It’s a very short portion of the Uniform Code of Military Justice, but a potentially capital offense. Google has failed me, and I can’t find it defined anywhere. Anyone know? Is it a rare crime?
A little googling came up with the following:
(1) Safeguard. A safeguard is a detachment, guard, or detail posted by a commander for the protection of persons, places, or property of the enemy, or of a neutral affected by the relationship of belligerent forces in their prosecution of war or during circumstances amounting to a state of belligerency. The term also includes a written order left by a commander with an enemy subject or posted upon enemy property for the protection of that person or property. A safeguard is not a device adopted by a belligerent to protect its own property or nationals or to ensure order within its own forces, even if those forces are in a theater of combat operations, and the posting of guards or of off-limits signs does not establish a safeguard unless a commander takes those actions to protect enemy or neutral persons or property. The effect of a safeguard is to pledge the honor of the nation that the person or property shall be respected by the national armed forces.
(2) Forcing a safeguard. “Forcing a safeguard” means to perform an act or acts in violation of the protection of the safeguard.
(3) Nature of offense. Any trespass on the protection of the safeguard will constitute an offense under this article, whether the safeguard was imposed in time of war or in circumstances amounting to a state of belligerency short of a formal state of war.
(4) Knowledge. Actual knowledge of the safeguard is not required. It is sufficient if an accused should have known of the existence of the safeguard.
Thanks. Just looks like a form of trespassing… hard to understand why it would be a capital offense.
I believe it’s a capital offense because of this:
If a commander has gone to the trouble of promising to protect an enemy person, place, or thing, then you can be sure there’s some high-level strategic or diplomatic reason. You can’t just have some grunt come in and shoot up the place. Or person. Or thing.
The US pledges to another country that they will keep their embassy or dependent’s quarters safe from harm or tresspass. Some idjit grunt decides to rampage through the quarters, looking for someone to abuse. Abuses somebody’s daughter.
Capital Offense.
More than just that: safeguards include things like passes of safe conduct (“written orders left with an enemy subject”) given to enemy personnel who want to defect or surrender, like the Chieu Hoi Viet Cong defectors during Vietnam. If US troops don’t respect those and that becomes known to the enemy, they won’t surrender.
A safeguard can theoretically be applied on a very wide scale. It’s possible, for example, if an enemy commander of a large unit expressed the desire to surrender his command, a US theater commander could issue a safeguard covering whole grid squares on a map and just tell the enemy commander to keep his unit inside those grid squares and not to take any aggressive action. Very possible if and when economy of force would prevent the US unit from detailing significant numbers of troops to take and guard many EPWs all at once.
Do all “commanders” have an inherent right to create a safeguard, or does one have to have explicit permission from the Secretary of Defense, POTUS, etc. to create one? And what is a “commander” exactly in this context? Does anyone with the authority to issue some type of military order count as a “commander”, or does it only refer to ranks or assigned positions above a certain threshold? (E.g. a Platoon Sergeant might not be a “commander”, but a Company Captain might) I’m wondering to what extent a defendant could claim, “Yeah, I forced that “safeguard”, but it wasn’t a legally valid safeguard because it was signed by 1Lt Bill and you have to be at least a Maj or above to issue a safeguard on your own. I must be found not guilty.”
Don’t know anything about military law, but common sense says that this has to depend on circumstances and context. If you’re the commander in the field, and the enemy signal that they want to parlay with you to negotiate a surrender, you have to the authority to issue the necessary safeguards for that parlay to happen. That authority has to come as standard with command. Similarly, if the commander in the field recognises that there’s an existing legal obligation to respect, e.g., the diplomatic premises of a neutral country, it makes no sense at all for him not to have the authority to issue the necessary safeguards.
Obviously there could be circumstances where his own orders are that he is not to take certain action without getting clearance from higher up, and it could be that in breach of his own orders he does things which include issuing a safeguard. I don’t think it would follow, though, that the safeguard was itself invalid, or that other soldiers could disregard it with impunity.
