The U.S. Army has begun the formal process of court-martialing a birther.
Army Lieutenant Colonel Terry Lakin, a doctor assigned to Walter Reed Army Medical Center in Washington DC, has been charged with violating the Uniform Code of Military Justice (UCMJ) for his refusal to deploy to Afghanistan and for refusing to obey various other military orders.
Lakin, who has served for close to eighteen years on active duty, announced via YouTube that he would not go to Afghanistan because he is not convinced the President lawfully holds his office. Lakin acknoweldged that in so doing, he was inviting his own court-martial; and today, the Army accepted his invitation.
The charges against Lakin include one specification (a "specification" is essentially the same as a count in a civilian indictment) of missing movement, in violation of Article 87, UCMJ; three specifications of failing to obey lawful orders, in violation of Article 92, UCMJ; and one specification of dereliction of duty, also in violation of Article 92. (A PDF copy of the charge sheet has been placed on line by his supporters here). The charges were preferred by Lakin's headquarters company commander, and served on him today.
The preferral of charges is the first formal step down the road to a court-martial. The next likely step will be an inquiry conducted under Article 32, UCMJ. An Article 32 hearing is often compared to a civilian grand jury inquiry, but there are several important differences: Lakin will have the right to attend the hearing in person with his counsel and can cross-examine witnesses and present evidence in his own behalf. The Article 32 hearing will be presided over by a single officer, who in this case is likely to be a senior military attorney. That officer (called the Investigating Officer or I.O.) can recommend that any specification be modified or disposed of by means other than court-martial. The I.O. can also recommend preferral of additional charges.
The I.O.'s recommendations will be reviewed by a convening authority, a senior officer in a command position, who will decide whether to accept them. The convening authority, as the name suggests, is the officer who decides whether to convene a court-martial. If Lakin's case goes forward to trial, it will be referred to a court-martial; because Lakin is an officer, he will be tried by a general court-martial (GCM). If Lakin is convicted, a GCM can award any sentence authorized by the UCMJ for his offenses. The maximum sentence for the specifications as preferred include dismissal (the officers' equivalent of a dishonorable discharge) and confinement for up to four years. There is no minimum sentence. Officer convicts are confined at the United States Disciplinary Barracks at Fort Leavenworth, Kansas.
Lakin will have the opportunity to elect to be tried by a military judge or by a panel of officers. If he chooses the latter, those officers (called members) will all be senior to Lakin. The convening authority appoints the members, and at least five will be seated for Lakin's trial. Lakin's guilt will have to be proven beyond a reasonable doubt, with at least two-thirds of the members concurring on any finding of guilt, and, if necessary, on Lakin's sentence.
To the extent Lakin seeks to use the court-martial process to further a political agenda, he is likely to be disappointed. As explained in this article, Thinking about the Lakin case by Marine Corps Reserve Colonel Dwight Sullivan, Lakin's options are rather limited.
What will be especially difficult for Lakin are the specifications alleging that he failed to obey the orders of his brigade commander, who happens to be Colonel Gordon R. Roberts. Colonel Roberts is the sole Medal of Honor recipient currently on active duty in the U.S. armed forces, and the contrast between his dedication to duty and the antics of Lieutenant Colonel Lakin will probably not sit well with the members. Lakin refused to accompany the 101st Airborne Division to Afghanistan; while Roberts, who was then a young enlisted man, won the Medal of Honor while assigned to the 101st in Vietnam.
Lakin, will, of course, become a celebrity with the far right and will be portrayed as a martyr for their cause. He would be wise to recall the eventual fate of the last such tool employed by the right against a sitting President: Paula Jones, who wound up filling in for Amy Fisher in a celebrity boxing match with Tonya Harding ... broadcast on FOX.