VETERANS & MILITARY LAW & POLICY eJOURNAL
"Keeping in Step With 'Swift Discipline': Why Some Cases Should be Disposed of By Discharge Instead of Court-Martial"
RACHEL BARR, St. Mary’s University School of Law
This paper proposes that certain low-level offenses committed by military members would be better disposed of by administrative discharge proceedings rather than court-martial proceedings. I address the costs associated with prosecuting a case versus processing an administrative discharge, the timelines associated with these actions, and other considerations. The idea behind this proposition is to bring to light the unique needs of the military mission, and that above all, military JAGs and Commanders must ensure good order and discipline is maintained. Ultimately, it is more cost and time effective to quickly remove a member from the military via a discharge when low-level offenses are committed versus keeping them in the service while pending court-martial charges. Low-level offenses in this context include specifically drug use and possession offenses, and other non-violent, non-sexual misconduct offenses that are likely viewed as petty misdemeanors or other trivial misdemeanors.
"Addressing Sexual Misconduct in the United States Military: An Organizational Approach"
Temple Law Review, Vol. 94, No. 2, 2022
LAURA T. KESSLER, University of Utah - S.J. Quinney College of Law
SAGEN GEARHART, J.D., University of Utah
Sexual assault and harassment are ongoing problems in the military. This Article, co-authored by an expert on workplace sex discrimination and a former military officer, examines this problem from an organizational perspective. Social science research finds that organizational climate and composition strongly predict the occurrence of sexual harassment. A positive organizational climate decreases the prevalence of sexual harassment, reduces retaliation against those who report it, and lessens its job-related and psychological impacts. In contrast, organizations that tolerate sexual harassment are associated with greater levels of harassment and worse outcomes for victims. Workplaces where men significantly outnumber women are also associated with increased rates of sexual harassment.
Building on this social science research, we propose a set of legal and policy reforms designed to improve the representation of women in the military and reduce its hypermasculine culture. These reforms include establishing diversity goals and targets, instituting gender-neutral physical fitness standards, and ending male-only draft registration. As our analysis demonstrates, these organizational reforms are both permitted and mandated by constitutional law.
"The Doctor Will Judge You Now"
University of Cincinnati Law Review, Vol. 89, No. 4, 2021
BLAIR THOMPSON, Maurice A. Deane School of Law
Disability adjudicators within the U.S. Department of Veterans Affairs often adopt the medical opinions of the agency’s medical examiners as legal reasoning. While Courts and scholars have compared the role of the medical examiner in the adjudication of a veteran’s claim to that of an expert witness, this Article posits that the role of the medical examiner is more accurately described as that of the judge. This Article argues that this arrangement of roles violates veterans’ right to due process in the adjudication of their disability claims.
Scholars have noted that Congress and Courts have been reluctant to apply procedural due process protections to veterans’ disability claims out of a desire to maintain an ostensibly veteran-friendly and nonadversarial adjudication system. This Article points to another reason for that reluctance, which is the assumption that the adjudication of veterans’ disability claims turns on simple questions of medical evidence, which by its very nature is inherently free from bias or error from which procedural due process would protect. By explaining the various factual and legal analyses involved in the adjudication of veterans’ disability claims, and by applying the due process analyses outlined by the U.S. Supreme Court in Goldberg v. Kelly, Richardson v. Perales, and Mathews v. Eldridge, this Article demonstrates how additional procedure is constitutionally warranted to protect veterans with disabilities from the erroneous deprivation of their benefits.
Additional procedure is especially warranted to protect against the erroneous deprivation of veterans' benefits since the U.S. Department of Veterans Affairs decided in the fall of 2020 that it will no longer use VA employees to conduct disability exams, but will outsource all veterans' disability exams to private contractors.
