Bradley Manning – Motion to Dismiss for Unlawful Pretrial Punishment

IN THE UNITED STATES ARMY FIRST JUDICIAL CIRCUIT U N I T E D S T A T E S )
) MOTION TO DISMISS
v. ) FOR UNLAWFUL
) PRETRIAL PUNISHMENT
MANNING, Bradley E., PFC )
U.S. Army, xxx-xx-9504 )
Headquarters and Headquarters Company, U.S.
Army Garrison, Joint Base Myer-Henderson Hall,
Fort Myer, VA 22211
)
) DATED: 27 July 2012
)
RELIEF SOUGHT
1. PFC Bradley E. Manning, by and through counsel, pursuant to applicable case law and Rule
for Courts Martial (R.C.M.) 907(a) requests this Court to dismiss all charges with prejudice
owing to the illegal pretrial punishment PFC Manning was subjected to in violation of Article 13,
UCMJ and the Fifth and Eighth Amendments to the United States Constitution. Alternatively,
the Defense requests that this Court grant meaningful relief to include at least 10-for-1
sentencing credit.
BURDEN OF PERSUASION AND BURDEN OF PROOF
2. The Defense, as the moving party, bears the burden to present evidence to support PFC
Manning’s claim of illegal pretrial punishment. This involves a “relatively low burden of proof.”
United States v. Scalarone, 52 M.J. 539, 544 (N-M. Ct. Crim. App. 1999). Once the Defense
does this, the burden then shifts to the Government to present evidence to rebut the allegation
beyond the point of inconclusiveness. See United States v. Cordova, 42 C.M.R. 466, 1970 WL
7132 (A.C.M.R. 1970)(“Appellate government counsel apparently contend that because the
evidence is ‘inconclusive’ the fact of pretrial punishment has not been established. If this be the
Government’s intended conclusion, we do not agree. The burden of producing evidence in
support of a motion to dismiss on the basis of illicit punishment while an accused is confined
pending trial, is one for the defense. However, once the issue is raised—in this case by the
aforementioned testimony—the burden shifts to the prosecution to rebut that evidence beyond
the point of equipoise or ‘inconclusiveness.’”); United States v. Scalarone, 52 M.J. 539, 543-4
(N-M. Ct. Crim. App. 1999).
AMICUS FILINGS
3. The Defense requests that this Court consider an amicus filing from Psychologists for Social
Responsibility. This has been filed as Attachment 41.
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WITNESSES/EVIDENCE
4. The Defense requests the following witnesses be produced for this motion:
a) **Redacted****Redacted**;
b) **Redacted****Redacted**;
c) **Redacted****Redacted**;
d) **Redacted****Redacted**;
e) **Redacted****Redacted**;
f) **Redacted**;
g) **Redacted**;
h) PFC Bradley Manning.
This Court has ruled that the testimony of **Redacted****Redacted**is not relevant and
necessary for this motion.
5. The Defense requests the following evidence be produced for this motion:
a) Suicide Smock;
b) Suicide Blanket;
c) Suicide Mattress.
ATTACHMENTS
6. The Defense respectfully requests that this Court consider the following Attachments:
1. Initial Custody Classification Determination
2. Psychiatrists’ Weekly Recommendations
3. Secretary of Navy Instruction (SECNAVINST)1640.9C
4. Special Handling Instructions
5. Observation & Evaluation (O&E) Notes
6. Classification & Assignment (C&A) Board Reviews
7. **Redacted**Affidavit #1
8. **Redacted**Affidavit #2
9. **Redacted**Affidavit
10. Memorandum to **Redacted****Redacted**About Conditions of Confinement, 5 January
2011
11. Request for Release From Confinement, 13 January 2011
12. **Redacted****Redacted**, Response to Request for Relief From Confinement, 21
January 2011
13. PFC Manning Article 138 Complaint, 19 January 2011
14. PFC Manning Rebuttal to **Redacted** Response to Article 138 Complaint, 10 March
2011 [hereinafter “Rebuttal to Article 138 Complaint”]
15. **Redacted****Redacted** Response to Article 138 Complaint, 24 January 2011
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Defense Article 13 Motion
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16. **Redacted** Response PFC Manning Rebuttal to Article 138 Complaint, 16 March
2011
17. **Redacted** Response to Article 138 Complaint, 31 January 2011
18. **Redacted** Response to Article 138 Complaint, 1 March 2011
19. **Redacted** Notification of Separate Filing for New Matters Raised, 6 April 2011;
**Redacted** Response to PFC Manning Rebuttal to Article 138 Complaint, 8 April
2011; PFC Manning Rebuttal #2 and Request to Consider New Matter Raised, April
10
20. **Redacted****Redacted** Response to Article 138 Complaint, 7 April 2011
21. **Redacted** Response to PFC Manning Rebuttal to Article 138 Complaint, 10 May
2011
22. **Redacted****Redacted**Investigation in Response to Article 138 Complaint and
Appointment Memorandum
23. **Redacted** Final Action on Article 138 Complaint, 13 June 2011
24. Affidavits of Brig Guards Regarding Incident on 18 January 2011
25. Video Recording of Incident at Quantico Brig on 18 January 2011
26. Photo of Suicide Prevention Smock
27. Affidavit of Brig Guard Documenting Incident Where PFC Manning was Trapped in
the Suicide Smock
28. Amnesty International Letter
29. Law Professors’ Letter
30. Psychologists for Social Responsibility Letter
31. European Leaders’ Letter
32. Materials Related to the ************************************, **Redacted**
**Redacted**
33. Emails between Mr. Coombs and CPT Fein related to: a) PFC Manning’s POI status at
Quantico; and b) arranging a unmonitored official visit
34. Quantico Brig Policy on Visitation
35. **Redacted** Memorandum to the Office of the Regimental Judge Advocate, 1
December 2010
36. PFC Manning DD510 Grievance Re: Conditions of Confinement
37. Statement from **Redacted** on Solitary Confinement and Other Documentation
From the United States Senate Committee on the Judiciary
38. Work Reports
39. Incident Reports
40. 5-minute Observation Notes (sample)
41. Amicus Filing from Psychologists for Social Responsibility
FACTS
7. PFC Manning is charged with five specifications of violating a lawful general regulation, one
specification of aiding the enemy, one specification of conduct prejudicial to good order and
discipline and service discrediting, eight specifications of communicating classified information,
five specifications of stealing or knowingly converting government property, and two
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specifications of knowingly exceeding authorized access to a government computer, in violation
of Articles 92, 104, and 134, Uniform Code of Military Justice (UCMJ) 10 U.S.C. §§ 892, 904,
934 (2010). PFC Manning has been held in pretrial confinement since 29 May 2010, a total of
791 days. For 265 of these days, PFC Manning was held in conditions tantamount to solitary
confinement at the Quantico Brig.
A. PFC Manning’s Confinement in Kuwait and Transfer to Quantico
8. On 27 May 2010, PFC Manning was detained by agents from the Army’s Criminal
Investigation Division (CID). He was subsequently placed into pretrial confinement on 29 May
2010. PFC Manning was held in a secured area on Forward Operating Base Hammer, Iraq until
he could be transported to the Theater Field Confinement Facility (TFCF) at Camp Arifjan,
Kuwait. PFC Manning was transported to the TFCF on 31 May 2010.
9. During his time in Kuwait, PFC Manning’s mental health deteriorated. PFC Manning was
anxious, confused and disoriented for much of his time in Kuwait. Although he was seen by
mental health providers in Kuwait, given the limited resources at the TFCF, the Government
decided to transport PFC Manning to a facility with adequate specialized resources to manage
PFC Manning’s care.
10. PFC Manning was transported from the TFCF to the Marine Corps Base Quantico (MCBQ)
Pretrial Confinement Facility (PCF) on 29 July 2010. The Duty Brig Supervisor (DBS)
reviewed the inmate background summary and completed an initial custody classification
determination (DD Form 2711). See Attachment 1. The DBS determined that PFC Manning’s
score was a “5,” significantly lower than the “12 + Points” normally required for a MAX custody
determination. Despite the low score, the DBS chose to override the custody determination and
assign PFC Manning to MAX custody. The DBS cited PFC Manning’s previous suicide watch
while in Kuwait as the rationale for this decision. Id. The **Redacted****Redacted**
**Redacted**, approved of the MAX custody determination by the DBS and also decided that
PFC Manning should be placed under special handling instructions of Suicide Risk (SR).
11. On 30 July 2010, **Redacted****Redacted****Redacted****Redacted**, conducted his
first assessment of PFC Manning. **Redacted** has over 20 years of experience as a forensic
psychiatrist. At the time of his assessment, he was the **Redacted****Redacted* ***Redac
ted**with the responsibility for providing psychiatric care to all active duty personnel stationed
at Quantico. One of his collateral duties was to provide onsite mental health care to the Brig
detainees. **Redacted** initially recommended observing PFC Manning on Suicide Risk
precautions because of his suicide watch in Kuwait. Within days of arriving at the Brig, PFC
Manning began to respond favorably to treatment. On 6 August 2010, **Redacted**determined
that PFC Manning was no longer considered a suicide risk. He recommended that PFC Manning
be moved from Suicide Risk to Prevention of Injury (POI) status. See Attachment 2. Knowing
that the Brig was very concerned about PFC Manning’s safety, and because there had been a
suicide in the Brig earlier that year, **Redacted**elected to obtain the services of another senior
forensic psychiatrist, **Redacted**, as a consultant/second opinion. **Redacted**evaluated
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PFC Manning and he concurred that PFC Manning should be downgraded from Suicide Risk to
POI. Despite these recommendations and contrary to the requirements of Secretary of Navy
Instruction (SECNAVINST) 1640.9C, the Brig did not immediately remove PFC Manning from
Suicide Risk. See Attachment 3, Section 4205.5.d. (“When prisoners are no longer considered to
be suicide risks by a medical officer, they shall be returned to appropriate quarters.”). Instead, it
was not until almost a week later, on 11 August 2010, that **Redacted**directed PFC Manning
be moved from Suicide Risk to POI. See Attachment 5.
12. Over the course of the following three weeks, PFC Manning was observed by the Brig staff
and received regular treatment from the Brig psychiatrists. During this time, the Brig staff noted
in PFC Manning’s Observation and Evaluation (O&E) notes that he was adjusting well to
confinement. See generally Attachment 5. The Brig staff noted that PFC Manning “has
presented no problems and has been courteous and respectful to staff.” The Brig staff also noted
that PFC Manning’s conduct “has been excellent” and that PFC Manning states he “does not
have any suicidal feelings” and “has not been suicidal since arriving at Quantico and mentally
feels good.” Id. Given his exemplary behavior, the Brig staff informed PFC Manning of the
process of reducing his custody and classification and of the possible job assignments that PFC
Manning could receive while in confinement. PFC Manning indicated that he would like a job in
the Brig library.
13. On 27 August 2010, **Redacted**determined that PFC Manning was no longer considered a
risk of self-harm and recommended that PFC Manning be taken off of POI status. See
Attachment 2. The ******* ********** did not follow **Redacted** recommendation.
B. PFC Manning is Held in MAX Custody and Under Prevention of Injury Status for
the Next Eight Months
14. Under SECNAVINST 1640.9C, the regulation that details the proper procedures and
safeguards for classification of inmates, evaluation of inmates, and the limited use of special
quarters, a Maximum Custody detainee is subject to following mandatory restrictions:
1) Supervision must be immediate and continuous. A DD 509, Inspection
Record of Prisoner in Segregation, shall be posted by the cell door and
appropriate entries made at least every 15 minutes.
2) They shall not be assigned to work details outside the cell.
3) They shall be assigned to the most secure quarters.
4) Two or more staff members shall be present when MAX prisoners are out of
their cells.
5) MAX prisoners shall wear restraints at all times when outside the maximumsecurity
area and be escorted by at least two escorts (confinement facility staff
or certified escorts, per article 7406).
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6) On a case-by-case basis, the CO/OIC/CPOIC may authorize additional
restraint for movement of specific MAX prisoners. A military judge may
direct that restraints be removed from a person in the courtroom if, in this
judge’s opinion, such restraint is not necessary. In all cases, the limitations of
article 1102 of reference (b) shall be observed.
See Attachment 3. **Redacted** adds the following characteristics of MAX custody:
7) Inmates must be under observation of a supervisor of the same sex.
8) Such prisoners shall be berthed in special quarters and physically checked
every 5 minutes.
See Attachment 15.
15. By contrast, a Medium Custody detainee is subject to the following restrictions:
1) Supervision shall be continuous within the security perimeter and immediate
and continuous when outside the security perimeter.
2) They shall not be assigned to work outside the security perimeter.
3) They shall wear restraints outside the security perimeter unless the
CO/OIC/CPOIC directs otherwise.
4) They shall be escorted by at least two confinement facility staff or certified
escorts, per article 7406, unless the CO/OIC/CPOIC directs only one escort is
required.
5) They may be assigned dormitory quarters.
See Attachment 3.
16. PFC Manning was classified as a MAX detainee for the entirety of his time at Quantico.
In addition to his MAX custody classification, PFC Manning was also held under POI status,
which necessitated the use of special quarters. “Special Quarters” are described under Section
4205 of SECNAVINST 1640.9C as follows:
a. Some prisoners require additional supervision and attention due to personality
disorders, behavior abnormalities, risk of suicide or violence, or other character
traits. If required to preserve order, the BRIG Os or, in their absence, the brig
duty officers/duty brig supervisors may authorize special quarters for such
prisoners for purposes of control, prevention of injury to themselves or others, and
the orderly and safe administration of the confinement facility. A hearing to
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determine the need for continued administrative segregation of the prisoner shall
be conducted. This hearing may be by board action or by a member of the
confinement facility appointed in writing by the BRIG O, and a written
recommendation to the BRIG O will be provided within 72 hours of the prisoner’s
entry into segregation.
b. Special quarters is a group of cells used to house prisoners who have serious
adjustment problems or certain medical issues, are highly temperamental or
emotional, anti-social, some medical cases, or who cannot get along with other
prisoners, or are persistent custodial problems. Special quarters are not a punitive
measure and shall not be used as such. Prisoners must be made aware of the
reason they are berthed in special quarters. Prisoners are assigned to special
quarters by the BRIG O and shall not have normal privileges restricted unless
privileges must be withheld for reasons of security or prisoner safety (e.g., suicide
risks or aggressive, assaultive or predatory prisoners). For each period of 30 days
a prisoner is retained in special quarters, the C&A board shall review and provide
a recommendation to the BRIG O, who shall determine and certify the
requirement for continuation in special quarters.
c. Disciplinary segregation is provided for in article 5105.3e.
d. Prisoners who have threatened suicide or have made a suicide gesture but are
found fit for confinement may be placed within special quarters under continuous
observation while in the category of suicide risk. CO/OIC/CPOIC may direct
removal of prisoner’s clothing when deemed necessary. Prisoner must be under
observation of a supervisor of the same sex. Closed circuit television may be
installed at a limited number of cells for observation, although cross gender
monitoring is not authorized.
2. Procedures. All prisoners in special quarters shall be under continual
supervision. Special precautions shall be taken in equipping, inspecting, and
supervising their quarters to prevent escapes, self-injury, and other serious
incidents. They shall be sighted at least once every 15 minutes by a staff member
and shall be visited daily by a member of the medical department and the BRIG
O. In addition, it is highly desirable that prisoners in special quarters be visited
daily by a chaplain. Each sighting of and visit to any segregated prisoner shall be
officially recorded and include date, time, name of visitor, and any appropriate
remarks. DD 509, Inspection Record of Prisoner in Segregation, shall be used to
record visits.
See Attachment 3. POI status is assigned to those prisoners who have given an indication that
they intend or are contemplating harming themselves. See Attachment 15.
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17. The combination of PFC Manning’s MAX and POI status meant that for approximately 9
months while at Quantico, PFC Manning was held in his 6×8 cell for 23-24 hours a day. His cell
did not have a window or any natural light.
18. Owing to his classification as a MAX detainee, PFC Manning was subject to the following
restrictions:
a) PFC Manning was placed in a cell directly in front of the guard post to facilitate his
constant monitoring.
b) PFC Manning was awoken at 0500 hours and required to remain awake in his cell from
0500 to 2200 hours.
c) PFC Manning was not permitted to lie down on his rack during the duty day. Nor was
PFC Manning permitted to lean his back against the cell wall; he had to sit upright on his
rack without any back support.
d) Whenever PFC Manning was moved outside his cell, the entire facility was locked down.
**Redacted****Redacted** describes this as follows, “While a maximum custody inmate
is outside of a secured area, the facility will commence a lockdown until the inmate is
returned to a secure area. No other inmates are allowed to move throughout the facility
while a maximum custody inmate is outside of a secured area. At no time will maximum
custody inmates be outside of a secured area at any time.” See Attachment 15.
e) Whenever PFC Manning was moved outside his cell, he was shackled with metal hand
and leg restraints and accompanied by at least two guards.
f) From 29 July 2010 to 10 December 2010, PFC Manning was permitted only 20 minutes
of “sunshine call.” Aside from a 3-5 minute shower, this would be the only time PFC
Manning would regularly spend outside his cell. During this sunshine call, he would be
brought to a small concrete yard, about half to a third of the size of a basketball court.
PFC Manning would be permitted to walk around the yard in hand and leg shackles,
while being accompanied by a Brig guard at his immediate side (the guard would have
his hand on PFC Manning’s back). Two to three other guards would also be present
observing PFC Manning. PFC Manning would usually walk in figure-eights or some
other pattern. He was not permitted to sit down or stay stationary.
g) Initially, Brig guards provided PFC Manning with athletic shoes without laces which
would fall off when he attempted to walk. PFC Manning elected to wear boots instead
because at least the boots would stay on when he walked.
h) From 10 December 2010 onward, PFC Manning was permitted a one hour recreation call.
At this point, the Brig authorized the removal of his hand and leg shackles and PFC
Manning was no longer required to be accompanied by a Brig guard at his immediate
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side. **Redacted****Redacted**describes PFC Manning’s recreation privileges as
follows: “Because the outdoor recreation area is not a secured area, restraints are not
normally removed from maximum custody inmates. All inmates, unless in a SR, POI or
disciplinary status are allowed to exercise while in their cells provided that it does not
disrupt the good order and discipline of the facility. Due to the extended period of time
that PFC Manning has been in a SR or POI status, and not allowed to exercise within his
cell, I authorized PFC Manning’s restraints to be removed while conducting recreation
call inside although he is not in a secured area.” See Attachment 15. Although PFC
Manning was technically “permitted” to use exercise equipment at the gym, most of this
equipment was unplugged or broken down. In addition, depending on the guards, they
would not permit him to use certain types of equipment (e.g. the chin up bar). So as to
avoid any problems with the guards, PFC Manning would usually walk around the room
as he had during his sunshine calls. Three or four guards would be monitoring PFC
Manning during his recreation call.
i) PFC Manning was only authorized non-contact visits. The non-contact visits were
permitted on Saturdays and Sundays between 1200 and 1500 hours by approved visitors.
During these visits, he would have to wear his hand and leg restraints.
j) PFC Manning was required to meet his visitors in a small 4 by 6 foot room that was
separated with a glass partition. His visits were monitored by the guards and they were
audio recorded by the Brig. The recording equipment was added by Army CID after PFC
Manning’s transfer to the Quantico Brig.
k) PFC Manning was only permitted non-contact visits with his attorneys. During these
visits, he was shackled at the hands and feet.
l) PFC Manning was not permitted any work duty. However, “special quarters work and
training reports” were routinely filled out pertaining to PFC Manning (presumably
reports generated from observing PFC Manning cleaning his cell). See Attachment 38.
19. Owing to PFC Manning being placed on continuous POI status, he was subject to the
following further restrictions:
a) PFC Manning was subject to constant monitoring; the Brig guards were required to check
on him every five minutes by asking him some variation of, “are you okay?” PFC
Manning was required to respond in some affirmative manner. Guards were required to
make notations every five minutes in a logbook. See Attachment 40.
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b) At night, if the guards could not see him clearly, because he had a blanket over his head
or he was curled up towards the wall, they would wake PFC Manning in order to ensure
that he was okay.
1
c) At night, only some of the lights would be turned off. Additionally, there was a
florescent light in the hall outside PFC Manning’s cell that would stay on at night.
d) PFC Manning was required to receive each of his meals alone in his cell. He was only
permitted to eat with a spoon.
e) There were usually no detainees on either side of PFC Manning. If PFC Manning
attempted to speak to those detainees that were several cells away from him, the guards
would order him to stop speaking.
f) PFC Manning originally was provided with a standard mattress and no pillow. PFC
Manning tried to fold the mattress to make a pillow so that he could be more comfortable
when sleeping. Brig officials did not like this, so on 15 December 2010 they provided
him with a suicide mattress with a built-in pillow. This built-in pillow was only a couple
of inches high and was not really any better than sleeping on a flat mattress.
g) PFC Manning was not permitted regular sheets or blankets. Instead he was provided with
a tear-proof security blanket. This blanket was extremely coarse and irritated PFC
Manning’s skin. At first, PFC Manning would get rashes and carpet burns on his skin
from the blanket. Eventually, his skin became accustomed to the coarseness of the
blanket and he got fewer rashes. The blanket did not keep PFC Manning warm because it
did not retain heat and, due to its stiffness, did not contour to his body.
h) PFC Manning was not allowed to have any personal items in his cell.
i) PFC Manning was only allowed to have one book or one magazine at any given time to
read. If he was not actively reading, the book or magazine would be taken away from
him. Also, the book or magazine would be taken away from him at the end of the day
before he went to sleep.
j) For the last month of his confinement at Quantico, PFC Manning was given a pen and
five pieces of paper along with his book. However, if he was not actively reading his
book and taking notes, these items would be taken away from him.
k) PFC Manning was prevented from exercising in his cell. If he attempted to do push-ups,
sit-ups, or any other form of exercise he would be forced to stop.
1
**Redacted** writes, “inmates are not authorized to cover their entire face with blankets while sleeping. Inmates
are not to be awakened for the purpose of bed checks, however positive identification must be made if no part of an
inmate is visible. The only way for this to be possible is to … awaken the inmate …” See Attachment 15.
2
He was also “permitted” one copy of the Brig’s rules and regulations. See Attachment 15.
