Title: Def Motion to Dismiss for Unlawful Pretrial Punishment, 27 Aug 12

Release Date: 2014-03-20

Text: INTHE UNITEDSTATES ARMYFIRST JUDICIALCIRCUITUNITEDSTATESMOTIONTO DISMISSFOR UNLAWFULPRETRIAL PUNISHMENTMANNING, BradleyF,PFCU.S. Army, (b) (6)Headquarters and Headquarters Company, U.S.Army Garrison, Joint Base Myer Henderson Hall,FortMyer,VA 22211DATED; 27 July 2012RELIEF SOUGHT1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rulefor Courts Martial (R.C.M.) 907(a) requests this Court to dismiss all charges with prejudiceowing to the illegal pretrial punishment PFC Manning was subjected to in violation of Article 13,UCMJ and the Fifth and Eighth Amendments to the United States Constitution. Alternatively,the Defense requests that this Court grant meaningful relief to include at least 10-for-lsentencing credit.BURDEN OF PERSUASION AND BURDEN OF PROOF2. The Defense, as the moving party, bears the burden to present evidence to support PFCManning's claim of illegal pretrial punishment. This involves a "relatively low burden of proof"UnitedStates v. Scalarone, 52 M.J. 539, 544 (N-M. Ct. Crim. App. 1999). Once the Defensedoes this, the burden then shifts to the Government to present evidence to rebut the allegationbeyond the point ofinconclusiveness. See United States v. Cordova, 42 C.M.R. 466, 1970 WL7132 (A.C.M.R. 1970)("Appellate government counsel apparently contend that because theevidence is 'inconclusive' the fact of pretrial punishment has not been established. If this be theGovernment's intended conclusion, we do not agree. The burden of producing evidence insupport of a motion to dismiss on the basis of illicit punishment while an accused is confinedpending trial, is one for the defense. However, once the issue is raised—in this case by theaforementioned testimony—the burden shifts to the prosecution to rebut that evidence beyondthe point of equipoise or 'inconclusiveness.'"); United States v. Scalarone, 52 M.J. 539, 543-4(N-M. Ct. Crim. App. 1999).AMICUS FILINGS3. The Defense requests that this Court consider an amicus filing from Psychologists for SocialResponsibility. This has been filed as Attachment 41.AP??;! LA.TE RXHmTr_222r'REFERENCED:P^GE^OF rAGESUnited StatesvPFC Bradley F. ManningDefense Article 13MotionWITNESSES^EVIDENCE4. The Defense requests the following witnesses be produced for this motion:a)b)c)d)e)f)g)h)Col Robert Oltman;Capt.William Hocter;COL Ricky Malone;Capt. Brian Moore;LCDR David Moulton;LTC Dawn Hilton;Mr.JuanMendez;PFC Bradley Manning.This Court has ruled that the testimony ofMr. Juan Mendez is not relevant and necessary for thismotion.5. The Defense requests the following evidence be produced for this motion;a) Suicide Smock;b) Suicide Blanket;c) Suicide Mattress.ATTACHMENTS6. The Defense respectfully requests that this Court consider the following Attachments:1.2.3.4.5.6.7.^.9.10.11.12.Initial Custody Classification DeterminationPsychiatrists'Weekly RecommendationsSecretary ofNavy Instruction (SECNAV1NST)1640.9CSpecial Handling InstructionsObservation^Evaluation(O^E) NotesClassification^Assignment(C^A)Board ReviewsCapt. Hocter Affidavit^lCapt. Hocter Affidavit^2COF Malone AffidavitMemorandum to CW04Averhart About Conditions of Confinement,5January 2011Request for Release From Confinement,13January 2011COL Carl R.Coffrnan Jr.,Response to Request for ReliefFromConfinement,21January 201113 PFC ManningArticle 13^ Complaint, 19January 201114. PFC Manning Rebuttal to Col.Choike'sResponse to Article 13^ Complaint, lOMarch2011[hereinafter "Rebuttal to Article 13^ Complaint"]15. CW04 JamesAverhart Response to Article 13^ Complaint,24 January 2011United Statesv.PFC Bradley E. ManningDefense Article 13Motion16 CW04AverhartResponsePFCManningRebuttaltoArticle 13^ Complaint, 16March201117. Col Oltman Response to Article 13^ Complaint,31January 20111^. Col Choike Response to Article 13^ Complaint,lMarch 201119. Col.ChoikeNotificationofSeparateFilingforNewMattersRaised,6April 2011;Col.Choike Response to PFC Manning Rebuttal to Article 13^ Complaint,^April2011;PFC Manning Rebuttal ^2 and Request to Consider New Matter Raised, April1020. CW02 Denise Barnes Response to Article 13^ Complaint,7April 201121. CW02 Barnes Response to PFC Manning Rebuttal to Article 13^ Complaint, lOMay201122. CW05 Abel Galaviz Investigation in Response to Articlel3^ Complaint andAppointment Memorandum23. Juan Garcia Final Action on Articlel3^Complaint,13June 201124. Affidavits ofBrigCuards Regarding Incident onl^January 201125. Video Recording of Incident at O^^^tico Brig onl^January201126. Photo ofSuicide Prevention Smock27. Affidavit ofBrig Guard Documenting Incident Where PFC Manning wasTrapped inthe Suicide Smock2^. Amnesty International Letter29. Law Professors'Letter30. Psychologists for Social Responsibility Letter31. Furopean Leaders'Fetter32. Materials Related to the United Nations Special Rapporteur onTorture,Mr.JuanMendez33. Emails between Mr. Coombs and CPT Fein related to; a) PFC Manning'sPOI status atOtiantico;andb)arrangingaunmonitored official visit34. Ot^^^fi^^ Brig Policy onVisitation35. CW04Averhart Memorandum to the Office of the Regimental Judge Advocate,lDecember 201036. PFC Manning DD510Crievance Re; Conditions ofConfinement37. Statement from Professor Haney on Solitary Confinement and Other DocumentationFrom the United States Senate Committee on the Judiciary3^ Work Reports39. Incident Reports40. 5-minute Observation Notes(sample)41. Amicus Filing from Psychologists for Social ResponsibilityFACTS7. PFC Manning is charged with five specifications of violatingalawful general regulation, onespecification of aiding the enemy,one specification of conduct prejudicial to good order anddiscipline and service discrediting, eight specifications ofcommunicating classified information,five specifications of stealing or knowingly converting govemment property,and twoUnited Statesv.PFC Bradley E. ManningDefense Article 13Motionspecifications ofknowingly exceeding authorized access toagovemment computer, in violationof Articles 92, 104, andl34. Uniform CodeofMilitaryJustice(LCMJ)10U.S.C.^^ ^92, 904,934(2010). PFC Manning has been held in pretrial confinement since 29 May 2010,atotal of791 days. For 265 ofthese days, PFC Manning was held in conditions tantamount to solitaryconfinement at the Ot^^^fi^o Brig.A.PFC Mannings Confinement in I^uwaitandTransfer to O^^^fico^. On 27 May 2010, PFC Manning was detained by agents from the Army'sCriminalInvestigation Division(CID). He was subsequently placed into pretrial confinement on 29 May2010. PFC Manning was held inasecured area on Forward Operating Base Hammer, Iraq untilhe could be transported to theTheater Field Confinement Facility (TFCF) at Camp Arifjan,I^uwait. PFC Manning was transported to theTFCFon31 May 2010.9. During his time in I^uwait, PFC Manning'smental health deteriorated. PFC Manning wasanxious, confused and disoriented for much ofhis time in l^uwait. Although he was seen bymental health providers in I^uwait, given the limited resources at theTFCF,the Govemmentdecided to transport PFC Manning toafacility with adequate specialized resources to managePFCManning'scare.10. PFC Manning was transported fiom theTFCF to the Marine Corps Base O^^^fi^o(MCBO)Pretrial Confinement Facility (PCF) on 29 July 2010.The Duty Brig Supervisor(DBS)reviewed the inmate background summary and completed an initial custody classificationdetermination (DD Form 2711). ^^^Attachmentl. The DBS determined that PFC Manning'sscore wasa"5,"significantly lower than the"12^Points" normally required fbraMAX custodydetermination. Despite the low score, the DBS chose to override the custody determination andassign PFC Manning to MAX custody. The DBS cited PFC Manning'sprevious suicide watchwhile in l^uwait as the rationale for this decision.The PCF Commander, CW04 JamesAverhart, approved ofthe MAX custody determination by the DBS and also decided that PFCManning should be placed under special handling instructions ofSuicide Risk (SR).11. On 30 July 2010, Navy Captain(Capt.)William Hocter, the forensic psychiatrist for theBrig, conducted his first assessment ofPFC Manning. Capt. Hocter has over 20 years ofexperience asaforensic psychiatrist. At the time ofhis assessment, he was the Senior MedicalOfficer for the Behavioral Health Clinic at O^^titico with the responsibility for providingpsychiatric care to all active duty personnel stationed at O^^^tico. One ofhis collateral dutieswas to provide onsite mental health care to the Brig detainees. Capt. Hocter initiallyrecommended observing PFC Manning on Suicide Risk precautions because ofhis suicide watchinl^uwait. Within days ofarriving at the Brig, PFC Manning began to respond favorably totreatment. On6August 2010, Capt. Hocter determined that PFC Manning was no longerconsideredasuiciderisk. He recommended that PFC Manning be moved from Suicide Risk toPrevention oflnjury (POI) status.Attachment 2. I^nowing that the Brig was very concemedabout PFC Manning'ssafety,and because there had beenasuicide in the Brig earlier that year,Capt. Hocterelected to obtain the services ofanother senior forensic psychiatrist, COL RickUnited Statesv.PFC Bradley E. ManningDefense Article 13MotionMalone, asaconsultant^second opinion. COL Malone evaluated PFC Manning and he concurredthat PFC Manning should be downgraded from Suicide Risk to POI. Despite theserecommendations and contrary to the requirements ofSecretary ofNavy Instruction(SECNAVINST)1640.9C, the Brig didnotimmediatelyremove PFC Manningfrom SuicideRisk. ^^^Attachment3,Section 4205.5.d.("When prisoners are no longer considered to besuicide risks byamedical officer, they shall be retumed to appropriate quarters."). Instead, itwas not until almostaweek later, onllAugust 2010, that CW04Averhart directed PFCManning be moved from Suicide Risk to POI. .^^^Attachment5.12. Over the course ofthe following three weeks, PFC Manning was observed by the Brig staffand received regular treatment from the Brig psychiatrists. During this time, the Brig staff notedin PFC Manning'sObservationandFvaluation(O^F) notes that he was adjusting well toconfinement. ^^^^^^^^^^^Attachment5. The Brig staffnoted that PFC Manning "haspresented no problems and has been courteous and respectful to staff." The Brig staff also notedthat PFC Manning'sconduct "has been excellent" and that PFC Manning states he "does nothave any suicidal feelings" and "has not been suicidal since arriving at O^^^tico and mentallyfeels good."Given his exemplary behavior, the Brig staffinformed PFC Manning oftheprocess ofreducing his custody and classification and ofthe possiblejob assignments that PFCManning could receive while in confinement. PFC Manning indicated that he would likeajob inthe Brig library.13. On 27August 2010, Capt. Hocter determined that PFC Manning was no longer consideredarisk ofself-harm and recommended that PFC Manning be taken off ofPOI status, i^^^Attachment 2. The PCF Commander did not follow Capt. Hocter'srecommendation.B,PFCManningisHeldinMAX Custody and Under Prevention ofln^uryStatusforthe Next Eight Months14. UnderSFCNAVINST1640.9C, the regulation that details the proper procedures andsafeguards for classification ofinmates, evaluation ofinmates, and the limited use of specialquarters,aMaximum Custody detainee is subject to following mandatory restrictions;1) Supervision must be immediate and continuous. A D D 509,lnspectionRecord ofPrisoner in Segregation, shall be posted by the cell door andappropriate entries made at least every 15minutes.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 stafl^members shall be present when MAX prisoners are out oftheir cells.5) MAX prisoners shall wear restraints at all times when outside the maximumsecurity area and be escorted by at least two escorts(confinement facility staffor certified escorts, per article7406).United StatesvPFC Bradley E. ManningDefense Article 13Motion6) Onacase-bycase basis, the CO^OIC^CPOIC may authorize additionalrestraint for movement ofspecific MAX prisoners. Amilitaryjudgemaydirect that restraints be removed fromaperson in the courtroom if, in thisjudge'sopinion, such restraint is not necessary. In all cases, the limitations ofarticlell02 of reference (b)shall be observed.^^^Attachment3. CW04Averhart adds the following characteristics o f M A X custody;7) Inmates must be under observation ofasupervisor ofthe same sex.^) Such prisoners shall be berthed in special quarters and physically checkedevery5minutes.Attachment 15.15. By contrast,aMedium Custody detainee is subject to the following restrictions:1) Supervision shall be continuous within the security perimeter and immediateand 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 theCO^OIC^CPOIC directs otherwise.4) They shall be escorted by at least two confinement facility staff or certifiedescorts, per article7406, unless the CO^OIC^CPOIC directs only one escort isrequired.5) They may be assigned dormitory quarters.^^^Attachment3.16. PFC Manning was classified asaMAX detainee for the entirety ofhis time at Oti^tttico.In addition to his MAX custody classification, PFC Manning was also held under POI status,which necessitated the use of special quarters. "Special O^^t^^t^^^^^^^^^^^^ii^^^^^^^^ Section4205 ofSFCNAVINST16409Cas follows:a. Some prisoners require additional supervision and attention due to personalitydisorders, behavior abnormalities, risk ofsuicide or violence, or other charactertraits. Ifrequired to preserve order, the BRIO Os or, in their absence, the brigduty officers^duty brig supervisors may authorize special quarters for suchprisoners for purposes ofcontrol,prevention ofinjury to themselves or others, andthe orderly and safe administration ofthe confinement facility. AhearingtoUnited Statesv.PFC Bradley F. ManningDefense Articlel3Motiondetermine the need for continued administrative segregation ofthe prisoner shallbe conducted. This hearing may be by board action or byamemberoftheconfinement facility appointed in writing by the BRIG 0,andawrittenrecommendation to the BRIGOwill be provided within 72 hours ofthe prisoner'sentry into segregation.b. Special quarters isagroup of cells used to house prisoners who have seriousadjustment problems or certain medical issues, are highlytemperamental oremotional, anti-social, some medical cases, or who cannot get along with otherprisoners, or are persistent custodial problems. Special quarters are notapunitivemeasure and shall not be used as such. Prisoners must be made aware ofthereason they are berthed in special quarters. Prisoners are assigned to specialquarters by the BRlCOand shall not have normal privileges restricted unlessprivileges must be withheld for reasons of security or prisoner safety(e.g.,suiciderisks or aggressive, assaultive or predatory prisoners). For each period of30 daysaprisoner is retained in special quarters, the C^A board shall review and providearecommendation to the BRIO 0,who shall determine and certify therequirement for continuation in special quarters.c. Disciplinary segregation is provided for in article5105.3e.d. Prisoners who have threatened suicide or have madeasuicide gesture but arefound fit for confinement may be placed within special quarters under continuousobservation while in the category ofsuicide risk. CO^OIC^CPOIC may directremoval of prisoner'sclothing when deemed necessary. Prisoner must be underobservation ofasupervisor ofthe same sex.Closed circuit television may beinstalled atalimited number of cells for observation, although cross gendermonitoring is not authorized.2. Procedures. All prisoners in special quarters shall be under continualsupervision. Special precautions shall be taken in equipping, inspecting, andsupervising their quarters to prevent escapes, self-injury,and other seriousincidents. They shall be sighted at least once everyl5minutesbyastaff memberand shall be visited daily byamemberofthe medical department and the BRIGO. In addition, it is highly desirable that prisoners in special quarters be visiteddaily byachaplain. Each sighting ofand visit to any segregated prisoner shall beofficially recorded and include date, time, nameofvisitor, and any appropriateremarks. DD509,lnspection Record ofPrisoner in Segregation, shall be used torecord visits.^^^Attachment3. POI status is assigned to those prisoners who have given an indication thatthey intend or are contemplating harming themselves. ^^^Attachmentl5.United Statesv.PFC Bradley E. ManningDefense Article 13Motion17. The combination ofPFCManning'sMAX and POI status meant that for approximately9months while at O^^^fico, PFC Manning was held in his 6x^ cell for 23-24hoursaday. His celldid not haveawindow or any natural light.1^. Owing to his classification asaMAX detainee, PFC Manning was subject to the followingrestrictions:a) PFC Manning was placed inacell directly in front of the guard post to facilitate hisconstant monitoring.b) PFC Manning was awoken at 0500 hours and required to remain awake in his cell fiom0500to 2200 hoursc) PFC Manning was not permitted to lie down on his rack during the duty day. Nor wasPFC Manning permitted to lean his back against the cell wall; he had to sit upright on hisrack without any back support.d) Whenever PFC Manning was moved outside his cell, the entire facility was locked down.CW04Averhart describes this as follows,"Whileamaximum custody inmate is outsideofasecured area, the facility will commencealockdown until the inmate is returned toasecure area. No other inmates are allowed to move throughout the facility whileamaximum custody inmate is outside ofasecured area. At no time will maximum custodyinmates be outside ofasecured area at any time." ^^^Attachmentl5.e) Whenever PFC Manning was moved outside his cell, he was shackled with metal handand leg restraints and accompanied by at least two guards.f) From 29 July 2010tolODecember 2010, PFC Manning was permitted only 20 minutesof'sunshinecall." Aside froma3-5minute shower, this would be the only time PFCManning would regularly spend outside his cell. During this sunshine call, he would bebrought toasmall concrete yard, about half toathird of the size ofabasketball court.PFC Manning would be permitted to walk around the yard in hand and leg shackles,while being accompanied byaBrig guard at his immediate side(the guard would havehishandonPFCManning'sback). Two to three other guards would also be presentobserving PFC Manning. PFC Manning would usually walk in figure eights or someother pattem. He was not permitted to sit down or stay stationary.g) Initially,Brig guards provided PFC Manning with athletic shoes ^^^^^^^^ laces whichwould fall offwhen he attempted to walk. PFC Manning elected to wear boots insteadbecause at least the boots would stay on when he walked.h) FromlODecember2010onward, PFC Manning was permittedaone hour recreation call.At this point, the Brig authorized the removal ofhis hand and leg shackles and PFCManning was no longer required to be accompanied byaBrig guard at his immediateUnited Statesv.PFC Bradley E. ManningDefense Article 13Motionside. CW04Averhart describes PFC Manning'srecreation privileges as follows:"Because the outdoor recreation area is notasecured area, restraints are not normallyremoved from maximum custody inmates. All inmates, unless inaSR, POI ordisciplinary status are allowed to exercise while in their cells provided that it does notdisrupt the good order and discipline ofthe facility. Due to the extended period oftimethat PFC Manning has been inaSR or POI status, and not allowed to exercise within hiscell,lauthorized PFC Manning'srestraints to be removed while conducting recreationcall inside although he is not inasecured area." ^^^Attachmentl5. Although PFCManning was technically "permitted" to use exercise equipment at the gym,most ofthisequipment was unplugged or broken down. In addition, depending on the guards, theywould not permit him to use certain types of equipment(e.g. the chin up bar). So as toavoid any problems with the guards, PFC Manning would usually walk around the roomas he had during his sunshine calls. Three or four guards would be monitoring PFCManning during his recreation call.i)PFC Manning was only authorized non-contact visits. The non-contact visits werepermitted on Saturdays and Sundays between 1200 andl500 hours by approved visitors.During these visits, he would have to wear his hand and leg restraints.j)PFC Manning was required to meet his visitors inasmall4by6fbot room that wasseparated withaglass partition. His visits were monitored by the guards and they wereaudio recorded by the Brig. The recording equipment was added byArmy CID after PFCManning'stransfcrtotheO^^titicoBrig.k) PFC Manning was only permitted non contact visits with his attorneys. During thesevisits, he was shackled at the hands and feet.1) PFC Manning was not permitted any work duty. However,"special quarters work andtraining reports" were routinely filled out pertaining to PFC Manning (presumablyreports generated from observing PFC Manning cleaning his cell). ^^^^ Attachment 3^.19. Owing to PFC Manning being placed on continuous POI status, he was subject to thefollowing further restrictions:a) PFC Manning was subject to constant monitoring; the Brig guards were required to checkon him every five minutes by asking him some variation of, "are you okay7" PFCManning was required to respond in some affirmative manner. Cuards were required tomake notations every five minutes inalogbook.Attachment 40.United StatesvPFC Bradley E. ManningDefense Article 13Motionb) At night, if the guards could not see him clearly,because he hadablanket over his heador he was curled up towards the wall, they would wake PFC Manning in order to ensurethathewasokay.^c) At night, only some ofthe lights would be tumed off. Additionally,therewasafiorescent light in the hall outside PFC Manning'scell that would stay on at night.d) PFC Manning was required to receive each ofhis meals alone in his cell. He was onlypermitted to eat withaspoon.e) There were usually no detainees on either side ofPFC Manning. IfPFC Manningattempted to speak to those detainees that were several cells away from him, the guardswould order him to stop speaking.f^ PFC Manning originally was provided withastandard mattress and no pillow. PFCManning tried to fold the mattress to makeapillow so that he could be more comfortablewhen sleeping. Brig officials did not like this, so onl5December2010they providedhim withasuicide mattress withabuilt-in pillow. This builtin pillow was onlyacoupleofinches high and was not really any better than sleeping onafiat mattress.g) PFC Manning was not permitted regular sheets or blankets. Instead he was provided withatear-proof security blanket. This blanket was extremely coarse and irritated PFCManning'sskin. At first, PFC Manning would get rashes and carpet burns on his skinfrom the blanket. Fventually,his skin became accustomed to the coarseness oftheblanket and he got fewer rashes. The blanket did not keep PFC Manning warm because itdid not retain heat and, due to its stiffness, did not contour to his body.h) PFC Manning was not allowed to have any personal items in his cell.i)PFC Manning was only allowed to have one book or one magazines at any given time toread. Ifhe was not actively reading, the book or magazine would be taken away fromhim. Also, the book or magazine would be taken away fiom him at the end ofthe daybefore he went to sleep.j)For the last month ofhis confinement at O^^^fi^o, PFC Manning was givenapen andfive pieces ofpaper along with his book. However, ifhe was not actively reading hisbook and taking notes, these items would be taken away from him.k) PFC Manning was prevented fiom exercising in his cell. Ifhe attempted to do pushups,sit ups, or any other form of exercise he would be forced to stop.' CW04 Averhart writes, "inmates are not authorized to cover their entire face with blankets while sleeping.Inmates are not to be awakened for the purpose of bed checks, however positive identification must be made if nopart of an inmate is visible. The only way for this to be possible is to ... awaken the inmate ..." See Attachment 15.He was also "permitted" one copy of the Brig's rules and regulations. See Attachment 15.10UnitedStatesv.PFC Bradley E. ManningDefense Article 13Motion1) When PFC Manning went to sleep, he was required to strip down to his underwear andsurrender his clothing to the guards.m)PFC Manning was only permitted hygiene items as needed. PFC Manning would have torequest toilet paper every time he wanted to go to the bathroom; at times, he had to waitfor guards to provide him with toilet paper.n) There was no soap in his cell. PFC Manning requested soap to wash his hands after usingthe bathroom; guards would sometimes get the soap, and sometimes not.o) PFC Manning was not permitted to wear shoes in his cell.p) PFC Manning was initially only permitted correspondence time for one houraday; after27 October 2010, this was changed to two hours per day.Attachment 4.C.Multiple Psychiatrists Recommended for ElghtMonthsthatPFCMannlngBeDowngraded from POI Status20. Over the course of eight months,with only two exceptions, Capt. Hocter and COL Maloneconsistently recommended that PFC Manning be removed from POI status, i^^^ Attachment 2.21. Capt. Hocter states in his affidavit that the Brig did not follow his repeated recommendationsto downgrade PFC Manning from POI. In his first affidavit, dated7April 2011,Capt. Hocterstates as follows:I,WilliamJ.Hocter,Jr.,the undersigned, do hereby certify and swear that thefollowing is true: lam an active duty member of the United States Navy, lhaveoverl9years of experience asaforensic psychiatrist. My current position is OIC,Combat Stress Clinic, Camp Leatherneck, Helmand Province, Afghanistan. Myusual job is as Senior Medical Officer for the Behavioral Health Clinic at MCBOuantico. One ofmy collateral duties is to provide onsite medical health care toall active duty personnel on the base. In my duty position,lam responsible forproviding psychiatric care to all active duty personnel on the base. lalso providelimited forensic services as time permits.OuestionA. Do you mal^e recommendations to the O^^^fi^^ Brig concerningwhetheradetainee is placed on either Suicide Risl^ or Prevention o f l n j u r yStatus7LYesIIUnited Statesv.PFC Bradley F. ManningDefense Article 13MotionOt^cstionB. In your experience, does the O^^^fi^o Brig follow yourrecommendation concerning either Suicide Risl^ or Prevention of InjuryStatus7l . N o . They generally keep patients on precautions longer thanlrecommend.OuestlonC. Have you made any recommendation concerning PFC BradleyManning^s custody and classification status^ If so, what were yourrecommendations^1. Yes. Please note that this is fiom recollection asldo not have access to mynotes, lam currently at Camp Leatherneck in Afghanistan, linitiallyrecommended observing PFC Manning on suicide precautions for the first coupleofweeks after his arrival,both because ofhis suicidal behavior in l^uwait andbecause his medical record from l^uwaitincludedaquoteoraparaphrase fromPFC Manning to the effect that he could be patient when it comes to suicide.2. Afteracouple of weeks, it seemed reasonable to downgrade his precautionlevel to Prevention oflnjury (POI) status, l^nowing that the Brig was veryconcemed about his safety,and because there had beenasuicide in the Brigearlier that year,lobtained the services of another forensic psychiatrist(Col.RickMalone)tobeaconsultant^second opinion. He evaluated the patient andconcurred that POI was appropriate. The Brig, aslbest recall,waitedacouple ofweeks to put this recommendation into effect.3. Subsequently,Irecommended that he be removed from POI as he continued todo relatively well in the Brig(occasional mild, odd behaviors such as dancingaround were noted in the log as well as possible sleep walking). Col. Maloneconcurred. These recommendations were not followed.4. In the fall (I am uncertain ofthe date); PFC Manning became agitated after anodd incident with staff As best aslcould tell from discussing the matter withManning and with staff, he had been performing some kind ofyoga move inwhich he contorted his limbs in suchaway that staff thought he was trying to hurthimself They intervened and returned him to his cell. He was very upset aboutthis(not suicidal) and solbriefiy recommended he be put back on POI status asasafeguard because he was so upset. Irescinded this recommendation thefollowing week as he had calmed.5. Since then,lhave continued to recommend that POI precautions be removed.As ofthe time ofmy leaving for Camp Lejeune to prepare for deployment, therecommendations had not been followed. CAPT Moore and Col. Malone canprovide details ofwhat occurred next.12United StatesvPFC Bradley F. ManningDefense Article 13MotionOt^estlonD. Have your recommendations been followed by the OttanticoBrlg7 I f not, have you been given any reason for the Ot^^^ficoBrig^sdecision not to follow your recommendations^1. No. My understanding is that the Brig has not followed my recommendationsbecause ofgreat concern and worry that Manning will harm himself ItoldthemIthought the Max status(with every 15minute visual checks ofthe detainee vicePOI with every5minutechecks)was more than sufficient to ensure his safety,fiomapsychiatric perspective. The every5minute checks done for POI isextremely rigorous, particularly fdrasecond tier precaution. Every 15minutechecks was common for suicide precautions in otherjails and correctionalfacilities wherelhave worked.2. Iwish to add thatldo not believe the staffhas disregarded myrecommendations out ofmalice toward Manning. The Marine Corps, includingOuantico, has hadamiserable time with the problem of suicide recently. lamcertain, from their point of view,the best way to avoidatragedy is to watchasituation very closely and take action quickly, fthas been difficuh to help themsee that good intentions can have unintended consequences(e.g.,making thedetainee more anxious and causing occasional agitation).Ot^cstionE.Withrespectto PFC Bradley Manning,isbeingheld underMaximum Custody and eitherSuicideRisl^ or I^reventionofln^uryStatussince31 July 2010detrimentalto his mentalorphysicalhealth7 Why orwhynot71. Ibelievethat(at the timellast saw him)Suicide precautions and POI wereexcessive and were making Manning unnecessarily anxious. This could bedetrimental to his mental health. Iwas concerned about his physical health untilthey started to give him more time to exercise. Since Max status is notapsychiatric classification,Idid not makearecommendation regarding it except tosay that it easily(asasecondary effect of checking on him everyl5minutes)methis psychiatric safety needs at the time.OuestionF. With respect to PFC Bradley Manning, have you seen ordocumented any behaviortosuggestthatheisarisl^to harm othersorhimself,adisruptive detainee, or otherwise noncompliant with O^^^fi^^ Brigrules and procedures^l.Notsincelmethim. Given the report from I^uwait,Ihad expected moredifficulty.OuestlonG. Without violating any patient-client confidentiality,can youaddress the events ofl^January2010and2March 2011 which the Oti^^^fi^o13United StatesvPFC BradleyFManningDefense Article 13MotionBrig has used to further restrict PFC Bradley Mannlng^s confinementconditions^1. Iflremembercorrectly,there had been some kind of disagreement betweenManning and the staff andlwas called urgently to come over at the end ofthework day in order to see Manning. Iremember beingabit annoyed becauselhadto report to Lejeune in less than 4^ hours. Icame over and it appeared that thestaff was gearing up(and suiting up)foracell extraction.^ Iwas able to defusethe situation, but frankly cannot remember what the disturbance was about. 1remember it did not seem to be anything terribly serious, but my memory failsotherwise. CAPT Moorejoined me halfway through this experience and mayhaveabetter recollection. By2March,lwasinAfghanistan.^^^Attachment7.A"cell extraction" isaterm used in correctional facilities to describe the process of forcible removal of an inmatetrom his cell. The website http:^^celle^traclions.com^ describes whata"cell extraction" entails:The use offbrce is inherent in the very nature ofinvoluntary confinement. In prisons.^^he responsibledeploymentofforce is notonlyjustifiableonmany occasions, butabsolutelynecessarytomaintainthesecurity ofthe institution." The need to use force inaprison may sometimes include the forcibleremoval of an inmate trom bis cell,calleda"cell extraction."