You Have the Right for Your Attorney to be Present at Questioning – Unless You Waive It.
Under the Uniform Code of Military Justice and the U.S. Constitution, military members have the right to due process and the right to silence, which includes the right to have a lawyer present with you if you waive your right to silence.
Military law enforcement (think CID, OSI, NCIS, CGIS, military police, and security forces) are trained to read Article 31 rights warnings before asking questions. But investigators are also adept and trained on the required law and often work with local law enforcement, so that Article 31 rights aren’t read before a suspect is questioned.
The law on rights to counsel (and especially free counsel) is actually incredibly complex and dependent on numerous factors (custodial interrogation vs. non-custodial interview, prior invocation of rights vs. cool-off time, charged for crime vs. investigation). However, most simply, your right to silence includes the right to have your lawyer present during questioning.
Simply asking for your lawyer should stop the investigators in their tracks. However, your right to counsel can be waived by you continuing to talk to investigators, so ask for your lawyer and sit quietly.
Service members are entitled to military counsel free of charge, but you have no right to free counsel before you are charged with a crime. Depending on the circumstances, each service may provide you free counsel during an investigation, but you always have the right to hire your own counsel. Most importantly, your right to a lawyer does not mean you have to be stuck with the bottom of the barrel. You have the right to choose a good lawyer.
