We all are reading numerous opinions addressing post-trial issues primarily related to the CA action. United States v. Motus presents the issue differently and raises a note of caution for trial defense counsel and inferentially a call for action on their part.
After a contested MJA trial for various sexual offenses the military judge entered mixed findings and imposed a DD and two. On appeal, one AOE asked the court to set-aside the sentence because,
Appellant asserts his trial defense counsel were ineffective in, inter alia, failing to file a post-trial motion regarding the convening authority not taking action on Appellant’s sentence as required by Executive Order 13,825, § 6(b), 83 Fed. Reg. 9889, 9890 (8 Mar. 2018), and Article 60, UCMJ, 10 U.S.C. § 860.
The government claimed the law was so "unsettled at the time" that there was no IAC, the proper remedy was to remand for corrective action; and based on the offenses and sentence 'so what (no prejudice)?'
The court agreed the CA erred and remanded the case to the CJAFTJ for further action. The court deferred ruling on the IAC claim until Motus makes his return appearance before the court. In discussing the applicable law the court observed,
The version of Article 60, UCMJ, in effect in 2018—the year in which Appellant’s offenses occurred—stated “[a]ction on the sentence of a court-martial shall be taken by the convening authority or by another person authorized to act under this section.” 10 U.S.C. § 860(c)(2)(A) (emphasis added); see also United States v. Perez, 66 M.J. 164, 165 (C.A.A.F. 2008) (per curiam) (“[T]he convening authority is required to take action on the sentence . . . .”). Article 60(c)(2)(B), UCMJ, further stated: “Except as [otherwise] provided . . . the convening authority . . . may approve, disapprove, commute, or suspend the sentence of the court-martial in whole or in part.” 10 U.S.C. § 860(c)(2)(B). The convening authority’s action is required to be “clear and unambiguous.” United States v. Politte, 63 M.J. 24, 26 (C.A.A.F. 2006) (citation omitted).
The court does address the various statutory changes and the recent appellate decisions on what to do with post-trial error cases. I think in doing so the court effectively concedes some confusion in the field and among the appellate courts.
There is a dissent finding no error.
Scholarship Saturday: Governing without consent - choice of law conundrums in prosecutions at the ICC when the accused is from a country that has not signed the Rome Statute
This week, Scholarship Saturday is enthused to present a piece from Columbia Law School student Jackson Rubinowitz commenting on a recent article published in the Military Law Review by U.S. Army Major Kevin M. Junius.
Mr. Rubinowitz' work begins below the "read more" break.
- Isaac Kennen, Scholarship Editor
The search is on for the next person to be appointed to CAAF when C.J. Stucky retires. Judge Ohlson will become the court's chief judge. You can go here for a short biography of the current judges.
And see, Article 142, UCMJ, 10 U.S.C. § 942, Judges (of the court) and Article 143, UCMJ, 10 U.S.C. § 943, Organization and employees (of the court).
You are invited to a Town Hall discussion on the subject hosted by Global Military Justice Reform.
Time: 0900, Monday 1 March 2021. Place: Zoom. Join Zoom Meeting
Meeting ID: 847 7795 4707
Advance reading, Eugene R. Fidell, The Next Judge. 5 J. NAT. SEC. L. & POLICY 303 (2011). Interestingly, the author observes,
The Court of Appeals has been deciding fewer than one case per judge per month on full opinion for the last several years, although admittedly it also must sift through many petitions for grant of review. Whether or not the court should (as I believe) be granting far more petitions for review, this is clearly not a heavy load. Moreover, trial caseloads in the armed forces have declined markedly, meaning the Court of Appeals is unlikely to experience a surge of cases in the foreseeable future.
(Note the political party affiliation no longer applies.)
For historians, See Ten-Year Chronology of the United States Court of Military Appeals.
Appendix B in the 1961 Annual Report of the United States Court of Military Appeals and the Judge Advocates General of the Armed Forces and the General Counsel of the Department of the Treasury. The chronology, which was prepared by Frederick R. Hanlon, Deputy Clerk, presents a brief history of the U.S. Court of Military Appeals and includes biographical information on the three civilians appointed to the military tribunal by President Harry S. Truman—Chief Judge Robert E. Quinn, Associate Judge George W. Latimer, and Associate Judge Paul W. Brosman.
