03 March 2015

Article 32 Hearing Changes

The National Defense Authorization Act (NDAA) made several key changes to our military justice system.  The most notable changes deal with Article 32 preliminary hearings.  

Article 32 hearings are preliminary investigative proceedings.  The hearings have been compared to civilian grand juries.  Prior to the changes that went into effect 20 December 2014, Article 32s were an excellent discovery tool for the defense.  Now, such hearings are specifically limited to determining whether there is probable cause to believe an offense was committed, jurisdiction of the offense, proper charges and to recommend a disposition.

In addition to the limitation on the scope of Article 32 hearings, the new changes have also restricted a defense's ability in question alleged victims during the hearing.  Under the new rules, any alleged victim, military or civilian, will have the right to decline to testify at the Article 32 hearing.  If an alleged victim elects not to testify, there is nothing that the defense can do.

Given the significance of the changes, the Army has issued the following implementation guidance for Article 32 preliminary hearings.

22 August 2014

Chelsea Manning's Fight For Medical Treatment

     A year after declaring on The Today Show that she was a woman and wanted to begin treatment for her gender dysphoria "as soon as possible", Chelsea is still waiting for adequate medical care.  Over the course of the last year, the military has ignored multiple pleas by Chelsea regarding her medical care.  The military has even ignored its own mental health experts who have confirmed the gender dysphoria diagnosis and recommended immediate medical treatment.

     The military's failure to provide adequate medical care dates back to April of 2010.  In April of 2010, Chelsea sent her supervisor an email entitled "My Problem" along with a photo of herself dressed as a woman. In the email, Chelsea described in painful detail how her gender dysphoria was impacting her life.  She told her supervisor that she believed a career in the military would get rid of her gender dysphoria, but it only made it worse.  Gender dysphoria impacted Chelsea so much that she described her entire life as being "a bad dream that won't end." Despite receiving this cry for help, her supervisor did nothing.

     In May of 2010, Chelsea opened up to her military mental health provider about her problem.  It was at that time that Chelsea was first diagnosed with possibly having gender dysphoria.  The mental health provider confirmed this diagnosis later that same month and recommended that she begin a treatment plan immediately.

     A few days later, Chelsea made the fateful decision to reach out to Adrian Lamo for comfort and support.  In her online chats with Lamo, Chelsea described how lost she felt and how her gender dysphoria was affecting her life.  Days later, due to Lamo's betrayal of trust, Chelsea was arrested and placed into pretrial confinement at Camp Arifjan, Kuwait.

     Over the course of 59 days at Camp Arifjan, Chelsea was held in virtual isolation and denied access to family and friends.  Under these conditions, Chelsea quickly deteriorated to the point that she was placed on 24-hour suicide watch.  Given the limited resources at Camp Arifjan, Chelsea was transported to the pretrial confinement facility at Marine Corps Base Quantico on July 29th, 2010.  While at Quantico, she was once again diagnosed with gender dysphoria, but again denied any medical treatment for her condition.

     Chelsea endured nine months of solitary confinement and mental abuse at Quantico.  It was only after public outcry and the embarrassment of PJ Crowley's statements that President Obama directed Chelsea be removed from Quantico and transferred to the Joint Regional Correctional Facility (JRCF) at Fort Leavenworth, Kansas. Although Chelsea was no longer being held in solitary confinement at the JRCF, she was still being denied access to necessary medical care for her gender dysphoria.

     For over two years, Chelsea remained at the JRCF awaiting trial.  The Army ignored her repeated demands for a speedy trial.  While her trial was still pending, Chelsea did not want the issue of her medical care for gender dysphoria to become a distraction.  Instead of raising concerns over her treatment at the JRCF, Chelsea chose to suffer in silence.

     The day after her sentencing, Chelsea elected to end her silence. Since making her public announcement on The Today Show, Chelsea has successfully changed her legal name and has begun living her life as a woman.  Unfortunately, her struggle for adequate medical care continues.

     Despite having received at least four diagnoses of gender dysphoria, Chelsea has received no treatment.  Specifically, her requests for hormone therapy and clothing and grooming standards consistent with her female gender have all been ignored.  There is a clear medical consensus that gender dysphoria is a serious medical condition.  There is also a medical consensus that if left untreated, gender dysphoria can lead to severe medical problems.

     The military's failure to comply with the treatment recommendations and protocols for Chelsea's diagnosed gender dysphoria violates her well-established constitutional rights to be free from cruel and unusual punishment.  The military may not deny access to certain types of treatments based on a blanket policy that it does not allow for medical treatment of Soldiers with gender dysphoria.  Courts across the country have held that the Eighth Amendment does not permit prisons to deny prisoners adequate medical treatment for gender dysphoria.  The Constitution also does not authorize prison officials to withhold medically necessary care from a prisoner because of the arbitrary decisions of government officials.

     Given the military's failure to provide adequate medical care, the American Civil Liberties Union along with myself have sent a letter demanding that the military immediately initiate treatment for Chelsea consistent with the recommendations of her treating doctors and an outside expert who evaluated her.  If the military fails to adequately respond to the demand, we are prepared to pursue litigation to vindicate her constitutional rights.


22 May 2014

2013 DOD Sexual Assault Prevention and Response Office Annual Report

The 2013 report has some very interesting statistics for those who practice military justice, and have been watching the ongoing debates in Congress on sexual assault in the military.  The report determined that 495 of the 3,769 unrestricted reports ended in an unfounded determination (a 15% rate of  unfounded reporting).  Of the 484 courts-martial that involved a qualifying sexual assault offense in 2013, there were 114 acquittals.  In 173 of the remaining cases the accused was acquitted of the sexual offense charge, but convicted of another offense.  Given the focus on sexual assault in the military over the last year it will be interesting to see if these statistic change dramatically in 2014.