26 January 2011

PFC Bradley Manning Is Not Being Treated Like Every Other Detainee

Despite the assertion of Pentagon Press Secretary Geoff Morrell, PFC Bradley Manning is not being treated like every other detainee at the Quantico brig.  Morrell stated during today’s Pentagon briefing that PFC Manning’s “confinement is not in the least different from the manner in which anyone else at the brig is being held.”  This statement is patently false. 

PFC Manning is being treated differently.  He is the only detainee being held in Maximum (MAX) custody and under Prevention of Injury (POI) watch.  Every other detainee is being held in Medium Detention In (MDI) and without POI watch restrictions.  What is the difference? 

Maximum Custody Detainees vs. Medium Detention In Detainees

Maximum Custody - PFC Manning:
Under the Secretary of Navy Instruction 1649.9C, the regulation that details the proper procedures and safeguards for classification of inmates, evaluation of inmates and the limited use of special quarters, a maximum custody detainee has the following mandatory restrictions:

(1) Supervision must be immediate and continuous. A DD 509, Inspection Record of Prisoner in Segregation, shall be posted by the cell door and appropriate entries made at least every 15 minutes.
(2) They shall not be assigned to work details outside the cell.
(3) They shall be assigned to the most secure quarters.
(4) Two or more staff members shall be present when MAX prisoners are out of their cells.
(5) MAX prisoners shall wear restraints at all times when outside the maximum-security area and be escorted by at least two escorts (confinement facility staff or certified escorts, per article 7406).

Under the above restrictions, PFC Manning is held in his cell for 23 hours a day.  Whenever he is moved outside of his cell, the entire facility is locked down.  PFC Manning must wear hand and leg restraints when he is outside of his cell.  He is escorted by at least two guards whenever he is moved.

Medium Custody In - Every other detainee:
Every other detainee is being held in MDI status.  Under the regulation, these detainees have the following restrictions:

(1) Supervision shall be continuous within the security perimeter and immediate and continuous when outside the security perimeter.
(2) They shall not be assigned to work outside the security perimeter.
(3) They shall wear restraints outside the security perimeter unless the CO/OIC/CPOIC directs otherwise.
(4) They shall be escorted by at least two confinement facility staff or certified escorts, per article 7406, unless the CO/OIC/CPOIC directs only one escort is required.
(5) They may be assigned dormitory quarters.

Under the above restrictions, every other detainee is allowed outside of their cell for the majority of the day.  The facility is not locked down when they are walking in the brig.  They do not wear hand and leg restraints outside of their cell.  They are not escorted by guards when outside of their cell.  Every other detainee is assigned to work details during the day.  These work details allow them move freely within the facility and also outside of the facility whenever within the security perimeter.


Prevention of Injury Watch vs. No Prevention of Injury Watch

Prevention of Injury Watch - PFC Manning:
In addition to the difference in custody status, PFC Manning is also being held in special quarters under POI watch.  Due to the POI watch, he is held in solitary confinement.  For 23 hours per day, he sits in his cell.  The guards check on him every five minutes by asking him if he is okay.  He is required to respond in some affirmative manner.  At night, if the guards can not see him clearly, because he has a blanket over his head or he is curled up towards the wall, they will wake him in order to ensure that he is okay.  He receives each of his meals in his cell.  He is not allowed to have a pillow or sheets.  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.  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 receives one hour of exercise outside of his cell daily.  The guards take him to a room and allow him to walk.  He usually walks in figure eights around the room.  When he goes to sleep, he is required to strip down to his underwear and surrender his clothing to the guards.   

No Prevention of Injury Watch - Every other detainee:
Every other detainee is not subjected to constant monitoring or asked if they are okay every five minutes.  Every other detainee is allowed to have sheets and a pillow.  Every other detainee may have personal items in their cell.  Every other detainee may have paper and pens in their cell in order to write to family and friends.  Every other detainee may have any combination of 15 books or magazines in their cell at all times.  Any other detainee can exercise in their cell during the day.  No other detainee has to strip to their underwear at the end of the day and surrender their clothing to the guards.
 
Secretary of the Navy Instruction (SECNAVINST) 1649.9C indicates that “only a small percentage of prisoners shall be classified as maximum.”  The reason?  Maximum custody is very onerous for the detainee and requires a large commitment of resources from the confinement facility. 


Background Information:
PFC Manning arrived at the Quantico brig on July 29, 2010.  He was placed in MAX and under suicide watch.  On August 6, 2010, the forensic psychiatrist for the brig recommended that PFC Manning be moved from suicide watch to POI.  Over the course of the following weeks, the brig forensic psychiatrist met with PFC Manning on a frequent basis.  Due to PFC Manning’s good behavior and demeanor, on August 27, 2010, the brig psychiatrist recommended that PFC Manning be taken off of POI watch and that his confinement classification be changed from MAX to MDI.  