^ell extractions are security measures, not disciplinary mechanisms. In well-managed correctionalsystems, they are used only in response to an imminent and serious risk to the safety and security ofanindividual or of the institution. In such prisons, officers know cell extractions are rarely needed; insome prisons, however, the institutional culture permits cell extractions simply to show inmates"who'sin charge" or to retaliate against defiant inmates, even if there is no real emergency.whenthe decision has been made that an inmate cannot be allowed to remain in his cell,properlytrained staff will make every effort to avoidaforced cell extraction. Officers will talk with the inmate.Indeed,it may be necessary for corrections staff to talk to an inmate tbraprolonged period and thenallow the inmatea"cooling down" period to increase chances that forcible extraction will not benecessary, t^ounselors or mental health staffmay be brought in to talk to the inmate. If verbal effortsfail,in many facilities pepper spray is used to overcome the inmate'sresistance.If officials decide to go ahead withatbrcible cell extraction, the increasingly prevalent practice is touseateam of four to si^ specially trained correctional olficers. They wear protective equipment thattypically includes major torso padding, l^evlar sleeves, big blacl^gauntlets.ahelmet.aface plate, andagroin guard. The team lines up in tront ofthe cell,and the officers ask the inmate one more timewhether he is willing to "cuff up"—submit to restraint and leave the cell. Ifthe inmate continues hisresistance, the team enters the cell. Often,the first member of the team to enter the cell carriesalargeconvex l^le^iglas shield orastunshield(ashield equipped with an electric current which stuns theinmate on contact^with which he pins the inmate against the wall. The other members ofthe teamthen gain control of and place restraints on the inmate'sarms and legs. In most cases.awell trainedcell extraction team is able to secure the removal of evenaviolent prisoner with minimal or no harm tohim or staff.14United Statesv.PFC Bradley F.ManningDefenseArticle 13 Motion22. O n l 4 April 2010, Capt. Hocter filedasupplemental affidavit, in response toarequest forclarification and amplification ofcertain points from Defense counsel:OuestionA. Do you mal^e recommendations to theO^^^fi^o Brig concerningwhetheradetainee is placed on either Suicide Risl^ or Prevention of InjuryStatus7Imake recommendation about suicide precautions,POI,and occasionally stepsthat Brig might take to betteradetainee'scondition or deportment(more time toexercise, give himajob, help him with the legal work on financial problem, lethim talk to his wife or girlfriend more often, please make sureachaplain seeshim). The Brig takes these under advisement and sometimes follows them,usually not. In Manning'scase,Irequested, in addition to removal ofprecautions, more time to exercise. After quite some time, and numerous requests(it became almost comical), this was granted.O^cstionB. In your experience, does the Ot^^^fi^o Brig follow yourrecommendation concerning either Suicide Risl^ or Prevention of InjuryStatus^The Brig frequently ignores or delays my recommendation regarding precautions,including suicide precautions. This differs from any ofthe previousjails, brigs, orprisons in whichlhave worked, military or civilian. This occurred even beforethe suicide ofadetainee in January2010. Prior to the Manning case, this, amongother issues, had make working at the Brig so frustrating thatlasked to berelieved ofthese duties. This was not permitted. lhave struggled to make thebest ofasituation that was not professionally pleasing. The addition offorensicpsychiatry fellows to the milieu(for me to teach) has been invigorating and liftedmy morale.OuestionC. Have you madeanyrecommendationconcernmgPFC BradleyManning^s custody and classification status^ I f so, what were yourrecommendations^Nothing ftirther.Ot^estionD. Have your recommendations been followed by the Ot^^^fi^^Brig7 I f not,have you been given any reason fortheO^^^fi^o Brigsdecision notto followyourrecommendations7Neither the Brig Commander nor the Security Battalion Commander gave me anyreasons for maintaining the POI precautions other than his safety. The SecurityBattalion Commander intimated that he was receiving instructions fromahigherauthority on the matter but did not say from whom. Iknow that the higher base15United Statesv.PFC Bradley E. ManningDefenseArticle 13Motionauthorities hadafrequent(sometimes weekly) meeting to discuss Manning, forwhichlsupplied my CO withastatus report^nothing that Manning had told me,mind you, but his condition and my recommendations, particularly to removeconditionslfeh were unnecessary. Idid not attend these meetings, mainly toprotect Manning'sconfidentiality against inadvertent slips. On one occasion,concem was relayed to me about the odd behaviors seen in the cell mentioned inmy previous affidavit. Ireportedthatlwas not worried about the sleep walkingand the dancing.Ido not recallameeting with the Base Commander(CoI.Choike). ThemeetingIrecall was with the Security BNCO,whosenameIdo not recall. He indicatedthat Manning would remain in current status (POI) unless and until he receivedinstructions from higher authority(unnamed). Idonotrecall him saying hewould be kept that way until his legal process was complete, but the impressionhe left was not to expect any changes in the near future. Icannotrecalladirectquote.O^estionE. With respect to PFC Bradley Manning, is being held underMaximum Custody and eitherSuicideRisl^ or Prevention ofln^uryStatussince31 July 2010detrimental to his mental orphysicalhealth7 Why orwhynot7PFC Manning, according to his records from l^uwait,exhibitedadisturbing levelof mental instability,including suicidal behaviors. Thankfully,he was doingmuch better during his time with me. Inappropriate use ofPOI and otherprecautions can resuhinaloss of privacy and dignity that can worsen someone'scondition. This could occur in Manning'scase and lead to regression andadditional suicidal behaviors. Whether the precautions are inappropriate now,Ileave to the current treating psychiatrist.OuestionF.Withrespectto PFC Bradley Manning,have you seen ordocumented any behavior to suggest that he isarisl^ to harm others orhimself,adisruptive detainee, or otherwise noncompliant with O^^^fi^^ Brigrules and procedures^Given the amount ofscrutiny he received from the Brig, and the seriousness ofhischarges,lhad expected him to have many more problems, lhad initiallysuspected that we would see regression and perhaps some suicidal behaviors. Heheld up remarkably well. He was generallyawell behaved detainee.Ot^cstionG. Without violating any patient-client confidentiality,can youaddress the events ofl^January2010and2March 2011 which the O^^^fi^oBrighasused to furtherrestrictPFC Bradley Manningsconfinementconditions^16United Statesv.PFC Bradley F. ManningDefense Articlel3MotionIthink that Manning was beginning to chafe at the conditions ofhis incarceration(including POI) among other things, butlreally don't remember the specifics. Asyou recall,Iwas due in Camp Lejeune in less than2days to begin training fordeployment, still had some last minute packing to do, and needed to say good byeto my large family. Inshort,lhadalotonmymind. Ireally don't recall thespecifics. Ido recall having the thought, aslwas sitting in the Brig talking toManning that the whole situation could have been avoided.Attachments.23. COL Malone also provided an affidavit to the same effect:1, COL Ricky Malone, the undersigned, do hereby certify and swear that thefollowing is true;lam an active duty member ofthe Flnited States Army, lhave over ten years ofexperience asaforensic psychiatrist. My current duty position is Chief, WalterReed Forensic Psychiatry Service, andlam the Forensic Psychiatry Consulting totheU.S.Army Surgeon General. In my duty position,lam responsible foroverseeing the professional services and training activities for eight forensicpsychiatrists and psychologists.OuestionA. Do you mal^e recommendations to the Ot^^^fi^^ Brig concerningwhetheradetaineeis placed on eitherSuicideRisI^ or Prevention o f l n j u r yStatus71. his my understanding that the Brig staffis authorized to initiateaSuicideWatch, but it requests concurrence by the psychiatrist to maintain it. Preventionoflnjury,however, is treated asacustodial status to be determined by the Brigandldo not makearecommendation on the ultimate issue. Iconductabehavioral risk assessment to estimate the risk ofharm to selfor others (low,moderate, or high), based on static risk factors, modifiable risk factors, andprotective factors, and provide that input to the Brig.OuestionB.Inyourexperlence,doestheOt^^^fi^oBrigfollowyourrecommendation concerning either Suicide Risl^ or Prevention o f l n j u r yStatus71.They initiate more precautions thanlwould fiomapsychiatric perspective.Were he not in custody,at this point he would be appropriate for routineoutpatient care.17United Statesv.PFC Bradley F. ManningDefenseArticle 13MotionOt^estionC. Have you made any recommendation concerning PFC BradleyManning^s custody and classification status^ If so, what were yourrecommendations^1. No. lhave stated that there is no psychiatric reason for him to be segregatedfrom the general population, realizing that would only be one consideration.Ot^cstionD. Have your recommendations been followed by the O^^^fi^oBrig^ I f not, have you been given any reason for the O^^^fi^oBrig^sdecisionnottofollowyourrecommendations71. They have expressed concerns about his demeanor with no medical personnelare there, describing him as more withdrawn and reading less.OuestionF.Withrespectto PFC Bradley Manning,isbeingheld underMaximumCustodyandeitherSuicideRisl^or Prevention ofln^uryStatussince31 July 2010detrimentalto his mentalorphysicalhealth7 Why orwhynot71. It has long been known that restriction ofenvironmental and social stimulationhasanegativeeffecton mental functioning. Nevertheless, PFC Manning hasbeen able to adapt somewhat and his anxiety disorder is currently in remission,significantly reducing his risk of selfharm.OuestionF.Withrespectto PFC Bradley Manning,haveyouseen ordocumented any behavior to suggest that he isarisl^ to harm others orhimself,adisruptive detainee, or otherwise noncompliant with O^^^fi^o Brigrules and procedures^1. Whenlfirst saw him in August 2010Iconsidered him to be at moderate tohigh risk of selfharm. However, that has changed over the months andlhave nothad any further concerns, lhave never heard ofhim being disruptive, but he doesmake provocative comments to the staff as part ofhis intellectualization(e.g.2March20Il).OuestionG.Withoutviolatinganypatientclientconfidentiality,canyouaddress the events ofl^January20100and2March 2011 which theOuantico Brig has used to further restrict PFC Bradley Manning sconfinement conditions^1. On2March2011 PFC Manning madeacomment(outoffiustration when hedescribed it to me), basically ridiculing the POI precautions because ifhe reallywanted to kill himselfhe could use his fiipfiops or underwear waistband. The1^United Statesv.PFC Bradley F.ManningDefense Article 13 MotionBrig stafftook this as evidence that he was at least thinking about it and removedthem.^^^Attachment9.24. Thus, as is clear, Capt. Hocter and COL Malone recommended for eight months that PFCManning be removed from POI. O^^^tico officials chose time and again to ignore theserecommendations.E.PFC Manning WasaModelDetaineeDuringhisTimeatO^^^fico25. Although the Brig psychiatrists generally did not make any additional recommendationsregarding MAX to MDl,the observation notes ofPFC Manning during this time demonstratethat PFC Manning was consistently consideredamodel detainee. .^^^Attachment5.a)3August2010Fntry:"SND^PFC Bradley Manning] did not receive anydisciplinary reports or adverse spot evaluations and received an averagework and training report." The entry also notes,"SNDs conduct hasbeen average and has presented no problems to staff or inmates. Duringthe interview SND was respectful and courteous and was well spoken.SND stated that he was doing well and was not having suicidal orhomicidal feelings."b)12August2010Entry: "SND did not receive any disciplinary reports oradverse spot evaluations and received an average work and trainingreport." The entry also notes,"SND stated that he would likeajob inthe facility library i f i t became possible. Tothis point in confinementSND'sconduct has been average and has presented no problems to staffor inmates. During the interview SND was quiet, but courteous andrespectful. SND answers questions but speaks very little unlessresponding toaquestion. Currently SND appears to be trying to adjustto the daily routine and observing what is going on around him. Duringthe interview SND was well spoken, neat in appearance and maintainedeye contact. SND stated that he does not have any suicidal feelings atthis time."c)16August2010Entry; "SND was evaluated by the Brig Psychologistand found not to beathreat to himself his recommended that SND beremoved from SR, and be placed on P01(sic)remain MAX custody."d)17 August 2010Entry;"The Brig Psychiatrist found SNDto beareduced threat to himself on6August2010."19United Statesv.PFC Bradley F. ManningDefense Articlel3Motione)24 August 2010Entry; "SND did not receive any disciplinary reports oradverse spot evaluation and received an average work and trainingreport." The entry also notes "^t]o this point in confinement, SND haspresented no problems and has been courteous and respectful to staffSND'sconduct has been excellent, so much so that is it apparent that heis extremely cautious about what he says or how he acts. During theinterview SND was well spoken, groomed and neat in appearance."f)27August2010Entry: "SND has not presented any problems since hislast review on 20 August 2010and has been an overall averagedetainee."g)31 August 2010Fntry: "SNDdid not receive any disciplinary reports oradverse spot evaluations and received an above average work andtraining report." The entry also notes "SND was evaluated by the BrigPsychiatrist on 27August and was recommended to be removed fromPOI status. The C^A Board reviewed SND on the same date andrecommended that he still remain POI. SND remains courteous andrespectful to staffand has presented no problems toward staff or inmatesthus far. During the interview SND was well spoken, groomed and neatin appearance."h)3September2010Fntry: "SND has not presented any problems sincehis last review on 27August2010and has been an overall averagedetainee."i)^September 2010Fntry: "SND did not receive any disciplinary reportsor adverse spot evaluations and received an average work and trainingreport." The entry also notes,"SND was evaluated by the BrigPsychiatrist on3September and was recommended to be removed fromPOI status." Additionally it states,"SND continues to be cooperativewith Brig staffand has presented no disciplinary problems. During theinterview SND was well spoken and neat in appearance. SND'smoodand appearance were consistent with his normal character and hecontinues to state that he is not suicidal."j)10September2010Entry: "SND has not presented any problems sincehis last review on3SFPT2010and has been an overall averagedetainee."k)14September2010Entry: "SND did not receive any disciplinaryreports or adverse spot evaluations and received an average work andtraining report." The entry also notes,"SND was evaluated by the BrigPsychiatrist onlOSeptember and was recommended to be removed20United Statesv.PFC Bradley F.ManningDefenseArticle 13Motionfrom POI status." Finally,the entry notes,"SND has been cooperativewith Brig staffand has presented no disciplinary or behavioral problems.When observed in his cell, SND is always sitting quietly on his rack andappears to be content with doing nothing else. During the interviewSND was well spoken and neat in appearance. SND'smood andappearance were consistent with his normal character and he continuesto state that he is not suicidal."I)2^ September 2010Fntry: "SND did not receive any disciplinaryreports or adverse spot evaluations and received an average work andtraining report." The entry also notes,"SND was evaluated by the BrigPsychiatrist on24September and was recommended to be removedfrom POI status. Later, the entry notes,"SND continues to becooperative with Brig staffand has presented no disciplinary orbehavioral problems. During the interview SND was well spoken andneat in appearance. SND'smood and appearance were consistent withhis normal character and he continues to state that he is not suicidal."m)4October2010Fntry: "SND was evaluated by the Brig Psychiatrist on24Sep2010and recommended to be removed from POI. SND has notpresented any problems since his last review and has been an overallaverage detainee."n)6October2010Fntry: "SNDdid not receive any disciplinary reports oradverse spot evaluations and received an average work and trainingreport." The entry notes,"SND appears to be content with his situationand goes through the motions ofthe Brig'splan ofthe day withoutincident. SND was evaluated by the Brig Psychiatrist onlOctober andwas recommended to be removed from POI status." The entry alsonotes,"SND continues to be cooperative with Brig staff and haspresented no disciplinary or behavioral problems. During the interviewSND was respectful, neat in appearance and maintained eye contact.SND'smood and appearance were consistent with his normal characterand he continues to state that he is not suicidal."o)12October2010Fntry: "SND did not receive any disciplinary reportsor adverse spot evaluations and received an above average work andtraining report."p)14October2010Fntry: "SND was evaluated by the Brig Psychiatrist on(no date givenjand recommended to be removed from POI. SND hasnot presented any problems since his last review..." The entry alsonotes "SND did not receive any disciplinary reports or adverse spotevaluations and received an above average work and training report."21United Statesv.PFC Bradley E. ManningDefense Article 13 Motionq)22 October 2010Fntry: "SND did not receive any disciplinary reportsor adverse spot evaluations and received an above average work andtraining report." The entry notes,"SNDwas evaluated by the BrigPsychiatrist this past week and found fit from(sic)removal ofprevention ofinjury classification fiomapsychiatric standpoint." Theentry also notes,"SND was respectful and courteous and well spoken.SND'sattitude and demeanor were consistent with his normal characterand he continues to state that he is not suicidal."r)2^ October 2010Fntry: "SND was evaluated by the Brig Psychiatrist onI5October2010and recommended to be removed from POI. SND hasnot presented any problems since his last review onlOctober 2010andhas been an overall average detainee." Another entry on this date notesthat "SND was evaluated bythe Brig Psychiatrist on 22 October 2010and recommended to be removed fiom POI. SND has not presented anyproblems since his last review on 150ctober and has been an overallaverage detainee."s)2November2010Entry: "SND was evaluated by the Brig Psychiatriston 29 October 2010and recommended to be removed from POI. SNDhas not presented any problems since his last review on 22 October 2010and has been an overall average detainee."t)5November2010Entry: "SND did not receive any disciplinary reportsor adverse spot evaluations and received an average work and trainingreport." The entry also notes,"SND was evaluated by the BrigPsychiatrist on 29 October 2010and found fit to be removed fromprevention ofinjury classification fiomapsychiatric standpoint."Finally,the entry notes,"During the interview SND was respectful andcourteous and was well spoken. SND appears to be in high spirits andhaveapositive attitude. SND'sattitude and demeanor were consistentwith his normal character and he continues to state that he is notsuicidal."u)15November2010Fntry; "SND was evaluated by the Brig Psychiatristonl3November2010and recommended to ...^be removed from] POI.SND has not presented any problems since his last review on5NOV2010and has been an overall average detainee."v)17November2010Fntry; "SND did not receive any disciplinaryreports or adverse spot evaluations and received an above average workand training report." The entry also noted that "during the interviewSND was respectful and courteous and was well spoken. SND'sattitude22UnitedStatesv.PFC Bradley F. ManningDefenseArticle 13Motionand demeanor were consistent with his normal character and stated thathe is not suicidal."w)23 November 2010Fntry: "SND was evaluated by the Brig Psychiatristonl9November2010and recommended to be removed from POI.SND has not presented any problems since his last review."x)3December2010Fntry: "SND did not receive any disciplinary reportsor adverse spot evaluations and received an average work and trainingreport."y)6December2010Entry; "SND was evaluated by the Brig Psychiatriston2December2010and recommended to be removed from POI. SNDhas not presented any problems since his last review on^no date given]and has been an overall average detainee."z)7December2010Fntry: "SND did not receive any disciplinary reportsor adverse spot evaluations and received an above average work andtraining report." The entry also noted,"^d]uring the interview SND wascourteous and well spoken and he maintained good eye contact. SND'smood and character were consistent with his normal character."aa)14December2010Fntry; "SND was evaluated by the Brig PsychiatristonlODecember2010and recommended to remain on POI.(The Brignoted that this was the first time since 27August2010that Capt. Hocterrecommended PFC Manning remain on POI. His main criteria was thatit seemed PFC Manning was not doing well). SND has not presentedany problems since his last review and has been an overall averagedetainee."bb)17December2010Fntry: "SND was evaluated by the Brig Psychiatristonl7December2010and recommended to be removed from POI. SNDhas not presented any problems since his last review and has been anoverall average detainee."cc)22 December 2010Entry: "SND did not receive any disciplinary reportsor adverse spot evaluations and received an above average work andtraining report." The entry also notes,"overall,SND was respectful andcooperative during the interview."dd)29 December 2010Entry: "SND did not receive any disciplinary reportsor adverse spot evaluations and received an average work and trainingreport." The entry also stated,"SND was evaluated by Capt. Hocter on23 December 2010, and although further mental evaluation was deemed23United Statesv.PFC Bradley F. ManningDefenseArticle 13Motionnecessary,SND was recommended to be removed from POIclassification fiomapsychiatric standpoint."ee)6January2011Fntry; "SND was evaluated by the Brig Psychiatrist on30 December 2010and recommended to be removed from POI. SNDhas not presented any problems since last review and has been an overallaverage detainee."ff)7January2011Entry; "SND was evaluated by the Brig Psychiatrist on7January2011and recommended to be removed from POI. SND hasnot presented any problems since his last review and has been an overallaverage detainee." The entry also notes that "SND did not receive anydisciplinary reports or adverse spot evaluations and received an averagework and training report." Finally,the entry notes that PFC Manning "isrespectful and courteous to staff During the interview SND was wellspoken, maintained eye contact and his demeanor was consistent withhis normal character.gg)11 January 2011 Entry; "SND did not receive any disciplinary reports orspot evaluations and received an above average working and trainingreport."hh)14January2011 Entry: "SND was evaluated by the Brig Psychiatrist on14January2010and recommended to be removed from POI. SND hasnot presented any problems since his last review and has been an overallaverage detainee."ii)l^January2011 Fntry; This is the first entry where any negativeconduct is noted. This conduct is explained below.jj)2^ January 2011 Fntry: "SND did not receive any disciplinary reportsor adverse spot evaluations and receive(d) an average work and trainingreport." The entry also notes,"SND was evaluated by Col Malone on21January 2011and, although further mental evaluation was deemednecessary,SND was recommended to be removed from POIclassification fiomapsychiatric standpoint."kk) 2February2011Entry; "SND did not receive any disciplinary reports oradverse spot evaluations and received an average work and trainingreport." The entry also notes,"SND was well spoken, respectful andmaintained eye contact."11)7February2011 Fntry: "SND did not receive any disciplinary reports oradverse spot evaluations and received an average work and training24United Statesv.PFC Bradley F. ManningDefenseArticle 13Motionreport." Theentryalsonotes,"...SNDwaswell spoken, respectful andmaintained eye contact."mm)17February2011Entry; "SND has not presented any problems since hislast review and has been an overall average detainee."nn)25 February 2011Fntry: "SNDdid not receive any disciplinary reportsor adverse spot evaluations and received an average work and trainingreport." The entry also notes,"...SND was well spoken, respectful andmaintained eye contact."oo)2March2011Entry; "SND did not receive any disciplinary reports oradverse spot evaluations and received an average work and trainingreport." The entry also notes,"...SND was well spoken, respectful andmaintained eye contact."pp)9March2011Fntry; The entry notes that "SND was counseled on2March 2011by the Brig supervisor for disobedience." This incident isdiscussed further below.qq)llMarch2011 Fntry; "SND has not presented any problems since hislast review and has been an overall average detainee."rr)l^March2011 Fntry: "SND has not presented any problems since hislast review and has been an overall average detainee."ss)25 March 2011 Entry; "SND did not receive any disciplinary reports butdid receive one adverse spot evaluation onl6March2011for interferingwith the application ofhand restraints and restraint belt." The entry alsonotes "he was respectful and courteous..."tt)30 March 2011 Fntry: "SND did not receive any disciplinary reports toadverse spot evaluations, and received an average work and trainingreport."uu)5April2011 Fntry: "SND has not presented any problems since his lastreview and has been an overall average detainee."vv)7April2011 Fntry; "SNDdid not receive any disciplinary reports orspot evaluations, and received an average work and training report."ww) 11 April 2011 Fntry; "SND has not presented any problems since hislast review and has been an overall average detainee."25United Statesv.PFC Bradley F. ManningDefense Article 13 Motionxx)15 April 2011Entry: "SND has not presented any problems since hislast review and has been an overall average detainee."Despite beingamodel detainee, and despite the doctors'recommendations, PFC Manning waskept in MAX custody and under POI for the entirety ofhis time at O^^^fico,atotalof265 days.F.The Classification and Assignment(C^A) Board Review of PFC Manning^sConfinement Status26 UnderSECNAVINST16409C,aClassificationandAssignment(C^A)Board is requiredto be established and is responsible for making recommendations to the PCF Commanderconceming the classification and assignment of detainees. Lnder the regulation, an objectivebased classification system is required. The purpose ofthe custody classification is to establishthe degree ofsupervision needed for the control ofan individual detainee. ^^^Aftachment3.27. The regulation recognizes that among detainees there are wide variations in personality andmentality. Some detainees are deliberately uncooperative. These detainees are chronic sourcesoftrouble and may either be highly aggressive or acutely depressed. These types of detaineesare identified under the regulation as being appropriately held in MAX. Detainees in MAX arethose detainees "requiring special custodial supervision because ofthe high probability ofescape, are potentially dangerous or violent, and whose escape would cause concern ofathreatto life, property,or national security.".^^ SFCNAV1NST16409C also cautions that "^ujltraconservative custody classification results inawaste of prisoner and staff manpower."2^. Classification decisions are supposed to follow "established, but fiexible, procedures." Theregulation notes that classifications involving MAX or MDl include the following factors:a.b.c.d.e.fg.h.i.j.k.1.Assaultive behavior.Disruptive behavior.Serious drug abuse.Serious civil^military criminal record(convicted or alleged).Low tolerance of frustration.Intensive acting out or dislike ofthe military.History ofprevious escape(s).Pending civil charges^detainer filed.Servingasentence which the individual considers to be unjust or severe,Poor home conditions or family relationships.Amental evaluation indicating serious neurosis or psychosis.Indication of unwillingness to accept responsibility for personal actions past andpresent.m. Demonstrated pattem of poorjudgment.n. Length, or potential length, of sentence.26United Statesv.PFC Bradley F. ManningDefense Articlel3MotionAlthough these factors apply equallyto the determination o f M A X or MDl, the regulation notesthat MDl detainees are those that "are not regarded as dangerous or violent."The regulationalso cautions that "^o]rdinarly,onlyasmall percentage of prisoners shall be classified as MAX."29. In spite ofthe F^O notes indicating PFC Manning wasa"polite, courteous, and respectfuldetainee" who did not receive any disciplinary or adverse spot reports, and the repeatedrecommendations by the Brig psychiatrists that PFC Manning was notarisk of selfharm or ofharm to others and should be removed from POI, the C^A Board consistently recommended thatPFC Manning remain in MAX and POF ^^^Attachments5and6. The recommendation oftheC^A Board was always approved by the PCF Commander.30. Although the C^A Board apparently met onaweekly basis, it failed to document itsrecommendations on the required Brig Form 4200 for over five months.Attachment 6. TheBrig filled outaForm 4200 on 29 July 2010to document PFC Manning'sinitial intake, hdidnot fill out another form until3January 2011.Notably,this was around the same timeperiod that O^^titico Brig began to come under outside scrutiny.31. Week after week, month after month, the C^A Board unanimously recommended that thePCF Commander retain PFC Manning in MAX and on POI. The PCF commander alwaysfollowed this recommendation.G.PFCManningIsPutOnSuicideRisl^Statusonl^January2011and2March201132. On two separate occasions, the PCF Commander elected to increase the special handlinginstructions on PFC Manning. The first occurred onl^January 2011. On that date, CW04Averhart, over the recommendation ofCapt. Hocter and the defense forensic psychiatrist, Capt.Moore, placed PFC Manning under Suicide Risk. The Suicide Risk designation resulted in PFCManning being required to remain in his cell for 24hoursaday. PFC Manning was stripped ofall clothing with the exception ofhis underwear. PFC Manning'sprescription eyeglasses weretaken away from him and he was forced to sit in his cell in essential blindness. Aguardwasplaced, sitting inachair, immediately outside ofPFC Manning'scell. At night, PFC Manningwas forced to surrender his underwear and sleep naked. PFC Manning remained on Suicide Riskuntil21January2011when he was then downgraded back to POI. ^^^Attachments4,5,6.33. The events that led to PFC Manning being placed in Suicide Risk began when he was pulledout ofhis cell onl^January2011for his recreation call. When the guards came to PFCManning'scell,PFC Manning noticedachange in their usual demeanor. Instead ofbeing calmand respectful,they seemed agitated and confrontational. Also, instead ofthe usual two to threeguards, there were four guards. Almost immediately,the guards started harassing PFC Manning.The first guard told PFC Manning to "turn left." When he complied, the second guard yelled,"don't tum left." When PFC Manning attempted to comply with the demands ofthe secondguard, he was told by the first,"l said turn left." PFC Manning responded,"yes. Corporal" to thefirst guard. Atthis point, the third guard chimed in by telling PFC Manning that "in the Marine27United Statesv.PFC Bradley F. ManningDefenseArticle 13MotionCorps we reply with'aye'and not'yes.'" He then asked PFC Manning ifhe understood. PFCManning made the mistake ofreplying "yes. Sergeant." At this point the forth guard yelled,"you mean'aye,'Sergeant."^34. The harassment by the guards continued as PFC Manning was escorted to his one hour ofrecreation. When PFC Manning arrived at the recreation room, he was told to stand still so theguards could remove his leg restraints. As PFC Manning stood still,one ofthe guards yelled,"!told you to stand still." PFC Manning replied,"yes Corporal,lam standing still." Anotherguard then said,"you mean'aye'Corporal." Next, the same guard said "1 thought we coveredthis, you say'aye'and not'yes,'do you understands" PFC Manning responded,"aye Sergeant."Right after PFC Manning replied, he was once again yelled at to "stand still." Due to beingyelled at and the intensity of the guards, PFC Manning mistakenly replied,"yesCorporal,lamstanding still." As soon as PFC Manning uttered his response he attempted to correct himselfbysaying"aye" insteadof"yes,"butitwastoo late Oneoftheguardsstartingyellingat PFCManning again,"what don't you understand" and "are we going to haveaproblem"^"^35. Once the leg restraints were taken off ofPFC Manning, he tookastep back from the guards.PFC Manning'sheart was pounding in his chest, and he could feel himself gefting dizzy. Capt.Hocter determined that this event was likely an anxiety attack due to the situation. After hisrestraints were removed, PFC Manning sat down to avoid falling. When he did this, the guardstookastep towards him. PFC Manning instinctively backed away from the guards. As soon asPFC Manning backed away, the guards walked toward him as ifto prepare to restrain PFCManning. PFC Manning immediately put his hands up in the air, and said " I am not doinganything,lam just trying to follow your orders." The guards then told PFC Manning to startwalking. PFC Manning complied with their order by saying "aye" instead of'yes."36. PFC Manning was allowed to complete his hour of recreation. During the hour, the guardsdid not harass PFC Manning further. The guards also did not harass PFC Manning when he wasescorted back to his cell. Only later did PFC Manning learn that there had beenaprotest outsidethe gates ofO^^titico the previous day. The rally was intended to bring attention to theconditionsofPFC Manning'sconfinement and had caused disruption at the main gate toOtiantico.37. After being retumed to his cell,PFC Manning started to readabook. About 30 minuteslater, CW04Averhartcameto PFC Manning'scell. He asked PFC Manning what had happenedduring his recreation call. As PFC Manning tried to explain to him what had occurred and toconvey fiustration with the continued conditions ofhis confinement, CW04Averhart stopped•* LCPL Tankersley states, "I told [PFC Manning] to face the door. [PFC Manning] faced the door withoutresponding. I informed [PFC Manning] that whenever a guard gives him an order, he is to respond in the correctmanner (aye, aye, rank of person). [PFC Manning] then said he doesn't understand. CM2 Webb, the DBS, tried toinform [PFC Manning] that when a guard gives him an order, he needs to respond in the correct way." SeeAttachment 24.' The situation with the "aye" vs. "yes" is corroborated in GM2 Webb, LCPL Tanskersly, and LCPL Cline's accountof the incident. See Attachment 24.28UnitedStatesv.PFC Bradley F.ManningDefenseArticle 13MotionPFC Manning and said " I am the commander" and "no one will tell me what to do." CW04Averhart also said that he was, for all practical purposes,"God." PFC Manning responded bysaying,"you still have to follow Brig procedures." PFC Manning also said,"everyonehasabossthat they have to answer to." As soon as PFC Manning said this, CW04Averhart ordered thatPFC Manning be placed in Suicide Risk. After being ordered into Suicide Risk, PFC Manningbecame upset. Out offrustration, PFC Manning placed his hands to his head and clenched hishair with his fingers. PFC Manning then yelled,"why are you doing this to me7" He alsoyelled,"whyamlbeingpunished7" PFC Manning then asked CW04Averhart "what haveldone to deserve this type oftreatment7"3^. CW04Averhart did not answer any ofPFCManning'squestions. Instead, CW04Averhartinstructed PFC Manning to surrender all ofhis clothing. At first PFC Manning tried to reasonwith CW04Averhart by telling him that he had beenamodel detainee and by asking him to justtell PFC Manning what he wanted him to do and that he would do i f Eventually, CW04Averhart left and instructed Master Sergeant (MSGT) Brian R. Papakie to take over. MSGTPapakie ordered PFC Manning to take offhis clothes. PFC Manning complied with the orderand took offhis clothes.39. The following conversation then took place, first between PFC Manning and MSGTPapakie, and then between PFC Manning and CunnerySergeant(CSYGT) Craig Blenis:MSGT Papakie:lknow what you're getting at, ok7 I'm telling you that we're notoutside the rules and regulations ofanything that we're doing.We'renot. Solneed your clothes.PFC Manning:That'sfine,sir.^Manning strips to his underwear.The rest of theconversation takes place with PFC Manning in his underwear].MSGT Papakie: Skivvies say on7Otherguard;yes.... leave those on.MSGT Papakie: We're going to get someone over here to talk to you. ...Youhave one mattress, right7 You have the one suicide blanket, rightsPFCManning:Yes.Yes,sir.MSGT Papakie; Shower shoes are fine. Let'sget the doc over here. Doc Hocter.Sitdownandseewhat'sgoingon. Alright7 Ineed you calm right now,alright7The escalation in your demeanor, alright,weighs us on the side of caution. Doyou understand that7PFC Manning;Yes, MSGT.29United Statesv.PFC BradleyFManningDefenseArticle 13MotionMSCT Papakie; The best way to explain that to you is you had an outburst. Youwere moving around. You almost punchedawall. You're kind ofthrowingyourselfaroundinthecell. Tomake sure you don't hurt yourself we're puttingyou onasuicide risk status. We're upgrading your status.PFC Manning: But I'mnotasuicide risk.MSGT Papakie; That'snot for me to decide. lhave to make sure, the brig officerhas to make sure, that you're taken care ofPFC Manning: lunderstandMSGT.MSGT Papakie: In the manner that you're not going to hurt yourself Right now,Idon't know that. With the displaylsaw right now,l'mnot comfortable with.He'snot comfortable with. Flntil we get something otherwise, this is how it'sgoing to be.PFC Manning; Why waslon, why waslon prevention of status for almost6months^MSCT Papakie; ^chuckles to himself]Iknow this is no secret to you...lhaveplenty of documentation. Plenty ofdocumentation based on things that you'vesaid, things that you've done. Actions^Ihave to make sure,we have to makesure, that you're taken care ofPFC Manning;Yes, MSGTMSGT Papakie: Things that you've said and things that you've done don't steerus on the side of"ok,well,he canjustbeanormal detainee." They make us stayon the side of caution.PFC Manning; But what about recommendations by the psychiatrist to removemeoffthestatus7MSGT Papakie; Who'shere every day7 Who'shere everyday"^ Weare. Whosees you everyday"^ That'sallheis,isarecommendation. Wehave, by law,rules and regulations set forth to make sure fromajail standpoint that BradleyManning does not hurt himself Maybe fiomapsychiatric standpoint, therecommendation he'sgiven,Igetit,lgot it, understand, 01^7 But he'snot theonly decision maker. Amental health specialist is not the only decision that getsmade.PFC Manning: lunderstand that, sir.30United Statesv.PFC Bradley F.ManningDefenseArticle 13MotionMSGT Papakie: However...^MSGT Papakie leavesand GYSGT Blenis enters] ^inaudible]PFC Manning; Igot dizzy...GYSGT Blenis: Wasn'tdehydration7PFC Manning: No,lwas anxious becauseldidn't know why the guards were soedgy. ...Theyraisedtheirvoice...AndIdidn't...Iwas getting anxiousbecause they were getting anxious. Solwas trying to figure out what was thecause ofthem getting anxious. It seemed to me that they were looking forsomething wrong...GYSCT Blenis; Something wrong as inarules violation, or something wrong asin...PFCManning:Yes.GYSGT Blenis:Rulesviolation7PFC Manning: Yes, sir. Because I've been here foralong time, so everythingbecomes automatic. Soldon't know iflsay something and they respond. Idon'tknow what happened. I've been in, inside so long Idon't remember the lasttimelwas outside.^Portions ofthe rest ofthe dialogue between Blenis and PFC Manning areinaudible]GYSGT Blenis; So, let'sgo back to when you fell down. Did you fall down ordidyousitdown7 0 r . . .PFC Manning: Ah, it was mixed. Imean,Iwas getting lightheaded becauselwas hyperventilating. So,Iwas trying to stand up. Iwas trying to keep fromfalling becauselwas worried that iflfell,then everybody would panic and thatwould make matters worse. So,ltried to stand up andlended up falling...GYSGT Blenis: Take me fiom end of rec hall to...where we are now...PFC Manning; Ok, yes,Istarted,lgot in here and it was normal. Andthenistarted reading my book. Andthen,lwanttosayitwasMSGT^inaudible]thatwas the first to show up. And then he came in and was asking me all these31United Statesv.PFC Bradley F.ManningDefenseArticle 13Motionquestions. Iwas, ah, trying to figure out how to word the answers withoutcausing any more anxiety. Iwas trying to figure out ways of not sounding, or notbeing construed as...ways that things weren't going to be construed so that...just trying to figure out ways in whichlcould tactfully say whatlwas trying tosay without violating any rules and regulation or raise any concem about...GYSGT Blenis: Concern'salready raised...