Military Law Review, Volume 223, Issue 3, 2015
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Volume 223 Issue 3 2015 U.S. DEP’T OF ARMY PAMPHLET 27-100-223-3 PAMPHLET ARMY OF DEP’T MILITARY LAW REVIEW ARTICLES OUT OF FOCUS: EXPANDING THE DEFINITION OF CHILD PORNOGRAPHY IN THE MILITARY Major Kenneth W. Borgnino MILITARY LAW REVIEW LAW MILITARY THE SEARCH FOR STATUS: CHARTING THE CONTOURS OF COMBATANT STATUS IN THE AGE OF ISIS Lieutentant Colonel R. Aubrey Davis III HUMANITARIAN INTERVENTION IN SYRIA: IS CRISIS RESPONSE AND LIMITED CONTINGENCY OPERATIONS THE SOLUTION? Major William D. Hood THE CODE INDICTED: WHY THE TIME IS RIGHT TO IMPLEMENT A GRAND JURY PROCEEDING IN THE MILITARY Major John G. Doyle JUS IN BELLO FUTURA IGNOTUS: THE UNITED STATES, THE INTERNATIONAL CRIMINAL COURT, AND THE UNCERTAIN FUTURE OF THE LAW OF ARMED CONFLICT Lieutenant Colonel James T. Hill BECOMING A HARDER TARGET: UPDATING MILITARY FIREARMS POLICIES TO COMBAT ACTIVE SHOOTERS Major Anthony M. Osborne VOLUME 223 • 2015 Department of the Army Pamphlet 27-100-223-3 Military Law Review Volume 223 Issue 3 2015 CONTENTS Articles Out of Focus: Expanding the Definition of Child Pornography in the Military Major Kenneth W. Borgnino 499 The Search for Status: Charting the Contours of Combatant Status in the Age of ISIS Lieutenant Colonel R. Aubrey Davis III 556 Humanitarian Intervention in Syria: Is Crisis Response and Limited Contingency Operations the Solution? Major William D. Hood 610 The Code Indicted: Why the Time is Right to Implement a Grand Jury Proceeding in the Military Major John G. Doyle 629 Jus in Bello Futura Ignotus: The United States, the International Criminal Court, and the Uncertain Future of the Law of Armed Conflict Lieutenant Colonel James T. Hill 672 Becoming a Harder Target: Updating Military Firearms Policies to Combat Active Shooters Major Anthony M. Osborne 726 i Headquarters, Department of the Army, Washington, D.C. Pamphlet No. 27-100-223-3, 2015 Military Law Review Volume 223 Issue 3 Board of Editors Colonel James F. Garrett Dean, The Judge Advocate General’s School Lieutenant Colonel May Nicholson Chair, Administrative and Civil Law Department Major Laura O’Donnell Director, Professional Communications Program Captain Vanessa R. Asmus Editor Major T. Scott Randall Contributing Editor Since its inception in 1958 at The Judge Advocate General’s School, U.S. Army, in Charlottesville, Virginia, the Military Law Review has encouraged a full and frank discussion of legislative, administrative, and judicial principles through a scholarly examination of the law and emerging legal precepts. In support of that mission, the Military Law Review publishes scholarly articles that are relevant to, and materially advance, the practice of law within the military. The Military Law Review does not promulgate official policy. An article’s content is the sole responsibility of that article’s author, and the opinions and conclusions that are reflected in an article are those of the author and do not necessarily reflect the views of the U.S. government, the Department of Defense, the Department of the Army, The Judge Advocate General’s Corps, The Judge Advocate General’s Legal Center and School, or any other governmental or non-governmental agency. ii WEBSITE: The Military Law Review is available at http://www.jagcnet.army.mil/MLR. COPYRIGHT: Unless noted in an article’s title, all articles are works of the United States Government in which no copyright subsists. When copyright is indicated in the title, please contact the Military Law Review at MLREditor@jagc-smtp.army.mil for copyright clearance. SUBSCRIPTIONS: Interested parties may purchase private subscriptions from the Superintendent of Documents, United States Government Printing Office, Washington, D.C. 20402, at (202) 512-1800. 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INQUIRIES AND CHANGE OF ADDRESS INFORMATION: The Superintendent of Documents, and not the Editors of the Military Law Review, is solely responsible for the individual paid subscription service. For inquires and change of address for individual paid subscriptions, fax your mailing label and new address to 202-512-2250, or send your mailing label and new address to the following address: United States Government Printing Office Superintendent of Documents ATTN: Chief, Mail List Branch Mail Stop: SSOM Washington, DC 20402 v MILITARY LAW REVIEW Volume 223 Issue 3 OUT OF FOCUS: EXPANDING THE DEFINITION OF CHILD PORNOGRAPHY IN THE MILITARY MAJOR KENNETH W. BORGNINO* The sexual abuse and exploitation of children rob the victims of their childhood, irrevocably interfering with their emotional and psychological development. Ensuring that all children come of age without being disturbed by sexual trauma or exploitation is more than a criminal justice issue, it is a societal issue.1 * Judge Advocate, United States Army. Presently assigned as the Special Victim Prosecutor for Fort Bliss, Texas, Fort Huachuca, Arizona, and White Sands Missile Range, New Mexico. J.D., 2005, Gonzaga University School of Law; B.A., Honors, 2002, Gonzaga University, L.L.M., 2015, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia. Previous assignments include Operational Law Attorney, III Corps, Fort Hood, Texas, 2006; Rule of Law Attorney, Multi–National Corps–Iraq, Camp Victory, Iraq, 2006-2008; Trial Counsel, III Corps and 1st Cavalry Division, Fort Hood Texas, 2008-2009; Chief, Military Justice, Multi–National Division- Baghdad, Camp Liberty, Iraq, 2009-2010; Administrative Law Attorney, 1st Cavalry Division, Fort Hood, Texas, 2010; Appellate Attorney, Government Appellate Division, United States Army Legal Services Agency, Fort Belvoir, Virginia, 2010-2013; Chief, Branch IV, Government Appellate Division, United States Army Legal Services Agency, Fort Belvoir, Virginia, 2013-2014; Student, 63d Judge Advocate Officer Graduate Course, The Judge Advocate General’s School, United States Army, Charlottesville, Virginia, 2014-2015. Member of the bars of Washington, Army Court of Criminal Appeals, Court of Appeals for the Armed Forces, and the Supreme Court of the United States. This article was submitted in partial completion of the Master of Laws requirements of the 63d Judge Advocate Officer Graduate Course. 500 MILITARY LAW REVIEW [Vol. 223 There can be no keener revelation of a society’s soul than the way in which it treats its children.2 I. Introduction You are the Special Victim Prosecutor (SVP) stationed at Fort Wherever. You receive a call from the Special Agent in Charge (SAC) at the local Criminal Investigation Command (CID)3 office asking you to review images of suspected child pornography seized from a servicemember’s laptop.