30 December 2010

Pretrial Confinement Review

The command determines whether a soldier is placed into pretrial confinement.  Unlike in the civilian system, the military does not have a bail system.  In other words, once placed into pretrial confinement, a soldier will remain in pretrial confinement unless released by the command, a military magistrate or a military judge.

Under the Manual for Courts-Martial (M.C.M.), before a soldier may be placed into pretrial confinement, there must be: "probable cause" (a reasonable belief) that the soldier committed an offense triable by courts-martial; a determination that confinement is necessary because it is foreseeable that the soldier will not appear at trial or will engage in serious criminal misconduct; and a finding that lesser forms of restraint are inadequate.  See M.C.M., United States, Rule for Courts-Martial (R.C.M) 305(h)(2)(B) (2008).

The decision to confine a soldier is subject to several reviews:

     a.  The first required review must take place within 48 hours by a “neutral and detached officer.”  The neutral and detached officer must review the initial confinement decision in accordance with R.C.M. 305(i)(1) to determine whether probable cause, as detailed above, for pretrial confinement exists.

     b.  Second, within 72 hours, the commander must document the grounds for his determination in a written memorandum, along with the reasons for continued pretrial confinement.  See R.C.M. 305(h)(2)(C). Typically, if the commander is “neutral and detached” and completes his 72-hour review within 48 hours, then this single memorandum will satisfy both 48 and 72-hour review requirement.  See R.C.M. 305(h)(2)(A).

     c.  Third, under R.C.M. 305(i)(2) and Army Regulation (AR) 27-10, a judge advocate appointed as a military magistrate must, within 7 days, review “the probable cause determination and necessity for continued pretrial confinement.”  See U.S. Department of Army Regulation 27-10, Legal Services: Military Justice paragraphs 5-15, 9-5 (16 November 2005).

     d.  Fourth, after referral of charges to a court-martial, a soldier may request the military judge assigned to the case review the appropriateness of the pretrial confinement.  See R.C.M. 305(g) and (j) (Absent an abuse of discretion or new evidence establishing the soldier should be released, the military judge does not have the authority to overturn a 7-day reviewing officer’s decision that pretrial confinement should continue).

As discussed in my earlier post here, a soldier may file an Article 13 motion for unlawful pretrial punishment if the conditions of the confinement are “more rigorous than the circumstances require” to ensure the soldier’s presence at trial.  This motion, however, much like the pretrial confinement review by the military judge, must take place after referral.

Inspector General

Each service has a regulation that governs the activity of its respective Inspector General (IG).  In the Army, for instance, that regulation is Army Regulation 20-1 while in the Navy SECNAV Instruction 5430.57G details the IG’s mission and function.  While it is true that a pretrial confinee may complain to the IG about the conditions of his confinement, the IG’s role in any such case is limited.  Essentially, the IG can only investigate a complaint and then is required to turn the matter over to the command, a criminal investigative unit, or the Judge Advocate’s office.  For instance:

     a)  Under Army Regulation 20-1, when the IG receives allegations of a criminal nature it must refer the matter to the Criminal Investigation Command (CID) or the Provost Marshal.  See U.S. Department of the Army Regulation 20-1, Inspector General Activities and Procedures (29 March 2002) [hereinafter AR 20-1] para. 8-10c(4)(a).  Likewise, under NAVSEC Instruction para. 7(c) the Navy Inspector General “shall avoid investigations that focus on individual criminal activity, because those types of investigations fall within the expertise and authority of NCIS.”

     b)  The IG should not intervene in situations that have other means of redress or remedy until the complainant has exhausted all administrative remedies, including appeal procedures.  In such cases, IG involvement will be limited to a due process review.  See AR 21-1, para. 4-4f-k; NAVSEC 5430.57G, para 7.  The following areas are generally not appropriate for IG intervention: courts-martial, nonjudicial punishment, evaluation reports, involuntary separation actions, reports of survey, reprimands, claims, and complaints made under Article 138, Uniform Code of Military Justice.  See AR 21-1, para 4-4j; NAVSEC 5430.57G, para 7.

Even if the Inspector General does investigate an issue, it has no power of enforcement.  Instead, the results of the investigation are turned over to the agency or command with the authority to act.  Thus, in the case of a pretrial confinement issue, this would mean the commander of the confinement facility or the Staff Judge Advocate.  In fact, the Navy IG recommends complaints regarding treatment of prisoners should be addressed directly to the Staff Judge Advocate’s Office.  See U.S. Navy Inspector General Agency, Treatment of Prisoners, at here (last visited Dec. 30 2010).

