Title: Gov Resp to Def Motion to Dismiss for Unlawful Pretrial Punishment (Art 13), 17 Aug 12

Release Date: 2014-03-20

Text: UNITED STATES OF AMERICA)V.))))))))Manning, Bradley E.PFC, U.S. Army,HHC, U.S. Army Garrison,Joint Base Myer-Henderson HallFort Myer, Virginia 22211Prosecution Response toDefense Motion to Dismissfor Unlawful Pretrial Punishment17 August 2012RELIEF SOUGHTThe United States respectfully requests that the Court deny the Defense Motion toDismiss for Unlawful Pretrial Punishment (Defense Motion).BURDEN OF PERSUASION AND BURDEN OF PROOFAs the moving party, the Defense bears the burden of persuasion and must prove anyfactual issues necessary to decide this motion by a preponderance of the evidence. See Manualfor Courts-Martial (MCM), United States, Rule for Court-Martial (RCM) 905(c) (2012). TheDefense bears the burden of establishing an entitlement to sentence credit because of a violationofArticle 13. See UnitedStates v. King, 61 M.J. 225, 227 (C.A.A.F. 2005) (citing RCM905(c)(2)).'WITNESSES/EVIDENCEThe United States requests that the Court consider the listed enclosures and Charge Sheet.The United States may call the following witnesses to testify during the Article 13,UCMJ (Article 13) hearing:1. CW04 James Averhart, Brig Officer, Security Battalion, 29 July 2012 to 15 January 20112. CW02 Denise Bames, Brig Officer, Security Battalion, 15 January 2011 to Transfer to JRCF(19 April 2011)3. MSgt Craig Blenis, Programs Chief, 29 July 2010 to Transfer to JRCF4. CPT Joseph Casamatta, Commander, HHC, US AG, 29 July 2010 to 1 July 20125. Col Daniel Choike, Commander, MCBQ, 29 July 2010 to Transfer to JRCF6. LCpl Jonathan Cline, Guard/Escort, during Incident on 18 January 20117. COL Carl Coffman, Commander, USAG, Ft Myer, 29 July 2010 to Present8. GySgt William Fuller, Admin Chief, 29 July 2010 to Transfer to JRCF' The nonbinding precedent cited by the Defense discusses the standard the Defense must meet to raise the issue, notdecide the issue. See UnitedStates v. Scamlone, 52 M.J. 539, 543-44 (N-M. Ct. Crim. App. 1999) (citing UnitedStates V. Cordova, 42 C.M.R. 466 (A.C.M.R. 1970) ("To raise the issue [of a violation of Article 13], the burden ison the appellant to present evidence to support his claim of illegal pretrial punishment. Once an appellantsuccessfully does that, the burden then shifts to the Govemment to present evidence to rebut the allegation 'beyondthe point o f . . . inconclusiveness."') (emphasis added). Accordingly, the Defense, as the moving party, bears theburden to prove a factual matter by a preponderance of the evidence. See King, supra.APPELLATE EXHIBIT ( ^ ^ ^PAGE REFERENCED:PAGEOFPAGES9.CW05 Abel Galaviz, Head, Corrections Section, PP^O,PS Division, PSL Branch, 29 July2010toTransfertoJRCF10 SSG RyanJordan, Army Liaison at MCBQ, 29 July 2010toTransferto JRCF11. MSgt BrianPapakie, Brig Supervisor, 29 July 2010toTransferto JRCF12 CAPTJonathanRichardson,MedicalOfficeratTFCF,27May2010to28July2010(I^uwait)13 LTC RobertRussell, General PsychiatristatMCBQ,April 201114. Mr. JoshuaTattkersly,Guard^Escort, during Incident on18January 201115. GM2Terrance Webb, Duty Brig Supervisor, during Incident on18January 201116 LCDREveWeber, Medical Officerat TFCF (I^uwait),27 May 2010to 28 July 201017 ISG Bruce Williams, ISG, HHC, USAG,29 July 2010to PresentFACTSThe United States stipulates that the accused has been held in pretrial confinement since29 May 2010and that the accused^spretrial confinement totaled 791days as ofthe filing oftheDefense Motion, including the day offiling ofDefense Motion.^The Defense did not contest the accused^ssuicide watch status at theTheater FieldConfinementFacility(TFCF)inI^uwait. The Defense did not contest the accused^scustodyclassification at theTFCF,including the accused^s^^Ma^imum^^ (MAX) custody classification.The United States stipulates that the accused was placed in MAX custody and Preventionoflnjury (POI) or Suicide Risk (SR) status during his confinement at the Marine Corps BaseQuantico (MCBQ) Pretrial Confinement Facility (PCF) ^hereinaf^er^^Brig^^j,which totaled 264days, excluding the day he departed for the Joint Regional ConfinementFacility (JRCF) at FortLeavenworth, Kansas onI9April 2011.^The United States disputes that the accused^sconfinement at the Brig was tantamount tosolitary confinement.^^ The United States stipulates that pretrial confinement began on 29 May 2010. The accused was arrested on 27May 2010^ Throughout his confinement, the accused regularly underwent determinations to decide the conditions ofhisconfinement. The first,"classification,"set accused'scustody level.The second,"status,"determined additionalrestrictions. The accused'sstatus was either POI or SR throughout his confinement at the f3rig. SR is the equivalentofsuicide watch at other confinement facilities and in military jurisprudence. POI isalower, less restrictive statusthan SR. Classification and status are separate standards but can be based on the same factors.^ The Defense fails to provide evidence for many ofthe facts it alleges. In particular, the Defense fails to cite anyevidence in support ofits alleged facts in paragraphs9,17,24,33,34,35,36, 37,3^,43,44,47,48,50,51,52,54,60,67,71,73,and 79. The Defense provides citations for only some ofits alleged facts in paragraphs 10,11,12,13, 16, 18,25,26,27,28,29,30,31,32, 40, 45,46, 49,53,55,56, 57,59,66, 68, 69, 74, 75, 76, 77,and 78 Onlyfbrparagraphs 14, 15,19,20,21,22,23,39,41,42, 58,61,62, 63, 64, 65, 70, and 72 doestheDefenseprovidecitations for all of its alleged facts. Many of the facts alleged in the motion are apparently based on statementsproffered by the Defense withoutasource.The United States stipulates to Defense Motion^l4. MAX Custody entailed the followingrestrictions:1) Supervision must be immediate and continuous.ADD509,Inspection Record ofPrisoner in Segregation, shall be posted by the cell door and appropriate entries madeat 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 staff members shall be present when MAX prisoners are out oftheircells.5) MAX prisoners shall wear restraints at all times when outside the maximtmtsecurity area and be escorted by at least two escorts(confinement facility staff orcertified escorts, per article7406).6) Onacasebycase basis, the COBOICBCPOIC may authorise additional restraint formovement of specific MAX prisoners.Amilitaryjudgemay direct that restraints beremoved fromaperson in the courtroom if, in this judge^sopinion, such restraint isnot necessary.In all cases, the limitations of articlell02 of reference (b)shall beobserved.7) Ittmates must be under observation ofasupervisor ofthe same se^.8) Such prisoners shall be berthed in special quarters and physically checked every5minutes.Initially,on2August 2010, the accused was classified as being in MAX custody and on SR withthe following handling instructions:1) The accused will wear restraints and be escorted according to custodyclassification when leaving his cell. The ^Duty Brig Supervisor (DBS)^will benotified prior to the accused moving outside any area outside Special Quarters.Control Center Supervisor will commence facility lockdown.2) The accused is authorised recreation call^ is authorised television call^ isauthorised library call^ is not authorised to conduct calisthenics in his cell.3) The accused is authorised to makeBreceive phone calls.4) The accused is authorised weekendBholiday visitation inanoncontact booth.5) The accused is not authorised to lie on rack between reveille and taps unlesson medical bed rest. Bed rest will be verified byaprofile fiom medicalpersotmel.6) The accused is authorised to speak to occupants of other cells inalowconversational tone.7) The accused it not authorised to keep any gear inside his cell with theexception of^ one rules and regulations, one religious book, one toilet paperroll,one mattress, one underwear, and one POI blattket.8) The accused will remain in his cell during fire drills unless otherwise directedby the Brig commanding officers, operations chiefs or DBS.9) The accused will come to the position ofattention in fiont ofhatch upon entryofany commissioned officer and will remain at attention until told to carry on.The accused will address all duty persotmel(enlisted) by theirrattk at parade rest.The accused will be required to stand at the position of attention for count untilcarry on is sounded.10) The accused will eat in his cell withametalspoottBplastic utensils only.11) The accused will have sick call, medication call, and chaplain visitsconducted at cell hatch. Command and legal visits will be conducted at his cell orinanon-contact booth.12) The accused will receive correspondence material fiom 2020-2120 to includemail,legal papers, letter paper, envelopes, DD510Forms, and one pencil or pen.13) The accused will receive hygiene items in accordance with the ^plan ofthedayjonly.^^^Enclosurelat5. Afier the accused^sstatus was downgraded to POI, his custody was stillMAX and his handling instructions were:1) The accused will wear restraints and be escorted according to custodyclassification when leaving his cell. The DBS will be notified prior to the accusedmoving outside any area outside Special Quarters. Control Center Supervisor willcommence facility lockdown.2) The accused is authorised recreation call^ is authorised television call^ isauthorised library call^ is not authori:^ed to conduct calisthenics in his cell.3) The accused is authorised to makeBreceive phone calls.4) The accused is authori:^edweekendBholiday visitation inanon-contact booth.5) The accused is not authorised to lie on rack between reveille and taps unlesson medical bed rest. Bed rest will be verified byaprofile fiom medicalpersotmel.6) The accused is authorised to speak to occupants of other cells inalowconversational tone.7) The accused it not authorised to keep any gear inside his cell with theexception of^ one rules and regulations, one mattress, and one set PTgear(duringhours ofreveille). The accused will receive one POI blanket during the hours oftaps.8) The accused will remain in his cell during fire drills unless otherwise directedby the Brig commanding officers, operations chief, or DBS.9) The accused will come to the position ofattention in fiont ofhatch upon entryof any commissioned officer and will remain at attention until told to carry on.The accused will address all duty persotmel(enlisted) by their rattk at parade rest.The accused will be required to stand at the position ofattention for count untilcarry on is sounded.10) The accused will eat in his cell withametal spoon only.11) The accused will have sick call, medication call, and chaplain visitsconducted at cell hatch. Command and legal visits will be conducted at his cell orinanon-contact booth.12) The accused will receive correspondence material fiom 2020-2120 to includemail, legal papers, letter paper, envelopes, DD510Forms, and one pencil or pen.13) The accused will receive hygiene items in accordance with the ^plan ofthedayjonly.14) The accused will receivea20 minute sunshine call in the special quartersrecreation yard only while the Brig officer, Brigsupervisor, or operations chief isaboard the facility.15) The accused will wearasecond chance vest when leaving the facility at alltimes.^^^^^^.at7.A. Bael^ground of Aeeused s Behavioral Prohlems Prior to ConfinementThe accused e:i^hibited behavioral problems prior to the commission ofthe charged acts.^^^,^.^.,Enclosure2atI. Approximately three months before deploying in June 2009,theaccused^ssupervisor went to the accused^sroom to check on him afier he missed momingformation.As the accused^sNCOIC approached, the accused began screaming.The accused clenched his fists, his neck and eyes bulged, his face contorted, and he yellednumerous fimes.In response, the accused NCOIC requested the accused voluntarilyobtainapsychiatric evaluation.On 30 June 2009,the accused was scheduled for intake and mental status evaluationbased on the recommendation ofthe accused^sNCOIC because the accused had behavioralproblems. ^^^Enclosure3at93.OnI5September 2009 and before his deployment, the accused received behavioralhealth counseling. ^^^^^.at90. The mental health provider described the accused as ^^almostrigid physically and emotionally throughout the d i s c u s s i o n . . T h e accused describedhis family history,stating that both his parents were alcoholics.The provideradditionally noted that the accused had to rely on himselfafier separating fiom his mother, whichaccounted for his rigid demeanor.On 30 December 2009,the accused was referred toamental health provider because theaccused^scommand demonstrated concem over the accused^sangry outbursts and inability tomonitor and control his mood. ^^^^^.at85. During the 30 December 2009 counseling session,the accused reported he had ^^issuesoftrust ^because he hadj had less than positive ex^perienceswith previous therapists.On 23 March 2010, the accused received additional mental health counseling, ^^^^^.at81. The mental health provider noted that the accused ^^continue^dj to have difficulty allowinghimself to rela^ in session and sharing his personal feelings. ^Theaccusedjappear^edjtobefiltering everything that he says and has difficulty trusting his provider.^^Onl7May 2010, the accused receivedacompany grade Article15for assaulting anotherSoldier. ^^^EncIosure4at11. The accused struckafellow Soldier withaclosed fist on8May2010. ^^^^^^.at3. In part, the accused^spunishment included reduction to the grade ofE-3.^^^.at15. Asaresult ofthe assault, the accused presented foramental health examination.at 66 67.Enclosure3at66. CPT Critchfield conducted the mental health evaluation.During the mental health evaluation, the accused described his mood as ^^lost,^^ denied anycurrent or history of suicidal or homicidal behavior, and reported havingagood support system.^^^^^.at66.B. Pretrial Confinement in Ira^ and I^uwaitThe United States stipulates to the charges in Defense Motion^7.Charge Sheet.The United States disputes that the accused was held in conditions tantamount to solitaryconfinement.The United States stipulates to Defense Motion^8.On 27 May 2010, the accused was placed under arrest in his containerised housing unit(CHU) at Forward Operating Base (FOB) Hammer. ^^^Enclosure5at3.^. ^ ^ ^ ^ ^ ^ ^ . ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^ ^BetweenlNovember 2009 and 27 May 2010, the accused stole, purloined, or convertedover700,000 govemment documents, the majority of which were classified, and disclosedamajority ofthem to unauthorised persons duringatime of war.Charge Sheet.On 28 May 20I0and while under arrest in his CHU,the accused asked SPC Schwab tocheck his personal email, even though he was ordered not to access computers and was underconstant guard. ^^^Enclosure6atl^.^^^^^.^^Enclosure7(stating in transfer documents to theBrig that the accused ^^managed to handapiece of paper with his email address and password toanother Solider in his unit and asked her to check his email for him^^ despite the presenceofhisguards).On 29 May 2010, CPT Freeburg ordered the accused into pretrial confinement.Enclosure 8.Onl6September 2010, COL Carl Cofftnan the Special Court-Martial ConveningAuthority,requested through Col Daniel Choike, Commander, Marine Corps Base Quantico, forthe Brigtomonitortheaccused^s communications with third parties while confined in at theBrig. ^^^Enclosure9. Specifically, COL Coffman requested that all the accused^s phone calls,visitations, and mail be monitored, except any privileged communications.Thepurposeofthis request was ^^to prevent the possibility offuture disclosures ofclassified information.^^ .^^.^.^^^^^.^^EnclosurelOatl(stating that commander determined the accused continued to beathreat to national security). On17September 2010, Col Choike responded to the request andstated the Quantico Brig would complywith the request, but highlighted that the request ^^doesrepresentadeparturefiom^theBrig^sjnormalprocedttres^^ because they did not normallymonitor communications. ^^^Enclosurell.Onl7September 2010, the United States notified the Defense that ^^the United Stateswill be monitoring andBor recording all communications by the accused with another party toprevent the disclosure of classified information, except for privileged communications with theEnclosure 12Defense team, the accused^s behavioral health providers, and Brig ehaplains.