Does the Obama Birther Soldier Have a Case?

July 14, 2009 | Last updated: July 31, 2020

In addition to filing frivolous lawsuits in California, Orly Taitz is representing U.S. Army Maj. Stefan Frederick Cook, who’s seeking conscientious objector status on the grounds that he doesn’t believe the commander-in-chief is an American citizen. But there’s a precedent here, and the blogger at Submitted to a Candid World thinks that Taitz and Cook are more or less doomed.

In 1973, professional Good Guy and all-around rock god of law Burt Neuborne filed a suit against then-Secretary of Defense Arthur Schlesinger, on behalf of soldiers being ordered to bomb Cambodia in the hitherto undeclared Vietnam War. Building off of the plaintiffs’ plausible stake in the matter, he argued that since the Vietnam War was never formally declared, these soldiers were being forced to choose between their orders and the Constitution. It’s essentially Orly’s theory, just used to support a far nobler goal.

Despite a brilliant attempt, the “Cambodia bombing” case (Holtzman v. Schlesinger) failed, when the Supreme Court, in an impromptu phone-conferenced hearing, vacated a stay of the bombing ordered by the district court. Fatal to the case was another doctrine of justiciability – the “political question” doctrine, which forbids federal courts from inquiring into matters committed to other branches of government, like the validity of wars and (ahem) battle orders.

Cook is already drawing attention on conspiracist blogs; this FreeRepublic thread veers between people who are ready to call him a hero and people who patiently explain how Taitz is botching yet another lawsuit.

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