Given the above, the best chance a soldier has to address pretrial confinement conditions is to raise the issue directly with the confinement facility, the chain of command and the Staff Judge Advocate.  If relief is not granted after raising it with the confinement facility, the chain of command and the Staff Judge Advocate, then the next opportunity to address the issue is after referral with the military judge.

23 December 2010

Manning's Holiday Statement

"I greatly appreciate everyone's support and well wishes during this time.  I am also thankful for everything that has been done to aid in my defense.  I ask that everyone takes the time to remember those who are separated from their loved ones at this time due to deployment and important missions.   Specifically, I am thinking of those that I deployed with and have not seen for the last seven months, and of the staff here at the Quantico Confinement Facility who will be spending their Christmas without their family."

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.

Media Inquires

Our law office receives numerous media inquires.  Due to the volume, we are unfortunately unable to respond personally to each and every inquiry.  Mr. Coombs is happy to work with the media to provide access to general information concerning the Manning case, or to provide comment on news stories where appropriate.  For all media inquires, please contact our law office at info@armycourtmartialdefense.com.

18 December 2010

A Typical Day for PFC Bradley Manning

PFC Manning is currently being held in maximum custody. Since arriving at the Quantico Confinement Facility in July of 2010, he has been held under Prevention of Injury (POI) watch.

His cell is approximately six feet wide and twelve feet in length.

The cell has a bed, a drinking fountain, and a toilet.

The guards at the confinement facility are professional. At no time have they tried to bully, harass, or embarrass PFC Manning. Given the nature of their job, however, they do not engage in conversation with PFC Manning.

At 5:00 a.m. he is woken up (on weekends, he is allowed to sleep until 7:00 a.m.). Under the rules for the confinement facility, he is not allowed to sleep at anytime between 5:00 a.m. and 8:00 p.m. If he attempts to sleep during those hours, he will be made to sit up or stand by the guards.

He is allowed to watch television during the day. The television stations are limited to the basic local stations. His access to the television ranges from 1 to 3 hours on weekdays to 3 to 6 hours on weekends.

He cannot see other inmates from his cell. He can occasionally hear other inmates talk. Due to being a pretrial confinement facility, inmates rarely stay at the facility for any length of time. Currently, there are no other inmates near his cell.

From 7:00 p.m. to 9:20 p.m., he is given correspondence time. He is given access to a pen and paper. He is allowed to write letters to family, friends, and his attorneys.

Each night, during his correspondence time, he is allowed to take a 15 to 20 minute shower.

On weekends and holidays, he is allowed to have approved visitors see him from 12:00 to 3:00 p.m.

He is allowed to receive letters from those on his approved list and from his legal counsel. If he receives a letter from someone not on his approved list, he must sign a rejection form. The letter is then either returned to the sender or destroyed.

He is allowed to have any combination of up to 15 books or magazines. He must request the book or magazine by name. Once the book or magazine has been reviewed by the literary board at the confinement facility, and approved, he is allowed to have someone on his approved list send it to him. The person sending the book or magazine to him must do so through a publisher or an approved distributor such as Amazon. They are not allowed to mail the book or magazine directly to PFC Manning.

Due to being held on Prevention of Injury (POI) watch:

PFC Manning is held in his cell for approximately 23 hours a day.

The guards are required to check on PFC Manning every five minutes by asking him if he is okay. PFC Manning is required to respond in some affirmative manner. At night, if the guards cannot see PFC Manning clearly, because he has a blanket over his head or is curled up towards the wall, they will wake him in order to ensure he is okay.

He receives each of his meals in his cell.

He is not allowed to have a pillow or sheets. However, he is given access to two blankets and has recently been given a new mattress that has a built-in pillow.

He is not allowed to have any personal items in his cell.

He is only allowed to have one book or one magazine at any given time to read in his cell. The book or magazine is taken away from him at the end of the day before he goes to sleep.

He is prevented from exercising in his cell. If he attempts to do push-ups, sit-ups, or any other form of exercise he will be forced to stop.

He does receive one hour of “exercise” outside of his cell daily. He is taken to an empty room and only allowed to walk. PFC Manning normally just walks figure eights in the room for the entire hour. If he indicates that he no long feels like walking, he is immediately returned to his cell.

When PFC Manning goes to sleep, he is required to strip down to his boxer shorts and surrender his clothing to the guards. His clothing is returned to him the next morning.