2. Motion for Continuance
The Order to Keep PFC Manning Subject to the Harshest Conditions Possible
In its Article 13 motion, the Defense argues that a decision had been made early on at Quantico to keep PFC Manning in MAX Custody and in Prevention of Injury (POI) status -- in effect, the functional equivalent of solitary confinement. In January 2011, multiple Brig officials held a meeting where a senior officer ordered that PFC Manning would be held in maximum custody and POI indefinitely. The senior officer stated that “nothing is going to happen to PFC Manning on my watch.” He also said, “nothing’s going to change. He won’t be able to hurt himself and he won’t be able to get away, and our way of making sure of this is that he will remain on this status indefinitely.” At that point, a Brig psychiatrist became very upset and voiced his concerns, stating something to the effect of, “Sir, I am concerned because if you’re going to do that, maybe you might want to call it something else, because it’s not based on anything from behavioral health.” In response the senior officer said, “We’ll do whatever we want to do. You [the Brig psychiatrists] make your recommendation and I have to make a decision based on everything else.” The psychiatrist responded, “Then don’t say it’s based on mental health. You can say it’s MAX custody, but just don’t say that we’re somehow involved in this.” The senior officer said, “That’s what we’re going to do.” The senior officer made it clear to those present at the meeting that the decision to keep PFC Manning in MAX and POI was coming from those higher in the chain of command.
Multiple Brig psychiatrists recommended for almost nine months that PFC Manning be downgraded from POI status. The psychiatrists informed Quantico Brig officials that PFC Manning’s POI status was not warranted because he did not present a risk to himself and that the POI status was actually causing PFC Manning psychological harm. The psychiatrists’ recommendations were outright ignored by Quantico officials.
The Egregious Conditions of PFC Manning’s Confinement
The Article 13 motion also chronicles the conditions of PFC Manning’s confinement at Quantico. PFC Manning was placed in a 6x8 cell with no window or natural light. Owing to his classification as a MAX detainee, PFC Manning was subject to the following restrictions:
- PFC Manning was placed in a cell directly in front of the guard post to facilitate his constant monitoring.
- PFC Manning was awoken at 0500 hours and required to remain awake in his cell from 0500 to 2200 hours.
- PFC Manning was not permitted to lie down on his rack during the duty day. Nor was PFC Manning permitted to lean his back against the cell wall; he had to sit upright on his rack without any back support.
- Whenever PFC Manning was moved outside his cell, the entire facility was locked down.
- Whenever PFC Manning was moved outside his cell, he was shackled with metal hand and leg restraints and accompanied by at least two guards.
- From 29 July 2010 to 10 December 2010, PFC Manning was permitted only 20 minutes of “sunshine call.” Aside from a 3-5 minute shower, this would be the only time PFC Manning would regularly spend outside his cell. During this sunshine call, he would be brought to a small concrete yard, about half to a third of the size of a basketball court. PFC Manning would be permitted to walk around the yard in hand and leg shackles, while being accompanied by a Brig guard at his immediate side (the guard would have his hand on PFC Manning’s back). Two to three other guards would also be present observing PFC Manning. PFC Manning would usually walk in figure-eights or some other pattern. He was not permitted to sit down or stay stationary.
- Initially, Brig guards provided PFC Manning with athletic shoes without laces which would fall off when he attempted to walk. PFC Manning elected to wear boots instead because at least the boots would stay on when he walked.
- From 10 December 2010 onward, PFC Manning was permitted a one hour recreation call. At this point, the Brig authorized the removal of his hand and leg shackles and PFC Manning was no longer required to be accompanied by a Brig guard at his immediate side. Although PFC Manning was technically “permitted” to use exercise equipment at the gym, most of this equipment was unplugged or broken down. In addition, depending on the guards, they would not permit him to use certain types of equipment (e.g. the chin up bar). So as to avoid any problems with the guards, PFC Manning would usually walk around the room as he had during his sunshine calls. Three or four guards would be monitoring PFC Manning during his recreation call.