In the last term the CAAF issued 25 opinions. The last term annual report for the court is here and you can judge for yourself their workload. The total number of petitions for 2011 was 700, the next highest was 853 for 2014, and for last term 369. Keep in mind that the number of grants per year is not a complete indicator of the court's workload. In 1994 the court issued 144 opinions and 2223 Orders in cases.
On 20 November 2020, United States District Court Judge Richard J. Leon ruled that the military’s use of a court-martial against a Fleet Marine Corps Reservist was unconstitutional. Just two months later, a divided en banc Navy-Marine Corps Court of Criminal Appeals (NMCCA) held that courts-martial did have jurisdiction over the same group of military retirees. Now on appeal before the DC Circuit (CADC) and the Court of Appeals for the Armed Forces (CAAF), respectively, these cases have set the courts on a potential collision course.
Despite undergoing a broad overhaul in 2016, the Uniform Code of Military Justice still allows for the prosecution of certain military retirees. Specifically, Article 2(a)(4) and (6) subject Fleet Reservists, Fleet Marine Corps Reservists, and regular component retirees who are entitled to pay to continuous UCMJ jurisdiction. In contrast, reservists are only subject to UCMJ jurisdiction while acting in their capacity as reservists, i.e., during inactive duty training or while on active duty. And retired reservists are never subject to the UCMJ unless they are receiving hospitalization from an armed force.
Whether Article 2(a)(4) and (6) are constitutional carries significant implications for those individuals affected. For instance, how the court answers this question will decide whether an accused retiree will face a civilian trial with a jury or a court-martial with a member panel.
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The NMCCA has issued a published opinion in United States v. Becker—actually a ongoing government appeal.
Appellee is charged with assault consummated by a battery, conduct unbecoming an officer and a gentleman, and premeditated murder for allegedly strangling his wife in August 2013, physically and emotionally abusing her over the following two years, and then drugging her and causing her to fall from a seventh-floor apartment window to her death in October 2015.
The military judge on remand reconsidered and adopted the same findings and made the same ruling. The court now sends the case back because the military judge “fail[ed] to consider important facts.” The court addresses forfeiture by wrongdoing as a method to introduce prior statements of the decedent. The court makes the following points when considering the second prong of the exception to hearsay suggested by Giles v. California.
This was sufficient to conclude that the ““wrongful act [wa]s performed with an intent to prevent [Mrs. B.] not only from testifying at some formal proceeding, but also from reporting abuse, cooperating with law enforcement, or resorting to outside help.””
There is a dissent which makes several points.
The facts that the majority characterizes as “important facts” were thus in front of the military judge, twice.
Per Army Times:
Sergeant Dermot Blake was charged in Colorado Springs, CO, with First Degree Murder and two counts of Child Abuse, after Blake called police and told them that he shot his wife.
Colorado Springs Statement here.
Elizabeth M. Berecin
United States v. Sanchez, 80 M.J. ___ (A. Ct. Crim. App. 2021).
“When a defendant voluntarily pleads guilty to an offense at a court-martial, he is “not simply stating that he did the discrete acts described” in the specification, but also that he is guilty of the “substantive crime” set forth in the specification. United States v. Hardy, 77 M.J. 438, 442 (C.A.A.F. 2018) (internal quotation marks omitted) (quoting United States v. Broce, 488 U.S. 563, 570 (1989)). Based on the combination of this principle and a 2016 change to Rule for Courts-Martial [R.C.M.] 907, we hold that an unconditional guilty plea waives a later claim that the pleaded to specification fails to state an offense.”
Thank you to "Scott" below for pointing out that felony murder in the military is a strict liability offense (with respect to causing death). Felony murder statutes of this nature are criticized for allowing unintended killings to be punished the same as premeditated murders, and therefore many (I believe most) jurisdictions require some minimum mens rea with respect to the causation of death. See Guyora Binder, Making the Best of Felony Murder, 91 B.U. L. Rev. 403 (2011). The UCMJ felony murder provision thus appears as a harsh outlier. It would permit murder liability for a bank robbery getaway driver who accidentally kills a jaywalker.
