Pretrial confinement is physical restraint, imposed by order of competent authority, depriving a person of freedom pending disposition of charges.

See Article 12 regarding the limitations on confinement of members of the armed forces of the United States in immediate association with enemy prisoners or other foreign nationals detained under the law of war.

Any person who is subject to trial by court-martial may be confined if the requirements of this rule are met.

See R.C.M. 201 and 202 and the discussions therein concerning persons who are subject to trial by courts-martial.

Who may order confinement. See R.C.M. 304(b)

No provost marshal, commander of a guard, or master at arms may refuse to receive or keep any confinee committed to his charge by a commissioned officer of the armed forces, when the committing officer furnishes a statement, signed by him, of the offense charged against the confinee. See Article 11(a).

No person may be ordered into pretrial confinement except for probable cause. Probable cause to order pretrial confinement exists when there is a reasonable belief that:

An offense triable by court-martial has been committed;

The person confined committed it; and

Confinement is required by the circumstances.

The person who directs confinement should consider the matters discussed under subparagraph (i)(2)(B) of this rule before ordering confinement. However, the person who initially orders confinement is not required to make a detailed analysis of the necessity for confinement. It is often not possible to review a person’s background and character or even the details of an offense before physically detaining the person. For example, until additional information can be secured, it may be necessary to confine a person apprehended in the course of a violent crime. “When a person subject to this chapter is charged only with an offense that is normally tried by summary court-martial, the person ordinarily shall not be ordered in confinement.” Article 10(a)(2). Confinement should be distinguished from custody. Custody is restraint which is imposed by apprehension and which may be, but is not necessarily, physical. Custody may be imposed by anyone authorized to apprehend (see R.C.M. 302(b)), and may continue until a proper authority under R.C.M. 304(b) is notified and takes action. Thus, a person who has been apprehended could be physically restrained, but this would not be pretrial confinement in the sense of this rule until a person authorized to do so under R.C.M. 304(b) directed confinement.

Each person confined shall be promptly informed of:

The nature of the offenses for which held;

The right to remain silent and that any statement made by the person may be used against the person;

The right to retain civilian counsel at no expense to the United States, and the right to request assignment of military counsel; and

The procedures by which pretrial confinement will be reviewed.

If a person who is alleged to have committed a covered offense is ordered into or released from pretrial confinement, the individual ordering confinement or authorizing release shall immediately notify a special trial counsel in accordance with regulations prescribed by the Secretary concerned.

If requested by the confinee and such request is made known to military authorities, military counsel shall be provided to the confinee before the initial review under R.C.M. 305(j)or within 72 hours of such a request being first communicated to military authorities, whichever occurs first. Counsel may be assigned for the limited purpose of representing the accused only during the pretrial confinement proceedings before charges are referred. If assignment is made for this limited purpose, the confinee shall be so informed. Unless otherwise provided by regulations of the Secretary concerned, a confinee does not have a right under this rule to have military counsel of the confinee’s own selection.

Any commander of a confinee, an officer appointed under regulations of the Secretary concerned to conduct the review under R.C.M. 305(j) or (k), or, once charges have been referred, a military judge detailed to the court-martial to which the charges against the accused have been referred, may direct release from pretrial confinement. For purposes of this subsection (R.C.M. 305(h)), “any commander” includes the immediate or higher commander of the confinee and the commander of the installation on which the confinement facility is located.

Unless the commander of the confinee ordered the pretrial confinement, the commissioned, warrant, noncommissioned, or petty officer into whose charge the confinee was committed shall, within 24 hours after that commitment, cause a report to be made to the commander that shall contain the name of the confinee, the offenses charged against the confinee, and the name of the person who ordered or authorized confinement.

This report may be made by any means. Ordinarily, the immediate commander of the confinee should be notified. In unusual cases, any commander to whose authority the confinee is subject, such as the commander of the confinement facility, may be notified. In the latter case, the commander so notified must ensure compliance with R.C.M. 305(i)(2).

Not later than 72 hours after the commander’s ordering of a confinee into pretrial confinement or, after receipt of a report that a member of the commander’s unit or organization has been confined, whichever situation is applicable, the commander shall decide whether pretrial confinement will continue. A commander’s compliance with this paragraph (R.C.M. 305(i)(2)) may also satisfy the 48- hour probable cause determination of R.C.M. 305(j)(1), provided the commander is a neutral and detached officer and acts within 48 hours of the imposition of confinement under military control. Nothing in R.C.M. 305(d), this subparagraph (R.C.M. 305(i)(2)(A)), or R.C.M. (j)(1) prevents a neutral and detached commander from completing the 48-hour probable cause determination and the 72-hour commander’s decision immediately after an accused is ordered into pretrial confinement.