"Review of Recent Veterans Law Decisions of the Federal Circuit 2020 edition"
American University Law Review, Vol. 70, No. 4, 2021
ANGELA DRAKE, affiliation not provided to SSRN
YELENA DUTERTE, University of Illinois at Chicago - UIC John Marshall Law School
STACEY-RAE SIMCOX, Stetson University - College of Law
This Article continues last year’s in-depth review of veterans law cases decided by the Federal Circuit, published by the American University Law Review. In the year 2020, the Federal Circuit further clarified the law applicable to veterans cases, including the parameters of the class action device and the need for robust analysis in cases challenging agency delay and inaction. The court significantly expanded veterans’ ability to challenge regulations and manual provisions directly in the Federal Circuit. It created new law with regard to the presumption of competency applicable to Department of Veterans Affairs (VA) examiners and explored the parameters of VA’s duty to sympathetically read claims. The Federal Circuit also issued important decisions regarding “effective dates” impacting the amount of money veterans can receive where claims linger for years in the adjudicative process. Finally, the court confirmed the validity of VA’s definition of willful and persistent misconduct.
"How Transgender and Non-Binary People are Ignored in the Male-Only Military Draft Debate"
MICHAEL CONKLIN, Angelo State University - Business Law
The constitutionality of an all-male military draft is currently being litigated in National Coalition for Men v. Selective Service System. Unfortunately, the effect this issue will have on transgender and non-binary people is largely being ignored. This essay considers how current Selective Service standards are not only psychologically harmful to transgender and non-binary people but also how they negatively affect their ability to receive college financial aid, federal jobs, and job training.
"A Constitutional Balancing Act: Courts-martial as an Exercise in Diplomacy"
Columbia Journal of Transnational Law, Vol. 60
ALEXIS ARCHER, Columbia Journal of Transnational Law
In 1957, Supreme Court Justice Hugo Black observed that, “[t]raditionally, military justice has been a rough form of justice.” Extraterritorial military jurisdiction charges defendants under the Uniform Code of Military Justice (“UCMJ”) and prosecutes through courts-martial. It also abrogates presumed fair trial guarantees and can impede fairness to the defendant. This Note explores the legal ambiguity surrounding United States (“U.S.”) government presence in foreign countries—a presence which includes active-duty service members, dependents, contractors, and former military. By exploring a recent case in which the defendant, a retired Marine, committed an overseas crime with no military nexus or “service connection,” and was subsequently court-martialed, it becomes clear that retirees fall into a jurisdictional gray area. This Note asserts that military jurisdiction should be narrow—not used as a tool to foster foreign-relations and American expansionism. The question here is whether the policy and diplomatic considerations are significant enough to justify the tradeoffs of encroaching on the constitutional protections afforded by civilian federal criminal justice.
I came across this case today:
"Defense Department Linguist Sentenced to 23 Years in Prison for Transmitting Highly Sensitive Classified National Defense Information to Aid a Foreign Government
Mariam Taha Thompson, 62, formerly of Rochester, Minnesota, was sentenced today to 23 years in prison for delivering classified national defense information to aid a foreign government. As part of her March 26 guilty plea, Thompson admitted that she believed that the classified national defense information that she was passing to a Lebanese national would be provided to Lebanese Hezbollah, a designated foreign terrorist organization."
Doesn't this seem like a very harsh sentence? I am curious what your intuitions are.
POLL: Was this too harsh, just right, or too lenient?
The National Institute of Military Justice, in cooperation with CAAFlog and Global Military Justice Reform, today released the Military Justice Reform Sourcebook for Legislators and Journalists (June 2021).
"The U.S. Supreme Court won’t examine the issue of race and jury selection in military courts-martial, rejecting the appeal of a Black service-member convicted by an all-White panel of sexual misconduct against White women.
Declining review of the case on Monday, the justices passed on considering how the U.S. Constitution’s prohibition on race discrimination in the jury-selection process applies to the military’s unique trial system." Bloomberg reports here.
From this new article by Maj John S. Reid:
"This Article will first provide a brief history of substantive due process related to consensual private relationships. It will then examine various contexts in which military members’ private lives are potentially regulated. In many of these contexts, it will be apparent that military jurisprudence has not caught up to recent Supreme Court precedent. This Article will then examine how two analogous privately held rights, the Fourth Amendment expectation of privacy and the First Amendment right to free speech, are treated by military law. Utilizing these two examples as possible vehicles for a new standard of review in the context of service members’ privacy, this Article proposes a new rule for military courts to adopt. Articulating such a standard is imperative for military justice practitioners and commanders to successfully navigate the substantive due process landscape."
