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Defense Motion to Compel or For Other
LAKIN, Terrance L. LTC, U.S .. Army Headquarters Company Medical Center Brigade
Walter Reed Army Medical Center Washington,. DC 20307
2 September 2010
The Defense has moved to compel production of the followinq documents both for this Court's interlocutory determination of the lawfulness of the orders in specifications 1 - 3 of Charge II and for the merits and sentencing portions of the trial:
1. Writings of Punahou school, Occidental College, Columbia University, and Harvard University regarding applications for admission and financial aid of Barrack Houssein Obama IUBarry Soetoro; and
2. Records in possession of Hawaii State Department of Health's Office of Health Status Monitoring pertaining to the birth of Barrack Houssein Obama II.
The defense further requests the production of Ms. Betty Hata, Dr. Chiyome 'Fukino, Mr. Jeffrey Scott, and Mr Doug Bergman,. as custodian of records for the above documents, LTG (Ret) Thomas G. Mcinerney to testify consistent with his affidavit regarding the military chain of command and Dr: Alan Keyes, for sentencing to testify about the history of the U.S. Constitution.
In separate filings, the Defense requests the Court order an oral deposition be taken of the Custodian of the Records of the Hawaii Department of Health about department records concerning the birth of Barrack Houssein Obama II. The Defense also "requests the Court take Judicial Notice of (1) Remarks by the President in "Address to the Nation on the Way Forward in Afghanistan and Pakistan," 1 December 2009, Eisenhower Hall Theater, United States Military Academy at West Point, New York; DA PAM 10-1 preface and chain of command chart, U.S. Department of State, 7 FAM 1131.6-2, Senate Resolution 511 (110th Congo 2nd Session), agreed to 30 April 2008, 10 U.S.C. 162b; Article II, Section 1, U.S. Constitution, the words "Soldiers have a duty to disobey illeg al orders." And Hawaii Revised Statute section 338-11..8.
At oral argument, the defense urges the Court to find that Rule for Court-Martial (ReM) 703(c) Violates Article 46, of the Uniform Code of Military Justice, rather than
follow the rule, allow the defense to subpoena witnesses and evidence the defense believes may be relevant to their case.
Having received the briefs and supporting evidence filed by the parties and having heard oral argument, the Court finds and rules as follows:
Procedures Governing Production of Witnesses and Evidence in Courts-Martial:
1_ Article 46, UCMJ, provides that the trial counsel, the defense counsel, and the courtmartial shall have equal opportunity to obtain evidence in accordance with such regulations as the President may prescribe. Article 46 also states in pertinent part that process to compel witnesses and evidence shall be similar to that which the courts of the United States having criminal jurisdiction may lawfully issue.
2. The President has prescribed Rule for Court Martial (ReM) 703 to govern production of witnesses and evidence. Under ReM 703(b)(1) and (f) each party is entitled to the production of any evidence which is relevant and necessary or any witness whose testimony on the merits or on an interlocutory question would be relevant and necessary. ReM 703 authorizes the trial counsel to obtain witnesses and evidence he/she considers relevant and necessary for the prosecution but requires the defense to submit to the government a list of witness the defense submits are relevant and necessary. If the government contends that production is not required under the rule, the matter is submitted to the military judge for decision.
3. Military Rule of Evidence (MRE) 401 defines "Relevant Evidence" .. Relevant evidence means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence ..
4. MRE 402 provides that all relevant evidence is admissible, except as othervvise provided by the constitution of the United States as applied to members of the armed forces, the code, these rules, this Manual, or any Act of Congress applicable to members of the armed forces. Evidence which is not relevant is not admissible.
5_ Relevant evidence is necessary when it is not cumulative and when it would contribute to a party's presentation of the case in some positive way in a matter at issue Amatteris not at issue when it is stipulated as fact (discussion to R.C_M.
