JAG HUNTER here with Sergeant of Marines Timothy Joseph Harrington:

“Constitutional jurisprudence” as compared to “military jurisprudence”

Daniel J. Driscoll opines regarding the question on lawful orders: “In my view our constitutional jurisprudence allows Congress alone, and not a military judicial body, to put the president’s credentials on trial.”

Next Friday (11 June), Driscoll sits as the probable cause hearing officer in the process leading to Terrence Lakin’s general court-martial.

(J.B. Williams “A Right to Lawful Command” here)

Driscoll is wrong. Let’s examine why.

Lakin is subject to U.S military jurisdiction as he faces possible punishment under America’s military discipline system.  Nothing about the military’s discipline system is “constitutional.”

Lakin is being held to account under a “military code of greater age and dignity and of a more elevated tone than any existing American civil code, as also a military procedure, which, by its freedom from the technical forms and obstructive habits that embarrass and delay the operations of the civil courts, is enabled to result in a summary and efficient administration of justice well worthy of respect and imitation.” (Winthrop’s preface)

“Congress did not originally create the court-martial…but continued it in existence as previously established [during the Revolutionary War].  [The court-martial] is perceived to be in fact older than the Constitution, and therefore older than any court of the United States instituted or authorized by [the United States Constitution]. (Winthrop, p. 48)

Military disciplinarians have embraced this martial law ever since as a supreme form of government transcending even the Constitution (the existing American civil code Winthrop obliquely describes as an embarrassing cause for delay in civilian criminal trials).

Service under this “dignified and elevated code of military jurisprudence” (as opposed to that pesky and newer constitutional jurisprudence),  burdens every officer with duties to:

  1. Know with certainty that their superior authorities lawfully hold office, and

  2. Disobey orders known to be unlawful.

An “order” is an Executive mandate. (Winthrop, p. 576)

“…All military authority and discipline are derived from one source—the Sovereign, so in our army every superior, in giving a lawful command, acts for and represents the President as the Commander-in-chief and Executive power of the Nation, and the source from which [the senior officers’] appointment and authority proceed. Hence the dignity and significance of a formal military order and hence the gravity of the obligation which it imposes upon the inferior to whom it is addressed.” (Winthrop on page 572)

“Military officers are bound to obey all legal orders of their commander but not his illegal orders.” (Winthrop, p. 571)

“Obedience to orders is the vital principle to the military life—the fundamental rule, in peace and war, for all inferiors…

Obedience to command is the chief military virtue, in relation to which all others are secondary and subordinate…

Obedience is for the soldier the first great bond or charter of his service…

The first and last virtue of a soldier…

The first, second, and third part of a soldier is obedience…

The first duty of a soldier is obedience, and without this there can be neither discipline nor efficiency in the army…

To ensure efficiency an army must be, to a certain extent, a despotism. Each officer is invested with an arbitrary power over those beneath him, and the soldier who enlists in the army waives, in some particulars, his rights as a civilian, surrendering his personal liberty during the term of his enlistment, and consents to come and go at the will of his superior officers. The soldier agrees to become amenable to the military courts, to be disciplined for offences unknown to the civil law, to relinquish his right of trial by jury, and to receive punishment which, to the civilians, seem out of all proportion to the magnitude of the offense…

No other obligation must be put in competition with obedience to orders; neither parental authority, nor religious scruples, nor personal safety, nor pecuniary advantages from other services. All the duties of his life (the soldier’s) are according to the theory of military obedience, absorbed in that one duty of obeying the command of the officer set over him…” (Winthrop and others p. 571).

The “superior officer” must be one authorized to give the order; else indeed his command would not be a lawful one. (Winthrop, p. 577)

An illegal order emanating from the president can confer no authority. A command not lawful may be disobeyed, no matter from what source it proceeds. (Winthrop, p.  575)

And with that “there is nothing better settled, as well by the civil and military laws, that neither officers nor soldiers are bound to obey any illegal order of their superior officers, but on the contrary it is their bounden duty to disobey them”…no illegal act can be justified, no matter how high the source from which it emanates, by an order from a superior authority. The soldier is still a citizen, and as such is always amenable to the civil authority. (Winthrop with others, p. 575)

No person in Congress relieves an officer of the duty under the American War Articles (or the Uniform Code of Military Justice) to disobey an unlawful order.

The Courts-martial is indeed a creature of orders! (Winthrop, p. 49)

“Not belonging to the judicial branch of the Government, it follows that courts-martial must pertain to the executive department; and they are in fact simply instrumentalities of the executive power, provided by Congress for the President as Commander-in-chief, to aid him in properly commanding the army and navy and enforcing discipline therein, and utilized under his orders or those of his authorized military representatives.

“Thus indeed, strictly, a court-martial is not a court in the full sense of the term, or as the same is understood in the civil phraseology.

“The court-martial is indeed a creature of orders…” (Winthrop, p. 49)

The First Duty: Reconcile the Treason!

Lakin’s convening authority with Driscoll (Lakin’s disciplinary hearing officer)—as their First Duty—must confirm Obama’s legitimacy to hold office and issue orders.  They must confirm Obama’s legitimacy/eligibility before Terry Lakin ever walks into the hearing room.

Normally the general presumption of law is in favor of the Executive authority of military orders (Executive mandates) emanating from official superiors. (Winthrop, p. 575)

That presumption is shattered by Obama’s public confession in commission of Treason, an act risen up in criminal accusation from the U.S. military ranks in March 2009.

Lakin’s Defense.

The unlawfulness of Obama’s command must be a fact!

The onus of establishing this fact—except where the order is palpably illegal upon its face—devolves upon the defense, and clear and convincing evidence will be required to rebut the presumption that Obama is legit! (Winthrop, pgs. 575-576).

No one in Congress is responsible or accountable to defend Colonel Lakin.

To constitute the specific offense of disobedience of orders the “superior officer” must of course be known to be such by the accused, at the time of his giving the order which is not obeyed.

Obama’s background is an open secret.  Not a single person wearing the uniform of the U.S. military possesses specific knowledge that Obama lawfully holds office of President as Commander-in-Chief.

At the same time, every U.S. officer is required to know as a matter of duty whether the Commander-in-chief legitimately holds office. This to include Army Lieutenant Colonel Daniel J. Driscoll (Lt.Col. Lakin’s Article 32 hearing officer).

Simply said, no order issued by any officer in the American military establishment is a lawful order since 20 January 2009.

Source note: Military Law and Precedents: A Martial Law Classic

“Written by William Winthrop (1831 – 1899), Colonel, United States Army, this second edition (1895) is the revision and enlargement of the work. This comprehensive treatise details early military law [and martial law], written and unwritten, and explains the intricacies of the courts martial process. It remains the most important historical reference source for military justice practitioners. It is still frequently cited by military appellate courts. It has been called ‘a masterpiece of painstaking scholarship, brilliant erudition, and lucid prose.”

Colonel Winthrop formally held the position of Judge Advocate General, U.S. Army