Over the course of the following three months, the brig forensic psychiatrist consistently recommended PFC Manning be taken off of POI watch.  The only exception to this was on December 10, 2010 when he recommended that PFC Manning remain under POI watch for one week.  This was due to a rumor that had spread on Twitter suggesting that PFC Manning had committed suicide.  Due to the rumor, the brig forensic psychiatrist believed it was prudent to place PFC Manning on POI watch.  The following week, that same 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.  

The brig forensic psychiatrist’s recommendation comes as no surprise given the fact PFC Manning has been a model inmate.  At no time has he been disrespectful, violent or noncompliant.  PFC Manning does not exhibit any of the criteria normally established for MAX custody under the Navy Instruction.  Given the consistent recommendation of the brig forensic psychiatrist and PFC Manning’s model behavior, it is unclear why he is still held in MAX custody and under POI watch. 

Under SECNAVINST 1649.9C, 1201 “discipline is to be administered on a corrective rather than a punitive basis.”  Additionally SECNAVINST 1649.9C, 7202.2.i states “no persons, while being held for trial may be subjected to punishment or penalty other than arrest or confinement, nor shall the arrest or confinement imposed upon them be any more rigorous than the circumstances require.” PFC Manning’s confinement classification and his POI watch are in contravention of this mandate.

In order to ensure a servicemember is not arbitrarily maintained in solitary confinement for prolonged periods of time, SECNAVINST 1649.9C, 4204 requires a Classification and Assignment (C&A) board to establish an individual inmate’s custody classification using “objective classification/reclassification procedures.”  It is unclear what the C&A Board recommended to the confinement facility commander or the basis for its recommendation.  However, it is clear that the former commander made the determination to keep PFC Manning in MAX custody and under POI watch (and under a 2-day suicide watch last week) over the recommendation of the brig’s forensic psychiatrist.    

In order to assess the reasonableness of the brig commander’s determination, the defense requested that the brig explain the basis for its determination and why this information was apparently not deemed significant by the brig’s forensic psychiatrist – the primary individual responsible for assessing a detainee’s risk for self harm or harm to others.  It is the defense’s position that the classification of PFC Manning in MAX and under an assignment of POI is based upon an inappropriate reason and is therefore an abuse of discretion.  The defense is hoping that the new commander will conduct a complete review of the confinement classification and assignment of PFC Manning.  It is our hope that she will order his removal from POI watch and reduce his classification level from MAX to MDI. 

Only if this is done will Mr. Morrell be correct in stating that PFC Manning is being treated like every other detainee at the brig.  

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.

13 January 2011

Speedy Trial Update

On 9 January 2011, the defense filed a demand for speedy trial with the Government.  PFC Manning has been in pretrial confinement since 29 May 2010.  Since 12 July 2010, the case has been on Government requested excludable delay under R.C.M. 707(c).   This delay request by the Government was approved by the court-martial convening authority.

The case is currently awaiting the start of a Rule for Courts-Martial (R.C.M) 706 Board.  This board will likely begin its work in February.

Confinement Conditions Update

The defense has raised its objection to the documented confinement conditions of PFC Bradley Manning on multiple occasions with the Quantico confinement facility and the Staff Judge Advocate’s (SJA) Office.  On 5 January 2011, the defense filed a formal complaint with the commander of the Quantico Brig.  On the same day, PFC Manning also filed a formal complaint through the confinement grievance process.  Both complaints requested that the confinement facility remove PFC Manning from Prevention of Injury (POI) watch and that his classification level be reduced from "Maximum" to "Medium Detention In."  The confinement facility did not respond to either complaint.     

Due to the lack of response from the confinement facility, the defense, pursuant to the provisions of Rule for Courts-Martial (R.C.M.) 305(g), filed a request earlier today with the Garrison Commander to direct the release of PFC Bradley Manning from pretrial confinement.  This request is based upon the fact that the confinement conditions currently being endured by PFC Manning are more rigorous than necessary to guarantee his presence at trial, and that the concerns raised by the government at the time of pretrial confinement are no longer applicable.  Further steps to address PFC Manning's confinement conditions will be taken, if necessary.

03 January 2011

Motion to Dismiss for Lack of Speedy Trial

The Sixth Amendment right to a speedy trial is applied to military jurisprudence through two separate and distinct provisions-- Rule for Court-Martial (R.C.M.) 707 and Article 10 of the Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 810).  While both provisions seek to protect the same constitutional right, and while there is considerable overlap between the two, each provision has separate rules regarding when the protections attach and when they are breached.

