Understanding Your Rights When Army CID or AirForce OSI Comes Knocking

By Colonel (Ret) Doug O’Connell

As Soldiers and Airmen, we’re conditioned to immediately comply with orders. The lives of our battle buddies might depend on unhesitatingly following commands. Starting on the first day of basic training we learn to respect and obey military authority. We belong to a warrior culture that values concepts like duty, integrity, and candor. These character traits make us valuable members of our unit, but do little to prepare us to protect our own rights when accused of misconduct.

We all want to believe that our military family wouldn’t treat us unfairly or conduct a biased investigation void of integrity. However, time and time again defendants are faced with the sad truth that military investigations are not fair or just.

If you find yourself confronted by military law enforcement, this article is designed to provide an overview of your legal rights. Each situation is unique, with different facts and different allegations. This article isn’t legal advice; it’s a review of some of your basic legal rights. The laws applicable to your specific situation can depend on a variety of factors, which is why it’s important to consult with an experienced Military Criminal Defense Attorney regarding your specific situation.

Agreeing to Talk to CID/OSI Agents & Answering Questions

When military investigative agents contact you, their questions may seem harmless at first. Sometimes the agents will be asking about other Soldiers or Airmen. Gradually, the questions may become more pointed and focused on you. Some service members who spoke with agents later reported that they really didn’t understand that they could refuse to answer the questions. Some service members cooperate because they didn’t have anything to hide. Almost all underestimated the seriousness of the situation and failed to grasp that they were the targets of a federal investigation that could land them in prison.

The government’s ability to prove misconduct often turns on a suspect’s understanding of the rules or regulations at a given point of time or why the servicemember did or didn’t do something. Cases can be won or lost on the government’s ability to prove intent. In many cases, agents can’t prove the servicemember did something intentionally without obtaining a statement from the suspect.

You should seriously consider speaking with an Attorney before speaking with federal agents. Each situation is different but in most cases, I tell my clients to politely and respectfully inform the Agent that they will be happy to cooperate, but they want to speak with their Attorney first. A trained and conscientious agent will cease questioning once you state you want to talk to your Attorney. However, in some investigations unscrupulous agents have attempted to shame former service members into waiving their rights and providing answers. Statements like “if you didn’t do anything wrong, you should have nothing to hide” or “involving an Attorney will only complicate things and make you look guilty of something.”

Title 10 Agents Don’t Have Any Jurisdiction Over National Guard Service Members

Assuming you are in the National Guard, serving your State Title 32 (state) status, CID & OSI Agents lack inherent jurisdiction to compel you to do anything. Under the law, you’re like a civilian to Title 10 investigators. In other words, they can’t order you to answer their questions, or do things like turn over documents or emails. Unfortunately, because this is a technical legal distinction in an era of “One Military, One Fight,” your National Guard unit commander may not clearly understand this. Military commanders have broad authority to conduct investigations and compel Soldiers under their command to do certain things. However, your commander may not fully understand the nature of Title 32 status and wrongly order you to submit to the demands of Title 10 CID agents. Here again, an Attorney is crucial to helping to protect your rights. Your Attorney can help explain the law to your commander consult with state National Guard Judge Advocates (guard Attorneys) and or insist that the CID agents produce a search warrant. If you don’t have an Attorney, and you find yourself in a situation where your National Guard chain of command is ordering you to do something to comply Federal CID agents or investigators, then you should try to ensure everyone involved understands that you are not voluntarily complying, but only following the compulsory orders of your chain of command. Unfortunately, refusing to cooperate may put you at odds with your chain of command, or at least cast a shadow over your service. You may feel like the “right” thing to do is cooperate. At the end of the day, we all swore an oath to protect and defend the Constitution. Your individual Constitutional rights are part of that same oath of allegiance. And it may be better to protect yourself and be temporarily viewed in a negative light than voluntarily waive your rights and be convicted of a crime.
Polygraph Examinations.

Agents sometimes ask service members to take polygraph examinations. A polygraph or “lie detector” is a machine that measures physiological attributes such as blood pressure and heart rate. Supposedly, these machines can indicate if the answer to a question is deceptive or deceitful by monitoring the subject’s physical response when answering the question. The government’s polygraph examiner interprets the results and issues a report. Normally these reports are phrased in terms of “deception indicated,” “no deception indicated,” or “inconclusive.”

