Transcript | US v Pfc. Manning, Court Ruling on defense Article 13 motion, 01/08/13 and 01/09/13
- posted January 9, 2013
UPDATE POST COURT-MARTIAL
United States v. Pfc. Manning was conducted in de facto secrecy. The public was not granted contemporaneous access to court filings or rulings during her trial. In addition to reporting on her trial, I transcribed the proceedings, reconstructed the censored appellate list, and un-redacted any publicly available documentation, in order to foster public comprehension of her unprecedented trial.
As a result of a lawsuit against the military judge and the Military District of Washington brought by the Center for Constitutional Rights, as well as my own FOIA requests and research, an official court record for US v. Pfc. Manning was released seven months after her trial. That record is not complete.
The official trial docket is published HERE and the entire collection of documents is text searchable at usvmanning.org.
*During the pretrial proceedings, court-martial and sentencing of Pfc. Manning, Chelsea requested to be identified as Bradley and addressed using the male pronoun. In a letter embargoed for August 22, 2013 Chelsea proclaimed that she is female and wished to be addressed from that moment forward as Chelsea E. Manning.
This is ruling was read into the Court record at the Article 39(a) session of United Stated v. Pfc. Manning at Fort Meade, Maryland on January 8 and 9, 2013.
Court is prepared to rule on the Article 13 Motion in this case.
On 27 July 2012 the defense filed a motion to dismiss for unlawful pretrial punishment in violation of Article 13 Uniform Code of Military Justice; and the 5th and 8th amendments to the United States Constitution.
Alternatively, defense motions requests ten for one sentencing credit from 27 August 2010 through 20 April 2011.
On 17 August 2012 the Government filed a response to the motion– opposing dismissal and sentencing credit– except for 7 days for the period of 6 through 8 August [2010] and 19 and 20 January 2011 at the Marine Corp Brig Quantico– Brig Officer– which will now be referred to as ‘MCBQ’ or the Brig and Brig O for the Brig Officer– maintained the accused on suicide risk– SR status– after a medical officer opined he was no longer considered to be a suicide risk in violation of Secretary of the Navy Instructions– SECNAV Instruction 1640.9(c) enclosure 1 paragraph 5(d).
Supplemental briefs were filed by the defense on 24 August 2012 and by the Government on 7 September 2012.
The Court also ordered the Government to produce to the defense approximately fourteen hundred emails exchanged among the Marine Corps Brig Quantico staff– command and staff– and higher headquarters during the period of the accused confinement at MCBQ.
On 26 November through 2 December– 5 through 7 December and 10 through 11 December 2012– the parties presented testimony evidence of argument regarding this motion.
Having received the Brig; heard the witnesses; and examined the emails; and physical evidence by the parties the Court finds and rules as follows.
FINDINGS OF FACT
General Governing Regulations and Relevant Provisions
The SECNAV Instruction 1640.9(c)– 3 January 2006.
SECNAV Instruction 1640.9(c) governed correctional policy for the Navy and the Marine Corp during the period of the accused confinement as a pretrial detainee at MCBQ from 29 July 2010 through 20 April 2011.
Relevant portions of the SECNAV Instructions in this case are found in enclosure one chapter 4 and are summarized below.
The SECNAV instruction governs corrections policy for both post trial prisoners and pretrial detainee– as such some of the provisions must be read to apply primarily to post trial prisoners– the term prisoners includes both pretrial detainees and post trial prisoners.
1.) Custody Classification Guidance – ‘Purpose of custody classification is to establish the degree of supervision needed for control of individual prisoners. Custody classification provides guidance for supervision of prisoners and permit establishment of security measures consistent with requirements of the individual. Among prisoners there are wide variations in personality and mentality. Where there is fair and impartial treatment, prisoners generally present no serious disciplinary problems. There are some prisoners, however, who are deliberately uncooperative. Some have personality difficulties which make them chronic sources of trouble, such as the highly aggressive person or those acutely depressed. Efforts must be made to identify all special cases, and control measures instituted to ensure the safe and orderly administration of the confinement facility.
An objective custody classification process which addresses the characteristics of the prisoners shall be used per reference (t); the Correctional Management Information System (CORMIS) electronic equivalent is also authorized.’
2.) Pretrial Detainee Custody Classification – Pretrial detainees receive custody classifications at either maximum security (MAX) or Medium In (MDI).
a.) MAX – It is appropriate for detainees who require special custodial supervision because of the high probability of escape or who are potential dangerous or violent; and whose escape would cause concern of a threat to life, property, or national security. Ordinarily, a small percentage of prisoners shall be classified at MAX– the following procedures apply to prisoners classified as MAX custody.
1.) Supervision must be immediate and continuous. The Department of Defense form DD-509 Inspection Record of Prisoner in Segregation shall be posted by the cell door and appropriate entries made at least every 15 minutes.
2.) They shall not be assigned work details outside the cell.
3.) They shall be assigned to the most secure quarters.
4.) MAX prisoners shall wear restraints at all times when outside the maximum security area and be escorted by at least two escorts.
5.) On a case by case basis– the Brig officer in charge may authorize additional restraint for movement of MAX prisoners.
b.) Medium In (MDI) is appropriate for detainees that present security risks to not warranting MAX. They are not regarded as being dangerous or violent. The following procedures apply to prisoners classified at MDI custody.
1.) Supervision shall be continuous within the security perimeter and immediate and continuous when outside the security perimeter outside of the confinement facility.
2.) They shall not be assigned to work outside the security perimeter.
3.) They shall restraints outside the security perimeter unless the Brig O directs otherwise.
4.) They may be assigned dormitory quarters.
c.) Differences between MAX and MDI custody at MCBQ.
At MCBQ all detainees regardless of custody level live in individual cells in special quarters one.
MAX detainees may not work outside the cell. MDI may.
MAX detainees wear restraints at all times when outside of the maximum security area and must be escorted by at least two escorts.
MDI detainees where restraints outside the security perimeter unless the Brig O directs otherwise.
Two or more staff members must be present when a MAX detainee is out of his cell.
MAX detainees must be checked on every fifteen minutes with entries posted on a DD-509 Inspection Record of Prisoner in Segregation.
d.) Custody Classification Criteria – Custody Classification shall be based on the amount of supervision and restraint each prisoner requires.
All [missed word] prisoners except those specifically deemed to be serious management problems– MAX shall be assigned an MDI custody classification during the reception phase.
Ultra conservative custody classifications results in a waste of prisoner and Navy power and staff manpower.
Prisoners shall be placed in the lowest custody classification as soon as possible.
1.) Not all implicit factors considered in assessing higher custody classifications MDI or MAX (1) Assaultive behavior (2) Disruptive behavior (3) Serious drug abuse (4) Serious civil, military criminal record convicted or alleged (5) Low tolerance of frustration– intensive acting out or dislike of the military and history of previous escapes (6) Pending civil charges detained or filed (7) Poor home conditions and family relationships (8) Mental evaluation indicated serious neurosis or psychosis (9) Indication of unwillingness to accept responsibility for person actions past or present; demonstrative pattern of poor judgment and (10) length or potential length of sentence.
2.) Not all inclusive factors indicating lower custody classifications– MDO, Minimum, or IC (1) Clear military record aside from the present offense (2) Close family ties; good home conditions (3) Offense charged is not serious (4) Apparently stable mental conditions responsible for own actions (5) Indications that the individual wishes to return to duty (6) Comparatively short sentence comparative to confinement– however length of sentence shall not be an overwhelming factor (7) Behavior during a previous confinement (8) Completion of or active participation in treatment programs or groups
3.) The above factors are indicators not iron clad rules– the Brig O shall consider objective based overrides when applicable and evaluation of all phases of a prisoner’s performance shall me made prior to each custody changed.
The Court notes the SECNAV instruction refers to factors considered in higher versus lower classification.
Pretrial detainees are not eligible for Medium Out, minimum custody, or IC.
MCBQ considered lower classification levels to determine whether MDI rather than MZX MAX custody was appropriate.
Per the SECNAV instruction each staff member has responsibility for passing information concerning prisoners to the proper authority in the confinement facility– what seems to be a bit trivial can prove to be significant– when coupled with other information at hand.
Behavior and attitude of a prisoner in birthing area, at work, in recreation, in a classroom– provide a good overall indicator of problems areas and adjustment progress.
Continuing staff evaluation of each prisoner cannot be over emphasized.
3.) Special quarters – Special quarters is a group of cells used to house prisoners who have serious adjustment problems, create anxiety or disruption among other prisoners in the general population or who need protection from other prisoners. SQ is a preventive management tool not to be used as a punishment except when the procedures for disciplinary segregation are followed.
The SECNAV instruction recognizes that some prisoners require additional supervision due to personality disorders, behavioral abnormalities, risk of suicide or violence, and other character traits.
The require to preserve order– the Brig O or in his or her absence the Brig Duty Officer (BDO) or Duty Brig Supervisors (DBS) may authorize special quarters for such prisoners for the purpose of control, prevention of injury to others or themselves, the orderly and safe administration of the confinement facility.
A hearing to determine the need for continued administrative segregation of the prisoner shall be conducted.
This hearing maybe by board action or by a member of the confinement facility appointed [missed word] by the Brig O and a written recommendation to the Brig O will be provided within 72 hours of the prisoners entry into segregation.
All detainees in SQ shall be under the continual supervision– cited at least once every 15 minutes by a staff member– visited daily by a member of the medical department and the Brig O– with daily visits by a chaplain [missed a few words]. As with MAX custody detainees.
DD-509 inspection record of prison segregation shall be used to document visits.
Prisoners assigned to SQ shall not have normal privileges restricted unless privileges must be withheld for reasons of security or prisoner safety, i.e. suicide risk.
For each thirty days a prisoner is retained in SQ– the CA board shall review and provide recommendation for the Brig O– who will determine an certify the requirement for continuation in SQ– a segregated prisoner shall be released into regular quarters as soon as the need for special segregation is passed.
a.) Status – Although the SECNAV does not use the word quote unquote ‘status’ Navy and Marine Corps correction staff routinely use the word status to define whether a detainee is in the general population, in administrative segregation, or disciplinary segregation.
b.) AS- The SECNAV instruction defines AS– administrative segregation to be the involuntary or voluntary separation for specific cause of select prisoners from the general population to SQ–the purpose of control, preserving order, prevention of injury to themselves or others and for the orderly and safe administration of the confinement facility. AS must be authorized by the Brig O– or in his or her absence the DBO or DBS.
c.) Suicide Risk or Prevention of Injury– SR and POI, SAS. Both SR and POI are subcategories of AS. POI includes prevention of injury to the prisoner at to the staff. The decision to retain a prisoner on POI rests with the Brig O.
The SECNAV instruction provides for the behavior in custody problems on rare occasions it may be necessary to confine violent prisoners in cells without furnishings to prevent them from injuring themselves or others. Such measures shall be used only upon specific direction of the Brig O.
A segregated prisoner shall be released to regular quarters as soon as the need for special segregation is past– there is no additional guidance for criteria in the SECNAV instruction for POI beyond that of AS.
Nor, is there any specific requirement for mental health input, however, the SECNAV instruction encourages medical officer participation in the C&A board where practical.