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l) When PFC Manning went to sleep, he was required to strip down to his underwear and
surrender his clothing to the guards.
m) PFC Manning was only permitted hygiene items as needed. PFC Manning would have to
request toilet paper every time he wanted to go to the bathroom; at times, he had to wait
for guards to provide him with toilet paper.
n) There was no soap in his cell. PFC Manning requested soap to wash his hands after using
the bathroom; guards would sometimes get the soap, and sometimes not.
o) PFC Manning was not permitted to wear shoes in his cell.
p) PFC Manning was initially only permitted correspondence time for one hour a day; after
27 October 2010, this was changed to two hours per day.
See Attachment 4.
C. Multiple Psychiatrists Recommended for Eight Months that PFC Manning Be
Downgraded from POI Status
20. Over the course of eight months, with only two exceptions, **Redacted**and **Redacted**
consistently recommended that PFC Manning be removed from POI status. See Attachment 2.
21. **Redacted** states in his affidavit that the Brig did not follow his repeated
recommendations to downgrade PFC Manning from POI. In his first affidavit, dated 7 April
2011, **Redacted** states as follows:
I, **Redacted****Redacted**, the undersigned, do hereby certify and swear that
the following is true: I am an active duty member of the United States Navy. I
have over 19 years of experience as a forensic psychiatrist. My current position is
**Redacted****Redacted****Redacted**. My usual job is as **Redacted***
*Redacted****Redacted****Redacted**. One of my collateral duties is to provide
onsite medical health care to all active duty personnel on the base. In my duty
position, I am responsible for providing psychiatric care to all active duty
personnel on the base. I also provide limited forensic services as time permits.
Question A. Do you make recommendations to the Quantico Brig concerning
whether a detainee is placed on either Suicide Risk or Prevention of Injury
Status?
1. Yes.
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Question B. In your experience, does the Quantico Brig follow your
recommendation concerning either Suicide Risk or Prevention of Injury
Status?
1. No. They generally keep patients on precautions longer than I recommend.
Question C. Have you made any recommendation concerning PFC Bradley
Manning’s custody and classification status? If so, what were your
recommendations?
1. Yes. Please note that this is from recollection as I do not have access to my
notes. I am currently at Camp Leatherneck in Afghanistan. I initially
recommended observing PFC Manning on suicide precautions for the first couple
of weeks after his arrival, both because of his suicidal behavior in Kuwait and
because his medical record from Kuwait included a quote or a paraphrase from
PFC Manning to the effect that he could be patient when it comes to suicide.
2. After a couple of weeks, it seemed reasonable to downgrade his precaution
level to Prevention of Injury (POI) status. Knowing that the Brig was very
concerned about his safety, and because there had been a suicide in the Brig
earlier that year, I obtained the services of another forensic psychiatrist
(**Redacted**) to be a consultant/second opinion. He evaluated the patient and
concurred that POI was appropriate. The Brig, as I best recall, waited a couple of
weeks to put this recommendation into effect.
3. Subsequently, I recommended that he be removed from POI as he continued to
do relatively well in the Brig (occasional mild, odd behaviors such as dancing
around were noted in the log as well as possible sleep walking). **Redacted**
concurred. These recommendations were not followed.
4. In the fall (I am uncertain of the date); PFC Manning became agitated after an
odd incident with staff. As best as I could tell from discussing the matter with
Manning and with staff, he had been performing some kind of yoga move in
which he contorted his limbs in such a way that staff thought he was trying to hurt
himself. They intervened and returned him to his cell. He was very upset about
this (not suicidal) and so I briefly recommended he be put back on POI status as a
safeguard because he was so upset. I rescinded this recommendation the
following week as he had calmed.
5. Since then, I have continued to recommend that POI precautions be removed.
As of the time of my leaving for Camp Lejeune to prepare for deployment, the
recommendations had not been followed. **Redacted** and **Redacted** can
provide details of what occurred next.
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Question D. Have your recommendations been followed by the Quantico
Brig? If not, have you been given any reason for the Quantico Brig’s
decision not to follow your recommendations?
1. No. My understanding is that the Brig has not followed my recommendations
because of great concern and worry that Manning will harm himself. I told them I
thought the Max status (with every 15 minute visual checks of the detainee vice
POI with every 5 minute checks) was more than sufficient to ensure his safety,
from a psychiatric perspective. The every 5 minute checks done for POI is
extremely rigorous, particularly for a second tier precaution. Every 15 minute
checks was common for suicide precautions in other jails and correctional
facilities where I have worked.
2. I wish to add that I do not believe the staff has disregarded my
recommendations out of malice toward Manning. The Marine Corps, including
Quantico, has had a miserable time with the problem of suicide recently. I am
certain, from their point of view, the best way to avoid a tragedy is to watch a
situation very closely and take action quickly. It has been difficult to help them
see that good intentions can have unintended consequences (e.g., making the
detainee more anxious and causing occasional agitation).
Question E. With respect to PFC Bradley Manning, is being held under
Maximum Custody and either Suicide Risk or Prevention of Injury Status
since 31 July 2010 detrimental to his mental or physical health? Why or why
not?
1. I believe that (at the time I last saw him) Suicide precautions and POI were
excessive and were making Manning unnecessarily anxious. This could be
detrimental to his mental health. I was concerned about his physical health until
they started to give him more time to exercise. Since Max status is not a
psychiatric classification, I did not make a recommendation regarding it except to
say that it easily (as a secondary effect of checking on him every 15 minutes) met
his psychiatric safety needs at the time.
Question F. With respect to PFC Bradley Manning, have you seen or
documented any behavior to suggest that he is a risk to harm others or
himself, a disruptive detainee, or otherwise noncompliant with Quantico Brig
rules and procedures?
1. Not since I met him. Given the report from Kuwait, I had expected more
difficulty.
Question G. Without violating any patient-client confidentiality, can you
address the events of 18 January 2010 and 2 March 2011 which the Quantico
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
14
Brig has used to further restrict PFC Bradley Manning’s confinement
conditions?
1. If I remember correctly, there had been some kind of disagreement between
Manning and the staff and I was called urgently to come over at the end of the
work day in order to see Manning. I remember being a bit annoyed because I had
to report to Lejeune in less than 48 hours. I came over and it appeared that the
staff was gearing up (and suiting up) for a cell extraction.
3
I was able to defuse
the situation, but frankly cannot remember what the disturbance was about. I
remember it did not seem to be anything terribly serious, but my memory fails
otherwise. **Redacted** joined me halfway through this experience and may
have a better recollection. By 2 March, I was in Afghanistan.
See Attachment 7.
3
A “cell extraction” is a term used in correctional facilities to describe the process of forcible removal of an inmate
from his cell. The website http://cellextractions.com/ describes what a “cell extraction” entails:
The use of force is inherent in the very nature of involuntary confinement. In prisons, “the responsible
deployment of force is not only justifiable on many occasions, but absolutely necessary to maintain the
security of the institution.” The need to use force in a prison may sometimes include the forcible
removal of an inmate from his cell, called a “cell extraction.”
Cell extractions are security measures, not disciplinary mechanisms. In well-managed correctional
systems, they are used only in response to an imminent and serious risk to the safety and security of an
individual or of the institution. In such prisons, officers know cell extractions are rarely needed; in
some prisons, however, the institutional culture permits cell extractions simply to show inmates
“who’s in charge” or to retaliate against defiant inmates, even if there is no real emergency.
When the decision has been made that an inmate cannot be allowed to remain in his cell, properly
trained staff will make every effort to avoid a forced cell extraction. Officers will talk with the inmate.
Indeed, it may be necessary for corrections staff to talk to an inmate for a prolonged period and then
allow the inmate a “cooling down” period to increase chances that forcible extraction will not be
necessary. Counselors or mental health staff may be brought in to talk to the inmate. If verbal efforts
fail, in many facilities pepper spray is used to overcome the inmate’s resistance.
If officials decide to go ahead with a forcible cell extraction, the increasingly prevalent practice is to
use a team of four to six specially trained correctional officers. They wear protective equipment that
typically includes major torso padding, Kevlar sleeves, big black gauntlets, a helmet, a face plate, and
a groin guard. The team lines up in front of the cell, and the officers ask the inmate one more time
whether he is willing to “cuff up”—submit to restraint and leave the cell. If the inmate continues his
resistance, the team enters the cell. Often, the first member of the team to enter the cell carries a large
convex Plexiglas shield or a stun shield (a shield equipped with an electric current which stuns the
inmate on contact) with which he pins the inmate against the wall. The other members of the team
then gain control of and place restraints on the inmate’s arms and legs. In most cases, a well trained
cell extraction team is able to secure the removal of even a violent prisoner with minimal or no harm to
him or staff.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
15
22. On 14 April 2010, **Redacted**filed a supplemental affidavit, in response to a request for
clarification and amplification of certain points from Defense counsel:
Question A. Do you make recommendations to the Quantico Brig concerning
whether a detainee is placed on either Suicide Risk or Prevention of Injury
Status?
I make recommendation about suicide precautions, POI, and occasionally steps
that Brig might take to better a detainee’s condition or deportment (more time to
exercise, give him a job, help him with the legal work on financial problem, let
him talk to his wife or girlfriend more often, please make sure a chaplain sees
him). The Brig takes these under advisement and sometimes follows them,
usually not. In Manning’s case, I requested, in addition to removal of
precautions, more time to exercise. After quite some time, and numerous requests
(it became almost comical), this was granted.
Question B. In your experience, does the Quantico Brig follow your
recommendation concerning either Suicide Risk or Prevention of Injury
Status?
The Brig frequently ignores or delays my recommendation regarding precautions,
including suicide precautions. This differs from any of the previous jails, brigs, or
prisons in which I have worked, military or civilian. This occurred even before
the suicide of a detainee in January 2010. Prior to the Manning case, this, among
other issues, had make working at the Brig so frustrating that I asked to be
relieved of these duties. This was not permitted. I have struggled to make the
best of a situation that was not professionally pleasing. The addition of forensic
psychiatry fellows to the milieu (for me to teach) has been invigorating and lifted
my morale.
Question C. Have you made any recommendation concerning PFC Bradley
Manning’s custody and classification status? If so, what were your
recommendations?
Nothing further.
Question D. Have your recommendations been followed by the Quantico
Brig? If not, have you been given any reason for the Quantico Brig’s
decision not to follow your recommendations?
Neither the ******* ********** nor the ************************ gave me any
reasons for maintaining the POI precautions other than his safety. The ********
********* ********** intimated that he was receiving instructions from a
higher authority on the matter but did not say from whom. I know that the higher
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
16
base authorities had a frequent (sometimes weekly) meeting to discuss Manning,
for which I supplied my CO with a status report – nothing that Manning had told
me, mind you, but his condition and my recommendations, particularly to remove
conditions I felt were unnecessary. I did not attend these meetings, mainly to
protect Manning’s confidentiality against inadvertent slips. On one occasion,
concern was relayed to me about the odd behaviors seen in the cell mentioned in
my previous affidavit. I reported that I was not worried about the sleep walking
and the dancing.
I do not recall a meeting with the ******* ********** (**Redacted**). The
meeting I recall was with the ******* **********, whose name I do not recall.
He indicated that Manning would remain in current status (POI) unless and until
he received instructions from higher authority (unnamed). I do not recall him
saying he would be kept that way until his legal process was complete, but the
impression he left was not to expect any changes in the near future. I cannot
recall a direct quote.
Question E. With respect to PFC Bradley Manning, is being held under
Maximum Custody and either Suicide Risk or Prevention of Injury Status
since 31 July 2010 detrimental to his mental or physical health? Why or why
not?
PFC Manning, according to his records from Kuwait, exhibited a disturbing level
of mental instability, including suicidal behaviors. Thankfully, he was doing
much better during his time with me. Inappropriate use of POI and other
precautions can result in a loss of privacy and dignity that can worsen someone’s
condition. This could occur in Manning’s case and lead to regression and
additional suicidal behaviors. Whether the precautions are inappropriate now, I
leave to the current treating psychiatrist.
Question F. With respect to PFC Bradley Manning, have you seen or
documented any behavior to suggest that he is a risk to harm others or
himself, a disruptive detainee, or otherwise noncompliant with Quantico Brig
rules and procedures?
Given the amount of scrutiny he received from the Brig, and the seriousness of his
charges, I had expected him to have many more problems. I had initially
suspected that we would see regression and perhaps some suicidal behaviors. He
held up remarkably well. He was generally a well behaved detainee.
Question G. Without violating any patient-client confidentiality, can you
address the events of 18 January 2010 and 2 March 2011 which the Quantico
Brig has used to further restrict PFC Bradley Manning’s confinement
conditions?
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
17
I think that Manning was beginning to chafe at the conditions of his incarceration
(including POI) among other things, but I really don’t remember the specifics. As
you recall, I was due in Camp Lejeune in less than 2 days to begin training for
deployment, still had some last minute packing to do, and needed to say good bye
to my large family. In short, I had a lot on my mind. I really don’t recall the
specifics. I do recall having the thought, as I was sitting in the Brig talking to
Manning that the whole situation could have been avoided.
See Attachment 8.
23. **Redacted**also provided an affidavit to the same effect:
I, **Redacted****Redacted**, the undersigned, do hereby certify and swear that
the following is true:
I am an active duty member of the United States Army. I have over ten years of
experience as a forensic psychiatrist. My current duty position is **Redacted**
**Redacted**, and I am the **Redacted****Redacted****Redacted**. In my duty
position, I am responsible for overseeing the professional services and training
activities for eight forensic psychiatrists and psychologists.
Question A. Do you make recommendations to the Quantico Brig concerning
whether a detainee is placed on either Suicide Risk or Prevention of Injury
Status?
1. It is my understanding that the Brig staff is authorized to initiate a Suicide
Watch, but it requests concurrence by the psychiatrist to maintain it. Prevention
of Injury, however, is treated as a custodial status to be determined by the Brig
and I do not make a recommendation on the ultimate issue. I conduct a
behavioral risk assessment to estimate the risk of harm to self or others (low,
moderate, or high), based on static risk factors, modifiable risk factors, and
protective factors, and provide that input to the Brig.
Question B. In your experience, does the Quantico Brig follow your
recommendation concerning either Suicide Risk or Prevention of Injury
Status?
1. They initiate more precautions than I would from a psychiatric perspective.
Were he not in custody, at this point he would be appropriate for routine
outpatient care.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
18
Question C. Have you made any recommendation concerning PFC Bradley
Manning’s custody and classification status? If so, what were your
recommendations?
1. No. I have stated that there is no psychiatric reason for him to be segregated
from the general population, realizing that would only be one consideration.
Question D. Have your recommendations been followed by the Quantico
Brig? If not, have you been given any reason for the Quantico Brig’s
decision not to follow your recommendations?
1. They have expressed concerns about his demeanor with no medical personnel
are there, describing him as more withdrawn and reading less.
Question E. With respect to PFC Bradley Manning, is being held under
Maximum Custody and either Suicide Risk or Prevention of Injury Status
since 31 July 2010 detrimental to his mental or physical health? Why or why
not?
1. It has long been known that restriction of environmental and social stimulation
has a negative effect on mental functioning. Nevertheless, PFC Manning has
been able to adapt somewhat and his anxiety disorder is currently in remission,
significantly reducing his risk of self harm.
Question F. With respect to PFC Bradley Manning, have you seen or
documented any behavior to suggest that he is a risk to harm others or
himself, a disruptive detainee, or otherwise noncompliant with Quantico Brig
rules and procedures?
1. When I first saw him in August 2010 I considered him to be at moderate to
high risk of self harm. However, that has changed over the months and I have not
had any further concerns. I have never heard of him being disruptive, but he does
make provocative comments to the staff as part of his intellectualization (e.g. 2
March 2011).
Question G. Without violating any patient-client confidentiality, can you
address the events of 18 January 20100 and 2 March 2011 which the
Quantico Brig has used to further restrict PFC Bradley Manning’s
confinement conditions?
1. On 2 March 2011 PFC Manning made a comment (out of frustration when he
described it to me), basically ridiculing the POI precautions because if he really
wanted to kill himself he could use his flip flops or underwear waistband. The
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
19
Brig staff took this as evidence that he was at least thinking about it and removed
them.
See Attachment 9.
24. Thus, as is clear, **Redacted**and **Redacted**recommended for eight months that PFC
Manning be removed from POI. Quantico officials chose time and again to ignore these
recommendations.
E. PFC Manning Was a Model Detainee During his Time at Quantico
25. Although the Brig psychiatrists generally did not make any additional recommendations
regarding MAX to MDI, the observation notes of PFC Manning during this time demonstrate
that PFC Manning was consistently considered a model detainee. See Attachment 5.
a) 3 August 2010 Entry: “SND [PFC Bradley Manning] did not receive any
disciplinary reports or adverse spot evaluations and received an average
work and training report.” The entry also notes, “SNDs conduct has
been average and has presented no problems to staff or inmates. During
the interview SND was respectful and courteous and was well spoken.
SND stated that he was doing well and was not having suicidal or
homicidal feelings.”
b) 12 August 2010 Entry: “SND did not receive any disciplinary reports or
adverse spot evaluations and received an average work and training
report.” The entry also notes, “SND stated that he would like a job in
the facility library if it became possible. To this point in confinement
SND’s conduct has been average and has presented no problems to staff
or inmates. During the interview SND was quiet, but courteous and
respectful. SND answers questions but speaks very little unless
responding to a question. Currently SND appears to be trying to adjust
to the daily routine and observing what is going on around him. During
the interview SND was well spoken, neat in appearance and maintained
eye contact. SND stated that he does not have any suicidal feelings at
this time.”
c) 16 August 2010 Entry: “SND was evaluated by the Brig Psychologist
and found not to be a threat to himself. It is recommended that SND be
removed from SR, and be placed on POI (sic) remain MAX custody.”
d) 17 August 2010 Entry: “The Brig Psychiatrist found SND to be a
reduced threat to himself on 6 August 2010.”
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
20
e) 24 August 2010 Entry: “SND did not receive any disciplinary reports or
adverse spot evaluation and received an average work and training
report.” The entry also notes “[t]o this point in confinement, SND has
presented no problems and has been courteous and respectful to staff.
SND’s conduct has been excellent, so much so that is it apparent that he
is extremely cautious about what he says or how he acts. During the
interview SND was well spoken, groomed and neat in appearance.”
f) 27 August 2010 Entry: “SND has not presented any problems since his
last review on 20 August 2010 and has been an overall average
detainee.”
g) 31 August 2010 Entry: “SND did not receive any disciplinary reports or
adverse spot evaluations and received an above average work and
training report.” The entry also notes “SND was evaluated by the Brig
Psychiatrist on 27 August and was recommended to be removed from
POI status. The C&A Board reviewed SND on the same date and
recommended that he still remain POI. SND remains courteous and
respectful to staff and has presented no problems toward staff or inmates
thus far. During the interview SND was well spoken, groomed and neat
in appearance.”
h) 3 September 2010 Entry: “SND has not presented any problems since
his last review on 27 August 2010 and has been an overall average
detainee.”
i) 8 September 2010 Entry: “SND did not receive any disciplinary reports
or adverse spot evaluations and received an average work and training
report.” The entry also notes, “SND was evaluated by the Brig
Psychiatrist on 3 September and was recommended to be removed from
POI status.” Additionally it states, “SND continues to be cooperative
with Brig staff and has presented no disciplinary problems. During the
interview SND was well spoken and neat in appearance. SND’s mood
and appearance were consistent with his normal character and he
continues to state that he is not suicidal.”
j) 10 September 2010 Entry: “SND has not presented any problems since
his last review on 3 SEPT 2010 and has been an overall average
detainee.”
k) 14 September 2010 Entry: “SND did not receive any disciplinary
reports or adverse spot evaluations and received an average work and
training report.” The entry also notes, “SND was evaluated by the Brig
Psychiatrist on 10 September and was recommended to be removed
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
21
from POI status.” Finally, the entry notes, “SND has been cooperative
with Brig staff and has presented no disciplinary or behavioral problems.
When observed in his cell, SND is always sitting quietly on his rack and
appears to be content with doing nothing else. During the interview
SND was well spoken and neat in appearance. SND’s mood and
appearance were consistent with his normal character and he continues
to state that he is not suicidal.”
l) 28 September 2010 Entry: “SND did not receive any disciplinary
reports or adverse spot evaluations and received an average work and
training report.” The entry also notes, “SND was evaluated by the Brig