Editor's note: I always thought Marcum was one of the most bizarre CAAF opinions ever written.
Professional Criminal Prosecution Versus The Siren Song of Command: The Road to Improve Military Justice. Just Security, 21 June 2021.
Fact: Military commanders do not require prosecutorial discretion over serious criminal offenses by their service members in order to ensure good order and discipline within their units.
The Two Men Blocking Military Sexual Assault Reform
"The military has long argued that removing prosecutorial decisions from the chain of command would undermine commanders’ authority and harm the services. But that claim doesn’t withstand much serious scrutiny."
Military justice reform, 'pink courts,' and unit cohesion
"Creating “pink courts” will destroy unit cohesion. It is difficult to imagine a surer way of turning back the clock on all the progress our country has made in integrating women in uniform, including opening occupational specialties, admission to the service academies, qualification as pilots of warplanes and commanders of naval ships and Coast Guard cutters, and promotion to flag and general officer ranks."
Editors note 6/19: The Two Men Blocking Military Sexual Assault Reform. Editorial Board, New York Times.
Editors note 6/18:
Sen. Gillibrand "said she hopes lawmakers will be convinced by data that shows racial bias in prosecution decisions made by the military. And she argued that limiting the change to sexual assault would be discriminatory — setting up what some call a "pink" court to deal with crimes usually involving female victims.
"I'm deeply concerned that if they limit it to just sexual assault, it will really harm female service members. It will further marginalize them, further undermine them, and they'll be seen as getting special treatment," she said.
Editor's note 6/16: Instead of focusing on the merits of the issue, the discussion below focuses on the propriety of using the word "pink." "Pink" was not chosen by the authors of the article, but by Senator Gillibrand:
See here at 11:18: https://www.wnyc.org/story/the-brian-lehrer-show-2021-06-15/
See here: https://www.youtube.com/watch?v=EY75Tlpy9Cw
Editor's note 6/12: this was likely written before the hearing this AM. That hearing (see below) indicates that Pink Courts are the preference of the DoD.
United States Supreme Court
Orin S. Kerr, Decryption Originalism: The Lessons of Burr, 134 Harv. L. Rev. 905 (2021). Courtesy of John Wesley Hall @fourthamendment.com
The Supreme Court is likely to rule soon on how the Fifth Amendment privilege against self-incrimination applies to compelled decryption of a digital device.
Supreme Court of South Carolina
For those of us doing court-room work, one of the first questions asked of us is, "will I have to register?" In South Carolina the answer remains, "likely." But for how long is discussed in Powell v. Keel, No. 28033 (S.C. June 9, 2021).
Although we find the State has a legitimate interest in requiring sex offender registration and such registration is constitutional, SORA's requirement that sex offenders must register for life without any opportunity for judicial review violates due process because it is arbitrary and cannot be deemed rationally related to the General Assembly's stated purpose of protecting the public from those with a high risk of re-offending. Therefore, we hold SORA's lifetime registration requirement is unconstitutional absent any opportunity for judicial review to assess the risk of reoffending. We further hold subsection 23-3-490(E) permits dissemination of the State's sex offender registry information on the internet. We hereby reserve the effective date of this opinion for twelve (12) months from the date of filing to allow the General Assembly to correct the deficiency in the statute regarding judicial review. Nonetheless, because the circuit court has already held a hearing in this case and determined Respondent no longer poses a risk sufficient to justify his continued registration as a sex offender, Appellants shall immediately remove Respondent from the sex offender registry.
United States v. Steen, decided Monday by CAAF, seems like a case unlikely to snag a grant, let alone generate vigorous dissents. Petty Officer Steen prevailed. But I predict Steen—or, more precisely, Judge Maggs’s dissent in Steen—will be cited frequently by the government.
Seaman Apprentice Harris was busted by civilian police with two grams of marijuana and a pipe. Unsurprisingly, the civilian police weren’t too interested, but the Coast Guard was happy to investigate. Harris said that he got his marijuana from Petty Officer Steen, his former boss, who was then on terminal leave.
