The Military Cannot “Presume” Obama is Qualified

THE UCMJ DOES NOT GIVE THE MILITARY THE ABILITY TO DEFINE “NATURAL BORN CITIZEN”

by jtx

December 22, 2010

matthew.kemkes@us.army.mil
Robert.manning1@us.army.mil
carla.hawleybowland@us.army.mil
karl.horst@us.army.mil

Officers:

It is my hope that this message will proceed chain-of-command style from Matthew, through Robert, and eventually to Carla and Karl. I purposely do not use the honorary military titles since in this instance they are not meaningful.

The recent military trial and conviction of Terry Lakin causes a considerable rumbling among the body politic. You may not be aware of the amplitude of this reaction due to the fact that you are all apparently comfortably ensconced in what may be thought of as the career “military cocoon” and surrounded by those who also are shielded from the opinions of the general public. Please do not take that in any pejorative sense, as that’s not how it is meant. I’m merely trying to make you aware of the millions of “ordinary” Americans and how your military court system is now viewed by them.

True, you may not give a fig – but keep in mind that you may at some time in your life go back into that “ordinary” stream of populace, so do not be surprised by the heat you find directed toward you on this matter. Please also think of the effect on future recruiting. And certainly, yes, I understand that the military views the “Lakin Affair” as a military matter and none of the public’s damned business – to be handled solely and exclusively by the military. But let me share with you a somewhat different perspective that you may not have considered, but should have.

The number of Americans who believe that Terry was abominably treated and unfairly sentenced and is now serving a grossly-overblown punishment is, you may be surprised to learn, numbered in the millions and not merely a handful of over-wrought kooks as the print and TV media likes to continually wrongfully promote. Ironically enough, many of these millions themselves are veterans of US military service and see the matter as the huge blot that it really is upon not only the military itself but upon our country as a whole. Please bear with me.

I am old enough to have followed the military court trials at Nuremberg after WWII and, in fact, had a relative who was US military-provided chaplain to Hermann Goering. You perhaps remember in those trials that Admiral Jodl was condemned to death and hanged (Goering poisoned himself before being hanged). Jodl had used the defense, basically, that the recent military court (I’ll usually use the term UCMJ to represent this court even if that may not be the correct term … it’s the idea that counts) EXCEPT that the UCMJ used it exactly in reverse.

The Nazi Admiral claimed it was not the duty of the officer to judge his superior officer(s) or question the legality or legitimacy of his orders but to blindly and unthinkingly follow those orders. Jodl was convicted on the several counts involved and paid with his life. While it is true that the UCMJ has not pronounced a death sentence for Terry, it is also true that the man was not questioning his orders per se but merely the eligibility of the highest issuer of the orders – to find out if these were lawful orders. The UCMJ was also not asked to rule on the eligibility of the man holding the office who has never shown himself to be eligible to do so. We’ll get to that later.

Jodl was convicted despite his defense that he was – like a good military man – carrying out orders from his superiors in the chain of command (which you may remember included one A. Hitler), and he assumed them to be lawful. In the Lakin Affair you have convicted a man for just the flip side of what Jodl did; your decision is in exact opposition to that of the Nuremberg court when they ruled Jodl (and others) SHOULD have contested the authority rather than blindly submitting.

The UCMJ was saying to Terry that, Jodl-like, he should have blindly followed his orders. The jurists at Nuremberg had a quite different view and if those empaneled on the UCMJ trial had been instead empaneled at the Nuremberg trial, it is conceivable that most or all of the Nazi officers would have been spared the death penalty. One end or other of military justice is haywire, but I believe that most thinking people would believe that Nuremberg ruled correctly.

The two court decisions clearly point in opposite directions – and millions of Americans realize that … which is why there is so much anger!!

The UCMJ could have prevented this entire fiasco and (for them) very ugly black eye had it taken the steps of saying … “Whoa; we hereby ask the United States Supreme Court to take jurisdiction of the Presidential eligibility matter as a matter of first instance and hand down its ruling for us to use.” Any UCMJ proceeding if there were one could then have proceeded on solid legal, Constitutional grounds.

Most Americans know (though some quite dimly perhaps) that the military court system was created by Congress under the authority of the United States Constitution. Roughly that same number realize that Presidential eligibility is called out in the language of the Constitution (setting aside any pro or con arguments thereto) and that, so defined, it is in fact a matter of Constitutional law and not military law. Even if the UCMJ wished to make a statement or lack thereof of the CIC eligibility, it is not legally empowered to do so. Only the Supreme Court may do that and in the recent Kerchner et al case before them declined to do so by using the judicial fictions of “standing” and “political question” – neither of which really were applicable in that case.  In any event, the UCMJ on a case such as the Lakin case certainly WOULD have standing on the matter and it was surely not a political question.

I find it odd in the extreme that the UCMJ did not take such an eminently legal and rational method of pursuing the Lakin Affair which would have shielded them from what will now for all time be a ghastly mark on the military as the bell cannot now be unrung – or, perhaps, can it by the intervention of those this is addressed to?? It is surely not too late to hold things in abeyance pending a SCOTUS decision on what is rightfully theirs to hear and rule on.

As it is, the UCMJ has made the implicit ruling by its actions that Obama IS eligible for the office and his orders are lawful when the UCMJ has no (and should not have) such jurisdiction over controverting and/or defining the words of the Constitution – yet the UCMJ has incorrectly done this. Chief Justice John Marshall in Cohens v. Virginia in 1821 in his famous opinion said that not only must the Supreme Court take up Constitutional matters but that (speaking of the Supreme Court):

The judiciary cannot, as the legislature may, avoid a measure because it approaches the confines of the Constitution. We cannot pass it by because it is doubtful. With whatever doubts, with whatever difficulties, a case may be attended, we must decide it if it be brought before us. We have no more right to decline the exercise of jurisdiction which is given than to usurp that which is not given. The one or the other would be treason to the Constitution. Questions may occur which we would gladly avoid, but we cannot avoid them. All we can do is to exercise our best judgment and conscientiously to perform our duty. In doing this on the present occasion, we find this tribunal invested with appellate jurisdiction in all cases arising under the Constitution and laws of the United States. We find no exception to this grant, and we cannot insert one.

Ironically, note in this statement by Marshall that the current SCOTUS had done one of the things he mentioned (failed to take jurisdiction in the Kerchner et al case) while the other thing mentioned (usurping jurisdiction which was not given in the Lakin case by the implicit declaration of eligibility) was done by the UCMJ – a sort of double whammy or perhaps a question of “do two wrongs make a right?” In Marshall’s words (and, no doubt, in fact), both are “Treason to the Constitution.”

I hope that the officers this is directed to will thoughtfully consider the points mentioned NOT as military savants but instead as citizens of America and help us ALL reach a just, legal, Constitutional conclusion by asking for the United States Supreme Court intervention mentioned earlier.

It is not yet too late!!