Pretrial confinement reviews must comply with RCM 305 requirements ensuring due process protections for confined service members. Within 48 hours, a neutral and detached officer must review probable cause for the offenses and necessity for continued confinement. Within 72 hours, the commander must decide whether pretrial confinement continues. At seven days, a neutral and detached officer conducts a more comprehensive review including the right to representation, presenting evidence, and challenging the government’s position.
The confined member receives notice of review rights, access to counsel, and opportunity to present matters in defense, extenuation, and mitigation. The government bears the burden of proving by preponderance of evidence that: (1) an offense triable by court-martial was committed; (2) the accused committed it; (3) confinement is necessary because the accused is a flight risk or will engage in serious criminal misconduct; and (4) less severe forms of restraint are inadequate.
Reviews must be documented with written findings, and decisions are subject to habeas corpus challenges in federal court. Violations of review procedures may result in administrative credit for illegal pretrial confinement or case dismissal for egregious violations. The accused can request reconsideration based on changed circumstances. Military magistrates increasingly conduct these reviews, providing greater independence from command influence. The process balances legitimate needs for pretrial confinement against the presumption of innocence and liberty interests of accused service members.