UCMJ Article 97 – Unlawful Detention

UCMJ Article 97 criminalizes the act of unlawfully detaining any person. The article covers a service member who, without proper authority, subjects another individual to arrest or confinement, or who willfully continues to detain someone already in custody without lawful grounds. The provision exists to prevent abuse of power and to ensure that restrictions on liberty occur only under lawful orders and proper procedures.

The offense is not limited to commanding officers or military police. Any service member who unlawfully detains another may be guilty if they lacked authority or exceeded lawful authority. Article 97 reflects the military’s balance between discipline and fairness: while commanders must be able to enforce orders, they cannot detain subordinates or others without legal justification.

Key Elements

To prove an Article 97 violation, the prosecution must establish:

  1. That the accused arrested, confined, or otherwise detained a certain person.
  2. That the detention was unlawful, either because no authority existed or the authority was exceeded.
  3. That the accused knew or should have known that the detention was unlawful.

Unlawfulness can arise if the accused had no authority to order arrest, if procedures required by law were ignored, or if confinement was continued after lawful authority expired.

Scope and Application

Article 97 applies across all branches of the armed forces. It is often used when a commander or service member oversteps authority by detaining someone without cause or beyond the scope of orders. Examples include:

  • Holding a subordinate in confinement without proper charges.
  • Placing someone under arrest without legal basis.
  • Continuing confinement after orders for release were issued.

The article helps protect service members from arbitrary restraint and reinforces due process within the military justice system.

Punishment

The maximum punishment for unlawful detention is confinement for up to 10 years, forfeiture of all pay and allowances, and dishonorable discharge. The severity reflects how seriously the military views abuse of detention authority, which undermines trust in command and the justice system.

Defenses

Possible defenses include:

  • Lawful authority: If the detention was carried out under proper orders or lawful authority, Article 97 does not apply.
  • Good faith mistake: If the accused reasonably but mistakenly believed they had authority, liability may not attach.
  • Emergencies: Temporary detention in emergencies may be lawful if justified by immediate circumstances.
  • Procedural compliance: If proper procedures were followed, the detention is presumed lawful.

Examples

If a commander places a soldier in the brig without charges or authority, Article 97 applies. If a service member refuses to release a detainee after orders to release have been given, they are guilty of unlawful detention. On the other hand, a military police officer detaining someone under valid authority would not be guilty, even if the detainee believes the action was unfair.

Conclusion

UCMJ Article 97 preserves fairness in the military by punishing unlawful detention. The provision ensures that only proper authorities may restrict liberty and that service members are protected from arbitrary arrest or confinement. By criminalizing misuse of detention powers, the article reinforces both discipline and justice.

Frequently Asked Questions

1. Who can be guilty under Article 97?
Any service member who unlawfully arrests, confines, or detains another person. It applies to officers, NCOs, or enlisted members who act without authority.

2. What makes detention unlawful?
Detention is unlawful if it lacks proper authority, violates required procedures, or continues after lawful authority ends. Arbitrary or personal motives make detention unlawful.

3. What is the maximum punishment?
Up to 10 years’ confinement, dishonorable discharge, and forfeiture of all pay and allowances. The penalty reflects the seriousness of abusing authority over liberty.

4. Can a good faith mistake be a defense?
Yes, if the accused reasonably believed they had authority to detain. Courts look at whether the mistake was honest and supported by circumstances.

5. Does Article 97 apply only to commanders?
No, it applies to any service member. However, it most often involves commanders, MPs, or others with custody responsibilities.

6. How does Article 97 differ from Article 96?
Article 96 punishes releasing prisoners without authority, while Article 97 punishes detaining people without authority. Both ensure lawful handling of custody.

7. Can temporary detention ever be lawful without formal orders?
Yes, in emergencies where immediate restraint is necessary to prevent harm or maintain order. But prolonged detention requires formal authority.

8. What if detention was lawful at first but became unlawful later?
If confinement continues after the legal basis ends, it becomes unlawful under Article 97. Failing to release when required is a violation.

9. Does Article 97 apply in peacetime and wartime?
Yes, it applies at all times. Respect for lawful authority and due process is essential in every military context.

10. Why is Article 97 important?
Because it protects service members from abuse of power and ensures detention authority is used only lawfully. It reinforces fairness, accountability, and trust in military justice.

Sources

  • Uniform Code of Military Justice, 10 U.S.C. § 897, Article 97
  • Manual for Courts-Martial, United States (2024 edition)
  • Army Regulation 27-10, Military Justice
  • Navy JAGMAN (Judge Advocate General’s Manual) § 0124
  • Air Force Instruction 51-201, Administration of Military Justice
  • Court of Appeals for the Armed Forces, United States v. Bayer, 29 C.M.R. 17 (1960)
  • Military Attorney Joseph L. Jordan, Articles of the UCMJ web page

This content is for informational purposes only. If you are facing issues related to Article 97 or any other UCMJ provision, you should consult a qualified military attorney.

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