Has the Military Usurped Power as well as Obama?


January 20, 2011

Rep. Allen West was threatened with a court-martial in 2003 as a result of his interrogation of an Iraqi police officer who had information about an impending attack on U.S. soldiers under West's command

Dear Editor:

The following letter was sent to Mr. Jonathan Blythe, Chief of Staff for newly-elected Congressman Allen West representing Florida’s 22nd District.

As Chief of Staff for LTC West, I felt that there might be some interest/concern from the Congressman about the “court martial” of Terry Lakin.  I realize that Congressman West at one time faced the possibility of court martial himself, though on a vastly different matter.  It seemed to me, then, he might be in a position to judge whether the Army denied due process (by allowing the defense neither evidence nor witnesses) to then-LTC Lakin for attempting to find out if Obama was Constitutionally qualified to hold the office he now occupies.

Perhaps I’m misinformed, but  I believe that’s not how our justice system is supposed to work – not even the UCMJ which, after all, was created by Congress under the auspices of the Constitution.  It is true that no military court may determine the eligibility of the President, (the U.S. Supreme Court is charged with Constitutional interpretations).  Since Obama has told us in his own words that he does NOT pass the constitutional requirement for eligibility as a “natural born Citizen” (a term of art in the Constitution) because his father was governed by the British Nationality Act of 1948 and he as his son was governed by that same law at birth, there is clearly a question of Presidential eligibility to hold office – the very thing for which Terry Lakin is now sitting in Leavenworth for attempting to determine.

If you recall the World War II Nuremberg Trials, a number of the defendants received death sentences (which were carried out) with one I recall being Admiral Jodl, who offered the defense of “following orders” from his superiors.  Despite this, the court found  that such was not a defense since an officer has the obligation to question illegal orders rather than blindly accepting/following them.  Jodl paid the “full measure” for blindly following illegal orders as did others at the trial.  In the instance at hand, LTC Lakin tried assiduously to determine if his orders to deploy to Afghanistan were issued by a legally eligible President.  All in his trial stems from that – asking a simple (and valid) question which no one deigned to answer – and for which the military court disallowed any real measure of justice  by not allowing presentation of evidence or testimony on the matter.

I have written his reviewing conference officers suggesting that the correct way to proceed might still be to hold the trial in abeyance, passing the eligibility question to the the Supreme Court for resolution by them as a matter for their jurisdiction since it is an issue of first impression and Constitutional question requiring their interpretation of that document.  After that, the military court could validly proceed with no Constitutional qualms and resolve the “Lakin issue” with a valid legal and Constitutional response rather than the response of a kangaroo court.  After all, the military court certainly would have “standing” to raise the issue and it is clearly not a political issue but one of Constitutional impact, politicians be damned!

With the Lakin matter as it now stands, the military court has, by its decision to imprison Lakin and strip him of all pay, benefits, and retirement funds, in effect, ruled that Obama is eligible to hold the office – an implicit ruling overstepping both its bounds as a military court AND a usurping of the Constitutional duty of SCOTUS.  This is far beyond what the military court may lawfully do and sets the Nuremberg Trials results completely on end – perhaps Admiral Jodl should be granted a reprieve?

The Supreme Court is obligated to hear the Constitutional matter as pointed out by Chief Justice John Marshall in his 1821 opinion in Cohens v. Virginia which said:

It is most true that this Court will not take jurisdiction if it should not: but it is equally true, that it must take jurisdiction if it should. 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.

Note that this decision really says that a court (the military court in this instance) may not assume jurisdiction as it did but that the Supreme Court must assume appellate jurisdiction.  I would hope that Congressman West might reflect upon the matter from his current perspective.

2 Responses to "Has the Military Usurped Power as well as Obama?"

  1. Chester   Thursday, January 20, 2011 at 11:22 PM

    The tone and the clear logic of your letter are outstanding. Especially, the suggestion that the military court should have referred the eligibility question to SCOTUS. I am not sure if SCOTUS would have ruled on merit or do what Alen Keyes calls “dereliction of duty”.

    If Congressman West alone files a request to a federal court ending at SCOTUS on appeal, SCOTUS will almost certainly side with the lower court that West has no Standing. A very similar thing happened to Ron Paul, years before 2008-election. SCOTUS said that Ron, even as a congressman, has no Standing to clarify a constitutional question.

    Using the excuse of the very flexible Standing Doctrine or the equally elastic Political Question, SCOTUS can arbitrarily act as royalty, choosing to rule or not to rule on merit, regardless the constitutional significance of the case, in direct conflict of their oath to protect and uphold the constitution. The result is that the constitution is unenforceable.

    This is not new. This, in my opinion, is a loophole in the checks-and-balances principle. It would be interesting to hear an expert’s opinion on this important but almost never discussed issue.

    However, if Congressman West can interest several members of Congress and they file the request together, SCOTUS may take it more seriously. Of course, if Congress as body asks SCOTUS such question, SCOTUS has to reply. Nevertheless, there is zero chance of that happening.

  2. ebysan   Thursday, January 20, 2011 at 8:01 PM

    Very good Letter!!

    I hope Congressman Allen West will bring this to the Supreme Court…… Lt Col. Terry Lakin a decorated honorable officer is in prison & stripped of his rank & his pay to save Obama’s embarrassment if the truth were to become public…….OUTRAGEOUS!!!

    Obama did nothing to Maj Nadal Hissan (The Muslim Officer) when he “murdered” so many military members at Ft. Hood in Nov of 2009….. He may be in prison but; he still has his “rank & his pay”…….. This is DISGUSTING!!!

    I pray that Congressman West has the Guts to persue getting Lt. Col. Terry Lakin released from jail ,have his “Officer status in the military restored” & His back pay restored to him.

    Mr Obama is “NOT” eligible to be POTUS because his “Legal” father at time of his birth was a Kenyan with British Citizenship… Mr Obama has stated this several times: That he is the son of a Kenyan with British Citizenship!!!

    This fact makes Mr Obama “un-Constitutional” He knows this & many members in Congress know this including Nancy Pelosi who signed 2 different affidavids stating that Mr Obama met the requirements of the Constitution…. This is a LIE!!

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