Whether stemming from R.C.M. 707 or from Article 10 UCMJ, a motion to dismiss for lack of a speedy trial must be raised before the court-martial is adjourned, and it is waived by a guilty plea, as provided in R.C.M. 907(b)(2)(A) and 905(e).  Once the issue is raised, the burden of persuasion rests with the government. R.C.M. 905(c)(2)(B).  Before hearing on the motion, the parties may stipulate as to undisputed facts and dates of relevant pretrial events.  The stipulation will provide the court a chronology detailing the processing of the case. R.C.M. 707(c)(2).


R.C.M. 707

R.C.M. 707 provides that charges against an accused must be dismissed if they are not brought to trial within 120 days of the earlier of preferral, pretrial confinement, or recall to active duty under R.C.M. 204. Arraignment equals trial under R.C.M. 904.  The date the charge is preferred, pretrial restraint is imposed, or on which the accused is called to active duty does not count toward the 120 days.  The date the accused is brought to trial does count.  If the accused is released from pretrial confinement for a “significant period,” the time period runs from the earlier of preferral or re-imposition of restraint.  United States v. Reynolds, 36 M.J. 1128 (A.C.M.R. 1993).  A lesser form of restriction may be considered to be a release from confinement.

If charges are dismissed or a mistrial is granted, the speedy trial clock is reset to begin on; date of dismissal in cases where the accused remains in pretrial restraint; date of mistrial, or; earlier of re-preferral or imposition of restraint for all other cases.  R.C.M. 707(b)(3)(A), United States v. Bolado, 34 M.J. 732 (N.M.C.M.R. 1991); aff’d, 36 M.J. 2 (C.M.A. 1992).  If there is no re-preferral and the accused remains in pretrial confinement, then the time period starts the date the charges are dismissed or a mistrial is declared.  If a rehearing is ordered or authorized by an appellate court, then there is a new 120-day period.  See United States v. Becker, 53 M.J. 229 (C.A.A.F. 2000) (applying R.C.M. 707 timing requirements to a sentence rehearing but finding that remedy of dismissal of charges too severe).

A commander can dismiss charges even if there is an intent to re-institute charges at a later date.  Dismissal of charges cannot, however, be a subterfuge to avoid the 120 day speedy trial clock.  United States v. Robinson, 47 M.J. 506 (N.M.C.C.A. 1997).  Factors courts will consider to decide if  a dismissal is a subterfuge are: Convening Authority's intent, notice and documentation of action, restoration of rights and privileges of accused, prejudice to accused, and whether there were any amended or additional charges.  See also United States v. Anderson, 50 M.J. 447 (C.A.A.F. 1999), wherein CAAF finds no subterfuge under the facts of the case and declares, contrary to the Government’s concession, that the speedy trial clock was restarted on the date of dismissal.  Withdrawal by a commander under R.C.M. 604, however, does not toll running of speedy trial clock. United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994); See United States v. Tippit, 65 M.J 69 (C.A.A.F. 2007) (based upon the SJA’s advice, the Special Court-Martial Convening Authority (SPCMCA) signed a withdrawal of charges – C.A.A.F. honored the SPCMCA intent to dismiss the charges despite the misnomer and found no violation of R.C.M. 707).

Some delays are excludable from the 120-day limit under R.C.M. 707.  All periods of time during which appellate courts have issued stays in the proceedings, or the accused is hospitalized due to incompetence, or is otherwise in the custody of the Attorney General are excluded from the 120-day limit.  If after commitment under R.C.M. 909(f), the accused is returned from the custody of the Attorney General to the custody of the general court-martial convening authority, a new 120-day time period begins upon such return.

Any pretrial delays granted by the convening authority before referral or by the military judge after referral are excluded.  United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005).  The convening authority may delegate the power to grant continuances to an Article 32 investigating officer.  The Manual for Courts-Martial (M.C.M.) discussion of R.C.M. 707(c)(1) lists examples of when a pretrial delay might be granted.  These include the need for: time to enable counsel to prepare for trial in complex cases; time to allow examination into the mental capacity of the accused; time to process a member of the reserve component to active duty for disciplinary action; time to complete other proceedings related to the case; time requested by the defense; time to secure the availability of the accused, substantial witnesses, or other evidence; time to obtain appropriate security clearances for access to classified information or time to declassify evidence; or additional time for other good cause.