^inaudible]PFC Manning; Yes, but I'm trying not, l'mtrying,l'mtrying to avoid theconcern, and it'sactually causing the concern. Imean, cause, I'mgetting...every daythatpassesby,1'm getting increasinglyfrustrated,1'mnotgoingto lieBecause I'mtrying to do everything thatlcan^^^^^^^aconcern,thereforeIappear as thoughlam causing more concem. O r l . . . O r it seems that I'mcausing more concern or everybody'slooking for something to cause concern. Sothat'swhat frustrates me. ...Trying to work out the most politically correct wayofGYSGT Blenis: ^largely inaudible] Fet'sgo back to today....The anxiety here,today. That'snot the first time it'shappened since you've been in confinement.As far aslknow,it is the first time it'shappened since you've been here...butasimilar situation...PFC Manning: Iwasn't, in I^uwait,lhad no idea what was going on generally.GYSGT Blenis; But,would you say it was similar situation7PFC Manning: No, no. The situation that happened today was more of...youknow,l'm lucid and aware andjust trying to figure...It'sjustaquestion oftrying not to appear likelwas in I^uwait. Because that'smy main concem everyday,ishowdolgetoffofP01status7 HowdolgetoffofP01status7 When willIbe taken off ofP01status7 What is being used tojustify the precautions7 Youknow...What concerns, you know,whatamldoingthat'sconcerning^inaudible]7 So Fmconstantly trying to figure out, run through all of thosethings. And trying to make sure I'm not doing anything...GYSGT Blenis: ^inaudible]...As time goes on,we have less ofaconcern,ok7PFC Manning: Yes, GYSGT. But the restrictions were still in place. AndlwasGYSGT Blenis: Right. And we continually...Weunderstandit'snot normal thatwe have someone in POI for this period oftime...PFC Manning; Yes.32United Statesv.PFC Bradley F. ManningDefense Article 13 MotionGYSGT Blenis: lt'snot^normal]...lguess we'll just leave it at thaf So as wego on, we're going to lessen your restrictions. They're still be restrictions in place... ^inaudible] Butlwould have to disagree with you as far as what happenedtoday happened in I^uwait...anxiety attack...PFC Manning: No,inI^uwait,lwasn'tlucid. lhad....^guard interrupts], hwaslikeadream...GYSGT Blenis: But, they both ultimately ended up in you having an anxietyattack...controlled fall,but...PFC Manning: No,ldon't remember falling in l^uwait at all.GYSGT Blenis; Well,lean tell you, that'swhat was reported to us...none of uswere there^refers again to PFC Manning'ssuicide status l^uwait]...Us, asafacility,we have to always err on the side of caution, okay. And notjust the sideofcaution, but over-caution. Especially when we're talking about suicide, okay7Nobody'ssaying you're going to kill yourself, alright7 ^inaudible] But we alwayshave to be more cautious than that. But you're saying that'nobody else is onsuicide watch.' The thing is what happened in l^uwait,what happened today...PFC Manning; Those are totally different. Iunderstand,Iunderstand,lunderstand,where you're getting that ...from the documentation. 1mean,lquite,Iknow wherelam. l k n o w l a m . . . I k n o w l a m at O^^titico base facility. Iknow that I'matabrig. Imean,I'm lucid and aware of wherelam. I'mnot...GYSGT Blenis: You asked ^MSGTjaquestion...about why you're on suicidewatch, I'mtrying to answer that question, okay7 Didlanswerthat7PFC Manning: Uhno. No,with context. Because the fact that...GYSGT Blenis: ^inaudible] Did you understand that7PFC Manning: Iwould have understood had...hadlnot been ... Iwouldhaveunderstood had...hadlnot been...Imean, I'mtrying to think ofhow to wordthis proper...GYSGT Blenis: Provoked7Provoked7PFC Manning: Yes,alittle. Ifeel like the facility,honestly,Ifeel like the facilityis looking for reasons to keep me on POI status.GYSGT Blenis: Inaudible lean tell you'no'...33United Statesv.PFC Bradley F.ManningDefense Articlel3MotionPFC Manning: Imean, at least not at the stafflevel,l'mthinking the CO^me,myself, personally.GYSGT Blenis: Inaudible...Fromalogistical standpoint, it'saburden on us....PFC Manning: Yes, MSCT.GYSGT Blenis: Nobody finds that asajoy. It'snotapunitivething,Iunderstand why someone would see it asapunitive thing because restrictionsplaced ^inaudible] ...lean tell you that...since you have been here...IwishIhadahundred Mannings...PFC Manning: And that'swhat...And that'swhereldon't understand why thecontinuation ofthe policy and restrictions beyond the time recommended by youand the psychiatrist. Imean the psychiatrist, is saying. Imean, I've got my ownforensic psychiatrist that'ssaying now that the POI status is actually doingpsychiatric harm and not, you know,and it'sactually, you know,increasing mychances, rather than decreasing...GYSGT Blenis: Did you feel like that two weeks ago7PFC Manning: What'sthat7GYSGT Blenis; Did you feel like that two weeks ago7PFC Manning:Yes GYSGTGYSGT Blenis; Uh, two weeks ago,Iasked you, like, how you were feeling andyou said you were fine, do you remember that7PFC Manning: Yes, andlstill feel fine. Imean,Ifeel,Ifeel fine, but at the sametime, I've been putting in, I've been putting in...Attachment 25.40. Laterthat day, Capt. Hocter and Capt. Moore arrived at the facility. Capt. Hocter and Capt.Moore interviewed PFC Manning and assessed his mental state. They did not concur withCW04Averhart'sdecision to place PFC Manning on Suicide Risk status. Both mental healthprofessionals believed PFC Manning was notasuicide risk. Out of an abundanceof caution,Capt. Hocter recommended that PFC Manning be placed in24hour POI status. CW04Averhartignored this recommendation and kept PFC Manning on Suicide Risk status.Attachments 2,^^7,^34United Statesv.PFC Bradley F.ManningDefense Article 13 Motion41. In CW05 Abel Calaviz'sinvestigation ofthe conditions ofPFC'sManning'sconfinement,he found that the failure to immediately take PFC Manning offofSuicide Risk status upon thepsychiatrist'srecommendation was in violation ofNavy rules:It warrants mentioning, however, that on two occasions,6August2010andl^January 2011,amedical officer determined that suicide risk status was no longerwarranted and the brig staffdid not immediately take PFC Manning off suiciderisk status. ...Paragraph 4205.5b of reference(a)states "When prisoners are nolonger consider to be suicide risks byamedical officer, they shall be returned toappropriate quarters,"in these cases, once the medical officer'sevaluation wasprovided to the brig staff, steps should have been taken to immediately removehim from suicide risk, toastatus below that.Attachment 22.42. Col.DanielJ.Choike, the Commander ofMarine Corps.Base, Ott^^tico, balked thatOtt^^fico had done anything wrong by not removing PFC Manning from Suicide Risk upon therecommendation ofamedical health provider, stating "there is no requirement...that requiresan immediate removal from suicide risk after the PCF mental health care provider or medicalofficer recommends it."Attachment]^. Tellingly,though, Col.Choike later changed theBrig regulation such thatamedicalprovider'sopinion on terminating suicide risk status wouldbe binding on the Brig. ^^^Attachmentl9.43. The second incident where the special handling instructions were increased occurred on2March 2011. On that date, PFC Manning was informed by Col. Choike that no relief would begranted with respect to PFC Manning'spreviouslyfiled Article 13^ Complaint. Understandablyfrustrated by this decision after enduring(at that point)over seven months in unduly harshconfinement conditions, PFC Manning asked the Brig Operations Supervisor, MSGT Papakie,what he needed to do in order to be downgraded from MAX and POI. MSGT Papakie respondedby essentially telling PFC Manning that there was nothing he could do to downgrade his detaineestatus and that the Brig simply considered himarisk of selfharm. Out offrustration, PFCManning responded that the POI restrictions were absurd. PFC Manning sarcastically toldMSGT Papakie that ifhe wanted to harm himself, he could conceivably do so with the elasticwaistband ofhis underwear or with his fiipfiops. MSGT Papakie did not indicate to PFCManning at that time that he was concerned about PFC Manning'scomment.44. Later that same day,PFC Manning was approached byGYSGT Blenis. CYSGT Blenisasked PFC Manning what he had done wrong. He told PFC Manning that the new PCFCommander, CW02 Denise Barnes, had ordered PFC Manning to be stripped naked at night.PFC Manning responded that he had not done anything wrong. PFC Manning told GYSGTBlenis that he hadjust pointed out the absurdity ofhis current confinement conditions.45. Without consulting any of the Brig'smental health providers, CW02 Barnes increased therestrictions imposed upon PFC Manning under the pretense that PFC Manning wasasuicide35UnitedStatesv.PFC Bradley F. ManningDefenseArticle 13Motionrisk.Attachment 4. PFC Manning was not, however, placed underthe designation ofSuicide Risk. In order to keep PFC Manning in Suicide Risk, CW02 Barnes would have neededasupporting recommendation from one of the Brig'smental health providers. While CW02Bames needed the Brig psychiatrist'srecommendation to keep PFC Manning under SuicideRisk, no such recommendation was needed in order to increase PFC Manning'sspecial handlinginstructions under POF46. In response to this specific incident, COL Malone met with the PFC Manning. Afterspeaking to PFC Manning, he assessed PFC Manning asa"low risk and requiring only routineoutpatient followup^withjno need for ...closer clinical observation."Attachment 2. Inparticular,he indicated that PFC Manning'sstatement about the waist band ofhis underwear wasinnowaypromptedby"apsychiatriccondition"^^ Ratheritwaspartofhisprocessof"intellectualizing" the conditions ofhis confinement.47. CW02 Bames chose to ignore the assessment by COL Malone. From2March2011untilthe time he was transferred to the Joint Regional Correctional Facility(JRCF) at FortLeavenworth, l^ansas on 20 April 2011, PFC Manning was stripped of all his clothing at night.For the first couple ofdays, after surrendering his clothing to the Brig guards at night, PFCManning had no choice but to lay naked in his coldjail cell until the following moming.4^. On3March 2011,PFC Manning was told to get out ofbed for the morning DBS inspection.PFC Manning was not given any ofhis clothing back before the morning inspection. PFCManning walked towards the front ofhis cell with his suicide blanket covering his genitals. TheBrig guard outside his cell told him that he was not permitted to cover himselfwith his blanketbecause that would mean that he would not be standing at parade rest. PFC Manningrelinquished the blanket and stood completely naked at parade rest,which required him to standwith his hands behind his back and his legs spaced shoulder width apart. PFC Manning stood atparade rest for about three minutes until the DBS arrived. Once the DBS arrived, everyone wascalled to attention. The DBS and the other guards walked past PFC Manning'scell. The DBSlooked at PFC Manning, paused fbramoment, and then continued to the next detainee'scell.After the DBS completed his inspection, PFC Manning was told to go sit on his bed. Severalminutes later, PFC Manning was given his clothes and allowed to get dressed. PFC Manningwas also required to stand naked at attention the next four days.49. After apparent outside pressure on the Brig due to PFC Manning'smistreatment, PFCManning was provided withasuicide smock to wear at night.Attachment 26. However,due to PFC Manning'ssize and the coarseness of the smock, he had difficulty sleeping. PFCManning is five foot three in height and weighs approximatelyll5pounds. The smock was notdesigned for someone ofhis size. On one occasion, PFC Manning was being choked by thesmock and was unable to fiee himself As PFC Manning struggled to get out ofthe smock, twoguards entered his cell and assisted in removing PFC Manning from the smock.Attachment27.36United Statesv.PFC Bradley F.ManningDefenseArticle 13Motion50. Torecap,onl^January2011and5March 2011,the Brig increased the already onerousrestrictions placed on PFC Manning in the following manner;a) From l^January2011until 20 January 2011,PFC Manning was forced to strip down tohis underwear during the day.b) Froml^January2011until 20 January 2011,PFC was forced to sleep naked at night.c) From l^January2011until 20 January 2011,PFC Manning'seyeglasses were takenaway from him.d) Froml^January2011until 20 January 2011,PFC Manning was not permitted out ofhiscell and was on24-hour suicide watch.e) From2March2011until6March 2011,PFC Manning was forced to surrender all hisclothing at night and sleep naked.f) From2March2011until6March 2011,PFC Manning was forced to surrender hiseyeglasses during the day and at night. After6March 2011,his eyeglasses were retumedto him during the day,but continued to be removed from him at night.g) On3March2011until6March 2011,PFC Manning forced to stand naked at parade restwhere he was in view of multiple guards.h) From7March2011onward, PFC Manning was required to wearaheavy and restrictivesuicide smock which irritated his skin and, on one occasion, almost choked him.H.CoLRobertOltmansOrderthatPFCManningWouldNotBeDowngradedfromPOI and MAX51. On 13January 2011,Col.RobertGOltman, the Security Battalion Commander and seniorrateroftheBrigCommander,heldameetingtodiscuss PFC Manning'sconfinement conditions.The current Brig Commander, CW04Averhart, and his leadership staff were present. So toowas the incoming Brig Commander, CW02 Barnes. Along with the Brig leadership, the Brigpsychiatrists(Capt. Hocter and CapL Moore)and the BrigJudgeAdvocate,were also present.52. At that meeting. Col. Oltman ordered that PFC Manning would be held in maximum custodyand POI indefinitely. Col. Oltman stated that "nothing is going to happen to PFC Manning onmy watch." Col.Oltman also said,"nothing'sgoing to change. He won't be able to hurt himselfand he won't be able to get away,and our way of making sure of this is that he will remain onthis status indefinitely." At this point, Capt. Hocter go very upset and voiced his concerns. Capt.Hocter said something to the effect of, "Sir,lam concerned because if you're going to do that,maybe you might want to call it something else, because it'snot based on anything from37United Statesv.PFC Bradley F. ManningDefense Articlel3Motionbehavioral health." In response. Col.Oltman said "We'll do whatever we want to do. You^theBrig psychiatrists] make your recommendation andlhave to makeadecision based oneverything else." CapL Hocter responded,"Then don't say it'sbased on mental health. You cansay it'sMAXcustody,butjust don't say that we're somehow involved in this." Col.Oltmansaid,"That'swhat we're going to do."53. Col. Oltman made it clear to those present at the meeting that the decision to keep PFCManning in MAX and POI was coming from those higher in the chain ofcommand.Attachment^C'He indicated that Manning would remain in current status (POI) unless and untilhe received instructions from higher authority(unnamed). Ido not recall him saying he wouldbe kept that way until his legal process was complete, but the impression he left was not toexpect any changes in the near future."; "The Security Battalion Commander intimated that hewas receiving instructions fromahigher authority on the matter but did not say from whom.").54. During this meeting, CapL Moore informed Col. Oltman that he would likely be appointedasamember ofthe Defense team. In response. Col.Oltman told him that "that'snot going tohappen, doc." The next day,14January 2011,CapL Moore received his appointment orderassigning him asamember of the Defense team. After this date, CapL Moore was no longerinvited to attend the weekly meetings with Col. Oltman.55. CapL Hocter was also aware that Installation Commander, Col. Choike, had fiequent,sometimesweekly,meetingstodiscuss PFC Manning'sconfinement classification andassignmenL As part ofthese meetings, CapL Hocter was required to provide the BrigCommanderwithastatusreporton PFC Manning. ^^^Attachment^("l know that the higherbase authorities hadafrequent(sometimesweekly)meeting to discuss Manning, for whichisupplied my CO withastatus report^nothing that Manning had told me, mind you, but hiscondition and my recommendations, particularly to remove conditionslfeh were unnecessary.").LDomestic and International Reaction to PFC Manning s Conditions of Confinement56. The conditionsofPFC Manning'sconfinement while at Ott^titico sparked domestic andintemational outrage. Among those that spoke out about PFC Manning'sinhumane conditionsofconfinement were the following;a) Amnesty International wrotealetter calling for the restrictive conditions of confinementto be lifted;Attachment 2^.b) Agroupof300 law professors denounced the confinement conditions being endured byPFC Manning as being"degrading","inhumane,""illegal,"and "immoral"; .^^^Attachment 29.c) Preeminent constitutional law scholar Professor LaurenceTribe spoke out that theconditions under which PFC Manning was being held were "not only shameful butunconstitutional"; ^^^http:^^www.guardian.co.uk^world^2011^apr^l0^bradley-manninglegalscholars-letter.38United Statesv.PFC Bradley F. ManningDefenseArticle 13Motiond) Psychologists for Social Responsibility wrotealetter outlining the very harmful effects ofprolonged solitary confinement and implored officials to "rectify the inhumane, harmful,and counterproductive treatment ofPFC Manning";Attachment 30.e) Department ofState spokesmanP.J.Crowley referred publicly to PFC Manning'sconditions of confinement being "ridiculous and counterproductive and stupid." He waslater fired for his commenL ^^^http:^^www.guardian.co.uk^commentisfree^cifamerica^2011^mar^29^radley-manningwikileaks.f) European leaders urged the United States to allow the Flnited Nations to investigateclaims ofillegal pretrial punishment; ^^^Attachment31.g) Concerned citizens called Oti^^tico and organized rallies and marches to bring awarenessto PFC Manning'sconditions of confinemenLh) Congressman l^ucinich pleaded for access to PFC Manning and compared the conditionsofhis confinement to Abu-Ghraib;^^^http;^^ucinich.house.gov^news^documentsingle.aspx7DocumentlD^227362All these pleas fell upon deaf ears. O^^^fi^o continued to hold PFC Manning under MAX and inPOI(or under Suicide Risk) for almost nine months.57. Additionally,the United Nations Special Rapporteur onTorture, Mr.JuanMendez, tried formonths to set up an unmonitored meeting with PFC Manning where he could investigate claimsofillegal pretrial punishmenL All his requests were denied. InalettertoMr.MendezfromJehJohnson, General Counsel for the Department ofDefense, Mr. Johnson told Mr.Mendez "Youshould have no expectation ofprivacy in your communications with PFC Manning."Attachment32.5^. Mr.JuanMendez published his findings in the 29 February 2012Report of the SpecialRapporteur on torture and other cruel, inhuman or degrading treatment or punishmenLUnited States of America(a)LA30^12^2010CaseNoOSA20^2010State reply: 27^01^201119^05^2011Allegations of prolonged solitary confinement ofasoldier charged with theunauthorized disclosure ofclassified information.170.The Special Rapporteur thanks the Covernment ofthe Flnited States ofAmerica for its response to this communication regarding the alleged prolongedsolitary confinement ofMr. Bradley F.Manning,aUS soldier charged with theunauthorized disclosure ofclassified information. According to the informationreceived, Mr.Manning was held in solitary confinement for twenty-three hoursaday following his arrest in May 2010in Iraq, and continuing through his transferto the brig at Marine Corps Base O^^^fi^o. His solitary confinement-lasting^Congressman Dennis k^ucinich and officials at Amnesty International also tried to set up an unmonitored visit withPFC Manning, also to no avail.39United Statesv.PFC Bradley F. ManningDefense Articlel3Motionabout eleven months-was terminated upon his transfer fiom Oti^^fico to the JointRegional Correctional Facility at Fort Feavenworth on 20 April 2011. In hisreport, the Special Rapporteur stressed that "solitary confinement isaharshmeasure which may cause serious psychological and physiological adverse effectson individuals regardless oftheir specific conditions." Moreover,"^d]ependingon the specific reason for its application, conditions, length, effects and othercircumstances, solitary confinement can amount toabreach of article7of theIntemational Covenant on Civil and Political Rights, and to an act defined inarticlelor article 16of the Convention againstTorture." (A^66^26^ paras.79 and^0) Before the transfer ofPfc Manning to Fort Feavenworth, the SpecialRapporteur requested an opportunity to interview him in order to ascertain theprecise conditions ofhis detention. The US Covernment authorized the visit butascertained that it could not ensure that the conversation would not be monitored.Sinceanonprivate conversation with an inmate would violate the terms ofreference applied universally in fact finding by Special Procedures, the SpecialRapporteur had to decline the invitation. In response to the Special Rapporteur'srequest for the reason to hold an unindicted detainee in solitary confinement, thegovernment responded that his regimen was not "solitary confinement" but"prevention ofharm watch" but did not offer details about what harm was beingprevented. Tothe Special Rapporteur'srequest for information on the authorityto impose and the purpose ofthe isolation regime, the government responded thatthe prison rules authorized the brig commander to impose it on account oftheseriousness ofthe offense for which he would eventually be charged. The SpecialRapporteur concludes that imposing seriously punitive conditions of detention onsomeone who has not been found guilty of any crime isaviolation ofhis right tophysical and psychological integrity as well as ofhis presumption ofinnocence.The Special Rapporteur again renews his request foraprivate and unmonitoredmeeting with Mr.Manning to assess his conditions of detention.(b)AL15^06^2011CaseNoUSA^^2011State reply: None todateFollowup toaletter sent 13May2011requestingaprivate unmonitored meeting with Private(Pfc.)Bradley Manning.171.The Special Rapporteur thanks the Govemment ofthe United States ofAmerica for its response to the communication dated 13May2011requestingaprivate unmonitored meeting with Private Bradley Manning. Regrettably,to datethe Government continues to refuse to allow the Special Rapporteur to conductprivate, unmonitored, and privileged communications with Private Manning, inaccordance with the working methods ofhis mandate (F^CN.4^2006^6 paras.2027)40United Statesv.PFC Bradley F. ManningDefenseArticle 13Motion59. MrMendez told the British newspaper. The Guardian, that: " I conclude thatthellmonthsunder conditions of solitary confinement(regardless of the name given to his regime by theprison authorities)constitutes ataminimum cruel,inhuman and degrading treatment in violationof article 16ofthe convention against torture.Ifthe effects in regards to pain and suflcringinfiicted on Manning were more severe, they could constitute torture.".^^^http:^^www.guardian.co.uk^world^2012^mar^l2^bradleymanning-cruelinhuman-treatment-un.60. The Defense tried repeatedly to assist Mr.Mendez(along with Congressman I^ucinich andAmnesty Intemational) in setting up an unmonitored visit with PFC Manning. TheGovemment,along with the Brig, insisted that none ofthese would qualify as an "official" visit, and thereforemust be monitored.61. The O^^^tico Brig rules provide for both "authorized visits" and "official visits." The latterare not monitored. The rules provide as follows:317CORRFSPONDFNCF AND VISITATION: Confinementshouldnotstopaprisoner from keeping in contact with members oftheir immediate family andauthorized visitors via mail or personal visits. Fachprisoner'sfamilywillbeinterested in their progress and concerned about their well-being and morale.Morale isatwo way street and family members need be encouraged just as muchas the prisoner. Prisoners are strongly urged to correspond and arrange visits.Prisoners are encouraged to place all potential visitors on their visitor list even ifthe chance or their visiting is remote. In the event during your confinement youwish to add additional people to the visitation list you must submitaDD Form510with name, relationship, age, and address to the Admin Chief Thefollowingguidelines are applicable:a. Authorized; No limitations will be imposed as to the number or persons whomay visit withaprisoner, except as to maintain security,control,or to excludepersons disapproved by the Commanding Officer for cause. Authorized visitorsinclude the prisoner'simmediatefamily(spouse, children, parents, brothers,sisters or guardians)or anyone who has establishedaproper relationship with theprisoner prior to him being confined.b. Official: These visits are for the purpose ofconducting official govemmentbusiness, either on behalfofthe prisoner or in the interest ofjustice. Visits fiomlawyers, military officials, civilian officials, or anyone listed asaprivilegedcorrespondence in paragraph3.17f of this regulation, having official business toconduct are considered official visits and may be authorized by the CommandingOfficer to visit at any time during normal working hours. All prisoners will berequired to see official military visitor(s). Refusal to visit with official militaryvisitors will be subject to disciplinary action.41United StatesvPFC BradleyFManningDefenseArticle 13MotionPrivileged Correspondence: All incoming and outgoing correspondence(mail)betweenaprisoner and the following is privileged and not subject to inspectionunless reasonable doubt exists as to the correspondence being bona fide:a. The President or Vice President ofthe Lnited States.b. Members ofCongress ofthe United States.c. The Attorney Ceneral of the Lnited States and RegionalOfl^ces ofthe Attorney General.d. TheJudge Advocate Ceneral of each military service orhis^er representatives.e. Prisoners Defense Counsel or any military^civilian attorneyof record.f Any attorney listed in professional or other directories or anattomey'srepresentative.g. Prisoner's clergyman,when approved by the chaplain.Attachment 34.62. On31March 2012, Mr. Coombs wrote the following to CPT Fein;lhave informed Congressman l^ucinich that he is authorized to visit PFCManning under the rules and regulations for the O^^^tico Brig. Under Brig OrderP1640.1C,paragraph3.17,there are two types of visitors fbradetainee,authorized and official.1) Authorized visitors are required to be added by the detainee and approved bythe O^^titico Brig. Any person added to the authorized visitors list may visit thedetainee on any Saturday or Sunday between the hours ofl2:00and3:00 p.m.These visits are monitored by the Brig. The Brig requires the visits to take placeinano-contact booth for any detainee held in Maximum Custody. The doors tothe booth must remain open and the entire visit will be recorded by the Brig.Anything said during these visits is not privileged and can be used later by thegovemment inacourt-martial proceeding.2) Official visitors are for the purpose ofconducting official govemmentbusiness, either on behalfofthe detainee or in the interest ofjustice. Officialvisits may be authorized by the Brig Officer to visitadetainee at any time duringnormal working hours. The official visits are considered privileged, and are notsubject to recording or monitoring. The Brig'srules and regulations identify thefollowing individuals as qualifying for official visits:a) Military officials.b) Civilian officials.42United StatesvPFC Bradley F. ManningDefenseArticle 13Motionc) The President or Vice President ofthe United States.d) Members ofCongress ofthe United States.e) The Attorney General of the United States and Regional Offices of theAttorney Ceneral.f) The Judge Advocate General ofeach military service or his or herrepresentative.g) Prisoner'sDefense Counsel or any military or civilian attorney ofrecord.h) Any attorney listed in professional or other directories or an attorney'srepresentative.i) Prisoner'sclergyman when approved by the chaplain.Given the difference between authorized and official visits, PFC Manning doesnot want to waive his entitlement to haveaprivileged conversation withCongressman l^ucinich.You should know,that Amnesty International is alsomakingarequest for an official visit as well as Mr.JuanMendez, the UnitedNations Special Rapporteur on torture and other cruel, inhuman or degradingtreatment or punishmenLlhave recommended that each ofthe above individuals contact the facilitydirectly to arrange for an official visiL lam hoping that you will indeed ensurethat the O^^t^fi^o Brig honors its own rules and regulations.Attachment 33.63. O n l April 2011,Mr. Coombs contacted LLCoF Greer, the StaffJudge Advocate for MarineCorps. Base O^^titico, regarding an official visit:lhave been informed by Congressman I^ucinich'soffice and byAmnestyInternational that they have been told by your office they do not qualify for anofficial visiL Instead, they are being directed to request to be added to PFCManning's"authorized" visitors lisL Additionally, Congressman k^ucinich'soffice is being told that the Brig Order that his office is referencing does not exisLlhave seen Brig OrderP16401C,datedlJuIy 2010. This order clearly providesfor both authorized and official visits.Thus, it appears that Brig Officials lied to Congressman I^ucinich about the very existence ofBrigOrderP16401C6 4 . 0 n 5 A p r i l 2011,CPT Fein responded:1. Brig Visitors.43United Statesv.PFC Bradley F.ManningDefense Articlel3MotionWhile we understand your view ofthe Brig Order, we respectfttlly disagree withyour interpretation ofthe attached relevant portion ofthe Brig Order with regardto visitation.While you correctly recite what an "authorized" visitor is, an "official" visit is"for the purpose ofconducting official government business, either on behalfofthe prisoner or in the interest ofjustice,"seepara3.17b. The next sentencesimply states that "lawyers, military officials, civilian officials, or anyone listed asaprivileged correspondence in para3.17f...having official business to conductare considered official visits"(emphasis added) and may visit at any time duringnormal working hours, subject to authorization by the Commanding Officer.Critical is the next sentence,"All prisoners will be required to see official militaryvisitor(s)"(emphasis added). Therefore, an official visit to the brig byaMemberof Congress conducting official govemment business or byanongovernmentorganization'srepresentative does not necessarily includeavisit with PFC BMwithout PFC BM'sconsenLYou also state,"official visits are considered privileged, and are not subject torecording or monitoring"(emphasis added); however this not in the Brig Order.As noted in para3.17f,which you cite as the authority,"all incoming or outgoingcorrespondence(mail) betweenaprisoner and the following is privileged and notsubject to inspection,"refers to, as stated,"mail" and not visitation(emphasisadded). While you also state,"The Brig'srules and regulations identify thefollowing individuals as qualifying for official visits,"the reference you cite (para3.17f)providesalist of govemment officials, including "Members ofCongress."Again, that para refers to "mail" and not visitation protected under SectionVofthe MRE. Therefore,avisit byaMember of Congress would not be privilegedwithin the meaning ofthe Brig Order, and would be monitoredjust like any othervisitor.The prosecution and brig'sinterpretation of the Brig Order outlines these types ofvisitors:a. "Authorized" visitors.Visitors that PFC BM places on his visitation list.b. "Official"visitors.Those officials listed in para3.17b conducting officialgovernment business.Aperson'smembership in an organization does not necessarily confer upon thatperson "official" status. AMember of the Congress is conducting an "official"visit ifhe is conducting official Covernment business.Amemberofanon-government organization is not "official" as they are notconducting govemment business. Should PFC BM desire to meet with any oftheindividuals whom you have mentioned as potential visitors, he will need to either44United Statesv.PFC Bradley F. ManningDefenseArticle 13Motionadd them to his "authorized" visitor list or approveameeting, through you, if theindividuals make an "official" visiL As you know,fiom the beginning ofPFCBM'sconfinement at O^^^fico, the rule requiring an "authorized" visitor to haveapreexisting relationship with PFC BM has been relaxed to allow any visitortovisit, subject to standard security vetting and monitoring for national securitypurposes. This accommodation was based on the potential for his long-termpretrial confinement and for his benefit, well being, and morale.Regardless of the interpretation of the Brig Order, the SPCMCA issuedastandingorder on 16SeplO,which directs the Brig to monitor communications of thirdparties while confined at the Brig. This requirement includes all ofPFCBM'sphone calls,visitations, and mail. This requirement does not include monitoringofany privileged communications between PFC BM and his attorneys, mentalhealth providers, and brig chaplains.Further, as the United States has charged your client, you surely acknowledge ourconcernthatPFCBM'sright to counsel be scrupulously honored. Absent thecommand'sweeklyvisit,which is limited to discussing PFC BM'swelfare,wewould not allowaU.S.Government representative to meet with your clientwithout counsel being present or an affirmative waiver ofthat right by PFC BM.Properly addingavisitor as an "authorized" visitor will be deemed consent tospeakwithagovernment representative bythe defense. Any such visit will besubject to monitoring unless it is subject toarecognized privilege under SectionV,MRF(falls underthe SPCMCA'sexception)In the future, please do not direct any organization to directly contact the Brig tocoordinate any visiL If someone is trying to coordinateaformal meeting in an"official"capacity,theyshouldcoordinatethrough DOD Legislative Affairs(COLTiaJohnson)and their request to meet with PFC BM will be ultimatelyforwarded through you to PFC BM for consent to meet during suchavisiLWewill continue to notify you when we receive information that someone wishesto meet with your client in an "official" capacity,and request the same courtesy inretum, once your client agrees to meet with them.65. On6April 2010, Mr. Coombs sent the following response to CPT Fein:1.Thank you for your reply. Is the interpretation ofthe Brig Order the MDWSJA'sinterpretation, the O^^^fi^o Brig'sinterpretation, or simply yourinterpretation7The sentence that you gloss over in your reply is actuallythe critical one from theBrig Order.This sentence states that "^vjisits fiom lawyers, military officials.45United Statesv.PFC BradleyFManningDefense Article 13 Motioncivilian officials, or anyone listed asaprivileged correspondence in paragraph3.17f of this regulation, having official business to conduct are considered officialvisits..."(Emphasis added).Congressman l^ucinich, Mr.JuanMendez fiom theUnited Nations, and any representative from Amnesty Intemational would clearlyfall within the scope ofindividuals identified in paragraph3.17f and are thereforedeemed to be official visits under the Brig Order.Under the interpretation advanced in your previous message,amember ofCongress is conducting an "oflicial" visit only ifhe is conducting "officialgovemment business" andamemberofanongovernment organization is not"official'as they are not conducting "govemment business." Besides being an^sicjperfunctory argument without support under the Brig Order, it is also onethat is easily nullified by using the example ofacivilian attorney. Paragraph3.17f states thata"civilian attorney of record" is deemed to be an official visiL Acivilian attomey is clearlyanongovernment entity and as such is not conducting"official government business." This clearly belies any attempt to argue officialvisits are limited in the way that you suggesLMoreover, official visits are clearly privileged under the Brig Order. Whilesection3.17f speaks to mail correspondence being privileged, it must follow thatoral communications are also privileged. It would not make sense thatadetaineewould enjoythe protection ofaprivileged communication fiom an individuallisted in paragraph3.17fif the correspondence came by way of mail as opposed toan in-person conversation with the same individual.With regards to the SPCMCA'sstanding order dated 16September 2010, hisfailure to recognize other individuals who are entitled by the Brig Order to haveaprivileged conversation is not dispositive. The order is unenforceable given thefact it would authorize the recording ofprivileged conversations. Likewise, thegovernment'sconcernsurroundingPFCBM'sright to counsel is misplaced.Mental health providers and brig chaplains are able to speak with PFC BMwithout coordination with civilian counsel. As long as the conversations areprivileged, the government'sconcern would seem unwarranted.Given the above,lrequest that you clarify the O^^^ticoBrig'sofficial position onthis issue.66. CPT Fein then clarified on7April2011that "Our interpretation is the Govemment'sinterpretation, to include the SJAand the Brig."Owing to the interpretation ofthe Brigpolicy,PFC Manning was never permitted an unmonitored visit with the Lnited Nations SpecialRapporteur onTorture, Congressman Dennis k^ucinich, or Amnesty International.46United Statesv.PFC Bradley F.ManningDefenseArticle 13MotionJ.PFC Mannings Repeated Pleas for RellefFromtheOnerous Conditions ofHisConfinement67. PFC Manning repeatedly requested to be removed from MAX and POI. Additionally,PFCManning'scivilian counsel made numerous requests of the Flnited States Army Staff JudgeAdvocate'sOffice for the Military District ofWashington to assist in removing PFC Manningfrom MAX and POF6^. In the fall of2010, Mr. Coombs and CPT Fein had several telephone conversations about theonerous conditions ofPFCManning'sconfinemenL On3December 2010, Mr. Coombs wrote toCPT Fein asking whether he had "an update on the POI issue with PFC Manning."Mr.Coombs continued,CapL Hocter saw PFC Manning onThursday. It is my understanding that afterspeaking with PFC Manning, he is still recommending that the POI restrictions belifted. As mentioned earlier, given the recommendation of CapL Hocter,ldo notbelieve the confinement facility hasalegitimate non-punitive basis to keep PFCManning on the POI status. Additionally,it is my understanding that other than inthis instance, the confinement facility has never had anyone under POI restrictionsfor this length oftime. This fact also cuts againstalegitimate non-punitive basis.CPT Fein responded,"Althoughlunderstand your concern we are absolutely working thisissue as our highest priority. Currently,thereisadisconnect in multiple services with multiplecompeting regulations and we have to ensure the correct applicable rules apply."69. On^December 2010, CPT Fein had still not addressed the POI issue. Mr. Coombs wrote tohim again saying,"How is the POI issue coming along7 My understanding is that CapL Hocteris still recommending that the POI be lifted.".