A search of Steen’s phone showed that Steen and Harris had in fact been in contact around the time of the alleged distribution. It also showed that days after Steen was supposed to have given the marijuana to Harris, Steen sent text messages to civilians seeking marijuana.
Steen moved to suppress the texts as improper character evidence. The government sought to admit them under MRE 404(b), arguing that the texts showed that, having given marijuana to Harris, Steen needed to replenish his supply. The military judge kept it out, but said he’d reconsider if the defense “opened the door.”
Scholarship Saturday: A proposal to help Senator Gillibrand’s bill better “improve military justice”
Readers of CAAFlog are, no doubt, well-aware, that Congress is primed to, in the near future, strip commanders of prosecutorial discretion. On Thursday, the Chairman of the Joint Chiefs of Staff, General Mark Milley, said he was open to “significant and fundamental change” in that regard. The most likely vehicle by which military commanders will be denuded of their authority as prosecutors is the Military Justice Improvement and Increasing Prevention Act (MJIA) of 2021. The official text of that bill was recently made available here on Congress.gov. The bill’s sponsor, Senator Kirsten Gillibrand, has marshaled a super-majority in support of the measure, overcoming significant resistance from within her own party.
The relative merits of the proposal have been recently discussed, extensively, by other authors on this blog. They have penned articles such as--
More from the Virtual Hill -- Fidell, Cave, Hillman, and VanLandingham on "Pink Courts" (June 10, 2021)
The Hill: Top general: Military justice overhaul proposed by Gillibrand 'requires some detailed study' (June 10, 2021)
Maurer: Comparative Analysis of UCMJ Reform Proposals (June 4, 2021)
NYT on Status of MJIA (June 3, 2021)
Paradis Tomorrow on Lawfare Live (June 3, 2021)
Prof. Dunlap Enters the Fray (June 2, 2021)
A Short Response to Fidell & Cave on Command Responsibility (June 2, 2021)
[Updated] Paradis Enters the Fray (June 1, 2021)
How far have we come (May 30, 2021)
A Reformist Response (May 28, 2021)
Christensen Responds to Schlueter and Schenck (May 16, 2021)
Cave Responds to Schlueter & Schenck (May 15, 2021)
From The Hill today: Schlueter & Schenck on commander disposition statistics (May 10, 2021)
The question of whether commanders should act as prosecutors may have reached culmination recently, but, as this column discussed six months ago, we have long heard the drums, drums in the deep. Indeed, the very first article I wrote on CAAFlog, published in this Scholarship Saturday column more than 4 years ago, was entitled, “The ongoing discussion regarding the placement of military prosecutorial discretion.”
As we move forward, it is important to note that this robust discussion, some of which is captured in the links above, has extended well beyond the narrow question of how commanders exercise prosecutorial discretion. The military justice community's conversations have grappled with fundamental questions about how the military justice system is structured, and whether it adequately provides either justice or good order and discipline.
No. 21-0149/NA. United States, Appellee/Cross-Appellant v. Paul E. Cooper, Appellant/Cross-Appellee. CCA 201500039. On consideration of the petition for grant of review of the decision of the United States Navy-Marine Corps Court of Criminal Appeals, it is ordered that said petition is hereby granted on the following issues:
I. AN ACCUSED HAS A CONSTITUTIONAL RIGHT TO HAVE HIS COUNSEL MAKE A PROPER ARGUMENT ON THE EVIDENCE AND APPLICABLE LAW IN HIS FAVOR. DID THE MILITARY JUDGE ABUSE HIS DISCRETION WHEN HE ALLOWED THE MEMBERS TO RECALL THE COMPLAINING WITNESS AFTER DELIBERATIONS BUT REFUSED THE DEFENSE REQUEST TO PRESENT A RENEWED CLOSING SUMMATION ON HER NEW TESTIMONY? DID THE LOWER COURT ERR BY REFUSING TO CONSIDER THIS ISSUE?