For SR the SECNAV instruction states in the relevant part that prisoners who have threatened suicide or may be suicidal gestures but are found fit for confinement and prisoners with a history of suicide attempts or who are considered suicidal may be placed in SQ under continuous observation under the category of SR.
Such prisoners shall be immediately referred to the medical department, clinical services, mental health department for further evaluation and appropriate action. The Brig O may direct removal of the prisoners clothing when deemed necessary.
They shall not be permitted to retain implements with which they could harm themselves.
When the prisoners are no longer considered to be SR by the medical officer they shall be returned to the appropriate quarters.
Thus, unlike POI, where authority to continue status rests with the Brig O– the SECNAV Instruction gives the medical officer authority to determine whether or when to remove prisoner from SR status.
d.) AS, SR, POI, and Maximum Custody – Although there are required 15 minute checks for both AS and MAX custody, there is nothing in the SECNAV Instruction addressing whether MAX custody classification is required for prisoners assigned to SQ under administrative segregation suicide risk or administrative segregation POI. In contrast, paragraph 5105(e) states that assignment to disciplinary segregation does not automatically warrant a reduction to maximum custody in paragraph 5105(e)(9) states that prisoners released from DS shall normally be placed in MDI custody. The C&A board reviews custody classification and continuation in SQ as administrative segregation and suicide risk or administrative segregation and POI. In contrast paragraph 5105(e) states that assignment to disciplinary segregation does not automatically warrant a reduction to maximum custody in paragraph 5105(e)(9) states that prisoners released from DS shall normally be placed in MDI custody. The C&A board reviews custody classification in continuation is SQ as administrative segregation suicide risk or administrative segregation POI as separate determinations.
4.) Classification and Assignment Board – The C&A board establishes individual prisoner’s custody classification using objective classification/re-classification procedures. When the C&A board determines custody classifications– it shall be composed of the Brig O or designate– one senior staff member from security and one from programs, and any other members appointed by the Brig O. At consolidated Brigs, a mental health specialist and chaplain shall be assigned. Where practical and not assigned to facility staff, representatives from outside the confinement facility, such as a psychologist or chaplain may be appointed to the board. The board meets at least weekly. Prisoners may appear before the board. The C&A board uses the classification criteria described above. The C&A board also reviews SQ prisoners every 30 days. The C&A board may be reported in the CORMIS or DD form 2711, Initial Custody Classification, DD 2711-1, Custody Reclassification, and DD 27-2 Custody Initial Reclassification Summary Addendum. When immediate access is necessary, the Brig O can make changes in custody classification et cetera without board action. Changes shall be shall be part of the agenda for the next C&A board.
5.) Time for Sunshine Recreation Call – The SECNAV instruction does not use the term quote/unquote sunshine call. It does use the term recreation as a privilege. A privilege is defined as benefit afforded to prisoners over an above minimum statutory requirements. Privileges can be removed for rule violations, but only after a due process hearing, e.g. a disciplinary and adjustment C&A board. Privileges often include, but are not limited to commissary, visits, phone calls, television, radio, movies, recreation, special events, and special visits. In paragraph 5105(e)(5) addressing policies for disciplinary segregation, the SECNAV Instruction provides that a one-hour exercise period shall be granted daily when the prisoner’s behavior is satisfactory. The SECNAV Instruction is silent regarding a minimum amount of exercise period for non-disciplinary segregated prisoners.
6.) Visitation – The Brig O may deny visitation for good cause, e.g. civilian or military protective orders, legitimate rehabilitative interests, and good order and discipline and security of the facility. Official, press, and civilian visits request for general visiting of the confinement facility by groups or individuals shall be coordinated with the local public affairs office (PAO). Marine Corp Base Brig Quantico Base PCF Order P1640.1(c) dated 1 July 2010. The Brig policies largely mirror the SECNAV Instruction, although assigned by CW4 Averhart on 1 July 2010 on or about the time of the Brig transfer from a Level 1 to a Pretrial detention facility. Some of the policies appear to address post-trial detainees and functioning Level 1 facility. Relevant differences or supplements to the SECNAV Instruction are set forth below.
1.) Paragraph 2006 Special Quarters – MCBQ has 36 single occupancy cells, SQ1 consisting of 30 cells and SQ2 with six cells. All cells in SQ are six feet wide, eight feet long, and eight feet high. SQ cells permit inmates to converse and be seen by all staff members.
2.) Paragraph 2007 Exercise Recreation and Training – Outdoor exercise areas for general population will be provided to ensure that prisoners receive at least one hour in accordance with the plan of the day (POD) or PSC supervisor or CO discretion. Additional exercise area is provided for those prisoners within the population who cannot participate within the population who cannot participate in general population recreation call due custody or correct handling requirements. This area is contained within a lock and gate. Prisoners in segregation will receive recreation call in accordance with the plan of the day and their handling letter.
3.) Paragraph 6004.1 Classification and Assignment Maximum Custody – Prisoners requiring special custodial supervision, because of the highest probability of intent to escape due to potential length of sentence or because they are charged with a dangerous or violent offense and escape would cause concern for threat to life or property. A prisoner may be designated as maximum custody because they [sic] have been determined to pose a threat to their own safety or another individual’s safety. Ordinary only a very small percentage of prisoners should be classified as maximum custody.
4.) Paragraph 6004.11D Special Quarters Suicide Risk – Those prisoners who have either attempted or considered committing suicide will be assigned to MAX custody. Medical officer approval is required when prisoners are no longer considered to be suicide risks by a medical officer. They shall be returned to appropriate quarters once the PCF commanding officer’s approval is given. The Court finds that the PCF commanding officer is the Brig O at Marine Corps Brig Quantico.
5.) Paragraph 6004.11E Special Quarters POI – Those prisoners who have been given an indication they indent or are contemplating harming themselves or others will be assigned maximum custody. The Court notes that this paragraph is not consistent with paragraph 6004.1 above, which states that POI prisoners may be considered for maximum custody.
6.) Paragraph 8000.31A [This is either 8031A or 8000.31A] Authorized Visitors states the same as the SECNAV Instruction.
BACKGROUND
Prior to the accused transfer to the Theater Confinement Facility Kuwait on 21 31 May 2010:
1.) The accused’s Basic Act of Service Date (BASD) is 2 October 2007. He attended basic training at Fort Leonard, Missouri. On 28 March 2008 in his ninth week of training, while on holdover status due to medical problems, the accused was command referred to mental health for quote unquote ‘fits of rage’. The accused reported he was increasingly anxious because of graduation in five days. He reported no prior mental health history and was on no medications.
2.) The accused graduated from basic training, completed Advanced Individual Training at Fort Huachuca, Arizona and did a permanent change of station to Fort Drum on 18 September 2008.
3.) On 30 June 2009 the accused was command referred to mental health at Fort Drum for difficulties adapting to his unit. His NCO Non Commissioned Officer in Charge (NCOIC) reported that on being confronted by his supervisor for missing morning formation, the accused began screaming uncontrollably and clenching his fists. His eyes bulged in his face contorted. He screamed three times and stopped, caught his breath, and collected himself. Neither the accused nor the mental health provider found any evidence of significant mental health problem. The accused was invited to return only if his [missed a few words] OIC desired after JRTC.
4.) On 19 August 2009 the accused self-referred to Fort Drum mental health reporting he was isolating, self [missed word] very, going down hill, crying, and feeling vulnerable. He also reported that he was going to break down that day, and described a process in following of the motions. The accused [missed word] reported he is not taking medications, had a history of family dysfunction growing up, and had been on Lexapro in the past. The accused was assessed with an adjustment order with mixed emotional features.
5.) On 15 September 2009 the accused was command referred to the Fort Drum mental health clinic. The mental health provider described the accused as presenting almost rigidly physically and emotionally through out the discussion, and no other probable cause for his being sent is developed. His demeanor is reflected as his perhaps being perceived as odd by others, although there does not appear to be anything diagnosable about it. The accused reported that both parents were alcoholics and since separating from his mother, he has had to rely on himself for survival, and for that reason very carefully manages his interactions with others. The accused was assessed with personality disorder [missed a few words] specified mild with cluster (c) characteristics– excessive but not compulsive.
6.) On 23 to 29 September 2009, the accused had follow up appointments at Fort Drum mental health clinic, discussion ensued about the accused using intellectualization to avoid context that may for some reason be emotionally difficult for him. On 29 September 2009 assessment found the accused had adjustment difficulties typical of persons in their twenties, which he was quite consciously exploring and engaging. He was doing fine. The mental health provider anticipated one or two more meetings prior to the accused deployment.
7.) The accused deployed with his unit to Forward Operating Base (FOB) Hammer, Iraq on 11 October 2009.
8.) On 24 December 2009, the accused was command referred to FOB Hammer Combat Stress Clinic for a command-directed evaluation due to anger outbursts over the past year and a half– where he shoved a chair and began yelling at NCOIC, Master Sergeant Paul Adkins. After he counseled him on the loss of a room key and yelled and flipped the table when counseled by his supervisors. The accused reported in that 2005 he was prescribed Lexapro by a family physician for problems he was experiencing with his step-mother, and he was referred to a physician by his aunt in 2007 due to anxiety attacks he was having and wanted him put on Lexapro. With respect to his current condition, the accused reported he was working the late shift with three other service members and that it was lonely. He reported persistent worry and anxiety about oversleeping and being late for duty and also a hypersensitivity to criticism of his mistakes. The accused was assessed with an anxiety disorder not otherwise specified, with a cluster (b)/(c) personality traits and insomnia. The accused had a normal mental status examination.
9.) The accused had follow up visits on 30 December 2009, 6 January 2010, 16 February 2010, 2 March 2010, 16 March 2010, 23 March 2010, 30 March 2010, and 6 April 2010. The accused discussed problems he was having with his supervisor, who was a letter E-4, his difficulties in relating to people and how that manifests itself, and his discomfort [missed a few words] deflecting issues to close to his quote unquote ‘comfort zone’. The accused was reluctant to engage in interventions to address his discomfort with discussing emotions or sharing personal feelings. The accused was anxious and remained focused on maintaining his behavior and expecting a different outcome from other people.
10.) Prior to 8 May 2010 the accused was not accessed to be a risk of harm to himself or others. On 8 May 2010, the accused was brought to the clinic by his NCOIC because he struck another soldier in the jaw. The accused disclosed to the mental health provider that he desired to be opposite sex from [missed a few words] and was coming to grips about [missed word] revealing that. He also reported that he [missed word] openly with a wig as Breanna Manning for three days while on leave– although not assessing the accused as a threat or harm to himself or others, the mental health provider placed the accused on unit watch and recommended the command bring the accused to the mental health clinic daily.
11.) On 10, 12, 13, 15, and 19 May the accused had follow up appointments at the Combat Stress Clinic. He did not show for the 12 and 15 May 2010 appointments. The accused advised he had transferred to the company and was doing clerical work that was beneath him. He also expressed remorse for the assault and was concerned over what his future would be in the Army. The accused remained on unit watch.
12.) 17 May 2010, the accused received his company grade Article 15 for the assault.
13.) On 22 May 2010, the accused mental health provider opined that his emotion and behavioral symptoms continued to cause impairment. The accused progress or rehabilitation was considered poor and a separation under Army Regulation [AR] 635-200, Chapter 5-17 be initiated.
14.) On 26 May 2010 the accused had a follow up visit with the Combat Stress Clinic, he reported and received Article 15 for the assault and had his rank reduced. The accused remained on modified unit watch without access to a weapon.
