21 January 2011

Article 138 Complaint

On Wednesday January 19, 2011, the defense filed an Article 138 complaint with the Quantico base commander, Colonel Daniel Choike. The Article 138 complaint is a complaint filed under the Uniform Code of Military Justice to address a perceived wrong against a soldier by his command. The defense asserts that the action of holding PFC Manning in Maximum (MAX) custody, under Prevention of Injury (POI) watch for over five months and recently placing him under suicide risk was an abuse of CWO4 James Averhart’s discretion, and a wrong within the meaning of Article 138, UCMJ. As redress, the defense has requested that Colonel Choike order PFC Manning’s removal from suicide risk and POI watch and that he order the reduction of PFC Manning classification level from MAX to MDI.

By way of background, PFC Manning was transferred to the Quantico Brig on July 29, 2010. Upon his arrival, he was placed in MAX custody and under suicide risk. On August 6, 2010, the forensic psychiatrist for the Brig recommended that he be moved from suicide risk to POI watch. That recommendation was followed and PFC Manning was moved to POI watch. Due to his improvement and adjustment to confinement, on August 27, 2010, the Brig’s forensic psychiatrist recommended that PFC Manning be taken off of POI watch and that his confinement classification be changed from MAX to Medium Custody In (MDI).

Over the course of the following three months, two separate forensic psychiatrists consistently stated that there was no medical reason for PFC Manning to be under POI watch. The only exception to this was on December 10, 2010 when it was recommended that PFC Manning remain under POI watch for one week. The following week, the forensic psychiatrist once again recommended that PFC Manning be removed from POI watch. Despite these consistent recommendations, PFC Manning has remained on POI watch and in MAX custody.

On January 18, 2011, over the recommendation of two forensic psychiatrists, the commander of the Quantico Brig, CWO4 Averhart, placed PFC Manning under suicide risk. The suicide risk assignment meant that PFC Manning was required to remain in his cell for 24 hours a day. He was stripped of all clothing with the exception of his underwear. His prescription eyeglasses were taken away from him. He was forced to sit in essential blindness with the exception of the times that he was reading or given limited television privileges. During those times, his glasses were returned to him. Additionally, there was always a guard sitting outside of his cell watching him.

The Army Staff Judge Advocate’s Office was made aware of this situation on January 19, 2011. To its credit, the Army Staff Judge Advocate’s Office worked through the military channels at the request of the defense to ensure that the Quantico Brig conducted a timely review of the necessity for the suicide risk restrictions. Based upon this review, CWO4 Averhart removed the suicide risk restrictions at 3:21 p.m. yesterday and placed PFC Manning back into POI watch.

Life for PFC Manning, however, is not much better now that he has been returned to POI watch. Like suicide risk, he is held in solitary confinement. For 23 hours per day, he will sit in his cell. The guards will check on him every five minutes by asking him if he is okay. PFC Manning will be required to respond in some affirmative manner. At night, if the guards cannot see him clearly, because he has a blanket over his head or is curled up towards the wall, they will wake him in order to ensure that he is okay. He will receive each of his meals in his cell. He will not be allowed to have a pillow or sheets. He will not be allowed to have any personal items in his cell. He will only be allowed to have one book or one magazine at any given time to read. The book or magazine will be taken away from him at the end of the day before he goes to sleep. He will be 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 will receive one hour of exercise outside of his cell daily. The guards will take him to an empty room and allow him to walk. He will usually just walk in figure eights around the room until his hour is complete. When he goes to sleep, he will be required to strip down to his underwear and surrender his clothing to the guards.

The Article 138 complaint will now be forwarded from Colonel Choike to the officer exercising general court-martial jurisdiction over CWO4 Averhart. This officer is required to inquire into the complaint and take proper measures for redressing the wrong complained of by PFC Manning. Afterwards, the matter must be sent to the Secretary of the Navy for review.


  1. Yes, thank you for the update.

  2. I read that article 10 of the UCMJ has a more exacting speedy trial requirement than the Sixth Amendment. Why is Manning still held without charge or trial?

  3. Thank you for this update but why did it take so long to file an Article 138 after the forensic psychiatrist's recommendation that he be moved into MDI?

  4. Dear David Coombs,

    Thanks for the update.

    On Martin Luther King Day, antiwar activists staged a demonstration outside the Quantico Base, likely at the Route 1 entrance. The demonstration included civil disobedience! :)

    And how did Bradley's confinement conditions change?

    "On January 18, 2011, over the recommendation of two forensic psychiatrists, the commander of the Quantico Brig, CWO4 Averhart, placed PFC Manning under suicide risk. The suicide risk assignment meant that PFC Manning was required to remain in his cell for 24 hours a day. He was stripped of all clothing with the exception of his underwear. His prescription eyeglasses were taken away from him. He was forced to sit in essential blindness with the exception of the times that he was reading or given limited television privileges. During those times, his glasses were returned to him. Additionally, there was always a guard sitting outside of his cell watching him."