II. AN APPELLANT HAS THE RIGHT TO EFFECTIVE REPRESENTATION BY APPELLATE COUNSEL. WERE APPELLATE COUNSEL INEFFECTIVE WHERE: (1) COUNSEL FAILED TO ASSIGN AS ERROR THE MILITARY JUDGE'S DENIAL OF A RENEWED CLOSING ARGUMENT DESPITE DEFENSE COUNSEL'S OBJECTION AT TRIAL; (2) THIS COURT DECIDED UNITED STATES v. BESS, 75 M.J. 70 (C.A.A.F. 2016), ONE MONTH BEFORE COUNSEL FILED A SUPPLEMENTAL BRIEF RAISING ASSIGNMENTS OF ERROR BEFORE THE LOWER COURT; AND (3) THE LOWER COURT REFUSED TO CONSIDER THE ISSUE WHEN IT WAS RAISED DURING A LATER REMAND TO THAT COURT?
The NMCCA opinion is here.
From the CAAFlog desk.
Court of Appeals for the Armed Forces
We are advised the Government may well certify United States v. Mellette to CAAF (discussed here). (From the CAAF Desk.)
United States v. Kyle joins the post-trial issues trailer park. ACCA pointed to the issue in a footnote.
We note that the convening authority failed to take action on appellant's adjudged sentence, and we considered this as part of our review of appellant's case. In light of United States v. Coffman, 79 M.J. 820 (Army Ct. Crim. App. 2020), we find the convening authority's failure to act on appellant's sentence as required by the applicable version of Article 60, UCMJ, while error, was neither jurisdictional nor prejudicial to appellant's substantial right to seek clemency from the convening authority. In making this assessment, we note the appellant pleaded guilty and did not use the opportunity to submit matters to the convening authority under R.C.M.1106. Accordingly, the convening authority's error is harmless in this case.
Courts of Criminal Appeals
They are actively deciding cases, most are summary affirmances.
Potential Appellate Cases
United States v. A Marine. This Marine was accused but not indicted by a grand jury in MA. His GCM began Monday for allegations of murder, voluntary manslaughter, and assault. He was an “on-duty” Reservist at the time of the offenses. (Courtesy of NBCboston.)
United States v. An Air Force Major. A female major is in trial at the USAFA for allegations of sexual and professional misconduct. The accusations include “abusive sexual contact,” abuse of a leadership position, and dereliction of duty, the release stated. In 2019, while working at the Air Force Academy Preparatory School, EC was accused of groping a female trainee on at least two occasions. She was also accused of buying alcohol for underage cadets at the Academy and of having an unduly familiar relationship with a subordinate, according to case records. (Courtesy of The Gazette.)
Pending Appellate Cases
United States v. Stafford. Stafford, an Airman at Mountain Home Air Force Base and covered by the Mountain Home News in 2014 & 2018 with no local court convictions. So reports the Mountain Home News. The non-commissioned officer was prosecuted and convicted of four rapes, one count of attempted sexual assault, one count of aggravated assault, and two counts of simple assault. He was sentenced to 18 years, six months of confinement, reduced in rank to airman basic, and given a dishonorable discharge during his General Court Martial hearing in March 2021.
United States v. Matthews, United States v. DeDolph, United States v. Maxwell, and United States v. Madera-Rodriguez. Army Times has a quick summary. See here, from 2019, which are termed “leaked details.” Madera-Rodriquez is in trial this week.
Cheers, Phil Cave.
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In United States v. Sigrah. An enlisted panel convicted Appellant of one sexual assualt while intoxicated and sentenced him to 18-months, and a DD+.. (The appellate briefs are here.)
ACCA addresses two of five assigned errors. (The Ramos issue was raised as a Grosty.)
CID had the standard video interviews of Appellant, the victim, and two witnesses. Only the Appellant's interview was properly preserved and available for trial. The other videos had been "automatically overwritten" before being preserved on a disc, so were no longer available.
Having found a R.C.M. 914 violation, we next address whether the military judge abused her discretion in finding that the government’s failure to produce the qualifying statements in this case did not constitute a violation of R.C.M. 914 because the loss was excusable under the good faith loss doctrine. The military judge, in a “finding of fact,” concluded there “was no evidence presented that law enforcement acted in bad faith or in a negligent manner in recording” the victim’s and SPCs D and B’s statements. We agree with the military judge’s determination that there was no evidence of bad faith but find her conclusion as to negligence is clearly erroneous in light of the record.