Psychiatrist on 24 September and was recommended to be removed
from POI status. Later, the entry notes, “SND continues to be
cooperative with Brig staff and has presented no disciplinary or
behavioral problems. During the interview SND was well spoken and
neat in appearance. SND’s mood and appearance were consistent with
his normal character and he continues to state that he is not suicidal.”
m) 4 October 2010 Entry: “SND was evaluated by the Brig Psychiatrist on
24 Sep 2010 and recommended to be removed from POI. SND has not
presented any problems since his last review and has been an overall
average detainee.”
n) 6 October 2010 Entry: “SND did not receive any disciplinary reports or
adverse spot evaluations and received an average work and training
report.” The entry notes, “SND appears to be content with his situation
and goes through the motions of the Brig’s plan of the day without
incident. SND was evaluated by the Brig Psychiatrist on 1 October and
was recommended to be removed from POI status.” The entry also
notes, “SND continues to be cooperative with Brig staff and has
presented no disciplinary or behavioral problems. During the interview
SND was respectful, neat in appearance and maintained eye contact.
SND’s mood and appearance were consistent with his normal character
and he continues to state that he is not suicidal.”
o) 12 October 2010 Entry: “SND did not receive any disciplinary reports
or adverse spot evaluations and received an above average work and
training report.”
p) 14 October 2010 Entry: “SND was evaluated by the Brig Psychiatrist on
(no date given) and recommended to be removed from POI. SND has
not presented any problems since his last review …” The entry also
notes “SND did not receive any disciplinary reports or adverse spot
evaluations and received an above average work and training report.”
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
22
q) 22 October 2010 Entry: “SND did not receive any disciplinary reports
or adverse spot evaluations and received an above average work and
training report.” The entry notes, “SND was evaluated by the Brig
Psychiatrist this past week and found fit from (sic) removal of
prevention of injury classification from a psychiatric standpoint.” The
entry also notes, “SND was respectful and courteous and well spoken.
SND’s attitude and demeanor were consistent with his normal character
and he continues to state that he is not suicidal.”
r) 28 October 2010 Entry: “SND was evaluated by the Brig Psychiatrist on
15 October 2010 and recommended to be removed from POI. SND has
not presented any problems since his last review on 8 October 2010 and
has been an overall average detainee.” Another entry on this date notes
that “SND was evaluated by the Brig Psychiatrist on 22 October 2010
and recommended to be removed from POI. SND has not presented any
problems since his last review on 15 October and has been an overall
average detainee.”
s) 2 November 2010 Entry: “SND was evaluated by the Brig Psychiatrist
on 29 October 2010 and recommended to be removed from POI. SND
has not presented any problems since his last review on 22 October 2010
and has been an overall average detainee.”
t) 5 November 2010 Entry: “SND did not receive any disciplinary reports
or adverse spot evaluations and received an average work and training
report.” The entry also notes, “SND was evaluated by the Brig
Psychiatrist on 29 October 2010 and found fit to be removed from
prevention of injury classification from a psychiatric standpoint.”
Finally, the entry notes, “During the interview SND was respectful and
courteous and was well spoken. SND appears to be in high spirits and
have a positive attitude. SND’s attitude and demeanor were consistent
with his normal character and he continues to state that he is not
suicidal.”
u) 15 November 2010 Entry: “SND was evaluated by the Brig Psychiatrist
on 13 November 2010 and recommended to … [be removed from] POI.
SND has not presented any problems since his last review on 5 NOV
2010 and has been an overall average detainee.”
v) 17 November 2010 Entry: “SND did not receive any disciplinary
reports or adverse spot evaluations and received an above average work
and training report.” The entry also noted that “during the interview
SND was respectful and courteous and was well spoken. SND’s attitude
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
23
and demeanor were consistent with his normal character and stated that
he is not suicidal.”
w) 23 November 2010 Entry: “SND was evaluated by the Brig Psychiatrist
on 19 November 2010 and recommended to be removed from POI.
SND has not presented any problems since his last review.”
x) 3 December 2010 Entry: “SND did not receive any disciplinary reports
or adverse spot evaluations and received an average work and training
report.”
y) 6 December 2010 Entry: “SND was evaluated by the Brig Psychiatrist
on 2 December 2010 and recommended to be removed from POI. SND
has not presented any problems since his last review on [no date given]
and has been an overall average detainee.”
z) 7 December 2010 Entry: “SND did not receive any disciplinary reports
or adverse spot evaluations and received an above average work and
training report.” The entry also noted, “[d]uring the interview SND was
courteous and well spoken and he maintained good eye contact. SND’s
mood and character were consistent with his normal character.”
aa) 14 December 2010 Entry: “SND was evaluated by the Brig Psychiatrist
on 10 December 2010 and recommended to remain on POI. (The Brig
noted that this was the first time since 27 August 2010 that
**Redacted** recommended PFC Manning remain on POI. His main
criteria was that it seemed PFC Manning was not doing well). SND has
not presented any problems since his last review and has been an overall
average detainee.”
bb) 17 December 2010 Entry: “SND was evaluated by the Brig Psychiatrist
on 17 December 2010 and recommended to be removed from POI. SND
has not presented any problems since his last review and has been an
overall average detainee.”
cc) 22 December 2010 Entry: “SND did not receive any disciplinary reports
or adverse spot evaluations and received an above average work and
training report.” The entry also notes, “overall, SND was respectful and
cooperative during the interview.”
dd) 29 December 2010 Entry: “SND did not receive any disciplinary reports
or adverse spot evaluations and received an average work and training
report.” The entry also stated, “SND was evaluated by **Redacted**
on 23 December 2010, and although further mental evaluation was
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
24
deemed necessary, SND was recommended to be removed from POI
classification from a psychiatric standpoint.”
ee) 6 January 2011 Entry: “SND was evaluated by the Brig Psychiatrist on
30 December 2010 and recommended to be removed from POI. SND
has not presented any problems since last review and has been an overall
average detainee.”
ff) 7 January 2011 Entry: “SND was evaluated by the Brig Psychiatrist on
7 January 2011 and recommended to be removed from POI. SND has
not presented any problems since his last review and has been an overall
average detainee.” The entry also notes that “SND did not receive any
disciplinary reports or adverse spot evaluations and received an average
work and training report.” Finally, the entry notes that PFC Manning “is
respectful and courteous to staff. During the interview SND was well
spoken, maintained eye contact and his demeanor was consistent with
his normal character.
gg) 11 January 2011 Entry: “SND did not receive any disciplinary reports or
spot evaluations and received an above average working and training
report.”
hh) 14 January 2011 Entry: “SND was evaluated by the Brig Psychiatrist on
14 January 2010 and recommended to be removed from POI. SND has
not presented any problems since his last review and has been an overall
average detainee.”
ii) 18 January 2011 Entry: This is the first entry where any negative
conduct is noted. This conduct is explained below.
jj) 28 January 2011 Entry: “SND did not receive any disciplinary reports
or adverse spot evaluations and receive(d) an average work and training
report.” The entry also notes, “SND was evaluated by **Redacted**
on 21 January 2011 and, although further mental evaluation was deemed
necessary, SND was recommended to be removed from POI
classification from a psychiatric standpoint.”
kk) 2 February 2011 Entry: “SND did not receive any disciplinary reports or
adverse spot evaluations and received an average work and training
report.” The entry also notes, “SND was well spoken, respectful and
maintained eye contact.”
ll) 7 February 2011 Entry: “SND did not receive any disciplinary reports or
adverse spot evaluations and received an average work and training
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
25
report.” The entry also notes, “…SND was well spoken, respectful and
maintained eye contact.”
mm) 17 February 2011 Entry: “SND has not presented any problems since his
last review and has been an overall average detainee.”
nn) 25 February 2011 Entry: “SND did not receive any disciplinary reports
or adverse spot evaluations and received an average work and training
report.” The entry also notes, “…SND was well spoken, respectful and
maintained eye contact.”
oo) 2 March 2011 Entry: “SND did not receive any disciplinary reports or
adverse spot evaluations and received an average work and training
report.” The entry also notes, “…SND was well spoken, respectful and
maintained eye contact.”
pp) 9 March 2011 Entry: The entry notes that “SND was counseled on 2
March 2011 by the Brig supervisor for disobedience.” This incident is
discussed further below.
qq) 11 March 2011 Entry: “SND has not presented any problems since his
last review and has been an overall average detainee.”
rr) 18 March 2011 Entry: “SND has not presented any problems since his
last review and has been an overall average detainee.”
ss) 25 March 2011 Entry: “SND did not receive any disciplinary reports but
did receive one adverse spot evaluation on 16 March 2011 for interfering
with the application of hand restraints and restraint belt.” The entry also
notes “he was respectful and courteous…”
tt) 30 March 2011 Entry: “SND did not receive any disciplinary reports to
adverse spot evaluations, and received an average work and training
report.”
uu) 5 April 2011 Entry: “SND has not presented any problems since his last
review and has been an overall average detainee.”
vv) 7 April 2011 Entry: “SND did not receive any disciplinary reports or
spot evaluations, and received an average work and training report.”
ww) 11 April 2011 Entry: “SND has not presented any problems since his
last review and has been an overall average detainee.”
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
26
xx) 15 April 2011 Entry: “SND has not presented any problems since his
last review and has been an overall average detainee.”
Despite being a model detainee, and despite the doctors’ recommendations, PFC Manning was
kept in MAX custody and under POI for the entirety of his time at Quantico, a total of 265 days.
F. The Classification and Assignment (C&A) Board Review of PFC Manning’s
Confinement Status
26. Under SECNAVINST 1640.9C, a Classification and Assignment (C&A) Board is required
to be established and is responsible for making recommendations to the ******* **********
concerning the classification and assignment of detainees. Under the regulation, an objective
based classification system is required. The purpose of the custody classification is to establish
the degree of supervision needed for the control of an individual detainee. See Attachment 3.
27. The regulation recognizes that among detainees there are wide variations in personality and
mentality. Some detainees are deliberately uncooperative. These detainees are chronic sources
of trouble and may either be highly aggressive or acutely depressed. These types of detainees
are identified under the regulation as being appropriately held in MAX. Detainees in MAX are
those detainees “requiring special custodial supervision because of the high probability of
escape, are potentially dangerous or violent, and whose escape would cause concern of a threat
to life, property, or national security.” Id. SECNAVINST 1640.9C also cautions that “[u]ltraconservative custody classification results in a waste of prisoner and staff manpower.” Id.
28. Classification decisions are supposed to follow “established, but flexible, procedures.” The
regulation notes that classifications involving MAX or MDI include the following factors:
a. Assaultive behavior.
b. Disruptive behavior.
c. Serious drug abuse.
d. Serious civil/military criminal record (convicted or alleged).
e. Low tolerance of frustration.
f. Intensive acting out or dislike of the military.
g. History of previous escape(s).
h. Pending civil charges/detainer filed.
i. Serving a sentence which the individual considers to be unjust or severe.
j. Poor home conditions or family relationships.
k. A mental evaluation indicating serious neurosis or psychosis.
l. Indication of unwillingness to accept responsibility for personal actions past and
present.
m. Demonstrated pattern of poor judgment.
n. Length, or potential length, of sentence.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
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Although these factors apply equally to the determination of MAX or MDI, the regulation notes
that MDI detainees are those that “are not regarded as dangerous or violent.” Id. The regulation
also cautions that “[o]rdinarly, only a small percentage of prisoners shall be classified as MAX.”
Id.
29. In spite of the E&O notes indicating PFC Manning was a “polite, courteous, and respectful
detainee” who did not receive any disciplinary or adverse spot reports, and the repeated
recommendations by the Brig psychiatrists that PFC Manning was not a risk of self-harm or of
harm to others and should be removed from POI, the C&A Board consistently recommended that
PFC Manning remain in MAX and POI. See Attachments 5 and 6. The recommendation of the
C&A Board was always approved by the ******* **********.
30. Although the C&A Board apparently met on a weekly basis, it failed to document its
recommendations on the required Brig Form 4200 for over five months. See Attachment 6. The
Brig filled out a Form 4200 on 29 July 2010 to document PFC Manning’s initial intake. It did
not fill out another form until 3 January 2011. Id. Notably, this was around the same time
period that Quantico Brig began to come under outside scrutiny.
31. Week after week, month after month, the C&A Board unanimously recommended that the
**Redacted** retain PFC Manning in MAX and on POI. The **Redacted**always followed this
recommendation. Id.
G. PFC Manning Is Put On Suicide Risk Status on 18 January 2011 and 2 March 2011
32. On two separate occasions, the **Redacted** elected to increase the special handling
instructions on PFC Manning. The first occurred on 18 January 2011. On that date,
**Redacted**, over the recommendation of **Redacted** and the defense forensic psychiatrist,
**Redacted**, placed PFC Manning under Suicide Risk. The Suicide Risk designation resulted
in PFC Manning being required to remain in his cell for 24 hours a day. PFC Manning was
stripped of all clothing with the exception of his underwear. PFC Manning’s prescription
eyeglasses were taken away from him and he was forced to sit in his cell in essential blindness.
A guard was placed, sitting in a chair, immediately outside of PFC Manning’s cell. At night,
PFC Manning was forced to surrender his underwear and sleep naked. PFC Manning remained
on Suicide Risk until 21 January 2011 when he was then downgraded back to POI. See
Attachments 4, 5, 6.
33. The events that led to PFC Manning being placed in Suicide Risk began when he was pulled
out of his cell on 18 January 2011 for his recreation call. When the guards came to PFC
Manning’s cell, PFC Manning noticed a change in their usual demeanor. Instead of being calm
and respectful, they seemed agitated and confrontational. Also, instead of the usual two to three
guards, there were four guards. Almost immediately, the guards started harassing PFC Manning.
The first guard told PFC Manning to “turn left.” When he complied, the second guard yelled,
“don’t turn left.” When PFC Manning attempted to comply with the demands of the second
guard, he was told by the first, “I said turn left.” PFC Manning responded, “yes, Corporal” to the
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
28
first guard. At this point, the third guard chimed in by telling PFC Manning that “in the Marine
Corps we reply with ‘aye’ and not ‘yes.’” He then asked PFC Manning if he understood. PFC
Manning made the mistake of replying “yes, Sergeant.” At this point the forth guard yelled,
“you mean ‘aye,’ Sergeant.”
4
34. The harassment by the guards continued as PFC Manning was escorted to his one hour of
recreation. When PFC Manning arrived at the recreation room, he was told to stand still so the
guards could remove his leg restraints. As PFC Manning stood still, one of the guards yelled, “I
told you to stand still.” PFC Manning replied, “yes Corporal, I am standing still.” Another
guard then said, “you mean ‘aye’ Corporal.” Next, the same guard said “I thought we covered
this, you say ‘aye’ and not ‘yes,’ do you understand?” PFC Manning responded, “aye Sergeant.”
Right after PFC Manning replied, he was once again yelled at to “stand still.” Due to being
yelled at and the intensity of the guards, PFC Manning mistakenly replied, “yes Corporal, I am
standing still.” As soon as PFC Manning uttered his response he attempted to correct himself by
saying “aye” instead of “yes,” but it was too late. One of the guards starting yelling at PFC
Manning again, “what don’t you understand” and “are we going to have a problem?”
5
35. Once the leg restraints were taken off of PFC Manning, he took a step back from the guards.
PFC Manning’s heart was pounding in his chest, and he could feel himself getting dizzy.
**Redacted** determined that this event was likely an anxiety attack due to the situation. After
his restraints were removed, PFC Manning sat down to avoid falling. When he did this, the
guards took a step towards him. PFC Manning instinctively backed away from the guards. As
soon as PFC Manning backed away, the guards walked toward him as if to prepare to restrain
PFC Manning. PFC Manning immediately put his hands up in the air, and said “I am not doing
anything, I am just trying to follow your orders.” The guards then told PFC Manning to start
walking. PFC Manning complied with their order by saying “aye” instead of “yes.”
36. PFC Manning was allowed to complete his hour of recreation. During the hour, the guards
did not harass PFC Manning further. The guards also did not harass PFC Manning when he was
escorted back to his cell. Only later did PFC Manning learn that there had been a protest outside
the gates of Quantico the previous day. The rally was intended to bring attention to the
conditions of PFC Manning’s confinement and had caused disruption at the main gate to
Quantico.
37. After being returned to his cell, PFC Manning started to read a book. About 30 minutes
later, **Redacted** came to PFC Manning’s cell. He asked PFC Manning what had happened
during his recreation call. As PFC Manning tried to explain to him what had occurred and to
convey frustration with the continued conditions of his confinement, **Redacted** stopped PFC
4
**Redacted** states, “I told [PFC Manning] to face the door. [PFC Manning] faced the door without responding.
I informed [PFC Manning] that whenever a guard gives him an order, he is to respond in the correct manner (aye,
aye, rank of person). [PFC Manning] then said he doesn’t understand. **Redacted**, the DBS, tried to inform
[PFC Manning] that when a guard gives him an order, he needs to respond in the correct way.” See Attachment 24.
5
The situation with the “aye” vs. “yes” is corroborated in **Redacted**,**Redacted**, and **Redacted** account
of the incident. See Attachment 24.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
29
Manning and said “I am the *********” and “no one will tell me what to do.” **Redacted**
also said that he was, for all practical purposes, “God.” PFC Manning responded by saying,
“you still have to follow Brig procedures.” PFC Manning also said, “everyone has a boss that
they have to answer to.” As soon as PFC Manning said this, **Redacted** ordered that PFC
Manning be placed in Suicide Risk. After being ordered into Suicide Risk, PFC Manning
became upset. Out of frustration, PFC Manning placed his hands to his head and clenched his
hair with his fingers. PFC Manning then yelled, “why are you doing this to me?” He also
yelled, “why am I being punished?” PFC Manning then asked **Redacted** “what have I done
to deserve this type of treatment?”
38. **Redacted** did not answer any of PFC Manning’s questions. Instead, **Redacted**
instructed PFC Manning to surrender all of his clothing. At first PFC Manning tried to reason
with **Redacted** by telling him that he had been a model detainee and by asking him to just tell
PFC Manning what he wanted him to do and that he would do it. Eventually, **Redacted**left
and instructed **Redacted** to take over. **Redacted** ordered PFC Manning to take off his
clothes. PFC Manning complied with the order and took off his clothes.
39. The following conversation then took place, first between PFC Manning and **Redacted**,
and then between PFC Manning and **Redacted** :
**Redacted**: I know what you’re getting at, ok? I’m telling you that we’re not
outside the rules and regulations of anything that we’re doing. Period. We’re
not. So I need your clothes.
PFC Manning: That’s fine, sir. [Manning strips to his underwear. The rest of the
conversation takes place with PFC Manning in his underwear].
**Redacted**: Skivvies say on?
Other guard: yes. … leave those on.
**Redacted**: We’re going to get someone over here to talk to you. … You have
one mattress, right? You have the one suicide blanket, right?
PFC Manning: Yes. Yes, sir.
**Redacted**: Shower shoes are fine. Let’s get the doc over here. **Redacted*.
Sit down and see what’s going on. Alright? I need you calm right now, alright?
The escalation in your demeanor, alright, weighs us on the side of caution. Do
you understand that?
PFC Manning: Yes, MSGT.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
30
**Redacted**: The best way to explain that to you is you had an outburst. You
were moving around. You almost punched a wall. You’re kind of throwing
yourself around in the cell. To make sure you don’t hurt yourself we’re putting
you on a suicide risk status. We’re upgrading your status.
PFC Manning: But I’m not a suicide risk.
**Redacted**: That’s not for me to decide. I have to make sure, the brig officer
has to make sure, that you’re taken care of.
PFC Manning: I understand MSGT.
**Redacted**: In the manner that you’re not going to hurt yourself. Right now, I
don’t know that. With the display I saw right now, I’m not comfortable with.
He’s not comfortable with. Until we get something otherwise, this is how it’s
going to be.
PFC Manning: Why was I on, why was I on prevention of status for almost 6
months?
**Redacted**: [chuckles to himself] I know this is no secret to you … I have
plenty of documentation. Plenty of documentation based on things that you’ve
said, things that you’ve done. Actions – I have to make sure, we have to make
sure, that you’re taken care of.
PFC Manning: Yes, MSGT.
**Redacted**: Things that you’ve said and things that you’ve done don’t steer us
on the side of “ok, well, he can just be a normal detainee.” They make us stay on
the side of caution.
PFC Manning: But what about recommendations by the psychiatrist to remove
me off the status?
**Redacted**: Who’s here every day? Who’s here every day? We are. Who
sees you every day? That’s all he is, is a recommendation. We have, by law,
rules and regulations set forth to make sure from a jail standpoint that Bradley
Manning does not hurt himself. Maybe from a psychiatric standpoint, the
recommendation he’s given, I get it, I got it, understand, OK? But he’s not the
only decision maker. A mental health specialist is not the only decision that gets
made.
PFC Manning: I understand that, sir.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
31
**Redacted**: However…
[**Redacted**leaves and **Redacted** enters] [inaudible]
PFC Manning: I got dizzy …
**Redacted**: Wasn’t dehydration?
PFC Manning: No, I was anxious because I didn’t know why the guards were so
edgy. … They raised their voice … And I didn’t … I was getting anxious
because they were getting anxious. So I was trying to figure out what was the
cause of them getting anxious. It seemed to me that they were looking for
something wrong…
**Redacted**: Something wrong as in a rules violation, or something wrong as
in …
PFC Manning: Yes.
**Redacted**: Rules violation?
PFC Manning: Yes, sir. Because I’ve been here for a long time, so everything
becomes automatic. So I don’t know if I say something and they respond. I don’t
know what happened. I’ve been in, inside so long – I don’t remember the last
time I was outside.