    This lasted until yesterday afternoon, as you reported, thanks to the good auspices of the Army Staff Judge Advocate’s Office. :)

    BTW, I saw the WUSA Channel 9 video of the demonstration at their website. At the very end, the reporter stated that the Brig officials told him thay "They were treating Bradley Manning no different than any other National Security detainee." In other words, like a so-called "illegal enemy combatant!"

    Now we know the government intends to make Bradley pay for anything we on the outside do for him. It is obvious to me that they intend to break, destroy or kill him before his trial. Where is the evidence? Do they have to make it up? Because as far as I'm concerned, they don't have any!

    We expected better from Obama. Should have voted for McCain. X(

  5. Has the ACLU offered you or your client any support, financial or as a legal resource ?

  6. His pretrial detention conditions are better than many in Jails in Arizona, Florida and Texas on minor charges.

    Make an administrative complaint in those jails and:

    24 hour confinement stripped to underwear, no bedding, no books, papers or other personal items, only out every 3 days for 15 mins to shower, shave or brush teeth, meals provided without utensils, no medical care, gross indifference.

  7. Thank you Mr. Coombs, for defending Bradley Manning. The state of our military is horrifying -- the injustice of keeping Mr. Manning at all is wrong; and to keep him under these conditions is something that no American should condone. I hope that Bradley Manning knows of the support that so many people are feeling for him in his agony.

  8. How do we have the gaul to say anything to China about their civil liberties abuses when we treat Manning and countless others in this appauling way. America had better look to cleaning up her own act first before pointing fingers at others.

  9. It just gets worse and worse. My heart breaks for Bradley, and I am outraged beyond words. Please sign this petition to let Barack Obama and his administration know that we are not tolerating this: http://act.ly/2w7 Please sign! I know it will make a difference.

  10. Thank you for working to defend this almost certainly innocent man from treatment unsuitable even for the most hardened war criminal. I only wonder why it is the case that things seem to be moving so slowly. He has been in this confinement for approaching six months. Why hasn't Obama intervened? Why hasn't an emergency injunction been filed?

  11. This is really stupid. If he is a bad guy, they're making him into a martyr. Further, these type of confinements could make a sane guy crazy.

  12. hey you do the crime you gotta do the time

  13. What does out government hope to get out of treating anyone this way? I believe right will ALWAYS find a way no matter how hard they try to supress the truth it WILL become known. Instead they're trying to coerce some false espionage confession from someone who acted out of conscious if only more of us had Manning's courage this world of ours wouldn't be so fucked up.

  14. David, in your opinion what can the rest of us do to be helping end Manning's unecessary and cruel confinement? I don't have any money to give to the defense fund or I would but I'd walk across burning coals to help this brave kid be treated with at least some dignity and respect.

  15. DavidmHouse just refused entry to Quantico

  16. Hope u got the message re davidmhouse and jane hamsher not being allowed in to see Bradley.. their car is now impounded and they are still not being allowed to go!! please can u check that Bradley is ok thanks

  17. Thank you for keeping the Manning case in the public eye. When are war crimes charges going to be brought against the USA for their violent, incompetent, invasion of Iraq?

  18. Has Manning agreed to give up his right to a speedy trial or not? If he hasn't this is outrageous. I cannot imagine why he would.

  19. How can a government get a delay in the speedy trial rule when they have the defendant locked up in solitary? What is the reasoning behind it. Why haven't they even had an article 15?

  20. "What does out government hope to get out of treating anyone this way?"

    Why, I would have thought that the answer is clear. Under current US law, it is not illegal for a civilian to be in possession of, or publish secret documents -- comments of the chattering classes to the contrary. If it WERE illegal, then every news source would be out of business, and every journalist behind bars -- because this is *a large portion of what they do*: they publish "secret" information.

    So, what does this have to do with Manning? Well for him to leak classified information -- if he did do so, remember that he has the right to a fair trial -- is, sadly, a serious offense. But Manning is NOT the fish that the DOJ/DOD want to fry here; they want WikiLeaks. And WikiLeaks, as civilians, are under no obligation to not publish classified information (just think: Pentagon Papers). The only possible way they could legally prosecute WikiLeaks is if they -- Assange specifically, in this case -- had *induced* Manning to leak the classified material. It IS illegal to incite a crime like this. However, the DOJ has admitted that it simply can't find any information that would implicate WikiLeaks as inciting this leak, as opposed to simply publishing the docs. If they can't get the evidence, they can't go after WikiLeaks (legally, anyway).

