[Doug O'Connell is a retired colonel who has helped out troops and TexVet many times. Now retired, he has great advice not only for anyone possibly involved in the G-RAP investigations, but in any interaction with Military Police or CID - pj]
By Doug O’Connell
As Soldiers 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 Guard unit, but do little to prepare us to protect our own rights when accused of misconduct.
Current and former National Guard Soldiers across the United States are finding themselves ensnared in a highly controversial dragnet related to the now defunct Guard Recruiting Assistant Program (G-RAP). Many guardsmen who participated as G-RAP
Recruiting Assistants (RAs) now find themselves under investigation by Active Duty/Title 10 Criminal Investigation Division (CID) agents or worse, facing prosecution in federal court.
We all want to believe that our Army wouldn’t treat us unfairly or conduct a biased investigation void of integrity. However, National Guard leaders across the country have increasingly raised concerns about the conduct of the Active Army’s investigation into Guard Soldiers who were RA’s. Some leaders have expressed concerns regarding the federal CID G-RAP task force and their seemingly over-zealous pursuit of minor violations of the rules promulgated by the government’s contractor Docupak.
If you participated in the G-RAP program as a RA, this article is designed to provide an overview of your legal rights. Each RA’s 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 including your duty status at the time of G-RAP participation. This article focuses the rights of traditional National Guard Soldiers currently serving in Title 32 (state) status. The bottom line is that the best thing you can do to protect yourself is to consult with a Criminal Defense Attorney regarding your specific situation.
Agreeing to Talk to CID Agents & Answering Questions.
When CID agents contact you, their questions may seem harmless at first.
Sometimes the agents will be asking about other Soldiers. Gradually, the questions may become more pointed and focused on you. Some Guardsmen who spoke with CID agents later reported that they really didn’t understand that they could refuse to answer the questions. Some former RAs cooperated 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 G-RAP misconduct often turns on a suspect’s understanding of the rules at a given point of time or why the RA did or didn’t do something. Cases can be won or lost on the government’s ability to prove intent. In many cases, CID agents can’t prove the RA did something intentionally without obtaining a statement from the suspect RA.
You should seriously consider speaking with an Attorney before speaking with CID 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 GRAP investigations unscrupulous agents have attempted to shame former RAs 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.”
In some cases, when RAs have invoked their right not to voluntarily speak to CID, prosecutors subpoenaed the RA to appear and testify before a Grand Jury. If this happens, you absolutely must speak to a Criminal Defense Attorney.
Title 10 CID Agents Don’t Have Any Jurisdiction Over You.
Assuming you are a National Guard Soldier, serving your State and Country in Title 32 (state) status, Regular Army CID 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 Army, 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.
CID agents sometimes ask former RAs 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 CID 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 CID 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 CID 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 a CID investigation, you may be confused, scared and feel vulnerable. Your instinct may be to look to your Guard buddies and chain of command for support and reassurance. Likewise, you may think you can clear up the entire mess by contacting the Soldiers you helped recruit under the GRAP program. Both of these actions are risky. Talking to your buddies could potentially make them witnesses. You probably won’t know what the CID 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 the Soldiers you recruited 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.
Collecting Your DNA, Fingerprints and Photographing Your Tattoos.
CID agents have turned up at National Guard drills demanding DNA samples and fingerprints from former RAs. Apparently in some cases, the CID agents have insisted on photographing all tattoos on the RA’s body. This is only permissible if the agents have a valid search warrant signed by a judge. Absent a warrant, federal CID agents or investigators do not have any legal authority to collect this evidence without your consent. Keep in mind, there are valid, legal reasons for your military chain of command to collect your DNA, fingerprints and catalog your tattoos. If you’ve been in the Guard long enough to have been an RA, your unit almost certainly has all of these items. In order to protect your rights, it’s important to clearly understand who is asking for samples, prints or photographs and why. Remember, if you’re asked as part of a GRAP investigation, you have the right to refuse to provide your DNA, and fingerprints, and be photographed.
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 GRAP fraud.
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 state National Guard has a Trial Defense Service (TDS). These are National Guard JAG Attorneys who are assigned to provide advice and representation to fellow Guard Soldiers. If you’re currently serving in the National Guard, entitled to support from these Attorneys free of charge. If you’ve ETSed from service, the TDS Counsel will not be able to assist you. If you’re in the Guard and think you might be part of a G- RAP investigation, call your state National Guard Headquarters and ask to speak with TDS. Since these Attorneys are traditional “M-Day” Soldiers like you, it may a little while before you speak with an actual TDS Attorney. In the meantime, it is perfectly legal to tell CID that you’ve called TDS 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. National Guard TDS 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 anything related to GRAP, 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.
Opinions on G-RAP can vary depending on whom you speak to. Some senior state National Guard leaders are convinced G-RAP was a tremendous success, rapidly filling the ranks of the Army National Guard at a critical juncture. Others, apparently at the Pentagon and United States Department of Justice are convinced that the entire program was rife with fraud, waste and abuse. At least one politician is demanding “accountability.” In the meantime, National Guard Soldiers are being investigated, prosecuted, and in some cases, sent to prison. Regardless of your level of involvement in G-RAP, 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.
Doug O’Connell is a Criminal Defense Attorney based in Austin, Texas. A former state and federal prosecutor, Doug currently represents several clients accused of wrongdoing in connection with the G-RAP program. Doug also serves as Special Forces Colonel in the Texas Army National Guard. His assignments in Texas include three years as the State General Counsel and three years as Deputy Chief of Staff for Operations (State G3). His combined six years at the TXARNG State Headquarters coincided with the inception of G-RAP through its peak. In addition to representing citizen’s accused of crimes, Doug’s practice includes representing Plaintiffs in selected Civil Law and Whistle Blower lawsuits.