15.) On 28 May 2010 the accused mental health provider was advised that the US Army Criminal Investigation Division was investigating the accused for compromising secret information. He was assessed to be of high risk for suicide, homicide, or AWOL and remained on unit watch. The accused was also required to be under guard by escorts. On the evening of 28 May 2010 the accused contacted a colleague, Specialist Rebecca Schwaab [sp.], gave her pieces of paper, and asked her to check his email and investment for him, and to open the emails, read, and write down whatever was in them.
16.) The accused was placed in pretrial confinement at FOB Hammer Brig on 29 May 2010. He was transferred to the Theater Field Confinement Facility (TFCF) at Camp Arifjan, Kuwait on 31 May 2010. The accused remained at TFCF until his transfer to the Marine Corp Brig Quantico on 29 July 2010.
TFCF Kuwait 31 May to 29 July 2010.
1.) On 1 June 2010 the accused initial custody classification was medium custody. He was held in administrative segregation in his cell in Echo One tent. On 2 June 2010 the accused collapsed in his cell.
2.) The accused was subsequently moved to the general population 20 man tent with three to six other detainees. Reveille was at 22 hundred and the day ended at 13 or 14 hundred. The accused participated with the other detainee at [missed word] recreation call and visits to the dining facility and recreation tent.
3.) On or about 9 June 2010 the accused announced in front of a group of detainees that he was gay after he became agitated they were making negative comments about gay people. When asked on 11 June 2010 by NACM Chris Moore if he felt threatened by the other inmates, the accused responded he didn’t feel threatened, but they might feel threatened. After the interview took deep breaths as if having an anxiety attack. Captain Balfour [sp.] from Kuwait mental health clinic arrived. The accused started crying and saying he was sorry. He subsequently advised [Missed name, sounded like ‘cad-ray’, cadre?] he was gay and a woman. He also became non-responsive to verbal communications and orders from [Missed name, sounded like ‘cad-ray’, cadre?] followed by an anxiety attack. During one incident he ran around in circles outside the yard before finally laying down on the ground and refusing to stand up. The accused had to be carried back to his cell.
4.) On 14 and 28 June 2010 the accused was seen at the Kuwait Mental Health Clinic to address [missed one or two words] with anxiety. He presented disheveled hair, although otherwise unremarkable. There is no evidence of current suicidal or homicidal ideations or intent.
5.) On 30 June 2010 after inspection by NA2 Marilyn [sp.], the accused became unresponsive to commands and began yelling uncontrollably. NA2 Marilyn [sp.] called Captain Balfour [sp.] TFCF mental health officer. Both of them ordered the accused into his cell. The accused refused. The accused then began screaming, shaking, babbling, and banging and bashing his head into the adjacent wall. The accused was then placed into his cell in Echo O-3 tent and constant watch, while he continued to mumble and bang back his head against the floor. The accused also knotted sheets into nooses.
6.) On 30 June 2010, the accused was reclassified to maximum custody administrative segregation suicide watch one-to-one.
7.) On 3 July 2010, Captain Iverson [sp.] the commanding officer, Expeditionary Medical Facility Kuwait, formally requested the commander of Theater Field Confinement Facility to transfer the accused to a facility with a separate locked and specialized psychiatric ward for psychiatric neurosis, both of which would be required to manage a patient of this level of high risk and complexity for any extended amount of time. Captain Iverson [sp.] described the accused condition as complex and a period to be long term requiring close monitoring and one-to-one observation.
8.) On 11 July 2010 the commander 1st Armored Division US Division – Center [in Iraq, Maj. Gen. Terry Wolff,] sent a memorandum to the commander of Army corrections command advising the commander Third Army/ARCENT order the transfer of the accused from TFCF Kuwait. Although the memorandum requested transfer of the accused to Mannheim Area of Confinement Facility, Mannheim, Germany, the accused was ultimately transferred to Marines Corp Brig Quantico on 29 July 2010. On 5 July 2010, the accused was advised of the initial charges against. Those charges were four specifications of Article 92 UCMJ violations; eight specifications of Article 134 UCMJ violation to include one specification assimilating 18 USC 793(e); three specification assimilating 18 USC 1030(a)(1); and four specification in violation of 18 USC 1030(a)(2). The maximum sentence that could be imposed for the charges offenses would be reduction to the grade of E-1; total forfeiture of all pay and allowances; confinement for 68 years; and a dishonorable discharge.
9.) On 10 July 2010 an Article 32 investigating officer scheduled the Article 32 investigation for 14 July 2010. On 12 July 2010, the accused was notified the Article 32 investigation was subsequently delayed and did not begin again until 16 December 2011.
10.) On 30 June 2010 the accused was seen at the Kuwait Mental Health Clinic. The providers, Drs. Weber and Hutchinson reported increased levels of aggressive behavior by the accused to include rocking himself, sitting on the floor immobile despite request that he move, then making nooses. During the interview the accused stated he didn’t intend to use the nooses, but wanted to have the option of hurting or killing himself even of he didn’t do it. He wouldn’t deny current suicidal ideations; said he wouldn’t tell anyone; and he was thinking about doing it, because that would defeat the purpose. The accused stated he was sleeping poorly, was confused, with mood swings. He appeared thin and exhausted and sat almost the entire time with his knees fully against his chest and his arms hugging his chest, looking into space, as he spoke. The mental health providers noted that the accused had chronic suicidal ideations without any delineation or plan or intent currently. The mental health providers recommended the accused remain in his cell, ordered one-to-one watch and also prescribed clonazepam for insomnia and [missed medical term].
11.) The accused had the following follow up session at US Mental Health Kuwait.
(a) On 1 July 2010, Dr. Weber saw the accused in his cell. His hair was disheveled. His eyes red and tearful and displayed poor eye contact staring off into the distance. The accused reported being scared and helpless. He again reported suicidal ideation and plan without specific intent, and he would not tell anyone if he did intend to attempt suicide. Dr. Weber recommended the accused be transferred to a facility with more resources for higher care evaluation and treatment.
(b) On 2 July 2010, the accused was seen Dr. Richardson. In addition to the notes from 1 July 2010, this report noted the accused was collecting several items potentially to be used for inflicting self-harm, such as metal. The accused remained ambiguous about discussing suicidal thoughts, staying he was still confused and uncertain. The accused stated clearly he would not contract for safety or notify any staff if he decided to harm himself or had increasing suicidal ideation.
(c) On 4 July 2010 the accused was again seen by Dr. Richardson and Dr. Weber. The accused glasses had been returned. During the session the accused described being seen by a psychologist who thought he had obsessive-compulsive disorder– possible generalized anxiety disorder, and attention deficit hyperactive disorder. When asked about suicidal ideation the accused said quote ‘I don’t know how I am suppose to feel.’ And, again declined to contract for safety or inform staff of the added suicidal ideation. The accused remained in diagnostic elevated high risk of self-harm, remained on suicide watch one-to-one, and recommended to have one book in his cell.
(d) On 6 July 2010 the accused was again seen by Dr. Weber. He discussed reading quote unquote ‘Hunt for Red October’ and discussed his IQ range. He appeared less anxious, reported he considers suicide and option, and feels a sense of relief that he is able to have the option available if needed. He continued to decline to contract for safety or inform anyone that he had a suicidal ideation.
(e) The accused was seen by Dr. Richardson on 8 and 10 July 2010. Although his anxiety appeared to be superficially calmer, he remains ambiguous about his condition and safety starting on 10 July 2010 and in response to a direct question about whether he wanted to kill himself quote ‘Not right now’ unquote and quote ‘It is always an option’ unquote– again, he would not contract for safety.
(f) On 12 July 2010, the accused was seen by a Dr. Richardson. He admitted he would like to die and [missed statement], he would take his life if he was sure could. He did not want pain, but did want death. He may or may not get out of this situation, and how permanent and how long standing the matter was for [missed a few words]. The accused firmly stated he was at peace with option of dying, and he was quote unquote ‘a patient man’. The accused was found as heighted risk of self-harm, to suicide watch, one-to-one remained.
(g) On 16 July, the accused had further follow up with Doctor Richardson. He was aware there was consideration about moving him to another facility. He was frustrated and wanted to be moved off suicide precautions. On 16 July 2010 the accused said he would not hurt himself, but admitted that he tried to lift a pin on his cell door in the past and thought he would be successful. Dr. Richardson believed the accused statements that he would not hurt himself were made to get off suicide off suicide precautions.
(h) On 19 July 2010, the accused saw Dr. Richardson and was noticeably irate and frustrated, saying he didn’t have control over his future. Dr. Richardson determined that although the accused stated he would not kill himself, his reliability was poor. Quote ‘The statements are taken in context at the assessment over a period of time. He previously stated he accepted his death, that he had no future, and that he would kill himself if he knew that he would die. He added that he was a patient man. The accused more recent statement seems to be in context of wanting to change his status and what he wears. There was little depth to this conversation when talking about his emotions, which is when he disclosed, which is when he disclosed his helplessness. When interacting with others in the correctional community, the accused acted out and decompensated. He also acted in an unreliable way, making two nooses, collecting other items that could potentially be used for self-harm and seemingly deceitful about that. The accused had a very fragile ego which could be decompensated in that similar environment at this time. In discussion with Captain Balfour [sp.] there are limited resources at this facility, that combined with the members unpredictability would create vulnerabilities about his safety.’
(i) On 21 July, the accused saw Drs. Weber and Richardson. The accused anxiety and frustration levels were improved. Essential elements of daily life, included physical care and intellectual, social, and spiritual health. He was reading Tom Clancy novels and reported exercising and eating well with increasing abilities to find meaning in moments. The accused remained at elevated risk. The possibility of transfer raises his risk and a transition point for him. The accused was given an additional diagnosis of depressive disorder but otherwise specified, required further time and observation to make the final diagnosis.
(j) On 24 July the accused saw Dr. Richardson. He was angry and irritated, with a focus on trying to change his status and one-to-one watch. The accused stated he did not care about his safety in the sense of relating to the quality of his life, and was considering legal action. Dr. Richardson explained that safety was a priority issue, and in the recent past the accused was with other inmates; there were rules he was expected to follow and did not; and then by making one or two nooses, collecting things could potentially be used for self harm, and did he did not do well emotionally in a community setting. The accused stated he understood the reasons for placing him on suicide watch, but he was a quote unquote “different person” now. Dr. Richardson discussed reducing prescriptions of the accused with the CAO of the TFCF, fifteen minute checks were the next step down. [Missed word] opine that the risk was still too high to implement the restriction.
(k) On 27 July 2010, the accused was seen by Dr. Weber, who found him to be receptive and eager to engage. The accused felt the medications were helpful and that he felt safe. In spite of the improvement, Dr. Weber did not recommend decreasing the two fifteen minute checks on the accused, because of the setting and limited resources in Kuwait, and because the accused still demonstrated a large amount of mood mobility splitting potential manipulation involved ego strength.
On 28 July 2010, Dr. Richardson prepared a summary of mental heath condition and treatment of the accused during his time in confinement at TFCF. The assessment for anxiety (1) Anxiety disorder not otherwise specified. [Dispresent?] disorder not otherwise specified [Missed a few words ending in phrase with letters ‘ROMED’], probably gender identity disorder by previous assessment.