^^. CPT Fein responded,"we are still activelyaddressing the POI issue with O^^titico.".^^. Mr. Coombs responded,Doyouhaveatime-tableonthePOIissue. Farliertoday,lspoke with CapLHocter. He told me that he is still recommending that PFC Manning be taken offofPOl status. He told me that the behavior witnessed by the guards appears to bearesult ofaside effect from PFC Manning'ssleep medication.Aslhave said before,Ibelieve the current confinement conditions rise to thelevel ofunlawful pretrial punishmenL Mr.Averhart does not havealegitimatebasis to continue to ignore the advice ofhis mental health professional.Maintaining the POI status prevents PFC Manning from exercising, having basicitems such asapillow and sheet, and subjects him to prolonged isolation. Pleasetell me what you have done so far to address this issue, and the additional stepsthat you plan to take to resolve iL47United Statesv.PFC Bradley F. ManningDefenseArticle 13MotionThe next day,on9December 2010, CPT Fein responded to Mr. Coombs, stating,"Tomorrow the Ot^^^tico Brig is holding their Classification and Assignment Board, whichmakes recommendations to the Brig OIC. Werequested the OIC to consider the issues youpresented in his determination ofPFCManning'sstatus. Weshould find out by COB tomorrowon whether his status is going to change."70. Ofcourse, PFC Manning was not taken off^MAX or POI status. And it is clear that CPTFein and the Government did not advocate for the rights ofPFC Manning during this perioddespite repeated protestations from the Defense that PFC Manning was being subjected to illegalpretrial punishmenL In late November 2010,just prior to the emails chronicled above, someonefrom the Government (i.e. the prosecution team)contacted the Brig and said the following:Defense has madearequest that PFC Manning'sstatus be reduced from POI tosome other status where he is able to have more time outside or workout in hiscell. My understanding is that his status determination is made based uponalistoffactors including his charges, mental health and behavior. Since the Defensehas made this request to lower his status ^^^^.^.^^^^^^^^^^^^^^^^^^v^^^^^^^^.^^Is therealesser level ofPOl that PFC Manning could be moved to. Ifthe^^^^^^^^^^^^^^^^^^^.^^^^^^^.^^^^^^^.^^^^^v^^^^^^^^^^^^^^^^^^^^^^^,wejustneedtohave it addressed to the DefenseCounsel. (emphasis added).i^^^Attachment35.71. Thus, it appears that the Government did not actually try to have PFC Manning removedfrom POI status ("Ifthe recommendation ofthe Brig personnel is to have him remain on POI thatis fine"), but simply made inquiries ofthe Brig to "at least address" the concerns raised by theDefense.72. During this time, the Covernment also requested copies ofsunshine logs maintained by theBrig;The defense counsel is concemed about PFC Manning'smental and physicalhealth in relation to his small amount oftime outside. In order to combat anypotential Articlel3issueslwould like to getacopy of the logs that show whenPFC Manning went outside and how long he stayed there. Iknow that he usuallygets 20 minutes daily butlneed to have the logs to show thaLFar from trying to remedy the situation, the Govemment was just looking fi:^r documentationthat could be used to "combat any potential Article 13issues."73. All of the Defense'srequestsforachange in confinement conditions were met withassurances that the confinement conditions were being reviewed and would be adjusted in time.However, despite these assurances, PFC Manning remained in MAX and POI at O^^^fi^o for48United Statesv.PFC Bradley F.ManningDefense Article 13 Motionover eight months. When combined with the time he spent on Suicide Risk in k^uwait, PFCManning was in the equivalent ofsolitary confinement for almost eleven months.74. On5January 2011,PFC Manning filedacomplaint with the O^^^tico Brig Commander andaDDForm510complaint through the Brig'sgrievance process.Attachments 10,36. Thecomplaint and the official grievance requested that the Brig commander remove PFC Manningfrom MAX and POI or providejustification for his decision to keep PFC Manning in MAX andPOF PFC Manning was not provided with any form ofredress through the grievance process.75. Onl3January 2011,PFC Manning filedarequest for release fiom pretrial confinementunder R.C.M.305(g). ^^^Attachmentll. PFC Manning cited the unduly harsh confinementconditions, the O^^^fi^o Brig commander'sfailure to respond to his grievance request, and thefailure ofthe military magistrate to seriously consider other options under R.C.M.304 to ensurePFC Manning'spresence at trial. COL Carl R.CoffmanJr.,the Special CourtMartialConvening Authority(SPCMCA), subsequently denied PFC Manning'srequest and informedPFC Manning that he would address the POI issue inaseparate action.Attachment 12.COL Coffman did not address the POI issue raised by PFC Manning.76. On 19 January 2011,PFC Manning filedarequest for redress under Articlel3^,UCMJ withthe Oti^^fico Base Commander, Col. Choike.Attachment 13. The O^^^tico BrigCommander, CW04Averhart,filedaresponse to PFC Manning'sArticle 13^ Complaint on24January 2011. i^^^Attachmentl5. So too did Col.Oltman. ^^^Attachmentl7. OnlMarch2011,Col.Choike filedaresponse to PFC Manning'sArticlel3^ ComplainLAttachment1^. This response was served on PFC Manning on2March 2011. All three determined that noreliefwasappropriateanddenied PFC Manning'srequest for redress.77. On lOMarch, 2011,PFC Manning filedaRebuttaltoCol.Choike'sdenial ofhis Article 13^ComplainL .^^^ Attachment 14. In this, PFC Manning also raised the incident on2March 2011where he was placed on Suicide Risk. CW04Averhart and CW02 Barnes filed responses wherethey recommended denying PFC Manning'spetition for redress. ^^^Attachmentsl6, 20,21.Col.Choike denied PFC Manning'sArticlel3^Complaintasecond time on^April 2011.Attachmentl9. Two days prior, on6April 2011,Col.Choike determined that he would notconsider the new matter raised by PFC Manning'sArticlel3^ ComplainL OnlOApril,PFCManning filedasecond rebuttal to Col.Choike'sresponse and requested that he consider thenew matters raised in the Article 13^ ComplainL i^^^Attachmentl9.7^. All ofthese matters were forwarded to the Secretary ofthe Navy for his final action. On 13June 2011,Juan Garcia, Assistant Secretary ofthe Navy,took final action on the Article 13^Complaint by denying PFC Manning'srequest for redress. ^^^^ Attachment 23. He stated "evenif your complaint has merit, your transfer to ^Fort Leavenworth] isasuperseding and interveningevent that has made your request for relief unavailable."79. On 20 April 2011, PFC Manning was transferred to the Joint Regional Correctional Facility(JRCF) at Fort Leavenworth, k^ansas. Afteraroutine indoctrination period, PFC Manning was49UnitedStatesv.PFC Bradley F.ManningDefenseArticle 13Motionplaced in Medium Custody with no prevention ofinjury restrictions. He has been held in thatstatus for the past 15months.ARCUMFNT80. Articlel3 provides that "no person,while being held for trial,may be subjected topunishment or penalty other than arrest or confinement upon the charges pending against him,nor shall the arrest or confinement upon the charges be any more rigorous than the circumstancesrequired to insure his presence." Article 13thus prohibits both;(l)the imposition of punishmentor penalty prior to trial; and (2)confinement conditions more rigorous than necessary to ensurethe accused'spresence at trial. ^^^^^^^^^^^^^^.^v.C^^i^^^,62M.J.411,414(C.A.A.F.2006); ^^^^^^^^^^^.^v .^^^^,61M.J.225,227(C A A.F 2005);^^^^^^^^^^^^460,463 ( C A A F 2003);^^^^^^^^^^^^v^^^^^^^,53MJ 149,154(CAAF^accused can demonstrate an intent to punish or the imposition ofunduly onerous confinementconditions, he is entitled to relief under Article 13. i ^ ^ ^ ^ ^ .81. The first prohibition of Articlel3 requires an accused to show an intent to punish.^^^^^^^^^^^.^v.^^^^^ 40 M.J.225,227(C.M.A.1994).This intent can be determined byexamining the intent ofthe detention officials, or by examining the purposes served by theconditions of confinemenL ^^^^^^^^^^^^^^.^v^^^^,61ML 225,227 ( C A A F 2005)"Absentashowing of an expressed intent to punish on the part detention facility officials, thatdetermination generally will turn on'whether an alternative purpose to which^the restriction]may rationally be connected is assignable for it, and whether it appears excessive in relation tothe alternative purpose assigned ^ t o i t ] ' " ^ ^ ^ ^ v ^ ^ . ^ ^ ^ 4 4 1 U S 520, 538(1979)82. On the other hand, the second prong of Articlel3focuses on the conditions endured by theaccused, and whether they are more rigorous than necessary to guarantee the accused'spresenceattrial.^^^^^^^^^^^^^^.^v^C^^^^^,47M.L162,165(CAA.F 1997) Conditionsthataresufficient egregious may give rise toapermissible inference that an accused is being punished,or the conditions may be so excessive as to constitute punishmenL (^^^^^^^^^^^^.^ v70MJ 169,174(CAAF2011)83. In this case, there isaclearly expressed intention to punish PFC Manning. Col.Oltman haddecided that PFC Manning would remain in MAX and POI for as long as he was at O^^^fi^obecause nothing was going to happen "on his watch." Even if there weren't suchaclearlyexpressed intention to punish PFC Manning, the restrictions that were placed on PFC Manningwere not related(much less rationally related) to any legitimate government objective. Finally,the egregious conditionsofPFC Manning'sconfinement for over eight months permit the^^^.^^inference that PFC Manning was punished in contravention ofhis constitutional rights.A.O^^^fi^^ Brig Officials Intended to Punish PFC Manning84. There is clear evidence showing that the conditions imposed on PFC Manning weremotivated by factors which had nothing to do with PFC Manning'srisk of self-harm,harm toothers, or potential fiight risk. In particular, the Brig'sarbitrary policy to keep PFC Manning50UnitedStatesv.PFC Bradley F.ManningDefense Article 13 Motionsubject to the harshest conditions possible shows an intent to punish PFC Manning. ^^^(^^^^^^i^^^^^.^v.C^^i^^^, 62 M.J.411,416(C.A.A.F.2006)("wedo^not] condone arbitrary policiesimposing'maximum custody'upon pretrial prisoners. Wewill scrutinize closely any claim thatmaximum custody was imposed solely because of the charges rather than asaresuhofareasonable evaluation ofall the facts and circumstances ofacase.").a) Col.Robert Oltman'sOrder That PFC Manning Would be l^et^t on MAX and POIIndefinitely85. The confinement conditions imposed on PFC Manning at Ott^titico were motivated byadesire to punish PFC Manning for the crimes he is alleged to have committed; the media scrutinythat his case has generated; and the comments that PFC Manning made in attempting to have therestrictive confinement conditions lifted.86. PFC Manning is alleged to have leaked hundreds ofthousands ofclassified documents toWikiLeaks. He has been denounced asatraitor in the media. Admiral Mike Mullen, Chairmanofthe Joint Chiefs ofStaff, indicated that PFC Manning "might already have blood on hishands." Members of Congress have called for PFC Manning'sexecution. PFC Manning hasbeen charged with "aiding the enemy,"acharge that is closely related to treason.87. In response to the high-profile nature ofthis case, and the apparent predetermination by Brigofficials that PFC Manning is guilty, Col.Oltman issuedadirective reminiscent o f ' A F e w GoodMen"^ that PFC Manning would be held under MAX and POI because nothing was going to^In an infamous scene trom the movie"AFewCoodMen,"Co1.Jessup (played by Jack l^icholson)unapologetically boasts that he ordereda"Code1^ed":Judge l^andolph: ^Consider yourselfinContemptl^l^affee: ^Colonel Jessep, did you order the Code l^ed7^Judge 1^andolph:you^don^t^ have to answer that ^uestionlCol. Jessep: 1^11 answer the ^uestionl[^^^^^]Col.Jessep:you want answers71^affee:lthinkl'mentitledto.Col. Jessep:^'^ou want answers7^k^affee:^! want the truthl^Col. Jessep:^'^ou can't handle the truthl^[^^^.^^.^]CoL Jessep: Son, we live inaworld that has walls, and those walls have to be guarded by men with guns. Who'sgonna do it7 you7 ^ou,Lt.^einburg7 lhaveagreater responsibility than you could possibly fathom, ^ouweep for Santiago, and you curse the Marines, you have that luxury, you have tbe luxury ofnot knowing whatIknow. That Santiago'sdeath,while tragic,probably saved lives. And my existence, while grotesque andincomprehensible to you, saves lives, you don't want the truth because deep down in places you don'ttalkabout at parties, you want me on that wall,you need me on that walL Weuse words like honor.code, loyalty.Weuse these words as the backbone ofalife spent defending something, you use them asapunchline. lhaveneither the time nor the inclination to explain myselftoaman who rises and sleeps under the blanket ofthe veryfreedom thatlprovide, and then questions the manner in whichlprovide it. Iwould rather you just said thankyou, and went on your way.C^tberwise,lsuggest you pick upaweapon, and standapost. thither way,1don't51United Statesv.PFC Bradley F.ManningDefenseArticle 13Motionhappen "on ^hisjwatch." When challenged by CapL Hocter, CoF Oltman responded that"nothing'sgoing to change. He won't be able to hurt himselfand he won't be able to get away,and our way ofmaking sure ofthis is that he will remain on this status indefinitely." CapLHocter said something to the effect of, "Sir,Iam concemed because if you're going to do that,maybe you might want to call it something else, because it'snot based on anything frombehavioral health." In response. Col.Oltman said,"We'll do whatever we want to do. You^theBrig psychiatrists] make your recommendation andlhave to makeadecision based oneverything else." CapL Hocter responded,"Then don't say it'sbased on mental health. You cansayit'sMAXcustody,butjustdon'tsaythatwe'resomehowinvolvedinthis"Col01tmansaid,"That'swhat we're going to do."88. The very next day,onl4January 2011,CapL Hocter evaluated PFC Manning and found(ashe had for the previous five months)that he did not require POI restrictions. The tone ofthisevaluation was different than the others and he appears to reference to Col.Oltman'sorder fromthe day before. CapL Hocter writes:Pt ^patient] continues to not be suicidal and does not require POI. Please removehim. Ifhe requires enhanced security for other reasons, please consider writingaseparate SOP.Attachment 2.89. It was clear to those at thel3January2011meeting that the directive from Col.Oltman wascoming from "higher up." ^^^Attachment8("He indicated that Manning would remain incurrent status (POI) unless and until he received instructions from higher authority(unnamed). Ido not recall him saying he would be kept that way until his legal process was complete, but theimpression he left was not to expect any changes in the near future."; "The Security BattalionCommander intimated that he was receiving instructions fiomahigher authority on the matterbut did not say fiom whom.").90. Although the meeting took place in January of2011,it is safe to assume that the order thatPFC Manning would remain in MAX and POI had been in place since PFC Manning arrived atOt^^^fico. This was just the first time that the Brig psychiatrists(and later, the Defense)leamedwhat was really going on.91. The decision early on to hold PFC Manning under these onerous conditions with no hopefor improvement was clearly based on the desire to punish PFC Manningft^rthe crimes that hewas alleged to have committed. An official'sexpressed desire to punish constitutesunconstitutional punishmenL ^^^.^^^^v ^^^.^^^441U.S.520(1979); ^^^^^.^^^^^^^^^^^^^.^vgiveadamn what you think you are entitled to.k^affee: Did you order the Code l^ed7Col.Jessep:ldidthejobl...kaflee:^Did you order the Code l^ed7^CoL Jessep: ^you're Ooddamnrightldidl^52UnitedStatesv.PFC Bradley F. ManningDefenseArticle 13Motion^B^^^^^^ 53 M.J.149,155 (C.A.A.F.2000)(accused alleged that he was placed in solitaryconfinement for an extended period oftime because prison officials were attempting to "breakhim"; court indicated thaf'coercingaconfession is notalegitimate governmental objective.").92. Moreover,wherearesuh is already pre-determined, by definition, procedural due process isdenied. ^^^^^^^v^^^^^^^^^C^^7^^^^^^^^^^^^^.^^^185F3d 751,762(producing "evidence that the decision has already been made and any hearing would beasham"sets forthaprocedural due process claim);^^^^^^^v.^^^^^,953 F.2d 1240, 1245 (10th Cir.1992)(holding that due process requires an impartial tribunal that has not predetermined facts);^^^^^^.^v.C^^^^^^^,891F.2d 43,46 (2nd Cir.l989)("^l]t is axiomatic thataprison disciplinaryhearing in which the resuh is arbitrarily and adversely predetermined violates^the right of dueprocess].").93. In (^^^^^^^^^^^.^^^.^^^.^^^^^^^Vi^^^^^^^^.^.^^,74S.CL499(1954), the Supreme Courtfbundaviolation of procedural due process in circumstances far less glaring than the instantcase. In i^^^^^^^^.^.^^,the petitioner broughtahabeas action in which he attacked the validity ofthe denial ofhis application for suspension of deportation. He alleged that he was "prejudged"because prior to the immigration board'shearing, the Attorney General publishedaconfidentiallist ofunsavory characters." ^^at500. The Supreme Court found that the petitioner'sprocedural due process rights were violated because the "issuance ofthe list and related publicityamounted to public prejudgment by the Attorney General so that fair consideration ofthepetitioner'scase by the Board oflmmigration Appeals was made impossible."at 502.Notably,the Supreme Court stated,"Tobe sure, the petition does not allege that'the AttorneyGeneral ordered the Board to deny discretionary reliefto the listed aliens.' Itwouldbena^vetoexpect suchaheavy handed way of doing things."at 503. And, yet, this "heavy handed wayofdoing things" is exactly how Col.Oltman handled the determination ofthe conditionsofPFCManning'sconfinemenL Ifanot-so-subtle "hint" at the resuh sought constitutesaviolation ofdue process as the Supreme Court held in ^^^^^^^^^.^.^^,then surely an explicit order by theSecurity Battalion Commander to keep PFC Manning under MAX and POI amounts to violationofPFCManning'sconstitutional rights.94. Col.Oltman'sunlawful order that PFC Manning be maintained in MAX and POI status wasmade even more egregious by the fact that it was made in the presence ofaJAGofficer, thusgiving italegal "blessing." ThataJAGofficer stood by mutely whileacommander issued anorder which clearly violated an accused'sconstitutional rights cannot be countenanced. It isaparticularly sad day when the guardians ofthe system are the ones failing iL95. On31 January 2011,justafew weeks after the meeting where Col.Oltman directed thatPFC Manning would not be removed fiom MAX or POI because "nothing was going to happenon ^his]watch,"Col.Oltman recommended that PFC Manning'sArticle 138 Complaint bedenied. ^^^Attachmentl7. Col.Oltman stated that CW04Averhart's"classification andassignment decisions in this case have been appropriate and within applicable regulations."Ofcourse, Col. Oltman thought these recommendations were "appropriate."After all, CoFOltman was the one who issued the order to make those recommendations in the first place.53United Statesv.PFC BradleyFManningDefenseArticle 13Motionb) Col.Oltman'sOrder Provides Context forthe Repeated Recommendations of the C^ABoard and the PCF Commanderto Retain PFC Manning in MAX and in POI Over theRecommendations ofBrig Psychiatrists96. When viewed against the backdrop of Col.Oltman'sorder, the continued recommendationsof the C^A Board and of CW04AverhartandCW02 Barnes to retain PFC Manning on MAXand POI now make sense.Attachment 6. In his Response to PFC Manning'sArticle 138Complaint, Col. Choike writes:In your case, the PCF mental health provider recommended removal ofPOl statusneartheendofAugusL Except for one week in December, the PCF mental healthprovider has consistently recommended that you be removed from POF However,the C^A Board has consistently recommended that you remain in POI statusgiven your intake document that you were'always planning'suicide. his withinthe direction of the PCF Commander to retain you inaPOl status. Inote that thePCF Commander has the inherent authority over those in his custody to maintainorder and discipline and the responsibility to ensure safety and security in thePCF^^^Attachmentl8.97. TheC^A Board, along with CW04Averhart and CW02 Barnes, had been told whattheyneeded to do keep PFC Manning subjected to the most rigorous conditions possible. So nomatter what the psychiatrists recommended,week-after-week, month-after-month, nothing everchanged because everyone at the Brig had their marching orders from Col.01tman,who in tumhad his marching orders from someone higher up in the chain ofcommand. In effect, thepsychiatric opinions werejust "window dressing" to make it look like PFC Manning wasaccorded due process^when it was abundantly clear that he was noL98. Acareful look at the C^A Board reviews shows that the entire "process" was justasham.^First, the C^A Board failed to fill out the appropriate forms foratotalof^v^ months.Attachment 6. ^^^^^.^^ Attachment 19(Col.Choike acknowledging that "not each decision wasdocumented utilizing the local generated'Form 4200'."). It was only when it was clear thatOuantico was being subjected to outside scrutiny that the Board thought it necessary to createapaper trail to make it appear like PFC Manning was being accorded due process. The failure todocument the continued decision to maintain PFC Manning in MAX and POI is refiective ofthefact that the "decision" was already predetermined. ^^^^^C^^^v.^^^^.4F.Supp. 2d 195,213(W.D.N.Y.1998)("Due process is not satisfied where the periodic reviews areasham.");^^^^^^^^v.^^^^^.^^^,791F.2dl094(1101(3dCir.l986)(while"themonthlyreview^CW04Averhart notes that the weekly C^A Board evaluations have ^'unanimously" recommended retaining PFCManning in MA^ and POL ^^^Attachmenll5. Ifaprocess were actually neutral (i.e.not already predetermined),one would have expected to see .^^^^ disagreement in the three do^en times the Board convened. The only thingthat can explain the unanimity is that everyone was sold exactly how they had to vote.54United StatesvPFC Bradley F. ManningDefenseArticle 13Motionprocedures...were facially adequate" the prisoner'sdue process rights were violated becausethe reviews were merely "perfunctory.").99. Further evidence ofthe fact that the resuh was predetermined is found in the reviews fiom3January 2011until the time that PFC Manning was transferred to the JRCF. For instance, weekafter week, the following boxes were generally ticked as supporting the continued decision toretain PFC Manning in MAX and on POF low tolerance offrustration; poor home conditions orfamily relationships; length, or potential length, of sentence. B^. Notably,"poorhomeconditions or family relationships" and "length, or potential length, ofsentence" are immutablefactors. That is, there is nothing PFC Manning could ever do to change the fact that he mighthave had poor home conditions and was facingalengthy sentence.100. Further, the decision to continually check the "low tolerance offrustration" box isoftentimes in direct contravention ofthe mental health providers'determination that PFCManning had "an average tolerance offrustration^stress" (note: there is no option of ticking thatan inmate hasa"good tolerance of frustration^stress"). For instance, on 30 December 2010,CapL Hocter indicated that "inmate has an average tolerance of frustration^stress." .^^^Attachment 2. In the next C^A Board review four days later, on3January 2011,CW04Averhart ticked the box indicating that PFC Manning has "low tolerance offrustration." i^^^Attachment 6. Thus, it appears that the Brig has made the decision that despite what the doctorssay,^^^^^^^^^^^^.^^^^^v^^^,PFC Manning hada"low tolerance of frustration." Consequently,there was absolutely nothing that PFC Manning could do with respect to the factors that the Brigcontinually used tojustify the MAX and POI status.101. After thel8January2012incident where PFC Manning had an anxiety attack, the C^ABoard realized that it could tick yet another box to bolster its already predetermined conclusions"assaultive^disruptive behavior." The C^A Board, however,didn't realize that right away. Soin the21 January 2011review,CWO4Averhart ticked the usual three: "low tolerance offiustration","poor home conditions" and "length, or potential length, of sentence."Attachment 6. By 28 January 2011, CW02 Barnes added "assaultive^disruptive behavior" andkept it on the list for the next month. 7^. his unclear how PFC Manning'sanxiety attack,prompted by harassment by Brig guards, can properly be regarded as either "assaultive" or"disruptive."102. On the 28 January 2011C^A Board review form, CW02 Bames checked the box thatread:"Amental evaluation indicatingseriousneurosisorpsychosis"7^ There was^^v^^anymental evaluation during this period indicating "serious neurosis or psychosis." That exact sameday,28 January 2011,COF Malone recommended removing PFC Manning fiom POF indicatingthat "inmate does not poseathreat to himself and "inmate does not need to be segregated fromgeneral population." i^^^Attachment9. In the Medical Officer'sRemarks, COL Maloneindicates that "^PFC Manning] requires routine outpatient follow up." 7^. This hardlyconstitutes an "evaluation indicating serious neurosis or psychosis" as CW02 Bames hadindicated on the C^A Board review form. CW02 Barnes also checked the same box thefollowing week, despiteanotation that psychiatrists "recommend to be placed offPOI."55United Statesv.PFC Bradley E. ManningDefenseArticle 13MotionThus, it appears that the C^A Board was taking great liberties with the grounds it was using tokeep PFC Manning on MAX and on POI and ticking boxes willy nilly with no regard forwhether they were actually true.103. Onl8February 2011,the C^A Board addedabox labeled "potential mental disorders."Attachment 6. This seems to also have been made up out ofwhole cloth, as the psychiatricreview conducted that same day stated,"Mental disorder is resolved" and the recommendationwas that PFC Manning"does not need to be segregated from general population due toatreatable mental disorder." ^^^^ Attachment 2. How could the Brig use "potential mentaldisorders" to justify PFC Manning'scontinued classification decision when Brig psychiatristscame to the directly opposite conclusion (i.e. that any "mental disorder is resolved")7 Again, thisshows the C^A Board arrogantly placing its armchair psychiatry above the opinions of qualifiedmental health providers.104. In the "Remarks" section ofthe C^A Board reviews, the following comment appears insome variation in ^^^^^^,oftentimes verbatim:SNDhas previous demonstrated suicidal ideations and gestures. SND wastransferred fromTFCF Camp Arifjan due to the lack of specialized mental healthcare. SND has demonstrated erratic behavior as recently as^date]. SNDhasapotential gender identity disorder and is pendinga706 sanity board hearing.Attachment 6. Apparently,theC^A Board feh it appropriate to cutandpaste the exactsame thing over and over again for four months in order tojustify the determination to keep PFCManning in MAX and POF This cut-and-paste job does not bear the hallmarks ofaneutral,considered C^A Board process.105. Moreover, there was absolutely nothing PFC Manning could have done to change any ofthe cited reasons for keeping him in MAX and on POI. PFC Manning apparently haddemonstrated suicidal ideations when held in I^uwait; he was pendinga706 Board; he did haveapotential gender identity disorder; and Brig officials always found something they considerederratic about his behavior. After PFC Manning'sanxiety attack onl8January 2011,thefollowing notation began to appear in subsequent C^Areports,"Onl8January,SND had ananxiety attack and began acting aggressively toward himselfin the presence ofthe Brig OIC andSupervisor." 7^ The notation appeared up until3March 2011. 7^ Again, there was nothingPFC Manning could do about any ofthese notations that continued to ft^rm the basis to hold himin the functional equivalent ofsolitary confinemenL106. There is alsoastrange, but telling, annotation onl8February 2011. In typewritten font, inthe "Remarks" section, the C^A Board states,"Due to the nature ofSND'scharges and nationalsecurity concerns, SND is potentially facingasevere sentence to confinement." Someone, inhandwriting, inserted the word "alleged" between "SND's" and "charges." 7^. What is clear isthat the Brig was trying to avoid the appearance that it was punishing PFC Manning based on the56United Statesv.PFC Bradley F. ManningDefenseArticle 13 Motionnature of the charges against him, hence the word "alleged"(even though it did not fit into thesentence).107. By the end ofPFCManning'stime at O^^titico, the C^A reviews refiect the fact that PFCManning had withdrawn from the C^A process and was being guarded with staff That, in tum,was used against him asabasis upon which to continue his POI and MAX status. Onl8March2011(after PFC Manning was subjected to additional restrictions owing to his comment abouthis underwear), the C^A Board noted "SND'sdemeanor has become secluded^sicjfiom themajority ofthe Brigstaffand previous visitors"7^halsonoted"SNDhasrecentlybegun toisolate himself, showing limited interest in conversation with staff or his counselor..." 7^. On25 March 2011, there is the exact same entry: "SND has recently begun to isolate himself,showing limited interest in conversation with staff or his counselor..." 7^ O n l ApriFtheC^ABoard repeats once again,"SNDcontinues to isolate himself, showing limited interest inconversation with staff or his counselor..."7^ On8April,not surprisingly, the exact sameentry appears: "SND continues to isolate himself, showing limited interest in conversation withstaff or his counselor..."108. lncredulously,at least two of the entries towards the end ofPFC Manning'sconfinement atOuantico suggest that there is actually something PFC Manning could do to have the onerousconditions ofhis confinement removed. O n l April 2011,CW02 Barnes writes,"SND'smoodhas been somber. There is no detailed conversations as in the pasL NolitecontacL Lately,hasnot requested any special accommodations; has not been appearing in front ofthe C^A Board togive input to makeadifference."CW02 Barnes actually had the audacity to suggest that ifPFC Manning were to appear before the C^A Board, it would "makeadifference." Based onthe entries in the C^Areviews(which were, of course, done at the behest ofCol.Oltman), it isclear that there was nothing PFC Manning could ever do to change the circumstances ofhisconfinemenL In f^ct,when PFC Manning did appear before the C^A Board on 25 February2011,the Board wrote "SND requested to appear infiont^sicjofthe classification andassignment board, but had no new issues to bring to the board'sattention, that were not alreadyvoiced in his previous appearances before the board." 7^ Thus, it is clear that when PFCManning did appear before the C^A Board, it wholly discounted what he had to say.109. Moreover, the Board'scomment that "^PFC Manning] had no new issues to bring to theboard'sattention that were not already voiced in his previous appearances before the board" iswholly absurd. At the time ofthe review in question, PFC Manning had been in the functionalequivalent ofsolitary confinement for eight months what "new issues" could PFC Manninghave possibly raised7 That is,what "new" reason could PFC Manning have provided to theBoard that would have made the Board members think,"Thanks for bringing that up. Maybe weshould lessen your confinement restrictions."7 It is ridiculous to think that the Brig would baitPFC Manning into participating in the process (by suggesting that there was something he coulddo or say to change the conditions ofhis confinement) but then dismiss his participation in theprocess because he didn't say anything "new."57United Statesv.PFC Bradley F. ManningDefenseArticle 13Motion110.Onl5April 2011,CW02 Bames writes in the C^A Board notes, "SND remains guarded.Spoke to SND on 20110411regarding being more open and engaging in communication inefforts to adjust handling but no change has been seen. SND has not spoken to me about comingoffPOlalthoughlexplainedwhatheneedstodo."Again, it is unbelievable that O^^^ficoBrig officials would suggest that there was something that "he needs to do" to get off ofPOlstatus. Ifeight months ofrepeated recommendations from Brig psychiatrists, coupled with pleasfiom PFC Manning, his lawyer and the community at large, did not resuh ofalessening ofrestrictions, nothing ever would, his abundantly clear that ifPFC Manning had not beentransferred to theJRCF,he would still be in MAX and on POI at O^^titicotoday,stripping nakedevery night,wearingasuicide smock, sleeping on suicide bedding, and covering himself withasuicide blankeL111. his also clear from looking at the C^A Board notes that no weight was accorded to thepsychiatrists'recommendations to remove PFC Manning from POI. Sometimes, the entrieswould annotateasentence or two from the psychiatrists'recommendations, but would makeabsolutely no effort to explain why the recommendation was overridden. For instance, on 25February2011,the Remarks section reads:SND has previous demonstrated suicidal ideations and gestures. SND does nothave strong family ties, and or relationships with immediate family. SNDrequested to appear infront^sic] ofthe classification and assignment board, buthad no new issues to bring to the board'sattention, that were not already voiced inhis previous appearances before the board. SND was evaluated by Col Malone on20110225. Col Malone annotated the SND'sbehavior and thought content isnormal and his thinking process is clear. Col Malone annotated that SND doesnot need to be segregated from general population due toatreatable mentaldisorder and that SND would only need routine examinations in the future. ColMalone stated that SND remains in early remission ofan anxiety disorder. ColMalone is also tapering SND offofhis prescribed medications. Due to the natureofSND'salleged charges and national security concerns, SND is potentiallyfacingasevere sentence to confinemenLThe "Remarks" section isacompletenonsequitur,withabunch of random facts and nojustification for the decision to retain PFC Manning in POI and MAX. The Brig makes noattempt to explain why the opinion ofCOF Malone is outright ignored.112. The C^A Board reviews are not the only evidence that the psychiatrists'opinions meantnothing to the Brig given the order by Col. Oltman that PFC Manning would not be removedfrom MAX and POF In PFC Manning'sconversation with MSGT Papakie following the firstincident where PFC Manning was placed on Suicide Risk, it is obvious that Brig officials wouldnever be swayed by the opinions ofpesky mental health providers. The conversation betweenthe two went as follows,with MSGT Papakie speaking inaloud and booming voice:58United Statesv.PFC BradleyFManningDefense Article 13 MotionPFC Manning: Why waslon, why waslon prevention of status for almost6months7MSGT Papakie; ^chuckles to himself^lknow this is no secret to you...lhaveplenty ofdocumentation. Plenty ofdocumentation based on things that you'vesaid, things that you've done. Actions lhave to make sure, we have to makesure, that you're taken care ofPFC Manning; Yes, MSCT.MSGT Papakie; Things that you've said and things that you've done don't steerus on the side of"ok,well,he canjustbeanormal detainee." They make us stayon the side ofcaution.PFC Manning; But what about recommendations by the psychiatrist to removemeoffthestatus7MSGT Papakie: Who'shere every day7 Who'shere every day7 Weare. Whosees you every day7 That'sallheis,isarecommendation. Wehave, by law,rules and regulations set forth to make sure fromajail standpoint that BradleyManning does not hurt himself Maybe fiomapsychiatric standpoint, therecommendation he'sgiven lgetit,lgot it, understand, 01^7 But he'snot theonly decision maker. Amental health specialist is not the only decision that getsmade.Attachment 25. MSGT Papakie also repeated on2March2011that there was nothing PFCManning could ever do to remove himselffrom POF despite the recommendations of mentalhealth providers.113. Col. Choike also discounted the medical health providers'recommendations. He statedthat POI status is assigned to those "prisoners who have given an indication that they intend orare contemplating harming themselves. This status is not linked toamedicalofficer'sapproval.'