Could the President graft on a mens rea? I recognize that the President should not be creating criminal law or departing too much from the statute, and that interpretive matters such as these are the province of CAAF. However, there is the old doctrine of the "hierarchy of rights." United States v. Guess, 48 M.J. 69, 71 (C.A.A.F. 1998) ("Although the President's interpretation of the elements of an offense is not binding on this Court, absent a contrary intention in the Constitution or a statute, this Court should adhere to the Manual's elements of proof. Where the President's narrowing construction is favorable to an accused and is not inconsistent with the language of a statute, “we will not disturb the President's narrowing construction, which is an appropriate Executive branch limitation on the conduct subject to prosecution.”"). The term "hierarchy of rights" has not appeared in a published opinion since this 1998 case, but the doctrine has never been overruled.
The Manual states in the Explanation that "The commission or attempted commission of [a predicate offense] is likely to result in homicide..." 56.c.(5). If "likely" means >50%, though, this is clearly wrong. It is most clearly wrong with respect to burglary. Binder gives a figure of .02% of burglaries resulting in death (p. 458).
CAAF has decided United States v. Norwood.
A necessary read for litigators who regularly face Mil. R. Evid. 801 issues. While the court ultimately finds no harm,
Even though we now hold that the military judge’s decision to admit the entire substantive portion of the videotaped statement did not rise to the level of an abuse of discretion, I do not believe this case should be seen as an exemplar of how military judges should approach these types of issues in the future. Generally speaking, a military judge’s decision to admit a prior consistent statement in its entirety is fraught with peril. See Finch, 79 M.J. at 398. Indeed, such a step may result in prejudice to an accused of such a magnitude that it merits reversal of a conviction. Therefore, in regard to Issue I, although I ultimately agree with the majority that the military judge did not abuse his discretion in admitting the entire substantive portion of the videotape, I believe it is prudent to sound a note of caution to the field about the applicability of this decision to future cases with different facts.
Ohlson, J., concurring in the result.
"Orders Granting Petition for Review
No. 21-0059/MC. U.S. v. Bradley M. Metz. CCA 201900089. 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 granted on the following issue:
THE ADMISSIBILITY OF EVIDENCE SEIZED AFTER AN ILLEGAL APPREHENSION IS GOVERNED BY BROWN v. ILLINOIS, 422 U.S. 590 (1975). DID THE LOWER COURT ERR BY FAILING TO APPLY BROWN DESPITE FINDING APPELLANT WAS ILLEGALLY APPREHENDED?
Briefs will be filed under Rule 25. [Note. The NMCCA website also lists a Metz-II, but the link doesn't work.]
No. 21-0085/AR. U.S. v. John T. Long. CCA 20150160. 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 issues:
I. WHETHER THE ARMY COURT ERRED IN CONCLUDING THE IMPERMISSIBLE USE OF CHARGED SEXUAL MISCONDUCT AS PROPENSITY EVIDENCE WAS HARMLESS BEYOND A REASONABLE DOUBT.
II. WHETHER APPELLANT'S CONVICTION FOR RAPE OF A CHILD WAS LEGALLY SUFFICIENT WHERE THE GOVERNMENT PRESENTED NO EVIDENCE OF THE CHARGED SEXUAL ACT.
III. WHETHER THE ARMY COURT ABUSED ITS DISCRETION IN REASSESSING THE SENTENCE.
Briefs will be filed under Rule 25."
On February 9, 2021, the Air Force Court of Criminal Appeals (ACCA) affirmed the sentence of Appellant Jacob T. Orosco. Appellant was sentenced by a military judge sitting as a general court-martial to a bad-conduct discharge, confinement for 14 months, forfeiture of all pay and allowances, and reduction to E-1. In accordance with his pleas and pretrial agreement (PTA), Appellant was found guilty of four specifications of assault consummated by a battery, in violation of Article 128, UCMJ.
Orosco Opinion Here
NYT has a report on a social media video regarding military sexual assault that has been viewed over a million times, and which became so "viral" that it elicited a response from SECDEF.
NYT Article Here.
Initial video about her preparing to testify about her assault:
TikTok Video Here.
Video following her testimony where she learns that her alleged assaulter will not be separated:
Marine Corps Twitter Response Here.
