Military Lawyers

Yes. A service member can be prosecuted for improperly accessing records even if nothing was changed, deleted, or damaged. Many people assume that a computer offense requires sabotage, a planted virus, or some visible harm to the system. Under military law, that assumption is wrong. The act of reaching into a government system without authorization and pulling out information can itself be the crime, regardless of whether a single byte of data was altered.

The governing statute: Article 123

When the Military Justice Act of 2016 took effect on January 1, 2019, Article 123 of the Uniform Code of Military Justice was rewritten to address offenses concerning government computers. The current statute, codified at 10 U.S.C. 923, defines three distinct ways a person subject to the code can violate it. Reading them in order shows precisely why alteration is not required.

The first prohibition reaches a person who knowingly accesses a government computer with an unauthorized purpose and by doing so obtains classified information, with reason to believe the information could be used to the injury of the United States or to the advantage of a foreign nation, and then communicates or transmits that information to someone not entitled to receive it. This is the espionage-flavored variant, and it involves both access and onward disclosure.

The second prohibition is the one most relevant to the question of access without alteration. It reaches a person who intentionally accesses a government computer with an unauthorized purpose and thereby obtains classified or other protected information. Nothing in this provision requires that the data be modified, deleted, or harmed. The wrongful act is the unauthorized access coupled with obtaining the information.

The third prohibition reaches a person who knowingly causes the transmission of a program, information, code, or command and thereby intentionally causes damage without authorization to a government computer. This is the variant that does require harm, but it is only one of the three theories, and the government is not limited to it.

Why alteration is not an element of the access offense

The structure of Article 123 makes the point clearly. Congress created a separate, damage-based offense in the third subsection. If unauthorized access always required damage, that third subsection would be redundant. Instead, the second subsection criminalizes obtaining classified or protected information through unauthorized access standing alone. The harm the law guards against is the breach of confidentiality and the …

Yes. A court-martial panel can consider a service member’s combat deployment history as part of the mitigation evidence it weighs during sentencing. The military sentencing system is built to consider the whole person, and an accused’s record of deployment, combat service, and the experiences that came with it falls comfortably within the matters the defense may present and the panel may take into account when deciding on an appropriate punishment.

The structure of military sentencing

A court-martial separates the determination of guilt from the determination of punishment. After findings of guilty, the proceeding moves to a presentencing phase governed by Rule for Courts-Martial 1001. That rule defines what the prosecution and the defense may present before the sentence is decided and gives the defense broad latitude to offer favorable information about the accused.

Under Rule for Courts-Martial 1001, the defense may present matters in extenuation and matters in mitigation. Matter in extenuation explains the circumstances surrounding the offense, while matter in mitigation is information that may lessen the punishment, including evidence of the accused’s background, character, and prior service. Combat deployment history naturally fits within this framework, both as part of the accused’s service record and as part of the personal background relevant to a fair sentence.

How combat deployment history enters the record

There are several legitimate avenues for getting this information before the panel.

First, the accused’s service record itself documents deployments, awards, and the character of prior service. Personnel records, including matters favorable to the accused, are part of what the sentencing authority considers, and combat tours and related decorations are typically reflected there.

Second, the defense may call witnesses during sentencing who can describe the accused’s deployment service, conduct under fire, leadership during operations, and the toll that combat may have taken. Supervisors, fellow service members, and others with personal knowledge can testify in extenuation and mitigation.

Third, the accused has the distinctive option to make an unsworn statement at sentencing, in which the accused may describe deployment experiences and their effects without being subject to cross-examination on that statement, or may instead testify under oath.

Why combat service can carry weight

Combat deployment history can matter to a panel for more than one reason. As mitigation, it speaks to the accused’s value as a service member, the sacrifices made, and the prospect for continued or rehabilitated service. A panel that learns the accused volunteered for …

In most courts-martial the answer is yes, particularly during the sentencing phase, where the rules deliberately open the door to a wide range of favorable information about the accused. Whether off-duty community service is admissible during the findings phase is a narrower question that depends on the charges and on the specific character trait at issue. Understanding the difference between these two phases is the key to understanding when a defense character witness may speak about volunteer work, charitable involvement, or other off-duty contributions.

Two different phases, two different rules

A court-martial is divided into a findings phase, where the panel or military judge decides guilt, and, if there is a conviction, a sentencing phase, where the panel or judge decides punishment. Character evidence is governed by different standards in each.

During findings, character evidence is controlled chiefly by the Military Rules of Evidence, especially Military Rule of Evidence 404 and Military Rule of Evidence 405. During sentencing, the governing authority is Rule for Courts-Martial 1001, which is far more permissive about the matters a defense may present.