12.) On 29 July 2012 the deputy commander of the confinement facility, Lt. Commander Jeffrey Bar [sp.] prepared a memorandum for the record regarding the accused confinement in Kuwait. Lt. Commander Bar [sp.] observed the accused presented normal behavior during the intake and for the initial few days, but then began to exhibit abnormal behavior and his mental state deteriorated. Ultimately the confinement facility had to place him on 24-hour suicide watch for the remainder of his detention there. Prior to being placed on suicide watch, the accused announced he was gay when he overheard other detainees making negative remarks about homosexuals, and during the days following the incident, he told [Missed name, sounded like ‘cad-ray’, cadre?] he was gay and a woman. He would often become non-responsive to verbal communications and orders from [Missed name, sounded like ‘cad-ray’, cadre?] that were sometimes followed by an anxiety attack. During one incident the accused ran around in circles before lying down in the yard and refusing to stand up. [Missed name, sounded like ‘cad-ray’, Cadre?] had to carry him to his cell. During a routine cell check [Missed name, sounded like ‘cad-ray’, cadre?] found the accused curled in a ball with bed sheet tied into a noose next to him on the floor. Mental health professional evaluated him on several occasions throughout his confinement. They found he had mental issues to include being quote unquote ’emotionally decompensated’ and was at high risk to harm himself or suicide. They recommended transport to a facility with adequate specialized resources and mental health professionals available to manage his case over an extended period of time, which did not exist in the facility in Kuwait.
13.) On 29 July 2010 the accused was transferred from TFCF to Quantico.
Marine Corps Brig Quantico 29 July 2010 to 20 April 2011
1.) On or about June 2010 as a result of the Base Realignment Enclosure Act of 2005 (BRAC), Marine Corps Brig Quantico was converted from a Level 1 facility to a pretrial confinement facility (PTC). Resourcing was cut 50 per cent. Marine Corps Brig Quantico was not structured to be a long-term pretrial confinement facility. Post-trial prisoners could be held at Marine Corps Brig Quantico for 30 days pending transfer. Marine Corps Brig Quantico was not resourced to house pretrial detainees for more than 180 days. See Pretrial Confinement Zero Base review at appellate exhibit 280, Volume III of VI, Pages 005131 [to 9?] and 00513 073 to 88.
Pretrial detainees housing at Marine Corps Brig Quantico after July 2010 were typically held from two weeks to three months. Marine Corps Brig Quantico was not resourced for long-term mental health or other treatment programs. There were no organic mental health assets. Pretrial detainees at Marine Corps Brig Quantico were assigned custody classification [missed word] MAX or MDI. All pretrial detainees regardless of custody level were housed in individual cells in Special Quarters 1, which were six feet wide by eight feet long by eight feet high. The accused was housed in the same sized cell as all other pretrial detainees at Quantico regardless of custody level and status. For 264 days the accused was in pretrial detention at Marine Corps Brig Quantico. The Brig averaged between five and twenty prisoners, staying a length of two weeks or approximately three or four months. No other prisoner during the accused tenure at Marine Corps Brig Quantico was on POI status longer than a few weeks.
2.) At the time of the accused arrival at Marine Corps Brig Quantico on 29 July 2010 CW4 Averhart was the Brig Officer in charge, Brig O. Master Sergeant Papakie was the Brig Supervisor. Master Sergeant, then Gunnery Sergeant Blenis was the Chief of Programs and Senior Counselor. Master Sergeant Blenis was also the accused’s counselor. Captain Hocter provided mental health support for Marine Corps Brig Quantico as an ancillary duty. He was not an organic asset for the Brig. He had been providing mental health serviced to the Brig since 2006, and was the mental health provider when Captain Webb committed suicide on or about Spring of 2010 [NB Judge said 2010].
3.) From 2010 to the present, prevention of suicide has been a top priority for the Department of Defense and all military services. Suicide awareness and prevention training is mandatory across the military services. Marine Corp Brig Quantico had a pretrial detainee Navy Captain Webb commit suicide during the year before the accused arrived. Many of the Brig staff worked at the Brig at that time. Captain Hocter provided mental health support to the Brig. He did not recommend Captain Webb be placed on suicide risk or prevention of injury status. Captain Webb suicide was a traumatic event for the Brig staff. At the time of the accused arrival, Marine Corps Brig Staff was hyper vigilant regarding their duty to prevent pretrial detainees from attempting or committing suicide. They also mistrusted Captain Hocter’s judgment because they believed he missed the indicators for suicide risk. Their approach to maintaining the accused on POI status was to err on the side of caution, even over-caution.
4.) On or about 28 July 2010, the Brig was initially notified of the accused’s arrival. They were also aware of the accused’s mental health history in Kuwait. Upon learning of the accused’s pending transfer to Marine Corp Brig Quantico as a potential long-term pretrial detainee, Col. Choike, Quantico Installation Commander, called Maj. Gen. [Karl] Horst, the accused General Court Martial Convening Authority to advise him of his concerns about the Brig’s lack of resources for a long-term pretrial detainees.
5.) On or about 28 July 2010, Col. Choike held a staff meeting that included Col. Oltman, Lt. Col. Greer, Quantico deputy SJA, CW4 Averhart, the Brig O, Quantico PAO staff, and Brig staff to address management of the accused upon arrival. Lt. Gen. Flynn, the Quantico senior commissioned commander, did not attend the meeting, but was aware it occurred. The Brig staff, as well as Col. Choike Col. Oltman, Col. Choike, Lt. Col. Greer, PAO, and Chief Averhart were aware that the accused was a high profile detainee, who drew media and other attention to the Quantico Brig and base. Col. Oltman ordered CW4 Averhart to prepare a weekly report regarding the status of the accused. CW4 Averhart would forward the report to Col. Oltman, who would then forward the report to Col. Choike. Lt. Gen. Flynn was aware of weekly reports and received them from Col. Choike although perhaps not routinely. Weekly reports on the accused began on 10 August 2010 and continued until the accused was transferred on 20 April 2011 to the Joint Regional Confinement Facility (JRCF), with the final weekly report prepared on 13 April 2011. The weekly reports included Gunnery Sergeant Blenis’ weekly counseling notes of the accused and any significant events involving the accused that occurred that week.
6.) After the accused arrived at MCBQ Lt. Gen. Flynn was engaged both with Col. Choike and Col. Oltman on the Brig side and with Captain Mary Neill, commander Naval Health Clinic, and Captain Hocter’s supervisor on the mental health side. On 9 August 2010 at 13:42 Lt. Gen/ Flynn sent an email to Col. Oltman and Choike with a 9 August 2010 New York Times article about the accused. Lt. Gen. Flynn stated that, with one suicide in the Brig, the command need to cover down on lessons learned from that case. Lt. Gen. Flynn stressed the absolute necessity on keeping a close watch on the accused to include Brig, medical chaplain, and transport personnel. Lt. Gen. Flynn believed the accused life had completely fallen apart making him a strong candidate– from Lt. Gen. Flynn’s perspective– to take his own life. Col. Choike responded that Captain Neill agreed to prepare weekly mental health reports for Captain Hocter regarding the accused mental health status and to forward these reports to Col. Oltman and Col. Choike. The mental health status reports were in addition to the weekly reports from the Brig. On 9 August 2010 at 16:41, Lt. Gen. Flynn responded to Col. Choike quote ‘Dan, just want to make to make sure that you all know my intent and concerns. Is there a secure mental health ward at Walter Reed? What medical authority makes the call on his confinement location as well as his mental fitness? For how long is suicide risk in skivvies and blanket proper? Please make sure that our procedures are correct. We have good assumptions, so we are applying regulations correctly’ unquote. On 9 August 2010 at 17:23 Captain Neill reported to Col. Choike that Captain Hocter opined the accused no longer needed to be on suicide risk as of 6 August 2010 and recommended changing the status to POI. On 9 August 2010 at 18:19, Col. Choike forwarded the mental health status report to Lt. Gen. Flynn who with an email stating he had spoken with Col. Oltman earlier, who advised the Brig O preference was to remain on SR a few more days. The report notes that per the SECNAV Instruction, the medical officer has authority to determine when to remove a prisoner from SR status. See paragraph 3(c) above. On 9 August 2010 at 19:50 Lt. Gen. Flynn responded with an email to Col. Choike asking quote ‘with the status being changed by the medical authority what is the logic of continuing Brig OIC preference’ unquote. Captain Neill, Col. Minor [sp.], the SJA, Col. Oltman were all cc’d on these emails. None of the Brig staff were cc’d. Lt. Gen. Flynn did not communicate directly with the Brig O or the Brig staff. He did not order Brig officials to classify the accused in a particular custody classification or status. He did not influence Brig decisions regarding the accused’s custody or classification. His attempt was to ensure the appropriate regulations and procedures were being applied correctly with common sense, and that the accused was receiving appropriate mental health treatment, that Brig staff and mental health providers were coordinating, and that the accused was safe. Neither Col. Choike nor Col. Oltman ordered the Brig O or the Brig staff to reach any particular conclusions regarding the accused’s status or custody.
7.) On the evening of 29 July 2010 the accused at Marine Corps Brig Quantico and began the indoctrination phase. While completing his inmate back ground and summaries mental health section, the accused indicated that he had considered suicide and wrote in the remarks section quote ‘always planning never acting’ unquote. The accused was not ordered to fill in remarks or told what remarks to write. He wrote ‘always planning never acting’ of his own volition.
8.) The accused scored a five on the management factors for initial custody classification. This would result in a custody level of MDI. The DBS did an override to [missed word] classify the accused as MAX custody, suicide risk. Also on 29 July, the C&A board reviewed the classification of the accused– all three members recommended MAX custody with indoctrination and SR status. The Brig O, CW4 James Averhart approved the recommendation of the DMS and C&A board.
9.) The three member C&A board met weekly to review the accused custody and level of status. Gunnery Sergeant Blenis, the accused’s counselor, was normally the senior member of the board. Gunnery Sergeant Blenis prepared the paperwork and recommended custody level status before the board met. Board results were documented in CORMIS but not on Brig form DD 4200.1 January 11th, until after the review of 3 January 2011. After that review the board results were documented on Brig form 3200.1 until the accused was transferred was transferred from Marine Corps Brig Quantico. The board consistently recommended that the accused remain on MAX custody and on POI status, except for one occasion, when the board recommended the accused be placed in SR status. That would be 18 January 2011. Both Brig O, CW4 Averhart and CW2 Barnes approved all of the C&A board recommendations. The decision to maintain in MAX custody and POI status, where based on similar factors. The accused history of violence towards himself and others in FOB Hammer and Kuwait; his statements in Kuwait and on his intake form that he was quote unquote ‘a patient man’ quote ‘suicide is always an option’ unquote and quote ‘always planning never acting’ unquote indicated a never ending time when the accused may be considering suicide, the nature of the offenses charged, the length of the potential sentence, poor family relationships, low tolerance for frustration, the requirement for mental health treatment, and on the accused guarded interaction and lack of communication with his counselor and the Brig staff. After 18 January 2011 the C&A board and the Brig O, CW2 Barnes, added factors of disruptive conduct by the accused on 18 January 2011, his statements to the board that his initial form ‘always planning never acting’ may have been false, and his current reassurance to the board that he was not suicidal may also be false. On 2 March 2011 the C& A Board added factors of the accused 2 March 2011 statement to Master Sergeant Papakie that he could use the waist band of his underwear to kill himself, the increased stressors to the accused of the receipt of new charges, including aiding and abetting the enemy– with a potential sentence of life without parole or death if capital referral, and the accused almost complete withdrawal from communication with the Brig staff. After 6 April 2011, the Brig O also considered manipulative and false statements made by the accused to Lt. Col. Russel and increasing incidents of minor violations of the Brig SOP. After 2 March also the accused [was] removing visitors from his visitation list.