The error however was harmless because the defense had witness statements, interviews, and the opportunity to cross-examine. Of course this does ignore the fact that we often find seeds for fruitful cross-examination from recorded videos. Sometimes you wonder if two different people wrote the statement and gave the interview.
ACCA casts the discovery issue as a bare assertion of error because the trial defense counsel effectively waived the issue. No IAC claim was raised.
[The defense] was first made aware of the DNA report the day before trial. Defense counsel did not raise any concern at that time, or request a continuance. Defense counsel averred that the defense did not receive a copy of the DNA report until the panel was deliberating on a sentence. Defense counsel made clear that he was “not specifically alleging anything at this time,” and that if, after studying the report, he believed appellant was “entitled to relief under Brady . . . the defense will make a request for a post-trial Article 39(a) session with the Court.” In his concluding sentence, defense counsel reiterated, “We do not request a decision today.” A month later, defense counsel submitted post-trial matters discussing the issue but requesting no specific relief. He never requested a post-trial hearing. The record before this court merely contains a copy of the DNA report in question marked as an appellate exhibit, but we have no testimony, much less expert testimony, as to its meaning. We have no litigation or rulings concerning if and when the report was disclosed or made available to the defense. We have no litigation or rulings as to whether the DNA report contains information within the ambit of Brady.
Nor, apparently, did ACCA consider a Dubay hearing. Appellant's Brief of Assignments of Error contains this sentence.
[In the 1105 submitted] defense counsel noted that the USACIL report excluded appellant as a semen contributor to all of the tested items, making this report material to preparation and defense of his case. (Clemency Matters).
ACCA goes on to hold that even if there was a Brady issue, it would be a loser anyway.
During oral argument, appellate defense counsel contended the CAAF’s opinion in United States v. Garlick, 61 M.J. 346 (C.A.A.F. 2005) precluded this court from finding waiver. We disagree. Having carefully reviewed Garlick, not only is it factually distinguishable from appellant’s case, but nowhere does it state, expressly or impliedly, that Brady claims are not subject to waiver.
Maybe CAAF will take this issue of waiver? Will CAAF want to decide that there was a meritorious claim of harm or order a Dubay? Another person's sperm matched the tested evidence and Appellant's did not. Appellant's brief argues that,
[D]ue to the government’s malfeasance, appellant was unable to present a full and complete defense. The presence of SPC ’s sperm cell DNA in the bed would have made the defense case stronger in at least four key areas.
One of the four key reasons arguably raises the SODDI defense.
Cheers, Phil Cave.
Deep-rooted racism, discrimination permeate US military
"The AP also found that the Uniform Code of Military Justice does not adequately address discriminatory incidents and that rank-and-file people of color commonly face courts-martial panels made up of all-white service members, which some experts argue can lead to harsher outcomes."
Check out the SASC hearing from this morning at 1:06:00 -- Link here.
"No. 21-0234/AR. U.S. v. Logan T. Kyle. CCA 20190372. On consideration of the petition for grant of review of the decision of the United States Army Court of Criminal Appeals, it is ordered that said petition is granted on the following issue:
WHETHER THE CONVENING AUTHORITY'S FAILURE TO TAKE ACTION ON THE SENTENCE DEPRIVED THE ARMY COURT OF CRIMINAL APPEALS OF JURISDICTION UNDER ARTICLE 66, UCMJ.
No briefs will be filed under Rule 25."
The Hill: Top general: Military justice overhaul proposed by Gillibrand 'requires some detailed study'
"The United States’ top general on Thursday said he thinks a proposal to remove military prosecutions of all serious crimes from the chain-of-command 'requires some detailed study' while reiterating his openness to such a change only for sexual assault prosecutions."
On June 3, 2021, the Supreme Court decided Van Buren v. United States. The six-justice majority had the first opportunity to interpret the vague language of the Computer Fraud and Abuse Act of 1986. This federal statute imposes liability on unauthorized access of computers. Ultimately, the court held the CFAA does not extend to individuals retrieving available information with improper motives but only to those who obtain information not otherwise available or accessible by authorization.