[Portions of the rest of the dialogue between **Redacted** and PFC Manning are
inaudible]
**Redacted**: So, let’s go back to when you fell down. Did you fall down or
did you sit down? Or …
PFC Manning: Ah, it was mixed. I mean, I was getting lightheaded because I
was hyperventilating. So, I was trying to stand up. I was trying to keep from
falling because I was worried that if I fell, then everybody would panic and that
would make matters worse. So, I tried to stand up and I ended up falling…

**Redacted**: Take me from end of rec hall to … where we are now …
PFC Manning: Ok, yes, I started, I got in here and it was normal. And then I
started reading my book. And then, I want to say it was MSGT [inaudible] that
was the first to show up. And then he came in and was asking me all these
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
32
questions. I was, ah, trying to figure out how to word the answers without
causing any more anxiety. I was trying to figure out ways of not sounding, or not
being construed as … ways that things weren’t going to be construed so that …
just trying to figure out ways in which I could tactfully say what I was trying to
say without violating any rules and regulation or raise any concern about …
**Redacted**: Concern’s already raised… [inaudible]
PFC Manning: Yes, but I’m trying not, I’m trying, I’m trying to avoid the
concern, and it’s actually causing the concern. I mean, cause, I’m getting …
every day that passes by, I’m getting increasingly frustrated, I’m not going to lie.
Because I’m trying to do everything that I can not to be a concern, therefore I
appear as though I am causing more concern. Or I … Or it seems that I’m
causing more concern or everybody’s looking for something to cause concern. So
that’s what frustrates me. … Trying to work out the most politically correct way
of …
**Redacted**: [largely inaudible] Let’s go back to today. … The anxiety here,
today. That’s not the first time it’s happened since you’ve been in confinement.
As far as I know, it is the first time it’s happened since you’ve been here … but a
similar situation …
PFC Manning: I wasn’t, in Kuwait, I had no idea what was going on generally.
**Redacted**: But, would you say it was similar situation?
PFC Manning: No, no. The situation that happened today was more of … you
know, I’m lucid and aware and just trying to figure … It’s just a question of
trying not to appear like I was in Kuwait. Because that’s my main concern every
day, is how do I get off of POI status? How do I get off of POI status? When will
I be taken off of POI status? What is being used to justify the precautions? You
know … What concerns, you know, what am I doing that’s concerning
[inaudible]? So I’m constantly trying to figure out, run through all of those
things. And trying to make sure I’m not doing anything…
**Redacted**: [inaudible] … As time goes on, we have less of a concern, ok?
PFC Manning: Yes, GYSGT. But the restrictions were still in place. And I was

**Redacted**: Right. And we continually… We understand it’s not normal that
we have someone in POI for this period of time…
PFC Manning: Yes.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
33
**Redacted**: It’s not [normal] … I guess we’ll just leave it at that. So as we go
on, we’re going to lessen your restrictions. They’re still be restrictions in place …
[inaudible] But I would have to disagree with you as far as what happened today
happened in Kuwait … anxiety attack …
PFC Manning: No, in Kuwait, I wasn’t lucid. I had …. [guard interrupts]. It was
like a dream…
**Redacted**: But, they both ultimately ended up in you having an anxiety
attack … controlled fall, but …
PFC Manning: No, I don’t remember falling in Kuwait at all.
**Redacted**: Well, I can tell you, that’s what was reported to us … none of us
were there [refers again to PFC Manning’s suicide status Kuwait] … Us, as a
facility, we have to always err on the side of caution, okay. And not just the side
of caution, but over-caution. Especially when we’re talking about suicide, okay?
Nobody’s saying you’re going to kill yourself, alright? [inaudible] But we always
have to be more cautious than that. But you’re saying that ‘nobody else is on
suicide watch.’ The thing is what happened in Kuwait, what happened today …
PFC Manning: Those are totally different. I understand, I understand, I
understand, where you’re getting that … from the documentation. I mean, I quite,
I know where I am. I know I am … I know I am at Quantico base facility. I
know that I’m at a brig. I mean, I’m lucid and aware of where I am. I’m not …
**Redacted**: You asked [MSGT] a question … about why you’re on suicide
watch, I’m trying to answer that question, okay? Did I answer that?
PFC Manning: Uh – no. No, with context. Because the fact that …
**Redacted**: [inaudible] Did you understand that?
PFC Manning: I would have understood had … had I not been … I would have
understood had … had I not been … I mean, I’m trying to think of how to word
this proper …
**Redacted**: Provoked? Provoked?
PFC Manning: Yes, a little. I feel like the facility, honestly, I feel like the facility
is looking for reasons to keep me on POI status.
**Redacted**: Inaudible. I can tell you ‘no’…
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
34
PFC Manning: I mean, at least not at the staff level, I’m thinking the CO – me,
myself, personally.
**Redacted**: Inaudible … From a logistical standpoint, it’s a burden on us. …
PFC Manning: Yes, MSGT.
**Redacted**: Nobody finds that as a joy. It’s not a punitive thing, I understand
why someone would see it as a punitive thing because restrictions placed
[inaudible] … I can tell you that … since you have been here … I wish I had a
hundred Mannings …
PFC Manning: And that’s what… And that’s where I don’t understand why the
continuation of the policy and restrictions beyond the time recommended by you
and the psychiatrist. I mean the psychiatrist, is saying. I mean, I’ve got my own
forensic psychiatrist that’s saying now that the POI status is actually doing
psychiatric harm and not, you know, and it’s actually, you know, increasing my
chances, rather than decreasing…
**Redacted**: Did you feel like that two weeks ago?
PFC Manning: What’s that?
**Redacted**: Did you feel like that two weeks ago?
PFC Manning: Yes GYSGT.
**Redacted**: Uh, two weeks ago, I asked you, like, how you were feeling and
you said you were fine, do you remember that?
PFC Manning: Yes, and I still feel fine. I mean, I feel, I feel fine, but at the same
time, I’ve been putting in, I’ve been putting in…
See Attachment 25.
40. Later that day, **Redacted**and **Redacted** arrived at the facility. **Redacted** and
**Redacted** interviewed PFC Manning and assessed his mental state. They did not concur with
**Redacted** decision to place PFC Manning on Suicide Risk status. Both mental health
professionals believed PFC Manning was not a suicide risk. Out of an abundance of caution,
**Redacted** recommended that PFC Manning be placed in 24 hour POI status. **Redacted**
ignored this recommendation and kept PFC Manning on Suicide Risk status. See Attachments 2,
4, 7, 8.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
35
41. In **Redacted** investigation of the conditions of PFC’s Manning’s confinement, he found
that the failure to immediately take PFC Manning off of Suicide Risk status upon the
psychiatrist’s recommendation was in violation of Navy rules:
It warrants mentioning, however, that on two occasions, 6 August 2010 and 18
January 2011, a medical officer determined that suicide risk status was no longer
warranted and the brig staff did not immediately take PFC Manning off suicide
risk status. … Paragraph 4205.5b of reference (a) states “When prisoners are no
longer consider to be suicide risks by a medical officer, they shall be returned to
appropriate quarters,” in these cases, once the medical officer’s evaluation was
provided to the brig staff, steps should have been taken to immediately remove
him from suicide risk, to a status below that.
See Attachment 22.
42. **Redacted**, the **Redacted**, balked that Quantico had done anything wrong by not
removing PFC Manning from Suicide Risk upon the recommendation of a medical health
provider, stating “there is no requirement … that requires an immediate removal from suicide
risk after the PCF mental health care provider or medical officer recommends it.” See
Attachment 18. Tellingly, though, **Redacted**later changed the Brig regulation such that a
medical provider’s opinion on terminating suicide risk status would be binding on the Brig. See
Attachment 19.
43. The second incident where the special handling instructions were increased occurred on 2
March 2011. On that date, PFC Manning was informed by **Redacted**that no relief would be
granted with respect to PFC Manning’s previously-filed Article 138 Complaint. Understandably
frustrated by this decision after enduring (at that point) over seven months in unduly harsh
confinement conditions, PFC Manning asked the **Redacted****Redacted**, **Redacted**, what
he needed to do in order to be downgraded from MAX and POI. **Redacted**responded by
essentially telling PFC Manning that there was nothing he could do to downgrade his detainee
status and that the Brig simply considered him a risk of self-harm. Out of frustration, PFC
Manning responded that the POI restrictions were absurd. PFC Manning sarcastically told
**Redacted**that if he wanted to harm himself, he could conceivably do so with the elastic
waistband of his underwear or with his flip-flops. **Redacted** did not indicate to PFC
Manning at that time that he was concerned about PFC Manning’s comment.
44. Later that same day, PFC Manning was approached by **Redacted**. **Redacted** asked
PFC Manning what he had done wrong. He told PFC Manning that the **Redacted**redacted**
**Redacted**Redacted**, had ordered PFC Manning to be stripped naked at night. PFC Manning
responded that he had not done anything wrong. PFC Manning told **Redacted** that he had
just pointed out the absurdity of his current confinement conditions.
45. Without consulting any of the Brig’s mental health providers, **Redacted** increased the
restrictions imposed upon PFC Manning under the pretense that PFC Manning was a suicide
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
36
risk. See Attachment 4. PFC Manning was not, however, placed under the designation of
Suicide Risk. In order to keep PFC Manning in Suicide Risk, **Redacted**would have needed a
supporting recommendation from one of the Brig’s mental health providers. While **Redacted**
needed the Brig psychiatrist’s recommendation to keep PFC Manning under Suicide Risk, no
such recommendation was needed in order to increase PFC Manning’s special handling
instructions under POI.
46. In response to this specific incident, **Redacted**met with the PFC Manning. After
speaking to PFC Manning, he assessed PFC Manning as a “low risk and requiring only routine
outpatient follow-up [with] no need for … closer clinical observation.” See Attachment 2. In
particular, he indicated that PFC Manning’s statement about the waist band of his underwear was
in no way prompted by “a psychiatric condition.” Id. Rather it was part of his process of
“intellectualizing” the conditions of his confinement.
47. **Redacted**chose to ignore the assessment by **Redacted**. From 2 March 2011 until the
time he was transferred to the Joint Regional Correctional Facility (JRCF) at Fort Leavenworth,
Kansas on 20 April 2011, PFC Manning was stripped of all his clothing at night. For the first
couple of days, after surrendering his clothing to the Brig guards at night, PFC Manning had no
choice but to lay naked in his cold jail cell until the following morning.
48. On 3 March 2011, PFC Manning was told to get out of bed for the morning DBS inspection.
PFC Manning was not given any of his clothing back before the morning inspection. PFC
Manning walked towards the front of his cell with his suicide blanket covering his genitals. The
Brig guard outside his cell told him that he was not permitted to cover himself with his blanket
because that would mean that he would not be standing at parade rest. PFC Manning
relinquished the blanket and stood completely naked at parade rest, which required him to stand
with his hands behind his back and his legs spaced shoulder width apart. PFC Manning stood at
parade rest for about three minutes until the DBS arrived. Once the DBS arrived, everyone was
called to attention. The DBS and the other guards walked past PFC Manning’s cell. The DBS
looked at PFC Manning, paused for a moment, and then continued to the next detainee’s cell.
After the DBS completed his inspection, PFC Manning was told to go sit on his bed. Several
minutes later, PFC Manning was given his clothes and allowed to get dressed. PFC Manning
was also required to stand naked at attention the next four days.
49. After apparent outside pressure on the Brig due to PFC Manning’s mistreatment, PFC
Manning was provided with a suicide smock to wear at night. See Attachment 26. However,
due to PFC Manning’s size and the coarseness of the smock, he had difficulty sleeping. PFC
Manning is five foot three in height and weighs approximately 115 pounds. The smock was not
designed for someone of his size. On one occasion, PFC Manning was being choked by the
smock and was unable to free himself. As PFC Manning struggled to get out of the smock, two
guards entered his cell and assisted in removing PFC Manning from the smock. See Attachment
27.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
37
50. To recap, on 18 January 2011 and 5 March 2011, the Brig increased the already onerous
restrictions placed on PFC Manning in the following manner:
a) From 18 January 2011 until 20 January 2011, PFC Manning was forced to strip down to
his underwear during the day.
b) From 18 January 2011 until 20 January 2011, PFC was forced to sleep naked at night.
c) From 18 January 2011 until 20 January 2011, PFC Manning’s eyeglasses were taken
away from him.
d) From 18 January 2011 until 20 January 2011, PFC Manning was not permitted out of his
cell and was on 24-hour suicide watch.
e) From 2 March 2011 until 6 March 2011, PFC Manning was forced to surrender all his
clothing at night and sleep naked.
f) From 2 March 2011 until 6 March 2011, PFC Manning was forced to surrender his
eyeglasses during the day and at night. After 6 March 2011, his eyeglasses were returned
to him during the day, but continued to be removed from him at night.
g) On 3 March 2011 until 6 March 2011, PFC Manning forced to stand naked at parade rest
where he was in view of multiple guards.
h) From 7 March 2011 onward, PFC Manning was required to wear a heavy and restrictive
suicide smock which irritated his skin and, on one occasion, almost choked him.
H. **Redacted****Redacted**Order that PFC Manning Would Not Be Downgraded
from POI and MAX
51. On 13 January 2011, **Redacted****Redacted****Redacted**and **Redacted****Redacted
**Redacted**, held a meeting to discuss PFC Manning’s confinement conditions. The current
**Redacted****Redacted**, and his leadership staff were present. So too was the incoming
**Redacted****Redacted**. Along with the Brig leadership, the Brig psychiatrists ******
(**Redacted****Redacted**) and the Brig Judge Advocate, were also present.
52. At that meeting, **Redacted**ordered that PFC Manning would be held in maximum
custody and POI indefinitely. **Redacted** stated that “nothing is going to happen to PFC
Manning on my watch.” **Redacted**also said, “nothing’s going to change. He won’t be able
to hurt himself and he won’t be able to get away, and our way of making sure of this is that he
will remain on this status indefinitely.” At this point, **Redacted**go very upset and voiced his
concerns. **Redacted**said something to the effect of, “Sir, I am concerned because if you’re
going to do that, maybe you might want to call it something else, because it’s not based on
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
38
anything from behavioral health.” In response, **Redacted** said “We’ll do whatever we want
to do. You [the Brig psychiatrists] make your recommendation and I have to make a decision
based on everything else.” **Redacted**responded, “Then don’t say it’s based on mental health.
You can say it’s MAX custody, but just don’t say that we’re somehow involved in this.” ***
**Redacted** said, “That’s what we’re going to do.”
53. **Redacted**made it clear to those present at the meeting that the decision to keep PFC
Manning in MAX and POI was coming from those higher in the chain of command. See
Attachment 8 (“He indicated that Manning would remain in current status (POI) unless and until
he received instructions from higher authority (unnamed). I do not recall him saying he would
be kept that way until his legal process was complete, but the impression he left was not to
expect any changes in the near future.”; “The **Redacted****Redacted** intimated that he was
receiving instructions from a higher authority on the matter but did not say from whom.”).
54. During this meeting, **Redacted**informed **Redacted**that he would likely be appointed
as a member of the Defense team. In response, **Redacted**told him that “that’s not going to
happen, doc.” The next day, 14 January 2011, **Redacted**received his appointment order
assigning him as a member of the Defense team. After this date, **Redacted**was no longer
invited to attend the weekly meetings with **Redacted**.
55. **Redacted**was also aware that **Redacted****Redacted**, **Redacted**, had frequent,
sometimes weekly, meetings to discuss PFC Manning’s confinement classification and
assignment. As part of these meetings, **Redacted**was required to provide the *******
********** with a status report on PFC Manning. See Attachment 8 (“I know that the higher
base authorities had a frequent (sometimes weekly) meeting to discuss Manning, for which I
supplied my CO with a status report – nothing that Manning had told me, mind you, but his
condition and my recommendations, particularly to remove conditions I felt were unnecessary.”).
I. Domestic and International Reaction to PFC Manning’s Conditions of Confinement
56. The conditions of PFC Manning’s confinement while at Quantico sparked domestic and
international outrage. Among those that spoke out about PFC Manning’s inhumane conditions
of confinement were the following:
a) Amnesty International wrote a letter calling for the restrictive conditions of confinement
to be lifted; See Attachment 28.
b) A group of 300 law professors denounced the confinement conditions being endured by
PFC Manning as being “degrading”, “inhumane,” “illegal,” and “immoral”; See
Attachment 29.
c) Preeminent constitutional law scholar **Redacted****Redacted**spoke out that the
conditions under which PFC Manning was being held were “not only shameful but
unconstitutional”; See http://www.guardian.co.uk/world/2011/apr/10/bradley-manninglegal-scholars-letter.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
39
d) Psychologists for Social Responsibility wrote a letter outlining the very harmful effects of
prolonged solitary confinement and implored officials to “rectify the inhumane, harmful,
and counterproductive treatment of PFC Manning”; See Attachment 30.
e) Department of State spokesman **Redacted**referred publicly to PFC Manning’s
conditions of confinement being “ridiculous and counterproductive and stupid.” He was
later fired for his comment. **Redacted****Redacted**.
f) European leaders urged the United States to allow the United Nations to investigate
claims of illegal pretrial punishment; See Attachment 31.
g) Concerned citizens called Quantico and organized rallies and marches to bring awareness
to PFC Manning’s conditions of confinement.
h) **Redacted****Redacted**pleaded for access to PFC Manning and compared the
conditions of his confinement to Abu-Ghraib; **Redacted**Redacted**
All these pleas fell upon deaf ears. Quantico continued to hold PFC Manning under MAX and in
POI (or under Suicide Risk) for almost nine months.
57. Additionally, the **Redacted****Redacted****Redacted**, tried for months to set up an
unmonitored meeting with PFC Manning where he could investigate claims of illegal pretrial
punishment. All his requests were denied.
6
In a letter to **Redacted**from *****************
**Redacted****Redacted**, **Redacted**told **Redacted** “You should have no expectation of
privacy in your communications with PFC Manning.” See Attachment 32.
58. **Redacted****Redacted**published his findings in the 29 February 2012 ***************
**Redacted****Redacted**.
United States of America
(a) UA 30/12/2010 Case No. USA 20/2010 State reply: 27/01/2011 19/05/2011
Allegations of prolonged solitary confinement of a soldier charged with the
unauthorized disclosure of classified information.
170. The ******* ********** thanks the Government of the United States of
America for its response to this communication regarding the alleged prolonged
solitary confinement of Mr. Bradley E. Manning, a US soldier charged with the
unauthorized disclosure of classified information. According to the information
received, Mr. Manning was held in solitary confinement for twenty-three hours a
day following his arrest in May 2010 in Iraq, and continuing through his transfer
to the brig at Marine Corps Base Quantico. His solitary confinement – lasting
about eleven months – was terminated upon his transfer from Quantico to the Joint
Regional Correctional Facility at Fort Leavenworth on 20 April 2011. In his
report, the ******* ********** stressed that “solitary confinement is a harsh
6
**Redacted****Redacted**and officials at Amnesty International also tried to set up an unmonitored visit with
PFC Manning, also to no avail.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
40
measure which may cause serious psychological and physiological adverse effects
on individuals regardless of their specific conditions.” Moreover, “[d]epending
on the specific reason for its application, conditions, length, effects and other
circumstances, solitary confinement can amount to a breach of article 7 of the
International Covenant on Civil and Political Rights, and to an act defined in
article 1 or article 16 of the Convention against Torture.” (A/66/268 paras. 79 and
80) Before the transfer of Pfc Manning to Fort Leavenworth, the *******
********** requested an opportunity to interview him in order to ascertain the
precise conditions of his detention. The US Government authorized the visit but
ascertained that it could not ensure that the conversation would not be monitored.
Since a non-private conversation with an inmate would violate the terms of
reference applied universally in fact-finding by Special Procedures, the *******
********** had to decline the invitation. In response to the *******
********** request for the reason to hold an unindicted detainee in solitary
confinement, the government responded that his regimen was not “solitary
confinement” but “prevention of harm watch” but did not offer details about what
harm was being prevented. To the ******* ********** request for information
on the authority to impose and the purpose of the isolation regime, the
government responded that the prison rules authorized the ******* **********
to impose it on account of the seriousness of the offense for which he would
eventually be charged. The ******* ********** concludes that imposing
seriously punitive conditions of detention on someone who has not been found
guilty of any crime is a violation of his right to physical and psychological
integrity as well as of his presumption of innocence. The ******* **********
again renews his request for a private and unmonitored meeting with Mr.
Manning to assess his conditions of detention.
(b) AL 15/06/2011 Case No. USA 8/2011 State reply: None to date Follow-up to
a letter sent 13 May 2011 requesting a private unmonitored meeting with Private
(Pfc.) Bradley Manning.
171. The ******* ********** thanks the Government of the United States of
America for its response to the communication dated 13 May 2011 requesting a
private unmonitored meeting with Private Bradley Manning. Regrettably, to date
the Government continues to refuse to allow the ******* ********** to conduct
private, unmonitored, and privileged communications with Private Manning, in
accordance with the working methods of his mandate (E/CN.4/2006/6 paras. 20-
27).
Id.
59. **Redacted**told the British newspaper, The Guardian, that: “I conclude that the 11 months
under conditions of solitary confinement (regardless of the name given to his regime by the
prison authorities) constitutes at a minimum cruel, inhuman and degrading treatment in violation
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
41
of article 16 of the convention against torture. If the effects in regards to pain and suffering
inflicted on Manning were more severe, they could constitute torture.” See http://www.guardian
.co.uk/world/2012/mar/12/bradley-manning-cruel-inhuman-treatment-un.
60. The Defense tried repeatedly to assist **Redacted** (along with **Redacted****Redacte* and
Amnesty International) in setting up an unmonitored visit with PFC Manning. The Government,
along with the Brig, insisted that none of these would qualify as an “official” visit, and therefore
must be monitored.
61. The Quantico Brig rules provide for both “authorized visits” and “official visits.” The latter
are not monitored. The rules provide as follows:
3.17. CORRESPONDENCE AND VISITATION: Confinement should not stop a
prisoner from keeping in contact with members of their immediate family and
authorized visitors via mail or personal visits. Each prisoner’s family will be
interested in their progress and concerned about their well-being and morale.
Morale is a two way street and family members need be encouraged just as much
as the prisoner. Prisoners are strongly urged to correspond and arrange visits.
Prisoners are encouraged to place all potential visitors on their visitor list even if
the chance or their visiting is remote. In the event during your confinement you
wish to add additional people to the visitation list you must submit a DD Form
510 with name, relationship, age, and address to the Admin Chief. The following
guidelines are applicable:
a. Authorized: No limitations will be imposed as to the number or persons who
may visit with a prisoner, except as to maintain security, control, or to exclude
persons disapproved by the Commanding Officer for cause. Authorized visitors
include the prisoner’s immediate family (spouse, children, parents, brothers,
sisters or guardians) or anyone who has established a proper relationship with the
prisoner prior to him being confined.
b. Official: These visits are for the purpose of conducting official government
business, either on behalf of the prisoner or in the interest of justice. Visits from
lawyers, military officials, civilian officials, or anyone listed as a privileged
correspondence in paragraph 3.17f of this regulation, having official business to
conduct are considered official visits and may be authorized by the Commanding
Officer to visit at any time during normal working hours. All prisoners will be
required to see official military visitor(s). Refusal to visit with official military
visitors will be subject to disciplinary action.