10.) Captain Hocter was a mental health provider for the accused from 29 July 2010 to 18 January 2011, when he deployed. Because the accused was an Army soldier, he consulted with Col. Malone, a mental health care provider from the Army to add credibility to his assessments of the accused. Captain Hocter visited the accused at least weekly and issued a one-page form to the C&A board entitled quote Suicide Risk and Prevention of Injury Assignment Review. The top line of that form stated quote ‘The following action is recommended for subject custody squad job’. The quote ‘job’ portion is where SR or POI was recommended. The form then four block checks: (1) whether the detainee poses to a threat to himself or not; (2) Whether the detainee requires further mental evaluation; (3) Whether the accused needed to be segregated from the general population or not; and (4) whether the detainee has a low or average tolerance of frustration or stress. Below the block checks are a line for medical officer remarks. Captain Hocter submitted SR and POI/AR to the C&A Board on the following dates: 3 July 2010– SR recommendation; 6 August 2010– POI recommendation; 20 August 2010– POI recommendation; 27 August 2010, 3, 10, 17, and 24 September 2010– Off POI recommendation. 15 minute checks for MAX custody sufficient; 15, 22, and 29 October 2010, 19 November 2010– Off POI recommendation; Undated form between 27 September and 15 October 2010– Col. Malone recommended the accused be removed from POI; 10 December 2010– recommended POI. The accused is not suicidal but under a great deal of stress; 13, 17, 23, and 30 December 2010, and 7 and 14 January 2011– Captain Hocter recommended that the accused be taken off POI. The remarks column or Captain Hocter’s SR and POI/AR forms were usually between two and five lines. The remarks provided Captain Hocter’s recommendation, but not the reasons for his recommendations. Some of the remarks were not legible. Captain Hocter made scribner’s errors in block checks on 3 and 17 September 2010, that mis-stating the accused needed to be segregated from the general population and that the accused posed a threat to himself. These errors confused the C&A board members and led them to believe that Captain Hocter was unreliable and quote unquote ‘covering his six’.
11.) Captain Hocter provided mental health services as an ancillary duty at Marine Corps Brig Quantico since 2006. Marine Corps Brig Quantico officials usually followed his recommendation with respect to SR POI status, although they delayed implementing them. In the accused case, the Brig O, CW4 Averhart, delayed implementing Captain Hocter’s recommendation to remove the accused from SR to POI from 6 to 11 August– a total of six days and begin delayed removing the accused from SR to POI on from 18 to 20 January– a total of three days. CW4 Averhart did not implement any of Captain Hocter’s recommendations to remove the accused from POI status.
12.) There was no meaningful communication between the Brig O, the C&A board, or any of the Brig staff and Captain Hocter regarding the accused mental health condition, and what if anything the conditions of misbehaviors contributed to necessity of maintaining the accused on POI status. In addition, the Brig staff mistrusted Captain Hocter because they believed he provided no notice of his visits, didn’t spend enough time with the accused to properly assess whether he was at risk of attempting suicide, didn’t provide reasons for his recommendations in the SR’s and POI/AR’s and failed to assess the suicidal indicators in Captain Webb.
13.) During CW4 Averhart Captain Hocter tenure, the accused remained in MAX custody and POI from 27 August 2010 through 18 January 2011 against the recommendation of Captain Hocter except for a three day period between 10 and 13 December 2010, when Captain Hocter recommended the accused remain on POI because of additional stressors.
14.) From 1 August 2010 through 18 January 2011, Gunnery Sergeant Blenis’ counseling notes consistently described the accused as courteous and respectful with above average to above average work reports and no disciplinary reports. The accused reported no suicidal findings; he was cooperative with staff. Notes do not reflect that the accused complained about or asked about POI or MAX custody status. They did reflect that the accused was guarded in his communication with Brig staff and preferred to be left alone in his cell, sitting on his rack. The following odd behaviors were documented in counseling notes.
(a) 29 September 2010 documented that on 23 September 2010 the accused tried to send a letter signed as Breanna Elizabeth Manning.
(b) 20 October 2010 the accused prefers to spend all day sitting Indian style in his rack until taps, although he authorized to have a book in his cell between reveille and taps, he has read only two books since his arrival.
(c) 25 November 2010 documented on 23 November 2010 Gunnery Sergeant Blenis overheard guards discussing strange and unorthodox conduct observed by the accused in his cell to include: sword fighting imaginary characters in his cell, lifting imaginary weight in his cell as if displaying actual strain and exertion, staring in the mirror, making faces at himself for extended periods of time. The accused was on occasion observed licking the bars to his cell after taps. When questioned by the guards, the accused acted as if he was just woken up and asked staff members how long he was there.
(d) 1 December 2010 the accused was observed dancing in front of the mirror in his cell.
(e) 8 December 2010 the accused was observed posing and flexing his muscles in front of the mirror in his cell.
(f) 15 December 2010 the accused was observed standing in the middle of his cell with arms spread out staring at the floor, dancing in his cell like rave dancing, and playing peek a boo with himself in the mirror.
The behavior observed by the guards was unusual and strange and were not commonly engaged in by MAX prisoners. The Brig staff and Captain Hocter never engaged to discuss the strange behaviors exhibited by the accused and what of anything that meant from a mental health perspective regarding the accused need for POI.
15.) On 11 August 2010, the accused was downgraded from MAX/SR to MAX /POI. The accused special handling instruction provided him for the following. The accused:
1.) Will wear restraints and be escorted according to custody classification remain in his cell. The DBS will be notified prior to the accused moving outside the special quarters. Control center will commence lock down.
2.) The accused is authorized sunshine call, television call, library call, to make or receive phone calls, weekend/holiday visitation in a non contact booth, and to speak to occupants of other cells in a low conversational tone.
3.) He is not authorized to lie on his rack between reveille and taps unless on medical bed rest, to keep any gear inside his cell with the exception of one rules and regulations, one mattress, one set of PT gear during the hours of reveille.
4.) He will receive toilet paper upon request only.
5.) He will receive one underwear and one POI blanket during taps.
6.) Will eat in cell with metal spoon only. Will have sick call, medication call, and chaplain visits conducted at cell hatch, with legal visits conducted at cell or in a non-contact booth. Remain in cell during fire drill, come to the position of attention in front of the hatch upon entry of any commissioned officer, and remain at attention until told to carry on. Address all enlisted duty personnel by their rank at parade rest. He will be required to stand at the position of attention for counts until carry on is sounded.
The following additional instructions also apply to accused:
1.) He will receive correspondence material from 20:20 to 21:20 to include mail, legal papers, envelopes, DD 510 forms, one pencil and pen, and one book religious or non-religious.
2.) Will receive hygiene items in accordance with the plan of the day only.
3.) Will receive 20 minutes sunshine call in special quarters recreation yard.
4.) All gear will be removed from the cell after taps with the exception of one mattress, one underwear, and one POI blanket.
5.) Will wear [missed two words] vest when leaving the facility on temporary absences at all time.
Starting on the 27 October 2010 the accused’s correspondence time was increased to two hours from 19:20 to 21:20, and sweat pants and a sweat top were authorized during periods of reveille.
Starting on 10 December 2010, the accused was authorized one hour of recreation call in the SQ recreation yard or inside recreation area in case of inclement weather.
The accused restraints were to be removed during recreation call. Library, TV call, and phones were brought to MAX prisoners via a cart. The amount of TV call depended on the number of MAX prisoners sharing the cart. The accused frequently received more than one hour of TV call. In addition the accused was required to be observed every five minutes either in person for from the guard tower. The accused was occasionally asked how he was doing and required to respond. He was not asked how he was doing with each five-minute check.
On 15 September 2010 the Special Court Martial Convening Authority Col. Coffman advised Col. Choike that the Army required monitoring of the accused phone calls, visitation, and mail. Privileged communications between the accused and his attorneys and mental health providers and Brig chaplains were not monitored. Monitoring a detainee communications and visits was not normal operating procedures at Marine Corps Base Quantico.
On or about 1 December 2010, the Brig O ordered that any unusual behavior be logged in a log book kept by guards solely on the accused.
On or about 10 December 2010 the accused’s TV [privileges] provided were taken away because of news reports that he had committed suicide. They were subsequently restored.
On 15 December 2010 the accused was provided a safety mattress and a one-piece pillow included.
One 2 March 2011 the accused’s handling instructions were changed to remove all gear between reveille and taps except his mattress and two POI blankets.
On 7 March 2011 the accused received a suicide smock ordered by PSL Bridge Headquarters Marine Corp.
16.) The name distinctions and handling instructions between the accused while on SR status and while on POI status are that while the accused was on SR status from 18 to 20 January 2011, he was not allowed to keep one book and one set of PT gears shoes during reveille, and was not allowed to keep his eye glasses unless reading or moving outside the cell and was observed one-to-one rather than at five minute intervals.
17.) From 29 July 2010 to 10 December 2011, the accused was allowed 20 minutes of exercise, rather than one hour because of POI status– not because of his MAX custody classification.
On 10 December 2010 after Captain Hocter recommended that the accused received additional exercise time, CW4 Averhart changed the accused handling instructions to one hour of recreation/sunshine call without restraints.
18.) The accused received regular command visits. He told the chain of command he did not understand why he was on POI status during every command visit except 7, 15, 21 October and 12, 10, and 26 November 2010. The accused consistently told his chain of command he was treated professionally by the guards. He never asked chain of command to take any action to change his MAX custody to POI status.
19.) The accused was familiar with DD 510 request form Interview forms. On 17 November 2010 the accused submitted three DD 510 regarding LAS issue; [missed two words] regarding command visits and monitoring; and a request for a subscription to quote ‘Scientific American’ unquote magazine.
On 22 December 2012 the accused submitted two DD510 requests for books and emergency phone call to his defense counsel. The accused did not file any DD 510 requests regarding MAX custody or POI status until 7 January 2011.
The accused also did not raise MAX custody POI status with Gunnery Sergeant Blenis during [missed a few words]. Counseling reviews were forwarded to Brig O during visits to the SQ. Gunnery Sergeant Blenis did not tell the accused Captain Hocter was recommending he remain on POI status during the October November 2010. The accused also did not raise his MAX POI status or otherwise complain about his treatment of the Brig with any of the visitors.
The accused did not request to speak with other detainees working outside of his cell.
On 21 January 2011 the accused told the C&A board that he might need to be placed in protective custody.
He did not complain that his pre 15 December 2010 mattress, his post 15 December 2010 mattress, or his POI blankets to the Brig staff or when asked about it during personal visits on 26 February 2011. Defense counsel began raising the issue of the accused continuation on POI over mental health recommendations via email on 29 November 2010. Defense counsel sent the memorandum to the Brig O on 5 January 2011 with requesting reduction of accused classification from MAX to MDI and removal from POI on the grounds that Captain Hocter recommended the accused status be down grounded from MAX to MDI and recommended that the accused be removed from POI.