^^at 2. OnI8September 2010, the Defense responded and acknowledged the monitoring.a t l . The accused acknowledged the monitoring in writing, and the Defense affirmed theaccused^sunderstanding.Enclosure 13 at 63^Enclosure 12 a t l .AsoflAugust 2011,most Department ofState information that had been compromisedtestimony ofMs. Catherine Brown at7June 2012had not yet been divulged publicly.Article 39(a)(discussing the ChiefsofMission reviewing purported Department ofState materialthat had yet to be released for potential impact).i^^^^^^^^^^^^^^C^On 28 May 2010, CPT Critchfield, based on the accused^s^^history of unstable mood andimpulsive behavior, in addition to increased stressors,^^ determined that the accused presenteda^^^hjigh risk for suicidal,homicidal,orAWOL^^ behavior. ^^^Enclosure3at62.OnlJune 2010, theTFCF placed accused in ^^Medium^^ custody afierreceivingascoreof7onDD Form 2711for his initial custody classification.Enclosure 14at 2.Afew days afier entering pretrial confinement on2June2010at the TFCF,the accusedcollapsed in his cell duringaconversation. ^^^Enclosure15at1.On 30 June 2010, the accused became uttresponsive to commands fiom TFCF persotmeland began ^^yellinguncontrollably.^^^^^Enclosurel6. The accused refused an orderto retum tohiscell fiom CAPTBalfour, the TFCF Mental Health Officer, and ^^lostcompletecontrol byscreaming, shaking, and babbling. ^Theaccusedj began to bang the back ofhis head against theadjacent c e l l . M A 3 M u r p h y , w h o was assigned to keep constant watch ofthe accused,noted the accused remained on the fioor, banging the back ofhis head and mumbling.On 30 June 2010, the accused was reclassified to MAX custody because he receivedascore of12.Enclosure 14at3. The accused ^^continued to display inappropriate behavior,^^including creatinganoose with his bed sheet. ^^^^^.^EnclosureI7at 98-103.On2July 2010, the accused was assessed again by LCDR Weber and CAPT Richardson,both psychiatrists. ^^^Enclosure3at57. CAPT Richardson noted that the accused had beenplaced on one-toone watch because he had become psychologically imbalanced asaresult ofstress.(stating that the accused suffered decompensated). CAPT Richardson also statedthat the accused ^^hadmadeanoose and had reportedly collected several items that couldpotentially be used f^r possible selfharm i.e. metaL^ ^^^^^^.^Enclosure17at 98 103. CAPTRichardson further stated that the accused^s'^^reliability in terms of ex^pressing suicidal ideationwasfelttobepoorandconceming.^^ ^^^Enclosure3at58. Ultimately, CAPT Richardsondetermined:Immediate risk ofselfharm is still considered to be elevatedBhigh due to his poorreliability,inability or lack of desire to adequately express thoughts in regards to^suicidal ideationsj,not contracting for safety,havingmadeanoose and gathereditems that had potential to harm self Additionally,his regressed behavior andpoor ego strength exacerbate the risk.^^^^^.at59. Finally, CAPT Richardson suggested that transfer to another facility with betterresources to manage the complexities ofthe accused^scondition was being considered.On4July 2010, CAPT Richardson assessed the accused, determining that the risk for selfharm or harm to others was ^^elevatedBhigh.^^ ^^^Enclosure3at55. CAPT Richardsonrecommended continuing onetoone observation and added that ^^^ajlthough^the accuseds mayseem better (i.e. he is not yelling, crying in regressed posture), he is still very fiagile and coulddecompensate quickly.^^ ^^^^^.at55.On6July 2010, LCDRWeber assessed the accused, determining that ^^^ijmmediate riskfor selfharm or harm to others is considered to be elevatedBhigh.^^ ^^^^^.at51. LCDRWeberstated that the accused ^^consider^edjsuicideasalient option when he feels stressed.^^LCDRWeber recommended continuing onetoone observation, i ^ ^ ^ ^ ^ .On8July 2010, CAPT Richardson assessed the accused, determining that the risk for selfharm or harm to others was ^^elevatedBhighB^^^^^^at 48. CAPT Richardson recommendedcontinuing one-to-one observation and segregation by himselffor safety and suicide prevention.CAPT Richardson added that ^^^ajlthough^the accuseds may superficially seem calmer,due to his poor ego strength, demonstrated poor coping mechanisms, unpredictable behavior, andpoor reliability in regards to discussing his r i s k . . . i t is recommended that^theaccusedj continuewith segregation and inacell by himself with1:1 observation for safety and suicide prevention.^^OnlOJuIy 2010, CAPT Richardson assessed the accused, determining that the risk forselfharm or harm to others was ^^elevatedBhigh.^^ i^^^^^.at45. CAPT Richardson recommendedcontinuing one-toone observation and segregation ofthe accused by himself for safety andCAPT Richardson added that ^^^ajlthough^the accuseds maysuicide prevention.superficially seem calmer, due to his poor ego strength, demonstrated poor coping mechanisms,unpredictable behavior, and poor reliability in regards to discussing his r i s k . . . i t isrecommended that he continue with segregation and inacell by himself withLlobservation forsafety and suicide prevention.^^(ellipsis in original). CAPT Richardson noted that, inresponse to the question of whether he wanted to kill himself, the accused stated,^^not rightnow,^^ adding that ^^it is always an option.^^ ^^^^^.at44. Also, the accused would not commit tothe staffthat he would not harm himself(stating that the accused would not contractwith the staff for his safety).On 12July 2010, CAPT Richardson assessed the accused, determining that the risk forselfharm or harm to others was ^^even more increased than before(moreelevatedBhigh).^^at 42. The accused told CAPT Richardson that he would take his life ifhe could because hewanted death and did not want pain. ^^^^^.at41. The accused reported that he was at peacewith the option of dying.The accused added that he wasapatientman,which indicatedto CAPT Richardson that the accused could wait until the time was right.CAPTRichardson recommended continuing one-to-one observation, line ofsight, alertness, andsegregation by himself for safety and suicide prevention. ^^^^^^.at42.On 14July 2010, CAPT Richardson assessed the accused, determining that the risk forselfharm or harm to others was ^^elevatedBhigh.^^ ^^^Enclosure3at39. CAPT Richardsonrecommended continuing one-to-one observation and segregation by himselffor safety andsuicide prevention, i ^ ^ ^ ^ ^ at39. CAPT Richardson also noted that the accused^sreliability wasstill poor.Onl6July 2010, CAPT Richardson assessed the accused, determining that the risk forselfharm or harm to others was ^^elevated.^^ ^^^^^.at36. CAPT Richardson noted that theaccused consented to communication with mental health providers at the accused^snex^t facilityfor continuity of care. ^^^^^.at35. CAPT Richardson described the accused^sfrustration withsuicide precautions and new claim that he would not harm himself i ^ ^ ^ ^ ^ at35-36. CAPTRichardson determined that the accused changed his claim that he would not harm himselfbecause he was frustrated with the suicide precautions.CAPT Richardson based hisdetermination on the accused^spoorreliability,having made two nooses, saying he would be^^patient,^^ and saying he would kill himselfifhe knew he could be successful. ^^^^^.at36.OnI9July 2010, CAPT Richardson assessed the accused, determining that the risk forselfharm or harm to others was ^^elevated.^^^^^^^.at32. CAPT Richardson recommendedcontinuing one-to-one observation and segregation by himselffor safety and suicide prevention.^^^^^.at33. CAPT Richardson described the accused^sfrustration with suicide precautions andclaim that he would not harm himself ^^^^^.at32-33. The accused ex^pressed irritation whenclaiming he would not harm himself ^^^^^.at31. CAPT Richardson determined that theaccused changed his claim that he would not harm himselfbecause he was frustrated with thesuicide precautions and wantedachange in status and detainee uniform. ^^^^^^.at32-33. CAPTRichardson based his determination on the accused^spoor reliability and inconsistency,havingmade two nooses and being deceitfttl about them, saying he would be ^^patient,^^ and saying hewould kill himselfifhe knew he could be successful.CAPT Richardson also based hisdetermination on the accused^sfiagileego,which could easily decompensate. ^^^^^^.at33.CAPT Richardson also noted that the accused^sstatus had been ^^thoughtfully considereda^ anddiscussed with LCDR Weberand CAPT Balfour^^^^^at 32 33.On21 July 2010, LCDRWeber assessed the accused, determining that the risk for selfharm or harm to others was'^^elevated.^^ ^^^^^.at29. LCDR Weber recommended continuingone to one observation and segregation.On24July 2010, CAPT Richardson assessed the accused, determining that the risk forselfharm was ^^toohigh^^ to downgrade his status toavisual check every fifieen minutes.at 23. CAPT Richardson recommended continuing suicide watch, one-to-one observation, andsegregation by himself for safety and suicide prevention.CAPT Richardson describedthe accused^sfrustration, anger, and irritability.CAPT Richardson added that^^^ajlthough at times^the accuseds may seem better, there isalarge amount ofmood liability,splitting and potential manipulation, in conjunction with low ego that contribute to the decision^to maintain thej level of precaution.^^ ^^^^^.at24.On 28 July 2010, CAPT Richardson assessed the accused, determining that the risk fi:^rselfharm was ^^high.^^ ^^^^^.at19. CAPT Richardson based his assessment on the accused^s^^poor ego strength, his significant legal and disciplinary stressors, recurrent suicidal thoughts,strong sense ofhopelessness, past gestures with preparing nooses, and stating he would not tellanyone ifhe did decide to take his life.^^ ^^^^^^.atl9.The United States stipulates to Defense Motion^9^ however, the United States does notstipulate that Defense Motion^9presents an exhaustive or complete description of the accused^smental state.The accused was transported fiom the TFCF to MCBQ on 29 July 2010.On 29 July 2010, LCDR Barrcompletedamemorandum summarising the accused^sconfinement at TFCF. ^^^Enclosurel8. The memorandum detailed the accused^sanxietyattacks and behavior problems, including running around in circles, lying down, and refttsing tostand up,which forced the cadre to carry to him to his cell.The memorandum alsostated that the accused was found curled up in cell withabed sheet tied intoanoose next to him10onthefioor.^^^^^^. The Brigreceived this memorandum and was aware ofthe accused^shistoryat theTFCF,including his suicide watch status. ^^^Enclosure7.C.TheBrig^. ^^^^.^^^.^.^^^^^^^^^^^^^^^..^^^^^.^(^^.^The United States stipulates that the Brig was very concemed about the accused^ssafety.Defense M o t i o n ^ l l . The United States stipulates thatasuicide occurred at the Brig on31January 2010. The detainee who committed suicide had been confined at the Brig since August2009 and was under the care of CAPT Hocter. i^^^ proffered testimony ofCAPT Hocter. Thedetainee committed suicide by suffocating himself on pieces of paper andBorasock. ^^^^proffered testimony of CW04Averhart, MSgt Papkie.The United States disputes Defense Motion^lO. Upon initial custody classification atthe Brig on 29 July 2010, the accused was placed in MAX custody because the accused met allfour administrative factors ofsuicide risk, physical health problem, mental health problem, andspecial quarters^ the Duty Brig Supervisor (DBS) also cited the accused^ssuicide watch formultiple months in I^uwait. ^^^Enclosurel9atI. The accused receivedascoreof5and theDBS overrode the initial screening decision based on the accused^sconfinement at theTFCF.The classification sheet also documented that the accused had mental health problems,had assaulted another person, had thought about committing suicide, had madeaplan to commitsuicide, and was taking medications for anxiety and depression. ^^^^^.at23. In particular, theaccused wrote that he was ^^alwaysplatming, never acting^^ in the comments to explain hisconsideration ofsuicide during initial processing at the Brig.Enclosure 20 at5. The UnitedStates stipulates that the accused was initially placed on SR at the Brig.The United States disputes Defense M o t i o n ^ l l . The United States stipulates to CAPTHocter^sexperience and duty title. The United States stipulates that the accused^ssuicide watchin I^uwaitwasafactor for placing him on SR at Quantico. CAPT Hocter recommended placingthe accused on SR on 30 July 2010because he assessed the accused as posingathreat to himself,requiring further mental evaluation, needing to be segregated fiom general population, havingalow toleranceoffrustration and stress, and the accused^sstatus at theTFCF. ^^^Enclosure21atI . On2August20I0,afiermeetingwith the accused on 30 July 2010, CAPT Hocternoted thathe considered the accuseda^^highrisk.^^ ^^^Enclosure3atl6. The United States stipulates thatCAPT Hocter soughtaconsultant. The United States stipulates that CAPT Hocter^sdesire foraconsultant wasafactor in originally adding COL Malone asasecond opinion.The United States stipulates that COL Malone and CAPT Hocter recommended placingthe accused on POI status on6August 2010. CAPT Hocter determined that the accused stillpresented ^^substantial risk,^^posedathreat to himself, required fttrther mental evaluation, neededto be segregated fiom general population, and hadalow tolerance of frustration and stress.Enclosure21at2. CAPT Hocter also directed that the accused not be permitted to havebootlaces, belts, and trash bags.IIThe United States stipulates that the accused^sstatus was changed fiom SR to POI o n l lAugust 20I0afierthe Classification and Assignment(C^A)Board^srecommendation.Enclosure22 at5.The United States disputes Defense Motion^I2 The United States stipulates that theaccused was observed by the Brig staffand received regularpsychiatric treatment. The UnitedStates stipulates that the accused did not receive any disciplinary reports during the three weekperiod cited by the Defense Motion. The United States disputes that the accused^sbehavior wasexemplary. The United States stipulates that the accused stated he would likeajob in the library,if possible.On 20 August 2010, CAPT Hocter recommended maintaining POI, citing his belief thatthe accused posedathreat to himself and required further mental evaluation. ^^^Enclosure21at3.The United States responds to Defense Motion ^^1419^^^^.The United Statesdisputes Defense Motion^20.On27August20I0,CAPTHocterrecommended removing the accused fiom POI and noted that COL Malone concurred.Enclosure21at4. CAPT Hocter maintained his beliefthat the accused should be removed fiomPOI untilI0December2010when he recommended placing the accused on POIbecause theaccusedwas^^underagreatdealofstress.^^^^^^^.at15. CAPT Hocter recommended removingthe accused fiom POI on 13December 2010. ^^^^^.at17. CAPTHocterrecommendedremoving the accused fiom POI untilI8January2011when he recommended placing theaccused on POI. On21January 2011,COL Malone recommended removing the accused fiomPOI. On6April2011and 15 April 2011,LTC Robert Russell recommended keeping theaccused on POI. ^^^^^.at31,33.The accused^spsychiatrists gave different recommendations throughout their treatment ofthe accused during his confinement at the Brig.On some occasions, the psychiatristsstated that POI was not required, but on others the psychiatrists stated that the accused should beremoved fiom POI.at 12,17(stating that the accused was ^^OI^ for removal fiomPOP^)^^^^.^^^^^. at 13,18(recommendingexplicitlyto remove the accused fiom POI).The United States stipulates that Defense Motion^21 represents the contents ofCAPTHocter^s7April2011affidavit. The United States disputes note3because it does not cite toaBrig procedure.The United States stipulates that Defense Motion^22 represents the contents ofCAPTHocter^s14April2011supplemental affidavit.The United States stipulates that Defense Motion^23 represents the contents of COLMalone^safftdavit.12The United States disputes that Brig staffignored the recommendations ofCAPT Hocterand COL Malone as stated in Defense Motion^24. The Brig commanding officers,who areultimately responsible for the accused^ssafety as commanders, considered the recommendationsand elected to maintain the accused^sstatus as POI for his safety.proffered CW04Averhart^ .^^^^^.^^ Enclosure 23(stating that the Brig commanding officer placed the accused onSR based on the accused^sconduct).COL Malone described the accused^sanxiety disorder as being in remission duringFebruarythrough April 2011. ^^^Enclosure2I at 27 30, 32.The United States disputes the characteri:^ation that the accused wasamodel detainee inDefense Motion^Eand^25. The United States stipulates to the content ofthe entries inDefense^25^however, the Defense omits unfavorable entries. ^^^,^.^.,Enclosure24atlO(stating that the accused was counseled for disrespect and adherence to customs and courtesies).On 23 November 2010, GySgt Blenis asked staff members about the accused^sbehaviorwhile senior staff were not present.Enclosure 22 at 46. The staffreported that the accusedhad been observed licking the bars in his cell afier taps^ sword fighting imaginary characters inhis cell^ lifiing imaginary weights in his cell, displaying actual strain and exertions and makingfaces in the mirror for extended periods oftime. ^^^^^.