service

I certify that a copy of the foregoing was delivered by email on September 27, 2010 to the following:

COL DENISE LIND, Military Judge

CPT PHIL O'BEIRNE, Trial Counsel

CPT JONATHAN KOBRINSKI, Trial Counsel

I further certify that a copy of the foregoing was delivered by mail on September 27, 2010 to: United States Army, Government Appellate Division, 901 N. Stewart Street,. Room 330 A, Arlington, VA 22203.

PAUL ROLF JENSEN

Civilian Defense Counsel

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