- PFC Manning was only authorized non-contact visits. The non-contact visits were permitted on Saturdays and Sundays between 1200 and 1500 hours by approved visitors. During these visits, he would have to wear his hand and leg restraints.
- PFC Manning was required to meet his visitors in a small 4 by 6 foot room that was separated with a glass partition. His visits were monitored by the guards and they were audio recorded by the Brig. The recording equipment was added by Army CID after PFC Manning’s transfer to the Quantico Brig.
- PFC Manning was only permitted non-contact visits with his attorneys. During these visits, he was shackled at the hands and feet.
- PFC Manning was not permitted any work duty.
Owing to PFC Manning being placed on continuous POI status, he was subject to the following further restrictions:
- PFC Manning was subject to constant monitoring; the Brig guards were required to check on him every five minutes by asking him some variation of, “are you okay?” PFC Manning was required to respond in some affirmative manner. Guards were required to make notations every five minutes in a logbook.
- At night, if the guards could not see him clearly, because he had a blanket over his head or he was curled up towards the wall, they would wake PFC Manning in order to ensure that he was okay.
- At night, only some of the lights would be turned off. Additionally, there was a florescent light in the hall outside PFC Manning’s cell that would stay on at night.
- PFC Manning was required to receive each of his meals alone in his cell. He was only permitted to eat with a spoon.
- There were usually no detainees on either side of PFC Manning. If PFC Manning attempted to speak to those detainees that were several cells away from him, the guards would order him to stop speaking.
- PFC Manning originally was provided with a standard mattress and no pillow. PFC Manning tried to fold the mattress to make a pillow so that he could be more comfortable when sleeping. Brig officials did not like this, so on 15 December 2010 they provided him with a suicide mattress with a built-in pillow. This built-in pillow was only a couple of inches high and was not really any better than sleeping on a flat mattress.
- PFC Manning was not permitted regular sheets or blankets. Instead he was provided with a tear-proof security blanket. This blanket was extremely coarse and irritated PFC Manning’s skin. At first, PFC Manning would get rashes and carpet burns on his skin from the blanket. Eventually, his skin became accustomed to the coarseness of the blanket and he got fewer rashes. The blanket did not keep PFC Manning warm because it did not retain heat and, due to its stiffness, did not contour to his body.
- PFC Manning was not allowed to have any personal items in his cell.
- PFC Manning was only allowed to have one book or one magazine at any given time to read. If he was not actively reading, the book or magazine would be taken away from him. Also, the book or magazine would be taken away from him at the end of the day before he went to sleep.
- For the last month of his confinement at Quantico, PFC Manning was given a pen and five pieces of paper along with his book. However, if he was not actively reading his book and taking notes, these items would be taken away from him.
- PFC Manning was prevented from exercising in his cell. If he attempted to do push-ups, sit-ups, or any other form of exercise he would be forced to stop.
- When PFC Manning went to sleep, he was required to strip down to his underwear and surrender his clothing to the guards.
- PFC Manning was only permitted hygiene items as needed. PFC Manning would have to request toilet paper every time he wanted to go to the bathroom; at times, he had to wait for guards to provide him with toilet paper.
- There was no soap in his cell. PFC Manning requested soap to wash his hands after using the bathroom; guards would sometimes get the soap, and sometimes not.
- PFC Manning was not permitted to wear shoes in his cell.
- PFC Manning was initially only permitted correspondence time for one hour a day; after 27 October 2010, this was changed to two hours per day.
