In the military, a servicemember can be placed in pretrial confinement if there is probable cause (reasonable belief) that:
1.) an offense triable by a Court-martial has been committed;
2.) the person confined committed it; and
3.) confinement is required by the circumstances. See Rule for Court-Martial [RCM] 305(d) (Rules for Court-Martial are promulgated by Executive Order from the President of the United States as outlined in chapter 47 of title 10, United States Code (Uniform Code of Military Justice, 10 U.S.C. §§ 801–946)).
UnderRCM 305(h)(2)(B), within 72 hours of confinement, the servicemember’s commander must make a determination that it is reasonably foreseeable that the Soldier: will not appear at trial, pretrial hearing, or investigation, or will engage in serious criminal misconduct, and that lesser forms of restraint are inadequate.
Under RCM 305(i)(2) the servicemember’s continued confinement is to be reviewed by “a neutral and detached officer” within 7 days who reviews the “probable cause determination and necessity for continued pretrial confinement.” The requirements for continued confinement must be “proved by a preponderance of the evidence.” RCM 305(i)(2)(A)(iii).
There is no known military appellate mechanism to challenge and review the RCM 305(i)(2)(A)(iii), reviewing officer’s finding, and “neutral and detached” status until after the servicemember is charged and the charges are “referred” by the appropriate command to trial by the Military Judge. See RCM 305(j) (the first time that a Military Judge is able to review the servicemember’s confinement is only after the charges have been made and the charges are “referred” to trial to the Military Judge.) Once charges are referred, when determining whether to release the prisoner, the military judge should hold a de novo hearing. RCM 305(j)(1)(B); see also United States v.Gaither, 45 M.J. 349 (C.A.A.F. 1996).
Under Article 10 of the UCMJ [10 U.S.C. § 810] “When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.”
Under 28 U.S.C. § 2241(a) “Writs of habeas corpus may be granted by the Supreme Court, any justice thereof, the district courts and any circuit judge within their respective jurisdictions.”
A Writ is authorized if the prisoner “is in custody under or by color of the authority of the United States or is committed for trial before some court thereof…” 28 U.S.C. § 2241(c)(1).
The United States Supreme Court has discussed that it may be proper for civilian courts to intervene in military proceedings for “equitable intervention.” See Schlesinger v. Councilman, 420 U.S. 738, 761 (1975). Further, that such analysis would generally include situations such as “incarceration, or other deprivation of liberty…” Id. at 760.
As recently as 1999, the United State Supreme Court has outlined that military courts themselves are courts of limited jurisdiction and that they can only act in areas where expressly authorized. See e.g. Clinton v. Goldmsith, 526 U.S. 529 (1999.) In that case, the Supreme Court, in their unanimous decision, discussed the military courts limited jurisdiction and noted that a servicemember “may also have recourse to the federal trial court” and outlined the numerous cases and areas of law allowing civilian court intervention in military cases. Id.