The commander shall direct the confinee’s release from pretrial confinement unless the commander believes upon probable cause, that is, upon reasonable grounds, that:

An offense triable by a court-martial has been committed;

The confinee committed it;

Confinement is necessary because it is foreseeable that:

The confinee will not appear at trial, pretrial hearing, or preliminary hearing, or

The confinee will engage in serious criminal misconduct; and

Less severe forms of restraint are inadequate. Serious criminal misconduct includes intimidation of witnesses or other obstruction of justice, serious injury of others, or other offenses which pose a serious threat to the safety of the community or to the effectiveness, morale, discipline, readiness, or safety of the command, or to the national security of the United States. As used in this rule, “national security” means the national defense and foreign relations of the United States and specifically includes: a military or defense advantage over any foreign nation or group of nations; a favorable foreign relations position; or a defense posture capable of successfully resisting hostile or destructive action from within or without, overt or covert.

If continued pretrial confinement is approved, the commander shall prepare a written memorandum that states the reasons for the conclusion that the requirements for confinement in R.C.M. 305(i)(2)(B) have been met. This memorandum may include hearsay and may incorporate by reference other documents, such as witness statements, investigative reports, or official records. This memorandum shall be forwarded to the 7-day reviewing officer under R.C.M. 305(j)(2). If such a memorandum was prepared by the commander before ordering confinement, a second memorandum need not be prepared; however, additional information may be added to the memorandum at any time.

A person should not be confined as a mere matter of convenience or expedience. Some of the factors which should be considered under this subsection are: (1) The nature and circumstances of the offenses charged or suspected, including extenuating circumstances; (2) The weight of the evidence against the confinee; (3) The confinee’s ties to the locale, including family, off-duty employment, financial resources, and length of residence; (4) The confinee’s character and mental condition; (5) The confinee’s service record, including any record of previous misconduct; (6) The confinee’s record of appearance at or flight from other pretrial investigations, trials, and similar proceedings; and (7) The likelihood that the confinee can and will commit further serious criminal misconduct if allowed to remain at liberty. Although the Military Rules of Evidence are not applicable, the commander should judge the reliability of the information available. Before relying on the reports of others, the commander must have a reasonable belief that the information is believable and has a factual basis. The information may be received orally or in writing. Information need not be received under oath, but an oath may add to its reliability. A commander may examine the confinee’s personnel records and police records, and may consider the recommendations of others. Less serious forms of restraint must always be considered before pretrial confinement may be approved. Thus the commander should consider whether the confine could be safely returned to the confinee's unit, placed on restriction, placed under arrest, or placed under conditions on liberty. See R.C.M. 304.

Review of the adequacy of probable cause to continue pretrial confinement shall be made by a neutral and detached officer within 48 hours of imposition of confinement under military control. If the confinee is apprehended by civilian authorities and remains in civilian custody at the request of military authorities, reasonable efforts will be made to bring the confinee under military control in a timely fashion.

Within 7 days of the imposition of confinement, a neutral and detached officer appointed in accordance with regulations prescribed by the Secretary concerned shall review the probable cause determination and necessity for continued pretrial confinement. In calculating the number of days of confinement for purposes of this rule, the initial date of confinement under military control shall count as one day and the date of the review shall also count as one day.

The review under this clause (R.C.M. 305(j)(2)(A)(i)) shall include a review of the memorandum submitted by the confinee’s commander under R.C.M. 305(i)(2)(C). Additional written matters may be considered, including any submitted by the confinee. The confinee and the confinee’s counsel, if any, shall be allowed to appear before the 7-day reviewing officer and make a statement, if practicable. A representative of the command may also appear before the reviewing officer to make a statement.

Except for Mil. R. Evid., Section V (Privileges) and Mil. R. Evid. 302 and 305, the Military Rules of Evidence shall not apply to the matters considered.

The requirements for confinement under R.C.M. 305(h)(2)(B) must be proved by a preponderance of the evidence.

A victim of an alleged offense committed by the confinee has the right to reasonable, accurate, and timely notice of the 7-day review; the right to confer with the representative of the command and counsel for the Government, if any; and the right to be reasonably heard during the review. However, the hearing may not be unduly delayed for this purpose. The right to be heard under this rule includes the right to be heard through counsel and the right to be reasonably protected from the confinee during the 7-day review. Notice of these rights shall be given to the victim, or victim’s counsel, if any, in accordance with regulations of the Secretary concerned.

Personal appearance by the victim is not required. A victim’s right to be reasonably heard at a 7-day review may also be accomplished telephonically, by video conference, or by written statement. The right to be heard under this rule includes the right to be heard through counsel, in those instances in which a victim is represented by counsel.

The 7-day reviewing officer may, for good cause, extend the time limit for completion of the review to 10 days after the imposition of pretrial confinement.

Upon completion of review, the reviewing officer shall approve continued confinement or order immediate release. If the reviewing officer orders immediate release, a victim of an alleged offense committed by the confinee has the right to reasonable, accurate, and timely notice of the release, unless such notice may endanger the safety of any person.