703(b)(1 ))_ -
6. MRE 403 provides that relevant evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the members, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
7. ReM 703(c)(2) and (f)(3) govern production of witnesses and evidence for the defense. For interlocutory questions or the merits, these rules require the defense to
submit to the trial counsel a list of witnesses and evidence the defense considers relevant and necessary on the merits or on an interlocutory question. For witnesses, the defense submission shall include the name, telephone number, if known, and address or location of the witness such that the witness can be found in the exercise of due diligence and a synopsis of the expected testimony sufficient to show its relevance and necessity. For evidence the defense must list the items of evidence to be produced and include a description of each item sufficient to show its relevance and necessity 1 a statement of where it can be obtained, and, if known, the name, address, and telephone number of the custodian of the evidence. For sentencing witnesses, the defense must include a synopsis of the testimony that it is expected the witness will give and the reasons why the witness' personal appearance will be necessary under the rules set forth in R.C.M. 1001 (e). The synopsis of witnesses must include the subject to be addressed and what the witness is expected to say about those subjects. U.S. v. Rockwood, 52 M.J. 98,105 (C.A.AF. 1999)_
Findings of Fact: Production of Defense Requested Witnesses and Evidence in this Case:
1. The accused is charged with missing movement by design, three specifications of failure to obey lawful orders, and willful dereliction of duty. The question presented is whether the evidence is relevant and necessary to either: (1) the interlocutory question of whether the orders in specifications 1-3 of Charge 1.1 are lawful; (2) the merits portion of the trial as evidence of a fact of consequence to an element of a charge or to a legal defense to a charge; or (3) sentencinq as evidence in aggravation, extenuation, or mitigation. In sentencing the defense may present matters in mitigation of an offense to lessen to punishment to be adjudge by the court-martial. or to furnish grounds for a recommendation of clemency. Such evidence includes particular acts of good conduct or bravery and: evidence of the reputation or record of the accused in the service for efficiency, fidelity, subordination, temperance, courage, or any other trait that is desirable in a service-member (R. C.M. 1001 (c)(1 )(8)). The defense may also present matters in rebuttal of matters presented by the prosecution (R.C.M. 1001 (c)(1 )).
2. The Defense asserts that these records and witnesses are relevant and necessary for this court's interlocutory determination on the lawfulness of the orders at issue in specifications 1-3 of Charge II and on the merits because the primary defense - or at least partial defense - to the charges in this case is that the orders at issue in specifications 1~3 of Charge II were unlawful The Defense asserts that the President, as the Commander in Chief is the source of all military authority. If the President is not a natural born citizen, he is ineligible under the United States Constitution to serve in office, then, axiomatically, no order 9iven by him is valid. Thus, if the President's 1 December 2009 decision to increase troop strength in Afghanistan by 30,000 troops was illegal, then it can only but follow that the orders issued by the chain of command pursuant thereto are illeqal. The Defense further contends that th.is evidence is relevant for sentencing.
3. The Government responds that the evidence the Defense seeks to compel is not relevant and necessary on the interlocutory question of the legality of the orders at issue in specifications 1-3 af Charge I because neither the authority of the officers issuing the orders in specifications 1-3 of Charge II (L Te William Judd, COL Gordon Roberts, and COL Peter M. McHugh) nar L Te Lakin's duty to obey those orders depends on whether the President is eligible under the Constitution to serve as President and Commander in Chief. Instead, Title 10 United States Code Section 3013(b) vests the Secretary of the Army with the responsibility and authority to conduct all affairs of the Department of the Army, including mobilizing and maintaining the Army. The Government further asserts that, assuming arguendo without conceding the point, even if President Obama is not eligible to hold office the de facto officer doctrine, recognized by the Supreme Court in Ryder v. U. S., 515 u..S. 177 (1995), dictates that actions taken by President Obama under color of office are valid. LTC t.akm is duty bound to follow the lawful orders of his superiors even if the eligibility of the President under the Constitution is later found deficient. Finally, the Government argues that the motion to compel should be denied as the probative evidence of the President's birthplace is substantially outweighed by the danger of confusing the issues and misleading the members and will cause undue delay and waste of time under Military Rule of Evidence (MRE) 40'3.
4 For purposes of ruling on this motion, the Court takes judicial notice of the following adjudicative facts under MRE 201: President Barrack Obama is the 44th President of the United States. He was elected on November 4, 2008 and inaugurated on 20 January 20'09. He has served as President and Commander in Chief since 20 January 2009
and continues to serve in that capacity.
5. The elements of the offenses charged are as follows:
Charge 1 - Missing Mo_vementin violation of Article 87, UCMJ:
1. LTC Lakin was required in the course of duty to move with U.S. Airways Flight Number 1123, departing from Baltimore/Washinqton International Airport arriving in Charlotte, North Carolina, in order to deploy for a Temporary Change of Station in support of Operation Enduring Freedom with the 32nd Cavalry Regiment, 101st Airborne Division (Air Assault), Fort Campbell, KY;
2 . LTC Laki n knew of the prospective movement of the aircraft;