^Enclosure24at43.On 28 December 2010, Deputy Inspector General,MCBQ,Timothy^elek(IG) reportedthefindingsofhis inspection ofthe Brig on 27 December 2010.Enclosure 25 a t l . TheIGobserved the Brig asaclean and well-lit facility.Enclosure 25 at 2. All detainees at the Brigwere being held in the special quarters area ofthe Brig in individual cells.Due to thearrangement ofthe cells at the Brig, no detainee could see another detainee fiom his cell.TheIG also noted thatacomplaint system was in place and accessible to detainees.TheIG determined that the accused^scustody classification and status did not affect hislocation in the Brig. .^^^^^.at3. The IG^sreport further observed that the Quantico Brig^sStandard Operating Procedures (Brig SOP) prevented any detainee fiom exercising in his cell.^^^^^^.at4. Exercise presentedarisk ofharm to the accused.proffered testimony ofCW05Galaviz. The IG^sreport listed the accused^sprivileges, to include his ability to read magazines,books, or write letters^ his television privileges^ telephone privileges^ recreation call^ andcorrespondence privileges.at 4-5. Finally,theIG determined that the publicitysurrounding the accused^sconfinement was, at best, speculative and not founded on any clearand convincing facts. ^^^^^.at5.On 19 August 2010, the accused told his chain ofcommand that the guards and Brig hadtreated him ^^very professionally.^^Enclosure 26 at 2. The accused further stated that he hadreceived the Inmate Handbook, received an inbriefby the staff, and understood the InmateGrievance Process.The accused continued to receive command visits throughout hisconfinement at the Brig.Enclosure 26. The accused generally described the guards^and13facility^streatment ofhim as ^^professional^^ and ^^excellent^^ and attested to each ofthesestatements on each command visit checklist.The accused began documenting his grievance regarding his POI status inJanuary 2011.The accused filedacomplaintonaDDForm510on5January 2011,thereby complying with theBrig grievance process.Defense Motion^74. Also, the accused, though Defense counsel,filedarequest for release underRCM 305(g) on 13 January 2011.Defense Motion^75.The United States stipulates that COL Coffman denied the RCM 305(g) request on21January2011. Furthermore, the accused filedarequest for redress under Article 138, UCMJ (Article138) onl9January 2011.Defense Motion^76. The accused did not seek redress fiom themilitary magistrate.The accused filed two complaints ofwrongs under Article 138.Enclosure 27^Enclosure 28. The accused filed his first complaint onl9January 2011. i^^^ Defense Motions76. Col Oltman and CW04Averhart each filedaresponseon24 January 2011. ^^^^ Enclosure29atLEnclosure30. Col Choike filed responses onlMarch20IIand8April 2011.Enclosure 27 atl^Enclosure 28 a t l . Two of the responses to the Articlel38 complaintdetermined no reliefwas appropriate and therefore denied the request for redress.^Enclosure 30^ Enclosure 27 at 5-6^ Enclosure 28 at67. Assistant Secretary ofthe Navy Garciatook final action and determined that the accused^sclaim lacked merit on9September 2011.Enclosure31.Onl4January 2011,the accused first notified his command representative ofissues hehad with the Brig.Enclosure 26 at 50. Onl4January 2011,the accused himself raisedagrievance about his POI status with his command for the first time duringacommand visit.The accused had not raised the issue ofhis POI status in the weekly command visits thatbegan on19 August 2010. ^^^^^.atI-50. The accused raised the issue ofhis POI status againwith his command duringacommand visit on 20 January 2011. ^^^^^.at52. The accusedcontinued to describe his treatment by the guards and facility favorably.^^^^^^.(tellingacommand representative that his treatment was decent on 20 January 2011). On 28 January2011, the accused told the command representative that he understood the grievance process andhad not had to use it. ^^^^^^.at55. Throughout the months ofFebruary and March 2011,theaccused continued to report that the guards and facility were treating him well and that heunderstood but had not had to use the grievance process.at 57-81.The United States stipulates that Defense Motion^26 28refiect portions ofSECNAVINST 16409CThe United States disputes Defense Motion^29. The United States stipulates that theC^A Board consistently recommended maintaining the accused in MAX custody and on POIstatus and that the Brig Commander always approved the C^A Board recommendation. TheC^A Board based its recommendations, in part, on the accused^sbehavior during hisconfinement at the Brig.proffered testimony MSgt Blenis, GySgt Fuller, SSG Jordan.^ The Defense states that three responses denied the request for redress; however, CW04Averhart responded asarespondent. Therefore,he did not deny the request for redress because his position asarespondent did not permithimtotakesuchaction .^^^US Departmentofl^avylnstruction5800 7F(JAGMAN),Art 0302 (26June2012)14The United States stipulates that the C^A Board met weekly but did not document itsrecommendations on Brig Form 4200 afier 29 July 2010until3January2011as asserted inDefense Motion^30. However, the C^ABoard^srecommendations were documented in theBrig Commander^sweeklyprogress reports.Enclosure 22 a t l 6 3 .CW04Averhart issued weeklyprogress reports, which noted that the C^A Boardcontinued to meet.Enclosure 22 a t l 6 3 . CW04Averhart considered the recommendationof the C^A Board and madeadetermination that considered the Board^srecommendation.proffered testimony ofCW04Averhart^ Enclosure 22 at1-63. CW04Averhart^sreportsdocumented the C^ABoard^sfindings that the accused remain on POI throughout the accused^sconfinement.Additionally, CW02Bames^sweeklyprogress reports also documentedthe recommendations ofthe C^A Board that the accused remain on POI throughout theaccused^sconfinement.CW04Averhart and CW02 Bames based their determinationson multiple factors, to include,the accused^smental health evaluation, includingcounselor notes^ the accused^shistory and behaviors and any other available information.proffered testimony ofCW04Averhart,CW02 Barnes^Enclosure 22^ Enclosure 29.The United States stipulates that the C^A Board documentation shows unanimousrecommendations that the accused remain in MAX custody and POI as noted in Defense Motion^31. The C^A Board made recommendations based on the independent judgment andassessments ofthe C^A Board members.proffered testimony ofMSgt Craig Blenis, GySgtFuller, and SSG Jordan.7^^^^^^^.^^^.^^^^^.^^^^^^^^^^^^^^^^^^^^^^^^^^^.^^^^^^^^^The United States disputes Defense Motion ^^32 36. The United States stipulates thatthe accused was placed on SRon18January 2011. Onl9January 2011,the C^A Boardrecommended assigning the accused SR based on the following higher custody factors:disruptive behavior, low toleranceoffrustration, poor home conditions or family relationships,and potential length ofsentence. ^^^Enclosure32at6. The C^A Board noted thel8January20IIpsychiatric recommendation to place the accused on POI.On 20 January 2011,the accused was placed on POI by the DBS.^ ^^^Enclosure24at24-25. On21January,theC^A Board recommended continuing assigning the accused to POI.Enclosure 32 at7(noting that the accused^sstatus was POI and recommending POIgoingforward). In the remarks section ofboth the19Januaryand21 January reports, the C^A Boardnoted that the accused had previously demonstrated suicidal ideations and gestures, haddemonstrated erratic behavior onl8January 2011,hadapending 706 sanity board hearing, hadan anxiety attack, and had acted aggressivelytoward himselfin the presence ofthe BrigOIC andSupervisor. The United States stipulates that the accused relinquished his glasses and clothing,except his underwear, at night while on SR. ^^^Enclosurelat16.^ The Defense states that the accused was removed from SR on 20 January 20Hin Defense Motion^l23,but statesthe accused was removed from SRon21January2011in Defense Motion^32. The United States stipulates to 20January 20Has the date the accused was removed from SR.Enclosure 24 at24-25.15The accused had been required to wearrestraints since his arrival on 29 July 2010Enclosurelatl. The accused had been granted his full hour ofrecreation call since 10December 2010.Defense Motion^8(h). The normal procedure forthe accused to go to hisrecreation call required the accused being placed in restraints. ^^^Enclosure1at5. Theaccused had also been addressing theguards bytitle and name since his arrival.Enclosurelat2(stating the rules for addressing Brigpersotmel as initialed by the accused). Before 1000hours on18January201IandpertheBrig^sSOP,LCplTankersly put the accused in fullrestraints in preparation forrecreationcall.^^^^ Enclosure 33 a t l . GM2Webb,asDBS,wasalso present.Enclosure 34 at 2.Upon walking out ofhis cell, the accused stopped and started looking around.Enclosure33atI. In response, LCplTankersly told the accused to face the door.Theaccused complied but failed to acknowledge the order as he had been required to do since hisarrival. ^^^EnclosureIat2(defining manner in which the accused addresses the Brig staffupon the accused^sindoctrination on 29 July 2010)^ Enclosure 33 a t l LCplTattkerslytheninstructed the accused that he was to respond toaguard^sorder by replying,^Aye, aye, (rattk ofperson).The accused replied,^^No,wait,^^ because he claimed he did not understand.Enclosure 34 atL.^^^^^.^^Enclosure33at3(recounting that the accused yelled,^^No,stop,^^which caused GM2 Webb to instruct the accused to calm down). The accused had receivedabriefing during his indoctrination in August 20I0that explained the manner in which he was toproffered testimony ofMSgt Papakie. The accused had not hadrespond to theguards.difficultyunderstanding the manner in which he was to respond to the guards priorto18January2011. 1^^^ proffered testimony ofBrig staff GM2Webb explained when addressed byastaffmember that the accused must respond using rank or title and asked ifthe accused was ready tocontinue to recreation call.Enclosure 34 a t l . The accused stated that he understood.At this point, GM2 Webb, LCplTattkersly,and LCpl Cline escorted the accused to recreationcall.^Upon arrival at the recreation room, LCplTankersly ordered the accused to remain still.1^^^^^^. Afier the first order, the accused did not respond and was counseled again.Enclosure33at3. The accused responded by saying,^Aye, Lance C o r p o r a l . E n c l o s u r e 34a t l . LCpl Cline saw the accused begin to shake. ^^^^ Enclosure 33 at3.Once the restraints were removed, the accused fell to the fioor. Enclosure 34 atl^Enclosure 33 at3. GM2Webb and LCplTankersly reached out to help the accused, but theaccused refttsed their help, jumped up, and ran behind an exercise machine.Enclosure 34 atl^Enclosure33at3. While behind the machine, the accused covered his face and appeareddistraught.Enclosure 34 atl(describing the accused as mumbling at first and then yelling,^^Lm sorry GM2.Fmsorry LCpl.^^)^Enclosure33at3(describing the accused as crying andsaying ^^Leave me alone.^^).^ GySgt Fuller was called to the dormitory on or aboutlOOO hours to assist at the end of the events described.^^^ Enclosure 33 at4;Enclosure 34 a t l .^ The facility was also placed in lockdown per the normal procedure to moveaMA^ custody inmate.Motion^l8(d)16DefenseAfierthe accused ran behind the exercise machine, GM2Webb called the security chief,GySgt Fuller, who came to the recreation room. ^^^Enclosure33at3. GM2Webb instructedLCpl Cline tograbachairfOr the accused so he could sit and begin to calm down.Enclosure 34 a t l . GySgt Fuller arrived and GM2Webb explained the course of events.GySgt Fuller asked the accused ifaparticular event had triggered the accused^sactions, and theaccused replied that he did not understand why he was being treated differently, ^^^^^.atl.The accused also stated that he believed the guards were anxious, which made him anxious.^^^.atl. Upon being asked by GySgt Fuller what could be done to help, the accused replied thathe did not know. ^^^^^.atI2.GySgt Fuller asked the accused ifhe wanted to continue his recreation call, and theaccused expressed that he would like to continue, ^^^^^.atl. GM2Webb called two newescorts to continue the recreation call, Cpl Baldwin and LCpl Artilles,who relieved LCplTankersly and LCpl Cline. ^^^^^.at2. The accused completed his recreation call without anyfurther outbursts.The United States disputes Defense Motion^37. Around 1545 hours onI9January2011,MSgt Papakie asked the accused to describe the prior events.Enclosure 33 at5. Theaccused displayed confttsion, could not completeasentence, stuttered, and breathed heavily andfast.MSgt Papakie asked the accused to calm down and made the accused aware ofMSgt Papakie^sown calm demeanor. ^^^Enclosure33at5. MSgt Papakie discussed theaccused^sfall, and the accused again became anxious and stuttered.The accusedexpressed feelingsof confusion regarding the guards watching him and then became frustratedand quickly moved toward the bulkhead, acting as ifhe were going to ^^punch the bulkhead.^^1^^^^^. The accused was throwing himselfaround his cell.proffered testimony ofMSgtPapakie. The accused stated he did not understand why he was on POI.At this point,CW04Averhart arrived.CW04Averhart was awareofthe corrective dialogue between the Brig staff and theaccused.Enclosure 35 at I . CW04Averhart went to the accused to discuss the incident.CW04Averhart questioned the accused regarding reports fiom the Brig staff that theaccused had become anxious and displayed ^^laboredbreathing^^ during recreation call.Enclosure 29 at 6. The accused stated he felt that CW04Averhart was yelling at him.Enclosure33at5. CW04Averhart explained that he hasadeep voice and was not yelling.During the conversation, the accused became upset, started to stutter and fiail, and struckhimselfin his head ^^violently and aggressively.^^Enclosure 29 at 6^ Enclosure35 a t l . Afierwitnessing the accused^sactions,CW04Averhart was ^^extremely concemed over^the^outburst.^^ ^^^Enclosure35atl. Accordingly, CW04Averhart took immediate action andplaced the accused on SR to protect the accused fiom selfharm. .^^^^^^.^ Enclosure 29 at7.The United States disputes the Defense Motion^sversion of events in^37-38. CW04Averhart denied that he told the accused that ^^no one will tell ^himjwhat to do^^ orthat CW04Averhart referred to himself as ^^God.^^ ^^^Enclosure35atl(responding to the same allegationmade by the accused, through counsel,in an Article 138 complaint). CW04Averhart stated thathad the conversation occurred, he would have madeadisciplinary report for insubordination.Furthermore, CW04Averhart noted that he found the allegation ofthe ^^God^^ consent17of^nsive because, as an assistant minister in his church, he would never refer to himself as^^God.^^The United States stipulates that CW04Averhart departed and MSgt Papakietook over.The United States stipulates that Defense Motion^39isamostly accurate transcriptionofthe video with some omissions^ however, the United States specifically disputes two items.First, the United States disputes the Defense Motion characterisation that MSgt Papakie^^chuckle^djtohimself.^^ Second, the United States disputes the Defense Motion^sfailure totranscribe GySgt Blenis^scomments by simply stating he ^^refer^redj again to PFC Manning^ssuicide status I^uwait^.^^^j.^^ In this section ofthe video, GySgt Blenis discusses the accused^shaving fashioned at least one noose in I^uwait and the discrepancy between whether the accusedconstructed the noose fiom his bed sheet or sand bag ties. The audio approximately states:GySgt Blenis: Idon^t know how long afier but not too much longafier where they tookyoubacktoyourcell,putyouonsuicidewatchbecause they foundabed sheet. . .andthey were askingabout i t . . . t i e d intoanoose... ofsandbagties...soitwasn^tasheet.^ou told me that,Iasked you about that the very first timewetalked. ^ o u t o l d m e i t was withsandbag ties, youtiedyoursand bags. So going back to today^s situation compared toI^uwait^s, I thittkthisresults in . . . see, that^s why youare onsuicide watch...we have to look at this as....Enclosure 37 at 6:38 7:31.^The Defense provides no evidence that Brig staffactions inside the Brig were at allconnected with the protests that occurred at the gates ofMCBQ.On 20 January 2011,CW04Averhart changed the accused^shandling instructions,requiring him to tum over his clothing at night. i^^^Enclosure1at18. CW02 Bames continuedthis handling instruction until2March 2011. ^^^^^^ at20.On21January 2011,the accused requested to appear before the C^A Board.Enclosure 38 atLEnclosure24at 19^ Defense Motion^138. During the C^A Board, theaccused told the Board that his statement regarding suicide that he was ^^always planning, neveracting^^ may have been false. ^^^Enclosure24at19. The accused claimed that he was beingsarcastic when he wrote the statement.Also during the Board meeting, the Board told the accused that the average length ofPOIis three weeks.The Board added that the amount oftime spent had been ^^muchlonger^^for others,^^depending on the individual and the circumstances surrounding the individuaL^The Board also informed the accused that he was also receiving individualized treatmentbecause some restrictions had been reduced contrary to normal procedure based on the accused^spersonal conduct.