^^^Attachmentl8. He also stated,"Amental health provider does not need to authorizeadministrative segregation to prevent self-injury provided the segregation is not being done tocircumventamedialprofessional'sopinion that suicide risk is not necessary."^Attachment19114. It is clear from the C^A Board notes. Col.Choike'sstatements, and MSGT Papakie'scomments that the repeated recommendations ofthe psychiatrists meant ^^.^^^^^^^^^^^^^^ toOtiantico Brig officials. After alF they all knew what had to be done follow Col. Oltman'sorder and maintain the status quo at all costs.^Col.Choline deliberately avoids the million dollar question: If you are going to ignore the repeatedrecommendations ofpsychiatrists for nine months, why bother having their input at all759United Statesv.PFC Bradley F.ManningDefenseArticle 13Motion115. CapL Moore, the psychiatrist who was originallyaBrig psychiatrist and later appointed tothe Defense team, expressed extreme frustration about the "bizarre" circumstances at O^^^fico:The way that they're treating this is so...it'sjust bizarre all the way around. I'mjust surprised that they would become so intrusive because I'dbe concemed aboutwhat that looks like later on. And they've not seemed to have any qualms at allabout reaching down so heavy handed. And when I've asked...and again,there'snodocumentation^ljust have people, either the guards or the corps manor anyone else telling me,"Why in the world is this going on7"And whenltried to talk to CapL Fewis, she basically said,"AIlIknow is thatidon't want to be involved in thisl" And shejust came back fiom working withGuantanamo Bay,and so she hasalotofher concerns about,"What are you guysdoing with this7 How is this consultant helping you with Manning7 lmean,whatare they doing7" Andldon't know either. It'snot an interrogation,1don't think.He'snot been adjudicated, so there'salot of risk to putting too many services outthere when somebody is in this pretrial situation. Idon't know. Idon't know.It'sbizarre. Ilook at is like if there'sachild sex abuse person who has anaccusation you don't now bring in some psychologist or something to figure outhow we're going to manage this person. Because you don't know. They'resupposed to be assumed innocenL What you're supposed to be doing isprotecting where they're not incriminating themselves. So,Idon'tknow. It'sbeenabizarre thing...I've never seen anything like iL^PFC Manning] comes fiom suchachaotic, neglected background to begin with.In some ways, it'sjust the latest form of what he'shad to endure. It'sjust sad. Itseems like all the protections you would ever have for somebody that'saccusedhe'snot even convicted of anything. He doesn't have any rights at all. It'sjust...Idon't know. Itry to get the emotions out ofit because it'sso frustrating tome.Oral Statement by CapL Moore to Mr. Coombs.116. Those "bizarre" circumstances that CapL Moore refers to circumstances that the Defensesubmits clearly amount to pretrial punishment can in fact be understood when placed againstthe backdrop ofsomebody deciding very early on that PFC Manning would never be removedfrom MAX and POI so long as he was at O^^^tico.c) The Entire Articlel38ProcessWasTainted By Col.Oltman'sOrder60United Statesv.PFC Bradley F. ManningDefenseArticle 13Motion117. his clear that CW04Averhart was at the meeting where Col.Oltman issued his order tokeep PFC Manning on MAX and on POI indefinitely. Accordingly, CW04Averhart'sjustification ofhis actions and decision to retain PFC Manning in these conditions must beviewed in light ofthe fact that he was ordered to do so. In short, CW04Averhart'ssubmissionsin Aftachmentl5andl6are tainted by his role in effectuating Col.Oltman'sorder.118. CW04Averhartpaintsapicture where he balanced competing interests and, using hisdiscretion as the BrigOlC,determined that MAX and POI was the appropriate classification forPFC Manning. He states that "at all times, my decisions have been guided by recommendationsfiom the Brig staff, the C^A Board, and mental health providers and also through interactionswith PFC Manning." ^^^Attachmentl5. This could not be further from the truth. CW04Averhart'sdecisions were based on marching orders from Col.Oltman that PFC Manning wouldbe held in MAX and POI indefinitely.119. Because CW04Averhart'sresponses to PFC Manning'sArticlel38 Complaint were reliedon by Col. Choike in denying redress, the whole process was corrupted from the start. PFCManning thus never stoodachance of getting relief from the conditions of confinement atOuantico because those with the keys to relieving him ofthese conditions were part oftheprocess that created those conditions to begin with.d) The Incident onl8January2011 was Retribution for the Protest Outside Ouantico thePrevious Day120. The conversation between MSGT Papakie and PFC Manning, discussed above, stemmedfrom the incident on18January2011whereCWO4Averhart decided to put PFC Manning onSuicide Risk status after PFC Manning had an anxiety attack at recreation call. The Defensesubmits that Brig guards provoked the anxiety attack because they were angry aboutaprotestthat took place the day before outside the gates of Oi^^titico that was designed to bring attentionto the conditions ofPFCManning'sconfinemenL Onavideo filmed by one of the protestors,Ot^^^tico guards can be heard saying,"Ouit asking questionsl Otii^ asking questionsl" and"You're not helping out, man, you're not helping out."^^121. Onl8January 2011,Brig guards were agitated and confrontational with PFC Manning.Instead ofthe usual two to three guards, there were four guards assigned to PFC Manning. Theyimmediately began issuing confiicting orders, and were insistent that PFC Manning use theexpression "aye, sir" rather than "yes, sir." The harassment continued when the guards escortedPFC Manning into the recreation hall. Due to the belligerence ofthe guards and being yelled at,PFC Manning began to feel faint and dizzy. He tookastep away from the guards, as they gotready to restrain him. PFC Manning immediately put his hands in the air and said,"l'mnotdoing anything,1amj^ust trying to follow your orders." In GM2Webb'saccount of the events.' See http://www.youtube.com/watch?v=x4eNzokgRIw.61United Statesv.PFC Bradley E. ManningDefenseArticle 13Motionhe states that after the incident, and while still at recreation ca11,"^PFC Manning] stated he didn'tunderstand why he was being treated different and that it seemed that all the guards were anxiousand it was making him anxious." ^^^Attachment24. Not surprisingly,Brig guards reported theincidentthatthey,themselves, had created. ^^^Attachment3,SFCNAVlNST1640.9C, Section4401(3)(warning that "arbitrary actions ^by Brig officials] may precipitateadisturbance.").122. Later that day,about 30 minutes after he had been returned to his cell,the PCFCommander, CW04Averhart, visited PFC Manning in his cell. When PFC Manning tried toexplain what happened earlier that day during the recreation call and expressed continuedfrustration over the conditions ofhis confmement,CW04Averhart stopped PFC Manning andsaid,"1 am the commander" and "No one will tell me what to do." He also stated to PFCManning that he was, for all practical purposes "God." PFC Manning responded by saying thatCW04Averhart still had to follow Brig procedures and that everyone hasaboss they have toanswer to. When PFC Manning made these comments, CW04Averhart placed PFC Manningon Suicide Risk status.^^123. The facts permit the logical inference that PFC Manning'sharassment at the hands of theguards onl8January 2011 was in response to the protests outside O^^t^fi^o the previous day.When the guards'harassment resulted in PFC Manning being overcome with anxiety,CW04Averhart used this asapretextual justification for placing PFC Manning on Suicide Risk.Moreover, the timing ofthe Suicide Risk order (i.e.after PFC Manning had made commentschallenging CW04Averhart'sauthority)strongly suggests that the Suicide Risk designation wasretributive in nature. Two separate Brig psychiatrists expressly disapproved ofthe Suicide Riskdesignation by CW04Averhart. Finder the Navy'sownrules,"When prisoners are no longerconsidered to be suicide risks byamedical officer, they shall be returned to appropriatequarters." PFC Manning was not removed fiom Suicide Risk until 20 January 2011 in violationofNavy Regulations. ^^^Attachment3;^^^^^.^^ Attachment 22 ("hwarrants mentioning,however, that on two occasions,6August2010andl8January2011,amedical officerdetermined that suicide risk status was no longer warranted and the brig staffdid notimmediately take PFC Manning offsuicide risk status. ...Paragraph 4205.5b of reference(a)states "When prisoners are no longer consider to be suicide risks byamedical officer, they shallbe returned to appropriate quarters,"in these cases, once the medical officer'sevaluation wasprovided to the brig staff, steps should have been taken to immediately remove him fiom suiciderisk, toastatus below that.").124. Where Brig officials fail to follow their own rules, this provides evidence ofan intent topunish^^^^^v^.^7^^^^^^^,42MJ 547,562(A.F.CLCrimAppl995)(''if orders or otheraction independently violate law or regulation, that may beareason to inferapunitive intent orreject an asserted nonpunitive objective."). The circumstances surrounding this incident lead toasingular conclusion; that PFC Manning was punished foraprotest beyond his control and for^^CWt^4Averhan denies that this conversation took place. As evidence that tbe conversation did not take place, hestates,"had he spol^en to me in that manner.lwould have madeadiscipline report on him for insubordination andstaffharassment."^^^ Attachment 14. It is ironic that CWt^4Averhart admits that had PFC Manning insisted thatC^04Averhart follow Brig rules, the result would have beenadisciplinaryintraction.62UnitedStatesv.PFC Bradley F.ManningDefenseArticle 13Motioninsisting that Brig officials follow their own procedures. ^^^^^^^^^v.^^^^^^.^,375 F.3d1269, 1274(11^^ Cir.2004)(vacating the judgment of the district court where the court failed totake into account plaintifFsallegations that the more the plaintiff complained to prison and jailofficials about his treatment, the more he was treated inasevere manner).e) The2March2011Decision to Strip PFC Manning ofHisClothin^Was Retaliation forPFC Mannin^'sQuestionin^ of the Conditions ofHis Confinement125. Further evidence of retaliatory punishment is found in the2March2011decision to stripPFC Manning ofall his clothing. When PFC Manning was informed that his Articlel38Complaint had been denied, he asked Brig guards what he could do to improve his confinementconditions. When the Brig Operations Supervisor, MSCT Papakie, responded that there wasnothing that PFC Manning could do to change the circumstances ofhis confinement, PFCManning became upset and frustrated. PFC Manning stated that he was not going to kill himself,and pointed out how ludicrous the whole situation was by stating that ifhe wanted to killhimself, he could do so with the elastic band ofhis underwear or his fiip-fiops. Brig officialsused PFC Manning'ssarcastic comment asajustification to further worsen the conditions ofhisconfinemenL The only logical conclusion to be drawn from the facts is that Brig officialsintended to punish PFC Manning for speaking out about the absurdity ofthe situation. Thisisparticularly so given that Brig mental health officials expressly indicated that PFC Manning'scomments were not indicative ofan intention to cause self-harm. Ratherthey were part oftheprocess ofPFCManning's"intellectualization" of the extremely rigorous conditions ofhisconfinemenLAttachments 2, 9.126. Moreover, the degradation and humiliation to which PFC Manning was subjected on themomingsof3March2011through7March2011by being forced to stand naked at attentionalso shows an intent by the Brig to punish PFC Manning for the comments he made on2March2011. Marine spokesperson First FLBrianVilliard explained that "Private Manning will also berequired to stand outside his cell naked duringamoming inspection, after which his clothing willbe retumed to him." Hisjustification for not allowing PFC Manning to have his clothes formorning inspection was thaf'detainees are awakened each morning and immediately come outoftheir cells. Private Manning cannot be given his underwear back before then...because thatwould require waking him up ahead oftime." ^^^http;^^www.nytimes.com^2011^03^05^world^05manning.html. So the officialU.S.Government position is that it is better to forceapretrialdetainee to stand naked at attention than wake him upafew minutes earlier to give him back hisc1othing7127. There is no conceivable legitimatejustification for requiringadetainee to stand naked atattention. Former Secretary ofState Spokesperson,P.J.Crowley,who was fired for calling PFCManning'streatment at O^^titico "ridiculous, counterproductive and stupid,"spoke specificallyabout PFC Manning'sfdrced nudity at the hands ofOti^^fi^o officials. He stated:Based on 30 years of government experience, if you have to explain whyaguy isstanding naked in the middle ofajailcelF you haveapolicy in need of urgent63United Statesv.PFC Bradley F.ManningDefenseArticle 13Motionreview. The Pentagon was quick to point out that no women were present whenhe did so,which is completely beside the poinLThe issue isaloss of dignity,not modesty.Our strategic narrative connects our policies to our interests,values andaspirations. While what we do, day in and day out, is broadly consistent with theuniversal principles we espouse, individual actions can become disconnected.Every once inawhile,evenatop-notch symphony strikesadiscordant note. So itis in this instance.The Pentagon has said that it is playing the Manning case by the book. The booktells us what actions we can take, but not always what we ^^^^^^ do. Actions canbe legal and still not smart. With the Manning case unfolding inafishbowl-likeenvironment, going strictly by the book is not good enough. Private Manning'soverly restrictive and even petty treatment undermines what is otherwiseastronglegal and ethical position.When the United States leads by examp1e,we are not trying to winapopularitycontesL Rather,we are pursuing our long-term strategic interesL The UnitedStates cannot expect others to meet international standards ifwe are seen asfalling short. Differences become strategic when magnified through the lens oftoday'srelentless24^7 global media environmenLSo,whenlwas asked about the "elephant in the room,"Isaid the treatment ofPrivate Manning,whilewe11-intentioned,was "ridiculous" and"counterproductive" and, yes,"stupid".Istandbywhatlsaid. The United States should set the global standard fortreatment ofits citizens and then exceed iL his what the world expects of us. Itis what we should expect of ourselves.^^^http:^^www.guardian.co.uk^commentisfree^cifamerica^2011^mar^29^brad1eymanningwikileaks.128. It is well established that forced nudity isaclassic humiliation technique. Theonlypermissible inference is that the Brig intended to punish PFC Manning by subjecting him tohumiliating treatment because PFC Manning correctly pointed out the absurdity ofhis POIstatus. Brig officials further added insuh to injury when they stated publicly that it would be"inappropriate" to discuss the decision to strip PFC Manning and stand naked at attention"becausetodiscussthedetailswouldbeaviolationof^PFC Manning's] privacy." ^^^http:^^www.nytimes.com^2011^03^05^wor1d^05manning.htmF Again, the Govemment'sposition is that^^^^^^^^^^^^^ PFC Manning'sforced nudity is the action that violates PFC Manning'sprivacy7Really7 How about the forced nudity itself7129. Federal courts have found constitutional violations of an accused'sconstitutional rights incircumstances far less invasive than these. In7^^B^^^v.Bf^^^^,378 F.3d1020,1029(9thCir.64United Statesv.PFC Bradley F.ManningDefense Article13Motion2004), pretrial detainees challenged the practice ofprisonstafi^usingwebcams to stream liveimages ofpretrial detainees on the interncL The Ninth Circuit Court ofAppeals indicated that"having every moment of one'sdaily activities exposed to general and world-wide scrutinywould anyone uncomfortable...^The practice] constitutesalevelofhumiliation that almostanyone would regard as profoundly undesirable and strive to avoid." 7^. at 1030-31. Certainly,being required to stand naked at attention for several minutes in full view of guards whohappened to be in the vicinity is at least as humiliating as having one'sclothed image capturedbyawebcam. Toborrow language from 7^^^^^,the additional impact on PFC Manning ofbeing forced to stand naked in full view ofBrig guards is "greater by several orders of magnitudethan the intrusion inherent in incarceration." 7^.atl030. The exploitation ofPFC Manning inthis manner can be seen as nothing short of retributive. 7^. at 1030-31(noting that retribution isnotalegitimate govemment objective than can justify adverse conditions of detention for pretrialdetainees); ^^^^^.^^16C C.J.S.Constitutional Faw^l549 ("What might otherwise bealawfuldetention becomes an unconstitutional restriction when prison conditions become sodehumanizing as to constitute an additional hardship beyond the need for custody in violation ofthe detainees'due process rights).130. Military courts have also found unlawful pretrial punishment in circumstances where theconduct at issue was designed to humiliate an accused. 1n(7^^7^^^^^^^.^v.C^^^.^,47M.J.330,332 (C.A.A.F.1997), the Court of Appeal for the Armed Forces emphasized that:the courts will not tolerate egregious, intentional misconduct by command wherethere is no evidence ofalegitimate, non-punitive objective for the conductcomplained of, the apparent singling out ofan accused for personal humiliation,and restrictions on liberty so oppressive as to be more consistent with the status ofprisoner.Similarly, in (7^^7^^^^^^^.^v^^^^^^^^^, 59 M.J.618, 625 (Army CL Crim.App. 2003), the ArmyCourt ofCriminal Appeals stated,"^w]hen commanders and superiors publicly denounce,degrade, or humiliate an accused prior to trial, ^this] may constitute unlawful pretrial punishmentwarranting confinement credit." 1n^^^7^^.^^^^^.^v.^^^^^^^^^,55M.J.92,94(C.A.A.F.2001),the Court ofAppeals for the Armed Forces indicated that "^pjretrial punishment includes publicdenunciation and degradation." In that case, the accused(who was pending administrativedischarge)was ordered to the front ofhis unit formation while the detachment commander readthe charges against him and read the accused his rights inaloud voice. The militaryjudge, inawarding sentencing credit, indicated that "^t]he actions that occurred in this case areinexcusable, reprehensible, and cannot be condoned by any court." ^^ at93. ^^^^^.^^^^^7^^^^^^^.^v. F^7^^^^7 7^^^^^.32M.J.341,342^3(C.M.A.1991)(supervisingofficer'spostingonworkplace bulletin board ofaserious incident report,which included Specialist Perez'sallegeddrug offense andaprior letter of reprimand,was prohibited byArticle13);^^^7^^^^^^^.^v.^^^^^^^^39 M.J.1097,1100(A.C.M.R.1994)(finding company commander'sremarks toaccused in front of others identifying him asacriminal suspect withapropensity to stealconstitutedpretrialpunishment);^^^7^^^^^^^.^v.7^^^^^^34M.J.596,597(A.C.M.R.1992)(grantingArtic1el3relief where first sergeant sarcastically referred to accused as his65United Statesv.PFC Bradley F. ManningDefenseArticle 13Motion"favoriteAWOL case" before unit formation); ^^^^^^.^^^^^^v.^^^^^^^^^,59MF618, 625(Army CL Crim. App. 2003)(awarding confinement credit for unlawful pretrial punishmentwhere guards or other persons in authority called the accused, an infantry sergeant,"private");^^^7^^^^^^^^v7^^^^^^,2009WL4917899, ^2 (NMCLCrimApp)(finding illegal pretrialpunishment where the circumstances ofthe accused'sappearance in irons before his shipmatescould cause court to question whether accused sufferedaloss of the presumption ofinnocencebefore potential court-martial members).131. Surely ifdeliberately calling someone by the wrong rank or discussing the charges againstthe accused in front ofothers constitutes humiliating or degrading treatment which militarycourts will not countenance, so too does requiring an accused to stand naked at attention in fullview ofothers. The fact that this action was later "justified" on the basis that it would have beentoo difficuh to wake PFC Manning up earlier to give him back his clothes and that officialsrefused to discuss the forced nudity any further because to do so would "violate PFC Manning'sprivacy" is ftirther illustrative ofthe general level ofabsurdity at the O^^^fico Brig.f) The Evidence Shows that Ouantico SimplyWanted to Protect Itself at the Expense ofPFC Manning132. The evidence further bears out the conclusion that Oti^^tico Brig officials maintained PFCManning in MAX and on POI for nine months in an effort to protect ^^^^.^^^v^.^ professionallyand institutionally at the expense ofPFC Manning. On31January2010,apretrial detaineeawaiting court martial at O^^^fico committed suicide; the detainee was not in MAX or POF^^ Inan effort to ensure that no other prisoner would die "on their watch" (to borrow an expressionfiom Col.Oltman), the Brig simply decided that it would not risk the embarrassment ofanothersuicide and thus placed PFC Manning in MAX and POI with no hope for re-classification.133. Given the high-profile nature ofPFC Manning'scase, the Brig simply refused to take anychance(evenifinfinitesimally small) that it would be publicly embarrassed once again. Indeed,CapL Hocter references this in his affidavit where he states:The Marine Corps, including O^^titico, has hadamiserable time with the problemofsuicide recently. 1am certain, from their point of view,the best way to avoidatragedy is to watchasituation very closely and take action quickly. It has beendifticuh to help them see that good intentions can have unintended consequences(e.g., making the detainee more anxious and causing occasional agitation).^^^Attachment7. In fact, the concem about embarrassment is so real atthe O^^^fi^o Brig thataspecial rule was implemented to deal with iL ^^^Attachment3,SFCNAV1NST1640.9C,Section 4401(4)("Seriousincidents^a11eged incidents that could resuh in embarrassment to thenaval service or focus public attention on the confinement facility in question shall be reported toNAVPERSCOM(PFRS68)orCMC(PSFCorrections)perarticle8112ofthis manual") A• See http://www.marinecorpstimes.com/news/2010/02/marine quantico brig death 02041Ow/.66United Statesv.PFC Bradley F.ManningDefenseArticle 13Motiondesire to protect one'sprofessional reputation and avoid public embarrassment is notalegitimatenon-punitive purposejustifying the imposition ofrestrictive confinement conditions.134. Further, evidence shows that certain Brig officials made decisions regarding PFCManning'sconfinement either "because they could" or in order to further their own professionalself^interesL CW04Averhart'sdecision to place PFC Manning under Suicide Risk came rightafter he told PFC Manning that he was, for all practical purposes "God" and that consequently,he could make any decision he wanted. CW02 Bames is understood to have indicated that shewould not change PFC Manning'sconfinement conditions because it was not worth the risk toher career. Both of these officials'decisions were arbitrary,capricious, and refiectedadesire toprotect their self-interest at the expense ofPFC Manning. Since the decisions were made fornonlegitimate purposes, they constitute punishment in contravention ofPFC Manning'sArticle13 rights.g) Ouantico Bri^ Officials Were Grasping At StrawsToUse Anything PFC Manning Didand Said(or Didn't Do or Didn't SayJA^ainst Him135. Further evidence ofintent to punish PFC Manning is found in the Brig'spracticeoftryingto find ^^^^^^^^ about PFC Manning'swords, conduct and demeanor that could be used againsthim. This is clearly evidenced in the conversation between PFC Manning and GYSGT Blenisthat took place after PFC Manning had an anxiety attack at recreation call onl8January 2011:PFC Manning: Igot dizzy...GYSGT Blenis; Wasn't dehydration7PFC Manning: No,1was anxious becauseldidn't know why the guards were soedgy. ...Theyraisedtheirvoice...And1didn't...Iwas getting anxiousbecause they were getting anxious. Solwas trying to figure out what was thecause ofthem getting anxious. It seemed to me that they were looking forsomething wrong...CYSGT Blenis: Something wrong as inarules violation, or something wrong asin...PFC Manning: Yes.CYSGT Blenis: Rules vio1ation7PFC Manning: Yes, sir. Because I've been here foralong time, so everythingbecomes automatic. Soldon't know iflsay something and they respond. Idon'tknow what happened. I've been in, inside so long Idon't remember the lasttimelwas outside.67United Statesv.PFC Bradley F.ManningDefenseArticle 13Motion^Portions ofthe rest ofthe dialogue between GYSGT Blenis and PFC Manningare inaudible]PFC Manning: Ok, yes,1started,1got in here and it was normal. Andthenistarted reading my book. Andthen,1wanttosayitwasMSCT^inaudible]thatwas the first to show up. And then he came in and was asking me all thesequestions. Iwas, ah, trying to figure out how to word the answers withoutcausing any more anxiety. Iwas trying to figure out ways of not sounding, or notbeing construed as...ways that things weren't going to be construed so that...just trying to figure out ways in whichlcould tactfully say whatlwas trying tosay without violating any rules and regulation or raise any concem about...GYSGT Blenis: Concern'salready raised...^inaudible]PFC Manning: Yes, but I'mtrying not, I'm trying, I'm trying to avoid theconcern, and it'sactually causing the concern. Imean, cause, I'mgetting...every day that passes by,1'm getting increasingly frustrated, I'mnot going to lie.Because I'mtrying to do everything that1can^^^^^^^^aconcern,therefbre1appear as thoughlam causing more concem. O r l . . . O r it seems that I'm causingmore concem or everybody'slooking for something to cause concern. So that'swhat frustrates me....Trying to work out the most politically correct way of...PFC Manning: No, no. The situation that happened today was more of...youknow,1'm lucid and aware and just trying to figure...It'sjustaquestion oftrying not to appear likelwas in k^uwaiL Because that'smy main concern everyday,ishowdo1getoffofP01status7Howdo1getofl^ofP01status7 When willIbe taken off ofP01status7 What is being used tojustify the precautions7 Youknow...What concems, you know,whatamldoingthat'sconcerning^inaudible]7 So I'm constantly trying to figure out, run through all ofthosethings. And trying to make sure I'mnot doing anything...PFC Manning: Yes,a1itt1e.Ifee1 like the facility,honestly,is looking for reasonsto keep me on POI.GYSGT Blenis: Inaudible. Icantellyou'no'...68United Statesv.PFC Bradley F. ManningDefenseArticle 13MotionPFC Manning; Imean, at least not at the stafi^leveFFmthinking the CO^me,myself, personally.GYSGT Blenis: Inaudible...Fromalogistical standpoint, it'saburden on us....PFC Manning: Yes, MSGTGYSGT Blenis: Nobody finds that asajoy. 1t'snotapunitivething,Iunderstand why someone would see it asapunitive thing because restrictionsplaced ^inaudible] ...lean tell you that...since you have been here...IwishIhadahundred Mannings...PFC Manning: And that'swhaL..And that'swhereldon't understand why thecontinuation ofthe policy and restrictions beyond the time recommended by youandthepsychiatrisL Imean the psychiatrist, is saying. Imean, I've got my ownforensic psychiatrist that'ssaying now that the POI status is actually doingpsychiatric harm and not, you know,andit'sactually,youknow,increasing mychances, rather than decreasing...GYSGT Blenis: Did you feel like that two weeks ago7PFC Manning: What'sthat7GYSGT Blenis: Did you feel like that two weeks ago7PFC Manning: Yes GYSGTCYSGT Blenis: Uh, two weeks ago,1asked you, like, how you were feeling andyou said you were fine, do you remember that7PFC Manning; Yes, andlstill feel fine. 1mean,1feel,Ifeel fine, but at the sametime, I've been putting in, I've been putting in...Attachment 25.136. The conversation clearly shows that PFC is struggling to convey his thought to GYSGTBlenis without "getting in trouble."^^ PFC Manning is desperately trying to find the right wordsto express his frustration with his continued classification without raising "more concem" in theminds ofthe Brig officials.137. The end ofthe videotaped conversation is particularly telling. PFC Manning tries toexpress the common sense observation ofhis psychiatrist that the POI status may be causing himThis is especially apparent ifone watches the video.69United Statesv.PFC Bradley F.ManningDefenseArticle 13Motionpsychological harm. PFC Manning says,"1 mean, I've got my own forensic psychiatrist that'snow saying the POI status is actually doing psychiatric harm and not, you know,and is actually,you know,increasing my chances, rather than decreasing..." B^. Although the video is inaudiblein parts, it seems like GYSGT Blenis latches on to that particular comment to raise the red fiag.That is, PFC Manningjust said that POI might be causing psychological harm and might"increase^ej^his] chances, rather than decreased] ^his chances]." 7^ What more proof do weneedthatP01is,infact,justified7 GYSCT Blenisthen prods PFC Manning, seeking to getadamning admission from him: "Two weeks ago,1asked you, like, how you were feeling and yousaid you were fine, do you remember that7"PFC Manning does not take the bait after herealizes where GYSCT Blenis is going. He says,"Yes, andlstill feel fine. Imean, yes,Ifeelfine. Yes, but at the same time, I've been putting in..."As is abundantly clear, PFCManning is in an absolute "no win" situation. Ifhe points out that POI might be causingadditional psychological harm(as indicated by Brig doctors), the Brig officials will use thatagainst him to continue tojustify the conclusion that he is at risk of selfharm.138. On21January 2011,PFC Manning appeared before the C^A Board and was asked aboutthe statement on his intake questionnaire regarding suicide that he was "always planning butnever acting." CW02 Barnes describes the event as follows:^PFC Manning] told the Board that this statement may have been false. This thenraised the obvious concern ofwhether he was sincere in his statements that he didnot currently intend to harm himself Amemberofthe Board asked how theycould trust any ofthe statements given his admission that he may have madeafalse statement about his suicidal thoughts at intake into the PCF. PFC Manningwas also asked i f i t was fair to assume that the statement to the Board that he didnot intend to harm himselfcould be false and he replied "yes." This caused greatconcern among the Board members given their responsibility to ensure PFCManning'ssafety.^^^Attachment2F139. his clear to any reasonable person what happened at this meeting. PFC Manning wastrying desperately to get o f f o f P O l status after so many months. He then backtracked on thestatement that he had made in the intake questionnaire in the hopes that the confinement facilitywould see reason and remove him from POF The C^A Board then used PFC Manning'sstatement against him inaclassic "gotcha" moment: ^^7^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^^7^^^^^^^^^^7.^^^^^^^^^^^^^^^7^^^ ^^^^7^^^^^^^There is actually only one honest answer to this question and that is the answer that PFCManning gave "yes,1could be lying. ^^^^7^^^^ " But it was too late. The C^A Board hadtricked PFC Manning into giving them an answer that they could document in their paperwork tocontinue tojustify MAX and POF Apparently,theC^A Board saw themselves as moreappropriately placed to opine on PFC Manning'srisk of selfharm based onatrick question thanseveral "06" mental health providers who continued to maintain that PFC Manning was not atrisk of self harm.70United Statesv.PFC Bradley F. ManningDefense Articlel3Motion140. Afterthis meeting, PFC Manning largely tried to avoid engaging in extensive dialogue withBrig officials. After all, anything he said or did(or didn't say or didn't do)was going to be usedagainst him. 1ronically,the fact ^7.^^^that he had become quieter and more reserved was thenused against him. In CW02 Barnes'statementjustifying why she increased the POI restrictionson PFC Manning, she states.There wasalack of rapport and trust between PFC Manning and the PCF staffThe fact that PFC Manning was not communicating with the staffas much as hehadinthepast...wasalsoaconcernfdrme.^^^Attachment21. There is no more apt illustration ofthe saying,"You're damned if you do.You're damned ifyou don't." IfPFC Manning spoke to Brig staffand participated in the C^Aprocess,^^ his words and conduct were used against him to keep him in MAX and POF IfPFCManning didn't speak as much to Brig staffand refused to participate in the C^A process,hislack ofwords and his conduct were used against him to keep him in MAX and POF141. In short, PFC Manning was doomed from D a y l . Brig officials looked for any little thingto use against PFC Manning to continue to effectuate Col.Oltman'sorders that PFC Manningwould remain in MAX and on POI for the duration ofhis time at Ot^^^fi^o. This would enablethem to create the paper trail that they could later use for plausible deniability. Such isabundantly clear in MSGT Papakie'sresponse to PFC Manning'squestion of why he was still inPOI after so many months:MSCT Papakie; ^chuckles to himself]lknow this is no secret to you...lhaveplenty ofdocumentation. Plenty ofdocumentation based on things that you'vesaid, things that you've done. Actions^lhave to make sure,we have to makesure, that you're taken care ofAttachment 25.142. Ott^^fico officials were never interested in actually evaluating whether PFC Manningbelonged in MAX and on POI ifthey were, they would have listened to recommendations fromthree separate Brig mental health providers. Instead, they were looking to chronicle every littlething that PFC Manning did or didn't do, or said or didn't say in order to provide them with the"plenty ofdocumentation" they needed to support their continued decision to retain PFCManning in MAX and on POFC.FFC Manning s Article 13 Rights Were Violated Because the Imposition of OnerousConfinement Conditions Served No Legitimate Government ObjectiveTbe Defense is using the term "process" loosely here since it was clearthat the outcome was alreadypredetermined.71United StatesvPFC Bradley E. ManningDefenseArticle 13Motion143. There was no legitimate govemment objective served by placing PFC Manning in MAXand P01(collectively,the functional equivalent of solitary confinement)for9months and byforcing him to endure humiliating treatmenL There are only three potential legitimate objectivesthat could be conceivably served by the imposition ofmore restrictive than normal confinementconditions:a) Preventing PFC Manning from harming himself;b) Preventing PFC Manning from harming others; andc) Ensuring PFC Manning'spresence at trial.^^^(7^^7^^^^^^^.^vC^^^^^, 62 M.J.411,414(C.A.A.F.2006)(notingthat legitimategovernment objectives are "ensuring^detainee's] presence for trial" and "the security needs ofthe confinement facility"); ^^^7^^.^^^^^.^v ^^7^^^^^^7^^,56M.J.671,679(ArmyCLCrim.App.2001)(legitimate and non punitive government objectives are "to secure and safeguard theconfinement facility and to insure^detainee's] presence at trial."); ^^^^v. ^^.^^,441U.S.520,540(1979)("1t is enough simplyto recognize that in addition to ensuring the detainees'presenceat triaF the effective management ofthe detention facility once the individual is confined isavalid objective that may justify imposition of conditions and restrictions of pretrial detention").^^^^^.