3. At or near Arlmgton, VA, on or about 12 April 201 0, LTC Lakin missed the movement of the aircraft; and
4 LTC Lakin missed movement through design.
Charge II, Specifications 1-3, Failure to Obey Lawful Order, in violation of Article 92, UCMJ:
1. That a member of the armed forces, namely, (Specification 1 ) LTC William Judd, issued a certain lawful order to report to the office of LTC Lakin's s brigade commander, COL Gordon R. Roberts at 1345 hours or words to that effect; (Specification 2) COL Gordon R. Roberts issued a certain lawful order to wit" a memorandum signed by COL Roberts dated 31 March 2010 requiring the accused to report to the office of the
Med leal Center Brigade Commander at 1700 hours on 31 March 2010; (Specification 3) COL Peter M. McHugh issued a certain lawful order to wit: Temporary Change of Station Orders 099-17, dated 9 April 2010, issued by COL McHugh, requiring the accused to report to Fort Campbell, KY, not later than 1500 hours on 12 April 2010;
2. (common to all 3 specifications) That L Te Lakin had knowledge of the order;
3. (common to all 3 specifications) That the LTC Lakin had a duty to obey the order;
4. (common to specifications 1 and 2) That at or near 31 March 2010, L Te Lakin failed to obey the order;
(specification 3) That at or near Washillgton, DC, on or about 12 April 201 0, LTC Lakin failed to obey the order.
ell, S4, Dereliction,of Duty in violation of Article 92 - elements:
1 L TC Lakin had a certain prescribed duty, that is: to report to Fort Campbell, Kentucky in accord ance with Temporary Change of Station Orders 099-17, dated 9 April 2010;
2. That LTC Lakin actually knew or should have known of the assigned duty.
6_ When a servicemember is charged with violating a lawful order, as is the case here with specifications 1-3 of Charge 11', the lega I ity of the order is an issue of law for the military judge to decide as an interlocutory question. The issue of lawfulness of an order is not an element to be decided by the court-martial members. U.S. v. Deicher, 61 M.J. 313 (C_AAF 2005) citing U.S. v New, 55 M.J. 95, 105 (C.A.A.F. 2001). An order is presumed to be lawful and the accused bears the burden of rebutting the presumption.
The essential attributes of a lawful order include:
(1) issuance by competent authority - a person authorized by applicable law to give such an order;
(2) communication of words that express a specific mandate to do or not do a specific act; and
(3) relationship of the mandate to a military duty.
The accused may also challenge an order on the grounds that it would require the recipient to perform an illegal act or that it conflicts with that person's statutory or constitutional rights. Deicher; at 317.
The officer issuing the order must have authority to give such an order. Authorization may be based on law, regulation, or custom of the service. MCM, pt. IV, paragraph 14.c.(2)(a)(iii).
The order must relate to military duty, which includes all activities reasonably necessary to accomplish a military mission, or safeguard or promote the morale, discipline, and usefulness of members of a command and directly connected with the maintenance of good order in the service. The order may not, without such valid military purpose, interfere with private rights or personal affairs. However, the dictates of a person's conscience, religion, or personal philosophy cannot justify or excuse the disobedience of an otherwise lawful order ... MCM, pt.IV, paragraph 14.c.(2)(a)(iv).
An order requiring the performance of a military duty or act may be inferred to be lawful and it is disobeyed at the peril of the subordinate. This inference does not apply to a patently .illegal order, such as one that directs the commission of a crime.
MeM, pt. .IV, paragraph 14.c.(2)(a)(i),(iv).
It is not a defense for a servicemember to claim that an order is illegal based on his interpretation of applicable law. A personal belief that an order is unlawful is not a defense to a disobedience charge. The defense has the burden to prove illegality unless the order is palpably illegal on its face. The duty to disobey an unlawful order applies only to a positive act that constitutes a crime that is so manifestly beyond the legal power or discretion of the commander as to admit of no rational doubt of the order's unlawfulness. United States v. New, 55 M.J. 95, 108 (C.AAF. 2001).
Conclusions of Law:
1. The Court finds that the provisions of ReM 703(c) requiring the defense to go through the trial counsel for production of witnesses and evidence the defense believes to be relevant and necessary does not violate Article 46. Under RCM 703(b)(1) and (f) both parties are entitled to production of witnesses and evidence that are relevant and necessary on an interlocutory question, on the merits, or on sentencing. The rules are grounded on fundamental concepts of relevance, U.S. v. Graner, 69 M.J. 104 (G.A.A.F. 2010). Article 46 provides that process issued by courts-martial will be similar to that of which district courts having criminal jurisdiction shall issue. Similar does not mean "identical". The procedures in ReM 703 are properly promulgated by the President to ensure that discovery under Article 46 is limited to production of witnesses and evidence that meet the relevance/necessity threshold.