The 18 January 2011 Incident
On two separate occasions, Brig officials elected to increase the special handling instructions on PFC Manning. The first occurred on 18 January 2011, the day after a protest outside the gates of Quantico. On that day, Brig guards harassed PFC Manning as they escorted him to his recreation call. The first guard told PFC Manning to “turn left.” When he complied, the second guard yelled, “don’t turn left.” When PFC Manning attempted to comply with the demands of the second guard, he was told by the first, “I said turn left.” PFC Manning responded, “yes, Corporal” to the first guard. At this point, the third guard chimed in by telling PFC Manning that “in the Marine Corps we reply with ‘aye’ and not ‘yes.’” He then asked PFC Manning if he understood. PFC Manning made the mistake of replying “yes, Sergeant.” At this point the fourth guard yelled, “you mean ‘aye,’ Sergeant.” When PFC Manning arrived at the recreation room, he was told to stand still so the guards could remove his leg restraints. As PFC Manning stood still, one of the guards yelled, “I told you to stand still.” PFC Manning replied, “yes Corporal, I am standing still.” Another guard then said, “you mean ‘aye’ Corporal.” Next, the same guard said “I thought we covered this, you say ‘aye’ and not ‘yes,’ do you understand?” PFC Manning responded, “aye Sergeant.” Right after PFC Manning replied, he was once again yelled at to “stand still.” Due to being yelled at and the intensity of the guards, PFC Manning mistakenly replied, “yes Corporal, I am standing still.” As soon as PFC Manning uttered his response he attempted to correct himself by saying “aye” instead of “yes,” but it was too late. One of the guards starting yelling at PFC Manning again, “what don’t you understand” and “are we going to have a problem?” Once the leg restraints were taken off of PFC Manning, he took a step back from the guards. PFC Manning’s heart was pounding in his chest, and he could feel himself getting dizzy. A Brig psychiatrist determined that this event was likely an anxiety attack due to the situation. After his restraints were removed, PFC Manning sat down to avoid falling. When he did this, the guards took a step towards him. PFC Manning instinctively backed away from the guards. As soon as PFC Manning backed away, the guards walked toward him as if to prepare to restrain PFC Manning. PFC Manning immediately put his hands up in the air, and said “I am not doing anything, I am just trying to follow your orders.” The guards then told PFC Manning to start walking. PFC Manning complied with their order by saying “aye” instead of “yes.” After recreation call, when he was back in his cell, PFC Manning was visited by a senior Brig official. PFC Manning tried to explain what happened earlier in the day. He also expressed his frustration at the conditions of his confinement. The Brig official said “no one will tell me what to do.” He also said that he was, for all practical purposes, “God.” PFC Manning responded by saying, “you still have to follow Brig procedures.” PFC Manning also said, “everyone has a boss that they have to answer to.” The Brig official then placed PFC Manning in Suicide Risk status, over the recommendation of a Brig psychiatrist. This resulted in PFC Manning being subject to the following additional restrictions:
- From 18 January 2011 until 20 January 2011, PFC Manning was forced to strip down to his underwear during the day.
- From 18 January 2011 until 20 January 2011, PFC Manning was forced to sleep naked at night.
- From 18 January 2011 until 20 January 2011, PFC Manning’s eyeglasses were taken away from him.
- From 18 January 2011 until 20 January 2011, PFC Manning was not permitted out of his cell and was on 24-hour suicide watch.
The 2 March 2011 Incident
The second incident where the special handling restrictions were increased arose on 2 March 2011. On that date, PFC Manning was informed that no relief would be granted with respect to PFC Manning’s previously-filed Article 138 Complaint. Understandably frustrated by this decision after enduring (at that point) over seven months in unduly harsh confinement conditions, PFC Manning asked a Brig official what he needed to do in order to be downgraded from MAX and POI. The Brig official responded by essentially telling PFC Manning that there was nothing he could do to downgrade his detainee status and that the Brig simply considered him a risk of self-harm. Out of frustration, PFC Manning responded that the POI restrictions were absurd. PFC Manning sarcastically told the Brig official that if he wanted to harm himself, he could conceivably do so with the elastic waistband of his underwear or with his flip-flops. Later that day, Quantico officials increased the restrictions imposed upon PFC Manning under the pretense that PFC Manning was a suicide risk. PFC Manning was not, however, placed under the designation of Suicide Risk. In order to keep PFC Manning in Suicide Risk, Quantico would have needed a supporting recommendation from one of the Brig’s mental health providers (which Quantico did not have). In response to this specific incident, a Brig psychiatrist met with the PFC Manning. After speaking to PFC Manning, he assessed PFC Manning as a “low risk and requiring only routine outpatient follow-up [with] no need for ... closer clinical observation.” In particular, he indicated that PFC Manning’s statement about the waist band of his underwear was in no way prompted by “a psychiatric condition.” Rather it was part of his process of “intellectualizing” the conditions of his confinement. The increase in the special handling instructions resulted in PFC Manning being subject to the following additional restrictions:
- From 2 March 2011 until 6 March 2011, PFC Manning was forced to surrender all his clothing at night and sleep naked.
