CORE CRIMINAL LAW SUBJECTS: Crimes: Article 104 - Aiding the Enemy

2009 (September Term)

United States v. Anderson, 68 M.J. 378 (charges of attempting to give intelligence to the enemy, attempting to communicate with the enemy, and attempting to aid the enemy did not preempt the charge of conduct prejudicial to good order and discipline or service discrediting conduct under the general article; the legislative history of Article 104, UCMJ, does not clearly indicate that Congress intended for offenses similar to those at issue to only be punishable under Article 104, UCMJ, to the exclusion of Article 134, UCMJ; furthermore, while the two charges in this case have parallel facts, as charged they are nonetheless directed at distinct conduct; the Article 104, UCMJ, charge was directed at appellant’s attempt to aid the enemy directly; the Article 134, UCMJ, charge was directed towards the distribution of sensitive material to individuals not authorized to receive it; unlike Article 104, UCMJ, the general offense as charged prohibits the dissemination of the information regardless of the intent behind that dissemination; if this distinction was not permissible in light of Article 104, UCMJ, Congress was free to clearly state that Article 104, UCMJ, supersedes Article 134, UCMJ, in this context). 

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