(stating that removal ofthe accused^srestraints during indoorrecreation call while on MAX custody is not the normal procedure).^ Enclosure 37 is the second half of the video. The first halfofthe video is included in Enclosure 36.1^On24 January 2011,CW04Averhart relinquished command pursuant to PCS orders andwas replaced by CW02 Bames. Enclosure 29 a t l .On 28 January 2011, COL Malone determined that the accused presented some risk ofselfharm and that the risks ofPOl were not further detrimental. ^^^Enclosure21at25. COLMalone wrote:Remains at moderate riskof self-harm, whichisimprovedsincearrival, would not require a higher level of psychiatric care tomitigate risk at this point. Requires routine outpatient fOllow-up.Frustration tolerance has improved but still somewhat belowaverage, limited ability to express or understand his feelings.Risks and benefits ofPOl are not further detrimental at this time.The United States disputes Defense Motion^40. The United States stipulates that CAPTHocter recommended placing the accused on POI onl8January 2011. The United Statesstipulates that neither CAPT Hocter nor COL Malone recommended SRon18January 2011.The United States stipulates that Defense Motion^41represents an accurate quotation ofCW05Galavi^^sfindings^^On23February2011,CWO5 Galaviz issuedareport in response to the accused^sArticle138 complaint.Enclosure 39 a t l . CW05 Galaviz determined that CW04Averhart did notabuse his discretion byplacing the accused in MAX custody,POI status, or SRon18January2011.at 1-2. However, CW05 Galaviz noted that ^'^steps should have been taken toimmediately remove^the accuseds fiom suicide risk^^ toalower status afier the medical officerdetermined that the accused was no longerasuicide risk. ^^^^^.at2. CW05 Galavizrecommended updating the Brig^sSOP to requireadetainee^sstatus be updated toastatus belowSRafierafinding byamedical officer that SR is no longer required. ^^^^^.at3.The United States stipulates to Defense Motion^42,stipulating that the fttll text ofColChoike^sstatement was the following:Thereisnorequirementin^SECNAV1NST 16409Cjor^BrigSOPasof 1 Jul lOj that requires an immediate removal fiom suiciderisk afier the Brig mental health provider or medical officerrecommends it. ^Brig SOP as o f l J u l l O j specifically requires thatThe attachment cited by the Defense Motion is not CW05Galavi:^'sreport. Defense Motion Attachment 22 isthe Deputy Inspector General'sreportandamemo from Col Choike requestingareview of the accused'sconfinement. .^^^ Defense Attachment 22. The United States has provided CW05Galavi^'sReport as Enclosure3919the BrigCommander approve themove fiom suiciderisk to alesser status.^^Enclosure 27 at 4.The United States stipulates that Col Choike directed the Brigto update its regulation to makebindingadeterminationbyamedical officer thatadetainee is no longer consideredasuiciderisk.Enclosure 28 at 6.^^^^.^^^.^^^.^^.^^^^.^^^^^^.^.^^^^^^^^^^^.^^^^^^^^The United States disputes Defense Motion^43. On28February2011, Cpl Sandersreiterated the procedures required by the accused^sPOI status, and the accused complied byrelinquishing his clothing.Enclosure 40. The accused had been relinquishing his clothingnightly since his handling instructions were changed on 20 January 2011. ^^^Enc1osurelat18.The accused had two blat^ets at night. i^^^^^.at12.On2March2011at 1545 hours, the accused was informed ofthe additional chargespreferred against him, including the charge of aiding the enemy, withapotential maximumsentence ofconfinement for life without eligibility forparole.Charge Sheet.On2March 2011,the accused was counseled for disobedience. ^^^Enclosure24at10.PriortoTapson2March 2011,MSgt Papakie discussed the accused^srelinquishing hisclothing because the accused claimed he did not understand the procedure.Enclosure 40.Afier being asked ifhe understood, the accused stated he did not understand why he was allowedto keep his underwear ^^with the elastic waist band,which is probablythe most dangerous piece.^^^^^^^.^DefenseMotion^43. Afier^^chuckl^ingjbriefiyasiftheconversation...^werejabsurd,^^ the accused continued to insist he did not understand the instructions.Enclosure 40.MSgt Papakie inquired again stating,^^Detainee Manning, do you understand that you will notquestion the guard staffand that you will comply when told to do so and that ifyou have anyquestions about the orders or instructions given, you are to bring it to the attention oftheappropriate staffthe next working day7^^Enclosure 40. In response, the accused stated thathe understood.Immediatelythereafier, MSgt Papakie approached the Brig commandingofficer, CW02 Bames, and expressed his concems that the accused may have had recentthoughts or ideas about potential suicidal uses ofthe elastic waistband in his underwear.The United States disputes Defense Motion^44.The United States disputes Defense Motion^45. The United States stipulates that theaccused was not placed underSR. The United States stipulates that CW02 Bames madeasinglechange in response to the accused^scomment about the suicidal use ofthe elastic band in hisunderwear: CW02 Bames changed his handling instructions to prohibit the accused^shaving hisunderwear at night. ^^^Enclosurelat20.20On3March 2011,the accused was counseled for disrespect and adherence to customsand courtesies ^^^Enclosure24atl0 Later on3March 2011,the accused was also counseledfor^using the latrinejwhileafemale was present.On4March 2011,the accused was counseled for disrespect.The United States disputes Defense Motion^46. On4March2011andl1March201LCOL Malone assessed the accused as beingalow risk of selfharm and requiring routine fttrtherexamination. ^^^Enclosure21 at28-29.The United States disputes Defense Motion^47 48. The United States stipulates that theaccused tumed over all ofhis clothing, including his underwear, fiom2March2011through 19April 2011. The United States stipulates that the accused had two security blankets at night. TheUnited States stipulates that the accused receivedatear-proof suicide gown on7March 2011.The United States stipulates that the accused voluntarily stood naked at parade rest onlyon the moming of3March 2011.proffered testimony ofBrig Staff. During the morningsafier the accused relinquished his clothing and underwear, the Brig staffwould retum theaccused^sclothing and give him time to dress before moming count, ^^^profl^red testimony ofBrig staff. The United States disputes that the accused was forced to stand at attentions theaccused chose to stand naked at parade rest.proffered testimony ofBrig staff. IstLtVilliard^sstatement was incorrect.proffered testimony ofCW02 Bames. The accused wastold he did not have to stand naked at attention or parade rest.proffered testimony of CW02Bames.TheUnited States disputes Defense Motion^49. The United States stipulates to theaccused^ssi^e. On 13 March 2011,the accused placed his arms inside the suicide gown.Enclosure41. The accused stood up and attempted to remove the gown over his head withoutundoing the hook and loop tape (Velcro)as he normally would, and was apparently unable toremove his arms. ^^^Enclosure41. The accused stated that he disliked the suicide gown.The United States stipulates that two guards entered the accused^scell tofieehim.On15March 2011,the accused rubbed his glasses against the bridge ofhis nose, usinghis glasses as tweeters.Enclosure 42 (reporting that the accused claimed he used his glassesas tweeters to get rid ofhis ^^unibrow^^).On24 March 2011,GySgt Blenis described that the accused as being guarded sincelMarch 2011. ^^^Enclosure24at6. GySgt Blenis attributed the change in communication andaecused^smore somber demeanor to the accused^sreceipt of the charge sheet and Article 138response on2March 2011.GySgt Blenis further noted that the accused stopped takingmedication on4March2011and assessed the accused^sbehavior as being comparable to theaccused^sbehavior in Kuwait.GySgTBlenis communicated his concems regarding theaccused^sdemeanor to COL Malone. ^^^^^.at5.Around 25 March, the accused voluntarily removed eighteen people fiom his mail andvisitation list, including his father. ^^^^^.at67.21On 28 March 2011, the accused became upset afier being escorted to an interview withhis counselor. ^^^^^.at4. During the interview,the accused ^^appeared extremely arrogantwhen asked about ^brain teaser type pu^^lesj,^^ stating that they were ^^below my leveL^^^^^^^.at 4. On15March 2011,COL Malone noted that the accused could benefit fiom intellectualstimulation ofgames, books, and magazines. ^^^^^^.at9. Asofl6November2010,theBrigEnclosure 22 at 44. Theapproved the accused^ssubscription to Scientific American.accused read and continued to receive the magazine. ^^^Enclosure24at9.On6April2011and 15 April 2011,LTC Russell, who acted as the accused^spsychiatristin COL Malone^sabsence, recommended continuing POI. ^^^Enclosure21at3I,33. LTCRussell stated that the accused^semotional and behavioral presentation he observed variedsignificantly fiom that observed bythe facility staffOn6April 2011,LTC Russellwrote:Facility staff note increased social isolation, paucity of wordsduring verbal interactions, poor eye contact, and reduced decorum.Facility staff state behavior is atypicalofthatobservedbyotherittmates. Facility staff note ^.^^^j possible correlation betweenreceipt of additional charges, 706 proceedings and his changedbehavior. History of severe adjustment disorder with suicidalthoughts. Due diligence for self harming behavior is notuttreasonable given his change in behavior. Necessary reassuranceof safety is difficult to achieve if SM chooses not to communicatewith facility staff. lean not recommend changing hisPOI statusgiven his behavioral change.^^^^^at31. On 15 April 201LLTC Russell wrote:Plan: (1) Servlcemember creatingdistancebetweenhimself andstaff. Despite reasonable expectations SM can not comply toprovide staff with reassurance of safety. Will likely find reasonswhich prevents ^.^^^j him fiom complying. Will blame staff for hisnon compliance due to^^unreasonable^^ perception of uttreasonabledemands. Will likely find other ^'^unreasonable^^demands despite^theBrig^sefforts.j(2) Discussed with SM what he needs to do tocomply. ReplaceresponsibilityontheSM. Recommendations:Continue with current plan and encourage compliance. Behaviorwill likely persist.^^^^^^.at33.The United States disputes Defense Motion^50asasummary.^. C^^^^^^^^^^^^^^^^.^.^^^^^^^^^^^^^^^^^^^.^^^^^^^^^^^^^^^^^22The United States disputes Defense Motion^51. The United States stipulates that ColOltman attended meetings with Brig staff.The United States disputes Defense Motion^52. Col Oltman did not order the Brigpersotmel to keep the accused on POI indefinitely.proffered testimony of Col Oltman. TheDefense has provided no evidenceof any order, but has merely argued that certain statementswithout context constitute an order, i^^^ Defense Motion^52.Col Oltman communicated that the accused^slong-term care consisted ofamedicalprofferedcomponent andasecuritycomponent,which affect classification decisions.testimony of Col Oltman. Col Oltman^scommentsrefiected his concem that the accused notharm himself.TheUnited States disputes Defense Motion^53. ColOltman^scommentsrefiectedhisconcem that the accused not harm himselfwhile in pretrial confinement.TheBrigheldmeetings to discuss the accused^sstatus because his confinement received media attention.The United States disputes Defense Motion^54.The United States stipulates that Defense Motion^55refiects CAPT Hocter^simpressions.The United States disputes Defense Motion^Iand^^ 56 60 because they are irrelevant.The accused is charged with compromising hundreds ofthousandsofprotected documents.Charge Sheet. Therefore, the accused^sconversations were and continue to be monitored toprevent him fiom compromising additional information. ^^^Enclosure9. Mr. Mended informedthe prosecution that he was willing to waive his request thataconversation with the accused notbe monitored.MAJ Fein atl7July2012Article 39(a). The accused declined to meet Mr.Mended and have the conversation monitored. Noneoftheparties mentioned in Defense Motion^^56 60 met with the accused nor had personal knowledge ofthe accused^sconfinement. TheUnited States protected the accused^sprivacy and did not publiclyrelease information regardinghis mental health.Defense Attachment32atI-2.^^The United States stipulates to the contents ofthe entries in Defense Motion^56^however, not all ofthe signatories to Defense Attachment 28 are law professors or any kind ofprofessor.Defense Attachment 29 (noting Michael Bertrandasasignatory).^^ TheUnited States stipulates to the contents ofDefense^57-59. The United States stipulates toDefense Motion^60 61. The United States stipulates to the content ofDefense Motion^62-66but not the legal analysis ofMr. Coombs^emails. The accused refused to add Mr. Mended orCongressman I^ucinich to his authorised visitor list. The accused had visitation privileges.The citation refers to the first two pages after the cover sheet of the Defense Attachment32.The University ofl^orthCarolina'swebsite describes Mr. Bertrandasathird year graduate student.ChapelHill Philosophy,available at http:^^philosophy.unc.eduBpeople^graduatestudentsBmike-bertrand [last visited 15August2012j.23Enclosure 22(documentingtheaccused^svisitors)^Enclosure1at5(authori^ingvisitors starting2August2010)The United States disputes Defense Motion^67. The United States stipulates that theDefense sent emails regarding the accused^sconfinement.The United States disputes Defense Motion ^^68 69. The United States stipulates thatDefense Motion ^^68-69 represent accurate transcriptions ofthe emails described.The United States disputes the conclusions stated in Defense Motion ^^70 72.The United States disputes Defense Motion^73 In particular, the United States disputesthat the accused was in the equivalent ofsolitary confinement for almost eleven months.The United States disputes Defense Motion ^^74 75. COL Coffman continued toaddress the accused^sPOI status. ^^^Enclosure43.The United States stipulates to Defense Motion^76.The United States disputes Defense Motion^77-78. The accused^scomplaints wereconsidered in full in the final action on the accused^sArticle 138 complaint. ^^^Enclosure31.Assistant Secretary Garcia determined that the accused^sclaims lacked merit.^^.C^^^^^^^^^^.^^C^^^^^^^^The Brigprimarily housed pretrial detainees during the accused^sconfinement. ^^^BrigSOP atl(referring to the Brig asa^^pretrial confinement facility). All detainees were confinedin individual cells.Enclosure 25 at 2. The number ofdetainees confined at the same time asthe accused varied during his confinement, averaging approximately fifieen other detainees.proffered testimony ofMSgt Blenis. The accused was not the only detainee placed in MAXcustody at the Brig during his confinement.The accused had phone privileges during his confinement.Enclosure 22(documenting the accused^sphonecalls)^Enclosure1at5(authori^ing phone privileges starting2August2010). The Brig purchasedahandsfiee headset for the accused to use to place phonecalls.Enclosure 44. The accused had visitation privileges during his confinement.'