2 The defense request for judicial notice of the statement "Soldiers have a duty to disobey illegal orders." is a legal conclusion that fails to distinguish between a personal belief that an order is unlawful - which is not a defense unless the order is pa;lpably
illegal on its face - and a palpably illegal order. The request for judicial notice for this broad statement is denied.
3. The defense asserts that the President, as Commander in Chief under Article II, Section 2, of the Constitution, is the source of all military authority. In fact, the President, as Commander in Chief, and Congress share authority over the military. Article 1, Section 8, of the Constitution empowers Congress to raise and support armies, to make rules for the government and regulation of the land and naval forces, to provide for calling forth the Militia to execute the Laws of the Union, suppress insurrections, and repel invasions, and to provide for organizing, arming, and disciplining, the Militia and for governing such part of them as may be employed in the service of the United States. Congress has exercised this authority by enacting Article 10 of the United States Code and by giving the Secretary of Defense and the Service Secretaries statutory authorities and responsibilities. See 10 U.S.C. 113, 3013, 5013, and 8013. In 10 U.S.C. 3013, Congress designated the Secretary of the Army as responsible for and with authority necessary to conduct all affairs of the Department of the Army, including (among others) the following relevant functions, recruiting, organizing, supplying, equipping, training, servicing, mobilizing, demobilizing, and administering (including the morale and welfare of personnel). The statute further empowers the Secretary of the Army to assign, detail, and prescribe the duties of members of the Army and to prescribe regulations to carry out his functions, powers, and duties, under this Title.
4. The Secretary of the Army has promulgated numerous Army Regulations pursuant to his authority under 10 U.S.C. 3013.1 These Army Regulations provide an independent authority for military officers to issue lawful orders. Authorization for officers to issue lawful mil itary orders may be based on law, reg u lation, or custom of the service. MCM, pi. IV, paragraph 14.c.(2)(a)(iii). The authority of military officers to issue lawful orders and the concomitant duty of military service members to obey such lawful orders does not depend on whether the President is qualified under the Constitution to hold office.
5. Any suggestion by the defense that the authority of military officers to issue any lawful orders ceases to exist jf a serving President is found to be unqualified by the Constitution to hold office is an erroneous view of the law, Similarly, any suggestion by the defense that if a President is found to be unqualified by the Constitution to hold office, service-members have no duty to follow any orders issued by their military superiors is equally erroneous.
6. The three orders at issue in specifications 1-3 of Charge II are alleged to be authorized by LTC William Judd, COL Gordon Roberts, and COL Peter M. McHugh, respectively. Whether President Obamais a natural born citizen or is qualified under the Constitution to hold office is not relevant to determine whether they are authorized to issue the orders charged
I See Army Publishing Directorate at http'//wwwapdarmy.mill
7, The three orders at issue in specifications 1-3 of Charge .11 order LTC Lakin to report to the office of his Brigade Commander, COL Gordon R. Roberts in specification 1, to report to the office of the Medical Center Brigade Commander at 1700 on 31 March 2010 in specification 2, and to report to Fort Campbell, Kentucky not later than 1500 hours on t2 April 2010. Whether President Obama is a natural born citizen or is qualified under the Constitution to hold office is not relevant to determine whether any of these three orders constitutes a palpably illegal act or whether LTC Lakin had a duty to obey these orders.
8. The more narrowly tailored basis for relevance and necessity posited by the defense is that if the President is found to be not qual ified by the Constitution to hold office, any order he issues as Commander in Chief is illegal and any order issued by a subordinate military officer in furtherance of that .illegal presidential order is itself illegal negating the duty of servicemembers to obey.
9. This .is not the first time a servicemember charged with missing movement, dereliction of duty, and failure to obey orders has challenged the legality of the order because it was issued in furtherance of a policy that was enacted by the President in violation of the Constitution Two recent examples of such cases are US. v. Huet Vaughn, 43 M.J. 105 (C.AA.F. 1995) and US. v. New, 55 M.J. 95 (C.A.A.F 2001). In Huet Vaughn, then CPT Huet Vaughn was charged with desertion with intent to avoid hazardous duty and shirk important service. CPT Huet Vaughn's defense was based in part that she disobeyed an order she believed to be unlawful. She wanted to present evidence to contest the legality of the decision to employ military forces in the Persian Gulf. The military judge held that the government's decision to wage war was a nonjusiticiable political question and refused to allow evidence to contest the political' decision to be presented during the trial. Similarly in New, then SPC New was charged with failure to obey an order to wear his U.S. Army uniform modified with United Nations (UN) accoutrements. SPC New argued that the order violated the Emoluments Clause of Article 1, Section 9,. of the Constitution and furthered an illegal deployment of United States forces because President Clinton misrepresented the nature of the deployment to Congress and that the Army's participation in the U.N. mission was unlawful, and that the deployment violated the Commander-in-Chief Clause, the Appointments Clause, and the Thirteenth Amendment of the Constitution. The military judge found the order to be lawful and declined to rule on the constitutionality of the President's decision to deploy the Armed Forces in the Former Yuqoslavian Republic of Massadonia (FYROM), findmg the Constitutional issues to be non-justiciable political questions. The decisions of the military judge in both Huet Vaugn and New to treat the Constitutional challenges to the underlying policies established by the political branches were upheld by the Court of Appeals for the Armed Forces, and in New, by the D.C Circuit considering a collateral challenge under the federal question doctrine, 28 U.S.C. 1331. U.S. ex reI. New v Rumsfeld, 448 F.3d 403 (~.C. Cir. 2006).