The 7-day reviewing officer’s conclusions, including the factual findings on which they are based, shall be set forth in a written memorandum. The memorandum shall also state whether the victim was represented by counsel, whether the victim was notified of the review, was given the opportunity to confer with the representative of the command or counsel for the Government and was given a reasonable opportunity to be heard. A copy of the memorandum and all documents considered by the 7-day reviewing officer shall be maintained in accordance with regulations prescribed by the Secretary concerned and provided to the accused or the Government on request.

The 7-day reviewing officer shall upon request, and after notice to the parties, reconsider the decision to confine the confinee based upon any significant information not previously considered.

Once the charges for which the accused has been confined are referred to trial, or in a pre-referral proceeding conducted in accordance with R.C.M. 309, the military judge shall review the propriety of pretrial confinement upon motion for appropriate relief.

The military judge shall order release from pretrial confinement only if:

The 7-day reviewing officer’s decision was an abuse of discretion, and there is not sufficient information presented to the military judge justifying continuation of pretrial confinement under R.C.M. 305(i)(2)(B);

Information not presented to the 7-day reviewing officer establishes that the confinee should be released under R.C.M. 305(i)(2)(B); or

The provisions of R.C.M. 305(j)(1) or (2) have not been complied with and information presented to the military judge does not establish sufficient grounds for continued confinement under R.C.M. 305(i)(2)(B).

Upon a motion for release from pretrial confinement, a victim of an alleged offense committed by the confinee has the right to reasonable, accurate, and timely notice of the motion and any hearing, the right to confer with counsel representing the Government, and the right to be reasonably heard. Inability to reasonably afford the victim these rights shall not delay the proceedings. The right to be heard under this rule includes the right to be heard through counsel. See R.C.M. 906(b)(8).

Upon sentencing, the military judge shall order administrative credit under R.C.M. 305(l) for any pretrial confinement served as a result of an abuse of discretion or failure to comply with the provisions of R.C.M. 305(g), (i), or (j).

The remedy for noncompliance with R.C.M. 305(g), (i), (j), or (k) shall be an administrative credit against the sentence adjudged for any confinement served as the result of such noncompliance. Such credit shall be computed at the rate of 1 day credit for each day of confinement served as a result of such noncompliance. The military judge may order additional credit for each day of pretrial confinement that involves an abuse of discretion or unusually harsh circumstances. This credit is to be applied in addition to any other credit to which the accused may be entitled as a result of pretrial confinement served. This credit shall be applied first against any confinement adjudged. If no confinement is adjudged, or if the confinement adjudged is insufficient to offset all the credit to which the accused is entitled, the credit shall be applied against hard labor without confinement using the conversion formula under R.C.M. 1003(b)(6), restriction, fine, and forfeiture of pay, in that order. For purposes of R.C.M. 305(l), 1 day of confinement shall be equal to 1 day of total forfeiture or a like amount of fine. The credit shall not be applied against any other form of punishment.

No person whose release from pretrial confinement has been directed by a person authorized in R.C.M. 305(h) may be confined again before completion of trial except upon discovery, after the order of release, of evidence or of misconduct which, either alone or in conjunction with all other available evidence, meets the criteria for confinement under R.C.M. 305(i)(2)(B).

See R.C.M. 304(b) concerning who may order confinement.

The Secretary of Defense may suspend application of R.C.M. 305(e)(3), (e)(4), (g), (i)(2)(A) or (C), or (j) to specific units or in specified areas when operational requirements of such units or in such areas would make application of such provisions impracticable.

R.C.M. 305(e)(3), (e)(4), (g), (i)(2)(C), and (j) shall not apply in the case of a person on board a vessel at sea. In such situations, confinement on board the vessel at sea may continue only until the person can be transferred to a confinement facility ashore. Such transfer shall be accomplished at the earliest opportunity permitted by the operational requirements and mission of the vessel. Upon such transfer, the memorandum required by R.C.M. 305(i)(2)(C) shall be transmitted to the reviewing officer under R.C.M. 305(j) and shall include an explanation of any delay in the transfer.

Under this paragraph, the standards for confinement remain the same (although the circumstances giving rise to the exception could bear on the application of those standards). Also, pretrial confinement remains subject to judicial review. The confinee’s commander still must determine whether confinement will continue under R.C.M. 305 (h)(2)(B). The suspension of R.C.M. 305(h)(2)(A) removes the 72-hour requirement because, in a combat environment, the commander may not be available to comply with it. The commander must make the pretrial confinement decision as soon as reasonably possible, however. (This provision is not suspended under paragraph (2) since the commander of a vessel is always available.) Operational exceptions to the requirements under R.C.M. 305 (e)(3) and (4) do not constitute exceptions to the notice requirements under Article 31(b).

Reasonable, accurate, and timely notice of the escape of the prisoner shall be provided to the victim of an alleged offense committed by the confinee for which the confinee has been placed in pretrial confinement or such victim’s counsel, if any, unless such notice may endanger the safety of any person.

For purposes of this rule, the term “victim of an alleged offense” has the same meaning as the term “victim of an offense under this chapter” in Article 6b.