21 December 2010

Article 13 and PFC Bradley Manning

The defense has raised the conditions of PFC Bradley Manning’s confinement conditions on multiple occasions with the Quantico confinement facility and the Army Staff Judge Advocate’s (SJA) Office assigned to handle this case. Our efforts, unfortunately, have not resulted any in positive results. To its credit, the SJA office is attempting to correct this situation. However, given the fact that Quantico is a Marine Corps facility, it has similarly had no success.

PFC Bradley Manning, unlike his civilian counterpart, is afforded no civil remedy for illegal restraint under either the Federal Civil Rights Act or the Federal Tort Claims Act. Similarly, the protection from cruel and unusual punishment under the Eighth Amendment and Article 55 of the Uniform Code of Military Justice (UCMJ) does not generally apply prior to a court-martial. Thus, the only judicial recourse that is available is under Article 13 of the UCMJ.

Article 13 safeguards against unlawful pretrial punishment and embodies the precept that an accused is presumed innocent until proven guilty. Article 13 provides that:

No person, while being held for trial, may be subjected to punishment or penalty other than arrest or confinement upon the charges pending against him, nor shall the arrest or confinement imposed upon him be any more rigorous than the circumstances required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.

Military courts have consistently asserted Article 13 protection broadly to protect servicemembers awaiting trial. Illegal pretrial punishment can take many forms. The most common examples are unreasonable or harassing restraint that creates an appearance that the servicemember is guilty and onerous pretrial confinement conditions. Article 13 provides that pretrial confinement should not be “more rigorous than the circumstances require to insure” the servicemember’s presence at court. “Conditions that are sufficiently egregious may give rise to a permissive inference that an accused is being punished. . . .” United States v. King, 61 M.J. 225, 227-28 (C.A.A.F. 2005); see also United States v. Crawford, 62 M.J. 411 (C.A.A.F. 2006). Arbitrary or purposeless conditions also can be considered to raise an inference of punishment. King, 61 M.J. at 227-28 (citing United States v. James, 28 M.J. 214, 216 (C.M.A. 1989)).

A defense motion for Article 13 credit is generally made before pleas are entered. As such, the first time this issue can be raised is once the case is referred to a court-martial. The issue of whether there is a violation of Article 13 is litigated in a pretrial motion hearing. At this hearing, the defense may call witness and the accused may testify concerning the nature of the pretrial confinement conditions. The defense carries the burden by a preponderance of the evidence to show a violation of Article 13.

If a military judge determines that a servicemember has been illegally punished prior to trial, she has substantial discretion to grant administrative credit, usually in the form of additional pretrial confinement credit, or even grant an outright dismissal of the charges. See, e.g., United States v. Fulton, 55 M.J. 88 (2001) (holding that the military judge has the authority to dismiss charges as a remedy for unlawful pretrial punishment). There is no set formula for calculating the appropriate amount of credit for unlawful pretrial punishment in violation of Article 13, UCMJ. For example, in United States v. Suzuki, the military judge awarded three days credit for every one day of illegal pretrial confinement. 14 M.J. 491 (C.M.A. 1983).

A case that is similar on facts to that of PFC Manning’s is United States v. Avila. 53 M.J. 99 (C.A.A.F. 2000). In Avila, a servicemember raised an Article 13 motion alleging illegal pretrial punishment based upon his pretrial confinement. During the servicemember’s pretrial confinement, by brig policy and based solely on the serious nature of his pending charges, the servicemember was housed in a windowless cell; not allowed to communicate with other pretrial confinees; given only one hour of daily recreation; made to wear shackles outside of his cell, and only allowed to see visitors separated by a window. The CAAF agreed with the lower court’s holding that the brig policy of assigning all pretrial confinees facing a possible sentence of five or more years to maximum (solitary) confinement was unreasonable. The court ordered an additional 140 days of pretrial confinement credit due to the violation of Article 13.

Based upon the facts of this case, the defense will file an Article 13 motion at the appropriate time. Until that time, we will continue to work through military channels and the SJA office to remove the harsh conditions of confinement.

18 comments:

  1. First!

    This is extremely distressing news and it's indicative of what road our country has taken. They intend to break Pfc Bradley manning for telling the truth and for the fact that he's gay in an environment where you're not allowed to be gay! By being held in solitary by the most homophobic branch of the military! And when his trial comes up, how on Earth will he be able to defend himself???

    I remember Jose Padilla, also a US Citizen, was also tortured. Angela Hegarty, one of psychiatrists for his defense. reported that Jose exhibited “a facial tic, problems with social contact, lack of concentration and a form of Stockholm syndrome."

