The Birther Court Martial: A Primer

The most dramatic Birther stand of the Obama era is set to begin in earnest Friday when the military kicks off a preliminary hearing in the court martial of Birther Army Doctor Terrence Lakin. The process is likely to last several months and may well end with Lt. Col Lakin dismissed from the Army or even in jail, two military lawyers tell TPMmuckraker,

Lakin refused orders to deploy to Afghanistan earlier this year. He believes — and said as much in a widely viewed YouTube video in March — that Obama is not legitimately president, and that therefore all military orders are invalid. He faces charges of missing movement and not obeying orders.In advance of Friday’s preliminary hearing at Walter Reed Medical Center, where Lakin is based, here’s a look at how the process will unfold, and how it differs from the civilian system.

At Friday’s Article 32 hearing, Lakin and his attorneys will be present as will an attorney for the government and an official known as the investigating officer. Evidence will be laid out and witnesses examined and cross-examined.

The government does not have to prove guilt beyond a reasonable doubt, but merely show that “reasonable grounds” exist to believe a crime has been committed and that the accused is the person who committed it, Michelle Lindo McCluer, executive director of the National Institute of Military Justice at the American University Washington College of Law, tells TPMmuckraker.

There is no judge present at an Article 32 hearing. Rather, the investigating officer gets a look at the evidence in the case in order to prepare a report with recommendations on how to proceed for a commander of Lakin’s known as the “convening authority.” The commander has the power to convene a court martial.

The investigating officer in Lakin’s case is Lt. Col. Daniel Driscoll, who recently shot down the defense’s plans to adjudicate the question of President Obama’s eligibility to be president at the hearing Friday.

Driscoll will make a recommendation to the convening authority in a report that includes summaries of the evidence and testimony at the hearing. The convening authority — it’s not clear who it is at this point — gets the report and then has sole discretion to decide how to proceed, according to Lindo McCluer.

“Based on what I’ve seen so far, it is almost certain that the convening authority will find there is probable cause to go forward on the charges,” says Phil Cave, a retired Navy JAG now in private practice in Alexandria, VA. Cave says that because Lakin is an officer, the case will likely go to a general court martial — the most serious type of court martial.

If Lakin’s case goes to a general court martial, the proceedings will look a lot like a trial in federal district court; the rules of practice, procedure, and evidence are largely the same, says Cave. One key difference is that the jury is known as a panel, and is made up of at least 5 officers who outrank Lakin. A verdict is established by a two-thirds vote. The panel also decides on sentencing, and there are no guidelines as there are in the civilian system.

Lakin will have at least two attorneys at the hearing on Friday: one is Paul Rolf Jensen, a civilian lawyer who has been involved in myriad right-wing causes; the other, who was appointed by the military, is Maj. Matthew Kemkes.

How long will all this take? According to Cave and Lindo McCluer, the investigating officer typically has about a week to prepare his report for the convening authority. The convening authority could then take two to four weeks to decide on whether the case will go to a court martial. Because of other cases in front of the line, it could then be a few months before the court martial itself gets underway.

“No way this will go beyond Christmas,” says Cave.