Why Lt. Col. Lakin is not mistaken
by Alan Keyes
April 26, 2010
Socrates famously said that an unexamined life is not worth living. However that may be, there's new proof everyday that a critically unexamined so-called news report is not worth reading.
A case in point: A slyly derogatory article at foxnews.com purporting to discuss the prospects of Lt. Col. Terry Lakin's effort to obtain, by means of a military trial, evidence that bears on the question of Barack Obama's eligibility for the office of President of the United States.
The article sports a headline that applies to Lt. Col Lakin the inaccurate epithet "birther" invented by Obama faction propagandists to distract from the profound question of Constitutional authority that is really at stake. It goes on to suggest that Lt. Col. Lakin made some kind of legal procedural error ("has chosen the wrong venue") by declining to obey doubtfully lawful orders issued in the name of the President of the United States. To substantiate this assertion the story quotes from "Phillip D. Cave, a Washington attorney and director of the National Institute of Military justice." "Cave said the validity of Lakin's orders, under military law, does not depend on the president but on the chain of command. He will be convicted and is in jeopardy of dismissal."
Cave speaks as if it is acceptable, under the Constitution of the United States, to distinguish the authority of the "chain of command" from that of the President of the United States. If this distinction is accurate, then there must be a Constitutional source other than the President for the authority flowing through the alternative military chain of command. But the U.S. military is an instrument of the U.S. government's executive power. The Constitution vests the whole of that power in the President of the United States. To avoid all possibility of misunderstanding, it explicitly states that the President is the Commander in Chief of the all the Armed Forces of the United States. To be Constitutional, therefore, any and all authority flowing through the chain of command must originate in the President, and any and all orders issued to officers in that chain of Command must ultimately depend upon and exercise the President's Constitutional power.
The words which commission all U.S. military officers reflect this fact.
The President of the United States of America
To all who shall see these presents, greeting:
Know Ye, that reposing special trust and confidence in the patriotism, valor, fidelity and abilities of .................., I do appoint ["him" or "her"] a ["Second Lieutenant" or "Ensign'] in the [name of service] to rank as such from the .... day of ........ ...... This Officer will therefore carefully and diligently discharge the duties of the office to which appointed by doing and performing all manner of things thereunto belonging.
And I do strictly charge and require those Officers and other personnel of lesser rank to render such obedience as is due an officer of this grade and position. And this Officer is to observe and follow such orders and directives, from time to time, as may be given by me, or the future President of the United States of America, or other Superior Officers acting in accordance with the laws of the United States of America.
This commission is to continue in force during the pleasure of the President of the United States of America for the time being, under the provisions of those Public Laws relating to Officers of the Armed Forces of the United States of America and the component thereof in which this appointment is made.
Done at the City of Washington, this .... day of ........ in the year of our Lord ................ and of the Independence of the United States of America the ..........
By the President
Whatever his claims to expertise in military law, when Mr. Cave relies on the concept of a military chain of command independent of the President he is entirely at odds with the provisions of the Constitution. In particular, he contradicts the Constitution's subordination of all military authority to civilian control, embodied in and exercised through the President. Any military tribunal that adopted Mr. Cave's view of the chain of command would assert the existence within the military of a source of authority not subordinate to the President, and not part of the executive power of the U.S. government, which the Constitution vests exclusively in the person of the President. Such an assertion would be, on its face, unlawful, unconstitutional and extremely dangerous to the stability of the United States government.
Unlike the military in most other parts of the world, the U.S. military has a uniform and honorable tradition of unquestionable submission to the authority of the U.S. Constitution and its provision for the civilian control of the military. Military officers swear an oath to uphold the Constitution, and pursuant to that oath they "observe and follow such orders and directives, from time to time, as may be given by me, or the future President of the United States of America, or other Superior Officers acting in accordance with the laws of the United States of America."
Herein lies the nub of Lt. Col Lakin's dilemma, and that of every other commissioned officer now serving in the U.S. military. If a Superior Officer issues a command relying on the authority of an individual claiming to be President of the United States, but not in fact Constitutionally eligible for the office, is obedience to that questionably lawful order consistent with the sworn duty to uphold the Constitution, and the laws of the United States made pursuant thereto?
There is no question that doubt exists as to the Constitutional eligibility of Barack Obama for the Office of President. Had there been any authoritative pronouncement on the subject from an impartial and constitutionally empowered element of the U.S. government (the Supreme Court or the Congress) the officers of the military would be obliged to defer to that authoritative and constitutionally authorized judgment. But the Congress has refused to address the subject, and the Supreme Court of the United States has evaded the issue. Their dereliction leaves the doubt constitutionally unresolved, so that every military officer, and indeed every citizen of the United States, can have no certainty as to the Constitutionality of any action performed by Barack Obama when he claims to wield the executive power of the U.S. government. Indeed, if Obama is not constitutionally qualified to be President, the Constitution plainly states that the executive power passes to the Vice-President.
The framers of the U.S. Constitution established a unitary executive precisely in order to avoid the potentially self-destructive spectacle of the U.S. government as a double-headed monstrosity whose doubtful assertions of authority on one side or the other could force elements of the Armed Forces of the United States to base their discipline and obedience on personal loyalties and dependencies, rather than on their duty to the people of the United States, whose more permanent will the U.S. Constitution embodies.
Unless the people of the United States are willing to allow their self-government to be usurped by a regime dependent on the choice of military Praetorian guards (like that of the ancient Roman Empire), the present situation is intolerable. The Fox online news article leaves hanging the defamatory suggestion that Lt. Col. Lakin's action is personal "grandstanding." This is a callous and deeply disrespectful lie. With the frank and single minded integrity a free people should expect from its military officers he simply seeks a constitutionally authoritative resolution of an issue that leaves doubt where doubt may be fatal to the integrity of his oath bound conscience, as well as the democratic, civilian form of republican government established by the U.S. Constitution.
Lt. Col. Lakin is not the one who has mistaken his actions. Indeed, he shows the intelligence, courage and common sense thus far sorely lacking among the civilian authorities for whose Constitutional position he shows great respect that they themselves have so far demonstrated. I have no doubt that he hopes, as we should all pray, that his case will advance until it puts before these so far shamefully derelict authorities a conscientiously inescapable opportunity to stop evading their duty, and to heed, as Lt. Col. Lakin has, the clearly stated requirements of the Constitution they are sworn to uphold.