    So when you look at it in this light; when you realize that Manning is, sadly, the small fish here, you realize the game that's being played. They're trying to induce Manning to "confess" that Assange induced him to leak the classified material, so they (DOJ/DOD) can go after Assange in a legally-blessed manner. But apparently this didn't happen or Manning won't say that it did, so they're torturing him -- in hopes that he'll "confess" this incitement. Of course such a confession would be inadmissible under the law (cf: 5th amendment), but that's never stopped them.

    In short: they are torturing Bradley Manning in hopes of inducing him to confess that Adrian Assange incited him to leak the documents. Assange is the real target, not Manning. Poor PFC Manning is just the little fish here who happened to get caught.

    It makes me sick to think about what my country does in my name.

  21. David, David House, the only one who visits regularly these days, has reported on your Article 138 Complaint. The Video is here:


    I can't find the video anyplace else.

    Last weekend Quantico Brig officials wouldn't let David House see Bradley Manning yet detained him for TWO HOURS. This is getting to be beyond disgusting. Looks like the UCMJ, like The Constitution, is just worthless paper with ink on it. Both can be violated with impunity by the government nomenklatura when they feel like it. But woe unto any underling or civilian who tries the same!

  22. To Anonymous at January 22, 2011, 3:53 AM: Whatever happened to innocent before guilty? Even under the UCMJ you're not supposed to do the time (at least not beyond 120 days' worth) until after you're convicted and sentenced.

    Innocent or guilty hero, this government is going to make a martyr out of this guy!

  23. As MSNBC explained last night, the suicide watch came because Manning allegedly disobeyed the order of two guards.


    If the allegations are true, it's possible, nay, probable that he couldn't COMPREHEND the orders because his MIND has fallen apart!!!

    There really needs to be a serious inquest into all of this and because of the Government's dilly-dallying, shilly-shallying on Manning's case, the charges need to be dismissed WITH PREJUDICE.


  24. Uh-huh. Not surprised at all that David House wasn't allowed to see Manning. Thought that this would happen directly after I saw his interview on tv.

    I'm wondering why the media (like NYT) who also posted the leaks don't report anything about B.Manning, though. IF - the important word here - B.Manning actually stole this material (and I hardly doubt this was just done by ONE person), then why do they abandon him. WIthout the person(s) who stole all that material the media couldn't have reported about all that.

    Also, hard to understand why NOTHING really happens in Manning's case. DOD doesn't look good here either, once again!

    Best wishes to Bradley Manning, even though I think he's toast. Sad but true.

  25. Join us in prayer for Bradley Manning:

    Our Father in heaven,
    Your name is Holy. God we come to you to search our hearts, to free us of sin and to give us guidance.
    We praise you for the enduring truth of your 2000 year old prophesy, warning us that a time will come when all that is concealed will be disclosed and what is secret will be made known. Through your servant, Paul, you did not only tell us to distance ourselves from evil deeds done in secrecy, but also commanded us to expose them. Let thy kingdom come, let thy will be done.
    Lord we thank you for what Bradley Manning has done. When Your Spirit touched upon his conscience he exposed many evil deeds done in secrecy. Forgive us our failure to have the courage to do the same. We want to thank you for your mercy by praying for Bradley.
    His accusers have drawn a circle to isolate him – let Your Spirit craft a sphere of companionship in which we can join him.
    When they embarrass him by taking his clothes, please clothe his soul with the splendour of your angels’ wings.
    When they stop him from walking or exercising, let him continue to walk in the hearts of his tormentors. Let the echoes of his footsteps continuously amplify the sound of righteousness until it becomes so unbearable that they will long to seek your forgiveness.
    When they take his glasses to let him stumble in blindness, let him see the glory of his suffering through your eyes.
    When they refuse him a pillow or a blanket, let his head rest in your loving arms. Please comfort and console him.
    They have already branded him a traitor, effectively buried him in a cave and threatened to let him rot there for the remainder of his life – to some only death will do. But Lord as you raised Lazarus from the grave through a spoken word; we call on you to roll back the cave door at Quantico and to call Bradley by his name.
    We ask you to bless his accusers, custodians and enemies. Don’t let us yield to the temptation of condemnation, but rescue us from the evil spirit of darkness.
    Bless America, its soldiers and its guardians. Lord, let your light not only shine upon them, but through them.

  26. Bradley Manning is not the person who revealed political secrets. He is not proven guilty.

    Instead of using his name to express a political vision, just say: I sara smith like political secrets being revealed. Use your own name instead of his.

  27. Mr. Combs, I plan to advocate for Soldiers upon my release from active duty. I am a mental health worker who faces similar problems on a smaller scale and know many suffer abuse. I hope to someday converse with and/or visit this Soldier.


The Law Office of David E. Coombs invites you to express your opinions and engage in discussions with one another by leaving comments on our blogs. While we encourage an open forum, please refrain from posting offensive, obscene, threatening or abusive comments. Our office reviews all comments prior to posting and reserves the right to moderate or remove any comment.