United States v. PFC Bradley E. Manning
Defense Article 13 Motion
42
Privileged Correspondence: All incoming and outgoing correspondence (mail)
between a prisoner and the following is privileged and not subject to inspection
unless reasonable doubt exists as to the correspondence being bona fide:
a. The President or Vice President of the United States.
b. Members of Congress of the United States.
c. The Attorney General of the United States and Regional
Offices of the Attorney General.
d. The Judge Advocate General of each military service or
his/her representatives.
e. Prisoners Defense Counsel or any military/civilian attorney
of record.
f. Any attorney listed in professional or other directories or an
attorney’s representative.
g. Prisoner’s clergyman, when approved by the chaplain.
See Attachment 34.
62. On 31 March 2012, Mr. Coombs wrote the following to CPT Fein:
I have informed **Redacted****Redacted**that he is authorized to visit PFC
Manning under the rules and regulations for the Quantico Brig. Under Brig Order
P1640.1C, paragraph 3.17, there are two types of visitors for a detainee,
authorized and official.
1) Authorized visitors are required to be added by the detainee and approved by
the Quantico Brig. Any person added to the authorized visitors list may visit the
detainee on any Saturday or Sunday between the hours of 12:00 and 3:00 p.m.
These visits are monitored by the Brig. The Brig requires the visits to take place
in a no-contact booth for any detainee held in Maximum Custody. The doors to
the booth must remain open and the entire visit will be recorded by the Brig.
Anything said during these visits is not privileged and can be used later by the
government in a court-martial proceeding.
2) Official visitors are for the purpose of conducting official government
business, either on behalf of the detainee or in the interest of justice. Official
visits may be authorized by the Brig Officer to visit a detainee at any time during
normal working hours. The official visits are considered privileged, and are not
subject to recording or monitoring. The Brig’s rules and regulations identify the
following individuals as qualifying for official visits:
a) Military officials.
b) Civilian officials.
c) The President or Vice President of the United States.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
43
d) Members of Congress of the United States.
e) The Attorney General of the United States and Regional Offices of the
Attorney General.
f) The Judge Advocate General of each military service or his or her
representative.
g) Prisoner’s Defense Counsel or any military or civilian attorney of
record.
h) Any attorney listed in professional or other directories or an attorney’s
representative.
i) Prisoner’s clergyman when approved by the chaplain.
Given the difference between authorized and official visits, PFC Manning does
not want to waive his entitlement to have a privileged conversation with
**Redacted****Redacted**. You should know, that Amnesty International is
also making a request for an official visit as well as **Redacted**, the *****
**Redacted****Redacted**.
I have recommended that each of the above individuals contact the facility
directly to arrange for an official visit. I am hoping that you will indeed ensure
that the Quantico Brig honors its own rules and regulations.
See Attachment 33.
63. On 1 April 2011, Mr. Coombs contacted **Redacted**, the **Redacted****Redacted**,
regarding an official visit:
I have been informed by **Redacted****Redacted**office and by Amnesty
International that they have been told by your office they do not qualify for an
official visit. Instead, they are being directed to request to be added to PFC
Manning’s “authorized” visitors list. Additionally, **Redacted****Redacted
office is being told that the Brig Order that his office is referencing does not exist.
I have seen Brig Order P16401C, dated 1 July 2010. This order clearly provides
for both authorized and official visits.
Id. Thus, it appears that Brig Officials lied to **Redacted****Redacted** about the very
existence of Brig Order P16401C.
64. On 5 April 2011, CPT Fein responded:
**Redacted**
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Defense Article 13 Motion
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Id.
65. On 6 April 2010, Mr. Coombs sent the following response to CPT Fein:
1. Thank you for your reply. Is the interpretation of the Brig Order the ***
****************, the Quantico Brig’s interpretation, or simply your
interpretation?
The sentence that you gloss over in your reply is actually the critical one from the
Brig Order. This sentence states that “[v]isits from lawyers, military officials,
civilian officials, or anyone listed as a privileged correspondence in paragraph
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
46
3.17f of this regulation, having official business to conduct are considered official
visits…” (Emphasis added). **Redacted****Redacted**, **Redacted**from the
United Nations, and any representative from Amnesty International would clearly
fall within the scope of individuals identified in paragraph 3.17f and are therefore
deemed to be official visits under the Brig Order.
Under the interpretation advanced in your previous message, a member of
Congress is conducting an “official” visit only if he is conducting “official
government business” and a member of a non-government organization is not
“official’ as they are not conducting “government business.” Besides being an
[sic] perfunctory argument without support under the Brig Order, it is also one
that is easily nullified by using the example of a civilian attorney. Paragraph
3.17f states that a “civilian attorney of record” is deemed to be an official visit. A
civilian attorney is clearly a non-government entity and as such is not conducting
“official government business.” This clearly belies any attempt to argue official
visits are limited in the way that you suggest.
Moreover, official visits are clearly privileged under the Brig Order. While
section 3.17f speaks to mail correspondence being privileged, it must follow that
oral communications are also privileged. It would not make sense that a detainee
would enjoy the protection of a privileged communication from an individual
listed in paragraph 3.17f if the correspondence came by way of mail as opposed to
an in-person conversation with the same individual.
With regards to the ******* *************************** dated 16 September
2010, his failure to recognize other individuals who are entitled by the Brig Order
to have a privileged conversation is not dispositive. The order is unenforceable
given the fact it would authorize the recording of privileged conversations.
Likewise, the government’s concern surrounding PFC BM’s right to counsel is
misplaced. Mental health providers and brig chaplains are able to speak with PFC
BM without coordination with civilian counsel. As long as the conversations are
privileged, the government’s concern would seem unwarranted.
Given the above, I request that you clarify the Quantico Brig’s official position on
this issue.
Id.
66. CPT Fein then clarified on 7 April 2011 that “**Redacted****Redacted****Redacted********
*************************************” Id. Owing to the interpretation of the Brig policy,
PFC Manning was never permitted an unmonitored visit with the *************************
****************************************, or Amnesty International.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
47
J. PFC Manning’s Repeated Pleas for Relief From the Onerous Conditions of His
Confinement
67. PFC Manning repeatedly requested to be removed from MAX and POI. Additionally, PFC
Manning’s civilian counsel made numerous requests of the United States Army Staff Judge
Advocate’s Office for the Military District of Washington to assist in removing PFC Manning
from MAX and POI.
68. In the fall of 2010, Mr. Coombs and CPT Fein had several telephone conversations about the
onerous conditions of PFC Manning’s confinement. On 3 December 2010, Mr. Coombs wrote to
CPT Fein asking whether he had “an update on the POI issue with PFC Manning.” Id. Mr.
Coombs continued,
**Redacted**saw PFC Manning on Thursday. It is my understanding that after
speaking with PFC Manning, he is still recommending that the POI restrictions be
lifted. As mentioned earlier, given the recommendation of **Redacted**, I do not
believe the confinement facility has a legitimate non-punitive basis to keep PFC
Manning on the POI status. Additionally, it is my understanding that other than in
this instance, the confinement facility has never had anyone under POI restrictions
for this length of time. This fact also cuts against a legitimate non-punitive basis.
Id. CPT Fein responded, *********************************************************
******************************************************************************
************************************” Id.
69. On 8 December 2010, CPT Fein had still not addressed the POI issue. Mr. Coombs wrote to
him again saying, “How is the POI issue coming along? My understanding is that **Redacted* is
still recommending that the POI be lifted.” Id. CPT Fein responded, “*******************
********************************.” Id. Mr. Coombs responded,
Do you have a time-table on the POI issue. Earlier today, I spoke with *****
*******. He told me that he is still recommending that PFC Manning be taken
off of POI status. He told me that the behavior witnessed by the guards appears to
be a result of a side effect from PFC Manning’s sleep medication.
As I have said before, I believe the current confinement conditions rise to the
level of unlawful pretrial punishment. **Redacted**does not have a legitimate
basis to continue to ignore the advice of his mental health professional.
Maintaining the POI status prevents PFC Manning from exercising, having basic
items such as a pillow and sheet, and subjects him to prolonged isolation. Please
tell me what you have done so far to address this issue, and the additional steps
that you plan to take to resolve it.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
48
Id. The next day, on 9 December 2010, CPT Fein responded to Mr. Coombs, stating,
“*****************************************************************************
******************************************************************************
***************************.” Id.
70. Of course, PFC Manning was not taken off MAX or POI status. And it is clear that CPT
Fein and the Government did not advocate for the rights of PFC Manning during this period
despite repeated protestations from the Defense that PFC Manning was being subjected to illegal
pretrial punishment. In late November 2010, just prior to the emails chronicled above, someone
from the Government (i.e. the prosecution team) contacted the Brig and said the following:
******************************************************************
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See Attachment 35.
71. Thus, it appears that the Government did not actually try to have PFC Manning removed
from POI status (“*************************************************************
*************”), but simply made inquiries of the Brig to “**Redacted**” the concerns raised
by the Defense. Id.
72. During this time, the Government also requested copies of sunshine logs maintained by the
Brig:
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Id. Far from trying to remedy the situation, the Government was just looking for documentation
that could be used to “combat any potential Article 13 issues.” Id.
73. All of the Defense’s requests for a change in confinement conditions were met with
assurances that the confinement conditions were being reviewed and would be adjusted in time.
However, despite these assurances, PFC Manning remained in MAX and POI at Quantico for
over eight months. When combined with the time he spent on Suicide Risk in Kuwait, PFC
Manning was in the equivalent of solitary confinement for almost eleven months.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
49
74. On 5 January 2011, PFC Manning filed a complaint with the Quantico ******* **********
and a DD Form 510 complaint through the Brig’s grievance process. See Attachments 10, 36.
The complaint and the official grievance requested that the ******* ********** remove PFC
Manning from MAX and POI or provide justification for his decision to keep PFC Manning in
MAX and POI. PFC Manning was not provided with any form of redress through the grievance
process.
75. On 13 January 2011, PFC Manning filed a request for release from pretrial confinement
under R.C.M. 305(g). See Attachment 11. PFC Manning cited the unduly harsh confinement
conditions, the Quantico ******* ********** failure to respond to his grievance request, and the
failure of the military magistrate to seriously consider other options under R.C.M. 304 to ensure
PFC Manning’s presence at trial. **Redacted**., the *****************************
**********, subsequently denied PFC Manning’s request and informed PFC Manning that he
would address the POI issue in a separate action. See Attachment 12. **Redacted**did not
address the POI issue raised by PFC Manning.
76. On 19 January 2011, PFC Manning filed a request for redress under Article 138, UCMJ with
the **Redacted****Redacted**. See Attachment 13. The **Redacted****Redacted**, filed a
response to PFC Manning’s Article 138 Complaint on 24 January 2011. See Attachment 15. So
too did **Redacted**. See Attachment 17. On 1 March 2011, **Redacted**filed a response to
PFC Manning’s Article 138 Complaint. See Attachment 18. This response was served on PFC
Manning on 2 March 2011. All three determined that no relief was appropriate and denied PFC
Manning’s request for redress.
77. On 10 March, 2011, PFC Manning filed a Rebuttal to **Redacted**denial of his Article 138
Complaint. See Attachment 14. In this, PFC Manning also raised the incident on 2 March 2011
where he was placed on Suicide Risk. **Redacted**and **Redacted**filed responses where they
recommended denying PFC Manning’s petition for redress. See Attachments 16, 20, 21. *****
**Redacted** denied PFC Manning’s Article 138 Complaint a second time on 8 April 2011. See
Attachment 19. Two days prior, on 6 April 2011, **Redacted**determined that he would not
consider the new matter raised by PFC Manning’s Article 138 Complaint. On 10 April, PFC
Manning filed a second rebuttal to **Redacted**response and requested that he consider the new
matters raised in the Article 138 Complaint. See Attachment 19.
78. All of these matters were forwarded to the **Redacted****Redacted**for his final action. On
13 June 2011, **Redacted****Redacted****Redacted**, took final action on the Article 138
Complaint by denying PFC Manning’s request for redress. See Attachment 23. He stated “even
if your complaint has merit, your transfer to [Fort Leavenworth] is a superseding and intervening
event that has made your request for relief unavailable.” Id.
79. On 20 April 2011, PFC Manning was transferred to the Joint Regional Correctional Facility
(JRCF) at Fort Leavenworth, Kansas. After a routine indoctrination period, PFC Manning was
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
50
placed in Medium Custody with no prevention of injury restrictions. He has been held in that
status for the past 15 months.
ARGUMENT
80. Article 13 provides that “no person, while being held for trial, may be subjected to
punishment or penalty other than arrest or confinement upon the charges pending against him,
nor shall the arrest or confinement upon the charges be any more rigorous than the circumstances
required to insure his presence.” Article 13 thus prohibits both: (1) the imposition of punishment
or penalty prior to trial; and (2) confinement conditions more rigorous than necessary to ensure
the accused’s presence at trial. See United States v. Crawford, 62 M.J. 411, 414 (C.A.A.F.
2006); United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005); United States v. Inong, 58 M.J.
460, 463 (C.A.A.F. 2003); United States v. Fricke, 53 M.J. 149, 154 (C.A.A.F. 2000). If an
accused can demonstrate an intent to punish or the imposition of unduly onerous confinement
conditions, he is entitled to relief under Article 13. See id.
81. The first prohibition of Article 13 requires an accused to show an intent to punish. See
United States v. Huffman, 40 M.J. 225, 227 (C.M.A. 1994). This intent can be determined by
examining the intent of the detention officials, or by examining the purposes served by the
conditions of confinement. See United States v. King, 61 M.J. 225, 227 (C.A.A.F. 2005).
“Absent a showing of an expressed intent to punish on the part detention facility officials, that
determination generally will turn on ‘whether an alternative purpose to which [the restriction]
may rationally be connected is assignable for it, and whether it appears excessive in relation to
the alternative purpose assigned [to it].’” Bell v. Wolfish, 441 U.S. 520, 538 (1979).
82. On the other hand, the second prong of Article 13 focuses on the conditions endured by the
accused, and whether they are more rigorous than necessary to guarantee the accused’s presence
at trial. See United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997). Conditions that are
sufficient egregious may give rise to a permissible inference that an accused is being punished,
or the conditions may be so excessive as to constitute punishment. United States v. Zarbatany,
70 M.J. 169, 174 (C.A.A.F. 2011).
83. In this case, there is a clearly expressed intention to punish PFC Manning. **Redacted**
had decided that PFC Manning would remain in MAX and POI for as long as he was at Quantico
because nothing was going to happen “on his watch.” Even if there weren’t such a clearly
expressed intention to punish PFC Manning, the restrictions that were placed on PFC Manning
were not related (much less rationally related) to any legitimate government objective. Finally,
the egregious conditions of PFC Manning’s confinement for over eight months permit the per se
inference that PFC Manning was punished in contravention of his constitutional rights.
A. Quantico Brig Officials Intended to Punish PFC Manning
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
51
84. There is clear evidence showing that the conditions imposed on PFC Manning were
motivated by factors which had nothing to do with PFC Manning’s risk of self-harm, harm to
others, or potential flight risk. In particular, the Brig’s arbitrary policy to keep PFC Manning
subject to the harshest conditions possible shows an intent to punish PFC Manning. See United
States v. Crawford, 62 M.J. 411, 416 (C.A.A.F. 2006)(“we do [not] condone arbitrary policies
imposing ‘maximum custody’ upon pretrial prisoners. We will scrutinize closely any claim that
maximum custody was imposed solely because of the charges rather than as a result of a
reasonable evaluation of all the facts and circumstances of a case.”).
a) **Redacted****Redacted**Order That PFC Manning Would be Kept on MAX and POI
Indefinitely
85. The confinement conditions imposed on PFC Manning at Quantico were motivated by a
desire to punish PFC Manning for the crimes he is alleged to have committed; the media scrutiny
that his case has generated; and the comments that PFC Manning made in attempting to have the
restrictive confinement conditions lifted.
86. PFC Manning is alleged to have leaked hundreds of thousands of classified documents to
WikiLeaks. He has been denounced as a traitor in the media. ***************************
***************, indicated that PFC Manning “might already have blood on his hands.”
Members of Congress have called for PFC Manning’s execution. PFC Manning has been
charged with “aiding the enemy,” a charge that is closely related to treason.
87. In response to the high-profile nature of this case, and the apparent predetermination by Brig
officials that PFC Manning is guilty, **Redacted** issued a directive reminiscent of “A Few
Good Men”
7
that PFC Manning would be held under MAX and POI because nothing was going
7
In an infamous scene from the movie “A Few Good Men,” Col. Jessup (played by Jack Nicholson)
unapologetically boasts that he ordered a “Code Red”:
Judge Randolph: *Consider yourself in Contempt!*
Kaffee: *Colonel Jessep, did you order the Code Red?*
Judge Randolph: You *don’t* have to answer that question!
Col. Jessep: I’ll answer the question!
[to Kaffee]
Col. Jessep: You want answers?
Kaffee: I think I’m entitled to.
Col. Jessep: *You want answers?*
Kaffee: *I want the truth!*
Col. Jessep: *You can’t handle the truth!*
[pauses]
Col. Jessep: Son, we live in a world that has walls, and those walls have to be guarded by men with guns. Who’s
gonna do it? You? You, Lt. Weinburg? I have a greater responsibility than you could possibly fathom. You
weep for Santiago, and you curse the Marines. You have that luxury. You have the luxury of not knowing what
I know. That Santiago’s death, while tragic, probably saved lives. And my existence, while grotesque and
incomprehensible to you, saves lives. You don’t want the truth because deep down in places you don’t talk
about at parties, you want me on that wall, you need me on that wall. We use words like honor, code, loyalty.
We use these words as the backbone of a life spent defending something. You use them as a punchline. I have
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
52
to happen “on [his] watch.” When challenged by **Redacted**, **Redacted**responded that
“nothing’s going to change. He won’t be able to hurt himself and he won’t be able to get away,
and our way of making sure of this is that he will remain on this status indefinitely.” ********
**Redacted**said something to the effect of, “Sir, I am concerned because if you’re going to do
that, maybe you might want to call it something else, because it’s not based on anything from
behavioral health.” In response, **Redacted**said, “We’ll do whatever we want to do. You [the
Brig psychiatrists] make your recommendation and I have to make a decision based on
everything else.” **Redacted** responded, “Then don’t say it’s based on mental health. You can
say it’s MAX custody, but just don’t say that we’re somehow involved in this.” **Redacted**
said, “That’s what we’re going to do.”
88. The very next day, on 14 January 2011, **Redacted**evaluated PFC Manning and found (as
he had for the previous five months) that he did not require POI restrictions. The tone of this
evaluation was different than the others and he appears to reference to **Redacted**order from
the day before. **Redacted**writes:
Pt [patient] continues to not be suicidal and does not require POI. Please remove
him. If he requires enhanced security for other reasons, please consider writing a
separate SOP.
See Attachment 2.
89. It was clear to those at the 13 January 2011 meeting that the directive from **Redacted**was
coming from “higher up.” See Attachment 8 (“He indicated that Manning would remain in
current status (POI) unless and until he received instructions from higher authority (unnamed). I
do not recall him saying he would be kept that way until his legal process was complete, but the
impression he left was not to expect any changes in the near future.”; “The **Redacted*********
**Redacted** intimated that he was receiving instructions from a higher authority on the matter
but did not say from whom.”).
90. Although the meeting took place in January of 2011, it is safe to assume that the order that
PFC Manning would remain in MAX and POI had been in place since PFC Manning arrived at
Quantico. This was just the first time that the Brig psychiatrists (and later, the Defense) learned
what was really going on.
neither the time nor the inclination to explain myself to a man who rises and sleeps under the blanket of the very