10 The political question doctrine is based on the separation of powers in the three branches of government The seminal case setting forth when courts should adopt the pohtical question doctrine and preclude judicial review is Baker v. Carr, 369 U.S. 186
(1962). Under Baker, the court should preclude judicial review of a political question upon a finding of one or more of the following factors:
(1). a textually demonstrable constitutional commitment of the issue to a coordinate political department;
(2). a lack of judicially discoverable and manageable standards for resolving it;
(3). the impossibility of deciding without an initial policy determination of a kind clearly for nonjudicial discretion;
(4). The impossibility of a court's undertaking independent resolution without expressing lack of respect due coordinate branches of government; or
(5) an unusual need for unquestioning adherence to a political decision already made or the embarrassment from multifarious pronouncements by various departments on one question.
11. The Court recognizes the distinction between this case and Huet Vaugh and New in that those cases did not challenge the authority of the President to hold office and make policy. These cases raised Constitutional challenges to the policies themselves rather than the authority of the President to hold office and to act as Commander in Chief.
12. Notwithstanding this distinction, the issues of whether President Obama is a natural born citizen and whether he is qualified under the Constitution to serve as President are textually demonstrable constitutional commitments of the issues to a coordinate political department. Article 1, Sections 1 and 3 of the Constitution ~ive Congress the sale power of impeachment and removal of a serving President. The Court further concludes that it is impossible for this Article 1 Court to undertake independent resolution of whether President Obama is a natural born citizen or is qualified under the Constitution to hold office without expressing lack of respect due coordinate branches of government.
13. In the context of this Article 1 court-martial for a servicemember accused of disobeying orders to challenge the constitutional qualifications of the President to hold office, there is also an unusual need for unquestioning adherence to a political policy decision already made. The potential for embarrassment from multifarious pronouncements by various departments on one question are uniquely powerful to ensure that courts-martial do not become the vehicle for adjudicating the legality of political decisions and to ensure the military's capacity to maintain good order and discipline in the armed forces.
14. The merits of whether President Obama is a natural born citizen and whether he is qualified under the Constitution to hold office are not logically relevant under MRE 401 for the interlocutory question, the merits portion of the trial, or the sentencing portion of
2 What jurisdiction Article III Courts have to entertain proceedings challenging the constitutional qualifications of serving President and whether such courts would invoke the political question doctrine in such proceedings is beyond the jurisdiction of this Court to opine. However, the Court notes that Article III courts have addressed Constitutional challenges to a President's decision to wage war, see Dellums v. Bush, 752 F. Supp. 1141 (D.DC. 1990).
the trial. Even if they were logically relevant] in light of the conclusion of the Court that the above Baker factors exist] judicial review of these issues by this court-martial is precluded by the political question doctrine. Thus, even if logically relevant under MRE 401, the issues are not legally relevant under MRE 402 and not admissible under MRE 403.3 This Court will not compel production of any witnesses or evidence requested by the defense that relates to the merits of whether President Obama is a natural born citizen or whether he is qualified under the Constitution to hold office.
RULING: The Defense Motion to Compel or Other Appropriate Relief] Motion for Judicial Notice, and Request for Deposition are Denied.
SO ORDERED: 2 September 2010.
DENISE R. LIND COL, JA
Chief Judge, 1st Judicial Circuit
3 The Court recognizes the existence of the de facto officer doctrine, recognized and described by the Supreme Court 111 Ryder v. U.S, 515 U.S 177 (1995). In light of the Court's ruling that judicial review of the issues of whether President Obama is a natural born citizen or is otherwise qualified under the Constitution to hold office is precluded by the political question doctrine, the Court declines to address the applicability of the de facto officer doctrine in this case.