Facts and Procedural Posture
Nathan Van Buren was a former police sergeant in Georgia. As part of an FBI operation, Anthony Albo asked Van Buren to search a state law enforcement database for a specific license plate number in exchange for $5,000. Van Buren, using his valid credentials, searched his patrol car database for the requested entry. He was in breach of department policy which prohibited the use of a law enforcement database for non-law enforcement purposes. Consequently, Van Buren was charged with a felony violation of the CFAA because running the license plate violated the “exceeds authorized access” clause of 18 U.S.C. § 1030(a)(2). The jury convicted Van Buren, and the District Court sentenced him to 18 months in prison. On appeal, the Eleventh Circuit upheld the conviction under the CFAA. Van Buren appealed to the Supreme Court, which granted certiorari in April 2020.
The Supreme Court decided whether Van Buren violated the Computer Fraud and Abuse Act of 1986, which makes it illegal “to access a computer with authorization and to use such access to obtain or alter information in the computer that the accessor is not entitled so to obtain or alter.” However, the opinion hinges upon linguistical questions. For example, what does “exceeds authorized access” mean? What is the meaning of “is not entitled so to obtain”?
The majority opinion
Justice Barrett, writing for the majority, first addresses a conflict in the circuits regarding the meaning of “exceeds authorized access.” The statute defines “exceeds authorized access” as “to access a computer with authorization and to use such access to obtain … information in the computer that the accessor is not entitled so to obtain” 1010(e)(6). The definition lends itself to yet another question, what does “is not entitled so to obtain” mean?
Van Buren suggests the phrase mentioned above is best read to mean accessing information that one is under no circumstance entitled to obtain. Thus, getting information from a computer an individual has access to, regardless of purpose, would relieve one of liability under CFAA.
Whereas, the government, taking a different interpretation of the phrase, insists “is not entitled so to obtain,” means obtaining information “one was not allowed to obtain in the particular manner or circumstance in which one obtained it.” It urges the court to adopt a reading that would include liability for obtaining information for an unauthorized or improper purpose.
Justice Barrett ultimately agrees with the petitioner’s textual analysis. On one end of the spectrum, an individual “exceeds authorized access” when a person is not entitled under any circumstance to obtain the information. On the other hand, “an individual [also] “exceeds authorized access” when he accesses a computer with authorization but then obtains information located in specific areas of the computer – such as files, folders, or databases – that is off-limits to him.” The inclusion of the word “so” refers to a previous manner or circumstance cited in the statute itself. Here, it refers to Van Buren’s right to obtain the license-plate information through a manner previously identified in the definition (i.e., accessing a computer with authorization and using that access to obtain information in the computer). Accordingly, Van Buren did not exceed his authorized access, even if he had an improper purpose.
The majority then moves to a structural and historical analysis of the statute. Musacchio v. United States provides two ways 1030(a)(2) can be violated: “accessing a computer without authorization and accessing a computer with authorization and then obtaining information one is not entitled so to obtain”. Van Buren treats these two clauses as consistent with one another, protecting from so-called outside hackers as well as inside hackers. Again, agreeing with the petitioner’s approach, Justice Barrett writes it “makes sense” compared to the many flaws in the government’s reasoning.
Ending with policy arguments, several amici on behalf of Van Buren point to the practical consequences of taking a contrary and broad construction of the CFAA. Trivial breaches by ordinary citizens would lend themselves to expanded criminal liability and a broad prosecutorial reach under the CFAA.
We of course followed with interest the decision to prosecute at court-martial MG Grazioplene--a retired Army officer. He appeared in civilian clothes for the various hearings because he had not been recalled to active duty.  The CAAF decision in United States v. Mangahas caused some rethinking.
Grazioplene eventually pleaded guilty, to serious sex offenses which he committed over a significant period of time, in a Commonwealth of Virginia court. I do think that if he was convicted at court-martial his sentence could well have been much longer than what he was adjudged in the civilian case.
The defense secretary has reduced a retired Army major general to the rank of second lieutenant after he pleaded guilty last year in a Virginia court to sexually assaulting his daughter while in uniform.
So reports Army Times.
 Here there is a photo of him in a not-green suit leaving the TDS Office at Fort Belvoir. True, the courtroom is in the same building.
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