- From 2 March 2011 until 6 March 2011, PFC Manning was forced to surrender his eyeglasses during the day and at night. After 6 March 2011, his eyeglasses were returned to him during the day, but continued to be removed from him at night.
- On 3 March 2011 until 6 March 2011, PFC Manning forced to stand naked at parade rest where he was in view of multiple guards.
- From 7 March 2011 onward, PFC Manning was required to wear a heavy and restrictive suicide smock which irritated his skin and, on one occasion, almost choked him.
On 20 April 2011, after enduring nearly nine months of solitary confinement, PFC Manning was moved to the Fort Leavenworth Joint Regional Correctional Facility. After a routine indoctrination period, PFC Manning was assigned to Medium Custody (there is no designation of Minimum Custody for pretrial detainees). The severe restrictions on PFC Manning’s liberty were lifted. PFC Manning is now permitted to eat with other detainees, socialize with other detainees, walk around without metal shackles, have personal and hygiene items in his cell, etc. PFC Manning has been held in this status for approximately the past 15 months.
11th Hour Revelations That Implicate Officers Much Higher in the Chain of Command
PFC Manning was held at Marine Corps Base Quantico from 29 July 2010 to 20 April 2011. During this time, PFC Manning was held in MAX custody and under POI status. In the fall of 2010, the Defense raised the issue of unlawful pretrial punishment with the Government. On 8 December 2010, the Defense made a discovery request for all documentation from Quantico pertaining to PFC Manning. The Government provided extensive documentation related to PFC Manning’s confinement at Quantico in October of 2011. The Defense believed that this was the full extent of the information the Government had from Quantico.
The deadline for the Defense to file the Article 13 motion was 27 July 2012. On 26 July 2012, the Defense informed the Court and the Government that it would be sending the attachments for the Article 13 motion by Fed-Ex. The attachments exceed 500 pages. The Government did not indicate to the Defense not to mail the attachments.
On the evening of 26 July 2012 (after the Defense’s attachments had already been sent), the Government informed the Defense that it had discovered 84 emails that had not yet been produced that were “obviously material to the preparation of the defense.” At approximately 21:15, the Government sent the Defense the 84 emails. The Government indicated that it received these emails from Quantico approximately 6 months ago. However, the Government did not begin reviewing the emails until 25 July 2012.
These emails reveal that the senior Brig officer who ordered PFC Manning to be held in MAX and in POI was receiving his marching orders from a three-star general. They also reveal that everyone at Quantico was complicit in the unlawful pretrial punishment, from senior officers to enlisted marines.
The Defense requested a continuance to file a supplement to the Article 13 motion based on the late production of the 84 emails. In addition, the Defense filed a discovery request seeking more documentation from the numerous “players” that the Defense did not know were involved in PFC Manning’s custody classification. The Government has indicated that it is currently looking into determining whether such documentation exists. The Defense will likely be required to file a motion to compel discovery in order to obtain this documentation.
The filing deadline for the Supplement to the Article 13 motion is 24 August 2012. The Defense believes that if it receives additional discovery, a further supplement to the motion will be necessary. Further, the Defense will supplement its witness list based on the information in the 84 emails. The Defense anticipates that approximately 10 more individuals will be added to the Defense’s witness list.
The oral argument for the Article 13 motion is currently scheduled for 1-5 October 2012.