Everybody knows that the average American citizen has the right to remain silent, but is that true for military personnel?
The answer is yes. When individual servicemembers are interviewed by military law-enforcement—such as Army Criminal Investigation Command (CID), Air Force Office of Special Investigations (OSI), Naval Criminal Investigative Service (NCIS), Marine Criminal Investigative Division (CID) or Coast Guard Investigative Service (CGIS) —they are informed of their rights under UCMJ Article 31(b) which includes the right to not answer questions asked by law-enforcement. This is an important protection, and we advise individuals to take advantage of it.
This right has a strong military history. Many do not know that the protections of Article 31(b) are actually greater than those for civilians, and even predated Miranda. When a police officer “reads them their rights,” he or she is following law created by the Supreme Court in its 1966 decision in Miranda v. Arizona. Even though “Miranda warnings” were new to America in the 1960s, military personnel had been getting a similar warning for years thanks to Article 31(b), and Article 31(b) actually influenced the Supreme Court’s decision in Miranda.
So, if individual servicemembers don’t have to talk to military law enforcement, does this mean that they don’t have to go when their leadership tells them that military law enforcement wants to talk to them? Can an individual Sailor, Coastie, Marine, Airman, or Soldier simply not go to the law enforcement office?
The answer is no. Even though servicemembers can opt to not answer questions, they are still required to report to a military law enforcement office when told to do so. Why? Because the order to go report is a lawful order, and all servicemembers are always required to follow lawful orders. Just as a Marine can be ordered to go to the motor pool, that Marine can be ordered to go to the local NCIS office. That doesn’t mean, however, that the Marine must answer questions.
Talking to law enforcement is a big deal. Doing so without benefit of counsel is a bad idea. If you or someone you know has been told that military law enforcement wants to talk, the person should always report as ordered. Once there however, we highly recommend that servicemember exercise their rights and consult with a qualified military defense attorney before answering any questions. And remember, while it makes sense to not always answer questions of law enforcement, an attorney can’t help you if you don’t provide your lawyer with accurate information.
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