freedom that I provide, and then questions the manner in which I provide it. I would rather you just said thank
you, and went on your way. Otherwise, I suggest you pick up a weapon, and stand a post. Either way, I don’t
give a damn what you think you are entitled to.
Kaffee: Did you order the Code Red?
Col. Jessep: I did the job I…
Kaffee: *Did you order the Code Red?*
Col. Jessep: *You’re Goddamn right I did!*
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
53
91. The decision early on to hold PFC Manning under these onerous conditions – with no hope
for improvement – was clearly based on the desire to punish PFC Manning for the crimes that he
was alleged to have committed. An official’s expressed desire to punish constitutes
unconstitutional punishment. See Bell v. Wolfish, 441 U.S. 520 (1979); See also United States v.
Fricke, 53 M.J. 149, 155 (C.A.A.F. 2000)(accused alleged that he was placed in solitary
confinement for an extended period of time because prison officials were attempting to “break
him”; court indicated that “coercing a confession is not a legitimate governmental objective.”).
92. Moreover, where a result is already pre-determined, by definition, procedural due process is
denied. See Ryan v. Ill. Dep’t of Children & Family Servs., 185 F.3d 751, 762 (7th Cir. 1999)
(producing “evidence that the decision has already been made and any hearing would be a sham”
sets forth a procedural due process claim); Patrick v. Miller, 953 F.2d 1240, 1245 (10th Cir.
1992) (holding that due process requires an impartial tribunal that has not predetermined facts);
Francis v. Coughlin, 891 F.2d 43, 46 (2nd Cir. 1989) (“[I]t is axiomatic that a prison disciplinary
hearing in which the result is arbitrarily and adversely predetermined violates [the right of due
process].”).
93. In United States ex. rel. Accardi v. Shaughnessy, 74 S.Ct. 499 (1954), the Supreme Court
found a violation of procedural due process in circumstances far less glaring than the instant
case. In Shaughnessy, the petitioner brought a habeas action in which he attacked the validity of
the denial of his application for suspension of deportation. He alleged that he was “prejudged”
because prior to the immigration board’s hearing, the Attorney General published a confidential
list of “unsavory characters.” Id. at 500. The Supreme Court found that the petitioner’s
procedural due process rights were violated because the “issuance of the list and related publicity
amounted to public prejudgment by the Attorney General so that fair consideration of the
petitioner’s case by the Board of Immigration Appeals was made impossible.” Id. at 502.
Notably, the Supreme Court stated, “To be sure, the petition does not allege that ‘the Attorney
General ordered the Board to deny discretionary relief to the listed aliens.’ It would be naïve to
expect such a heavy handed way of doing things.” Id. at 503. And, yet, this “heavy handed way
of doing things” is exactly how **Redacted**handled the determination of the conditions of PFC
Manning’s confinement. If a not-so-subtle “hint” at the result sought constitutes a violation of
due process as the Supreme Court held in Shaughnessy, then surely an explicit order by the
**Redacted****Redacted**to keep PFC Manning under MAX and POI amounts to violation of
PFC Manning’s constitutional rights.
94. **Redacted**unlawful order that PFC Manning be maintained in MAX and POI status was
made even more egregious by the fact that it was made in the presence of a JAG officer, thus
giving it a legal “blessing.” That a JAG officer stood by mutely while a ********* issued an
order which clearly violated an accused’s constitutional rights cannot be countenanced. It is a
particularly sad day when the guardians of the system are the ones failing it.
95. On 31 January 2011, just a few weeks after the meeting where **Redacted**directed that
PFC Manning would not be removed from MAX or POI because “nothing was going to happen
on [his] watch,” **Redacted**recommended that PFC Manning’s Article 138 Complaint be
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
54
denied. See Attachment 17. **Redacted**stated that **Redacted** “classification and
assignment decisions in this case have been appropriate and within applicable regulations.” Id.
Of course, **Redacted**thought these recommendations were “appropriate.” Id. After all, Col.
**Redacted** was the one who issued the order to make those recommendations in the first place.
b) **Redacted**Order Provides Context for the Repeated Recommendations of the C&A
Board and the **Redacted****Redacted**to Retain PFC Manning in MAX and in POI
Over the Recommendations of Brig Psychiatrists
96. When viewed against the backdrop of **Redacted**order, the continued recommendations of
the C&A Board and of **Redacted**and **Redacted**to retain PFC Manning on MAX and POI
now make sense. See Attachment 6. In his Response to PFC Manning’s Article 138 Complaint,
**Redacted**writes:
In your case, the PCF mental health provider recommended removal of POI status
near the end of August. Except for one week in December, the PCF mental health
provider has consistently recommended that you be removed from POI. However,
the C&A Board has consistently recommended that you remain in POI status
given your intake document that you were ‘always planning’ suicide. It is within
the direction of the **Redacted**to retain you in a POI status. I note that the
**Redacted** has the inherent authority over those in his custody to maintain
order and discipline and the responsibility to ensure safety and security in the
PCF.
See Attachment 18.
97. The C&A Board, along with **Redacted**and **Redacted**, had been told what they needed
to do – keep PFC Manning subjected to the most rigorous conditions possible. So no matter
what the psychiatrists recommended, week-after-week, month-after-month, nothing ever
changed because everyone at the Brig had their marching orders from **Redacted**, who in turn
had his marching orders from someone higher up in the chain of command. In effect, the
psychiatric opinions were just “window dressing” to make it look like PFC Manning was
accorded due process – when it was abundantly clear that he was not.
98. A careful look at the C&A Board reviews shows that the entire “process” was just a sham.
8
First, the C&A Board failed to fill out the appropriate forms for a total of five months. See
Attachment 6. See also Attachment 19 (**Redacted** acknowledging that “not each decision
was documented utilizing the local generated ‘Form 4200’.”). It was only when it was clear that
Quantico was being subjected to outside scrutiny that the Board thought it necessary to create a
paper trail to make it appear like PFC Manning was being accorded due process. The failure to
8
**Redacted**notes that the weekly C&A Board evaluations have “unanimously” recommended retaining PFC
Manning in MAX and POI. See Attachment 15. If a process were actually neutral (i.e. not already predetermined),
one would have expected to see some disagreement in the three dozen times the Board convened. The only thing
that can explain the unanimity is that everyone was sold exactly how they had to vote.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
55
document the continued decision to maintain PFC Manning in MAX and POI is reflective of the
fact that the “decision” was already predetermined. See McClary v. Kelly, 4 F.Supp. 2d 195, 213
(W.D.N.Y. 1998)(“Due process is not satisfied where the periodic reviews are a sham.”);
Sourbeer v. Robinson, 791 F.2d 1094 (1101 (3d Cir. 1986)(while “the monthly review
procedures … were facially adequate” the prisoner’s due process rights were violated because
the reviews were merely “perfunctory.”).
99. Further evidence of the fact that the result was predetermined is found in the reviews from 3
January 2011 until the time that PFC Manning was transferred to the JRCF. For instance, week
after week, the following boxes were generally ticked as supporting the continued decision to
retain PFC Manning in MAX and on POI: low tolerance of frustration; poor home conditions or
family relationships; length, or potential length, of sentence. Id. Notably, “poor home
conditions or family relationships” and “length, or potential length, of sentence” are immutable
factors. That is, there is nothing PFC Manning could ever do to change the fact that he might
have had poor home conditions and was facing a lengthy sentence.
100. Further, the decision to continually check the “low tolerance of frustration” box is
oftentimes in direct contravention of the mental health providers’ determination that PFC
Manning had “an average tolerance of frustration/stress” (note: there is no option of ticking that
an inmate has a “good tolerance of frustration/stress”). For instance, on 30 December 2010,
**Redacted**indicated that “inmate has an average tolerance of frustration/stress.” See
Attachment 2. In the next C&A Board review four days later, on 3 January 2011, ********
**Redacted**ticked the box indicating that PFC Manning has “low tolerance of frustration.” See
Attachment 6. Thus, it appears that the Brig has made the decision that despite what the doctors
say, in their personal view, PFC Manning had a “low tolerance of frustration.” Consequently,
there was absolutely nothing that PFC Manning could do with respect to the factors that the Brig
continually used to justify the MAX and POI status.
101. After the 18 January 2012 incident where PFC Manning had an anxiety attack, the C&A
Board realized that it could tick yet another box to bolster its already predetermined conclusion –
“assaultive/disruptive behavior.” The C&A Board, however, didn’t realize that right away. So
in the 21 January 2011 review, **Redacted**ticked the usual three: “low tolerance of
frustration”, “poor home conditions” and “length, or potential length, of sentence.” See
Attachment 6. By 28 January 2011, **Redacted**added “assaultive/disruptive behavior” and
kept it on the list for the next month. Id. It is unclear how PFC Manning’s anxiety attack,
prompted by harassment by Brig guards, can properly be regarded as either “assaultive” or
“disruptive.”
102. On the 28 January 2011 C&A Board review form, **Redacted**checked the box that read:
“A mental evaluation indicating serious neurosis or psychosis.” Id. There was never any mental
evaluation during this period indicating “serious neurosis or psychosis.” That exact same day, 28
January 2011, **Redacted**recommended removing PFC Manning from POI, indicating that
“inmate does not pose a threat to himself” and “inmate does not need to be segregated from
general population.” See Attachment 9. In the Medical Officer’s Remarks, **Redacted**
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
56
indicates that “[PFC Manning] requires routine outpatient follow-up.” Id. This hardly
constitutes an “evaluation indicating serious neurosis or psychosis” as **Redacted**had indicated
on the C&A Board review form. **Redacted**also checked the same box the following week,
despite a notation that psychiatrists “recommend to be placed off POI.” Id. Thus, it appears that
the C&A Board was taking great liberties with the grounds it was using to keep PFC Manning on
MAX and on POI and ticking boxes willy-nilly with no regard for whether they were actually
true.
103. On 18 February 2011, the C&A Board added a box labeled “potential mental disorders.”
See Attachment 6. This seems to also have been made up out of whole cloth, as the psychiatric
review conducted that same day stated, “Mental disorder is resolved” and the recommendation
was that PFC Manning “does not need to be segregated from general population due to a
treatable mental disorder.” See Attachment 2. How could the Brig use “potential mental
disorders” to justify PFC Manning’s continued classification decision when Brig psychiatrists
came to the directly opposite conclusion (i.e. that any “mental disorder is resolved”)? Again, this
shows the C&A Board arrogantly placing its armchair psychiatry above the opinions of qualified
mental health providers.
104. In the “Remarks” section of the C&A Board reviews, the following comment appears in
some variation in every entry, oftentimes verbatim:
SND has previous demonstrated suicidal ideations and gestures. SND was
transferred from TFCF Camp Arifjan due to the lack of specialized mental health
care. SND has demonstrated erratic behavior as recently as [date]. SND has a
potential gender identity disorder and is pending a 706 sanity board hearing.
See Attachment 6. Apparently, the C&A Board felt it appropriate to cut-and-paste the exact
same thing over and over again for four months in order to justify the determination to keep PFC
Manning in MAX and POI. This cut-and-paste job does not bear the hallmarks of a neutral,
considered C&A Board process.
105. Moreover, there was absolutely nothing PFC Manning could have done to change any of
the cited reasons for keeping him in MAX and on POI. PFC Manning apparently had
demonstrated suicidal ideations when held in Kuwait; he was pending a 706 Board; he did have a
potential gender identity disorder; and Brig officials always found something they considered
erratic about his behavior. After PFC Manning’s anxiety attack on 18 January 2011, the
following notation began to appear in subsequent C&A reports, “On 18 January, SND had an
anxiety attack and began acting aggressively toward himself in the presence of the Brig OIC and
Supervisor.” Id. The notation appeared up until 3 March 2011. Id. Again, there was nothing
PFC Manning could do about any of these notations that continued to form the basis to hold him
in the functional equivalent of solitary confinement.
106. There is also a strange, but telling, annotation on 18 February 2011. In typewritten font, in
the “Remarks” section, the C&A Board states, “Due to the nature of SND’s charges and national
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
57
security concerns, SND is potentially facing a severe sentence to confinement.” Someone, in
handwriting, inserted the word “alleged” between “SND’s” and “charges.” Id. What is clear is
that the Brig was trying to avoid the appearance that it was punishing PFC Manning based on the
nature of the charges against him, hence the word “alleged” (even though it did not fit into the
sentence).
107. By the end of PFC Manning’s time at Quantico, the C&A reviews reflect the fact that PFC
Manning had withdrawn from the C&A process and was being guarded with staff. That, in turn,
was used against him as a basis upon which to continue his POI and MAX status. On 18 March
2011 (after PFC Manning was subjected to additional restrictions owing to his comment about
his underwear), the C&A Board noted “SND’s demeanor has become secluded [sic] from the
majority of the Brig staff and previous visitors.” Id. It also noted “SND has recently begun to
isolate himself, showing limited interest in conversation with staff or his counselor …” Id. On
25 March 2011, there is the exact same entry: “SND has recently begun to isolate himself,
showing limited interest in conversation with staff or his counselor …” Id. On 1 April, the C&A
Board repeats once again, “SND continues to isolate himself, showing limited interest in
conversation with staff or his counselor …” Id. On 8 April, not surprisingly, the exact same
entry appears: “SND continues to isolate himself, showing limited interest in conversation with
staff or his counselor …” Id.
108. Incredulously, at least two of the entries towards the end of PFC Manning’s confinement at
Quantico suggest that there is actually something PFC Manning could do to have the onerous
conditions of his confinement removed. On 1 April 2011, **Redacted**writes, “SND’s mood
has been somber. There is no detailed conversations as in the past. No lite contact. Lately, has
not requested any special accommodations; has not been appearing in front of the C&A Board to
give input to make a difference.” Id. **Redacted**actually had the audacity to suggest that if
PFC Manning were to appear before the C&A Board, it would “make a difference.” Based on
the entries in the C&A reviews (which were, of course, done at the behest of **Redacted**), it is
clear that there was nothing PFC Manning could ever do to change the circumstances of his
confinement. In fact, when PFC Manning did appear before the C&A Board on 25 February
2011, the Board wrote “SND requested to appear infront [sic] of the classification and
assignment board, but had no new issues to bring to the board’s attention, that were not already
voiced in his previous appearances before the board.” Id. Thus, it is clear that when PFC
Manning did appear before the C&A Board, it wholly discounted what he had to say.
109. Moreover, the Board’s comment that “[PFC Manning] had no new issues to bring to the
board’s attention that were not already voiced in his previous appearances before the board” is
wholly absurd. At the time of the review in question, PFC Manning had been in the functional
equivalent of solitary confinement for eight months – what “new issues” could PFC Manning
have possibly raised? That is, what “new” reason could PFC Manning have provided to the
Board that would have made the Board members think, “Thanks for bringing that up. Maybe we
should lessen your confinement restrictions.”? It is ridiculous to think that the Brig would bait
PFC Manning into participating in the process (by suggesting that there was something he could
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
58
do or say to change the conditions of his confinement) but then dismiss his participation in the
process because he didn’t say anything “new.”
110. On 15 April 2011, **Redacted**writes in the C&A Board notes, “SND remains guarded.
Spoke to SND on 20110411 regarding being more open and engaging in communication in
efforts to adjust handling but no change has been seen. SND has not spoken to me about coming
off POI although I explained what he needs to do.” Id. Again, it is unbelievable that Quantico
Brig officials would suggest that there was something that “he needs to do” to get off of POI
status. If eight months of repeated recommendations from Brig psychiatrists, coupled with pleas
from PFC Manning, his lawyer and the community at large, did not result of a lessening of
restrictions, nothing ever would. It is abundantly clear that if PFC Manning had not been
transferred to the JRCF, he would still be in MAX and on POI at Quantico today, stripping naked
every night, wearing a suicide smock, sleeping on suicide bedding, and covering himself with a
suicide blanket.
111. It is also clear from looking at the C&A Board notes that no weight was accorded to the
psychiatrists’ recommendations to remove PFC Manning from POI. Sometimes, the entries
would annotate a sentence or two from the psychiatrists’ recommendations, but would make
absolutely no effort to explain why the recommendation was overridden. For instance, on 25
February 2011, the Remarks section reads:
SND has previous demonstrated suicidal ideations and gestures. SND does not
have strong family ties, and or relationships with immediate family. SND
requested to appear infront [sic] of the classification and assignment board, but
had no new issues to bring to the board’s attention, that were not already voiced in
his previous appearances before the board. SND was evaluated by **Redacted**
on 20110225. **Redacted**annotated the SND’s behavior and thought content is
normal and his thinking process is clear. **Redacted**annotated that SND does
not need to be segregated from general population due to a treatable mental
disorder and that SND would only need routine examinations in the future. *****
**Redacted**stated that SND remains in early remission of an anxiety disorder.
**Redacted**is also tapering SND off of his prescribed medications. Due to the
nature of SND’s alleged charges and national security concerns, SND is
potentially facing a severe sentence to confinement.
Id. The “Remarks” section is a complete non-sequitur, with a bunch of random facts and no
justification for the decision to retain PFC Manning in POI and MAX. The Brig makes no
attempt to explain why the opinion of **Redacted**is outright ignored.
112. The C&A Board reviews are not the only evidence that the psychiatrists’ opinions meant
nothing to the Brig given the order by **Redacted**that PFC Manning would not be removed
from MAX and POI. In PFC Manning’s conversation with **Redacted**following the first
incident where PFC Manning was placed on Suicide Risk, it is obvious that Brig officials would
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
59
never be swayed by the opinions of pesky mental health providers. The conversation between
the two went as follows, with **Redacted**speaking in a loud and booming voice:
PFC Manning: Why was I on, why was I on prevention of status for almost 6
months?
**Redacted**: [chuckles to himself] I know this is no secret to you … I have
plenty of documentation. Plenty of documentation based on things that you’ve
said, things that you’ve done. Actions – I have to make sure, we have to make
sure, that you’re taken care of.
PFC Manning: Yes, MSGT.
**Redacted**: Things that you’ve said and things that you’ve done don’t steer us
on the side of “ok, well, he can just be a normal detainee.” They make us stay on
the side of caution.
PFC Manning: But what about recommendations by the psychiatrist to remove
me off the status?
**Redacted**: Who’s here every day? Who’s here every day? We are. Who
sees you every day? That’s all he is, is a recommendation. We have, by law,
rules and regulations set forth to make sure from a jail standpoint that Bradley
Manning does not hurt himself. Maybe from a psychiatric standpoint, the
recommendation he’s given – I get it, I got it, understand, OK? But he’s not the
only decision maker. A mental health specialist is not the only decision that gets
made.
See Attachment 25. **Redacted**also repeated on 2 March 2011 that there was nothing PFC
Manning could ever do to remove himself from POI, despite the recommendations of mental
health providers.
113. **Redacted**also discounted the medical health providers’ recommendations. He stated
that POI status is assigned to those “prisoners who have given an indication that they intend or
are contemplating harming themselves. This status is not linked to a medical officer’s approval.”
See Attachment 18. He also stated, “A mental health provider does not need to authorize
administrative segregation to prevent self-injury provided the segregation is not being done to
circumvent a medial professional’s opinion that suicide risk is not necessary.”
9
See Attachment
19.
9
**Redacted**deliberately avoids the million dollar question: If you are going to ignore the repeated
recommendations of psychiatrists for nine months, why bother having their input at all?
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
60
114. It is clear from the C&A Board notes, **Redacted**statements, and **Redacted**comments
that the repeated recommendations of the psychiatrists meant absolutely nothing to Quantico
Brig officials. After all, they all knew what had to be done – follow **Redacted**order and
maintain the status quo at all costs.
115. **Redacted**, the psychiatrist who was originally a Brig psychiatrist and later appointed to
the Defense team, expressed extreme frustration about the “bizarre” circumstances at Quantico:
The way that they’re treating this is so … it’s just bizarre all the way around. I’m
just surprised that they would become so intrusive because I’d be concerned about
what that looks like later on. And they’ve not seemed to have any qualms at all
about reaching down so heavy handed. And when I’ve asked … and again,
there’s no documentation – I just have people, either the guards or the corps man
or anyone else telling me, “Why in the world is this going on?”