NMCCA released its unanimous opinion in United States v. Nelson, siding with Nelson, the appellant, and setting aside the conviction.
Nelson opinion here.
Nelson presents two issues of particular interest: (1) the adequacy of Article 31(b) warnings and (2) pleading requirements for an Article 133 charge that incorporates, or partially incorporates, another—in this case, an offense under Article 107, False Official Statements.
United States v. Hale
On February 4, 2021, in an unpublished opinion, AFCCA affirmed the findings and sentence of Airman Dylan S. Hale (Appellant).
Hale opinion here
Background & Convictions
Two incidents led to Appellant’s charges, both of which occurred the year after his enlistment and when he was 18-years-old. First, Appellant met a 16-year-old male, RV, when volunteering at a local Civil Air Patrol program. After Appellant sent RV multiple sexually themed text messages, RV and his father involved the police, who assumed RV’s identity for the purposes of communicating with Appellant. The police also introduced a fictitious minor into the conversation, who was purported to be a 14-year-old foster child. During their conversations, Appellant asked for photos of RV’s penis, and he made plans to meet the two boys at a local mall in order to have sex. When Appellant arrived at the mall, he was met by local law enforcement and AFOSI agents, leading to his convictions of two specifications of attempted sexual assault of a child and one specification of attempted receipt of child pornography. After Appellant’s arrest, AFOSI agents found 61 images of child pornography on Appellant’s external hard drive, leading to his conviction, contrary to his plea, of possession of child pornography.
Second, several months after Appellant’s arrest, he attended an on-base party where he became intoxicated. At the party, Appellant became frustrated with an acquaintance, CJC, after he denied that they had sex. Appellant tried to grab CJC’s head, missed, and then grabbed him by his shirt. Later that night, Appellant attempted to hit CJC with his vehicle, but instead struck CJC’s friend. Appellant then tried to flee the base—but the gate was closed. Just before he was detained by law enforcement at the gate, Appellant told his friend, CC, who had been with him all night, to lie about what happened. However, both the hit-and-run and their conversation was recorded by Appellant’s dashboard audio-visual recorder. These events led Appellant being convicted of two specifications of simple assault, two specifications of assault consummated by a battery, one specification of operating a vehicle while drunk, one specification of wrongfully leaving the scene of an accident, and one specification of willful dereliction of duty.
Finally, following the party, AFOSI agents searched a safe in Appellant’s room and found THC, along with two substances known as 3-FPM and dimethocaine. Appellant admitted that he ingested the latter two substances despite knowing that he was prohibited to do so. This led to his convictions of wrongful possession of THC and failure to obey a lawful general regulation proscribing possession of substances to alter mood or function.
 3-FPM is a chemically altered form of an appetite suppressant that is intended to boost mood and self-esteem. Dimethocaine is an anesthetic that produces effects similar to cocaine.
Scholarship Saturday: Our existing authorizations for use of military force (AUMF) are dead letter, they need to be repealed and replaced
On September 18, 2001, one week after 9/11, incensed by those “acts of treacherous violence committed against the United States and its citizens,” Congress passed a joint resolution which reads, in relevant part:
[T]he President is authorized to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons.
2001 Authorization for Use of Military Force (AUMF) (115 Stat. 224).
That joint resolution, Public Law 107-40, has been cited as our jus ad bellum for warfare all over the globe. On October 9, 2001, George W. Bush tied combat operations in Afghanistan explicitly to that provision. House Document 107-31, 107th Congress, 1st Session. Twelve years later, on June 14, 2013, the Obama administration cited that Public Law again as its justification for providing “limited technical support to French forces” operating in Somalia against the terrorist group, Harakat al-Shabaab al-Mujahideen (translates as “Mujahideen Youth Movement,” commonly called “al-Shabaab”). That latter use of the authorization aptly illustrates the “slippery slope” nature of how the Executive Branch has employed Public Law 107-40.
Tuesday, February 16, 2021
Order Granting Petition for Review
No. 21-0086/AR. U.S. v. Ronald C. Givens. CCA 20190132. 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 MILITARY JUDGE ERRED IN DENYING THE DEFECTIVE PREFERRAL/UNLAWFUL COMMAND INFLUENCE MOTION ON PROCEDURAL GROUNDS.