^^Attachment3,SFCNAV1NST1640.9C,Section5101(3)(i)("Rightsarenotremovedfiomaprisonerasapunishmentforarulesviolation, but may be restricted, however,when thereisalegitimate penological interest, such as security or safety."). The conditionsofPFCManning'sconfinement were not at all related(much less rationally related) to any of theseobjectives.a) Preventing PFC Manning from Harming Himself144. There was no psychiatric evidence to suggest that PFC Manning was at risk ofself-harmduring his time at O^^titico. Tothe contrary,the overwhelming evidence is that PFC Manningwas decidedlyat risk ofself-harm. Brig psychiatrists had,with very few exceptions,consistently recommended for over eight months that PFC Manning be removed from POFThese recommendations were outright ignored no less than 30 times by the PCF Commander.145. In his affidavit, CapL Hocter references his repeated recommendations to remove PFCManning from POI status all ofwhich were ignored by the Brig:Ot^estionB. In your experience, does the O^^^fi^o Brig follow yourrecommendation concerning either Suicide Risl^ or Prevention of InjuryStatus^l.No.They generally keep patients on precautions longer thanlrecommend.72United Statesv.PFC Bradley F. ManningDefense Articlel3MotionOuestionC. Have you made any recommendation concerning PFC BradleyManning s custody and classification status^ If so, what were yourrecommendations"^1. ... linitially recommended observing PFC Manning on suicide precautions forthe first couple ofweeks after his arrival,both because ofhis suicidal behavior inl^uwait and because his medical record from k^uwaitincludedaquote oraparaphrase from PFC Manning to the effect that he could be patient when itcomes to suicide.2. Afteracouple of weeks, it seemed reasonable to downgrade his precautionlevel to Prevention of Injury (POI) status, k^nowing that the Brig was veryconcerned about his safety,and because there had beenasuicide in the Brigearlier that year,1obtained the services of another forensic psychiatrist(Col.RickMalone)tobeaconsultant^second opinion. He evaluated the patient andconcurred that POI was appropriate. The Brig, aslbest recalFwaitedacouple ofweeks to put this recommendation into effecL3. Subsequently,1recommended that he be removed from POI as he continued todo relatively well in the Brig(occasional mild, odd behaviors such as dancingaround were noted in the log as well as possible sleep walking). Col. Maloneconcurred. These recommendations were not followed.4. In the fall (1am uncertain ofthe date); PFC Manning became agitated after anodd incident with staff As best aslcould tell from discussing the matter withManning and with staff, he had been performing some kind ofyoga move inwhich he contorted his limbs in suchaway that staff thought he was trying to hurthimself They intervened and returned him to his cell. He was very upset aboutthis(not suicidal) and solbriefiy recommended he be put back on POI status asasafeguard because he was so upseL Irescinded this recommendation thefollowing week as he had calmed.5. Since then,lhave continued to recommend that POI precautions be removed.As ofthe time ofmy leaving for Camp Fejeune to prepare for deployment, therecommendations had not been followed. CAPT Moore and Col. Malone canprovide details ofwhat occurred nexLOuestionD. Have yourrecommendations been followed bytheOt^^^fi^^Brig7 If not,have you been given any reason fortheO^^ofi^oBrig^sdecision not to follow your recommendations^l . N o . My understanding is that the Brig has not followed my recommendationsbecause ofgreat concern and worry that Manning will harm himself ItoldthemIthought the Max status(witheveryl5minute visual checks ofthe detainee vice73United Statesv.PFC Bradley F. ManningDefense Article 13 MotionPOI with every5minutechecks)was more than suflicient to ensure his safety,fiomapsychiatric perspective. The every5minute checks done for POI isextremely rigorous, particularly forasecond tier precaution. Fvery15minutechecks was common for suicide precautions in otherjails and correctionalfacilities wherelhave worked.^^^Attachment7.146. CapL Hocter provided further elaboration inasubsequent affidavit:Ot^cstionA. Do you mal^e recommendations to the O^^tttico Brig concerningwhetheradetainee is placed on either Suicide Risl^ or Prevention o f l n j u r yStatus^Imake recommendation about suicide precautions, POF ^nd occasionally stepsthat Brig might take to betteradetainee'scondition or deportment(more time toexercise, give himajob, help him with the legal work onfinancialproblem,lethim talk to his wife or girlfriend more often, please make sureachaplain seeshim). The Brigtakes these under advisement and sometimes follows them,usually noL In Manning'scase,1requested, in addition to removal ofprecautions, more time to exercise. After quite some time, and numerous requests(it became almost comical), this was granted.OuestionB.Inyourexperience,doesthe0^^^fi^oBrigfollowyourrecommendation concerning either Suicide Risl^ or Prevention of InjuryStatus7The Brig frequently ignores or delays my recommendation regarding precautions,including suicide precautions. This differs from any ofthe previousjails, brigs, orprisons in whichlhave worked, military or civilian. This occurred even beforethe suicide ofadetainee in January 2010. Prior to the Manning case, this, amongother issues, had make working at the Brig so frustrating thatlasked to berelieved ofthese duties. This was not permitted, lhave struggled to make thebest ofasituation that was not professionally pleasing. The addition offorensicpsychiatry fellows to the mi1ieu(fbr me to teach)has been invigorating and liftedmy morale.OuestionD.HaveyourrecommendationsbeenfollowedbytheO^^^fi^oBrig7 I f not,have you been given anyreasonfortheOt^^^fi^o Brigsdecision not to follow your recommendations^74United Statesv.PFC Bradley F. ManningDefense Articlel3MotionNeither the Brig Commander nor the Security Battalion Commander gave me anyreasons for maintaining the POI precautions other than his safety. The SecurityBattalion Commander intimated that he was receiving instructions fromahigherauthority on the matter but did not say from whom. Iknow that the higher baseauthorities hadafrequent(sometimesweekly)meeting to discuss Manning, forwhichlsupplied my CO withastatus report nothing that Manning had told me,mind you, but his condition and my recommendations, particularlyto removeconditionslfeh were unnecessary. Idid not attend these meetings, mainly toprotect Manning'sconfidentiality against inadvertent slips. On one occasion,concern was relayed to me about the odd behaviors seen in the cell mentioned inmy previous affidaviL Ireportedthatlwas not worried about the sleep walkingand the dancing.Ido not recallameeting with the Base Commander(Co1.Choike). ThemeetingIrecall was with the Security BNCO,whosenameldo not recall. He indicatedthat Manning would remain in current status (POI) unless and until he receivedinstructions from higher authority(unnamed). Ido not recall him saying hewould be kept that way until his legal process was complete, but the impressionhe left was not to expect any changes in the near future. Icannotrecalladirectquote.Attachment 8.147. COF Malone also confirms that the Brig simply ignored the recommendations of mentalhealth providers:OuestionB.Inyourexperience,doesthe0^^^fi^oBrigfollowyourrecommendation concerning eitherSuicideRisI^ or Prevention o f l n j u r yStatus71.They initiate more precautions thanlwould fiomapsychiatric perspective.Were he not in custody,at this point he would be appropriate for routineoutpatient care.OuestionC. Have you made any recommendation concerning FFC BradleyManning s custody and classification status^ If so, what were yourrecommendations"^1. No. lhave stated that there is no psychiatric reason for him to be segregatedfrom the general population, realizing that would only be one consideration.OuestionD. Have your recommendations been followed by the O^^^fi^oBrig"^ If not, have you been given any reason for the O^^^fi^^ Brig sdecision not to follow your recommendations"^75United Statesv.PFC Bradley F. ManningDefense Articlel3Motion1. They have expressed concerns about his demeanor with no medical personnelare there, describing him as more withdrawn and reading less.^^^Attachment9.148. Not only did the Brig ignore the repeated recommendations to remove PFC Manning fromPOF they also ignored medical opinions that POI was actually ^^^.^^7^^ PFC Manning psychiatricharm. CapL Hocter states in his affidavits:Ibelievethat(at the timellast saw him)Suicide precautions and POI wereexcessive and were making Manning unnecessarily anxious. This could bedetrimental to his mental health. Iwas concerned about his physical health untilthey started to give him more time to exercise. Since Max status is notapsychiatric c1assification,ldid not makearecommendation regarding it except tosay that it easily(asasecondary effect of checking on him every 15minutes)methis psychiatric safety needs at the time.PFC Manning, according to his records from 1^uwait,exhibitedadisturbing levelof mental instability,including suicidal behaviors. Thankfully,he was doingmuch better during his time with me. Inappropriate use ofPOl and otherprecautions can resuhinaloss of privacy and dignity that can worsen someone'scondition. This could occur in Manning'scase and lead to regression andadditional suicidal behaviors.^^^Attachments7,8. COF Malone agreed that POI restrictions could be detrimental to mentalhealth, though noted that fbrtunately,PFC Manning "has been able to adapt somewhat":It has long been known that restriction ofenvironmental and social stimulationhasanegativeeffecton mental functioning. Nevertheless, PFC Manning hasbeen able to adapt somewhat and his anxiety disorder is currently in remission,significantly reducing his risk of selfharm.^^^Attachment9.149. The psychologists made it known to Brig Commander that keeping PFC Manning in POI asthey were was an additional stressor and damaging fromapsychological perspective. The BrigCommander did not address the mental health concerns raised by the psychologists andcontinued to subject PFC Manning to POI restrictions.150. Applicable Navy confinement rules themselves explicitly recognize the deleterious effectsofsolitary confinement and harsh conditions ofconfinement: "When prisoners spend long hours76United Statesv.PFC Bradley F. ManningDefenseArticle 13Motionin idleness and feel harassed by unnecessary restrictions, hostility is created and the desire toescape or resist become dominant forces.".^^^Attachment3,SFCNAV1NST1640.9C, Section4301.5. As such, PFC Manning faced the perverse scenario that, the longer the Brig maintainedthe POI status, the more likely it was that his mental health would deteriorate, thus necessitatingthe POI status.151. The medical literature is replete with references to the deleterious effects ofsolitaryconfinemenL In his recent testimony before the Senate, Professor Haney opines that "solitaryconfinement placesof the prisoners exposed to it at grave risk ofharm."(emphasis inoriginal). He continues;Despite the methodological limitations that come from studying human behaviorin suchacomplex environment, most ofthe research has reached remarkablysimilar conclusions about the adverse psychological consequences ofsolitaryconfinemenL Thus,we know that prisoners in solitary confinement suffer fromanumber ofpsychological and psychiatric maladies, including: significantlyincreased negative attitudes and affect, irritability,anger, aggression and evenrage; many experience chronic insomnia, free fioatinganxiety,fearofimpendingemotional breakdowns,a1oss of control,and panic attacks; many reportexperiencing severe and even paralyzing discomfort around other people, engagein self-imposed forms ofsocialwithdrawaF and suffer from extreme paranoia;many report hypersensitivity to external stimuli(such as noise, light, smells), aswell as various kinds ofcognitive dysfunction, such as an inability to concentrateor remember,and ruminations in which they fixate on trivial things intensely andover long periods of time;asenseofhope1essness and deep depression arewidespread; and many prisoners report signs and symptoms of psychosis,including visual and auditory hallucinations. Many ofthese symptoms occur inand are reported byalarge number ofisolated prisoners. Forexample, inasystematic studyldidofarepresentative sample of solitary confinement prisonersin Califomia, prevalence rates for most ofthe above mentioned symptomsexceeded three-quarters ofthose interviewed.In addition to the above clinical symptoms and syndromes, prisoners who areplaced in longterm isolation often develop whatlhave characterized as "socialpathologies,"brought about because ofthe pathological deprivations of socialcontact to which they are exposed. The unprecedented totality ofcontrol in theseunits occurs to such an exaggerated degree that many prisoners gradually lose theability to initiate or to control their own behavior, or to organize their personallives. Prisoners may become uncomfortable with even small amounts offreedombecause they have lost confidence in their own ability to behave in the absence ofconstantly enforced restrictions,atight extemal structure, and the ubiquitousphysical restraints. Fven the prospect of returning to the comparative "freedoms"ofamainline maximum security prison (let alone the fiee world) fills them withanxiety.77United Statesv.PFC Bradley F. ManningDefenseArticle 13MotionFor many prisoners, the absence of regular,normal interpersonal contact and anysemblance ofameaningful social context in these isolation units createsapervasive feeling of unreality. Because so much ofour individual identity issocially constructed and maintained, the virtually complete loss of genuine formsofsocial contact and the absence ofany routine and recurring opportunities toground thoughts and feelings inarecognizable human context lead to anundermining of the sense of self andadisconnection of experience from meaning.Some prisoners experienceaparadoxical reaction, moving from initially beingstarved for social contact to eventually being disoriented and even frightened byiL As they become increasingly unfamiliar and uncomfortable with socialinteraction, they are further alienated from others and made anxious in theirpresence. In extreme cases, another pattern emerges: this environment is sopainful, so bizarre and impossible to make sense of, that they create their ownreality—they live inaworldoffantasy instead. Finally,the deprivations,restrictions, the totality ofcontrol,and the prolonged absence ofany realopportunity for happiness orjoy fills many prisoners with intolerable levels offrustration that, for some, turns to anger,and then even to uncontrollable andsudden outbursts of rage.^^^Attachment37. Based upon well-documented medical literature, it is clear that prolongedperiods ofsolitary confinement causes severe psychological consequences. This extensivescientific evidence has been widely accepted by federal courts. For instance, the Seventh Circuitobserved that "the record shows,what anyway seems pretty obvious, that isolatingahumanbeing from other human beings year after year or even month after month can cause substantialpsychological damage, even ifthe isolation is not total." ^^v^^^^^^v.7^^.^^^^^^^.^,844 F.2d1310, 1313 (7th Cir.1988). In ^^v^^^^^^, the court recognized that "there is plenty of medicaland psychological literature conceming the ill effects of solitary confinement(of whichsegregation isavariant)....". i^^^^^.^^^.^^7^^^^^^^^..B^^^.^v.^^^^^^^,231F.3d1248,1252(9th Cir.2000)("it is well accepted that conditions such as those present in the^super-max unit]...can cause psychological decompensation to the point that individuals may becomeincompetent"); C^^^^^v^^^^^^^^215F.3d910,915(9^^Cir.2000)("we and other courts haverecognized that prison conditions remarkably similar to^thesuper-max unit] can adversely affectaperson'smentalhealth");7.^^vC^^^^^^7^,26FSupp2d615,637( S D N Y 1998)("^t]heeffect ofprolonged isolation on inmates has been repeatedly confirmed in medical and scientificstudies"); ^^C^^^v7^^^^,4FSupp2d 195, 208 (WDNY1998)("^the notion that]prolonged isolation from social and environmental stimulation increases the risk of developingmental illness does not strike this Court as rocket science"); .^^^^^v.^^^^^,889 F.Supp.1146, 1265 (N.D.Cal.l995)("many,if not most, inmates in the SHFl experience some degree ofpsychological trauma in reaction to their extreme social isolation and the severely restrictedenvironmental stimulation in ^the Security Housing Unit]"); ^^^^v^^:^^^,450F.Supp.934,946 (F.D. 111.1978)("^p]laintiffs'uncontroverted evidence showed the debilitating mental effecton those inmates confined to the control unit"), ^"^^7^^^^^^^^^^^^^^^^^7^^^^^^^^^^^^^B^^^^.^,620 F2d609(7thCirl980);7^^^7^v^^^^^,216FSupp2d 994, 1001 ( D A r i z78United Statesv.PFC Bradley F. ManningDefenseArticle 13 Motion2001)(experts agreed that extended isolation causes "heightened psychological stressors andcreatesarisk for mental deterioration"); ^^^^^^^7^^v..^^^.^^,691F.Supp.432,446^7 (D.D.C.1988)(citing expert testimony on sensory disturbance, perceptual distortions, and otherpsychological ^^^^.^^.^^^^^^^^^^T^^^^^^v^^^^^^^^B^^^^^^.^.^^^^^^.^^^^^884 F 2 d 6 1 5 ( D C C i r 1989)152. Thus, in ostensibly "protecting him from himself"(which the Defense submits is not whatthe Brig was actually doing), confinement facility officials were actually ^^^.^^7^^ PFC Manningpsychological harm. In other words, the Brig authorities used the pretext of safeguarding PFCManning from his own mental instability to keep him under conditions of extreme psychologicalstress for nearly nine months. In this respect, the Defense requests that this Court also considerthe ^^^^^.^filing fiom Psychologists for Social Responsibility. ^^^Attachment41.153. The Brig continually pointed to PFC Manning'sSuicide Risk status in k^uwait tojustify thedecision to maintain PFC Manning on POI status. In his Response to PFC Manning'sArticle138 Complaint, Col.Choikejustified the POI status as reasonable in light ofall the information"including his concern over ^PFCManning'sjcomment regarding'always planning'suicide atinitial intake, his actions in actually makinganoose at the previous facility^and] his erraticbehavior at the previous facility." ^^^Attachmentl9. All ofthese events occurredapproximately8monthspriortoPFCManning'sfi1ingoftheArticlel38Complaint,whenPFCManning was first arrested,was in an unfamiliar environment, and did not have the support offiiends, family and counsel. PFC Manning tries to explain this to GYSGT Blenis, to no avail;GYSGT Blenis; ^largely inaudible] Fet'sgo back to today....The anxiety here,today. That'snot the first time it'shappened since you've been in confinemenLAs far as1know,it is the first time it'shappened since you've been here...butasimilar situation...PFC Manning:1wasn't, in l^uwait,1had no idea what was going on generally.The Defense submits that, to the extent that there might have been isolated instances of unusual behavior,it is tbedirect result ofbeing lodged behind bars, starved of all human contact, and watched lil^eazoo animal foraperiod of^months. .^^^ Attachment 40. Indeed, Brig psychiatrists were not at all concemed about some ofthe apparent oddbehavior exhibited by PFC Manning(to the extent that it occurred). For instance, CapL ttocter stated in bisaf^davits:Subsequently,Irecommended that he be removed from POI as he continued to do relatively well inthe Brig(occasional mild,odd behaviors such as dancing around were noted in tbe log as well aspossible sleep walking). CoL Malone concurred. These recommendations were not followed.On one occasion, concern was relayed to me about the odd behaviors seen in the cell mentioned in myprevious aflidaviL Ireportedthatlwas not worried about the sleep walking and the dancing.COL Malone also factored in the apparent odd behavior in making bis weekly recommendation that PFC Manningwasnotatriskofself^barm. What is clear, though, is that the Brig ^^.^^^created tbe circumstances which il thenused tojustify the conditions of confinemenL79United Statesv.PFC Bradley F. ManningDefenseArticle 13MotionGYSGT Blenis: But, would you say it was similar situation7PFC Manning; No, no. The situation that happened today was more o f . . . y o uknow,1'm lucid and aware and just trying to figure...It'sjustaquestion oftrying not to appear likelwas in k^uwaiL Because that'smy main concern everyday,ishowdoIgetoffofPOIstatus7 HowdoIgetoffofPOIstatus7 WhenwilIbe taken off ofP01status7 What is being used tojustify the precautions7 Youknow...What concerns, you know, what amldoingthat'sconcerning^inaudible]7 So Fmconstantly trying to figure out, run through all of thosethings. And trying to make sure I'm not doing anything...GYSGT Blenis; ^inaudible] ...As time goes on,we have less ofaconcem,ok7PFC Manning:Yes, GYSGT. But the restrictions were still in place. AndlwasGYSGT Blenis: RighL And we continually...Weunderstandit'snot normal thatwe have someone in POI for this period of time...PFCManning:Yes.GYSGT Blenis; 1t'snot^normal]...1guess we'll just leave it at thaL So as wego on,we're going to lessen your restrictions. They're still be restrictions in place... ^inaudible] Butlwould have to disagree with you as far as what happenedtoday happened in l^uwait...anxiety attack...PFC Manning; No,in1^uwait,lwasn't1ucid. lhad....^guard interrupts] It waslikeadream...GYSGT Blenis; But, they both ultimately ended up in you having an anxietyattack...controlled falF but...PFC Manning; No,1don't remember falling in k^uwait at alFGYSGT Blenis; WelFlcan tell you, that'swhat was reported to us ...none of uswhere there^refers again to PFC Manning'ssuicide status l^uwait]...Us, asafacility,we have to always err on the side of caution, okay. And notjust the sideofcaution, but over-caution. Especially when we're talking about suicide, okay7Nobody'ssaying you're going to kill yourse1Falright7 ^inaudible] But we alwayshave to be more cautious than thaL But you're saying that'nobody else is onsuicide watch.' The thing is what happened in l^uwait,what happened today...80United Statesv.PFC Bradley F. ManningDefenseArticle 13MotionPFC Manning: Those are totally differenL Iunderstand,1understand,1understand, where you're gefting that ...from the documentation. Imean,1quite,Iknow wherelam. 1knowlam...lknow1amat0^^titicobasefacility.1knowthat I'matabrig. Imean, I'mlucid and aware of wherelam. I'mnot...Attachment 25.154. The concems about I^uwait could not legitimately continue to indefinitely form the basisfbrPFC Manning'sPOI status, over the more compelling recommendations of multiple mentalhealth providers. Thejustification was thus disingenuous and pre-textual in light ofthe clearpsychiatric evidence to the contrary,and the Brig'sown stated procedures for reviewing POIstatus. Brig officials appeared to be saying that ifadetainee ever makesacomment aboutsuicide at any point in his incarceration, the detainee is ^^7^^^^ at risk for suicide.Consequent1y,nothing the detainee could ever say or do subsequently would matter in theclassification ofthe detainee.155. Even if the Brig'sconcern about PFC Manning'srisk for self-harm were not pre-textual(which the Defense submits that it was), suchaconcem was nonetheless exaggerated and grosslyout-of^proportion to the risk presented. Wherearestriction imposed onadetainee is "arbitrary"or "excessive" the restriction does not servealegitimate government purpose. ^^^^^^7^^^^^^^.^v.C^^^^^^, 62 M.J.411,414(C.A.A.F.2006)(constitutional violation is established where"conditions^are] unreasonable or arbitrary in relation to both purposes" of'ensuring...presencefor trial and the security needs ofthe confinement facility"). Here, the burdens placed upon PFCManning under the guise of protecting him from self-harm were arbitrary,unreasonable andexcessive, mandatingaconclusion that PFC Manning'sArticlel3 rights have been violated.156. The Brig'sresponse to PFC Manning'scomment about the waistband ofhis underwear isillustrative of the(willful) lack oflogic that confinement officials brought to bear when it cameto PFC Manning. Any reasonable person could see that after eight months in MAX and underPOF^^ctainee would become increasingly frustrated and might say something provocative. Areasonable person would see that PFC Manning was not actually planning on killing himselfwiththe elastic band ofhis underwear. And yet, the Brig refused to see logic. This is true eventhough Brig psychiatrists had specifically opined that PFC Manning'scomment about the elasticband ofhis underwear was part ofthe process ofhis "intellectualization" ofhis conditions ofconfinement and was in no way related to any suicidal ideations on the part ofPFC Manning.Attachments 2,9.The4March2011C^A Board noted that, "^PFCManning'sjcommentshave raised concern that ^PFC Manning] may be formulatingaplan to potentially kill himself."1^^^ Attachment 6. IfPFC Manning were truly "formulatingaplan to potentially kill himself,"would he tell Brig guards exactly how he was going to do it7 Again, logic seems to have beenchecked at the gates ofthe O^^^fi^^^^^fit^^tnent facility.157. After PFC Manning made this comment, the Brig increased the special handlinginstructions on PFC Manning, such that there was nowarequirement that he strip naked andwearasuicide smock at nighLAttachment 26. This requirement was arbitrary,81United Statesv.PFC Bradley F.ManningDefenseArticle 13Motionunreasonable and excessive in light ofthe perceived threat ofself-harm. PFC Manning wasunder 24-hour surveillance,with guards never being more thanafew feet away from his cell.Even ifhe wanted to, how could PFC Manning use his underwear to potentially commit suicidewithout anyone noticing7 Presumably,aguard would notice PFC Manning removing hisunderwear and pulling at the elastic band in an effort to extract it from his underwear and thenattempt to use it to kill himself Moreover, PFC Manning was permitted to have his underwearand clothing during the day,with no apparent concern that he would harm himself duringdaylight hours.158. Further, the smock itself posedagreater risk to PFC Manning in terms ofbeingachokinghazard than PFC Manning'sunderwear. On one occasion, PFC Manning got trapped inside thesmock. The situation is explained in an Incident Report on 13 March 2011:Ma'am, on the above date and time while performing my duties as specialquarters supervisor,FFCPFMiller,noticedDeLManning^l0075/9504 had hishead and arms inside ofhis POI jump suiL Ithen woke up SND and told him thatIneed to see his face and to poke his head ouL While doing whatlinstructed himto do, SND realized he was stuck and began to roll around, saying,"1 hate thisstupid thing." Ithen told SND to calm down and stand up and try to pull the POIjump suit over his head, but his arms were still stuck. Ithen called for the watchsupervisor, CPF Sanders, to come down to special quarters to look at the situationandgetpermissiontoopencell 191 and help SND. Upon CPL Sanders arrivaF heevaluated the situation and opened celll91to help SNDfree his arms. OnceSND was situated,1then told him not to put his head and arms inside his POIjump suit again, and that ifhe is cold to use his second POI blanket instead. TheDBS was then notified and this report was written, and the incident was recordedon camera.Attachment 27.159. Despite this incident and the recommendation ofBrig psychiatrists, CW02 Barnes refusedto change the decision to require PFC Manning to surrender his clothing and wearasmock atnighL She stated,"1 have considered your complaint that the decision to remove your clothingduring sleeping hours is improper. Idisagree. The removal of your clothing on2March 2011was done to ensure your safety and wasadirect result of your comment...regarding thewaistband in your underwear which you considered to be dangerous."Aftachment 20.Despite all logic to the contrary,Brig officials continued to require that PFC Manning wear thesmock at night, apparently out ofconcem that PFC Manning planned to kill himselfwith hisunderwear.160. Further evidence ofthe lack ofrational connection between measures adopted by the Brigandalegitimate government objective is found in the measures associated with placing PFCManning on Suicide Risk onl8January 2011. Col.Choike noted in his response to the Article138 Complaint that the decision to place PFC Manning on Suicide Risk on that date necessitated82United Statesv.PFC Bradley E. ManningDefenseArticle 13Motion"onlyafew" additional special handling instructions, one of which was the removal ofPFCManning'seyeglasses.^^ ^^^Attachmentl9. his impossible to conceive ofalegitimategovemment objective to be served in removing PFC Manning'seyeglasses, forcing him to sit forthree days in his cell in essential blindness, dizzy and disoriented.161. his similarly impossible to rationalize any ofthe other restrictions imposed on PFCManning under either his POI or MAX status. Afew ofthe absurd restrictions are outlinedbelow;a) Constant Monitoring^hstands to reason that asking PFC Manning every five minutes"are you okay7" would not ensure that PFC Manning was, in fact, okay. Moreover,common sense dictates that that being asked "are you okay7" thousands oftimes over thecourse of nine months would actually exacerbateadetainee'ssenseoffiustration andcause mental anxiety.b) Inability to Lay Down in His Cell or Place His Bacl^ Against the ^alLThere does notappear to be any legitimate penological reason for refusing to allow PFC Manning to laydown in his cell, particularly when he was locked in it for over 23 hours per day. Howwould allowing PFC Manning the ability to lay down increase his risk of se1f harm7Similarly,what possible justification could there beft^rnot allowingadetainee to lean hisback against the wall, instead requiring him to sit up straight for all his waking hours7c) Limitations on Reading Materials It is unclear how allowing PFC Manning only onebook or magazine in his cell atatime is related to the prevention of self-harm(especiallybecause PFC Manning was permitted to haveacopy of the Brig'srules and regulations inhis cell at all times). How would having two or three books or magazines in his cellincrease PFC Manning'srisk of self^harm7d) Restrictions on Correspondences For much ofthe time that PFC Manning was atOtt^^fico, he was only permitted one hour ofcorrespondence time. Again, how wouldpermittingadditionalcorrespondencetime increase PFC Manning'srisk of self-harm7e) Refusal to Allow PFC Manning Basic Hygiene Items^ It is impossible to understandwhy PFC Manning was not permitted to have toilet paper in his cell and instead wasrequired to ask for it every time he wanted to go to the bathroom. This restriction wasarbitrary,excessive and degrading.f) Restrictions on Exercise; PFC Manning was prohibited fiom exercising in his cell.However,he was permitted to exercise at recreation call. It is unclear what the differencebetween the two is, and why one does not presentarisk of self-harm,while the otherThe fact that placing PFC Manning on Suicide l^isk necessitated "onlyafew" additional handling instructionsdemonstrates that there is notasignificant distinction between Suicide l^isk and POI status, ttowever, the Brig wasnot permitted to maintain PFC Manning on Suicide l^isk status because that would have required tberecommendation of the Brig'smental health provider(which the Brig decidedly did not have).83United Statesv.PFC Bradley F. ManningDefenseArticle 13Motiondoes. Moreover, CapL Hocter pleaded with the Brig to allow PFC Manning to exercise inhis cell. On2December 2010, for instance, CapL Hocter wrote in his psychiatricevaluation:Pt reports good mood and noSl^suicidal ideations]. Does not require POIfiomapsychiatric perspective.^^^^^^^^l^^l^t^o^^^i^l^^^fii^^ifi^i^^^^^. ^ ^ ^ f i ^ ^ .^^^Attachment2(large writing in original).162. In short, the conditions imposed on PFC Manning to purportedly ensure that he would notharm himselfwere wholly nonsensical. ^^^^^^.^^^7^^ ^^^^^.^v. 7^^^^^.^^.^^^ 2008 WF 2259762(A. F.CL Crim. App.)("Nor are we able to see how forcing the appellant to remain on her bed,without talking, somehow increased the government'sassurance that she would be available fortrial beyond that guaranteed by her general confinement").163. In ^^^7^^.^^^^^.^v^^^^^7^^,20M.F90(C.M.A. 1985), ChiefJudgeFverettfound thatconditions less restrictive than the ones imposed on PFC Manning were not related toalegitimate govemment objective. He stated:For purposes ofthe motion, the Government admitted that appellant was initiallyplaced inasingle cell about6 feet by7feet,withadesk, toilet, chair,and bed.He was only allowed to wear his undershorts, and to either sit at the desk or standfrom 0400 hours to 2200 hours. His only reading materials wereaBible and thebrigregulations. He was not allowed to write or receive letters, lie on the bedbetween reveille and taps, or communicate with other prisoners.Some ofthese conditions ^^^7^^^^^^^^^^^^.^ than would be required to assurethe detainee'spresence and so they violated Articlel3.Regardless oftherestrictions that might be imposed on sentenced prisoners without violatingArticle55,^] it is hard to see whyapretrial detainee should be prohibited fromcorresponding with persons outside the facility,such as his lawyers, family,orfriends; or be required to be only in undershorts and in the daytime to sit or stand,rather than to lie in bed. No "alternative purpose" which seems reasonably relatedtoalegitimate governmental objective "is assignable for" these conditions.at 99-100(emphasis supplied). ChiefJudge Everett also emphasized that "^i]n arriving at thisconclusion,lhave heeded the Supreme Court'swaming that "^s]uch considerations arepeculiarly within the province and professional expertise ofcorrections officials, and, in theabsence ofsubstantial evidence in the record to indicate that the officials have exaggerated theirresponse to these considerations, courts should ordinarily defer to their expertjudgment in suchmafters."84United Statesv.PFC Bradley F. ManningDefenseArticle 13 Motion164. Even if the restrictions placed upon PFC Manning were in some way related toalegitimategovernment objective, they were nonetheless grossly exaggerated in light ofany actual evidencethat PFC Manning was at risk ofself-harm. For instance, for five months, PFC Manning wasforced to "exercise" while his hands and feet were shackled,withaguard accompanying hisevery step. While this would certainly ensure that he wouldn't harm himself, others, or escapefrom the confinement f^cility,sucharequirement appears wholly out-ofproportion to the riskpresented.^^^7^^ ^^^^^.^v.C^^^^^^.^,2011WL2864311,^5 ( N M . C L Crim. App)("Weagree with the militaryjudge that while it was permissible to assign the appellant cleaningresponsibilities, it was impermissible to have him clean in hand and leg irons.").165. his clear that the numerous restrictions placed on PFC Manning owing to his classificationasaMAX detainee under POI status were not related to the legitimate government objective ofpreventing PFC Manning from harming himself Nor, as discussed below,were the restrictionsplaced on PFC Manning legitimately related to either protecting other inmates or ensuring PFCManning'spresence at trial.b) Preventing PFC Manning from Harming Others166. There was equally no basis to conclude that PFC Manning wasarisk to others, therebyjustifying his continued classification in MAX custody. The Brig notes continually indicate thatPFC Manning had been an "above average"detainee. i^^^Attachment5. GSYGT Blenis, in hisconversation with PFC Manning, indicated that he "wish^ed] he hadahundred Mannings."Attachment 25. The Pentagon has claimed publicly that PFC Manning has been an "exemplary"detainee. PFC Manning had always been pleasant, respectful and cooperative with Brig officialsand guards.167. PFC Manning had never exhibited any violent tendencies towards other inmates atOti^^fico. The Brig psychiatrists indicated that he was notarisk to others. In response toaquestion as to whether they had "seen or documented any behavior to suggest that he isarisk toharm others or himself,adisruptive detainee, or otherwise noncompliant with O^^^fi^o Brigrules and procedures,"CapL Hocter and COF Malone responded as follows:In his24 January 20llsubmission,CWO4Averban states that PFC Manning bad violated prisoner rules andregulations by not following instructions, tte further states,"! have not imposed any disciplinary segregation, butthese incidents do cause me continuing concem regarding his safety and intentions." ^^^Attachment15. Therules'^violations" that CW04Averhart refers to are exceedingly minor(^^^ Attachment ^^)and do not provideabasis,under any stretch of the imagination, tbra"continuing concem regarding his safety and intentions." Forexample,on one occasion.aBrig guard documents an incident where PFC Manning was choking onapiece of meat; after theguard dislodged iL PFC Manning indicated that he did not need medical care. On one occasion, PFC Manningdeclined his recreation call because his medication made him extremely tired. On yet another occasion.aBrig guardreported that at^er explaining to PFC Manning something dealing with the television schedule, PFC Manningindicated he was done watching T^ and it could be tumed off. Frankly.with some ofthese reports, it is not evenclear what the "incident" is or why it is at all significanL l^egardless, these are apparently the sorts ofincidents thatCW04Averhart refers to as somehow supporting the conclusion that he had "continuing concem" regarding PFCManning'ssafety and intentions. Alook at tbe incident reports themselves, however, completely underminesCW04Averhan'sstatemenL85United StatesvPFC Bradley E. ManningDefenseArticle 13MotionCapL Hocter;Notsincelmethim. Given the report fiom k^uwait,lhad expected moredifficulty.Given the amount ofscrutiny he received fiom the Brig, and the seriousness ofhischarges,1had expected him to have many more problems, lhad initiallysuspected that we would see regression and perhaps some suicidal behaviors. Heheld up remarkablywelFHewas generallyawell behaved detaineeCOF Malone;lhave never heard ofhim being disruptive, but he does make provocative comments tothe staff as part ofhis intellectualization(e.g.2March 2011).i^^^Attachments7-9.168. Notab1y,the offenses with which PFC Manning is charged—offenses ofwhich PFCManning has not been convicted—do not involve violence. There was absolutely no reason tobelieve that the safety ofother inmates would be compromised ifPFC Manning were classifiedasaMedium Custody detainee. ^^^^^^^v,7^^^^7^.^.641F.2d488, 494(7^^ Cir. 1981)(the"state'sinterest in secure confinement of^pretrial detainees] may justify confinement ofparticular detainees because of their ^^^^^^7^^^^^^^B^.^^^c.^,...additional severity in treatment inthe absence ofknowledge oftheir individual characteristics is clearly excessive and amounts topunishment")(emphasis supplied). ^^^^^.^^(7^^7^^^^^^^.^ v^^^^,45M.J.672(N-M.CLCrim.App.1996)(solitary confinement justified to protect other detainees); ^^^7^^i^^^^^.