And when I tried to talk to **Redacted**, she basically said, “All I know is that I
don’t want to be involved in this!” And she just came back from working with
Guantanamo Bay, and so she has a lot of her concerns about, “What are you guys
doing with this? How is this consultant helping you with Manning? I mean, what
are they doing?” And I don’t know either. It’s not an interrogation, I don’t think.
He’s not been adjudicated, so there’s a lot of risk to putting too many services out
there when somebody is in this pretrial situation. I don’t know. I don’t know.
It’s bizarre. I look at is like if there’s a child sex abuse person who has an
accusation – you don’t now bring in some psychologist or something to figure out
how we’re going to manage this person. Because you don’t know. They’re
supposed to be assumed innocent. What you’re supposed to be doing is
protecting where they’re not incriminating themselves. So, I don’t know. It’s
been a bizarre thing … I’ve never seen anything like it.

[PFC Manning] comes from such a chaotic, neglected background to begin with.
In some ways, it’s just the latest form of what he’s had to endure. It’s just sad. It
seems like all the protections you would ever have for somebody that’s accused –
he’s not even convicted of anything. He doesn’t have any rights at all. It’s just
… I don’t know. I try to get the emotions out of it because it’s so frustrating to
me.
Oral Statement by **Redacted**to Mr. Coombs.
116. Those “bizarre” circumstances that **Redacted**refers to – circumstances that the Defense
submits clearly amount to pretrial punishment – can in fact be understood when placed against
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
61
the backdrop of somebody deciding very early on that PFC Manning would never be removed
from MAX and POI so long as he was at Quantico.
c) The Entire Article 138 Process Was Tainted By **Redacted**Order
117. It is clear that **Redacted**was at the meeting where **Redacted**issued his order to keep
PFC Manning on MAX and on POI indefinitely. Accordingly**Redacted****justification of his
actions and decision to retain PFC Manning in these conditions must be viewed in light of the
fact that he was ordered to do so. In short, **Redacted****submissions in Attachment 15 and 16
are tainted by his role in effectuating **Redacted**order.
118. **Redacted**paints a picture where he balanced competing interests and, using his
discretion as the Brig OIC, determined that MAX and POI was the appropriate classification for
PFC Manning. He states that “at all times, my decisions have been guided by recommendations
from the Brig staff, the C&A Board, and mental health providers and also through interactions
with PFC Manning.” See Attachment 15. This could not be further from the truth. *********
**Redacted**decisions were based on marching orders from **Redacted**that PFC Manning
would be held in MAX and POI indefinitely.
119. Because **Redacted****responses to PFC Manning’s Article 138 Complaint were relied on
by **Redacted** in denying redress, the whole process was corrupted from the start. PFC
Manning thus never stood a chance of getting relief from the conditions of confinement at
Quantico because those with the keys to relieving him of these conditions were part of the
process that created those conditions to begin with.
d) The Incident on 18 January 2011 was Retribution for the Protest Outside Quantico the
Previous Day
120. The conversation between **Redacted**and PFC Manning, discussed above, stemmed from
the incident on 18 January 2011 where **Redacted****decided to put PFC Manning on Suicide
Risk status after PFC Manning had an anxiety attack at recreation call. The Defense submits that
Brig guards provoked the anxiety attack because they were angry about a protest that took place
the day before outside the gates of Quantico that was designed to bring attention to the
conditions of PFC Manning’s confinement. On a video filmed by one of the protestors, Quantico
guards can be heard saying, “Quit asking questions! Quit asking questions!” and “You’re not
helping out, man, you’re not helping out.”
10
121. On 18 January 2011, Brig guards were agitated and confrontational with PFC Manning.
Instead of the usual two to three guards, there were four guards assigned to PFC Manning. They
immediately began issuing conflicting orders, and were insistent that PFC Manning use the
expression “aye, sir” rather than “yes, sir.” The harassment continued when the guards escorted
10
See http://www.youtube.com/watch?v=x4eNzokgRIw.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
62
PFC Manning into the recreation hall. Due to the belligerence of the guards and being yelled at,
PFC Manning began to feel faint and dizzy. He took a step away from the guards, as they got
ready to restrain him. PFC Manning immediately put his hands in the air and said, “I’m not
doing anything, I am just trying to follow your orders.” In **Redacted**account of the events, he
states that after the incident, and while still at recreation call, “[PFC Manning] stated he didn’t
understand why he was being treated different and that it seemed that all the guards were anxious
and it was making him anxious.” See Attachment 24. Not surprisingly, Brig guards reported the
incident that they, themselves, had created. See Attachment 3, SECNAVINST 1640.9C, Section
4401(3)(warning that “arbitrary actions [by Brig officials] may precipitate a disturbance.”).
122. Later that day, about 30 minutes after he had been returned to his cell, the ***********
********************, visited PFC Manning in his cell. When PFC Manning tried to explain
what happened earlier that day during the recreation call and expressed continued frustration
over the conditions of his confinement, **Redacted**stopped PFC Manning and said, “I am the
**Redacted**” and “No one will tell me what to do.” He also stated to PFC Manning that he
was, for all practical purposes “God.” PFC Manning responded by saying that **Redacted**still
had to follow Brig procedures and that everyone has a boss they have to answer to. When PFC
Manning made these comments, **Redacted**placed PFC Manning on Suicide Risk status.
11
123. The facts permit the logical inference that PFC Manning’s harassment at the hands of the
guards on 18 January 2011 was in response to the protests outside Quantico the previous day.
When the guards’ harassment resulted in PFC Manning being overcome with anxiety, *****
**Redacted** used this as a pre-textual justification for placing PFC Manning on Suicide Risk.
Moreover, the timing of the Suicide Risk order (i.e. after PFC Manning had made comments
challenging **Redacted**authority) strongly suggests that the Suicide Risk designation was
retributive in nature. Two separate Brig psychiatrists expressly disapproved of the Suicide Risk
designation by **Redacted**. Under the Navy’s own rules, “When prisoners are no longer
considered to be suicide risks by a medical officer, they shall be returned to appropriate
quarters.” PFC Manning was not removed from Suicide Risk until 20 January 2011 in violation
of Navy Regulations. See Attachment 3; See also Attachment 22 (“It warrants mentioning,
however, that on two occasions, 6 August 2010 and 18 January 2011, a medical officer
determined that suicide risk status was no longer warranted and the brig staff did not
immediately take PFC Manning off suicide risk status. … Paragraph 4205.5b of reference (a)
states “When prisoners are no longer consider to be suicide risks by a medical officer, they shall
be returned to appropriate quarters,” in these cases, once the medical officer’s evaluation was
provided to the brig staff, steps should have been taken to immediately remove him from suicide
risk, to a status below that.”).
124. Where Brig officials fail to follow their own rules, this provides evidence of an intent to
punish. See U.S. v. Washington, 42 M.J. 547, 562 (A. F. Ct. Crim. App. 1995)(“if orders or other
11
**Redacted** denies that this conversation took place. As evidence that the conversation did not take place, he
states, “had he spoken to me in that manner, I would have made a discipline report on him for insubordination and
staff harassment.” See Attachment 14. It is ironic that **Redacted** admits that had PFC Manning insisted that
**Redacted** follow Brig rules, the result would have been a disciplinary infraction.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
63
action independently violate law or regulation, that may be a reason to infer a punitive intent or
reject an asserted nonpunitive objective.”). The circumstances surrounding this incident lead to a
singular conclusion: that PFC Manning was punished for a protest beyond his control and for
insisting that Brig officials follow their own procedures. See Magluta v. Samples, 375 F. 3d
1269, 1274 (11
th
Cir. 2004)(vacating the judgment of the district court where the court failed to
take into account plaintiff’s allegations that the more the plaintiff complained to prison and jail
officials about his treatment, the more he was treated in a severe manner).
e) The 2 March 2011 Decision to Strip PFC Manning of His Clothing Was Retaliation for
PFC Manning’s Questioning of the Conditions of His Confinement
125. Further evidence of retaliatory punishment is found in the 2 March 2011 decision to strip
PFC Manning of all his clothing. When PFC Manning was informed that his Article 138
Complaint had been denied, he asked Brig guards what he could do to improve his confinement
conditions. When the ***************************, responded that there was nothing that
PFC Manning could do to change the circumstances of his confinement, PFC Manning became
upset and frustrated. PFC Manning stated that he was not going to kill himself, and pointed out
how ludicrous the whole situation was by stating that if he wanted to kill himself, he could do so
with the elastic band of his underwear or his flip-flops. Brig officials used PFC Manning’s
sarcastic comment as a justification to further worsen the conditions of his confinement. The
only logical conclusion to be drawn from the facts is that Brig officials intended to punish PFC
Manning for speaking out about the absurdity of the situation. This is particularly so given that
Brig mental health officials expressly indicated that PFC Manning’s comments were not
indicative of an intention to cause self-harm. Rather they were part of the process of PFC
Manning’s “intellectualization” of the extremely rigorous conditions of his confinement. See
Attachments 2, 9.
126. Moreover, the degradation and humiliation to which PFC Manning was subjected on the
mornings of 3 March 2011 through 7 March 2011 by being forced to stand naked at attention
also shows an intent by the Brig to punish PFC Manning for the comments he made on 2 March
2011. **************************** explained that “Private Manning will also be required
to stand outside his cell naked during a morning inspection, after which his clothing will be
returned to him.” His justification for not allowing PFC Manning to have his clothes for
morning inspection was that “detainees are awakened each morning and immediately come out
of their cells. Private Manning cannot be given his underwear back before then … because that
would require waking him up ahead of time.” See http://www.nytimes.com/2011/03/05/world/
05manning.html. So the official U.S. Government position is that it is better to force a pretrial
detainee to stand naked at attention than wake him up a few minutes earlier to give him back his
clothing?
127. There is no conceivable legitimate justification for requiring a detainee to stand naked at
attention. ********************************, who was fired for calling PFC Manning’s
treatment at Quantico “ridiculous, counterproductive and stupid,” spoke specifically about PFC
Manning’s forced nudity at the hands of Quantico officials. He stated:
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
64
Based on 30 years of government experience, if you have to explain why a guy is
standing naked in the middle of a jail cell, you have a policy in need of urgent
review. The Pentagon was quick to point out that no women were present when
he did so, which is completely beside the point.
The issue is a loss of dignity, not modesty.
Our strategic narrative connects our policies to our interests, values and
aspirations. While what we do, day in and day out, is broadly consistent with the
universal principles we espouse, individual actions can become disconnected.
Every once in a while, even a top-notch symphony strikes a discordant note. So it
is in this instance.
The Pentagon has said that it is playing the Manning case by the book. The book
tells us what actions we can take, but not always what we should do. Actions can
be legal and still not smart. With the Manning case unfolding in a fishbowl-like
environment, going strictly by the book is not good enough. Private Manning’s
overly restrictive and even petty treatment undermines what is otherwise a strong
legal and ethical position.
When the United States leads by example, we are not trying to win a popularity
contest. Rather, we are pursuing our long-term strategic interest. The United
States cannot expect others to meet international standards if we are seen as
falling short. Differences become strategic when magnified through the lens of
today’s relentless 24/7 global media environment.
So, when I was asked about the “elephant in the room,” I said the treatment of
Private Manning, while well-intentioned, was “ridiculous” and
“counterproductive” and, yes, “stupid”.
I stand by what I said. The United States should set the global standard for
treatment of its citizens – and then exceed it. It is what the world expects of us. It
is what we should expect of ourselves.
See http://www.guardian.co.uk/commentisfree/cifamerica/2011/mar/29/bradley-manningwikileaks.
128. It is well established that forced nudity is a classic humiliation technique. The only
permissible inference is that the Brig intended to punish PFC Manning by subjecting him to
humiliating treatment because PFC Manning correctly pointed out the absurdity of his POI
status. Brig officials further added insult to injury when they stated publicly that it would be
“inappropriate” to discuss the decision to strip PFC Manning and stand naked at attention
“because to discuss the details would be a violation of [PFC Manning’s] privacy.” See http://
http://www.nytimes.com/2011/03/05/world/05manning.html. Again, the Government’s position is that
speaking about PFC Manning’s forced nudity is the action that violates PFC Manning’s privacy?
Really? How about the forced nudity itself?
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
65
129. Federal courts have found constitutional violations of an accused’s constitutional rights in
circumstances far less invasive than these. In Demery v. Arpaio, 378 F.3d 1020, 1029 (9th Cir.
2004), pretrial detainees challenged the practice of prison staff using webcams to stream live
images of pretrial detainees on the internet. The Ninth Circuit Court of Appeals indicated that
“having every moment of one’s daily activities exposed to general and world-wide scrutiny
would anyone uncomfortable … [The practice] constitutes a level of humiliation that almost
anyone would regard as profoundly undesirable and strive to avoid.” Id. at 1030-31. Certainly,
being required to stand naked at attention for several minutes in full view of guards who
happened to be in the vicinity is at least as humiliating as having one’s clothed image captured
by a webcam. To borrow language from Demery, the additional impact on PFC Manning of
being forced to stand naked in full view of Brig guards is “greater by several orders of magnitude
than the intrusion inherent in incarceration.” Id. at 1030. The exploitation of PFC Manning in
this manner can be seen as nothing short of retributive. Id. at 1030-31 (noting that retribution is
not a legitimate government objective than can justify adverse conditions of detention for pretrial
detainees); See also 16C C.J.S. Constitutional Law §1549 (“What might otherwise be a lawful
detention becomes an unconstitutional restriction when prison conditions become so
dehumanizing as to constitute an additional hardship beyond the need for custody in violation of
the detainees’ due process rights).
130. Military courts have also found unlawful pretrial punishment in circumstances where the
conduct at issue was designed to humiliate an accused. In United States v. Combs, 47 M.J. 330,
332 (C.A.A.F. 1997), the Court of Appeal for the Armed Forces emphasized that:
the courts will not tolerate egregious, intentional misconduct by command where
there is no evidence of a legitimate, non-punitive objective for the conduct
complained of, the apparent singling out of an accused for personal humiliation,
and restrictions on liberty so oppressive as to be more consistent with the status of
prisoner.
Similarly, in United States v. Singleton, 59 M.J. 618, 625 (Army Ct. Crim. App. 2003), the Army
Court of Criminal Appeals stated, “[w]hen commanders and superiors publicly denounce,
degrade, or humiliate an accused prior to trial, [this] may constitute unlawful pretrial punishment
warranting confinement credit.” In United States v. Stringer, 55 M.J. 92, 94 (C.A.A.F. 2001),
the Court of Appeals for the Armed Forces indicated that “[p]retrial punishment includes public
denunciation and degradation.” In that case, the accused (who was pending administrative
discharge) was ordered to the front of his unit formation while the detachment commander read
the charges against him and read the accused his rights in a loud voice. The military judge, in
awarding sentencing credit, indicated that “[t]he actions that occurred in this case are
inexcusable, reprehensible, and cannot be condoned by any court.” Id. at 93. See also United
States v. Villamil–Perez, 32 M.J. 341, 342–43 (C.M.A. 1991)(supervising officer’s posting on
workplace bulletin board of a serious incident report, which included Specialist Perez’s alleged
drug offense and a prior letter of reprimand, was prohibited by Article 13); United States v.
Stamper, 39 M.J. 1097, 1100 (A.C.M.R. 1994)(finding company commander’s remarks to
accused in front of others identifying him as a criminal suspect with a propensity to steal
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
66
constituted pretrial punishment); United States v. Latta, 34 M.J. 596, 597 (A.C.M.R.
1992)(granting Article 13 relief where first sergeant sarcastically referred to accused as his
“favorite AWOL case” before unit formation); United States v. Singleton, 59 M.J. 618, 625
(Army Ct. Crim. App. 2003)(awarding confinement credit for unlawful pretrial punishment
where guards or other persons in authority called the accused, an infantry sergeant, “private”);
United States v. Turner, 2009 WL 4917899, *2 (N-M. Ct. Crim. App.)(finding illegal pretrial
punishment where the circumstances of the accused’s appearance in irons before his shipmates
could cause court to question whether accused suffered a loss of the presumption of innocence
before potential court-martial members).
131. Surely if deliberately calling someone by the wrong rank or discussing the charges against
the accused in front of others constitutes humiliating or degrading treatment which military
courts will not countenance, so too does requiring an accused to stand naked at attention in full
view of others. The fact that this action was later “justified” on the basis that it would have been
too difficult to wake PFC Manning up earlier to give him back his clothes and that officials
refused to discuss the forced nudity any further because to do so would “violate PFC Manning’s
privacy” is further illustrative of the general level of absurdity at the Quantico Brig.
f) The Evidence Shows that Quantico Simply Wanted to Protect Itself at the Expense of
PFC Manning
132. The evidence further bears out the conclusion that Quantico Brig officials maintained PFC
Manning in MAX and on POI for nine months in an effort to protect themselves professionally
and institutionally at the expense of PFC Manning. On 31 January 2010, a pretrial detainee
awaiting court martial at Quantico committed suicide; the detainee was not in MAX or POI.
12
In
an effort to ensure that no other prisoner would die “on their watch” (to borrow an expression
from **Redacted**), the Brig simply decided that it would not risk the embarrassment of
another suicide and thus placed PFC Manning in MAX and POI with no hope for reclassification.
133. Given the high-profile nature of PFC Manning’s case, the Brig simply refused to take any
chance (even if infinitesimally small) that it would be publicly embarrassed once again. Indeed,
**Redacted** references this in his affidavit where he states:
The Marine Corps, including Quantico, has had a miserable time with the problem
of suicide recently. I am certain, from their point of view, the best way to avoid a
tragedy is to watch a situation very closely and take action quickly. It has been
difficult to help them see that good intentions can have unintended consequences
(e.g., making the detainee more anxious and causing occasional agitation).
See Attachment 7. In fact, the concern about embarrassment is so real at the Quantico Brig that a
special rule was implemented to deal with it. See Attachment 3, SECNAVINST 1640.9C,
12
See http://www.marinecorpstimes.com/news/2010/02/marine_quantico_brig_death_020410w/.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
67
Section 4401(4)(“Serious incidents/alleged incidents that could result in embarrassment to the
naval service or focus public attention on the confinement facility in question shall be reported to
NAVPERSCOM (PERS-68) or CMC (PSL Corrections) per article 8112 of this manual.”). A
desire to protect one’s professional reputation and avoid public embarrassment is not a legitimate
non-punitive purpose justifying the imposition of restrictive confinement conditions.
134. Further, evidence shows that certain Brig officials made decisions regarding PFC
Manning’s confinement either “because they could” or in order to further their own professional
self-interest. **Redacted**decision to place PFC Manning under Suicide Risk came right after
he told PFC Manning that he was, for all practical purposes “God” and that consequently, he
could make any decision he wanted. **Redacted* is understood to have indicated that she
would not change PFC Manning’s confinement conditions because it was not worth the risk to
her career. Both of these officials’ decisions were arbitrary, capricious, and reflected a desire to
protect their self-interest at the expense of PFC Manning. Since the decisions were made for
non-legitimate purposes, they constitute punishment in contravention of PFC Manning’s Article
13 rights.
g) Quantico Brig Officials Were Grasping At Straws To Use Anything PFC Manning Did
and Said (or Didn’t Do or Didn’t Say) Against Him
135. Further evidence of intent to punish PFC Manning is found in the Brig’s practice of trying
to find anything about PFC Manning’s words, conduct and demeanor that could be used against
him. This is clearly evidenced in the conversation between PFC Manning and **Redacted** that
took place after PFC Manning had an anxiety attack at recreation call on 18 January 2011:
PFC Manning: I got dizzy …
**Redacted**: Wasn’t dehydration?
PFC Manning: No, I was anxious because I didn’t know why the guards were so
edgy. … They raised their voice … And I didn’t … I was getting anxious
because they were getting anxious. So I was trying to figure out what was the
cause of them getting anxious. It seemed to me that they were looking for
something wrong…
**Redacted**: Something wrong as in a rules violation, or something wrong as
in …
PFC Manning: Yes.
**Redacted**: Rules violation?
PFC Manning: Yes, sir. Because I’ve been here for a long time, so everything
becomes automatic. So I don’t know if I say something and they respond. I don’t
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
68
know what happened. I’ve been in, inside so long – I don’t remember the last
time I was outside.

