Educating the Confused – Robert Laity and Spying

Robert Laity: Obama has usurped the Presidency of the United States during time of War. That makes Obama a Spy under the Uniformed Code of Military Justice at Section 906,Article 106. Also see: 18USC,Part 1,Chapter 115,Sec.2381.

In order to determine if Laity is correct, we have to look at Article 106 of the UCMJ. It requires the following elements to be true:

1) That the accused was found in, about, or in and about a certain place, vessel, or aircraft within the control or jurisdiction of an armed force of the United States, or a shipyard, manufacturing or industrial plant, or other place or institution engaged in work in aid of the prosecution of the war by the United States, or elsewhere;

(2) That the accused was lurking, acting clandestinely or under false pretenses;

(3) That the accused was collecting or attempting to collect certain information;

(4) That the accused did so with the intent to convey this information to the enemy; and

(5) That this was done in time of war.

Let’s start with (5). Since Laity approvingly has mentioned US v Averette, let’s see how the Court defined ‘in time of war’ and what its ruling was

In 1970, the Court of Military Appeals held that civilian employees of the military overseas could not be subjected to court-martial (United States v. Averette, 19 U.S.C.M.A 363)[, unless in times of war.]

and

the U.S. Court of Military Appeals adopted a strict construction of the phrase “in time of war” finding that the phrase referred only to a congressionally declared war. Since the Vietnamese conflict was not a congressionally declared war, Averette’s trial by court-martial was declared unconstitutional.

US v Averette does not provide any foundation for Laity’s claims that UCMJ 106 applies to our President. Of course, non of the other elements apply either, showing how poorly developed Laity’s arguments really are.

Laity has tried to ‘argue’:

6. Obama has no lawfully granted security clearance

As to the need for a security clearance, see EXECUTIVE ORDER #12968 and the following:

“The president is the one who established the security clearance system by executive order,” said Steven Aftergood, a national security and intelligence specialist with the Federation of American Scientists. “Therefore it is nonsensical to speak of clearances higher than what the president has. As head of the executive branch and commander in chief of the armed forces, there is no information in government that could be denied to the president for security reasons if he determined he needed access to that information.”

Source: Politifact

So again, Laity’s ‘argument’ fail. It is the executive branch, under President Obama, that defines Security Clearance rules, and the President and Vice-President are clearly exempt. This makes a lot of sense, since it is through executive orders that the rules for security clearance have been developed.

Finally, the claim of usurpation is at odds with the fact that President Obama was legally elected, certified by Congress and sworn in by the Chief Justice, and therefore at least a de-facto President. Anyone familiar with the concept of usurper, would realize that our President could never be a usurper.

There are three types of public officers, de jure, de facto, and usurpers and our President is clearly at a minimum a de-facto President.

The case law distinguishes among three different legal statuses that might be ascribed to a person who appears to hold a public office:  the person might be a de jure officer, or a de facto officer, or what the courts characterize as an intruder or usurper.  As a practical matter, to the outside world there is no legal difference between the acts of a de jure officer and a de facto officer – the actions are valid and cannot be attacked on the ground that the officer is not legally in office.  (The difference between the two kinds of officers is that if the person’s status is challenged directly, in an action in the nature of quo warranto, the de jure officer will survive the challenge while the de facto officer will not.)

Source: Coates Canons

What makes one a usurper? The lack of a “color of right”.

De facto judge refers to a presiding officer, who functions under the color of authority, but whose authority is defective in technical form. A de facto judge has the reputation of being a judge although s/he is not a judge in the eye of law. Mere possession of the office is not sufficient to make one a de facto judge – possession plus color of title to the office is essential. The official acts of a de facto judge are valid.

A judge de facto differs from a mere usurper of the office and a judge de jure. An usurper of the office undertakes to act without any color of right, and a judge de jure is in all respects legally appointed and qualified to exercise the duties of the office.

“A de facto judge may be defined as one who occupies a judicial office under some color of right, who exercises the duties of the judicial office under color of authority pursuant to an appointment or election thereto, and for the time being performs those duties with public acquiescence, though having no right in fact, because the judge’s actual authority suffers from some procedural defect”. [Farm Bureau Policyholders v. Farm Bureau Mut. Ins. Co., 330 Ark. 350, 352 (Ark. 1997)]

Or this one

A public official becomes an officer de facto by exercising his or her duties

(2) under color of a known and valid appointment or election, but where the

officer fails to conform to some precedent, requirement, or condition, as to take

and oath, give a bond, or the like:

(3) under color of a known election or appointment, void because the officer was

not eligible, because there was a want of power in the electing or appointing

body, or by reason of some defect or irregularity in its exercise, the ineligibility,

want of power, or defect being unknown to the public; or

Supreme Court rulings

WAITE v. SANTA CRUZ. 84 U.S. 302 (1902)

A de facto officer may be defined as one whose title is not good in law, but who is in fact in the unobstructed possession of an office and discharging its duties in full view of the public, in such manner and under such circumstances as not to present the appearance of being an intruder or usurper. When a person is found thus openly in the occupation of a public office, and discharging its duties, third persons having occasion to deal with him in his capacity as such officer are not required to investigate his title, but may safely act upon the assumption that he is a rightful officer. Thus it is said in Petersilea v. Stone, 119 Mass. 468: “Third persons, from the nature of the case, cannot always investigate the right of one assuming to hold an important office, even so far as to see that he has color of title to it by virtue of some appointment or election. If they see him publicly exercising its authority, if they ascertain that this is generally acquiesced in, they are entitled to treat him as such officer, and, if they employ him as such, should not be subjected to the danger of having his acts collaterally called in question.”

HUSSEY v. SMITH. 99 U.S. 20 (____) (1879)

An officer de facto is not a mere usurper, nor yet within the sanction of law, but one who, colore officii, claims and assumes to exercise official authority, is reputed to have it, and the community acquiesces accordingly. Wilcox v. Smith, 5 Wend. (N.Y.) 231; Gilliam v. Reddick, 4 Ired. (N.C.) L. 368; Brown v. Lunt, 37 Me. 423. Judicial as well as ministerial officers may be in this position. Freeman on Judgments, sect. 148. The acts of such officers are held to be valid because the public good requires it. The principle wrongs no one. A different rule would be a source of serious and lasting evils.

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