Off-duty community service during sentencing

The sentencing phase is where references to off-duty community service most clearly belong. Rule for Courts-Martial 1001 allows the defense to present matters in extenuation and in mitigation. Matter in mitigation is information about the accused or the offense that may lessen the punishment, and it expressly includes evidence of the accused’s background, character, and reputation.

Off-duty community service fits comfortably within that category. A defense witness may testify that the accused coaches a youth sports league, volunteers at a food bank, mentors at-risk teenagers, or organizes charity drives in the local community. This kind of testimony is offered to show the panel that the person before them has contributed positively outside the workplace and is capable of rehabilitation. The defense may present this through live witnesses, and the accused may also raise it in a sworn or unsworn statement.

The practical limits at sentencing are relevance, the military judge’s authority to control the proceedings, and the rule against needlessly cumulative evidence. A witness should have a genuine basis to describe the community service, rather than repeating rumor, and the volume of such testimony can be reasonably managed by the judge.

Off-duty community service during findings

During the findings phase the question is more technical. Under Military Rule of Evidence 404(a), the accused may offer evidence of …

An ex parte communication is contact about a case between one side and the decision maker without the other side present or notified. In a court-martial, that means trial counsel, the prosecutor, communicating with the military judge about the case outside the presence and knowledge of the defense, or the reverse. The military justice system treats the judge’s neutrality as fundamental, so the line between a routine logistical message and an improper substantive contact is one that counsel and judges are expected to respect carefully. Understanding what makes such a communication improper helps a service member recognize when the fairness of a proceeding may have been compromised.

The core principle: the judge must remain neutral

A military judge presides as a neutral arbiter. Both the rules governing courts-martial and the judicial conduct standards that apply to military judges are built around the idea that the judge should not receive information about a contested case from one party that the other party cannot see and answer. The widely followed model standard for judicial conduct states the rule directly: a judge shall not initiate, permit, or consider ex parte communications, or consider other communications made outside the presence of the parties, concerning a pending or impending matter. That prohibition is mandatory, and it reaches not only communications the judge starts but also those the judge merely allows or takes into account.

For trial counsel, the corresponding professional obligation is not to seek to influence the judge by improper means or to communicate improperly with the tribunal about the merits. So both the judge and the prosecutor have independent duties that converge on the same point: substantive case communications must happen on the record and in the presence of, or with notice to, the defense.

What makes a communication improper

The decisive factors are subject matter and notice. A communication is improper when it concerns the substance or merits of the pending case and is made to the judge without the defense present or notified, in a way that could give one side an advantage. Examples of the kind of contact that crosses the line include trial counsel privately discussing the strength of the evidence, the credibility of a witness, an anticipated ruling, sentencing considerations, or strategy with the judge while the defense is absent and unaware. A private conversation that touches the disputed issues the judge will decide is the classic improper …

Solicitation in the military is charged under Article 82, Uniform Code of Military Justice (10 U.S.C. 882). The question of whether a broad statement to a group, such as a general instruction or exhortation, can support a solicitation charge turns on the specific elements the government must prove. The short answer is that vague or generalized remarks rarely qualify. Article 82 requires a genuine request or advice that another person commit a defined offense, made with the intent that the offense actually occur. General group instructions can become solicitation only when they cross from abstract encouragement into a serious request directed at the commission of a particular crime.

What Article 82 requires

Article 82 prohibits soliciting or advising another person to commit an offense under the UCMJ. To convict, the government must prove that the accused solicited or advised a certain person or persons to commit a particular offense, and that the accused did so with the specific intent that the offense be committed. The statute singles out certain grave offenses, such as desertion, mutiny, misbehavior before the enemy, and sedition, for enhanced treatment, while solicitation of other offenses is also punishable. The unifying requirement across all of these is intent: the accused must actually want the solicited crime to happen.

The “serious request” standard

The decisive question in most solicitation cases is whether the words or conduct can reasonably be construed as a serious request or advice to commit an offense. This standard does most of the work in separating criminal solicitation from speech that merely sounds inflammatory. Joking, sarcasm, venting, hyperbole, and abstract political or ideological statements are not solicitation, because they do not reflect a genuine intent that a listener go commit a crime. A statement that on its face urges someone to do something unlawful may still fall short if the surrounding circumstances show it was not meant seriously.

Why general group instructions are usually not enough

A broad instruction addressed to a group presents two recurring problems for the government. First, generalized encouragement often lacks the specificity that Article 82 demands. The offense must be a defined UCMJ offense, and the words must reasonably tend toward its commission, not merely express a mood, an attitude, or a general grievance. Second, the intent element becomes harder to establish when the remark is diffuse. The further a statement drifts from a concrete request that identifiable people commit …

People searching for how the Uniform Code of Military Justice defines “coercion” under Article 120 are often surprised by the answer: the word “coercion” does not appear in the statute at all. Article 120, codified at 10 U.S.C. 920, never uses that term as a defined element. Instead, the conduct most people think of as coercion is reached through other defined concepts, principally “force,” “threatening or placing that other person in fear,” and the statutory treatment of consent. Understanding that distinction is the first step to understanding how these prosecutions actually work.