^Enclosure 22(documenting the accused^svisitors)^Enclosurelat5(authori^ing visitationprivileges starting2August 2010). The accused had television privileges during hisconfinement.Enclosure 22(documenting television call)^EncIosureIat5(authori:^ingtelevision privileges starting2August 2010). The accused had correspondence privileges duringhis confinement.Enclosure 22(documenting mail received and sent)^Enclosure1at5(authorising correspondence privileges starting2August 2010). Theaccused^scorrespondencetime was increased fiom one hour to two hours at 27 October 2010.Defense Motion^19(p).The United States has included the audio recordings ^om the accused'svisits as Enclosure 49. The United Statesis in the process ofobtaining transcripts ofthese recordings. The United States will produce the transcripts for theCourt and Defense when they are completed.24The accused had library privileges.Enclosure 22(documenting books read by the accused);Enclosurelat5(authori^ing library privileges starting2August 2010). Initially,the accusedwas permittedasingle personal book.Defense Motion^l61(c). Byl8March 2011,theBrighad expanded the accused^saccess to books, permitting the accusedl0-12personal booksandasubscription to Scientific American,amonthly magazine. ^^^Enclosure24at9.The accused received sunshine call and laterrecreation call during his confinement.Enclosure 22^ Enclosurelat 6, 15. Initially,the accused received 20 minutes of sunshine call ashis recreation call.Enclosure 22 atl-50;Enclosure1at 6. The accused did not havesunshine calls on cold days beforelODecember 2010.proffered testimony ofBrig staff.The Brig increased accused^srecreation call to one hour onI0December20I0based on the Brigcommanding officer^sassessment ofthe accused behavior.proffered testimony ofCW04Averhart; Enclosurelat 15. The accused was authorised to speak to occupants ofother cells inalow conversational tone. ^^^Enclosure1at5(authori^ing speaking inalow conversationaltone starting2August 2010).The accused was fiee to use the provided exercise equipment during recreation call butchose to walk almost always inafigure-eight pattem.proffered testimony ofBrig staff.The accused^scell had natural light fiomaskylight immediately outside his cell,andfiom the wall ofwindows at the end ofthe hallway,which contained approximately eight cells.The light fiom the skylight and window brightened the hallway and cells so that noartificial light is needed to move throughout the area during daylight hours.The Brig did not permit any detainee to sleep during work hours to ensure good order anddiscipline. .^^^ proffered testimony ofCW04Averhart;CW05Galavi:^.The United States stipulates that Defense Motion^l4is an accurate reproduction of thecited section ofSECNAVINST 16409C The United States stipulates that CW04Averhart, theBrig commanding officer,added the listed characteristics. The characteristics quoted by theDefense MotionarerequiredforSuicideRisks^^^SECNAVlNST 16409CArt 4205(5)at414The United States stipulates that Defense Motion^15describes the restrictions forMedium Custody In.'^ During the accused^sconfinement at the Brig, no detainees were assignedto dormitory quarters.Enclosure 25 at 2.The United States stipulates to Defense Motion^l6.The United States disputes Defense Motion^17. The accused was placed in specialquarters because he was at risk for selfharm.Enclosure 29 at 2. All detainees were housedin the same area ofthe Brig.Enclosure 25 at 2."Medium" custody does not exist as a classification within SECNAVINST 1640.9C. Instead, SECNAVINSTI640.9C establishes a custody classification scheme that includes, MAX, Medium Custody In, Medium CustodyOut, Minimum Custody, and Installation Custody. See generally SECNAVINST 1640.9C Art. 4202(2) at 4-7 to 49.25The United States disputes Defense Motion^l8 The United States stipulates to DefenseMotion^l8(j),(l). The accused^sconversations were monitored due to ongoing nationalsecurity concems. ^^^Enclosure9. MAX detainees are not permitted work duty outside thecell.Enclosure 29 at 2. All detainees at the Brig were prohibited fiom sleeping during workhours.proffered testimony ofMSgt Blenis.The United States disputes Defense Motion^l9. The United States stipulates to DefenseMotion^l9(a),(b),(d),(k),and(p). The light outside the accused^scell was described as dim.Enclosure 25 at 4. The dim light was an emergency light that could not be tumed off.proffered testimony ofBrig staff The United States stipulates that the accused was providedasafety mattress for prevention of suicide. The United States stipulates that the accused wasprovidedatearproof security blanket for prevention of suicide. Theaccused^spersonaliternswere stored inacell adjacent to the accused^scell; the Brig stored personal items for detainees inadjacent cells based on security concems.proffered testimony of GySgt Fuller, CW05Galaviz. Paper and exercise in the cell posedapotential risk and was limited and restrictedaccordingly;adetainee could force himself to choke on paper or injure himself performingcalisthenics in the cell.proffered testimony ofCW05Galavi:^. There is no evidence theaccused was diagnosed witharash or toldamedical provider that he hadarash.The accused did not assault any staffor detainees at the Brig.Brigstaffproffered testimony ofD.^RCFThe United States stipulates to Defense Motion^79.During the accused^sconfinement at the JRCF,his command continued to sendrepresentatives to visit him.Enclosure 26 at 82-86. The accused continued to say that hereceived good treatment fiom the guards, understood the grievance process, and had not had touse the grievance process.OnlODecember 2011,the accused attacked another detainee. ^^^Enclosure45atI2.The accused struck the other detainee repeatedly withaclosedfist.The accused initiatedthe assault without physical provocation.Enclosure 46 at 9:35 9:45. The accused stated,^^Fmnotgoodatdefendingmyself Fm just saying it^snot as much of whatlsupposed to havedone, but moreofafailure to what somebody supposed to have done.^^Enclosure 45 at3.The accused was found guilty of assault consummated by battery and disorderly conductby the JRCF Discipline and Adjustment Board. 7^. at 2. The Discipline and Adjustment Boardrecommended 15days segregation and I4days extra duty.The Defense did not contestthese restrictions on the accused^sconfinement.LEGALAUTHORITY AND ARGUMENT26Article 13,UCMJ,sets forth twogeneral prohibitions:1)imposition of punishment priorto trial, and2)conditions of arrest orpretrial confinement that are undulyrigorous ^^^^^^^^^^^^^^^^^.^^^^,61M.L 225,227 (C.A.AF 2005)Navyregulations grant confining authoritiesand, in particular, commanding officers ofconfinement facilities, discretion to set the conditionsofadetainee^sconfinement.^^ Accordingly,the confining authorities at the Brigmadereasonable, individualized determinations about the accused^sstatus and classification based onlegitimate govemment interests, to include ensuring the accused^ssafety,protecting nationalsecurity,maintaining good order and discipline at the confining facility,and ensuring theaccused^spresence at trial. The restrictions were not unduly rigorous because they were relatedto legitimategovemment interests. Moreover, conditions similar to those experienced bytheaccused have been held lawful. The Defense contends that the Brig acted arbitrarily or with anintent to punish because the Brig did not follow every recommendation ofthe accused^spsychiatrist. However, the Defense theory contradicts the regulatory command structure at theBrig. Under Navy Instructions, the psychiatrist lacks authorityto make the ultimate decisions ofadetainee^sconfinement because the psychiatrist is an adviser to the Brig commander; however,the psychiatrist^sdetermination thatadetainee should be removed fiom SR is binding underNavy Instructions. Therefore, the accused^sconfinementonlyviolated Article I3by failing toremove the accused fiom SR afier the psychiatrists^ reconm^endationson6August2010and18.Ianuary2011. Thus, the accused is entitled to no more than seven days of confinement eredit.^^^SectionII(C)(D),^^^I. ARTICLE 13, UNIFORM CODE OFMILITAR^JUSTICEThe first prohibition involvesapurpose or intent to punish, which is determined byexamining the intent of detention officials or by examining the purposes served bythe restrictionor condition, and whether such purposes are ^^reasonablyrelated toalegitimate govertmtentalobjectiveB.^^^^^^^^^^,441US 520, 539(1979); ^^^^^^^^^^^^^B^^C^^^^^^165(C.A.A.F.1997)(stating imposition ofpunishment or penalty prior to trial entails purpose orintent to punish an accused before guilt or innocence has been determined). Conditions andrestrictions that are arbitrary or purposeless may also raise an inference ofpunishment. ^^^^^^^^^^^^.^^^.^,28M.J.214,216(C.M.A.1989). For Article 13,questions ofpurpose and intentare questions of fact.atl65(citing^2.02,ALI Model Penal Code, reprinted in ALI^^^^^^^^^^C^^^^^^C^^^^^^^^^^^.^(Partl)225-53 (I985)).Additionally,courts consider whether the accused complained or was singled out bydetention officials. ^^^.B^^^.^,28M.J.at2I6. Placing the accused under the same limitations asall persons confined at the facility does not demonstrate an intent to punish. B^. Similarly,violations ofregulations by govemment officials conceming pretrial confinement do notconstitute p u n i s h m e n t ^ 7 ^ ^ ^ ^ ^ . ^ , 6 8 M . J . 2 5 2 , 2 5 3 (C.A.A.F.20I0).ImportantIy,correctiona1 facility commanders, not prisoners, should determine the conditions ofThe Brig at MCB^wasaNavy facility. Accordingly,it was subject toU.S.Department ofNavy Instruction1640 9C (SECNAVINST 16409C)(3 January 2006) [hereinafter Navy Instructions] This Response willrefertoSECNAVINST 16409Cas "Navy Instmctions" andcitetoSECNAVINST 16409C The BrigatMCB^hadasetof standard operatingprocedures based on SECNAVINST 1640.9C..^^^^uantico Base PCF Orderl640.1C,Marine Corps Base quantico PreTrialConfinementFacility Standard Operating Procedures (Brig SOP)(l July2010) TheUnitedStatesenclosedSECNAVINST 16409CasEnclosure47andtheBrigSOPasEnclosure4827confinement ^^^^^^^^^^^.^^.^^^^^'^^^,20 M.J.90,96(C.M.A 1985).^^Underno circumstanceshould the prisoner be the one to dictate the terms and conditions ofhis confinementB^7^. at 96(emphasis in original).^This should always be lefi up to the correctional facility commandersand the respective services.^^The second prohibition precludes imposing unduly rigorous conditions during pretrialdetention^^^^^^^^^^^^^^.^^..^^^^^^^^^,70M.LI69,I74(CA.A.F2011).Conditionsthatare sufficiently egregious or excessive may constitute punishment ^^C^^^^^,47MJ.atI65(citing 77^^^^.^^^^^^^^^^^,516U.S.99,109 13 (1995)) As with determinations regarding anintent to punish, conditions related to legitimate govemment interests are not more rigorous thannecessary. ^^^^^C^^^^^,47 M.J.at167 (stating that ensuring safety and presence at trial arelegitimate governmental interests). In reviewing the conditions, courts defer to the decisions ofconfinement authorities in light ofthe information available at the time of decision, ^^^^^.at167-68 (stating that subsequent good behavior does not justify revising the facts at the time ofthe decision by the brig authority).Conditions of confinement that violate service regulations do not createa^^^.^^ right tosentencing credit. ^7^^^^.^, 68 M.J. at 253. However, brig officials who abuse their discretionby violating applicable service regulations may violate Article 13,thereby allowingaservlcemember to request confinement credit underRCM 305(k).RCM305(k)istheprincipal remedy for Article 13 violations; however, courts may consider other relief wherecontext warrants. ^^^.^^^^^^^^^,70M.J.at175. Violations ofArticle 13 require meaningfttlreliefbe granted to the accused, but the reliefgiven must not be disproportionate in the contextofthe case, including the harm suffered bythe accused and the seriousness ofhis offenses.^^at178.II NAV^INSTRUCTIONSVESTBRIGCOMMANDINGOFFICERWITHAUTHORITYTO DETERMINE CONDITIONS OF ACCUSED^S CONFINEMENTSECNAVINST 1640.9C (Navy Instructions)and the Brig SOP vest decisionmakingauthority in the Brig commanding officer fOr determining MAX custody and POI status. Boththe Navy Instructions and the Brig SOP define the advisory rolesofboth the C^A Board andmedical officers. Furthermore, Navy Instructions and the Brig SOP define all exceptions to thegeneral rule that the Brig commanding officer retains decision making authority,thereby limitingstaff decision-making authority onlyto situations defined bythe regulations.SECNAVINST16409CArt 4205(5)(d)at416;SECNAVINST 16409CArt 7205(4)(c)(5)at721;BrigSOPArt 6005(1)(g)(21)(c)(5)atl04;^^^^^^^SECNAVINST 16409CArt 3201 at38(statingthatthe Brig commanding officer has overall responsibility for the confinementfacility),^^^ BrigSOPArt.l002(1)(a)atlO(stating that the Brig commanding officer has immediate commandresponsibilityforallphasesoftheBrig^soperation)^^^^SECNAVf^ST 16409CArt. 10101 at10-1(stating that the medical officer advises the Brig commanding officers in matters pertainingto the well-being of detainees),Brig SOPArt.I002(l)(c)atlO(stating that the medicalofficer shall be responsible to the Brig commanding officer).Courts defer to confinement officials and review their actions for abuse of discretion.^^^^^^^^^^^.^^.B^^^^^^,65M.J.18,24(C.A.A.F.2007). By necessity,Navy Instructions vest28discretion in Brig commanding ofltcers to make classification decisions based on the factsknown atthattime.^^^^^C^^^^^,47MJatI68 69 (interpreting SECNAVINST 1640.9A,aprior version ofSECNAVE^ST 1640.9C). Courts review this discretion for an abuse thatmanifests intoarestriction that is arbitrary or unrelated toalegitimate goverttmental objective.^^^^^7^^^B^.^,68MLat257n8Moreover,adetainee cannot dictate the terms ofhis confinement because hisconfinement is within the discretion ofthe confinement authorities. i^^^^^C^^^^^,47M.J.at168. The detainee cannot question the discretion ofthe confinement authorities by arguing thataless restrictive confinement would have necessarily achieved the same governmental objectives.^^^^^^.(citing^^^^^^^^,20 M.J.at 90) (^Appellant complained throughout his confinement ofhis conditions, either personally orthrough counsel, and has argued that the lesser status ofmedium custody would have ensured his presence at trial. However,aprisoner is not permittedto dictate the terms and conditionsofhis confinement. Such terms are within the discretion ofthe confining authorities.^^). Here, the Brig commanding officers did not abuse their discretionby determining that the accused should remain in MAX custody and POI based on factors listedin the Navy Instructions and facts known to them at the time ofmaking the decisions.A. Initial Classification and Assignment ProperThe Brig legally and properly placed the accused on MAX custody and SR afier hisindoctrination. The Defense concedes that the accused^sinitial classification was legitimate.Defense Motion^217n26;^227MAX custody is appropriate for prisoners requiring special custodial supervision.SECNAVINST 1640.9C Art. 4201(2)(a)at47. Adecision to assignadetainee MAX custodyassaultive behavior, disruptive behavior, serious military criminalmay be based on,record(convicted or alleged), low tolerance of frustration, poor home conditions or familyrelationships,amental evaluation indicating serious neurosis or psychosis, and potential lengthofsentence^^^SECNAVINSTI6409CArt 4202(5)at410 TheaccusedreceivedMAXcustody because the DBS overrode the points total based on the accused^smeeting alladministrative factors listed on DD Form 2711and the accused^ssuicide watch status at theTFCF. ^^^EnclosureI9atI. The DBS,who makes the initial custody classification decision,possessed the authority to override the initial point score. ^^^EnclosureI9atI(containingpretyped space dedicated to noting and explaining overriding decisions);^(BrigSOPArt.6004(5)(c)(5)atI00 (granting the Brig commanding officer authority to override decision ofC^A Board). The accused hadarecord of assaultingafellow Soldier, poor home conditions andfamily relationships, mental health evaluations indicating the accused wasathreat to himself,and facedapotentially long sentence. Accordingly,where the accused wrote that he was^^always planning, never acting^^ about considering suicide, the DBS properly and within hisauthority assigned the accused MAX custody based on the accused^sprior history of suicidewatch,which was based on previous psychiatric evaluations, and acts by the accused, includingconstructing at least one noose.Enclosure 20 at5;Enclosure19atl. Subsequent acts bythe accused do not revise the facts as they existed and were known to the Brig authorities at thetime ofclassification. ^^^^^C^^^^^,47M.J.at168.29The accused^sinitialSR determination was also proper. Detainees who have attemptedor considered committing suicide may be placed in the SR category.SECNAVINST1640.9c Art.4205(5)(b)at415. Given the information known to the Brig staffwhen theaccused arrived, placing the accused on SR was the only prudent action. CAPTHocter^srecommendation shortly thereafier to place the accused on SR also supports the decision to placethe accused on SR upon his arrival.B^ Decision to Maintain MAX ProperCustody classification establishes the degree ofsupervision needed for control ofthedetainee. ^^^SECNAVINST 1640.9CArt 4201(l)at46 The Navy Instructions recogni^ethatdetainees present wide variations in personality and mentality and grant authority to shapecustodyappropriately^^^SECNAVINST 16409CArt 4201(l)at4 6; SECNAVINST1640.9CArt.4201(2)(a)(6)at47(grantingCOBOICBCPOICtheauthoritytoapproveadditiona1restraint fOr movement of specific MAX detainees on acasebycase basis). The Brig SOPacknowledges certain detainees will require additional supervision based on personalitydisorders, risk ofviolence, or other charactertraits. ^^^BrigSOPArt.6004(5)(c)(13)atl02. Inparticular, detainees who posearisk to life, property,or national security should be placed inMAXcustody^^^SECNAVINST 16409CArt 4202(2)(a)at47;DefenseMotion^27The C^A Board continues to reviewadetainee^scustody classification using objectivereclassification procedures^^^SECNAV1NST 16409CArt 4204at413;BrigSOP Art6004(5)(c)(10)at100. The Brig commanding officer, however, ultimately decidesadetainee^scustody classification; the Brig commanding officer considers but is not bound by thefindingsoftheC^A Board. ^^^BrigSOP Art. 6004(5)(c)(5) at 100(notingthatthe Brig commandingofficer determines whether the C^ABoard^srecommendation on reclassification should beoverridden). Tomakeacustody determination, the Brig commanding officer considers objectivefactors and does not rely solely on the classification factors,which are merely indicators.SECNAVlNST 16409CArt 4202(7)at411to412(^Ttmustbeunderstoodthe^classificationfactorsjare only indicators, not ironclad rules; therefore, the COBOICBCPOIC shall considerobjective based overrides where applicable. An evaluation ofall phases ofthe prisoner'sperformance shall be made prior to each custody change.