NA sends an answer to his question about the Cook case from a military lawyer:
The fact that there is a lawsuit counts as proof of nothing. Its simply a suit. In the same way that when an accused is charged with a crime, the fact that he has been charged is not considered evidence. As well, the way I read the suit (or at least the press account of this suit) the logic is flawed. At this point President Obama is, in fact, president. Cook’s deployment would NOT violate international law under any interpretation of the Hague or Geneva conventions or customary international law.
I would agree that the Army response is puzzling. I do not agree this creates a “get out of war free card”. Each case under the UCMJ must rise or fall on its own merits. If the next Maj Cook steps forward with the intent to disobey a lawful order, the Army/Navy/Air Force can certainly prosecute if they see fit.
In such a case, an accused would be entitled to a full and fair trial, and if convicted, to a full appeal. I suspect time will tell if there are more “Maj Cook’s”
As is so often the case with lawyers, I think this gentleman’s response is essentially correct in the particulars while somehow managing to completely miss the point. There is clearly no precedent created by the revocation of Major Cook’s deployment order. It was an extrajudicial action at the discretion of the responsible officers and they could certainly decide to take the next case to court.
And while I’m not sure about whether Obama can be legally considered president if it turns out he was, in fact, Constitutionally ineligible for the office, that’s not relevant here because I was never talking about a legal “get out of war free” card. Whether the Supreme Court would decide to call shenanigans or a mulligan in the event of an ineligible office-holder doesn’t matter anywhere nearly as much as the public perception of the office-holder’s legitimacy. So, the card is an effective one so long as the Pentagon is unwilling to stand its ground in court.
I find the Pentagon’s response less puzzling because this isn’t ultimately a legal matter but more an issue of public perception. Right now, the only thing the public knows for sure is that they simply don’t possess sufficient facts to reach any definite conclusion, even if one can draw apparent conclusions from the actions of various parties. The problem is that one can ask “why would Obama ever run for office if he knew he was ineligible?” just as reasonably as one can ask “why didn’t the Pentagon prove the eligibility of the Commander in Chief in court and ship the major off to Afghanistan?”
What many on both sides of this issue fail to understand is that I’m agnostic on the matter. I only know that I don’t know… more importantly, I know that you don’t actually know either. And I also know that the birth issue stopped being a matter for laughing at the conspiracy theorists the moment that the Pentagon created an effective “get out of war free” card by revoking Major Cook’s orders.