    I am not a psychologist, but I think Bradley may already be developing Stockholm Syndrome! The only thing I can go by is a report by Keith Olbermann the other night, which stated that Quantico reported Pfc Manning to the media as a model prisoner.

    http://www.youtube.com/watch?v=5FkDyW3ZM5w

    I do believe they intend him to turn evidence against Assange, then convict and execute him for treason. And if his psychological health, already declining if Glenn Greenwald is correct, is reduced to a state of utter fatuousness, how is he supposed to defend himself?

    I hate what my country's become!

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  2. From the UK Telegraph: WikiLeaks: family unable to see suspect Bradley Manning

    http://www.telegraph.co.uk/news/8169292/WikiLeaks-family-unable-to-see-suspect-Bradley-Manning.html

    "Four members of Mr Manning’s family, including his mother, Susan, made the trip from Pembrokeshire in the past two weeks in the hope of seeing him, a friend said.

    "But it is understood that a request to visit the 23-year-old soldier, who is being held in solitary confinement at a military base in Quantico, Virginia, was turned down.

    "The friend said: 'They hoped to be able to see Bradley but were not able to do so because he is in a military prison.'

    "A spokesman at the US base said he believed the family would have had the right to visit Mr Manning, and that only media visits were banned. He said Mr Manning had received visitors, but he did not know the details."

    Indeed. He gets visited by a friend from Boston once every two weeks. So why not his family? And since it's policy to let family see prisoners, why did they not let Bradley's family see him? This really SMELLS.

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  3. Manning's in the Army, what's he doing in a Navy brig? Shouldn't he be in the Disciplinary Barracks at Fort Leavenworth or some other comparable facility on the East Coast? It looks like any Article 13 might very well be dismissed out of hand since he's confined in a Navy facility.

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  4. Awesome!

    Keep up the good work!

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  5. Streamfortyseven,

    First, it's a Marine brig, not a navy one. The brig in Quanitco is one of the most secure facilities in the nation. I have been inside it. Military rules are much stricter, and commanders have much more discretion on what to grant prisoners. Nowhere in does it say that prisoners cannot be kept in solitary confinement. The military does prison the way it should be done. Miserable for those in it. Only in our screwy civilian society do prisoners get access to tv and internet.

    The UCMJ (Uniformed Code of Military Justice) is just that: Uniformed. Hence, it does not matter where he is held as long as it is on a military base.

    Finally, the military judicial system is not at all comparable to the civlian one. In order to keep good order and discipline, military commanders are authorized to take more drastic measures in the treatment of prisoners in order to keep the rest of the troops from rebelling or conducting a mutiny. Military commanders can and do authorize chain gangs to bust rocks just like in old movies. It's a whole different animal...

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  6. The Problem With WikiLeaks:

    (1) REVEALING OF CRIMINALITY IS ALWAYS LEGAL regardless of classification. There is NO relevance as to whether criminals (even when grouped together as a “government”) labeled the document as SECRET or TOP-SECRET or STATE-SECRET. The ONLY issue is whether the document or video REVEALS CRIMINALITY. The "Collateral Murder" video and many of the "cables" from the Department of State does reveal criminality.

    We have thus made NULL and VOID any “State-Secret” claim which has been applied or would be applied to inhibit the revealing of criminality.

    (2) WikiLeaks appears to be run by computer programmers instead of experienced journalists.

    (3) Experienced journalists would have sorted the files according to whether each file has revealed criminality [lying is one type of criminality] and-then dumped the rest. There appears to be few real journalists remaining in the mainstream media.

    (4) Pvt Manning might be guilty of electronic trespassing which is the only charge for which he could legally have been incarcerated and would likely be Dishonorably Discharged [also for electronic trespassing]. Unauthorized copying of files either to the computer-screen or other media is just one type of electronic trespassing. An officer in the military having authorized access to such files is actually REQUIRED to reveal such criminality.

    REVEALING OF CRIMINALITY IS NEVER A CRIME.

    (5) WikiLeaks is just guilty of failing to properly sort the files and report just what was criminal. The same standard applies to files obtained from private entities. WikiLeaks can legally solicit and publish ANY material which reveals criminality REGARDLESS OF CLASSIFICATION.

