Pretrial confinement is the detainment of a suspect for a criminal offense. Pretrial confinement in the military shares some similarities to that in the civilian system. However, there are also marked differences.

When Can I Be Restrained?

Similar to civilian law, there must be probable cause in order for you to be restrained in the military. Probable cause is a reasonable belief that a service member has committed an offense.

What Happens if I Am Apprehended in the Military?

Service members who are apprehended are turned over to a member of command authority. Then the command decides whether to hold the apprehended in military jail (also called the brig, stockade, or confinement). The command also has the option of imposing pretrial restrictions, such as confining a soldier to his post or base, instead of confinement.

Who Can Order You to Be Confined in the Military?

Any military officer can order enlisted military personnel to be confined. The decision to confine a person is subject to review. The review of the decision must be made within 48 hours of confinement. Within 72 hours, the apprehended serviceman is entitled to have his commanding officer review whether his confinement is appropriate.

Requirements for Review

In order for confinement to stand, a "commander review" must confirm in writing:

  • Probable cause to believe that you have committed an offense
  • Probable cause that confinement was necessary
  • Probable cause to believe that lesser forms of restraint were inadequate

Also, a "magistrate review" must find in writing:

  • Probable cause to believe that you have committed an offense
  • Reason to believe that confinement was necessary from preponderance of evidence (51% or more)
  • Reason to believe that lesser forms of restraint were inadequate

Do I Need a Lawyer?

Consequences under military law are just as serious as they are under civilian law. You are entitled to have a military attorney appointed to represent you in any criminal or administrative action which has been initiated against you. Although it can be denied, you also have a right to request a specific military attorney in a Court-Martial. In some cases, you may be able to hire a civilian attorney with military law experience. Consulting with a military law lawyer would be prudent. An experienced lawyer could help explain defenses and resolve the claim against you.