^^). Therefore, the regulations grantwide authority and discretion in the Brig commanding officer to make custody determinations.In the instant case, the C^A Board reviewed the accused^scustody classification everyweek and madearecommendation each week to keep the accused in MAX custody.Enclosure 32. The C^A Board consistently noted the accused^spoor home conditions or familyrelationship, the potential length of sentence, and the accused^spreviously demonstrated suicidalideations and gestures in assessing the accused as requiringaMAX custody assignment.Enclosure 32 at 2. Additionally,theC^A Board noted erratic behavior on 28 December20I0andI8January201Iwhere the accused stated that the elastic band in his underwear wasdangerous.Enclosure 32 at 2, 6. The accused also went before the Board and claimed thathis prior statement about suicide that he was ^^always planning, never acting^^ may have beenfalse and was made sarcastically. ^^^Enclosure24at 20; Enclosure 32 atlO. Given theaccused^sstatements, the Brig authorities could not reasonablyrely on the accused^sselfreporting that he was not at risk of selfharm. Based on these factors, among others, the C^A30Board consistently recommended the accused be assigned MAX custody.Enclosure 32atlO. No evidence has been presented that any Board member colluded, predetermined, or wasordered to make theirrecommendation to support the Defense^sspeculation. The accused,having been charged with compromising hundreds ofthousands of protected documents,presentedathreat to national security. In tum, the Brig commanding officers accepted therecommendation and determined that the accused should remain in MAX custody forthefollowing week.C.FirstSRStatusOn6August 2010, CAPT Hocter recommended downgrading the accused^sstatus fiomSRtoPOI. Navy Instructions state that ^^^wjhen prisoners are no longer considered to be suiciderisks byamedical oflicer, they shall be retumed to appropriate quarters.^^ SECNAVf^ST1640.9c Art.4205(5)(d)at416.OnllAugust20I0,theaccused was moved fiom SRtoPOI.Although the Navy Instructions do not specifyadeadline by whichadetainee must be movedfiom SR toalower status, the United States concedes that the change should have been madebeforellAugust2010^^^^^7^^^^.^,68MLat254In ^7^^^B^.^, the detainee was placed in MAX custody and inasuicide watch cell onsuicide watch under conditions that paralleled those ofthe accused.^^7^^^^.^, 2007 WL 4461204 ( A F C t C r i m A p p 2007) at ^6(describingtheconditionsofconfinement as determined in the lower court^sfindings of fact);^^7^^^^^^^^,56 M.J.671,678-79(A.Ct. Crim.App. 2001). The cell measured approximately5^10^^ by 8^and was lighted24hoursadayuntilanight light was installed in the cellapproximately174days into the accused^sconfinement.^^7^^^^^.^, 2007 WL 4461204 at ^6.(stating that the night light was installed approximately two weeks before trial, which concluded188 days afier the accused was placed on suicide watch). The detainee woreasuicide gownwhile on suicide watch.Also, the detainee lacked many personal items, includingaradioand CD player. ^^^^^7^^^^^.^, 68 M.J. at 257. Additionally, the detainee in ^7^^^^.^ enduredconditions more strict than the accused in the instant case. The detainee^scell was monitored byacamera. 7^. The cell containedabed that measured 5^10^^,and the detainee was approximately6^3^^talk^^The conditions did not violate Article I3;however, the confinement facility^sfailure toprovide the accused withapsychiatric evaluation every 24hours, as required by Air Forceregulations,violated Article 13.at 258 (awarding additional 86 days of confinementcredit and deciding that the conditions of confinement servedalegitimate,nont^unitivegovernmental interest). The confinement facility had also violated Articlel3by failing tocomply with an Air Force regulation requiring removal ofadetainee fiom suicide watch upon(upholding lower court^sruling that the violation ofrecommendation ofapsychiatrist.the Air Force regulation entitled the accused to confinement credit). The accused was onlyawarded oneforone credit despite the six month duration ofthe violation.The Court ofAppeals for the Armed Forces(CAAF) upheld the one-forone credit because the restrictions ofthe confinement were related to the accused^ssuicide watch status.31The6August2011psychiatric evaluation supports concems that the accused was at riskof selfharm because the psychiatrist assessed the accused as beingasubstantial risk andathreatto himself ^^^Enclosure2Iat2. Moreover, the conditions ofSR were directlyrelated topreventing the accused fiom engaging in selfharm,which serves the legitimate, nonpunitivegoverttmental interest of ensuring the accused^ssafety. There is no evidence of any intent topunish the accused in this case at any time, and Brig officials were concemed with protecting theaccused. Thus, the credit should be no more than one for-one in accordance with ^^7^^^^.^,whichdecidedaremedyfbrtwoArticle 13 violations. Aeeordinglv,the United Statesstimulates that the accused should receive credit of no more than five days for his being onSRfrom6August2010untilllAugust2010^^^^^7^^^^^,68MLat258 (^antin^atotalof274days confinement credit,which excluded the final day,for failure to remove accused fiomsuicide watch fiom31May 2004 until2March 2005). The accused^scredit should be calculatedbased on the following days: 6,7,8,9,andlOAugust2010.D^ Second SRStatusDetainees who have threatened suicide or have madeasuicidal gesture may be placed onSR^^^SECNAV1NST 16409CArt 4205(5)(b)at415 Thedetainee^sclothingmayberemoved when necessary^^^SECNAVINST 1640.9C Art. 4205(5)(b)at416.NavyInstructions do not require preapproval to placeadetainee on SR; however. Navy Instructionsexplicitlyrequireadetainee to be removed onceamedical officer determines SR is no longernecessary^^^SECNAVINST 16409CArt 4205(5)(d)at4I6 Because the Navy Instructionsdo not require pre-approval,CW04Averhart^sdecision to place the accused on SRonl8January 2011was proper. According to the CW04Averhart and MSgt Papakie, the accuseddisplayed troubling behavior, including striking himselfin the head, frustration, and stuttering inCW04Averhart^spresence. Additionally,the accused had just suffered an apparent anxietyattack that caused him to fall. Given the information available, CW04Averhart^sdecision toplace the accused on SR was proper.However,amedical officer recommended placing the accused on POI,not SR, that dayin response to the accused^sanxiety attack. Accordingly,the United States stipulates that theaccused should have been removed fiom SR. The accused was removed fiom SR and placed onPOI on 20 January 2011. Aecordingly,the United States stimulates that the accused shouldreceive credit of no more than tv^o days for his being on SR from l^^anuary2011until 2^^anuarv2011 i^^^^ii7^^^^^.^,.^^^^^. The accused^scredit should be calculated based on thefollowing days: 18and19January2011.Thel8January2011psychiatric evaluationsupports CW04Averhart^sconcems because the psychiatrist assessed the accused as requiringfurthermental evaluation and havingalow tolerance of frustration. ^^^Enclosure21at22.Furthermore, the conditions servedalegitimate, nonpunitive governmental interest ofmaintaining the accused^ssafety.Thus, the credit should be one-for-one. ^^^1^7^^^^^.^,E^ Decision to Place Accused on POI Also ProperSimilarly,the initial determination to place the accused on POI was proper because theC^A Board and CAPT Hocter all recommended to the Brig cotnmanding officer, CW0432Averhart that the accused should be placed on POI. CW04Averhart noted the agreement whiledocumenting the decision to place the accused on POI.'^F^ Decision to Maintain POI ProperThe C^A Board examines the need for continuation ofSR or POI. ^^^BrigSOPArt.6004(5)(c)(11)at101;Brig SOP Art 6004(l)(a)at97(statingthatthepurposeof custodyclassification is to establish the degree ofsupervision needed for control ofindividual detainees;.^^^^^.^^ Brig SOPArt.6004(l)(c)at 97 (noting thatadetainee^sclassification may be reviewedmorefiequentlyif desired or necessary); Brig SOPArt. 6004(5) at 99(stating conditions thatmayeffectareclassification)at99. No instruction requires the C^A Board to document itsfindings^^^SECNAVINST 16409CArt 4204at413,Art 6303 at66to67;^^^^^.^^.^^C^^^^^,47 M.J.atl66(finding no Articlel3 violation where regulations recommended C^ABoard meet weeklybut did not require the Board to meet weekly). The C^A Board considers,^^^^^^^^^,thedetainee^s: combative or disruptive behavior; mental evaluations; low tolerance offrustration and stress; seriousness ofthe offense; clear military record, aside fiom presentoffense; home conditions and family relationships; pattem ofpoorjudgment; behavior duringaBrig SOPArt. 6004(5)(c)(4)atprevious confinement; and behavior in current confinement.99-100.'^ The C^A Board, based onawide range of factors, makesarecommendation to theBrig commanding officer. ^^^BrigSOPArt.6004(5)(c)(ll)at 101 (describing process of C^ABoard makingarecommendation to the Brig commanding officer for approval). Ultimately,asthe authority responsible for the Brig, the Brig commanding officer decides the appropriateclassification of detainees, includingtheaccused.^^^SECNAVINST 1640.9CArt 320LArt.3201(b)at38The commanding officer ofthe Brig has ^^overall responsibility for operation oftheconfinementfacilityB^SECNAVINST 16409CArt 3201 at38 BrigSOPfitrtherdelineatesthe command structure, definingamedical officer as ^^assigned in writing by the Naval HealthClinic, Quantico, and shall be responsible^^ to the Brig commanding officer for the health andmedical care ofprisoners. Brig SOPArt. 1002(l)(c)at10. SpecificaIIy,the medical officeradvises the Brig commanding officer in matters pertaining to the well being of detainees.SECNAVINST 16409CArtl0101atl01 Navy Instructionsand the BrigSOPvestfinalauthority for decisions ofclassification in the Brig commanding officer, not the medical officer.^^^SECNAVINST 16409CArt 320LArt 3201(b)at38;BrigSOPArt 6004(5)(c)(5)atl00Moreover, Navy Instructions and the Brig SOP explicitly give the medical officer completeauthority for specific decisions related to medical expertise, to include removal fiom SR orThe United States stipulates ^^^^^ that the accused should have been removed from SR and placed on POI on6August2010The Brig SOP offersanon-exhaustive list: combative^disruptive behavior; serious alcohol^drug abuse; mentalevaluations; indications that the individual wishes to retum to duty; serious civilBmilitary criminal record; lowtolerance of frustration^stress; intensive acting out or dislike of the military; clear military record, aside from presentoffense; seriousness ofoffense; home conditions^family relationships; unwillingness^willingness to acceptresponsibility; pattem of poor judgment; pending civil charges; behavior duringaprevious confinement;participation in self-help^education programs; behavior in confinement; length oftime since last negative report; andwork and training report evaluations Brig SOP Art. 6004(5)(c)(4)at 9910033quarantine^^^SECNAVINST 16409CArt 4205(5)(d)at4I6;SECNAVINST 16409CArt.7205(4)(c)(5)at721;BrigSOPArt 6005(1)(g)(21)(c)(5)atl04(grantingmedical officersauthority to quarantine detainees who refuse clinically indicated diagnostic procedures andevaluations for infectious and communicable diseases).As discussedthe C^A Board evaluated the accused each week, noting his erraticbehavior and fiequently determining that he hadalow tolerance for frustration. The C^A Boardalso noted the accused told the Board that the accused had been sarcastic when he previouslywrote that he was ^^alwaysplattning, never acting^^ about suicide,astatement he told the Boardhe made that may have been false. The factors cited changed based on the accused^sactionseach week and refiected an individualized determination based on then current information. Inparticular, the C^A Board considered the accused^sbehavior during confinement; the accusedwas not singled out.proffered testimony of CW04Averhart, MSgt Blenis. Based on thosefactors, the C^A Board recommended maintaining POI status for the accused. Althoughunusual, the Board noted that the accused was not the only detainee to be placed on POI for anextended period oftime. ^^^Enclosure24at20. In fact, all subsequent decisions to maintainPOI status made bythe Brig commanding officer were supported by unanimous decisions oftheC^A Board to maintain POI status.Accordingly,the Brig commanding officer determined each week that the accused shouldremain in POI. The Brig commanding officer also adjusted the accused privileges based on anindividualized review of the accused^sbehavior in confinement.Enclosurel(increasing recreation call fiom twenty minutes to one hour). Given the vested authority in theBrig commanding officer and the supplementary determinations ofthe C^A Board, POI statuswas properly approved for every week the accused remained in confinement.C Morning Inspections Follo^ing2Mareh 2011The Brig commanding officer possessed the authority to order the removal oftheaccused^sclothing^^^SECNAVINSTI6409CArt 4205(5)(b)at416 Additionally, CW02Bames, as the Brig commanding officer, possessedareasonable basis to remove the accused^sclothing afier the accused stated that his clothing was dangerous because it could be used for selfharm by choking. Accordingly, CW02 Bames had ordered that the accused surrender hisclothing at night. Afier the accused discussed the threat posed by the elastic waistband in hisunderwear, CW02 Bames updated the accused^shandling instructions to require that theaccused surrender his clothing, including his underwear, at night.The Defense citesanewspaper^sinterpretation, not quotation, oflstLtVilliard^sstatement alleging that the accused would be required to stand naked outside his cell duringmoming inspection.Defense Motion^l26. IstLt VilliardwasaMarine spokesman. Thestatement attributed tolstLtVilliard is mistaken. The accused was not required to stand nakedat attention and did not stand naked at attention any moming.On3March 2011,the accused chose to stand naked at parade rest during mominginspections. Neither the guards nor the Brig commanding officer ordered or required theaccused to stand naked at attention or parade rest. In fact, the Brig staffcounseled the accused34that he should cover himselfand was not required to stand at all, let alone naked and at attention.The Brig staff retumed the accused^sgear and provided him time to change before momingcount. The accused stood at parade rest without covering himselfwith his blanket ofhis ownvolition onasingle day. Because the accused chose to stand naked at parade rest, Brig officialsdid not violate Articlel3rights.'