Why “Coercion” Is the Wrong Word to Search For

In ordinary speech, coercion describes pressuring someone into doing something they would not otherwise do. Article 120 does criminalize sexual acts and sexual contact accomplished through pressure, but it expresses that idea through specific statutory phrases rather than a single label. Because the statute is built from defined terms, military prosecutors must prove the precise theory charged, and defense counsel can hold them to that exact language. A loose argument about “coercion” in the abstract does not satisfy the statute. The government must fit the facts into one of the defined methods Article 120 actually lists.

The Defined Terms That Capture Coercive Conduct

Article 120 organizes its offenses by the means used to accomplish the act. Several defined terms carry the weight of what most observers would call coercion.

“Force” is defined to include the use of a weapon, the use of physical strength or violence sufficient to overcome, restrain, or injure a person, or inflicting physical harm sufficient to coerce or compel submission by the victim. Notably, the statutory definition of force is one of the only places the root word “coerce” appears, and it appears as a description of what physical force can accomplish, not as a separate offense.

“Unlawful force” is defined as an act of force done without legal justification or excuse.

“Threatening or placing that other person in fear” is defined as a communication or action that is of sufficient consequence to cause a reasonable fear that noncompliance will result in the victim or another person being subjected to the wrongful action contemplated by the communication or action. This is the provision that captures coercion by threat. The threat need not be of physical violence; the test is whether the communication or action would cause a reasonable fear of the wrongful consequence described.

How

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Article 88, Uniform Code of Military Justice (10 U.S.C. 888), makes it an offense for a commissioned officer to use contemptuous words against certain high officials. The statute names the President, the Vice President, Congress, the Secretary of Defense, the Secretary of a military department, the Secretary of Homeland Security, and the Governor or legislature of any State, Commonwealth, or possession in which the officer is on duty or present. Because the article reaches speech, the question of when words rise to the level of “contempt” is delicate, and courts have developed standards to separate punishable contemptuous expression from protected criticism. The analysis turns on the elements of the offense, the meaning of “contemptuous,” and the constitutional limits recognized in the governing case law.

Who and what the article covers

Article 88 applies only to commissioned officers, not to enlisted members, and it protects only the specific officials and bodies the statute lists. To establish the offense, the prosecution must prove that the accused was a commissioned officer, that the accused used certain words against one of the named officials or legislatures, that the words came to the knowledge of a person other than the accused through some act of the accused, and that the words were contemptuous, either in themselves or because of the circumstances in which they were used. The requirement that the words reach someone else means that purely private, uncommunicated thoughts are not within the article’s scope.

The meaning of “contemptuous”

The decisive element is whether the words are “contemptuous.” Contemptuous words are those that are insulting, rude, and disdainful, or that otherwise disrespectfully attribute to the official a quality of meanness, disreputableness, or worthlessness. The inquiry is not whether the officer disagreed with the official or criticized a policy, but whether the language demeans the official in this disrespectful, derogatory sense. Courts examine the words themselves and the circumstances in which they were used, since a statement may be contemptuous on its face or may become contemptuous given its context.

Two features of the doctrine are notable. First, it is immaterial whether the contemptuous words are used against the official in an official or a private capacity; the focus is on the disrespectful character of the words, not the setting. Second, truth is not a defense. Whether the contemptuous assertions are accurate or inaccurate does not bear on guilt, because the offense punishes the contemptuous …

Article 31 of the Uniform Code of Military Justice (UCMJ) is the military’s self-incrimination protection, and it is broader than the familiar civilian Miranda warning. When investigators or anyone subject to the UCMJ question a suspect without the required advisement, the resulting statement is vulnerable. Defense counsel can move to suppress statements obtained in violation of Article 31, and the motion can reach multiple interviews and even some evidence those interviews produced. But “all” is the word to watch. Suppression is decided interview by interview against legal standards, so a single motion can challenge every tainted interview, yet not every interview will necessarily be excluded.

What Article 31 requires

Article 31(b) provides that no person subject to the UCMJ may interrogate or request any statement from an accused or a person suspected of an offense without first informing that person of the nature of the accusation, advising that the person does not have to make any statement, and warning that any statement made may be used as evidence against the person. Unlike the civilian rule, this warning obligation is not limited to custodial interrogation by police. It applies whenever a person subject to the code questions a suspect in an official, law-enforcement, or disciplinary capacity. That broad reach is why military interviews so often raise Article 31 issues.