On 13 January 2011, Mr. Coombs filed request for release from confinement, under RCM 305(g) with Col. Coffman, his Special Court Martial Convening Authority on the same basis.
On 14 January 2011 the accused advised his chain of command that the 7 January 2011 DD 510 request to change his status and had not yet been acted upon by the Brig.
On 19 January [the accused] filed a request for redress under Article 138 UCMJ.
On 10 March 2011 the accused submitted a rebuttal to the response to his original Article 138 complaint.
20.) Captain Hocter recommended that the accused be removed from POI. He never recommended a downgrade of custody from MAX to MDI. Captain Hocter’s recommendations to remove the accused from POI stated that 15-minute checks required by MAX custody would suffice. The custody classification decision of MAX MDI is a Brig O decision based on the level of security required for a particular pretrial detainee.
21.) There was an increase in media, international non governmental organization, and individual then [missed word] Congressional interest in the accused confinement conditions on or about December 2010 January 2011, and concurrently with the accused and defense counsel complaints and filings about the accused MAX POI custody and status.
The Brig received numerous requests from outside entities who were not on the accused approved vesting list to include Mr. Juan Mendez, UN Special Rapporteur [on torture], and Congressman Dennis Kucinich. Such requests were directed to the DoD office of Congressional Representative Legislative Liaison Affairs, not the Brig.
22.) On 22 December 2011, Lt. Gen. Flynn called Maj. Gen. Arri [sp.] Staff Judge Advocate to the Commandant of the Marines Corps stating that while he had the utmost confidence in the way the Brig is being run, he wanted to be proactive to ensure the Marine Corps held the moral high ground when responding to the media. The subsequent emails along HQ Marine Corps, were because outside visits to the Marine Corps Brig by high level DoD officials with corrections expertise and developments of fact sheets to prepare the Marine Corps Brig Quantico standards with DoD, Army corrections Association, and Bureau of Prisons protocol.
23.) On 14 January 2011, there was a meeting at Marine Corps Brig Quantico with the staff and Captain Hocter and Captain Moore. Among the issues discussed were Captain Hocter’s concerns about the accused remaining on POI status. He opined POI was not justified from a medical viewpoint. CW4 Averhart explained that the medical component was part of the overall classification assessment and the process was continually evaluated. Col. Oltman and CW2 Barnes were present at the meeting. The meeting got heated between Col. Oltman and Captain Hocter. Captain Hocter told the Brig staff to call POI something else if they wanted to maintain the accused on that status for security reasons because it was not warranted for psychiatric reasons. Col. Oltman told Captain Hocter that the accused would remain on POI status and that if keeping him on that status was required to get the accused to trial, that is what they would do.
24.) On 18 January 2011, the accused had an anxiety attack at recreation call. He was being escorted by Lance Corporal Tankersly, Lance Corporal Cline, and GM1 Webb. All of the guards were doing their job properly. They were not harassing the accused. The conduct of the guards had nothing to do any protests in front of Marine Corps Brig Quantico on or before 18 January 2011. The accused perceived the guards to be anxious, so he became anxious. The accused anxiety attack was consistent with history at Fort Drum, FOB Hammer, and Kuwait. The accused recovered and continued his recreation call without incident. Lance Corporal Tankersly and Lance Corporal Cline were replaced for non-disciplinary reasons. After the accused returned to his cell, he was visited by Gunnery Sergeant Blenis, Master Sergeant Papakie, and CW4 Averhart. They asked how he was doing and questioned him about what happened during the anxiety attack. The accused was frustrated when discussing the comparison between his anxiety attack and what happened in Kuwait. He put his hands up by his head and began yelling [missed a few words] quote unquote ‘Why are you staring at me?’ and quote unquote ‘Why are you yelling at me?’
CW4 Averhart placed the accused on quote unquote ‘Special Move Suicide Risk’. The accused initially refused to give his clothes to Master Sergeant Papakie causing CW4 Averhart to order a ‘code blue’ and order that the accused be videotaped. The accused gave his clothes to Master Sergeant Papakie and continued to argue to both Master Sergeant Papakie and Gunny Sergeant Blenis that this anxiety attack was different than Kuwait. That he was not suicidal and that he should not be on POI.
Captain Hocter arrived and recommended the accused be taken off of SR and placed on POI status for 24 hours. CW4 Averhart did not take the accused off SR until 20 January 2011.
25.) On 21 January 2011, after being questioned by First Sergeant Williams following his command visit to the accused on 14 January 2011, CW4 Averhart acted on the accused DD 510, approving his appearance before the 21 January 2011 C&A board. The accused also appeared before the C&A board on 4 February 2011 and 25 February 2011. During his appearance before the board on the 21 January 2011, three days after 18 January anxiety attack, the accused was asked about his intake statement quote ‘always planning never acting’ unquote. The accused advised the board that the statement may have been false in response to a question whether the board should then believe his current assurances that he was not suicidal were also false. The accused replied they may be false. These statements by the accused caused great alarm to each of the board members and exacerbated the concerns that the accused may be patiently waiting to harm himself.
26.) On 24 January 2011, the Brig changed command from CW4 Averhart to CW2 Barnes. Col. Malone replaced Captain Hocter as the primary mental health provider for the accused following Captain Hocter’s 18 January 2011 visit with the accused prior to Captain Hocter’s deployment. CW2 Barnes and Col. Malone had much coordination regarding the accused mental health condition and a much better personal rapport than did Chief Averhart and Captain Hocter.
Together they had revised the SR POI Assignment Review Mental Health forms. CW2 Barnes also implemented Brig form 4200.1 January 11 to document the C&A board proceedings.
27.) Beginning on 21 January 2011, Col. Malone found the accused had no suicidal thoughts or intent; that he was psychologically cleared to come off of POI status. On 28 January 2011, Col. Malone opined that the accused remained at moderate risk of self-harm, had below average tolerance for frustration and a limited ability to express or understand his feelings. Col. Malone opined that risks and benefits of POI are not further detrimental at this time.
Starting on 18 February 2011, Col. Malone changed the SR/POI Recommendation form to a Report of Behavioral Health Evaluation form for the C&A board. This form is similar to the standard mental health status examination forms used for mental status examinations. The form contained blocks to access the accused behavior, level of alertness and orientation, mood and affect, thinking process, thought content, memory, and findings as to the status of the accused mental disorder, risk for suicide, self harm, risk for violence, whether the accused has a behavioral disturbance, whether he needs to be segregated from the general population due to a treatable mental disorder, and whether and how frequently the accused needs further evaluation.
Rather than recommending a particular status, Col. Malone described the accused current mental health status in the remarks. On 18 February 2011, Col. Malone found the accused behavior normal, fully alert and oriented, unremarkable mood and affect, clear thinking process, normal thought content, good memory, and found the accused mental disorder resolved. Risk for suicide self harm and risk for violence low, and behavioral disturbance was not applicable and the accused did not need to be segregated from the general population due to a treatable mental disorder, and that he required routine earlier examination.
In the remarks section Col. Malone opined the accused anxiety disorder remains in early full remission. He is tolerating medication, taper off well. He understood the risks and benefit of treatment, and that he responds well to intellectual stimulation.
On 4, 8, 11, and 18 March and 8 April 2011 Col. Malone checked the same boxes and remarked that the accused anxiety disorder was in remission. He was completely off his medications, remains at low risk of suicide self-harm and that he would benefit from intellectual stimulation.
28.) On 6 and 15 April 2011 Lt. Col. Russel did the mental health assessment of the accused for Col. Malone. Lt. Col. Russel checked the same blocks as Col. Malone except he found the accused mental disorder stable rather than resolved. After speaking at length with CW2 Barnes, Lt. Col. Russel opined that the accused presentation to him varied significantly from that observed by the Brig staff. Lt. Col. Russel opined that the Brig O’s decision to maintain due diligence for self-harming behavior was not unreasonable given the accused recent withdrawal from staff and his refusal to communicate with Brig staff to give them assurances of his safety if removed from POI.
He further opined that the accused behavior was likely to persist.
29.) The withdrawal of the accused from his medication is not listed in the accused chart until 23 February 2011. CW2 Barnes thought the accused was refusing to take his medication until she spoke with Col. Malone on 23 February 2011, and only because the accused had extra supervision, Col. Malone was comfortable taking him off his medications. CW2 Barnes disagreed with Col. Malone’s decision to wean the accused off of his medication, because of the accused’s additional stressors and uncertainly about his future.
30.) On 2 March 2011, the accused received notice of the [missed word] charges including aiding the enemy with the possibility of confinement for life without parole and death if a capital referral. He also received Col. Choike’s response denying his Article 138 request for redress. The Marine Corps Base Quantico chain of command wanted Col. Malone to see the accused to access his mental health with the arrival of these additional stressors. The accused was observed mumbling to himself. Col. Malone could not be located and was on emergency leave.
On 3 March 2011, Chief Barnes got in touch with Col. Malone who arranged to see the accused on 4 March 2011. The Marine Corps Brig chain of command was not happy about this. The incident cause Lt. Gen. Flynn to fully engage with Captain Neill to coordinate the Army to get additional mental health support for the accused at the Marine Corps Brig Quantico.
31.) On 2 March 2011 shortly before taps, Master Sergeant Papakie was advised by a guard that the accused did not understand why he had to give up his clothes except underwear at night. Master Sergeant Papakie spoke with the accused who continued to insist he didn’t understand why all the items were taken except his underwear with the elastic band because it is the most dangerous piece.
The accused was chuckling briefly as if the conversation was absurd. Master Sergeant Papakie told Chief Barnes of the comment. CW2 Barnes ordered the accused’s gear except one mattress and two POI blankets be removed from his cell after taps to include his underwear, shower shoes, and eyeglasses.
CW2 Barnes cited SECNAV Instructions paragraph 4-14(b)(5)(b) as authority to remove the accused underwear. This paragraph applies only to suicide risk status, not POI. However, the Court finds that SECNAV Instruction 4-14(a) and (b) give authority to the Brig O to restrict privileges to prisoners in SQ, but they must be withheld for reasons of security or safety. This would include authority to remove clothing including underwear in cases where the Brig O had reason to believe the clothing was necessary to get removed for security or safety reasons for a period of time that is not excessive in relation to the legitimate Government interest in protecting pretrial detainees from self-harm.
32.) The proper mode of communication for a pretrial detainee to a guard announcing questions was to address the guard by his rank and then ask the questions. There was no requirement for detainees to refer to themselves in the third person. The accused is aware of this through indoctrination. The accused did not refer to himself in communication with the staff in third person is reflected in his 26 February 2011 personal visit when he asked quote ‘Lance Corporal, can I turn on the light?’ unquote.
33.) On the morning of 3 March prior to reveille the accused clothes were not in his feed tray. He stood at attention for count naked without covering himself with his POI blanket, as was his normal practice. He [missed word] done this before. While in POI status from [missed date] August 2010 until 2 March 2011, the accused had his clothes removed from taps to reveille except underwear and shower shoes. He stood for count covering himself with his POI blanket.
