September 2, 2010: Army Judge Refuses to Allow Evidence, Testimony Regarding Obama’s Citizenship in ‘Birther’ Court-Martial

An Army judge denies a request by defense lawyers to compel President Obama’s testimony in a court-martial against a US Army flight surgeon who refused to deploy to Afghanistan until he saw proof that Obama was born in the United States (see Before April 13, 2010 and April 22-23, 2010). Colonel Denise Lind, the judge presiding over the upcoming court-martial, says evidence or witnesses related to Obama’s citizenship are irrelevant to the case against Lieutenant Colonel Terry Lakin. Lakin is charged with missing a movement, disobeying a lawful order, and dereliction of duty. He faces a dishonorable discharge, two years’ imprisonment in a military prison, and a forfeiture of his pay if convicted. Lakin’s lawyers are contending that all military orders stem from the commander in chief. Without evidence that Obama is eligible to be president, they say, the doctor’s deployment order was illegal. Lakin’s civilian attorney, Paul Jensen, has asked Lind to order Obama’s official birth records from Hawaii be brought to court for trial (see June 13, 2008 and July 1, 2009). “If the president is ineligible, you need to know that,” Jensen tells Lind. “Colonel Lakin needs to know that, the government needs to know that, America needs to know that.” The prosecution contends that Obama’s eligibility is irrelevant because Lakin defied orders from his superior officers in the military chain of command, a point Jensen concedes. Lind rules that the matter of Obama’s eligibility is not relevant because he did not give any orders in the case, and notes that while the president is commander in chief of the military, it is Congress that is constitutionally empowered to raise armies, pay them, and equip them. Any contention that any orders are invalid if the president is ineligible “is erroneous,” she says. She also notes that military law says that a soldier’s personal beliefs or convictions are not sufficient to allow that soldier to determine that an order is illegal. The soldier has to have “no rational doubt” that the order is illegal before he or she can ignore it. Finally, she rules that a military court-martial is not the forum in which to determine a president’s eligibility, because the Constitution says only Congress has the power to impeach and remove the president. Jensen says the ruling “completely deprives us of any opportunity to present a defense in this case,” and says he intends to file a motion with the Army Court of Criminal Appeals to have Lind’s ruling overturned. [CNN, 9/2/2010]