“If suicide is indeed the worst enemy the armed forces have,” Senior Judge Walter T. Cox III said, “then why should we criminalize it when it fails?”

For 40 minutes Tuesday morning, Cox and the four other members of the Court of Appeals for the Armed Forces sounded deeply ambivalent about the complexities involved in prosecuting members of the military who try to kill themselves. While several judges sounded skeptical about the government’s claim that Caldwell’s actions brought discredit to the Marine Corps, judges also sounded hesitant about ruling out prosecution altogether.

“I question whether it’s up to us to say that under no circumstance can someone be prosecuted,” Judge Scott W. Stucky said. “Isn’t that up to Congress?”

Congress and the White House might, in fact, get into the act.