^The cases cited by Defense Motion^I30 grant no more than one-forone credit.Thus, assuming,thatthe accused is entitled toacredit, the credit should be no more than one-for-one because the violation was brief andpart of an otherwise lawful restriction.35III. LACK OF INTENT TO PUNISHA. No Intent to PunishAn intent or purpose to punish constitutes an Article 13 violafion. See Adcock, 65 M.J. at22. Courts find an intent to punish either by: 1) determining the confinement officials possessedan intent to punish, or 2) deciding the purposes of the restriction are not reasonably related to alegitimate govemmental objective. See id. (citing King, 61 M.J. at 227). The issue "of intent topunish is 'one significant factor in [the] judicial calculus' for determining whether there has beenan Article 13 violation." UnitedStates v. Mosby, 56 M.J. 309, 310 (C.A.A.F. 2002) (citingUnited States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994)) (noting that the CAAF will notoverturn a lower court's finding of fact unless the finding is clearly erroneous).There is no evidence that any individual at MCBQ possessed any intent to punish theaccused. Indeed, all actors at MCBQ prioritized the safety of the accused and made decisionsaccordingly. The Defense fails to cite any evidence demonstrating an evil intent. Instead, theDefense repeatedly cites statements demonstrating the understanding that the regulations vestauthority and discretion in the Brig commanding officer to make determinations regarding theaccused's custody and status. See, e.g.. Defense Motion H 141 (quoting MSgt Papakie but failingto note his explanation of exercising caution, which stated, "Things that you've said and thingsthat you've done . . . [t]hey make us stay on the side of caution. . . . That's all [the brigpsychiatrist] is . . . a recommendation. We have, by law, rules and regulation set forth to makesure from a jail standpoint that Bradley Manning does not hurt himself"); id. % 167 n. 17(quoting CW04 Averhart as saying " I have not imposed any disciplinary segregation, but theseincidents do cause me continuing concem regarding [the accused's] safety and intentions," butfailing to note the CW04 Averhart was discussing the violations as one of many factors onwhich he based his decision). Additionally, the Defense constmes memories of Col Oltman'salleged statements as an order when they reflect an understanding of the process of ongoingreview. See Defense Motion % 52 (concluding that Col Oltman that ordered the accused to beplaced on POI indefinitely and not that Col Oltman's comments reflect an understanding that themedical officers present recommendations). The Defense mistakenly characterizes actionsintended to keep the accused safe as an intent to punish. See, e.g.. Defense Motion K% 84-85, 91,106, 124, 135, 200. Accordingly, the Defense fails to demonstrate an intent to punish becausesuch intent never existed.B. Conditions of the Accused's Confinement Not ArbitraryA restriction permits an inference that it is punishment if the restriction is arbitrary orpurposeless, and therefore is not reasonably related to a legitimate govemmental objective. SeeMcCarthy, 47 M.J. at 167 (citing James, 28 M.J. at 216). However, "a failure to followregulations does not justify the conclusion that confinement was a form of punishment orpenalty" because violations of service regulations do not require awarding credit per se. SeeMcCarthy, 47 M.J. at 166 (citing UnitedStates v. Moore, 32 M.J. 56, 60 (C.M.A. 1991));Adcock, 65 M.J. at 23. The lack of a per se right to credit reflects "the long-standing principlethat not all violations of law result in individually enforceable remedies." See Adcock, 65 M.J. at23 (citing UnitedStates v. Green, 14 M.J. 461, 464 (C.M.A. 1983); UnitedStates v. Whitting, 1236M.J.253,255 (C.M.A. 1992)). However,agovemmentagencymust abide by regulationsdesigned to protect personal liberties, i ^ ^ ^ ^ ^ . (quoting ^^^7^^.^^^^^.^^.7^^7^^^^,8M.J.213,213(CM.A. 1980); ^^^.^^^^^^^,61M.J.at 228(stating that departing fiom requirements ofconfinement regulation despite the accused'sapparent good behavior in confinement does notrequire awarding confinement credit ^^^.^^).There were no arbitrary decisions made with respect to the accused. Col Oltman did notissue an order that the accused would remain in any status indefinitely,nor was the result oftheprocess predetermined as the Defense alleges. The Defense simply disagrees with thedeterminations made by the confinement authorities, but disagreement with the result does notcreate an Article 13 violation. ^^^^^C^^^^^,47 M.J.atl68(deciding that the Defense theorythat less restrictive form ofconfinement was without merit). Moreover, the commandingofficersofthe Brig, as the commanders,were responsible for the accused'ssafety; the Defensequestions the decisions that kept the accused safe with the benefit ofhindsight.As discussedthe C^A Board and Brig commanding officer consideredavarietyoffactors in deciding the accused'sclassification, including,the accused'serraticbehavior; his mental anxiety disorder,which was diagnosed as onlyin remission; his toleranceoffiustration; his interaction with the Brig staff; his poor home conditions and family relationships;disruptive behavior; the threat he posed to national security having been charged withcompromising hundreds ofthousandsofprotected documents; his having constructed at least onenoose; his statement that he was "always planning, never acting" about suicidal thoughts; hisstatement that he may have madeafalse statement about suicide when he said he was "alwaysplanning, never acting;" and the potential length ofsentence the accused faced.These factorssupport finding the classification decisions ofthe Brig commanding officers and C^A Board tobe reasonable. Preferring its ownjudgments based on the self-interest ^.:ii:^^.^^ statements oftheaccused over thoseofthe confining authorities, the Defense theory contradicts the regulationsand military law.In particular, the Defense questions the decisions to continue placing the accused in POIbecause the Brigpsychiatrist recommended removing the accused from POI.However, theDefense'stheory that the more conservative conclusions reached by the Brig confiningauthorities were improper fails because the Navy Instructions vest the authority in the Brigcommanding officers and not the mental health providers. ^^^,^.^.,SECNAVINST 1640.9CArts. 3201,3201(b), 4202(7), 4205(5)(b),4205(5)(d);BrigSOPArtl002(1)(a)atl0;BrigSOPArt.6004(5)(c)(5)at100. The Defense notes that the Brig commanding officer elected toexercise discretionary authority and not follow recommendations fiom the medical officers forother detainees; the practice was not unique to the accused.Defense Motion^2I("[TheBrig] generally keep[s]patients on precautions longer thanlrecommend."). Under the theorypresented by the Defense, recommendations by medical officers, defined by the regulations asadvisers to the Brig commanding officer, should be automatically binding on the Brigcommanding officer despite the authority and discretion specifically vested by the regulations.These factors were not considered simultaneously but varied depending on changing circumstances.CAPT Hocter initially served as the accused'smental health care provider. During this period, COU Malone wasCAPTHocter'sconsultant. AfterCAPT Hocter departed, COU Malone replaced CAPT Hocter.37^^^SECNAVf^ST 1640.9C.^^^^^. Accordingly,the Defense theory directly contradicts theauthority of confining authorities as noted in case law and detention regulations.Moreover, afierthe pretrial detainee suicide inJanuary 2010at the Brig, the confiningauthorities chose to exercise caution and prudence. The exercise was not arbitrary. The accusedhasahistory of anxiety attacks,which correlate with suicidal ideations and comments. ^ ^ ^ ^16-17(fashioning at least one noose afier an anxiety attack); ^^85-86(stating that the elasticwaistband in his underwear was dangerous afier receiving the additional charges). The exerciseofcaution was prudent where the accused had called the truthfi^lness ofhis prior statementsabout his suicidal ideations into question. The accused had told mental health providers that hewas "patient" and had claimed he wasn't suicidal for the purpose ofbeing removed fiom suicidewatch restrictions in Kuwait. The accused also lacked rapport with the confining authoritiesbecause he was withdrawn. ^^^Enclosure24at6(describing the accused as guarded andsomber afier receiving the additional charges and ArticleI38 response). In fact, the accused hadexperienced similar withdrawal and communication issues with providers prior to his beingcharged with compromising information. ^^^,^.^.,Enclosure3at85,90.In April 2011,anew mental health care provider,LTC Russell,reached differentconclusions from his peers, determining that the accused sought reasons to justify hisnoncompliance and failed to communicate with the Brig staff, thereby making their mission tokeep the accused safe more difficult. ^^^Enclosure21at33(stating that the accused refused tocomply with reasonable expectations to assure the staff ofhis safety,the need to placeresponsibility on the accused, and the likelihood that the accused'sbehavior would likelycontinue). The Brig staffbased its decisions, in part, on their daily interactions with the accusedand his behavior during confinement. Mental health providers did not witness the acccused'sbehavior fiequently. Instead, mental health providers met with the accused during plannedsessions in differently controlled environments. The different conclusions reached byadifferentprovider demonstrate that the Brig staffsconcemshadareasonable basis. Consequently,theBrig staff acted reasonably by implementing rules to keep the accused fiom harming himselfIV CONDITIONS OF CONFINEMENTWERERELATEDTO LEGITIMATEGOVERNMENT INTERESTSConditions of confinement are not unduly onerous or egregious if they are related toalegitimate govemment interest. ^^^^^C^^^^^,47M.J.at167. Additionally, conditions ofconfinement should be determined based on the detainee'sindividual circumstances. ^^^^^7^^,61 M.J.at 228. In the instant case, the legitimate govemment interest ofprotecting nationalsecurity further supports the restrictions of the accused'sconfinement.A^ Related to Covernment InterestConditions ofconfinement are not more rigorous than necessary nor the imposition ofpunishment if they are related toalegitimate goverttment interest. ^^^.^^^^^^^^^,70 M.J.atI74(citing^^7^^,61M.J.at 227-28). The conditions ofthe accused'sconfinement were relatedto nonpunitive, legitimate govemmental interests and therefore do not violate Article13. Thegovemment has legitimate interests in,ensuring the accused'spresence at trial,3^ensuring the security ofthe institution, the accused'sownsafety,and protecting nationalsecttrity.^^^C^^^^^,62M.J.at416;^^C^^^^^,47M.J.atl67.Each ofthe conditions of the accused'sconfinement pertained toalegitimate goverttmentinterest. The defense highlights the accused'slimited access to reading material,limited accessto toilet paper, inability to exercise in his cell,and forfeiture of glasses as not related toalegitimategoverttmental objective.Defense Motion^l61-62(describing the restrictions as"wholly nonsensical"). All restrictions decreased the chance the accused would harm himselfBecauseaprior detainee may have killed himself with paper, paper products posedapotentialdanger. The small size ofthe accused'scell increased the chance ofinjury ifthe accusedphysicallytrained. The accused could have used the glasses to injure himselfand had misusedthem to removeaportion ofhis eyebrows.Additionally,the accused was not isolated, but the accused was confined in conditions toensure the safe operation ofthe Brig and to prevent the accused fiom disclosing protectedinformation. The Defense characterizes the conditions ofthe accused'sconfinement as being"tantamount to solitary confinement,"but, as the Defense notes, solitary confinement does notexist within military confinement. ^^^^ Defense Motion^I92^n.l9.The accused waspermitted to talk to other detainees. All detainees at the Brig, including the accused,were giventheir own cells. Furthermore, the accused was permitted to receive visitors and received them inaccordance with Brigregulations.Enclosure 22; Enclosure 13. The accused updated his listofauthorized visitors and later removed many individuals fiom his authorized visitors listvoluntarily. ^^^Enclosure24at6. Conversations with visitors were monitored to preventfurther potential disclosure ofclassified information, another legitimate, nonpunitive govemmentinterest. ^^^Enclosure9. The Defense'sdescriptions ofthe conditions ofthe accused'sconfinement discount the legitimate bases for the restrictive measures.Confinement with similar conditions was held not violative ofArticle 13 where theaccused was charged with attempted drug possession and breaking restriction. ^^^^^^^,61M.J.at 225, 229^'(noting that the accused was charged with attempting to possess cocaine andecstasy and breaking restriction). Inthe accused was placed in MAX custody and wasrestricted to his cell all day, except for emergencies and appointments; ate all meals in his cell;lacked library and gym privileges;^^ could not sleep in his cell during duty hours; was requiredto wearayellow jumpsuit and shackles when released for appointments; watchedatelevisionplaced outside his cell; and required two escorts, one of whom was armed,whenever he wasmoved for appointments.at 226. Reviewing the conditions ofthe accused'sInthe accused received confinement credit for being placed inasegregated environment without anydemonstration ofcause in the record, let alone an individualized determination.These items were brought to the accused'scell. .^^^^^^^,61 M.J.at 226.The Defense also notes that the accused could not rest against the walls ofhis cell. This restriction served thegovemment interest of maintaining order and discipline at the Brig. Detainees are not permitted to sleep duringworking hours, like all other servicemembers. Accordingly,detainees were not permitted to assume positions thatmight cause them to fall asleep prematurely.proffered testimony ofBrig staff39confinement, the CAAF held that the confinement facility did not intend to punish the accusednor were the conditions unnecessarily rigorous. See id. at 229.B. Individualized DeterminationThe Brig commanding officer has the authority and discretion to decide the conditions ofconfinement and measures necessary to effectuate those conditions. See Palmiter, 20 M.J. at 96;id. at 99 (Everett, J., concurring) ("Once the Govemment has exercised its conceded authority todetain a person pending trial, it obviously is entitled to employ devices that are calculated toeffectuate this."). Confinement facilities must engage in an individualized determination foreach detainee and reach a conclusion depending on the facts and circumstances of each detainee.See King, 61 M.J. at 228; see also Crawford, 62 M.J. at 416 (stating that maximum custodyimposed based solely on charges would warrant scrutiny). Here, as noted supra, the accusedconstantly received individualized determinations. Weekly progress reports and C&A Boardrecommendations document the variables and factors that confinement authorities weighed whendetermining the appropriate status and custody for the accused. In particular, the confiningauthorities considered the accused's behavior during confinement and history duringconfinement at the TFCF. However, subsequent behavior is not solely dispositive of the Brigcommanding officer's decision. See McCarthy, supra.The conditions of the accused's confinement were not based on a single factor, nor asingle legitimate govemment interest. The accused's behavior at the TFCF alone providedsignificant justification for the accused's confinement classification and status. See Crawford,62 M.J. at 416 (upholding nine months of maximum custody based on potential length ofsentence and threats made by the accused prior to confinement to undercover agents). Thelength of the potential sentence faced by the accused, which increases his flight risk, providesone basis among several for conditions on his confinement. See, e.g., id. at 416 (listing thepotential for lengthy confinement as a factor in classifying the accused as a high-risk inmate).Additionally, the seriousness of the charges further validates placing an accused in a restrictivecustody status. See id. The accused was originally charged with four specifications of violatinga lawful regulation, one specification of violating 18 U.S.C. § 793(e), three specifications ofviolating 18 U.S.C. § 1030(a)(1), and four specifications ofviolating 18 U.S.C. 1030(a)(2), andthen charged with significant violations of the UCMJ, including aiding the enemy, and faces asubstantial sentence. See Enclosure 10 at 3-7; Charge Sheet. Furthermore, the Brig sought toprotect the accused from selfharm. Moreover, good behavior does not mandate a downgrade toa less restrictive status. See Willengbring, 56 M.J. at 79 (deciding that length of pretrialBefore the current charges were preferred, the accused faced a substantial, albeit lower, potential sentence of 52years. See Enclosure 27 at 3.The Defense cites UnitedStates v. Fuson, 54 M.J. 523, 526 (N-M. Ct. Crim. App. 2000), for the proposition thatthe accused is not a flight risked based on his good behavior. However, Fuson simply held that a strained kneerequiring medical care did notjustify placing the accused in more restrictive confinement. See Fuson, 54 M.J. at527.40confinement coupled with good behavior does not entitleadetaineetoaless restrictive custody).Therefore, the accused'scustody classification was both individualized and justified.