^vC^^^^^^,62 M.J.411,415(C.A.A.F.2006)(maximum custody appropriate where accused presenteda"high risk offuture serious misconduct including mass violence and physical harm to others").169. In ^^^7^^^^^^^.^v. .^^7^^^^^^^, 59 M.J.618(ArmyCL Crim.App. 2003), the accused washeld for57 days in special quarters before he was transferred to the general confinementpopulation. In that case, the accused had been charged with "serious,violent offenses" (rape ofaminor), had failed to comply with restrictions ordered by his company commander, and hadaserious drug and alcohol problem. 7^. at 623-4. Thus, the temporary placement ofthe accused inspecial quarters for 57 days was justified. Here, PFC Manningspentapproximately265 days insolitary confinement at Ott^tttico. He was not charged withaviolent offense; he did not haveany disciplinary issues; and did not have any drug or alcohol problems. I f i t was not necessary tokeepaviolent sex offender who disobeyed orders in special quarters, surely it was not necessaryto keep PFC Manning in MAX custody in order to protect others.170. hshould be noted once again that PFC Manning is 5'3 in height andl15pounds in weighLPresumably,Brig guards would have been able to easily restrain PFC Manning in the extremelyunlikely event that he were to be disruptive and poseadanger to others. Moreover, the Defensewould venture to guess that other pretrial detainees could "hold their own" ifsome sort ofaltercation ensued. Placing PFC Manning in shackles and locking downaMarine confinementfacility every time PFC Manning was moved(e.g. to speak with his counsel on the phone; to86United Statesv.PFC Bradley F.ManningDefense Article 13 Motionattend his sunshine call) was clearly excessive and arbitrary in considering whether PFCManning'sconfinement conditions serve the government objective of ensuring the safety ofother detainees.c) Ensuring PFC Mannin^'sPresenceAtTrial171. FinaI1y,PFC Manning'sconfinement conditions were not rationally related to thegovernment objective of ensuring PFC Manning'spresence at trial. There is no indication thatPFC Manning wasafiight risk at the time ofhis confinement at O^^^fico. ^^^7^^i^^^^^.^vC^^^^^^, 62 M.J.411,415(C.A.A.F.2006)(additional restrictions warranted because detaineewas "bothafiight risk andaserious risk of future misconduct."); (7^^7^^^^^^^.^v. ^^7^^^^^^^^,56 M.J.671,678 9(ArmyCL Crim.App. 2001)(additional restrictions warranted because "Brigofficials clearly had reason to believe thatadetainee] wasafiight risk and posedarisk to others...The record establishesalitany of violent, predatory,and dangerous criminal behavior.").172. In PFC Manning'scase, he was an exemplary inmate who never gave Brig officials reasonto believe he wasafiight risk. ^^^(B^^7^^^^^^^.^v.^^.^^^,54M.J.523,526(N-M.CLCrim.App. 2000)(holding that imposition ofharsher conditions on accused was notjustified on thebasis that accused wasafiight risk, noting that the accused "was nota'managementproblem'oradisciplinary problem in the brig. His conduct was consistently evaluated as'sat,'(satisfactory)."); ^^^7^^ ^^^^^.^v^^^^^, 2006 WF1662963,'^4(NM.CL Crim. A p p ) ( " . .this court has warned ofthe danger ofbasing pretrial confinement decisions .^^^^^ on theseriousness ofan offense or the maximum punishment authorized. In this case, the appellant hadalready demonstrated that he was notafiight risk for an extended period of time.").173. The Brig, however, used the seriousness ofthe charges to conclude for all time and for allpurposes that PFC Manning wasafiight risk. The seriousness ofthe charges themselves,however, cannotjustify an automatic conclusion thatapretrial detainee isafiight risk and thusbelongs in MAX custody.(7^^^^^^^^^^.^v.^^^^^B^^^, 52 M.J.539,544 ( N M . C L Crim.App.l999)(finding that the "focus on the possibility of the^accused's] escape due to theseriousness of the charges, as the reasons] to assign him to "Special 0^^riers,"resulted in theimposition of conditions more rigorous than necessary to ensure his presence for trial.");(7^^7^^^^^^^.^v.^^^^^^^, 2011WF 2557622 ( N M . C L Crim App)(finding unlawful pretrialpunishment where the accused had spent 136 days in solitary confinement as an arbitraryresponse to the seriousness of the charges against him); ^^^7^^ ^^^^^.^ v. ^^^7^,2006WL4579019(N.M.CL Crim.App.)(finding illegal pretrial punishment where custody determinationwas based solely on the severity ofthe murder charge against the accused; court noted that "themaximum custody conditions were not rationally based on security concerns taking into accountall ofthe circumstances, and the resulting conditions were more rigorous than necessary toensure the^accused's] presence at his trial."); ^^^7^^^^^^^.^v^^7^^^^,56 M.J.739 (N-M.CLCrim.App. 2001)(finding illegal pretrial punishment where Marine brig hada"standardprocedure...that detainees facing more than seven years of confinement were considered escaperisks perse, and assigned to special quarters"). Otherwise, any detainee facing serious criminal87United Statesv.PFC Bradley F.ManningDefenseArticle 13Motioncharges would automatically be deemedafiight risk and relegated to MAX custody fi^rtheduration ofhis time in pretrial confinemenL174. That the seriousness ofthe charges formed the basis fbrthe decision to retain PFC Manningin MAX and on POI is evident in Col. Choike'sResponse to PFC Manning'sArticle 138ComplainL Col. Choike states:Classification of prisoners is governed by reference(c). Classification criteria...include, but are not limited to; assaultive behavior, serious criminal record(convicted or alleged), low tolerance offrustration, poor home conditions orfamily relationships, mental evaluations indicating serious neurosis or psychosis,demonstrated pattem ofpoorjudgment, and length of potential sentence. Thecharge sheet available to the PCF upon confinement alleged breaches of securityregulations and the leakage ofclassified documents involving national security.^^^Attachment18.175. What is telling is that Col. Choike proceeds to list all the factors that should be consideredin the classification decision, but only hones on one: the seriousness ofthe charges.("Although yourmentalstatewasaprimaryconcemand focus, itwasnottheonlyfactorjustifying MAX custody. You are facing serious charges involving wrongfully accessing andtransferring classified information andamaximum punishment of 52 years of confinement andadishonorable discharge.").176. In CoF Choike'sResponse to PFC Manning'sRebuftal to the Article 138 Complaint, hestates:lhave reviewed the entire record and concur that maximum custody is theappropriate classification for PFC Manning. This does not forecloseafuturechange in his custody classification. For this reason, his classification andassignment is continuously reviewed. However, he is pending extremely seriouscharges with national security implications.^^^Attachmentl9.^^.^^^ Attachment 15(CW04Averhart indicating that "it is myprofessional opinion that PFC Manning'smaximum custody classification is based upon hischarges, national security concerns and his behavior while in the facility.").177hisabundantlyclearthattheseriousnessofthechargesthemselveswastheprimaryreasonwhy the Brig(and Col.Choike)thought it appropriate to keep PFC Manning on MAX and POFThis is further evidenced by Mr.JuanMendez'sfindings where he states that,"^t]o the SpecialRapporteur'srequest for information on the authority to impose and the purpose of the isolationregime, the govemment responded that the prison rules authorized the brig commander to impose' This is also clear when one looks at the C&A Board reviewsfi-om3 January 2011 onward. See Attachment 6.88United Statesv.PFC Bradley F. ManningDefenseArticle 13Motionit ^^^^^^^^^^^^^.^^^^^^^.^^^.^.^^^^^^^^.^^ for which he would eventually be charged."Attachment32(emphasis added).178. Applying some common sense fbramoment, given that PFC Manning was inasecureMarine facility,containedwithinaMarine compound, it is hard to imagine any scenario underwhich PFC Manning would have been able to escape. Apparently,security at Oti^^tico includes"a single chain-link fence about 20 feet high with razor wire, cameras, and guards."http:^^en.wikipedia.org^wiki^Marine Corps Brig, Ot^^^^i^^^ Recall again that PFC Manningdiminutive in size. The average Marine Brig guard would likely be nearly6feet tall and about200 pounds, hdefies logic to think that somehow, even ifhe wanted to, PFC Manning couldescape from Ott^titico. Thecaseof(7^^7^^^^^^^.^v..^^.^^^,54M.J.523,526(N-M.CLCrim.App. 2000) is apposite in this contexL In that case, the trial counsel argued;Your Honor, the reason why the accused is in special quarters is because ofhismedical condition. It'snotafbrm of punishmenL It'sbecause it is to protecthimselfand to maintain good order within the brig. B^. at 526.179. The court did not accept what it saw asanonsensical argument, stating,"Wecannotcondone the imposition ofharsher conditions uponamilitary accused because he has an injuryor, for that matter,suffers from some other illness. Wethink it is somewhat obvious that havingastrained right knee does not make an accusedagreater fiight risk or that placement in'specialquarters'is necessary to ensure the presence of such injured personnel for trial."at 527.Likewise, the Defense submits that it is "somewhat obvious" that, given PFC Manning'sphysical stature and his location inasecure confinement facility ^^7^^^asecure Marinecompound, that he was not legitimate fiight risk.180. Moreover, the Govemment did not haveagreater interest in ensuring that PFC Manningappeared at trial than it did with any other pretrial detainee confined at the Oti^titico Brig. Andyet, other detainees were not subjected to these conditions. ^^^^^^7^^^^^^^.^v.^^^^^.^,2007WF1702575,^2(finding illegal punishment where "the Government presented no evidence that^detainee] wasafiight risk or that there was any risk that he would harm himself or others iflesser degrees of restraint were utilized.");(B^^7^^.^^^^^.^v.^^^7^^^. 53 M.J. 149,154(C.A.A.F.2000)(noting that conditions similar to those alleged by accused^confinement in cell for 23hoursaday] "have previously been considered far more onerous than would be required toassure^accused'sjpresence^at trial].")(citations omitted).181. In his response to PFC Manning'sArticlel38 Complaint, CoF Choike noted that indetermining PFC Manning'sclassification status, relevant concerns included "national securityconcerns and protection ofclassified material." i^^^Attachmentl9. It is impossible to fathomhow "national security concerns" and "protection ofclassified material" would be impacted i fPFC Manning were to be retained in MD1(rather than MAX) and not under POI status. Assuch,these factors are unrelated to any legitimate government objective and in particular, to theobjective of ensuring PFC Manning'spresence at trial. Also in this Response, Col.Choikeastoundingly refers to all these conditions as "narrowly tailored."Not only were the89United StatesvPFC Bradley E. ManningDefenseArticle 13Motionconditions decidedly not narrowly tailored, they were arbitrary,purposeless and bore no relationtoalegitimate governmental goal. .^^^^^^7^^.^^^^^.^v.C^^^^^,62M.J.411,416(C.A.A.F.2006)("we^do not] condone arbitrary policies imposing'maximum custody'upon pretrialprisoners."); (7^^7^^^^^^^.^v.7^^^.^, 28 M.L214,216(CMA.1989)(conditions thatarearbitrary or purposeless can be considered to raise an inference of punishment).182. The decision to retain PFC Manning under MAX and POI cannot bejustified by generalaverments that "the PCF Commander has the inherent authority over those in his custody tomaintain good order and discipline and the responsibility to ensure safety and security in thePCF."^^^Attachmentl8. Asthe7^^Circuitaptlystatedin7^^^^v.7^^^^7^^,641F.2d488,498(7th Cir.1981), courts need nof'grant automatic deference to ritual incantations by prisonofficials that their actions foster the goals oforder and discipline." In this case, there has beennothing but "ritual incantations."183. It is evident that the decision to retain PFC Manning in the functional equivalent ofsolitaryconfinement for almost nine months was arbitrary,capricious and not rationally related toalegitimate government objective. It is worth noting that the Marine Corps has long history ofarbitrary and unreasonable Brig policies which amount to pretrial punishmenL184 For instance, in ^^^7^^ .^^^^^.^v.^^^^^.^^^. 49 M.F 575 (N-M.CL Crim.App. 1998), thecourt found that there was an "unwritten policy" at the Camp Pendleton Marine confinementfacility that "places pretrial confines in maximum-custody status based solely on whether thepotential confinement they face is greater than5years." 7^. at 576. In finding that thisconstituted unlawful pretrial punishment, the court stated;Based on the information available to the court,we are very concerned about whatappears to be an arbitrary policy to place in maximum confinement all personswho faceaperiod of confinement in excess of5years. All such personsapparently remain in maximum confinement,with all the deprivations that entails,until trial or such time as the service member enters intoapretrial agreementcapping confinement at5years or less.Werecognize, ofcourse, thatthe potential length of confinementaservicemember faces isarelevant factor in determining the likelihood he may attempt tofiee. Moreover, the seriousness and nature ofthe offenses can be relevant indetermining both the individual'sfiight risk as well as whether he representsadanger to others in the brig. Weare hesitant to second-guess the decisions ofbrigpersonnel, who are required to maintain good order and discipline under difficultcircumstances. Based on their extensive training and experience,we recognizethat such personnel are generally much better equipped than are we to make suchtough calls. Had the decision making process considered all the relevant factors,we would intervene only under the most unusual circumstances. Here, however,the Government has made no effort to rebut the appellant'scontentions that thelength ofpotential confinement was thefactor brig personnel considered.90United Statesv.PFC Bradley F. ManningDefenseArticle 13 MotionBefore significantly curtailing the fieedomofMarines facing general courtsmartial, this court and others responsible for the militaryjustice system mustensure the integrity ofthe system. These decisions cannot be based onasingleblanket criterion to the exclusion ofall other factors.at 576-7 (emphasis in original).185. The Court also expressed concem "about this policy'scoercive effect on pretrial confinees.It places considerable pressure on them to enter intoapretrial agreement and then plead guiltysimply to get out of maximum custody."7^. The court further admonished those involved "inthe administration ofNavy and Marine Corps brigs" to "ensure that decisions whetherto placepretrial confines inamaximum-custody status are based on all relevant factors." 7^.186. B^^^^^.^^^ is not the only case to address the arbitrary Brig policy at Camp Pendleton. .^^^^^^7^^ ^^^^^.^v^v^^.^,55M.J.732 ( N M C L Crim. App 2001)("As we have found in othercases, however, we find that the decision to place the appellant in Special O^^rierslwas madein conformance with the standard operating procedures^SOP] then in existence within the brig atCamp Pendleton. That SOP required that anyone facing more than five years confinement to beautomatically placed in Special Oti^rtersl. Accordingly, we find that the decision to place theappellant in Special Oti^rterslwas based on an arbitrary policy and resulted in the imposition ofconditions more rigorous than necessary to insure his presence for trial.")(citations omitted);^^^7^^^^^^^.^v^^^^^^^^,2002 WF31433595 (NM.CLCrim.App.)("Totheextenthiscustody determination was based solely on that criterion, it resulted in conditions more rigorousthan necessary to ensure the appellant'spresence for trial. Based upon the evidence presented tous,we find that the appellant has met his burden and the Covernment has noL Accordingly,wefind that the decision to place and keep the appellant in special quarters was based solely upon anarbitrary policy in place at the Camp Pendleton Brig and resulted in the imposition of conditionsmore rigorous than the circumstances required to insure the appellant'spresence attrial.")(citationsomifted); ^^^7^^ ^^^^^.^v^^^^T^^.^, 1999 WF 1076885,^4(NM.CL Crim.App.)("1n light ofthe available facts,we are convinced that the5 year criterion for maximumcustody dispositions existed at the Camp Pendleton Base Brig at the time ofthe appellant'spretrial confinemenL And, in the absence ofmore convincing evidence that this rule was notapplied to him, and in the interest ofjudicial economy,we will afford the appellant an additional128 days ofjudicially ordered credit to be applied against his approved sentence."). Nor is thepolicy that existed at Camp Pendleton an isolated one. ^^^^^^7^^.^^^^^.^v.^^7^^^^,56M.J.739,741(N M.CL Crim. App. 2001)(arbitrary brig policy existed at Camp Fejeune).187. Fike in Bf^^^^.^^^ and in all the cases cited above, the Marine brig at O^^titico had anarbitrary policy to keep PFC Manning(and only PFC Manning) in MAX and on POIindefinitely. As the Court of Appeal for the ArmedForces has said,"wedo^not] condonearbitrary policies imposing'maximum custody'upon pretrial prisoners. Wewill scrutinizeclosely any claim that maximum custody was imposed solely because ofthe charges rather thanasaresuhofareasonable evaluation of all the facts and circumstances ofacase." ^^^^^^7^^^^^^^^vC^^^^^, 62 M.F411,416(C.A.A.F.2006).Thepolicyto keep PFC Manning on91United Statesv.PFC Bradley F. ManningDefenseArticle 13MotionMAX and POI was not based on any legitimate govemment objective, such as protecting PFCManning from self-harm,protecting others, or ensuring PFC Manning'spresence at trial.Instead, the decision was an "unwritten policy" by the higher-ups at Oti^^tico who had decidedthat, as long as PFC Manning remained at Oti^^tico, nothing would ever change. ^^^^^^^^^^^.^v Bf^^^^.^^^^49M.J.575 (N M.CLCrim App. 1998).188. But after PFC Manning was moved to the Fort Feavenworth Joint Regional CorrectionalFacility(JRCF), things did change. Afteraroutine indoctrination period, PFC Manningwasassigned to Medium Custody. The severe restrictions on his liberty have been lifted. He is nowpermitted to eat with other detainees, socialize with other detainees,walk around without metalshackles, have personal and hygiene items in his celF etc. PFC Manning has been held in thisstatus for approximately the past 15months.189. The fact that PFC Manning went from MAX and POI at O^^^fico to Medium Custody atthe JRCF virtually overnight is evidence that he was improperly held in MAX and POI to beginwith^^^(B^^7^^^^^^^.^v^^7^^^^,56MF 739, 741 ( N M C L Crim.App. 2001)(''Thefacttthe appellant was released fiom special quarters the very next day after securingapretrialagreement that limited his post-trial confinement to only three years is strong evidence that hisassignment to special quarters was based primarily uponalength-of-sentencepolicy,and notupon other appropriate factors. Accordingly,we find that the decision to place the appellant inspecial quarters was based on an arbitrary policy and resulted in the imposition of conditionsmore rigorous than necessary to insure his presence for trial.").190. For the reasons outlined above, it is clear that the conditionsofPFC Manning'sconfinementwerenotrelated much less rationally related to the only permissible govemmentobjectives in imposer greater than normal confinement restrictions; protecting PFC Manningfiom harming himself; protecting PFC Manning from harming others; and ensuring PFCManning'spresence at trial.D.TheConditionsofPFCManningsConfinementWeresoOnerousthattheyFermitthe ^^B^^^ Inference that his Article 13 Rights were Violated191 In ^^^7^^.^^^^^.^v/^C^^^^^^ 47 M.F 162, 165 (CAA.F.1997),theCourtof Appeals forthe Armed Forces held that conditions ofconfinement may be so egregious and onerous that"they give rise toapermissible inference that^the accused] is being punished, or may be soexcessive as to constitute punishment." Such is the case here. The harsh conditions under whichPFC Manning was confined over the course ofnine months while in pretrial confinement atOttantico give riseasole permissible inference: PFC Manning was punished in violation ofhisArticle 13rights. ^^^^^.^^(7^^7^^^^^^^.^v^^^^^^,52M.J.767 (A.F.CLCrim.App.2000)(noting that "the actions ofthe confinement staff were so egregious that we...areinescapably led to only one conclusion: The^accused] was intentionally subjected to undulyrigorous conditions which cannot be supported by any legitimate government purpose.").a) The ConditionsofPFC Manning'sconfinement in MAX and on POI were UndulyOnerous92United Statesv.PFC Bradley F.ManningDefenseArticle 13Motion192. PFC Manning served over nine months ofconfinement in MAX custody and under eitherSuicide Risk or POF While PFC Manning was not technically held underthe classification of"solitary confinement"(aclassification that the Oti^^fico Brig does not have^^), the cumulativeeffect ofPFC Manning'sconfinement conditions were tantamount to solitary confinemenL^^^7^^^^^^^.^v^^^^^,2009WF1936444,^l(A.FCLCrim.App.)(accused'sconfinementin"protective custody" was "tantamount to solitary confinement").193. In hisTestimony before the SenateJudiciary Subcommittee on the Constitution, CivilRights, and Human Rights Hearing on Solitary Confinement,^^ Professor Craig Haney describedthe characteristics ofsolitary confinement as follows;^^^^^ Attachment l^("The Ouantico base pretrial confinement facility does not have solitary continement").The Committee was established to investigate the "serious human rights, fiscal, and public safety consequences"associated with the use ofsolitary confinement in American Prisons.Statement ofTheFlonorable Patrickl^eahy,Attachment37. Senator Leahy writes:Although solitary confinement was develop asamethod for handling highly dangerous prisoners,it is increasingly being used with inmates who do not poseathreat to staff or other inmates. Fartoo often, prisoners today are placed in solitary confinement for minor violations that aredisruptive but not violenL At the same time, conditions within segregation units have becomeincreasingly harsh. In many cases, human contact is virtually eliminated. Officers deliver mealtrays tbroughadoor slot, and visits by mental health staff are conducted through the cell door.Interaction with other prisoners is often not allowed, and visits with family members may beprohibited forayear or more.There are significant fiscal, safety and humanitarian consequences for this trend towardincreasingly harsh conditions ofsolitary confinement and its more trequent use to punish nonviolent behavior. Fvidence provided by the ^era Institute and others now suggests that placinginmates in solitary confinement with minimal human contact for days, months and years isexceptionally expensive and, in many cases, counterproductive, ^ot only do these studies showthat segregation does little or nothing to lower overall rates ofviolence, there is evidence that itactually increases recidivism rates after release, posingadanger to the public.B^. Similarly, Senator Dick Durbin expresses the following views on solitary confinement:In I^^^,a1ederal district court described similar cells at Califomia'sPelican Bay State Prison:"The cells are windowless; the walls are white concrete. . . .The overall effect [] is oneofslark sterility and unremitting monotony. Inmates can spend years without everseeing any aspect ofthe outside world except forasmall patch of sky. One inmatefairly described [it] as being ^likeaspace capsule where one is shot into space and let^in isolation.'"1maginespending23boursadayinacelllikethatfor days, months, years with no window tothe outside world and very little, if any.humancontacLThe LUnited States holds far more prisoners in solitary than any other democratic nation. TheBureau ofjustice Statistics found that in 200^,L^.S.prisons held^1,^22 people in some l^ind ofrestricted bousing. In my home state oflllinois,^^^ ofthe prison population has spent time insegregation.93United Statesv.PFC BradleyFManningDefenseArticle 13MotionIshould acknowledge that the term "solitary confinement" isaterm of art incorrections. Solitary or isolated confinement goes byavariety of names in U.S.prisons—Security Housing, Administrative Segregation, Close Management,High Security, Closed Cell Restriction, and so on. But the units all have incommon the fact that the prisoners who are housed inside them are confined onaverage 23 hoursaday in typically windowless or nearly windowless cells thatcommonly range in dimension from 60 to 80 square feeL The ones on the smallerside ofthis range are roughly the size ofaking-sized bed, one that containsabunk,atoilet and sink, and all of the prisoner'sworldly possessions. Thus,prisoners in solitary confinement sleep, eat, and defecate in their cells, in spacesthat are no more thanafew feet apart from one another.1^^^ Attachment 37. Thus, the combination ofPFCManning'sMAX and POI status(coupledwith his periodic Suicide Risk status)most certainly amounts to what would colloquially beknown as "solitary confinement."^^194. Therewasabsolutelynojustification and there can be no justification for the continueddecision to hold PFC Manning in solitary confinement for over nine months. 1n^^^7^^^^^^^.^v.^^7^^,61 M.F 225, 229(C.A.A.F.2005), theCourt of Appeal fbrthe Armed Forces fbundanArticle13 violation where the accused was arbitrarily placed in solitary confinement fbrameretwo weeks. In that case, the court said,"^p]lacing^an accused] inasegregated environment withall the attributes of severe restraint and discipline,without an individualized demonstration ofcause in the record,was so excessive as to be punishment...". Similarly,in^^^7^^^^^^^.^v.2009 WF1936444(A.FCLCrimApp), theCourt foundaviolation of Article 13andawarded 4-for-1credit where the accused spent 33 days in conditions tantamount to solitaryconfinemenL Ifafew weeks of solitary confinement cannot be tolerated,what are we to sayabout approximately 265 days7195. Even where solitary confinement serves some sort oflegitimate non-punitive objective,military courts have considered the length thataprisoner is placed in solitary confinement inorder to discem whether the condition is imposed as punishment in violation of Articlel3. In(7^^7^^^^^^^^v^^^^^^,2011WF 5221266 (N.M.CL Crim. App.), the courtfound thattheaccused spent 59 days in solitary confinement inaJapanese prison fbralegitimate non-punitivereason. The Court in that case emphasized that,"The conditions in special quarters were neitherso onerous, ^^^^^7^^^^^^.^^^^^^, as to constitute punishment,..." 7^.at'^4. Here, even i f M A Xand POI were rationally related toalegitimate govemment objective(which the Defense submits...But we now know that solitary confinement isn'tjust used for the worst ofthe worsL Instead,we are seeing an alarming increase in isolation forthose who don't need to be there and forvulnerable groups like immigrants, children, L^BT inmates, supposedly l^r their ov^ protection.PFC Manning'scell at O^^^tico was much smaller that the cells typically seen by Professor tJaney in solitaryconfinemenL PFC Manning'scell wasawindowless cell that was 4^ square feet in dimension(^^^).94United Statesv.PFC Bradley F. ManningDefense Article 13 Motionthey were not), the conditions did in fact "linger so long^] as to constitute punishment" incontravention of Article13.196 Even Brig official GYSGT Blenis admitted to PFC Manning that his treatment at O^^^ficowas "not normal." He stated,"Weunderstand it'snot normal that we have someone in POI forthis period of time...lt'snot^normal]...1guess we'll just leave it at that."^^^ Attachment 25.Not only was the treatment not normal, it was onerous, degrading and harmful to PFC Manning'smental health.197. his trite law that PFC Manning is presumed innocent until proven guilty. And yet, PFCManning has been treated inamanner that would not even be appropriate for ^^^v^T^^^^offenders. C^^^^^^^v C^^^^^^^,623 F.2d 503 (8^^Cir.l980)("conditionsfoundtoconstitutecruel and unusual punishment when imposed on convicted inmates would surely be viewed asunconstitutional punishment when imposed on similarly situated unconvicted detainees"). Infact, COF Malone, one ofthe treating psychiatrists at the Brig, has indicated that the only timehe has ever seen anyone held in conditions similar to PFC Manning was when he treatedprisonersThatapsychiatrist with overadecade of experience has only witnessedconditions like the ones endured by PFC Manning when he visited death row should speakvolumes as to how far outside the lines O^^titico acted in imposing pretrial punishment on PFCManning.198. The conditions under which PFC Manning was held for over eight months ride roughshodover PFC Manning'sright to be presumed innocent and his right against pretrial punishmenLEven leaving aside any conceivablejustification for the imposition ofthese restrictions, it is clearthat these conditions amount to ^^B.^^ unlawful pretrial punishmenLb) TheConditionsofPFCMannin^'sConfinementSparked Domestic and IntemationalOutrage199. The egregious conditionsofPFC Manning'sconfinement sparked both domestic andinternational outrage. Inaletter to Secretary ofDefense Gates, the program director of AmnestyInternational wrote:^Theexcessiveness ofthe restrictions placed on PFC Manning are highlighted when one looks at thecorresponding Army l^egulation governing corrections practices. Lender Army l^egulationl^O-47,designation inspecial quarters is determined "upon recommendations ofthe professional support staffor correctional treatmentstaff^^^^^^^^^^^^^^^B^^^^." ^^^Sectionl2^. t^ven where "determined necessary byamedical authority.prisonersdesignated for special quarters should be allowed to participate in work/training activities, consume meals with thegeneral population, and participate in recreation programs. Special quarters will be terminated as soon as it isdetermined that the prisoner can be quartered satistactorily within tbe general population." B^. Although theregulation does not provide an outermost guidepost to the length of timeadetainee can spend in special quarters, itdoes provide that "Disciplinary segregation ...normally should not exceed ^0 consecutive days. Prisoners held indisciplinary segregation for periods exceeding todays will be provided tbe same program services and privileges asprisoners in administrative segregation and protective custody."95United Statesv.PFC Bradley F.ManningDefenseArticle 13MotionAmnesty International recognizes that it may sometimes be necessary to segregateprisoners for disciplinary or security purposes. However, the restrictions imposedin PFC Manning'scase appear to be unnecessarily harsh and punitive, in view ofthe fact that he has no history ofviolence or disciplinary infractions and that he isapretrial detainee not yet convicted ofany offence. The conditions under whichPFC Manning is held appear to breach the USA'sobligations under internationalstandards and treaties, including Article lOofthe International Covenant on Civiland Political Rights (1CCPR) which the FISA ratified in 1992 and which statesthat "all persons deprived oftheir liberty shall be treated with humanity and withrespect for the inherent dignity ofthe human person". The UN Human RightsCommittee, the 1CCPR monitoring body,has noted in its General Comment onArticlelOthat persons deprived of their liberty may not be "subjected to anyhardship or constraint other than that resulting from the deprivation ofliberty;respect for the dignity ofsuch persons must be guaranteed under the sameconditions as for that office persons...".The harsh conditions imposed on PFC Manning also undermine the principle ofthe presumption ofinnocence,which should be taken into account in thetreatment ofany person under arrest or awaiting trial. Weare concemed that theeffects ofisolation and prolonged cellularconfinement which evidence suggestscan cause psychological impairment, including depression, anxiety and loss ofconcentration^may,further, undermine his ability to assist in his defence andthus his right toafair trial.In view of the concems raised,we urge you to review the conditions under whichPFC Manning is confined at the Ot^^^fi^o naval brig and take effective measuresto ensure that he is no longer held in 23 hour cellular confinement or subjected toother undue restrictions.Attachment 28.200. Further, almost 300 law professors signedaletter admonishing the government for the"degrading," "inhumane," "illegal,"and "immoral" conditionsofPFC Manning'sconfinement;The sum of the treatment that has been widely reported isaviolation of the FighthAmendment'sprohibition of cruel and unusual punishment, and the FifthAmendment'sguarantee against punishment without triaF 1fcontinued,itmaywell amount toaviolation of the criminal statute against torture, defined as,amongotherthings,"theadministrationorapplication...of..procedurescalculated to disrupt profoundly the senses or the personality."Private Manning has been designated as an appropriate subject for both MaximumSecurity and Prevention oflnjury (POI) detention. But he asserts that hisadministrative reports consistently describe him asawell-behaved prisoner who96United StatesvPFC Bradley F. ManningDefenseArticle 13Motiondoes not fit the requirements for Maximum Security detention. The Brigpsychiatrist began recommending his removal fiom Prevention oflnjury monthsago. These claims have not been publicly contested.lnanOrwellian twist, thespokesman for the brig commander refused to explain the forced nudity "becauseto discuss the details would beaviolationofManning'sprivacy."The Administration has provided no evidence that Manning'streatmentrefiectsaconcern for his own safety or that ofother inmates. Unless and until it does so,there is only one reasonable inference; this pattern ofdegrading treatment aimseither to deter future whistleblowers, or to force Manning to implicate Wikileaksfounder Julian Assange inaconspiracy,or both.IfManning is guilty ofacrime, let him be tried, convicted, and punishedaccording to law. But his treatment must be consistent with the Constitution andthe Bill ofRights. There is no excuse for his degrading and inhumane pretrialpunishmenL AstheStateDepartment'sPJCrowleyputitrecently,theyare"counterproductive and stupid." And yet Crowley has now been forced to resignfor speaking the plain truth.The WikiFeaks disclosures have touched every corner ofthe world. Nowthewhole world watches America and observes what it does; not what it says.President Obama was onceaprofessor of constitutional 1aw,and entered thenational stage as an eloquent moral leader. The question now,however, iswhether his conduct as Commander in Chiefmeets fundamental standards ofdecency. He should not merely assert that Manning'sconfinement is "appropriateand meet^s] our basic standards,"as he did recently. He should require thePentagon publicly to document the grounds for its extraordinary actions—andimmediately end those which cannot withstand the light of day.Attachment 29.201. American'sfbremost constitutional law scholar. Harvard Professor FaurenceTribe,denounced PFC Manning'sconditions of confinement as "not only shameful butunconstitutional." ^^^http:^^www.guardian.co.uk^world^2011^apr^l0^brad1ey manning-legalscholars-letter. ProfessorTribe stated that the treatment was objectionable "in the way it violateshis person and his liberty without dueprocessoflaw and in the way it administers cruel andunusual punishment ofasort that cannot be constitutionally infiicted even upon someoneconvicted of terrible offences, not to mention someone merely accused of such offences."7^.202. Medical professionals also decried PFC Manning'streatment as amounting to "needlessbrutality." Psychologists for Social Responsibility (PsySR)sent the following letter to SecretaryofDefense Gates:97United StatesvPFC Bradley F. ManningDefenseArticle 13MotionAs an organization ofpsychologists and other mental health professionals, PsySRis aware that solitary confinement can have severely deleterious effects on thepsychological well-being ofthose subjected to iL Wetherefbrecallforarevisionin the conditions ofPFCManning'sincarceration while he awaits trial,based onthe exhaustive documentation and research that have determined that solitaryconfinement is, at the very least,afbrm of crueF unusual and inhumane treatmentin violation ofU.S.law.In the majority opinion of theC.S.Supreme Court case Med1ey,Petitioner, 134US.1690(1890), U.S. SupremeCourtJustice Samuel Freeman Millerwrote,"Aconsiderable number ofthe prisoners fell,after evenashort confinement, intoasemi-fatuous condition, from which it was next to impossible to arouse them, andothers became violently insane; others stilF committed suicide; while those whostood the ordeal better were not generally reformed, and in most cases did notrecover sufl^cient mental activity to be ofany subsequent service to thecommunity." Scientific investigations sincel890 have confirmed in troublingdetail the irreversible physiological changes in brain functioning fiom the traumaofsolitary confinemenLAs expressed by Dr. Craig Haney,apsychologist and expert in the assessment ofinstitutional environments,"Empirical research on solitary and supermax-likeconfinement has consistently and unequivocally documented the harmfulconsequencesoflivinginthesekindsofenvironments... Fvidence ofthesenegative psychological effects comes from personal accounts, descriptive studies,and systematic research on solitary and supermax type confinement, conductedoveraperiodoffbur decades, by researchers from several different continentswho had diverse backgrounds andawide range of professional expertise...