The accused testified he attempted to stand with his POI blanket covering himself. He was told by a guard, ‘Is this how you stand at parade rest?’ quote unquote. The accused testified he requested clarification from the guard asking, quote ‘Lance Corporal, detainee Manning asks if he has to put the blanket down?’ unquote. He testified that he received a yes response and took it as an implied task to drop the POI blanket and stand naked at parade rest, then in a position of attention during count.
Nobody from the Brig staff ordered the accused to stand naked at the position of attention during count. The Brig staff did not consider the incident significant until 4 March 2011 New York Times article entitled quote ‘Soldier in Leaks Case was Jailed Naked Lawyer Says’ unquote.
34.) On 3 March 2011 after count the accused made a telephone call to Mr. Coombs. Mr. Coombs maintains a blog of this case. On 4 March 2011 the accused clothes were in his feed tray prior to reveille. Also on 4 March 2011, the New York Times article was printed stating the relevant part quote ‘A lawyer for Pfc. Manning has complained that his client was stripped and left naked in his cell for seven hour on Wednesday’ unquote. The article quoted the following taken from the blog: quote ‘The soldier’s clothing was return to him Thursday morning after he was required to stand naked outside his cell during an inspection. This type of degrading treatment is inexcusable and without justification. It is an embarrassment to our military justice system and should not be tolerated. Pfc. Manning has been told the same thing will happen to him again tonight. No other detainee in the Brig is forced to endure this type of isolation and humiliation’ unquote.
From 4 March 2011 to 28 April 2011 [NB Lind said ‘April’, but this is probably incorrect, since Manning was at JRCF on 20 April 2011. She may mean March] the accused was ordered to relinquish all items from his cell except his suicide mattress and two POI blankets. The accused was given a suicide smock to wear on starting on 7 Match 2011. There is no evidence before the Court that the accused was ordered by anyone from the Brig to stand naked outside his cell at any time or to stand naked at any time after the morning of 3 March 2011.
On 4 March 2011 the accused’s clothes were in his feed tray prior to count.
35.) On 4 March 2011 Lt. Col. Wright from Headquarters Marine Corps Law Enforcement Correction Branch Security Division Plans, Policies, and Operations (PSL) the proponent of SECNAV Instructions 1640.9 wrote an email to Col. Oltman saying ‘it was the professional opinion at PSL that they had concerns about recent decisions made the Brig O and to take any measure that are consistent with suicide watch but not officially place that person on suicide watch status was inconsistent with the way we are suppose to do business.’
36.) Lt. Gen. Flynn knew nothing of the handling instructions regarding the accused until he read about them in the New York Times on 4 March 2011. Lt. Gen. Flynn was not happy to learn about them this way. He contacted Col. Choike to rely his intent that any changes in the accused handling instruction or assignment must be briefed to Col. Choike and passed on Lt. Gen. Flynn before execution. Lt. Gen. Flynn’s intent was to ensure he would be prepared to address political impact, media, interests, legal ramifications, and senior leadership reaction to any changes in handling instructions. The guidance came after CW2 Barnes increased the restrictions on the accused. There was no intent by Lt. Gen. Flynn, Col. Choike, or Col. Oltman to prevent CW2 Barnes from easing restriction on the accused or to chill her discretion in making custody or status determinations for the accused.
37.) Prior to the 4 March 2011 New York Times article, Lt. Gen. Flynn was coordinating with the Headquarters Marine Corps, Headquarters Department of the Army, and mental health chain of command to provide permanent mental health support for both the accused and Quantico Brig– and for additional assets the Marine Corps Brig Quantico if it continued to serve as the de facto Regional Personnel Confinement Facility (PCF).
He was also coordinating PAO regarding confinement conditions of the accused and inviting visits from outside Inspectors General and officials with corrections experience to visit Marine Corps Brig Quantico to ensure that the Brig was confining the accused properly in accordance with confinement regulations and procedures. Lt. Gen. Flynn’s guidance after 4 March 2011 to Col. Choike was to ensure that he was briefed before any changes to the accused handling instructions occurred, so he was prepared to fully explain what occurred and why.
Lt. Gen. Flynn did not intend to influence the decisions of the Brig O regarding the accused custody status or handling instructions. The Brig O did not proceed with Lt. Gen. Flynn’s guidance as a constraint to her discretion.
38.) On 14 January 2011, Lt. Gen. Flynn instructed Col. Choike to conduct a zero base review of the Marine Corps Brig Quantico to assess Marine Corps Brig Quantico’s resourcing and viability of designating Marine Corps Brig Quantico as a joint or regional PCF with associated funding and manpower. The review found that relevant part of Marine Corps Brig Quantico was not resourced to house long term pretrial detainees for more than 180 days and was not resourced again to house high-profile pretrial detainees requiring maximum security and complex mental health issues.
The zero base review further recommended the following Brig policy provision changes:
1.) The provision mandating detainees in SR/POI receive a custody classification MAX should be changed to provide the custody and status evaluation be conducted separately.
2.) To clarify the authority of a medical officer to determine what protective measures are necessary based on a mental health evaluation and of a Brig O to impose or re-impose additional protective measures based on subsequent behavior.
3.) Establish separate special quarters and general population quarters; and
4.) To ensure that the Brig O returns detainees to the appropriate to the appropriate conditions reported when no longer considered to be suicide risk by a medical officer. The SOP should also state that absent additional factors, the Brig O may not place or return a detainee to SR status and impose associated protective measures.
Ultimately, the zero base review recommended that the confinement facility at Quantico be closed.
39.) On 20 April 2011 the accused was transferred to the Joint Regional Confinement Facility (JRCF) was classified MDI and remained at that classification level to date with one disciplinary review board. JRCF does not have POI status.
40.) After the accused transferred, the Headquarters Marine Corps PSL sent guidance to Marine Corps Brig Quantico to ensure that custody and classification were separate determinations as a matter of correctional practice similar factors are considered to determine MAX custody and POI status.
THE LAW
1.) Article 13 UCMJ prevents the imposition of (1) punishment prior to trial and (2) conditions of arrest or pretrial confinement that are more rigorous than necessary to ensure the accused presence for trial. Prong (1) involves a purpose or intent to punish determined by examining the intent of detention officials or by examining the purposes served by restriction or condition and whether such purpose are reasonably relate to legitimate Government objectives. The second prong applies only when an accused is in pretrial confinement. Prong (2) examines whether conditions are significantly or sufficiently egregious to give rise to permissive inference that the accused is being punished or the conditions made so excessive as to constitute punishment. US v. King 61 MJ 225 Court of Appeals for the Armed Forces (2005)
2.) Under both prongs the burden is on the defense to show the military officials intent to punish the accused or that the restrictions as opposed are excessive and otherwise not reasonably related to legitimate objectives. See US v. Harris 66 MJ 166 Court of Appeals for the Armed Forces (2008)
3.) Sentence credit is the appropriate remedy for Article 13 UCMJ violations in accordance with RCM 305(k). US v. Williams 68 MJ 252 US v. Crawford 62 MJ 411
Dismissal is also a possibility that is rarely appropriate. It should be exercised only under the most egregious circumstances so as not to exonerate an accused for reasons unrelated to guilt or innocence and thereby preclude the public’s interest in deterring the permission of serious misconduct. US v. Fulton 52 MJ 767 Air Force Court of Criminal Appeals (2000)
4.) Conditions of confinement relate to both ensuring the accused presence for trial and the security and needs of the confinement facility. A military court should be reluctant to second-guess the security determinations of confinement officials. US v. Crawford 62 MJ 411, 414 Court of Appeals for the Armed Forces (2006)
Maintaining security and order and operating the institutions in a manageable fashion or particularly within the province of professional expertise of correction officials, and in the absence of substantial evidence in the record to indicate the officials have exaggerated the response to these conditions, Courts should ordinarily defer to expert judgment in such matters. id. quoting Bell v. Wolfish, 441 US 520, 540 Note 23 (1979)
The test is: (1) Is there an intent to punish or stigmatize a person waiting disciplinary reaction? and; (2) If not, were the conditions reasonably in furtherance of a legitimate Government objective. US v. Starr 53 MJ 380 Court of Appeals for the Armed Forces (2000)
The Court finds that reasonably included an analysis of whether the restrictions taken by military officials are excessive in relation to the legitimate Government interest involved.
5.) The Eighth Amendment protection against cruel and unusual punishment does not apply to prisoners who have not been convicted and sentenced or in other words punished. Pretrial detainees challenging pretrial confinement conditions as unlawful pretrial confinement do so by the due process clause of the Fifth Amendment of the United States Constitution. US v. Bistrian 2012 WL 4335958 3rd Circuit (2012)
Like Article 13 UCMJ, the Fifth Amendment due process clause protects pretrial detainees who have not been convicted and sentenced for being punished. Conditions reasonably related to confinement facilities interested in maintaining jail security are not unlawful pretrial punishment. Like Article 13, the test of the Fifth Amendment for whether a particular measure amounts to unlawful pretrial punishment is whether there is an expressed intent to punish, when a restriction or condition is not reasonably related to a legitimate non-punitive Government purpose or when the restriction is excessive in light of that purpose in light of the totality of circumstances. Bell v. Wolfish, 441 US 520 (1979)
The Court finds that the excessiveness in relation to Government interests is included in the Article 13 analysis of whether a condition of confinement is reasonably related to a legitimate Government interest. The Court has not been presented with any evidence that sentence credit is a remedy for Fifth Amendment violations of unlawful pretrial punishment. Dismissal of charges under the Fifth Amendment due process clause is appropriate only when the Government has engaged in outrageous conduct. US v. Gilkitch [sp.] 2012 WL 3711536 First Circuit (2012)
As such, the Court encompasses the Fifth Amendment challenge in its Article 13 UCMJ findings of fact and conclusion of law.
6.) Confinement in violation of service regulations did not create a per se right to sentencing credit under Article 13 UCMJ. US v. Williams 68 MJ 252 Court of Appeals for the Armed Forces (2010) cited US v. Adcock 65 MJ 18 Court of Appeals for the Armed Forces (2007)
Failure to follow requirements of a regulation, such as the SECNAV Instructions as it relates to the conditions of pretrial confinement is not determinant on the issue of violation of Article 13 US v. McCarthy 47 MJ 162, 168 Court of Appeals for the Armed Forces (1997)
7.) Impositions on a pretrial detainee are not cognizable under Article 13 UCMJ US v Corteguera 56 MJ 330 Court of Appeals for the Armed Forces (2002)
8.) Long-term confinement of a pretrial detainee at MAX custody is not automatically in violation of Article 13. McCarthy 47 MJ 162, 168 Even if the accused is confined as a pretrial detainee for a long time, he is not allowed to dictate the conditions of his confinement US v Willenbring 56 MJ 671 Court of Appeals for the Armed Forces (2001)
Decisions to place pretrial detainees at the MAX custody status based on arbitrary policies that do not examine the individual circumstances of the accused or based solely on the charges rather than a reasonable evaluation of the facts and circumstances in a case can violate Article 13. US v. Crawford 62 MJ 411 Court of Appeals for the Armed Forces (2006), US v. Evans 55 MJ 732 Navy Marine Corps Court of Criminal Appeals (2001), US v. Anderson 49 MJ 575 Navy Marine Corps Court of Criminal Appeals (1998) stating Brig policy requiring custody level of MAX for detainees who face more than five years confinement is arbitrary and constitutes unlawful pretrial punishment in violation of Article 13.