Or it works like this:
I (a 2nd Class Petty Officer) and another guy (3rd Class PO) are ordered to report to the OOD (Officer of the Day) at a certain time. We report and are introduced to a man in civilian clothes and a badge hanging around his neck. We are informed he is a Special Agent of the DEA (hereafter he’s Mr DEA) and that we are assigned to guard a ship tied to one of the bases docks all by it’s lonesome and it’s contents (100 or so bales of Cannabis). Then we were taken to the Armory where we were offered or choice of weapons. I went with the M-16A1 and two 20rnd mags. The PO3 took the 12 gauge pump, a full load and a full reload. Then Mr DEA walked us out to the dock (that had Off-limits, restricted area, authorized personnel only signs all over it). 100’ from the gangway were those sawhorse type Police Barricades. Set up at the bottom of the gangway was a card table with a couple of chairs and a telephone.
Mr DEA explained the task to us. The only people authorized to pass through the barricade were us two, himself, and any one who was personally escorted by Mr DEA. If anyone else passed it, deadly force was authorized. At this point, I said “With all due respect, you’re not really in my chain of command. Would you mind if I called the OOD for confirmation of these orders?” and he said he had no problem with it. So I called the OOD and asked and he confirmed the orders. Mr DEA also told us we could move the table, chairs and phone closer to the barricades if we wanted to and that he’d be back in an hour or so.
Anyway, after a while a man wearing the uniform of a Coast Guard LtJg approached the barricades. When it looked like he was going to cross them, I challenged him and ordered him to Halt as the PO3 with the 12 gauge moved away from me. Guy said he didn’t take orders from enlisted men and crossed the barricade. So, with a muzzle to his stomach, a shoulder stock to his face, and a steel-toed boot to his ankle, he was on the ground with the barrel of an M-16 resting on his sternum. And I informed him that he was in custody.
I had the PO3 call the OOD to bring handcuffs and some people. OOD, Base Commander, handcuffs, and other people arrived. LtJg wanted me charged with assaulting an officer. I just said “My orders are this is a restricted area for Authorized Personnel only”. LtJg got to sit on the far side of the barricade until Mr DEA got there to speak to him. Then the cuffs were removed and he went to have some Career Counseling from the Base Commander.
What the LtJg was doing was “Forcing a Safeguard”. And had I emptied that magazine into him, I’d have been, legally, in the right.
Just came back to this thread. Thanks for the cool story, Ranger Jeff.
Thanks. The cliche`d phrase “HALT, who goes there?” really does mean “HALT!!!”
This isn’t quite the same thing, but my grandpa was an MP during WW2. He once had a minor run-in with a 3-star general who thought that his rank entitled him to kid-glove treatment.
So what happened? The more details, the better.
That reminded me of an incident at the Naval Academy involving the Superintendent (Richard J. Naughton).
From Wikipedia:
IIRC, the Marines at the gate asked for his ID, and he was drunk and became belligerent. I guess even the boss has to follow procedure and the “Do you know who I am? I’ll have you busted!” approach doesn’t work.
There really isn’t much to tell. My grandpa was manning a gate or checkpoint, and this general was in a hurry for some reason. He started blowing his horn well before getting up to the actual spot, and basically tried to bull his way through.
Nothing significant happened, but my grandpa was still a little disgusted by his attitude some 50 years after the event.
So did he let the general through?
Not necessarily. If the property of the enemy is, for instance, a truckload of army-issue medical supplies the commander might just want it put aside for a medical officer to look through, rather than have some random persons toss it all out on the ground before rummaging through it looking for a high. Or, perhaps, a captured base turns out to have a shack full of expensive-looking civilian items - a commander might prefer to have someone investigate whether the enemy looted those items from the local population BEFORE all his troops grabbed a souvenir.
One presumes he did, after checking the general’s ID.
Folks, I may have the definitive answer to this issue. I have been silent for many years. But no longer!
First off, listening to Ranger Jeff’s account–from the “insider’s perspective” it is so obviously detailed in non-obvious way, that it comes across as manifestly true to anyone “in the business.” By which I mean, Ranger Jeff has either been in that exact situation which he describes, or one nearly close enough to that exact situation as to be of no account. (Or maybe he read it in a procedure manual - but I suspect not.)
But the core issue - whether in Ranger Jeff’s exact scenario this is “forcing a safeguard”–it is largely an academic question. That is, it is unlikely (in modern times) for there to be a scenario in which it is necessary to exactly prospectue someone–under the UCMJ–for forcing a safeguard. Allow me to explain.
