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To: OldDeckHand
It's then up to the trial judge to make a determination if that's factually correct

The judge? Or the Court. My understanding is that the Court is the judge of the facts, not the judge, Depending on the makeup of the Court, I'd think they'd be highly adverse to the judge telling them they were not to be the judge of defense's arguments, and that the accused would not be given every opportunity to present his case. I certainly would, regardless of the case, and senior officers tend to be more "protective" of their prerogatives and responsibilities than your typical civilian juror, way more. I've seen that myself in a very similar military environment (Judge, JAG prosecutor, JAG defense, Court or Panel (of which I was the junior member) just not a full Court Martial, but run pretty much the same.

108 posted on 04/22/2010 9:52:20 PM PDT by El Gato ("The second amendment is the reset button of the US constitution"-Doug McKay)
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To: El Gato
"The judge? Or the Court"

Per the MCM (and affirmed in New), the lawfulness of an order is a matter of law to be determined by the military judge.

111 posted on 04/22/2010 10:00:51 PM PDT by OldDeckHand
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To: El Gato
"My understanding is that the Court is the judge of the facts, not the judge,"

The Court evaluates evidence, the judge determines matters of law. As an example, it's not the Court that makes evidentiary ruling based on law, but the trial judge.

In this particular instance, the MCM makes the lawfulness of an order, not a matter of fact, but a matter of law.

113 posted on 04/22/2010 10:05:02 PM PDT by OldDeckHand
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