There are some important things you should think about before agreeing to take a polygraph test at the request of federal agents:

1. First, you should discuss this request with an Attorney before agreeing or scheduling an appointment for the test. An Attorney can help you sort through your individual situation, and help you weigh the pros and cons of submitting to a polygraph exam. Most Attorneys will insist on being present for the test and will probably request a copy of the questions to be asked ahead of time.
2. You’re United States citizen. As long as our Constitution stands, you are not ever required to prove your innocence. In other words, you shouldn’t feel compelled to submit to a polygraph exam in order to “clear your name,” or “eliminate yourself as a suspect.”
3. Polygraph machines are deemed so unreliable that their results are generally not admissible in Federal Court and most state courts. However, your statements made during or in conjunction with the test may be admissible and could possibly be used against you.
4. If the agents had enough evidence against you to proceed with a case, why would they waste time on a test that can’t be admitted into evidence?
5. It’s doubtful that the agents will allow you to choose your own independent polygraph examiner. They’ll likely insist on using an examiner at a major military installation.
6. Some people, regardless of veracity react poorly to the stress of a polygraph test. It has nothing to do with your fitness, strength or mental stamina. If you’ve never been through a polygraph examination, then you won’t know how you will react until your wired to the machine.

Reaching Out to Your Buddies for Support

If you’re the subject of an investigation, you may be confused, scared and feel vulnerable. Your instinct may be to look to your buddies and chain of command for support and reassurance. Likewise, you may think you can clear up the entire mess by explaining your actions. Both actions are risky. Talking to your buddies could potentially make them witnesses. You probably won’t know what the agents think you did that violated the law, so even seemingly innocent conversations with buddies and guard leaders might come back to haunt you. In the event you are brought to trial, it would be normal for government agents to ask members of your unit what you told them about the investigation. Likewise, reaching out to other Soldiers or Airmen involved in your situation may seem like a logical move. However, you’re risking a government accusation and potential charge of witness tampering. Your Attorney is the best person to contact witnesses.

“Lawyering Up”

You’ve seen this in the movies and on TV dramas. The cops (the good guys) are working hard to solve the heinous crime and all the evidence points to a prime suspect (the bad guy). To the great disappointment to the good guys, instead of breaking down under their brilliant questioning and confessing, the suspected perpetrator invokes his Constitutional right to an Attorney. On TV, the cops say things like the “perp lawyered up.” While this might be entertaining in a made for TV movie, it is an entirely different situation, when the government investigators are trying to prove you’re guilty of a crime.
The idea of “lawyering up” likely seems foreign to you. You may think only guilty people need lawyers. Likewise, you may think you can just explain everything and convince the CID agents of your innocence. Good luck with that. Our Constitution guarantees you the right to an Attorney when accused of a crime. You’ve literally pledged your life to protect and defend this same Constitution. You shouldn’t feel guilty or ashamed about exercising your right to an Attorney.

Each military installation has Trial Defense Service (TDS) or Area Defense Counsel. These are Judge Advocate (JAG) Attorneys who are assigned to provide advice and representation to fellow service members. If you’re currently serving you’re entitled to support from these Attorneys free of charge. If you’ve ETSed from service, the TDS/ADC Counsel will not be able to assist you. If you’re in the Guard and think you might be under investigation, call your state National Guard Headquarters and ask to speak with TDS/ADC. Since these Attorneys are traditional “part time” service members like you, it may a little while before you speak with an actual Attorney. In the meantime, it is perfectly legal to tell CID that you’ve called TDS or ADC and will wait to speak with your Attorney before talking to them.

Ultimately, if you’re officially charged with a crime in civilian court (indicted), you’ll have to hire an Attorney. Military JAGs can’t defend you in federal or state court. Depending on your income status you may qualify for a court appointed Attorney.

However, if you’re being investigated for a criminal offense, you may want to consider hiring a criminal defense attorney immediately. In some cases, an attorney can not only protect your rights but also help shape your options and potentially negotiate a resolution with the prosecutors before formal charges are filed.

Conclusion

Regardless of your level of involvement in an incident, if you come under scrutiny you must protect your rights. An Attorney can help but it will be up to you to take the steps needed to shield yourself from what could be a life-altering situation.

Colonel (Ret) Doug O’Connell is a Criminal Defense Attorney with over 30 years of experience. A former state and federal prosecutor, Doug represents service members across the country. His firm, O’Connell West, PLLC currently has offices in Austin, Killeen, San Antonio and Taylor, TX.