Civilians never command military personnel, except in the very specific exception that the President of the United States, through the Secretary of Defense, has command authority. “Command” has a very specific legal definition. But civilians can (and often) do employ military personnel. Sometimes employment looks an awful lot like “command.” In many cases, they can become indistinguishable. But it is also true that in many cases, even in the military one’s apparent or ostensible superior officer may not be one’s commander.
Ranger Jeff’s scenario showed exactly how this plays out. (Note: I have never worked for the DEA per se, but I may have worked for a sister TLA (“three-letter agency”) who would kick the DEA’s ass any day. Ooops, was that a little bit of good-natured rivalry? Yes, yes it was. So sue me.) The two enlisted men may have been under the “operational” authority of the DEA agent for that mission, but their command authority flowed from their officer of the day. Now, the officer of the day in effect was ordering them to obey the orders of the DEA agent–up to and including using deadly force. That is completely fine. Nothing wrong with that–one’s officer can most certainly detail you to a civilian government official!
As a practical matter, however, I couldn’t possibly imagine ever resorting to prosecuting someone for “forcing a safeguard”–even if all of the legal criteria were technically met in that scenario. First off, remember that “forcing a safeguard” is an offense only under the UCMJ. The very first thing would be to establish that (1) The individual being prosecuted is in the military (IS being very important – we discharged north korean defectors only to find out that discharge made charges under the UCMJ impossible – so “presently in the military” is absolutely a requirement), (2) That there existed actual command authority for establishment of the safeguard (yes, “any” commander can theoretically do this–and would probably know better not to), and (3) That the individual charged with forcing the safeguard “should have” known of its existence.
In reality–actually, practical, reality–this would never, ever happen. The technical details are, as they say, beside the point. Mr DEA–unless he has been an officer in the military–probably doesn’t even know what “forcing a safeguard” is. DEA agents do not generally work under the UCMJ (for Marine Corps or Navy, UCMJ crimes would normally be under the jurisdiction of NCIS). He doesn’t want to get any Navy folks in trouble, he just wants to make sure that his 100 bales of cannabis doesn’t get stolen. He may just be protecting the evidential integrity–that is, making sure no random jerk introduces some element of doubt which could mess up his prosecution. In no way shape or form did he wake up that morning going, “I am going to take some action that will result in the death of American military personnel.” Nor does one need to resort to the concept of “forcing a safeguard” to authorize deadly force. All I need to do is refer to the McCarran Internal Security Act–which far more clearly, comprehensively, and in a very straightforward manner, sets up all the authorities I need.
If you are still confused, I have failed to adequately explained myself, or I have made a mistake. The bottom line is that while (in Ranger Jeff’s scenario) he could have unloaded an entire clip into the poor LtJg and been wholly justified in doing so, as a well-trained Master-at-Arms, he seems to have known better than to actually do so. (The last thing any soldier, sailor, airmen, or Marine wants to do is kill a fellow American–no matter how legally justified they would be in doing so.) No need to resort to the concept of “forcing a safeguard”–as I said, McCarran sets up all the authorities one could ever need. In fact, I bet there was no prosecution at all–I bet, in those circumstances, the most that was issued was a warning. And if you aren’t going to prosecute under the lesser penalties of McCarran, why bother invoking the greater penalties of the UCMJ?
It is–at least a little bit–like the issue of whether a LEO can forcefully commandeer one’s car. (The answer is, of course, an emphatic YES!!! And even more so if “your car” is actually owned by the taxpayer, such as a GOV.) At the same time–the circumstances, especially in modern times, which would lead to such a scenario are… well, difficult to imagine, to say the least. And if somebody actually resisted–i.e. “You can’t have my car!” Well, the situation has to be pretty dire to be making such a request in the first place–if the situation is so dire, you are not going to argue with someone who won’t give up their car, you are going to find someone more compliant! Does that make sense? (Like, you would really have to have a burr up your butt to stop your so-called super-important chase to stop and prosecute some little old lady for non-compliance to a lawful order issued by a LEO! In fact, in that case, it would be self-evident that your chase wasn’t really so important after all!)
It becomes one of those things which are fun to discuss as a matter of trivia, and can make for great movies, but anyone with a modicum of insider knowledge would know would never actually occur in reality.