The decision to grant or deny a delay is subject to an abuse of discretion and reasonableness standard. United States v. Sharp, 38 M.J. 33, 37 (C.M.A. 1993).  Essentially what this means is that the determination that a delay is necessary is subject to an abuse of discretion standard of review, while the length of the delay and the diligence of the government during the delay is subject to a reasonableness standard.  The subject of a reasonable delay often arises when the defense requests a sanity board be conducted.  While a delay for this reason is specifically excluded from the time limit by R.C.M. 707(c)(1)(A), the government has an obligation to proceed with diligence.  Courts have indicated an unwillingness to hold the government to a strict standard when processing a sanity board due to the complexity and importance of such examinations.  See e.g., United States v. Badger, 7 M.J. 838 (A.C.M.R. 1979).  There are, however, cases where courts have found that the government’s processing was unreasonably slow or delays were caused by government negligence and have only excluded the amount of time that would have been reasonable.  See United States v. Carpenter, 37 M.J. 291 (C.M.A. 1993); see also United States v. McDowell, 19 M.J. 937 (A.C.M.R. 1985)(motion to dismiss brought under Article 10 UCMJ).  This standard, of course, applies equally to delays for other reasons.  See United States v. Longhofer, 29 M.J. 22 (C.M.A. 1989)(discussed time necessary for processing security clearance).

The sole remedy for a speedy trial violation is dismissal of the affected charges, with or without prejudice. According to R.C.M. 707(d), the charges must be dismissed with prejudice if the accused’s constitutional right to a speedy trial was violated.  The factors for determining whether a delay rises to the level of a constitutional violation are discussed by the U.S. Supreme Court in Barker v. Wingo, 407 U.S. 514 (1972).  The factors include the length and reasons for the delay, prejudice to the accused, and whether the accused has made a demand for a speedy trial.  If there is no constitutional violation, R.C.M. 707(d) provides that the court shall consider, among others, the following factors when deciding whether to dismiss with or without prejudice: the seriousness of the offense, the facts and circumstances of the case that led to dismissal, the impact of re-prosecution on the administration of justice, and any prejudice to the accused. United States v. Bray, 52 M.J. 659, 663 (A.F. Ct. Crim. App. 2000); see also, United States v. Dooley, 61 M.J. 258 (C.A.A.F. 2005).


Article 10

Article 10 of the UCMJ, in pertinent part, states: “When any person subject to this chapter is placed in arrest or confinement prior to trial, immediate steps shall be taken to inform him of the specific wrong of which he is accused and to try him or to dismiss the charges and release him.”  The accused must be in confinement, arrest, or subject to severe restriction in order to trigger the protections of Article 10.  Once triggered, however, Article 10 UCMJ is broader protections than those of R.C.M. 707 and of the Sixth Amendment itself.

Compliance with R.C.M. 707 does NOT equal compliance with Article 10.  United States v. Hatfield, 44 M.J. 22 (C.A.A.F 1996).  Article 10 may be violated where accused is tried in less than 120 days, or even in less than 90 days.  Many circumstances, however, may justify delays beyond these traditional periods. “The touch stone . . . is not constant motion, but reasonable diligence in bringing the charges to trial.  Brief periods of inactivity in an otherwise active prosecution are not unreasonable or oppressive.”  United States v. Kossman, 38 M.J. 258, 262 (1993) (citing United States v.Tibbs, 35 C.M.R. 322, 325 (C.M.A. 1965)).

When Article 10 UCMJ is triggered, the government must prove, by a preponderance of the evidence, that it exercised reasonable diligence in processing the case at all stages.  Note however, that this only requires reasonable diligence, not constant motion at all times.  United States v. Kossman, 38 M.J. 258 (1993).  In United States v. Burton, 21 C.M.A. 112, 44 C.M.R. 166 (1971), the Court of Military Appeals created the “Burton rule” which essentially created a rebuttable presumption that the government had not exercised due diligence if 90 days had elapsed from confinement to trial.  This presumption was eventually abrogated by Kossman.  That case returned us to the standard of reasonable diligence.  See United States v. Tibbs, 15 C.M.A. 350, 35 C.M.R. 322 (1965).  The courts look at the totality of the circumstances in determining reasonable diligence.  If there were excessive defense delays, bad faith, or obstructionism on the part of the defense, courts tend to be more lenient to the government.  Conversely, if the defense has explicitly requested a speedy trial, courts tend to look at the government with closer scrutiny.  An appropriate analysis of Article 10 includes consideration of the Barker v. Wingo factors.  See United States v. Birge, 52 M.J. 209 (C.A.A.F. 1999), United States v. Cooper, 58 M.J. 54 (C.A.A.F. 2003).  The remedy for an Article 10 violation is dismissal with prejudice.