Article 31(d) makes the consequence explicit: a statement obtained in violation of the article, or through coercion, unlawful influence, or unlawful inducement, may not be received in evidence against the accused.

The suppression mechanism: Military Rule of Evidence 304

The vehicle for excluding such statements is Military Rule of Evidence (MRE) 304, which governs confessions and admissions. It defines an involuntary statement as one obtained in violation of the self-incrimination privilege or the Due Process Clause, in violation of Article 31, or through coercion, unlawful influence, or unlawful inducement, and it bars the use of involuntary statements against the accused. To invoke it, the defense files a written motion to suppress before trial, identifying the statements and the basis for exclusion. Once a proper challenge is raised, the burden shifts to the government to establish by a preponderance of the evidence that the statement is admissible, for example by showing that proper warnings were given or that the person was not a suspect entitled to them.

A single motion can cover multiple interviews

There is no rule limiting a suppression motion to …

When investigators or commanders search a service member’s barracks room, vehicle, phone, or person, the military justice system asks a threshold question before that evidence ever reaches a court-martial panel: was the search lawful? If the answer is no, because there was no valid command authorization and no other exception applies, the evidence may be excluded. The military version of the exclusionary rule lives primarily in Military Rule of Evidence 311, and it operates differently from the civilian rule in several important ways. Understanding how it works requires looking at who may authorize a search, what makes an authorization defective, and how the rule weighs exclusion against the cost to the justice system.

Where search authority comes from in the military

The military does not use civilian search warrants signed by judges in most situations. Instead, Military Rule of Evidence 315 allows a commander with control over the place or person to be searched to issue a search authorization. That commander stands in roughly the position a magistrate occupies in the civilian world. The authorization must rest on probable cause, which Rule 315 defines as a reasonable belief that the person, property, or evidence sought is located in the place to be searched, judged on the totality of the circumstances.

A critical requirement is that the official issuing the authorization be neutral and detached. A commander who is so personally involved in the investigation, or so committed to a particular outcome, that the commander cannot weigh the facts impartially is not a proper authorizing authority. When that happens, the authorization is defective, and a search conducted under it can be treated as a search without proper command authorization.

What the exclusionary rule actually says

Military Rule of Evidence 311 is the gatekeeper. In general terms, evidence obtained as a result of an unlawful search or seizure is inadmissible against the accused if the accused had a reasonable expectation of privacy in the place or item searched, the accused makes a timely motion to suppress, and exclusion serves the purpose of deterring future unlawful searches. The rule is built around deterrence. Its goal is to discourage the government from conducting searches that violate constitutional or regulatory limits, not simply to punish technical mistakes.

So when a search is conducted without proper command authorization, the defense raises a motion to suppress. The accused must show a privacy interest and that the search …

When a service member’s case involves an arrest, an investigation, or evidence collection by civilian police, the testimony of those officers can be decisive. A defense may need a city detective to explain how a statement was taken, or the government may need a local officer to authenticate a seizure. Because civilian police are not subject to military authority, a natural question arises: can their testimony be compelled in a court-martial at all? The answer is yes. The military justice system provides compulsory process that reaches civilian witnesses, including law enforcement officers, through the same subpoena mechanism used for any other civilian.

The right to compulsory process

The military justice system guarantees the prosecution, the defense, and the court-martial an equal opportunity to obtain witnesses and other evidence, including the benefit of compulsory process. This statutory guarantee implements the accused’s constitutional right to compulsory process for obtaining witnesses. The principle does not stop at the gate of the installation. It extends to civilians whose testimony is relevant and necessary, and civilian law enforcement officers are within its reach. A court-martial is a federal proceeding, and its compulsory process carries federal force against civilian witnesses.

The standard: relevant and necessary

A party seeking to compel a civilian officer must show that the testimony is relevant and necessary. Relevant means the testimony bears on a fact in issue, whether on the merits or on an interlocutory question such as the admissibility of a statement or the legality of a search. Necessary generally means the testimony is not merely cumulative and would contribute to the requesting party’s case in a positive way. For a civilian officer, this often means explaining the steps of an arrest or investigation, the circumstances of a confession, or the handling of physical evidence. A request that ties the officer’s expected testimony to a specific contested issue is far stronger than a general desire to call the police.

The subpoena process

Civilian witnesses, including law enforcement officers, are summoned by subpoena. The subpoena is the compulsory process tool the rules provide for persons not subject to military law. It directs the witness to appear and testify, and it can also direct production of documents or other evidence in the witness’s control, such as reports, body-camera footage, or evidence logs. The request must identify the witness and, where documents are sought, describe them with reasonable particularity. Because a civilian cannot …