^^C.NationalSecurityConsiderationsUnder Navy Instructions,athreat to national security further justifies placing an accusedinMAXcustody^^^SECNAVINST 16409CArt 4202(2)(a)at47Thepotential abilitytoexecute serious criminal misconduct has supported the decision to placeadetainee in MAXcustodyforninemonths^^^C^^^^^,62MLat416Furthermore,theMCMcontemplatesathreat to national security as serious criminal misconduct. ^^^RCM 305(h)(2)(B)(iii)(b)(defining national security broadly as "the national defense and foreign relations ofthe UnitedStates and specifically includes:amilitary or defense advantage over any foreign nation or groupofnations^afavorable foreign relations position; oradefense posture capable of successfi^llyresisting hostile or destructive action from within or without, overt or covert"). Thus,athreattonational security establishesacognizable basis for placing an accused in MAX custody.Restrictions on an accused'scommunications comport with Army and Navy correctionalregulations,which grant the authority to monitor non-privileged telephonic communicationwithout regard to national security considerations. ^^^U.S.Department of the ArmyRegulationl90 47,The Army Corrections System, para. I0-11(15June 2006);.^^^^^.^^SECNAVINST 1640.9C Art. 8301(4)(c)(granting confining authorities the authorityto monitorcorrespondence). Furthermore, commanders posses broad authorityto limitaSoldier'sfreedomand activity, especially where the Soldier is suspected ofhaving engaged in criminal activity.^^^,^^,RCM 304(b);RCM305(c);RCM 305(g);RCM 305(h)(2);USDepartment oftheArmy Regulation 27 10, Military Justice, para.85(a)(I)(grantingacommander or militarymagistrate the authority to release an accused from pretrial confinement); AR 27 10, MilitaryJustice, para. 27-6, (3 October 2011)(grantingacommander the authority to detain civilians)[hereinafier AR 27 10]; AR 27 10para.27 9(grantingacommander the authority to placeaSoldier in pretrial confinement); Department of the Army Regulation 600 20, Army CommandPolicy,para.21(4 August 2011)(establishing that commanders are responsible for everythingthe command does)[hereinafierAR 600 20]; AR 600-20 para.4-12(c)(granting commanders theauthority to prohibit military personnel from engaging in or participating in any activities thatwill adversely affect good order and discipline or morale); .^^^^^.^^AR 27 10, para. 27-9(granting commander authority to determine whether to prefer charges ifthe Department ofThe Defense cites federal cases claiming due process violations. See Defense Motion 11212. The cases do notpertain to Article 13 and offer no persuasive value. One case found a due process violation for arbitrarily placingdetainees in small cells without an individualized determination. See Lock v. Jenkins, 641 F.2d 488, 494 (7th Cir.1981). Two cases cited by the Defense found due process violations for overcrowding, which is inapposite giventhe Defense's allegations of the accused's confinement being "tantamount to solitary confinement." See CampbellV. Cauthron, 623 F.2d 503, 507 (8th Cir. 1980); Ramos v. Lamm, 485 F. Supp. 122 (D. Colo. 1979) (findingconditions of the facility and treatment fell below constitutional standards based on lack of sufficient living space,ventilation, light, heat, noise control, among others). Two more cases simply held that a confinee states a cause ofaction. See Lyons v. Powell, 838 F.2d 28, 29 (1st Cir. 1988); Magluta v. Samples, 375 F.3d 1269, 1274 (11th Cir.2004).An accused's potential to commit serious criminal misconducts also forms the lawfiil basis for placing an accusedin pretrial confinement. See RCM 305(h)(2)(B)(iii)(b) (stating that a commander may direct a prisoner be placed inpretrial confinement if the commander believes the prisoner will engage in serious criminal misconduct).41.lustice declines to exercise federal criminal jurisdiction). In particular, commanders possess theauthority to orderaSoldier not to disclose classified information. ^^^^^.^.,AR 600-20, para.412(c). Consequently,commanders possess the authority to place limitations onaSoldier'sability to communicate where that Soldier has been charged with compromising classifiedinformation.^^Additionally,the federal prison system recognizes measures implemented to protect thelegitimate interest ofprotecting national security and preventing threats thereto. ^^^28C.F.R.^501.2(a). Within the federal prison system, the Director, Bureau ofPrisonsmay,upon thedirection of the Attomey General ofthe United States, authorizeawarden to implement specialadministrative measures (SAMs)that are reasonably necessary to prevent the disclosure ofclassified information byapre-or posttrial inmate.Specifically,these measures mayinclude special housing, limited privileges, and monitoring.^^Afier being detained by his chain of command in Iraq, the accused immediatelycircumvented an order not to access computers and had another Soldier check his personal email.Moreover, all the information the accused has been charged with compromising has not beenreleased in the public domain. Department ofState cables that the accused has been chargedwith compromising were not released during the accused'sconfinement.testimony ofCatherine Brown,Any communication by the accused presentedapotential threat offurther divulging protected information to the public domain. The protected information couldhave damaged relations with foreign nations, thereby threatening national security.Additionally,any communications, including those related to his passwords, to known orunknown third parties would adversely impact the ongoingjoint investigation between theU.S.Army CID,Federal Bureau oflnvestigation, and the Department ofState Diplomatic SecurityService. Any adverse impact to the investigations could have made preventing additionaldisclosures that could harm national security more difficult.Although SECNAVINST 1640.9C recognizes the legitimate govemment interest of national security,it does notspecify procedures for protecting that interest.^^28CFR^5012(a)specificallystates:"Upon directionof the Attomey General, the Director, Bureau of Prisons, may authorize theWardentoimplement specialadministrativemeasuresthatarereasonably necessary topreventdisclosure of classified information upon written certification to the Attomey General by the headofamember agency of the United States intelligence community that the unauthorized disclosureof such information would poseathreat to the national security and that there isadanger that theinmate will disclose such information. These special administrative measures ordinarily mayinclude housing the inmate in administrative detention and^or limiting certain privileges,including, but not limited to, correspondence,visiting, interviews with representatives of the newsmedia, and use of the telephone, as is reasonably necessary to prevent the disclosure of classifiedinformation.The authority of the Director under this paragraph may not be delegated below thelevel of Acting Director."In this instant case, the Department ofjustice declined to assert primaryjurisdiction and permitted the Departmentofthe Army to prosecute the accused for the charged acts. Accordingly,SAMs can be instituted without Directorapproval because Soldiers are subject to different standards under the UCMJ than civilians under federal law.42Here, the accused has been charged with compromising hundreds ofthousands ofprotected documents and has appropriately been placed in MAX custody. Monitoring theaccused ensures theU.S.Army protects evidence from being compromised, destroyed, orabandoned.^^ Furthermore, the monitoring did not prohibit the accused from communicatingbecause the Brig permitted the accused to receive visitors and engage in correspondence.Ultimately,the restrictions were related to govemment interests and therefore were neitherunduly rigorous nor arbitrary.V ACCUSED'S CONFINEMENTDIDNOTVIOLATETHE CONSTITUTIONArticle 13'sprohibition ofpretrial punishment meets the constitutional protections oftheDue Process Clause^^^,B^^^.^,28MLat21516(citing^^^^,441USat 535) ("Articlel3prescribes that ^[n]o person...held for trial,may be subjected to punishment or penalty otherthan arrest or confinement upon the charges pending against him.' It further prescribes that thearrest or confinement ^shall[not]...be any more rigorous than the circumstances require toinsurehispresence....' This standard is conceptually the same as those constitutionallyrequired by the Due Process Clause ofthe Constitution."). Accordingly, confinement that doesnot offend Articlel3'sprotections also satisfies the Due Process Clause.Furthermore, the accused'sconfinement did not violate the Eighth Amendment. Todemonstrateaviolation of the accused, the Defense must prove that the deprivation alleged issufficiently serious and resulted in the unnecessary and wanton infiictionofpain. ^^^(7^^^^^^^^^^.^v^iB^7^^53ML99,101(CAAF 2000)(citing^^^^^^^.^^^^^^^,511US 825,834(1981). The Defense demonstrates neither. Confinement conditions similar to the accused'shave been found not to violate the Eighth Amendment. ^^^^i^^7^^^^^^^.^^.^^^7^,53M.J.at100 01 (describing conditions ofresidinginawindowless cell,not being allowed tocommunicate with other inmates, only being permitted one hour ofrecreation per day for fivedaysaweek, being required to wear handcuffs and shackles when escorted outside his cell, andreceiving visitors withaPlexiglass barrier between them). Deliberate indifference to seriousmedical needs violates the Eighth Amendment.B^v^7^, 53 M.J.atlOl (citing ^.^^^^^^v.^^^^^^,429US 97,104 05 (1976)). Here, the Brig actively soughtto provide the accusedwith regular health care, to include havingapsychiatrist visit the accused onaweekly basis.Because the accused was not deprived of any necessities, the Brig upheld the accused'sEightAmendment rights.VI MEANINGFUL RELIEFDETERMINED IN CONTEXT OF SERIOUSNESS OFACCUSED'S CHARGED ACTSMeaningftil relief depends on the nature ofthe Articlel3 violations, the harm suffered bythe accused, and whether the reliefsought is disproportionate to the harm suffered or in light ofthe ofthe offenses for which the accused is convicted. ^^^^^^^^^^^^,70M.J.atI76 77(citing^^^7^^ ^^^^^.^v.^^^^^.^, 66 M.L166,I69(C.A.A.F.2008).Therelief sought cannot bedisproportionate to the harm suffered bythe accused. ^^^7:^^^^^.^,69M.Lat169. In the instantcase, the accused has abided two technical violations ofNavy Instructions because his status wasnot promptly downgraded from SRtoPOI following determinations by the medical officer.The accused and Defense counsel have acknowledged the monitoring on many occasions. .^^^ Enclosure 13.43Aeeordingly,the United States stimulates that the accused is entitled to confinement creditand that the credit should be no more than one-for-one because the decision to ^lace theaccused on SR conformed with Brig regulations ^^^^^7^^^^^,^^^^^. The accused hassustained no other violations of Articlel3.However, assuming,the Court determines the accused has sustained additionalviolations and is entitled to confinement credit, the credit should be one for one in accordancewith ^7^^^^^.^. In ^^7^^^^^.^, the confining facility committed two violations of Articlel3bydenying the accused sufficient access toapsychiatrist as required by Air Force regulations, andfailing to remove the accused from suicide watch afieramedical officer determined it wasunnecessary. Three-for-one credit has been found appropriate where the Govemment providedno evidence it explored alternatives, nor explained why the accused was placed inasegregatedenvironment because the detainee did not receive an individualized determination. ^^^^^7^^,61M.J.at 229. Here, the Brig has provided substantial explanation and evidence as the bases ofitsdeterminations to place and maintain the accused in MAX custody and POI.The Defense requests dismissal ofall charges, but that remedy is disproportionate wherethe accused is charged with repeated and voluminous compromises ofprotected information andonly endured two technical violations lasting seven days in total. Out ofthirty-four documentedcommand visits, the accused personally discussed his status with his command on only twooccasions. When the command asked, the accused rarely discussed the issues the Defense nowalleges. In fact, the accused only personally raised the issues during the time when DefenseCounsel began submitting filings regarding his confinement. The accused immediately ceasedraising his status afier Defense counsel submitted its filings inJanuary 2011. Furthermore,whenpresented the opportunity to discuss the conditions ofhis confinement with his visitors, theaccused never discussed nor alluded to mistreatment.Enclosure 49. Failure to complain is"strong evidence" that the accused was not punished. ^^^7^^^^^^, 40 M.J. at 227. In fact, theaccused described his treatment by the guards and facilities, and lack ofuseofthe grievanceprocess, similarly for both the Brig and JRCF.Enclosure 26 at 82 86(stating for bothfacilities that he understood the grievance process and had not had to use it). The accused signedall these statements.Enclosure 26.The Defense notes that the accused facesalife sentence, but Article 13does not requirethe accused receive substantive reliefwhere the reliefwould be disproportionate to the harm theaccused suffered and seriousness ofthe crimes with which he has been charged. ^^^^^^^^.^,66M.J.atl69(declining to provide additional relief other than confinement credit where theaccused hadfinishedserving his sentence because the reliefwould have been disproportionate).In the altemative, the Defense requests the disproportionate remedy often-forone based on dictadescribingaremedy not employed foraviolation of denial ofmental health care.70 M.J.atl72(quoting the opinion ofthe military judge). Here, the Brig always acted with theintent of ensuring the accused'ssafety and not with an intent to punish. Furthermore, the Brigprovided the accused with regular access to mental health providers. Ten-for-one credit wouldbe disproportionate.44CONCLUSIONNavy Instructions, Brig SOP, and military case law vest discretion in the confiningauthorities to determine the conditions ofadetainee'sconfinement to ensure his safety. Theregulations specifically define medical officers as advisers to the Brig commanding officers andonly grant decision making authority to medical ofticers in limited circumstances, such asdecisions regarding quarantining detainees. The confining authorities considered many factors,to include, ^7^^^^^^^^, the accused'sprior suicidal ideations, the recommendations ofthe medicalofficers, and the accused'sbehavior, and repeatedly gave the accused an individualizeddetermination regarding the conditions ofhis confinement. The confining authorities reachedreasonable conclusions in setting the conditions ofthe accused'sconfinement, and courts grantdeference to those conclusions. Moreover, the conditions were related to legitimate govemmentinterests to include, ^^^^^^^^7;^, protecting national security and the accused'ssafety. Theaccused'sconfinement was not more onerous than necessary. The accused is entitled to no morethan seven days confinement credit for the time he st^ent on SRafierat^sychiatristrecommended removing him from SR. Therefore, the accused'sconfinement did not otherwiseviolate Article 13 and the accused is not entitled to additional confinement credit.For the foregoing reasons, the Govemment respectfully requests that the Court deny theDefense Motion.ALEXANDERS VON ELTENCPT,JAAssistantTrial Counsel^\^k^ksrEnclosures1. Handling Instmctions2. Manning Behavior MFR3. Mental Health Record4. Article 15, dated 1005175. AIR6. SPC Schwab MFR and Statement7. Kuwait Transfer Docs8. Confinement Order9. Request for Monitoring of Communications10. Mar Coffrnan MemoMAJ, JATrial Counsel4511. Reply from Quantico for Monitoring12. Email from Mr. Coombs13. Acknowledgements14. Inmate Inprocessing15. Inmate Observation Report16. Use ofForce Downing Memo17. Kuwait18 BarrMFR,dated 10072919. Initial Classification20. Inprocessing Forms21. Behavioral Health Evaluations22. Weekly Reports23. Averhart16MarResponse24.0&E Reports25^elek Memo, dated 10122826. Command Visits27. Choikememo,datedll030I28 Choike Memo, datedI1040829. Averhart Repsonse,datedll012430. Oltman Response31. Final Action by Assistant Secretary Garcia regarding Article 13832 C&A Boards33. Guard Statements, dated11011834. hicidentReport(Webb),dated11011835. Averhart Response, dated11031636 Suicide Video, P t l M O D37 Suicide Video, Pt2MOD38. Bames Response, dated 11030239. GalavizMemo,datedll022340. Papakie Statement, dated 11030241. Suicide Gown Incident Report42. Tweezer Incident Report43 SPCMCARequestto Reduce POI, datedl1012144. Headset Receipt45 .IRCFFIightReport46. JCRFAttack avi47 SECNAVInstruction 16409C48 BrigSOP,dated 10070149. Audio,with Cover Sheet46Icertifythatlserved or caused to be servedatrue copy ofthe above on Mr. DavidCoombs, Civilian Defense Counsel via electronic mail, onI7August 2012.ALEXANDERS VON ELTENCPT,JAAssistantTrial Counsel47

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