ACCA opinion here.
A military judge sitting as a general court-marital convicted appellant, consistent with his plea, of one specification of assault consummated by a battery, in violation of Article 128, Uniform Code of Military Justice, 10 U .S.C. $ 928 (2012 & Supp. IV 2016) [UCMJ]. On 1 March 2019, an enlisted panel sitting as a general court martial convicted appellant, contrary to his pleas, of one specification each of making a false official statement, larceny of military property, assault consummated by a battery, communicating a threat, and child endangerment, in violation of Articles 107, 121, 128 and 134, UCMJ. Appellant was sentenced to confinement for 90 days, forfeiture of $1,680 pay per month for one month, reduction to E-1, and a bad-conduct discharge. Appellant was acquitted of one specification of assault consummated by a battery and one specification of adultery in violation of Articles 128 and 134, UCMJ.
ACCA does not discuss the UCI claim (likely a Grosty?. The court does however set aside the reckless endangerment conviction, reassesses the sentence for the remaining convictions, and approves the sentence.
United States v. Cunningham is headed to AFCCA.
The sentencing phase of the court-martial of Senior Airman James T. Cunningham ended late Feb. 18, with the military judge sentencing SrA Cunningham to serve 18 years in a military prison, be reduced to the grade of Airman Basic, forfeit all pay and allowances, and to be discharged from the United States Air Force with a Dishonorable Discharge.
Note. ACCA’s pending cases are available here (272).
United States v. Valentin. Appellant alleged the MJ abused his discretion because he did not grant a mistrial after the government introduced uncharged misconduct through its witness. Appellant was charged with diverse specifications and occasions of child sex offenses and CP. There were 14 specifications alleging a separate specific act and time.
1. Pretrial asked that the witnesses be limited to talking about only the one specification at a time.
2. The TC twice said that’s what they were going to do.
4. While TC tried to limit the testimony the witness “Nonetheless, strayed into general descriptions of abusive behavior—to which the defense objected.
5. After the fifth objection, the defense moved for a mistrial—which was denied.
6. “The military judge denied the motion for mistrial and deferred issuing an instruction, electing to hear “how the rest of the testimony goes” before determining “what if anything needs to be stricken from testimony.””
7. ACCA found the “To the degree such testimony was improper, we find the military judge’s remedial actions and provided instructions appropriately ameliorated any prejudice to appellant and ensured the fairness of the proceeding.”
8. Affirmed, because
Appellant has failed to make any colorable showing that the members were unable to disregard the inadmissible evidence in accordance with the military judge’s instructions or the military judge’s remedial actions failed to protect the fairness of appellant’s trial. See Short, 77 M.J. at 151. Appellant has failed to establish clear evidence that the military judge abused his discretion in denying appellant’s motion for a mistrial, and we “will not disturb [his] decision.” Short, 77 M.J. at 152.
9. The ACCA relies on the appellate trope that the members were presumed to have followed the MJ’s instructions.
"This is an action for collateral review of an unconstitutional conviction by a general court-martial. The case raises two basic due process issues: (a) whether the military courts erred in failing to remedy unlawful command influence (UCI) by former President Donald J. Trump and the late Senator John S. McCain, and (b) whether the military judge had a duty to disclose that he had applied for a lucrative job with the Department of Justice (DOJ). The scandalous meddling in a specific case by leaders of the political branches—one of whom was Commander in Chief of the armed forces—would never be tolerated if the proceeding had been a criminal prosecution in this or any other federal district court and should not be tolerated in a court-martial. The circumstances surrounding the second issue are more egregious than those presented in In re Al-Nashiri, 921 F.3d 224 (D.C. Cir. 2019)."
For your PACER convenience, the case is: 1:21-cv-00418
"While one might think that every criminal defendant in the United States has the opportunity to eventually appeal their conviction to the Supreme Court, Congress has largely blocked the path of perhaps the most deserving category of defendants: military personnel convicted at courts-martial. This is because under the 1983 law granting certiorari jurisdiction over military cases, only court-martial convictions that are granted review by the nation’s highest military court may be appealed; those in which that court denies review are excluded from access to the Supreme Court.