^Djirect studies ofprison isolation have documented an extremely broad range ofharmful psychological reactions.These effects include increases in the followingpotentially damaging symptoms and problematic behaviors: negative attitudes andaffect, insomnia, anxiety, panic,withdrawal,hypersensitivity,ruminations,cognitive dysfunction, hallucinations, loss of control,irritability,aggression, andrage, paranoia, hopelessness, lethargy,depression,asenseofimpendingemotional breakdown, self^mutilation, and suicidal ideation and behavior" (pp.130 131, references removed).Dr.Haneyconcludes,"Tosummarize, there is notasingle published study ofsolitary or supermax like confinement in which non voluntary confinementlasting for longer thanlOdays where participants were unable to terminate theirisolation at will that failed to resuh in negative psychological effects" (p. 132).Weare aware that prison spokesperson First FieutenantBrianVilliard has toldAFP that Manning is considereda"maximum confinement detainee,"as he isconsideredanational security risk. But no such putative risk can justify keepingsomeone not convicted ofacrime in conditions likely to cause serious harm to his98United Statesv.PFC Bradley F. ManningDefenseArticle 13Motionmental health. Further, history suggests that solitary confinement, rather thanbeingarational response toarisk, is more often used asapunishment forsomeone who is considered to beamemberofadespised or "dangerous" group.In any case, PFC Manning has not been convicted ofacrime and, under oursystem ofjustice, is at this point presumed to be innocenLIn addition to the needless brutality ofthe conditions to which PFC Manning isbeing subjected, PsySR is concerned that the coercive nature ofthese conditions-along with their serious psychological effects such as depression, paranoia, orhopelessness-may undermine his ability to meaningfully cooperate with hisdefense, undermining his right toafairtrial. Coercive conditions of detentionalso increase the likelihood ofthe prisoner "cooperating" in order to improvethose circumstances, even to the extent ofgiving false testimony. Thus, suchharsh conditions are counter to the interests ofjustice.Civen the nature and effects ofthe solitary confinement to which PFC Manning isbeing subjected, Mr. Secretary,Psycho1ogists for Social Responsibility calls uponyou to rectify the inhumane, harmfuF^nd counterproductive treatment ofPFCBradley Manning immediately.Attachment 30. This organization has also submitted an amicus filing for this Court'sconsideration. ^^^Attachment41.203. One member ofthe Obama administration was fired for his comments regarding PFCManning'sconditions of confinemenL In March 2011,State Department spokesmanP.J.Crowley was asked the following question,"There'san elephant in the room during thisdiscussion;Wikileaks.The LS government is torturingawhistleblower in prison right now."Crowley replied by denouncing the abuse ofPFC Manning as "ridiculous and counterproductiveand stupid."^^ P.J. Crowley was forced to "resign" shortly after he made the commenL P.J.Crowley later stood by his statement, saying that " i f you have to explain whyaguy is standingnaked in the middle ofajail cell, you haveapolicy in need of urgent review."^^204. European leaders have also criticized the United States for its treatment ofPFC Manning.In an open letter to President Barrack Obama, among others, members ofthe Europeanparliament wrote to express concerns about human rights abuses against PFC Manning. Theyurged the Flnited States to allow the United Nations to investigate the claims:By preventing UN officials fiom carrying out their duties, the United Statesgovemment risks undermining support fbrthe work ofthe United Nations.^^^ http://www.nytimes.com/20l1/03/l4 /us/politics/l4crowley.htmL^^^^^http://v^^^vw.guardian.co.uk/commentistree/cifamerica/2011/mar/2^/brad1ey-manning-wiki1eaks.99United Statesv.PFC Bradley F. ManningDefenseArticle 13Motionelsewhere, particularly its mandate to investigate allegations oftorture and humanrights abuses. In order to uphold the rights guaranteed to Bradley Manning underinternational human rights law and the US constitution, it is imperative that theUnited Nations special rapporteur be allowed to properly investigate evidence ofrights abuses. PFC Manning hasaright to be free from cruel and unusualpunishmenL People accused ofcrimes must not be subjected to any form ofpunishment before being brought to trial.^^^Attachment2F205. That the conditionsofPFC Manning'sconfinement while at Ot^^^fi^o sparked domesticand international outrage should have signaled that what the Brig was doing was not only wrong,but egregiously wrong. Nearly every constituency that has heard about the conditionsofPFCManning'sconfinement, from doctors to lawyers to politicians, has considered these conditionsto constitute not only "unlawful pretrial punishment" but alsoagross violation ofPFCManning'sbasic human rights.c) The United Nations Special Rapporteur onTorture Was Not Permitted to Investigate theConditionsofPFC Manning'sconfinement206. The Lnited Nations Special Rapporteur onTorture, Juan Mendez, repeatedly attempted toinvestigate the harsh conditionsofPFC Manning'sconfinement only to be met with Brigassertions that any interview ofPFC Manning would be subject to monitoring. InaPressRelease issued by the Flnited Nations Office ofthe High Commissioner, the CN.expressedgrave concern that the United States would not permit unrestricted access to PFC Manning:12July2011GFNEVA^The Special Rapporteur onTorture today expressed concerns aboutrestrictions placed by the United States Government on his interaction withdetainees.Commenting on his attempts to gain unrestricted access to Private first classBradley Manning,aFlnited States soldier detained for allegedly leaking classifiedUS communications to the WikiFeaks website, Mendez said: "1am assured by theUS Govemment that Mr.Manning'sprison regime and confinement is markedlybetter than it was when he was in O^^^fico. However, in addition to obtainingfirst hand information on my own about his new conditions of confinement,1need to ascertain whether the conditions he was subjected to for several months inOuantico amounted to torture or crueF inhuman or degrading treatment orpunishmenL For that, it is imperative thatltalk to Mr.Manning under conditionswherelcan be assured that he is being absolutely candid."At the Special Rapporteur'srequest and after several meetings, the FISDepartment ofDefense has allowed Mendez to visit Pfc.Manning but warned100United Statesv.PFC Bradley F.ManningDefenseArticle 13Motionhim that the conversation would be monitored. Suchacondition violates longstanding rules that the UN applies for prison visits and for interviews withinmates everywhere in the world. On humanitarian grounds and under protest,Mendez offered to Manning, through his counseF to visit him under theserestrictive conditions, an offer that Manning has declined.The Special Rapporteur has, since the beginning ofthe year, been in negotiationswith the LS Covernment over unrestricted access to Manning. Fast month, theGovernment informed him that it was not inaposition to accede to the request foraprivateand unmonitored meeting with Manning."The question of my unfettered access toadetainee goes beyond my request tomeet with Mr. Manning^it touches on whetherlwill be able to conduct privateand unmonitored interviews with detainees iflwere to conductacountry visit tothe United States,"Mendez said.He added that maintaining the principle ofunfettered access to detainees is animportant part ofhis responsibility as the FIN expert on torture. It also determineswhether UN experts can conduct credible enquiries into allegations oftorture andill treatment when they visit places of detention and detainees. In 2004, the USCovemment allowed Mendez'spredecessor, Manfred Nowak, and three othermandate-holders, access to the Cuantanamo Bay facilities, but the GeorgeWBush administration imposed conditions that the FIN mandate-holders could notaccepL Farly in his tenure,which began on November],2010, Mendez formallyasked the US Government for permission to visit Cuantanamo Bay,apetition thathas been renewed on several occasions since then. No answer has yet been givento this requesL"The United States, asaworld leader, isastrong supporter of the internationalhuman rights system. Therefore, its actions must seek to set the pace in goodpractices that enhance the role ofhuman rights mechanisms, ensuring andmaintaining unfettered access to detainees during enquiries,"he added.Aftachment 32.207. On 29 February 2012, the U.N.Special Rapporteur issuedastatement condemning theconditionsofPFC Manning'sconfinement and the United States'violation of the "terms ofreference applied universally in fact finding by Special Procedures" (i.e. its failure to permit anunmonitored visit). Mr.Mendez wrote:United States of America(a)UA30^12^2010CaseNoUSA20^2010State reply; 27^01/201119^05^2011Allegations of prolonged solitary confinement ofasoldier charged with theunauthorized disclosure ofclassified information.101United Statesv.PFC Bradley F. ManningDefenseArticle 13 Motion170. The Special Rapporteur thanks the Government ofthe FInited States ofAmerica for its response to this communication regarding the alleged prolongedsolitary confinement ofMr. Bradley E.Manning,aUS soldier charged with theunauthorized disclosure ofclassified information.According to the informationreceived, Mr.Manning was held in solitary confinement for twentythree hoursaday following his arrest in May 2010in Iraq, and continuing through his transferto the brig at Marine Corps Base O^^titico. His solitary confinement lastingabout eleven months was terminated upon his transfer from O^^^tico to the JointRegional Correctional Facility at Fort Feavenworth on 20 April 2011. In hisreport, the Special Rapporteur stressed that "solitary confinement isaharshmeasure which may cause serious psychological and physiological adverse effectson individuals regardless oftheir specific conditions."Moreover,"^d]epending onthe specific reason for its application, conditions, length, effects and othercircumstances, solitary confinement can amount toabreach of article7of theIntemational Covenant on Civil and Political Rights, and to an act defined inarticlelor article 16ofthe Convention againstTorture." (A^66^268 paras.79 and80) Before the transfer ofPfc Manning to Fort Feavenworth, the SpecialRapporteur requested an opportunity to interview him in order to ascertain theprecise conditions ofhis detention. The LS Government authorized the visit butascertained that it could not ensure that the conversation would not be monitored.Sinceanon-private conversation with an inmate would violate the terms ofreference applied universally in fact finding by Special Procedures, the SpecialRapporteur had to decline the invitation. In response to the Special Rapporteur'srequest for the reason to hold an unindicted detainee in solitary confinement, thegovemment responded that his regimen was not "solitary confinement" but"prevention ofharm watch" but did not offer details about what harm was beingprevented. Tothe Special Rapporteur'srequest for information on the authorityto impose and the purpose ofthe isolation regime, the government responded thatthe prison rules authorized the brig commander to impose it on account oftheseriousness ofthe offense for which he would eventually be charged. The SpecialRapporteur concludes that imposing seriously punitive conditions of detention onsomeone who has not been found guilty of any crime isaviolation ofhis right tophysical and psychological integrity as well as ofhis presumption ofinnocence.The Special Rapporteur again renews his request foraprivate and unmonitoredmeeting with Mr.Manning to assess his conditions of detention.(b)AF15^06^2011CaseNo.USA8^2011Statereply:NonetodateFollowuptoaletter sent 13May2011requestingaprivate unmonitored meeting with Private(Pfc.)Bradley Manning.171. The Special Rapporteur thanks the Covernment ofthe United States ofAmerica for its response to the communication datedl3May2011requestingaprivate unmonitored meeting with Private Bradley Manning. Regrettably,to date102United Statesv.PFC Bradley F.ManningDefenseArticle 13 Motionthe Govemment continues to refuse to allow the Special Rapporteur to conductprivate, unmonitored, and privileged communications with Private Manning, inaccordance with the working methods ofhis mandate (F^CN.4^2006^6 paras. 2027)208. In March 2012,Mr. Mendez, speaking ataU.N.Human Rights Council meeting inGeneva, condemned PFC Manning'streatmentas "cruel,inhuman and degrading treatment,"specifically citing "the excessive and prolonged isolation he was put in during the eight monthshewasinO^^titico." He also rejected thejustifications offered by government officials for whatwas done to Manning: "the explanationlwas given for those eight months was not convincingforme." 7^. It is hypocritical for the United States to admonish other countries for their lack oftransparency in the treatment of prisoners,while refusing to allow the FInited Nations meaningfulaccess toapretrial detainee onU.S.soil.209. By insisting that the visit be monitored.^^O^^^tico officials could thwart the very purposeofthe process: to allow PFC Manning to speak candidly about the conditions ofhis confinementwithout fear of reprisal. The Defense submits that the failure to allow PFC Manning to haveaccess to Mr.Mendez for an unmonitored visit where PFC Manning could freely discuss theconditions ofhis confinement in the hopes of getting some typeofreprieve from them ^7.^^^amounts to unlawful pretrial punishmenL Because everyone at the O^^^fi^o Brig was abiding byCol.Oltman'sunlawful order to not remove PFC Manning from MAX or POF there wasnowhere for PFC Manning to go^other than outside the chain of command^to potentially getrelief The failure to permit PFC Manning an unmonitored visit with theL.N.SpecialRapporteur onTorture was designed to cover up from public view the wrongs that were beingperpetrated at O^^titico. Not only were Ot^^^fi^o officials insistent on keeping PFC Manning inMAX and on POI for the duration ofhis pretrial confinement, they were also insistent onshutting him up about it by foreclosing the only remaining avenue of redress^an organizationoutside the Fl.S.governmenL210. The Brig'sfailure to allow PFC Manning access to the United Nations Special RapporteuronTorture, in clear violation ofintemational norms, itself amounts to punishment and alsopermits the^^^.^^ inference that PFC Manning was being punished in contravention ofhisArticlel3rights.d) The ConditionsofPFC Manning'sconfinement Permit the ^^B^^ Inference that PFCManning was Punished inViolation of Article13211. The cumulative conditions under which PFC Manning was held are unduly onerous,degrading, and detrimental to PFC Manning'smental health. Fven leaving aside anyconceivable governmentjustification for these restrictions, the severity ofthe conditions underwhich PFC Manning was held permit the ^^^^^ inference that the conditions were meant toThe Brig, through the l^overnment in tbis case, advanced tbe most narrow and nonsensical reading ofthe Brig'svisitation rules. SeeFacts. I^egardless.wellestablished norms ofintemational law clearly lake precedenceover Ouantico'spoorly-drafted visitation policy.103United Statesv.PFC Bradley E. ManningDefenseArticle 13Motionpunish PFC Manning^^^^^v7^^^^^.^,2007WF1702575,'^2 ("When anarbitrarybrigpolicyresults in particularly egregious conditions ofconfinement, the court may inferthat an accusedhas been subject to pretrial punishment").212. Indeed, courts have found Article 13 violations in circumstances far less egregious thanthese.(7^^^^^ ^^^^^.^v^^^^^^^^^,52MF 539(NM.CL Crim.App. 1999)(finding illegalpretrial punishment where accused held in medium custody special quarters for 87 days; in thesespecial quarters, the accused was segregated from other prisoners and housed inasmaller cell for23 hoursaday); (7^^7^^^^^^^.^v^^.^^^, 54 M.F 523,526 ( N M . C L Crim App. 2000)(findingillegal pretrial punishment where accused spent 32 days in special quarters; the conditions underwhich the accused was held included " a 6 ' x 9 ' c e l l with no windows and having to remain in hiscell24hours per day except for chow andaone-hour recreation break Monday throughFriday ''); ^^^7^^.^^^^^^ v^^^^^^7^^^ 2009 WF1936287 (A F CLCrim App)(findingunl^^^pretrial punishment where accused was placed in administrative segregation for75 days,confinedtoasinglecell up to 23.5 hoursaday). ^^^^^.^^.^^^^v.7^^^^7^.^^641F.2d 488,494 (7^^Cir.1981)(findingadue process violation where pretrial detainees spent at 22 hours daily in theircells); C^^^^^^^v.C^^^^^^^,623 F.2d 503 (8^^ Cir.l980)(findingadue process violation wherepretrial detainees were locked in cells twenty-four hours per day,with release only three timesweekly; these detainees, however,were not in solitary confinement); ^^^^.^v..^^^^^485 F.Supp. 122 (D. Colo. 1979)(district court finding conditions of confinement unconstitutional andordering that no prisoner could be housed in less than 80 square feet for more than 20 hours perday); ^^^^.^v^^^^^^,838 F2d 28, 29(1^^ Cir 1988)("1n view ofthe apparently small area ofconfinement,we are further troubled by the appellant'scontention that he was confmed to hiscell for 22-23 hours per day fora27day period"); ^^^^^^Vi^^^^^^.^,375 F.3d 1269,1274(11^^ Cir.2004)(11^^ Circuit "readily concluded" that the plaintiff statedaclaimfbrasubstantivedue process violation where "plaintifl^was confined under extremely harsh conditions^insolitary confinement(under conditions unlike other pretrial detainees or even convictedprisoners), locked in an extremely smalF closet-sized space, and with minimal contact withhuman beings foraprolonged time..."; inunlike the situation here, the plaintiff wasactuallyafiight risk, as evidenced by officials'investigation into four separate escape plots.).213. Thus, the conditions that PFC Manning endured for nine months are not constitutionallypermissible. The conditions were so draconian and so far removed from the outer boundaries ofpropriety that they permit the^^^.^^ inference of punishment in violation of Articlel3.E.Dismissal of All Charges is the Only Appropriate Remedy in this Case214. Although some form ofconfinement credit is the typical remedy in cases involvingunlawful pretrial punishment, dismissal is available asaremedy in an appropriate case. TheDefense submits that if dismissal is not warranted in this case, then w^^^^^.^^ would dismissaleverbewarranted7 The Defense does not believe that there has ever been such an egregiouscase ofunlawful pretrial punishment in Army history. This Court needs to sendamessage thatan unlawful order to keepapretrial detainee in the equivalent of solitary confinement for almostnine months cannot^and will not^be tolerated.104United Statesv.PFC Bradley F. ManningDefenseArticle 13Motion215. 1ntherecentlydecidedcaseof^^^7^^^^^^^.^v.^^B^^^^^^,70MF169,175 (CA.A.F.2011), the Court of Appeals for the Armed Forces said, in no uncertain terms, that dismissal isapotential remedy for Article 13 violations:Our inquiry does not end there, however. As previously noted, R.C.M. 305(k)does not limit the availability ofother remedies under Article 13,UCMJ. It isaxiomatic, forexample, thatacourtwithappropriatejurisdiction may remedy anongoing Article 13,LCMJ,violation through the writ ofhabeas corpus. Nodoubt, additional credit under R.C.M.305(k)isaremedy for violations of Article13,UCMJ. Indeed, it isanormative remedy and one that has been expresslyendorsed in the rules. But this Court has never held that R.C.M. 305(k) is theexclusive remedy for Article 13,UCMJ,violations. Tothe contrary,our case lawexplicitly recognizes that certain circumstances may warrant other relief InC^^^^^^^ for example,we said that "^wjhere we find that maximum custody wasarbitrary and unnecessary to ensure an accused's presence for trial, or unrelated tothe security needs of the institution,we will consider appropriate credit ^^^^^^^^^^^^to remedy this type of violation of Articlel3,UCMJ." Prior case law hasrecognized that "other relief for Article13, UCMJ, violations may range fromdisapproval ofabadconduct discharge, to complete dismissal ofthe charges,depending on the circumstances. It follows that ifacourt can dismissacharge inresponse to violations of Article 13,UCMJ,as in/^^^.^^^,acourt can dosomething less by setting asideadischarge.Therefore,wereiteratethisCourt'spriorholdings,thatalthough R.C.M.305(k) isthe principal remedy for Articlel3,CCMJ,violations, courts must consider otherrelief for violations of Article13,FlCMJ, where the context warrants.7^. (citations omitted). ^^^^^.^^^^^^7^^^^^^^.^v.^^^^^^,52M.J.767,769(A.F.CLCrim.App.2000)("Weconclude that where no other remedy is appropriate,amilitary judge may,in theinterest ofjustice, dismiss charges because of unlawful pretrial punishment,which violatesArticle 13")216. In ^^^^^^^^^,the Court of Appeals for the Armed Forced emphasized that relief underArticlel3must be "meaningful."This Court first addressed the question ofwhether meaningful reliefis requiredfor violations of Articlel3,UCMJ,inIn A^^^.^^^. the appellant pledguilty to various violations ofthe FICMJ,including unauthorized absence,violatingalawful general order, possession of marijuana, and breach ofrestriction, and was sentenced toabadconduct discharge, forfeiture of all pay andallowances, confinement at hard labor for six months, and reduction toF 1. Theappellant was placed in pretrial confinement under circumstancesindistinguishable from those ofadjudged and sentenced inmates including105United Statesv.PFC Bradley F.ManningDefenseArticle 13Motionidentical indoctrination, dress, living, eating, and labor requirements. This Courtreversed the board of review,holding that the appellant's pretrial confinementconditions constituted pretrial punishment in violation of Articlel3,LCMJ,anddue process. The appellant having already served his sentence, the onlyunexecuted portion ofthe sentence was the punitive discharge. The appellantrequested reliefin the form ofdismissal ofthe charges and specifications.Although the court recognized that the board ofreview was the proper authorityfor reassessing the appropriateness ofthe sentence, the Court nonethelessconcluded that "modification ofthe sentence is in order." Specifically,the Courtheld:Under these circumstances,were we simply to retum the case tothe board of review for reassessment of the sentence,we wouldthereby imply that the bad-conduct discharge may be affirmed.Suchacourse would deprive the accused of all meaningful relief,and would rightly suggest that this Court is prepared to wink atsuch grossly illegal treatment ofmen in pretrial confinemenL Thedisastrous effects of suchasituation upon the system of militaryjustice itselfare so manifest as to require us to eliminate thatpossibility.Since A^^^.^^^^ this Court has sought to "ensure meaningful reliefin all futurecases" involving violations of Articlel3,UCMJ. However, as in the context ofappellate due process delay,the question of what reliefis due to remedyaviolation, if any,requiresacontextual judgment, rather than the pro formaapplication offormulaic rules. Whether meaningful reliefhas been granted andshould be granted will depend on factors such as the nature ofthe Artic1el3,LCMJ, violations, the harm suffered by the appellant, and whether the reliefsought is disproportionate to the harm suffered or in light ofthe offenses forwhich the appellant was convicted.In light of these cases,we conclude that meaningful relief for violations of Article13,UCMJ,is required...7^.(citations omitted).217. The Defense believes that simple "X-for-l"credit does not remedy the egregiouspunishment to which PFC Manning was subjected for almost nine months at Ot^^^fi^o and whichsparked both domestic and intemational outrage. An award ofpretrial sentencing credit wouldsimply permit Brig officials, now and in the future, to punish soldiers with absolute impunity.From the Brig'sperspective,ifasoldier is facingahigh enough sentence(e.g. life in prison)there is no reason ^^^^^ subject the soldier to Articlel3 punishmenL In PFC Manning'scase,assume that the Government could prove its case and that PFC Manning were to be sentenced tolife in prison,without the possibility of parole. Assume further that PFC Manning was subjected106UnitedStatesv.PFC Bradley F.ManningDefenseArticle 13Motionto 258 days ofillegal pretrial punishments^ for which he was awarded3fbr-lcredit(amountingto774days). Where would this leave him7 In the exact same position that he would be in^^7^^^^ the sentencing crediL In other words, as long asasolider is charged with very seriouscrimes, there is no disincentive for Brig officials to refiain from imposing punishment prior toadjudication.218. One might argue that Brig officials will refrain from illegally punishing accuseds becausethey,themselves, might face consequences for subjecting soldiers to Articlel3punishmenL TheDefense is not aware ofany case where confinement officials were called to task for imposingArticle13punishmentonapretrial detainee. 1nfact,in(7^^7^^^^^^^.^v^^^^^.^^^49M.J.575(N-M. CL Crim. App.1998), the Court learned of an unwritten Marine policy which ^^^.^^amounted to unlawful pretrial punishment and, ^T^^T^^^^^^^, the court encouraged thoseinvolved "in the administration ofNavy and Marine Corps brigs" to "ensure that decisionswhether to place pretrial confines inamaximum-custody status are based on all relevantfactors." 7^. This footnote hardly screams outrage.219. This is not the message that we want to send either to those who punish soldiersunlawfully,or to those soldiers who are unlawfully punished. Toallow the deplorable actions ofthose at O^^^fico(not to mention those who turnedablind eye to those actions)to go uncheckedwould make an absolute mockery ofthe constitutional protections which PFC Manning shouldbe afforded. Articlel3provides that "No person,while being held for trial,may be subjected topunishment 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 thecircumstances require to insure his presence." This isacodification of the constitutionalprotection that PFC Manning enjoys by virtue ofthe Fifth Amendment Due Process Clause. ^^^^V. ^^.^^^441U.S.520(1979). The clause provides thataperson shall not be "deprived oflife,1iberty,orproperty,without dueprocessoflaw." The Due Process Clause does not provide thatone can permissibly be deprived of such liberty,so long asamilitaryjudge tacks on someillusory credit when sentencing an accused. Confinement officials do not get to trammel on anaccused'sconstitutional rights and "buy" their way out o f i t through judge-imposed sentencingcrediL Ifthe constitutional protection against pretrial punishment is to mean anything, then allcharges again PFC Manning must be dismissed with prejudice.220. In this case, PFC Manning personally and through his counsel complained for over eightmonths about the draconian conditions ofPFCManning'sconfinemenL The Government in thiscase did nothing about iL In late November 2010, the Covernment contacted the Brig about thefollowing:Defense has madearequest that PFC Manning'sstatus be reduced from POI tosome other status where he is able to have more time outside or workout in hisTbe Defense concedes that PFC Manning'sinitial classification in MA^ and under Suicide l^isl^ could have beenlegitimate based on information l^nown by the Brig at the time. Uowever, continuing to hold PFC Manning inSuicide l^iskatter^August 2010, in contravention of the mental health provider'srecommendation, amounted topretrial punishmenL107UnitedStatesv.PFC Bradley F. ManningDefense Articlel3Motioncell. My understanding is that his status determination is made based uponalistoffactors including his charges, mental health and behavior. Since the Defensehas made this request to lower his status it is something that we have to at leastaddress. Is therealesser level ofPOl that PFC Manning could be moved to. Ifthe recommendation ofthe Brig personnel is to have him remain on POI that isfine,we just need to have it addressed to the Defense counsel.^^^Attachment35.221. The Govemment'srequest shows that the Govemment could not care less whether PFCManning was actually removed from POI status ("Ifthe recommendation ofthe Brig personnel isto have him remain on POI that is fine"); itjust wanted to protect itself against an Articlel3claim. This is further evidenced when the Govemment states:ThedefensecounselisconcernedaboutPFC Manning'smental and physicalhealth in relation to his small amount oftime outside. In order to combat anypotential Article 13issues1would like to getacopy ofthe logs that show whenPFC Manning went outside and how long he stayed there. Iknow that he usuallygets 20 minutes daily butlneed to have the logs to show that."7^. Far fiom trying to remedy the situation and uphold PFC Manning'sconstitutional rights, theGovernment was simply looking for documentation that could be used to "combat any potentialArticle13issues." 7^222. Not only did the Government not do anything about it, ^ ^ ^ ^ ^ did anything about iL TheStaff Judge Advocate'sOffice did nothing about it; the O^^^tico confinement facility didnothing about it; CW04Averhart did nothing about it; CW02 Barnes did nothing about it; Col.Oltman did nothing about it; Col. Choike did nothing about iL How an American soldier couldbe left to languish in solitary confinement for nine months is incomprehensible. This case hasgiven American justice, and military justice in particular,abad name.223 ln^^^7^^^^^^^.^v.^^^^^^,55MF 88,90 91 (C.A.AF 2001),ChiefJusticeCrawfordstated:Acourt should not use its supervisory authority to impose extraordinary remediesto vindicate wrongs unless the person allegedly wronged has sought, and failed toobtain, reasonable, remedial relief through, ^.^^command channels, eitherdirectly orunder Article 138, UCMJ, 10USC^ 938; the InspectorCeneral'sOffice; or the Chaplaincy. If the command and staff offices have turnedablindeye toward an egregious situation, dismissal ofcourt-martial changes would bewarranted as an extraordinary measure.The quote could not be more apt ifspoken about the instant case. Here, PFC Manning hadrepeatedly sought remedial relief through every avenue available fbraperiod of eight months.108United Statesv.PFC Bradley F. ManningDefenseArticle 13 MotionEveryone involved "turnedablind eye toward an egregious situation." 7^. This Court cannotalso tumablind eye toward this egregious situation. Accordingly,dismissal is available as anappropriate remedy; indeed, the Defense submits it is the only appropriate remedy. ^^^^^.^^^^^^7^^ ^^^^^.^v.^^^^^^^^^,70MF 169,172(C.A.A.F.2011)(finding illegal pretrial punishmentwhere "specific complaints...should have put the commander on notice that^the accused] wasbeing illegally punished ^but] he didn't care because he thought the punishment was appropriatefor the crimes he had done overcoming the accused'spresumption ofinnocence.").224. Tothe extent that this Court does not believe that dismissal of all charges with prejudice isan appropriate remedy(which the Defense submits that it is), the Defense asks that this Courtaward at leastlO-fbr-lcredit for the egregious Articlel3 violations outlined above. In addition,the Defense requests that, depending on PFC Manning'sforum selection, this Court alsoconsider the illegal pretrial punishment in fashioning an appropriate sentence. 1n^^^7^^^^^^^.^v.7^^^^^^, 52 M.J.767 (A.F.CL Crim.App. 2000), the militaryjudge found that there had been105 days ofillegal pretrial punishmenL He determined that he would "factor in^the illegalpretrial punishment] facts and determine an appropriate sentence"^^^he would order credit forthe punishment endured.225. That at leastlO-for-lcredit is warranted is supported by ^^^7^^.^^^^^.^v..^^^^^^^^^,70M.J.169(C.A.A.F.2011). In thatcase, the accused was in "virtual lockdown" status foraperiod o f l l 9 d a y s while in pretrial confinemenL The accused was denied access to mentalhealth counseling, despite repeated requests. The militaryjudge ultimately awarded 4-for-1credit, but noted that "the court is very tempted to provide ten-for-one credit solely on the mentalhealth issue considering this installation'snotice of the seriousness of the mental health issues."In ^^^^^^^^^,the4fbrlcredit proved to be "meaningful relief since the accused was onlysentenced to confinement for six months(and thus, the confinement credit exceeded hissentence). ^^^(7^^7^^^^^^^.^v .^^^^^^^^^,2012 WF215865 (A.F.CL Crim.App.); ^^^^^.^^(7^^7^^^^^^^.^v T^7^^^^^,44 M.J.493 (C.A.A.F.1996)(awardingtenforone credit for illegalpretrial confinement in contravention ofjudge'sorder).226. In the instant case, the Defense submits that, ifthis Court is not inclined to dismiss thecharges, confinement credit of at least l O f o r l m u s t be applied against any potential sentence.PFC Manning was held in "virtual lockdown" for more than double the length oftime oftheaccused inFike inthe Brig repeatedly ignored serious mental healthconcerns^that continuing to hold PFC Manning in the equivalent of solitary confinement wasdetrimental to his mental health. The remedy in .^^^^^^^^^ meant that the accused wasimmediately released fiom pretrial confinement upon his conviction. Fikewise, any remedycrafted by the Court here must also provide meaningful relief which the Defense submitswould consist of considering the Articlel3issue in sentencing (ifPFC Manning proceeds judgealone)and awarding at leastlO-for-lcrediLCONCFUSION109United Statesv.PFC Bradley F. ManningDefense Articlel3Motion227. In light ofthe foregoing, the Defense requests this Court dismiss all charges with prejudiceowing to the fiagrant violation ofPFCManning'sconstitutional right to not be punished prior totriaF Should this Court determine that dismissal is not an appropriate remedy,the Defenserequests meaningful reliefin the form of at least lOforlsentencing credit for the 258 days PFCManning inappropriately spent in the equivalent ofsolitary confinement and, ifPFC Manningelects to proceedjudge-alone, consideration ofthe unlawful pretrial punishment issue insentencing.Respectfully submitted,DAVID EDWARDCOOMBSCivilian Defense Counsel110ATTACHMENTSThe Defense respectfully requests that this Court consider the following Attachments:1.2.34.5.6.78910.11.12.131415.1617.18.19.20.2122.23.24.25.26.27.28.29.30.31.32.33.34.35.36.37.3839.40.41.Initial Custody Classification DeterminationPsychiatrists'Weekly RecommendationsSecretary ofNavy Instruction (SFCNAV1NST)1640 9CSpecial Handling InstructionsObservation^Fvaluation(O^F) NotesClassification^Assignment(C^A)I3oard ReviewsCapL Hocter Affidavit^lCapL Hocter Affidavit^2COF Malone AffidavitMemorandum to CW04Averhart About Conditions of Confinement,5January2011Request for Release From Confinement,13January2011COF Carl R.CoffmanJr.,Response to Request for ReliefFromConfinement,21January2011PFC Manning Article 138 Complaint, 19January 2011PFC Manning Rebuttal to ColChoike'sResponse to Article 138 Complaint, lOMarch 2011thereinafter "Rebuttal to Articlel38 Complaint"]CW04JamesAverhart Response to Articlel38Complaint,24January2011CW04Averhart Response PFC Manning Rebuttal to Article 138 Complaint, 16March 2011Col Oltman Response to Articlel38Complaint,31January 2011Col.Choike Response to Article 138 Complaint,lMarch 2011Col.Choike Notification ofSeparate Filing for New Matters Raised,6April2011;Col.ChoikeResponse to PFC Manning Rebuttal to Article 138 Complaint,8April2011;PFC Manning Rebuttal^2 and Request to Consider New Matter Raised, AprillOCW02 Denise frames Response to Articlel38Complaint,7April 2011CW02 Barnes Response to PFC Manning Rebuttal to Articlel38 Complaint, lOMay 2011CW05 Abel Calaviz Investigation in Response to Articlel38 Complaint and AppointmentMemorandumJuan Carcia Final Action on Articlel38Complaint,13June 2011Affidavits ofBrig Guards Regarding Incident onl8January2011Video Recording oflncident at Oi^^^ficoI^rigonl8January2011Photo ofSuicide Prevention SmockAffidavit ofBrig Cuard Documenting Incident Where PFC Manning wasTrapped in the SuicideSmockAmnesty International FetterFaw Professors'FetterPsychologists for Social Responsibility LetterFuropeanFcaders'FetterMaterials Related to the United Nations Special Rapporteur onTorture, Mr.JuanMendezFmails between Mr. Coombs and CPT Fein related to:a)PFC Manning'sPOI status at Oi^^^fico;andbjarrangingaunmonitored official visitOi^^^fico Brig Policy onVisitationCW04Averhart Memorandum to the Office of the Regimental Judge Advocatc,lDecember 2010PFC Manning DD510Crievance Re: Conditions of ConfinementStatement from Professor Haney on Solitary Confinement and Other Documentation From theLnited States Senate Committee on the JudiciaryWork ReportsIncident Reports5-minute Observation Notes(sample)Amicus Filing from Psychologists for Social Responsibility

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