However, the length and seriousness of the offense and length of sentence are relevant factors the Brig officials may consider in determining custody level. US v. Harris 2007 WL 1702575 Navy Marine Corps of Criminal Appeals (2007)
9.) Preventing suicides is a legitimate Government interest. US v. Williams 68 MJ 252 Court of Appeals for the Armed Forces (2010)
10.) Failure of the accused to contemporaneously complain with strong evidence that Article 13 was not violated. Subsequent good behavior does not serve to revise the facts as they existed and were known to Brig authorities. US v. Crawford 62 MJ 411, 415 Court of Appeals for the Armed Forces (2006) quoting US v. Huffman 40 MJ 225, 227 Court of Appeals for the Armed Forces (1994)
However, the fact that an accused or defense counsel does complain does not prove that an Article 13 violation occurred. US v. King 61 MJ 225 Court of Appeals for the Armed Forces (2005)
11.) The views of United Nation’s officials such as the special rapporteur in this case, may serve as a useful interpretive aid, but do not possess the force of law unless Congress endowed them with such authority and are not controlling of legal determination in American Courts. INS v. Aguirre-Aguirre 526 US 415 (1999)
There’s been no evidence presented that Article 13 UCMJ was enacted to implement any international obligation of the United States. Medellín v. Texas 554 US 759 (2008)
CONCLUSIONS OF LAW
1.) The defense challenges the periods the accused remained on suicide risk over Captain Hocter’s recommendation as unlawful pretrial punishment. The Government concedes that maintaining the accused on suicide risk after mental health provider determined he was no longer a suicide risk constitutes unlawful pretrial punishment under Article 13. The Court agrees. The [missed word] will receive one day of confinement credit starting the day after Captain Hocter recommended the accused be removed from suicide risk. The accused will receive sentence credit for pretrial confinement in violation of Article 13 from 7 through 11 August 2010 and 19 and 20 January 2011 for a total of seven days.
2.) From on or about December 2010 until the accused was transferred to JRCF on 20 April 2011, the accused conditions of confinement generated a lot of media, non governmental organization, international entity, and individual Congressional attention. Individuals from these organizations to include Mr. Mendez, UN Special Rapporteur and Congressman Kucinich requested to visit the accused. Marine Corps Brig Quantico did not deem these as official visits, and elevated inquiries from such individuals or entities to visit the accused in un-monitored status to higher headquarters Marine Corps, Army, or with the Department of Defense. This was appropriate.
Neither Mr. Mendez or Congressman Kucinich or any other member of an NGO or international entity were on the accused visitation list. What if any visitation between individual members of international or NGO entities and individual congressmen acting on their own recognizance within the discretion of The Executive branch. There has been no evidence presented that Article 13 UCMJ was enacted to implement any US treaty or other foreign affairs obligation in the United States. The Court defers to the agency interpretation of [missed word] regulations, denial of, or monitoring of visits by NGO’s, international bodies, or Congressmen acting in their own individual capacities does not constitute illegal pretrial punishment under Article 13 UCMJ.
3.) The accused was not held in solitary confinement. Solitary means alone without human contact. Although the accused was confined by himself in a cell similar to that of other detainees at Marine Corps Brig Quantico, he had daily human contact. There was no additional door separating the accused cell from the main hallway. He can view all activity going on in the hallway. He had weekly visits with his counselor and mental health professionals as well as daily walk through visits by the Brig O.
4.) Throughout the duration of the accused pretrial detention at Marine Corps Brig Quantico, the C&A board met weekly to access the accused custody level classification. Although there was some confusion in the Brig policy over whether POI status required MAX custody, the C&A board determined independently the accused should be detained in MAX custody align with factors set forth in the SECNAV Instruction independent of POI: primarily the nature of the accused offenses, the potential length of sentence, low tolerance for frustration, continuing need for mental health evaluation, and poor family relationships.
Gunnery Sergeant Blenis prepared or presented his recommendations as to custody and classification as the accused counselor while simultaneously serving as the senior board member. Although this procedure was not ideal, the Court finds that each member of the C&A board reached its determination independently and the board procedures were conducted in accordance with the SECNAV guidance.
The Court [missed word] that CW4 Averhart and CW2 Barnes made independent judgments with regards to each of the accused custody classification determinations. Although, Col. Oltman concurred with both CW4 Averhart and CW2 Barnes determinations, he made no attempt to influence their decisions. Col. Oltman concurred after those determinations were made.
Neither Col. Choike nor Lt. Gen. Flynn attempted to influence the decisions of either CW4 Averhart or CW2 Barnes with respect to custody or classification of the accused. On 14 January 2011 heated words were exchanged between Col. Oltman and Captain Hocter. Col. Oltman stated if necessary for the accused to appear at trial, the accused would stay on MAX POI while under his watch. By these comments Col. Oltman did not attempt to influence CW2 Barnes on custody status decisions. He did not in fact influence custody and status decisions regarding the accused.
Throughout the accused detention at Marine Corps Brig Quantico when Col. Oltman was briefed by CW4 Averhart or CW2 Barnes regarding the accused custody classification or handling instructions, the [missed a few words] to advise Co. Oltman after they had been made.
5.) As early as the arrival of the accused, Lt. Gen. Flynn’s intent was to ensure Marines Corps Brig Quantico was following regulations [missed word] if proper and with common sense and [missed word] with the accused. He wanted to hold the moral high ground. Lt. Gen. Flynn was consistently engaging the mental health chain of command, [missed word] Marine Corps corrections, and the Army at the HQ [missed phrase] level, to obtain additional mental health to enable Marine Corps Brig Quantico to effectively maintain the accused as a long-term pretrial detainee.
As the senior commissioned commander equivalent of Marine Corps Quantico, Lt. Gen Flynn had a need to know of any changes in handling instructions, custody status, or other confinement conditions for the accused, so he is properly prepared to engage and inform higher headquarters, PAO, and otherwise simply informing the public about the Marine Corps Brig Quantico to ensure adequate information was being relayed about the accused conditions of confinement.
6.) There was no intent to punish the accused by anyone on the Marines Corps Brig staff or Marines Corps Quantico chain of command. There intent was to ensure the accused was safe, did not hurt or kill himself, and was present for trial. The Marines Corps Brig staff was also concerned about the security of the Marine Corps Brig, its staff, and the other prisoners there.
7.) The charges are serious in this case and there was no intent to punish the accused. Dismissal of charges is not an appropriate remedy for any Article 13 UCMJ violations in this case.
8.) Preventing pretrial detainee from injuring or killing himself is a legitimate government interest. The use of POI as a status is a reasonable tool for advancing that interest. Unlike SR, where the [missed word] to remove is made by the medical officer, the SECNAV instruction leaves the POI removal decision to the Brig O.
In this case the accused was held in long term POI status based on based largely on his mental health history, and his mental health condition with restrictions approaching [missed word] Suicide Risk. At some point continuing POI over the recommendation of mental health professional becomes excessive in relation to the legitimate Government interest, absent changes in circumstances.
9.) With respect to CW4 Averhart/Captain Hocter tenure there was no meaningful engagement between the Brig staff and Captain Hocter. The Brig staff did not trust Captain Hocter. Captain Hocter recommended the accused from POI on 27 August 2010. The Brig O had discretion to maintain the accused on POI after that recommendation for a reasonable period of time. The reasonableness of time includes consideration of the accused history of suicidal ideation and violent behavior in Kuwait. The ambiguous statements made by the accused regarding suicide as an option indefinitely and the accused continued guarded communication with Brig staff.
The Court finds the continued maintenance of the accused on POI status over mental health recommendation after 1 November 2010 was excessive in relation to the legitimate POI interest resulting in the accused being held conditions more rigorous than necessary except for the period of 10 through 13 December 2011, when Captain Hocter recommended the accused remain on POI.
The Court will award one day of sentence credit for 1 November to 17 January 2011– minus those three days for a total of 75 days.
10.) The accused’s panic attack on 18 January followed by his comments on 21 January 2011, and 2 March in light of his behavior and comments in Kuwait caused reasonable concern for the Brig staff. Continuing the accused on POI notwithstanding the recommendations from mental health professionals was not excessive in relation to the legitimate Government interest in preventing the accused from injuring himself or others. There was no Article 13 violation from 18 January to 3 March 2011 and a reasonable period thereafter.
11.) CW2 Barnes had authority to remove the accused underwear when he made a direct comment about the ability to commit suicide with the waist band, however, this removal does approach Suicide Risk restrictions and at some point the accused comments must be considered in context and in connection with his mental health diagnosis, even if Brig officials disagree with the diagnosis, treatment authority of the mental health professional.
The Court sets that point at 1 April 2011.
Detaining the accused in POI status over the recommendations of mental health professions when his mental health condition was in remission and without considering the context of the 2 March 2011 communications by the accused, became excessive in relation to the legitimate Government interest.
This decision is a very close call. In March April 2011 the accused removed visits from his visitation list, withdrew completely from communication with Brig staff even after being advised that if he provided assurances to the Brig O and explanations of his behavior that he would be taken off POI status, was engaging in subtle increase in rules violation, and was not truthful with statement’s to Lt. Col. Russel. These factors are balanced by the fact that the Brig O was aware that the accused his comments of 21 January 2011 and 2 March 2011 were being used against him to continue his POI status.
The [missed word] history of maintaining the accused on lengthy POI status without meaningful mental health provider input. The Court will grant day for day sentence credit from 1 to 20 April 2011 for a total of twenty days.
12.) Although the SECNAV Instruction does not affirmatively state that one hour is required of exercise time for all prisoners, the testimony of CW5 Galaviz, CW2 Barnes, and Lt. Col. Hilton, and well as the disciplinary segregation section of the SECNAV Instructions and Marine Corps Brig Quantico policy indicate that one hour of exercise is the standard for all prisoners unless limited because of prisoner behavior and staff resource constraints.
The Court neither existed to systematically limit the accused to 20 minutes of exercise call on 29 July 2010 to 10 December 2010. This violation, although not to minimize, is minor. One for one-day sentence credit is excessive and disproportionate to the Article 13 UCMJ violation. The Court grants ten days of sentence credit.
13.) Any comments that may be perceived as derogatory statements made about the accused in emails between the Brig staff were de minimis, were not communicated to the accused or any other prisoner, and were not humiliating to the accused. No sentencing credit is warranted.
14.) Monitoring the accused communications and visitation under circumstances where the accused is charged with disclosing a huge volume of classified information is a legitimate Government interest. It does not violate Article 13.
15.) The Court recognizes that RCM 305(k) can provide an independent basis for additional credit. US v. Williams 68 MJ 252 Court of Appeal for the Armed Forces (2009). Having considered the totality of the circumstances as set forth above, RCM 305(k) and the granted of Article 13 credit, the Court does believe that additional credit is warranted.
RULING
The accused has been granted with 112 days of sentence credit for Article 13 punishments. So ordered, the 7th day of January 2013.
[On January 9, 2013 Judge Lind augmented her order, adding, ‘Alright I have one additional finding for the Article 13 motion that I did yesterday and that is that the Brig O decisions to maintain the accused at MAX custody through out his confinement at Marine Corps Brig Quantico was based on the individualized considerations of the accused and the SECNAV Instruction factors. This was neither an indiscretion or a violation of Article 13’]