Birther Army Doctor Court Martial May Yield No New Document

A decorated Army doctor who defied orders that he deploy to Afghanistan in order to use his court-martial to determine whether President Obama was born in the United States has chosen the wrong venue to make his case, military lawyers told

Military authorities announced on Thursday that they would press charges against Lt. Col Terrence Lakin, who announced in a You Tube video that he would refuse to be deployed until Obama produces his birth certificate and verifies that he is a natural-born citizen of the U.S. -- and thus eligible to be president.

“I am compelled to make this distasteful choice to invite my own court-martial in pursuit of the truth,” the 18-year veteran, a Bronze Star recipient, said in the video filmed in Washington’s Army Navy Club library.

“I believe all servicemen and women, and the American people, deserve the truth about President Obama’s constitutional eligibility to the office of the presidency and the commander in chief.”

Since his election in November 2008, the circumstances of Obama’s birth have been a matter of bitter contention. At least nine other legal actions have been undertaken -- all unsuccessfully -- by so-called "Birthers" who believe the president is not a natural-born citizen, as mandated by Article 2, Section 1 of the U.S. Constitution, which reads: "No person except a natural born Citizen, or a Citizen of the United States … shall be eligible to the Office of President…"

In 2008 the White House posted a copy of Obama's Hawaiian birth certificate online, and announcements of his birth have been found in Honolulu newspapers dated August 4, 1961.

But neither of these have stopped skeptics from charging that Obama, the son of a father from Kenya and a mother from Kansas, was born either in Kenya or Indonesia. By triggering a court martial, Lakin and his supporters hope to force the military to allow them to subpoena the White House for Obama’s “real” birth certificate in an effort to explain his motives for not following orders.

“It is a matter of common sense that he would be allowed to put on a defense that explains why he did what he did,” says Alan Keyes, a former Republican presidential candidate who supports the move and once ran against Obama in Illinois.

“And that means he would be allowed to conduct an investigation that would establish his reason.”

But others say Lakin's novel approach is doomed to fail, and legal experts say he apparently made his decision to proceed to a court-martial without the advice of experienced counsel.

One military attorney said Lakin had advice from a lawyer, Paul Rolf Jensen, but that Jensen had “only three months' experience in military law as a clerk in the 1980s” and was not an expert in military law. Jensen did not return a phone call seeking comment, but military experts called Lakin's effort a tragedy and waste.

“He is likely to lose everything and accomplish nothing,” one attorney lamented. “No military judge will say that (obtaining documents) of the president is necessary to prove the charges,” said Philip D. Cave, a Washington attorney and director of the National Institute of Military Justice.

Cave said that 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,” he said.

Dismissal, for a military officer, is the same as a dishonorable discharge for an enlisted servicemember.

“We all feel saddened,” said David Price, a former captain and 25-year veteran of the Navy Judge Advocate General’s office, now in private practice.

“He was issued an order to deploy and didn’t. End of issue,” he said. He said the military has dealt with these types of cases since Vietnam, when soldiers tried to make larger political issues the basis of their trials, and is experienced at keeping the proceedings free of politics.

Price also said that if the case does finally get to a general court-martial and a judge is asked to approve discovery requests by the defense, it is unlikely that it would be allowed to encompass the presidency. He said this wasn’t because of a conspiracy, but because the case is relatively simple and doesn’t require it.

Gary Myers, a former military lawyer who now heads a Washington firm specializing in military law, says he "just shook my head" when he heard about the case “I think [Lakin] is out of his mind” for thinking he could challenge the president this way, he said.

“It is grandstanding.”