In this Article, we argue that this jurisdictional limitation is both bad policy and unconstitutional for several reasons, and that Congress should remove it. Whether or not a court would find the limitation unconstitutional is not the point. Congress has an independent obligation to avoid violating constitutional norms. By delegating to an executive branch court—the United States Court of Appeals for the Armed Forces (CAAF)—the power to determine the Supreme Court’s jurisdiction over court-martial appeals, Congress violated the separation of powers. In carving out a comparatively small class of cases as non-reviewable for the ostensible purpose of reducing the Supreme Court’s workload, Congress acted irrationally and violated equal protection. By making this category nearly coterminous with the universe of military cases (since almost all are denied review by CAAF), and conferring on that court a vague and non-reviewable standard for granting review, Congress violated the Exceptions Clause. Finally, by providing for Supreme Court jurisdiction over cases in which a Judge Advocate General certifies a case for review, but not over those in which an accused seeks review, the system unfairly provides asymmetric access to justice in favor of the government."
Yesterday I was perusing Gene Fidell's Military Justice: A Very Short Introduction and noticed a startling figure: there are about 50x more NJPs than there are courts-martial. I also happened to be reading Criminal Municipal Courts by Alexandra Natapoff, wherein she concludes: "These hybrid institutions...pose thorny conceptual challenges: they are stand-alone judicial entities that are also arms of municipal government operating under reduced constitutional constraints as they mete out criminal convictions. As such, they create numerous tensions with modern norms of due process, judicial independence, and other traditional indicia of criminal court integrity." Could the same be said of NJPs? While they may not be technically "criminal," they certainly purport to be "punishing."
No one talks much about what happens in these institutions, but maybe we should start. Anecdotes welcome!
CAAF today issued its opinion in United States v. Harpole on revisit. In this per curiam opinion Judge Maggs wrote for himself and Senior Judge Crawford concurring in the judgment but for different reasons.
At Harpole's visit to CAAF they remanded for a Dubay hearing to get the facts on a suppression issue not raised at trial but raised on appeal via an IAC claim.
Appellant claims the statements he made to Yeoman First Class (YN1) HN, the victim advocate, were in fact inadmissible at his court-martial because she did not first advise him of his rights
The question is, on the facts, whether a victim advocate was required to give Article 31(b) warnings, failed to do so, which made the Appellant's statements to her inadmissible. Agreeing with robust findings of the Dubay judge, CAAF finds
YN1 N did not do anything that suggested that she was acting for law enforcement or disciplinary purposes: she did not take notes, order Appellant or SNBM Childers to answer questions or write statements, or reach out to the Coast Guard Investigative Service with a report. Harpole, 79 M.J.
On the other hand, Judge Maggs took a different view.
I also would affirm the CGCCA, but I would do so on the basis of the Government’s first argument. At a DuBay1 hearing, a military judge found as a fact that Appellant did not make any incriminating statements in response to the victim advocate’s questions. That should be the end of the matter. I would not use this case to set a precedent on the much more complicated question of whether victim advocates act for law enforcement or disciplinary purposes.
The CAAF may well be right, but I think they are wrong on policy grounds (which I realize they do not decide).
"The United States needs to improve accountability for its service members’ war crimes. President Donald J. Trump dangerously intensified a growing national misunderstanding regarding the critical nexus between compliance with the laws of war and the health and efficacy of the U.S. military. This Article pushes back against such confusion by demonstrating why compliance with the laws of war, and accountability for violations of these laws, together constitute vital duties owed to our women and men in uniform.
This Article reveals that part of the fog of war surrounding criminal accountability for American war crimes is due to structural defects in American military law. It analyzes such defects, including the military’s failure to prosecute war crimes as war crimes. It carefully highlights the need for symmetry between the disparate American approaches to its enemies’ war crimes and its own service members’ battlefield offenses.
To help close the current war crimes accountability deficit, we propose a comprehensive statutory remedial scheme that includes: the enumeration of specific war crimes for military personnel analogous to those applicable to unlawful enemy belligerents as found in the Military Commissions Act; the formal addition of command responsibility liability doctrine to military criminal law; the provision of criminal defenses relevant to war crimes allegations; and the extension of court-martial jurisdiction over all enemy belligerents using the same enumerated war crimes proposed for U.S. service members."
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