    /Nathan

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  7. .Bradley is being TORTURED. Do NOT let that fact get away from the circumstabnces. He may not be "water boarded" but to be confined WITHOUT CHARGES in total solitary confinement, 24 hour a day interruptions every 5 minutes, sleep deprivation from 24/7 light in cell - when a TV monitor would do the same job - causing inability to get proper rest, improper bedding, no visitors, from what I've read inadequate food & medical, there is up front evidence of torture. A civilian court would never allow this. If he were an officer he most likely would not be treated this way. If the government knew of a person in a prison in a country we were unfriendly towards, there would be head lines in all the MSM. Don't forget,he is being held WITHOUT CHARGES. He is suppose to be considered innocent untilproven guilty. But ever since Junior threw out the Constitution themilitary, CIA, et al can pretty much do anything they want impervious to the rule of law. This country is toast. It stinks! Where is the outrage for this young man to get a fair day in court or JUST BE CHARGED. Either do that or let him go...Oh,I for got,the military doesn't have to abide by habeous corpous. F 'em all. I was in the military and the pea brained @$$holes who run the place are just a bunch of little d**ked dictators who can't function in the real world. Like to see how some of those higher ranked SOB's would do being treated like Bradley Manning.

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  8. Is there anyway the public can write letters to Brad while he is in confinement? Please post the address if so.

    I think it would help him to know how many people support him!

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  9. What about Article 10, speedy trial? It seems he's been confined long enough to have brought charges and tried him.

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  10. Pvt. Manning has been charged with violations of Articles 92 & 134 on 5 Jul 10.

    Article 10 takes into account the reasons for a delay, in earlier posts on this site Attorney Coombs stated the 32 hearing was on hold by defense pre-trial motions to review preliminary classifications.

    Regards
    ex-mil

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  11. Attorney Coombs, have you talked with the Inspector General about this? Because Fox News is smearing Manning, once again, and lying about and justifying what's being done to him! And on Fox News vidoe I found, the former Undersecretary of Defense says the Inspector General should have been contacted.

    Article at my blog including the Fox News video: http://ifpeakoilwerenoobject.blogspot.com/2010/12/everything-is-oppositeland-at-fox-news.html

    Manning needs to be able to participate in his own defense at his trial! What they're doing to him, even though with the best of intent, will guarantee anything but. :(

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  12. There's an an article from Glenn Greenwald and an interesting discussion over at Salon about Wired Magazine's utterly shameful reporting of the WikiLeaks affair in general and Bradley Manning in particular. People are realising that the chat logs Adrian Lamo provided are very dodgy and in fact could very well be bogus!

    And why is Adrian Lamo allowed to make unsubstantiated claims about what Manning "confessed" to him while Manning can't even defend himself in the public square?

    http://www.salon.com/news/opinion/glenn_greenwald/2010/12/27/wired/index.html

    http://letters.salon.com/opinion/greenwald/2010/12/27/wired/view/index.html?order=desc

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  13. "The military does prison the way it should be done. Miserable for those in it. Only in our screwy civilian society do prisoners get access to tv and internet."

    Why go to trial ? Why have a Court Martial ? At least one big brave anonymous has found Pfc Manning guilty already.

    Home of the brave, land of the free ? What a bunch of moral cowards America has become.

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  14. On Dec. 21, anonymous wrote, "The UCMJ (Uniformed Code of Military Justice) is just that: Uniformed."
    This is false. The "U" in UCMJ means "Uniform" and it refers to the code being uniform across all branches of the service.

    ~ former US Army officer

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  15. Thank you for sharing this information. I have a law degree but am not familiar with the UCMJ. It seems to me the UCMJ just provides for procedures to try members of the military. It cannot possibly supercede the Constitution. Surely service members have Constitutional rights just like the rest of us!

    Attorney Coombs, do you have any sense if whether the various petitions have had any influence at all? Any suggestions on other, more productive ways concerned citizens can aid in this case?

    -Mary Lincoln,
    Jamaica Plain, MA

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  16. obvious overuse of power and in direct breech of article 13
    what are you guys doing?

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  17. The president of the USA is responsible for this unlawful detention of pfg Manning. He should be prosecuted by an international court of law.

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  18. In an effort to assist those of you not familar with Military law, I would suggest you familarize yourselves with the MCM (Manual for Court Martial) it will answer all your questions pertaining to Military law, it begins with the Preamble which clearly explains the nature of, and purpose of Military Law, such as: "...3. Nature and purpose of military law:
    Military law consists of the statutes governing the military establishment and regulations issued thereunder, the constitutional powers of the President and regulations issued thereunder, and the inherent authority of military commanders. Military law in-cludes jurisdiction exercised by courts-martial and
    the jurisdiction exercised by commanders with
    respect to nonjudicial punishment. The purpose of military law is to promote justice, to assist in maintaining good order and discipline in the armed forces, to promote efficiency and effectiveness in the military establishment, and thereby to strengthen the national security of the United States..."

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