[Portions of the rest of the dialogue between **Redacted** and PFC Manning are
inaudible]

PFC Manning: Ok, yes, I started, I got in here and it was normal. And then I
started reading my book. And then, I want to say it was MSGT [inaudible] that
was the first to show up. And then he came in and was asking me all these
questions. I was, ah, trying to figure out how to word the answers without
causing any more anxiety. I was trying to figure out ways of not sounding, or not
being construed as … ways that things weren’t going to be construed so that …
just trying to figure out ways in which I could tactfully say what I was trying to
say without violating any rules and regulation or raise any concern about …
**Redacted**: Concern’s already raised… [inaudible]
PFC Manning: Yes, but I’m trying not, I’m trying, I’m trying to avoid the
concern, and it’s actually causing the concern. I mean, cause, I’m getting …
every day that passes by, I’m getting increasingly frustrated, I’m not going to lie.
Because I’m trying to do everything that I can not to be a concern, therefore I
appear as though I am causing more concern. Or I… Or it seems that I’m causing
more concern or everybody’s looking for something to cause concern. So that’s
what frustrates me. … Trying to work out the most politically correct way of …

PFC Manning: No, no. The situation that happened today was more of … you
know, I’m lucid and aware and just trying to figure … It’s just a question of
trying not to appear like I was in Kuwait. Because that’s my main concern every
day, is how do I get off of POI status? How do I get off of POI status? When will
I be taken off of POI status? What is being used to justify the precautions? You
know … What concerns, you know, what am I doing that’s concerning
[inaudible]? So I’m constantly trying to figure out, run through all of those
things. And trying to make sure I’m not doing anything…

PFC Manning: Yes, a little. I feel like the facility, honestly, is looking for reasons
to keep me on POI.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
69
**Redacted**: Inaudible. I can tell you ‘no’…
PFC Manning: I mean, at least not at the staff level, I’m thinking the CO – me,
myself, personally.
**Redacted**: Inaudible … From a logistical standpoint, it’s a burden on us. …
PFC Manning: Yes, MSGT.
**Redacted**: Nobody finds that as a joy. It’s not a punitive thing, I understand
why someone would see it as a punitive thing because restrictions placed
[inaudible] … I can tell you that … since you have been here … I wish I had a
hundred Mannings …
PFC Manning: And that’s what… And that’s where I don’t understand why the
continuation of the policy and restrictions beyond the time recommended by you
and the psychiatrist. I mean the psychiatrist, is saying. I mean, I’ve got my own
forensic psychiatrist that’s saying now that the POI status is actually doing
psychiatric harm and not, you know, and it’s actually, you know, increasing my
chances, rather than decreasing…
**Redacted**: Did you feel like that two weeks ago?
PFC Manning: What’s that?
**Redacted**: Did you feel like that two weeks ago?
PFC Manning: Yes GYSGT.
**Redacted**: Uh, two weeks ago, I asked you, like, how you were feeling and
you said you were fine, do you remember that?
PFC Manning: Yes, and I still feel fine. I mean, I feel, I feel fine, but at the same
time, I’ve been putting in, I’ve been putting in…
See Attachment 25.
136. The conversation clearly shows that PFC is struggling to convey his thought to *********
**Redacted** without “getting in trouble.”
13
PFC Manning is desperately trying to find the right
words to express his frustration with his continued classification without raising “more concern”
in the minds of the Brig officials.
13
This is especially apparent if one watches the video.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
70
137. The end of the videotaped conversation is particularly telling. PFC Manning tries to
express the common sense observation of his psychiatrist that the POI status may be causing him
psychological harm. PFC Manning says, “I mean, I’ve got my own forensic psychiatrist that’s
now saying the POI status is actually doing psychiatric harm and not, you know, and is actually,
you know, increasing my chances, rather than decreasing…” Id. Although the video is inaudible
in parts, it seems like **Redacted**latches on to that particular comment to raise the red flag.
That is, PFC Manning just said that POI might be causing psychological harm and might
“increase[e] [his] chances, rather than decrease[] [his chances].” Id. What more proof do we
need that POI is, in fact, justified? **Redacted**then prods PFC Manning, seeking to get a
damning admission from him: “Two weeks ago, I asked you, like, how you were feeling and you
said you were fine, do you remember that?” Id. PFC Manning does not take the bait after he
realizes where **Redacted**is going. He says, “Yes, and I still feel fine. I mean, yes, I feel
fine. Yes, but at the same time, I’ve been putting in…” Id. As is abundantly clear, PFC
Manning is in an absolute “no win” situation. If he points out that POI might be causing
additional psychological harm (as indicated by Brig doctors), the Brig officials will use that
against him to continue to justify the conclusion that he is at risk of self-harm.
138. On 21 January 2011, PFC Manning appeared before the C&A Board and was asked about
the statement on his intake questionnaire regarding suicide that he was “always planning but
never acting.” **Redacted**describes the event as follows:
[PFC Manning] told the Board that this statement may have been false. This then
raised the obvious concern of whether he was sincere in his statements that he did
not currently intend to harm himself. A member of the Board asked how they
could trust any of the statements given his admission that he may have made a
false statement about his suicidal thoughts at intake into the PCF. PFC Manning
was also asked if it was fair to assume that the statement to the Board that he did
not intend to harm himself could be false and he replied “yes.” This caused great
concern among the Board members given their responsibility to ensure PFC
Manning’s safety.
See Attachment 21.
139. It is clear to any reasonable person what happened at this meeting. PFC Manning was
trying desperately to get off of POI status after so many months. He then backtracked on the
statement that he had made in the intake questionnaire in the hopes that the confinement facility
would see reason and remove him from POI. The C&A Board then used PFC Manning’s
statement against him in a classic “gotcha” moment: Wait a second, if you were lying then about
wanting to commit suicide, couldn’t you be lying now about not wanting to commit suicide?
There is actually only one honest answer to this question and that is the answer that PFC
Manning gave – “yes, I could be lying. But I’m not.” But it was too late. The C&A Board had
tricked PFC Manning into giving them an answer that they could document in their paperwork to
continue to justify MAX and POI. Apparently, the C&A Board saw themselves as more
appropriately placed to opine on PFC Manning’s risk of self-harm based on a trick question than
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
71
several “06” mental health providers who continued to maintain that PFC Manning was not at
risk of self-harm.
140. After this meeting, PFC Manning largely tried to avoid engaging in extensive dialogue with
Brig officials. After all, anything he said or did (or didn’t say or didn’t do) was going to be used
against him. Ironically, the fact itself that he had become quieter and more reserved was then
used against him. In **Redacted** statement justifying why she increased the POI restrictions
on PFC Manning, she states,
There was a lack of rapport and trust between PFC Manning and the PCF staff.

The fact that PFC Manning was not communicating with the staff as much as he
had in the past … was also a concern for me.
See Attachment 21. There is no more apt illustration of the saying, “You’re damned if you do.
You’re damned if you don’t.” If PFC Manning spoke to Brig staff and participated in the C&A
process,
14
his words and conduct were used against him to keep him in MAX and POI. If PFC
Manning didn’t speak as much to Brig staff and refused to participate in the C&A process, his
lack of words and his conduct were used against him to keep him in MAX and POI.
141. In short, PFC Manning was doomed from Day 1. Brig officials looked for any little thing
to use against PFC Manning to continue to effectuate **Redacted**orders that PFC Manning
would remain in MAX and on POI for the duration of his time at Quantico. This would enable
them to create the paper trail that they could later use for plausible deniability. Such is
abundantly clear in **Redacted** response to PFC Manning’s question of why he was still in POI
after so many months:
**Redacted**: [chuckles to himself] I know this is no secret to you … I have
plenty of documentation. Plenty of documentation based on things that you’ve
said, things that you’ve done. Actions – I have to make sure, we have to make
sure, that you’re taken care of.
See Attachment 25.
142. Quantico officials were never interested in actually evaluating whether PFC Manning
belonged in MAX and on POI – if they were, they would have listened to recommendations from
three separate Brig mental health providers. Instead, they were looking to chronicle every little
thing that PFC Manning did or didn’t do, or said or didn’t say in order to provide them with the
“plenty of documentation” they needed to support their continued decision to retain PFC
Manning in MAX and on POI.
14
The Defense is using the term “process” loosely here since it was clear that the outcome was already
predetermined.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
72
C. PFC Manning’s Article 13 Rights Were Violated Because the Imposition of Onerous
Confinement Conditions Served No Legitimate Government Objective
143. There was no legitimate government objective served by placing PFC Manning in MAX
and POI (collectively, the functional equivalent of solitary confinement) for 9 months and by
forcing him to endure humiliating treatment. There are only three potential legitimate objectives
that could be conceivably served by the imposition of more restrictive than normal confinement
conditions:
a) Preventing PFC Manning from harming himself;
b) Preventing PFC Manning from harming others; and
c) Ensuring PFC Manning’s presence at trial.
See United States v. Crawford, 62 M.J. 411, 414(C.A.A.F. 2006)(noting that legitimate
government objectives are “ensuring [detainee’s] presence for trial” and “the security needs of
the confinement facility”); United States v. Willenbring, 56 M.J. 671, 679 (Army Ct. Crim. App.
2001)(legitimate and non-punitive government objectives are “to secure and safeguard the
confinement facility and to insure [detainee’s] presence at trial.”); Bell v. Wolfish, 441 U.S. 520,
540 (1979)(“It is enough simply to recognize that in addition to ensuring the detainees’ presence
at trial, the effective management of the detention facility once the individual is confined is a
valid objective that may justify imposition of conditions and restrictions of pretrial detention”).
See also Attachment 3, SECNAVINST 1640.9C, Section 5101(3)(i)(“Rights are not removed
from a prisoner as a punishment for a rules violation, but may be restricted, however, when there
is a legitimate penological interest, such as security or safety.”). The conditions of PFC
Manning’s confinement were not at all related (much less rationally related) to any of these
objectives.
a) Preventing PFC Manning from Harming Himself
144. There was no psychiatric evidence to suggest that PFC Manning was at risk of self-harm
during his time at Quantico. To the contrary, the overwhelming evidence is that PFC Manning
was decidedly not at risk of self-harm. Brig psychiatrists had, with very few exceptions,
consistently recommended for over eight months that PFC Manning be removed from POI.
These recommendations were outright ignored no less than 30 times by the ******* **********.
145. In his affidavit, **Redacted**references his repeated recommendations to remove PFC
Manning from POI status – all of which were ignored by the Brig:
Question B. In your experience, does the Quantico Brig follow your
recommendation concerning either Suicide Risk or Prevention of Injury
Status?
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
73
1. No. They generally keep patients on precautions longer than I recommend.
Question C. Have you made any recommendation concerning PFC Bradley
Manning’s custody and classification status? If so, what were your
recommendations?
1. … I initially recommended observing PFC Manning on suicide precautions for
the first couple of weeks after his arrival, both because of his suicidal behavior in
Kuwait and because his medical record from Kuwait included a quote or a
paraphrase from PFC Manning to the effect that he could be patient when it
comes to suicide.
2. After a couple of weeks, it seemed reasonable to downgrade his precaution
level to Prevention of Injury (POI) status. Knowing that the Brig was very
concerned about his safety, and because there had been a suicide in the Brig
earlier that year, I obtained the services of another forensic psychiatrist
(**Redacted**) to be a consultant/second opinion. He evaluated the patient and
concurred that POI was appropriate. The Brig, as I best recall, waited a couple of
weeks to put this recommendation into effect.
3. Subsequently, I recommended that he be removed from POI as he continued to
do relatively well in the Brig (occasional mild, odd behaviors such as dancing
around were noted in the log as well as possible sleep walking). **Redacted**
concurred. These recommendations were not followed.
4. In the fall (I am uncertain of the date); PFC Manning became agitated after an
odd incident with staff. As best as I could tell from discussing the matter with
Manning and with staff, he had been performing some kind of yoga move in
which he contorted his limbs in such a way that staff thought he was trying to hurt
himself. They intervened and returned him to his cell. He was very upset about
this (not suicidal) and so I briefly recommended he be put back on POI status as a
safeguard because he was so upset. I rescinded this recommendation the
following week as he had calmed.
5. Since then, I have continued to recommend that POI precautions be removed.
As of the time of my leaving for Camp Lejeune to prepare for deployment, the
recommendations had not been followed. **Redacted** and **Redacted** can
provide details of what occurred next.
Question D. Have your recommendations been followed by the Quantico
Brig? If not, have you been given any reason for the Quantico Brig’s
decision not to follow your recommendations?
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
74
1. No. My understanding is that the Brig has not followed my recommendations
because of great concern and worry that Manning will harm himself. I told them I
thought the Max status (with every 15 minute visual checks of the detainee vice
POI with every 5 minute checks) was more than sufficient to ensure his safety,
from a psychiatric perspective. The every 5 minute checks done for POI is
extremely rigorous, particularly for a second tier precaution. Every 15 minute
checks was common for suicide precautions in other jails and correctional
facilities where I have worked.

See Attachment 7.
146. **Redacted** provided further elaboration in a subsequent affidavit:
Question A. Do you make recommendations to the Quantico Brig concerning
whether a detainee is placed on either Suicide Risk or Prevention of Injury
Status?
I make recommendation about suicide precautions, POI, and occasionally steps
that Brig might take to better a detainee’s condition or deportment (more time to
exercise, give him a job, help him with the legal work on financial problem, let
him talk to his wife or girlfriend more often, please make sure a chaplain sees
him). The Brig takes these under advisement and sometimes follows them,
usually not. In Manning’s case, I requested, in addition to removal of
precautions, more time to exercise. After quite some time, and numerous requests
(it became almost comical), this was granted.
Question B. In your experience, does the Quantico Brig follow your
recommendation concerning either Suicide Risk or Prevention of Injury
Status?
The Brig frequently ignores or delays my recommendation regarding precautions,
including suicide precautions. This differs from any of the previous jails, brigs, or
prisons in which I have worked, military or civilian. This occurred even before
the suicide of a detainee in January 2010. Prior to the Manning case, this, among
other issues, had make working at the Brig so frustrating that I asked to be
relieved of these duties. This was not permitted. I have struggled to make the
best of a situation that was not professionally pleasing. The addition of forensic
psychiatry fellows to the milieu (for me to teach) has been invigorating and lifted
my morale.

United States v. PFC Bradley E. Manning
Defense Article 13 Motion
75
Question D. Have your recommendations been followed by the Quantico
Brig? If not, have you been given any reason for the Quantico Brig’s
decision not to follow your recommendations?
Neither the ***************** nor the ************************ gave me any
reasons for maintaining the POI precautions other than his safety. The *******
*************************** intimated that he was receiving instructions from
a higher authority on the matter but did not say from whom. I know that the
higher base authorities had a frequent (sometimes weekly) meeting to discuss
Manning, for which I supplied my CO with a status report – nothing that Manning
had told me, mind you, but his condition and my recommendations, particularly to
remove conditions I felt were unnecessary. I did not attend these meetings,
mainly to protect Manning’s confidentiality against inadvertent slips. On one
occasion, concern was relayed to me about the odd behaviors seen in the cell
mentioned in my previous affidavit. I reported that I was not worried about the
sleep walking and the dancing.
I do not recall a meeting with the **Redacted*****************. The meeting I
recall was with the *****************, whose name I do not recall. He indicated
that Manning would remain in current status (POI) unless and until he received
instructions from higher authority (unnamed). I do not recall him saying he
would be kept that way until his legal process was complete, but the impression
he left was not to expect any changes in the near future. I cannot recall a direct
quote.
See Attachment 8.
147. **Redacted**also confirms that the Brig simply ignored the recommendations of mental
health providers:
Question B. In your experience, does the Quantico Brig follow your
recommendation concerning either Suicide Risk or Prevention of Injury
Status?
1. They initiate more precautions than I would from a psychiatric perspective.
Were he not in custody, at this point he would be appropriate for routine
outpatient care.
Question C. Have you made any recommendation concerning PFC Bradley
Manning’s custody and classification status? If so, what were your
recommendations?
1. No. I have stated that there is no psychiatric reason for him to be segregated
from the general population, realizing that would only be one consideration.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
76
Question D. Have your recommendations been followed by the Quantico
Brig? If not, have you been given any reason for the Quantico Brig’s
decision not to follow your recommendations?
1. They have expressed concerns about his demeanor with no medical personnel
are there, describing him as more withdrawn and reading less.
See Attachment 9.
148. Not only did the Brig ignore the repeated recommendations to remove PFC Manning from
POI, they also ignored medical opinions that POI was actually causing PFC Manning psychiatric
harm. **Redacted**states in his affidavits:
I believe that (at the time I last saw him) Suicide precautions and POI were
excessive and were making Manning unnecessarily anxious. This could be
detrimental to his mental health. I was concerned about his physical health until
they started to give him more time to exercise. Since Max status is not a
psychiatric classification, I did not make a recommendation regarding it except to
say that it easily (as a secondary effect of checking on him every 15 minutes) met
his psychiatric safety needs at the time.

PFC Manning, according to his records from Kuwait, exhibited a disturbing level
of mental instability, including suicidal behaviors. Thankfully, he was doing
much better during his time with me. Inappropriate use of POI and other
precautions can result in a loss of privacy and dignity that can worsen someone’s
condition. This could occur in Manning’s case and lead to regression and
additional suicidal behaviors.
See Attachments 7, 8. **Redacted**agreed that POI restrictions could be detrimental to mental
health, though noted that fortunately, PFC Manning “has been able to adapt somewhat”:
It has long been known that restriction of environmental and social stimulation
has a negative effect on mental functioning. Nevertheless, PFC Manning has
been able to adapt somewhat and his anxiety disorder is currently in remission,
significantly reducing his risk of self harm.
See Attachment 9.
149. The psychologists made it known to ******* ********** that keeping PFC Manning in POI
as they were was an additional stressor and damaging from a psychological perspective. The
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
77
******* ********** did not address the mental health concerns raised by the psychologists and
continued to subject PFC Manning to POI restrictions.
150. Applicable Navy confinement rules themselves explicitly recognize the deleterious effects
of solitary confinement and harsh conditions of confinement: “When prisoners spend long hours
in idleness and feel harassed by unnecessary restrictions, hostility is created and the desire to
escape or resist become dominant forces.” See Attachment 3, SECNAVINST 1640.9C, Section
4301.5. As such, PFC Manning faced the perverse scenario that, the longer the Brig maintained
the POI status, the more likely it was that his mental health would deteriorate, thus necessitating
the POI status.
151. The medical literature is replete with references to the deleterious effects of solitary
confinement. In his recent testimony before the Senate, **Redacted**opines that “solitary
confinement places all of the prisoners exposed to it at grave risk of harm.” (emphasis in
original). He continues:
Despite the methodological limitations that come from studying human behavior
in such a complex environment, most of the research has reached remarkably
similar conclusions about the adverse psychological consequences of solitary
confinement. Thus, we know that prisoners in solitary confinement suffer from a
number of psychological and psychiatric maladies, including: significantly
increased negative attitudes and affect, irritability, anger, aggression and even
rage; many experience chronic insomnia, free floating anxiety, fear of impending
emotional breakdowns, a loss of control, and panic attacks; many report
experiencing severe and even paralyzing discomfort around other people, engage
in self-imposed forms of social withdrawal, and suffer from extreme paranoia;
many report hypersensitivity to external stimuli (such as noise, light, smells), as
well as various kinds of cognitive dysfunction, such as an inability to concentrate
or remember, and ruminations in which they fixate on trivial things intensely and
over long periods of time; a sense of hopelessness and deep depression are
widespread; and many prisoners report signs and symptoms of psychosis,
including visual and auditory hallucinations. Many of these symptoms occur in
and are reported by a large number of isolated prisoners. For example, in a
systematic study I did of a representative sample of solitary confinement prisoners
in California, prevalence rates for most of the above mentioned symptoms
exceeded three-quarters of those interviewed.
In addition to the above clinical symptoms and syndromes, prisoners who are
placed in long-term isolation often develop what I have characterized as “social
pathologies,” brought about because of the pathological deprivations of social
contact to which they are exposed. The unprecedented totality of control in these
units occurs to such an exaggerated degree that many prisoners gradually lose the
ability to initiate or to control their own behavior, or to organize their personal
lives. Prisoners may become uncomfortable with even small amounts of freedom
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
78
because they have lost confidence in their own ability to behave in the absence of
constantly enforced restrictions, a tight external structure, and the ubiquitous
physical restraints. Even the prospect of returning to the comparative “freedoms”
of a mainline maximum security prison (let alone the free world) fills them with
anxiety.
For many prisoners, the absence of regular, normal interpersonal contact and any
semblance of a meaningful social context in these isolation units creates a
pervasive feeling of unreality. Because so much of our individual identity is
socially constructed and maintained, the virtually complete loss of genuine forms
of social contact and the absence of any routine and recurring opportunities to
ground thoughts and feelings in a recognizable human context lead to an
undermining of the sense of self and a disconnection of experience from meaning.
Some prisoners experience a paradoxical reaction, moving from initially being
starved for social contact to eventually being disoriented and even frightened by
it. As they become increasingly unfamiliar and uncomfortable with social
interaction, they are further alienated from others and made anxious in their
presence. In extreme cases, another pattern emerges: this environment is so
painful, so bizarre and impossible to make sense of, that they create their own
reality—they live in a world of fantasy instead. Finally, the deprivations,
restrictions, the totality of control, and the prolonged absence of any real
opportunity for happiness or joy fills many prisoners with intolerable levels of
frustration that, for some, turns to anger, and then even to uncontrollable and
sudden outbursts of rage.
See Attachment 37. Based upon well-documented medical literature, it is clear that prolonged
periods of solitary confinement causes severe psychological consequences. This extensive
scientific evidence has been widely accepted by federal courts. For instance, the Seventh Circuit
observed that “the record shows, what anyway seems pretty obvious, that isolating a human
being from other human beings year after year or even month after month can cause substantial
psychological damage, even if the isolation is not total.” Davenport v. DeRobertis, 844 F.2d
1310, 1313 (7th Cir. 1988). In Davenport, the court recognized that “there is plenty of medical
and psychological literature concerning the ill effects of solitary confinement (of which
segregation is a variant) . . . .”. See also Miller ex rel. Jones v. Stewart, 231 F.3d 1248, 1252
(9th Cir. 2000)(“it is well accepted that conditions such as those present in the [super-max unit] .
. .can cause psychological decompensation to the point that individuals may become
incompetent”); Comer v. Stewart, 215 F.3d 910, 915 (9
th
Cir. 2000)(“we and other courts have
recognized that prison conditions remarkably similar to [the super-max unit] can adversely affect
a person’s mental health”); Lee v. Coughlin, 26 F. Supp. 2d 615, 637 (S.D.N.Y. 1998)(“[t]he
effect of prolonged isolation on inmates has been repeatedly confirmed in medical and scientific
studies”); McClary v. Kelly, 4 F. Supp. 2d 195, 208 (W.D.N.Y. 1998)(“[the notion that]
prolonged isolation from social and environmental stimulation increases the risk of developing
mental illness does not strike this Court as rocket science”); Madrid v. Gomez, 889 F. Supp.
1146, 1265 (N.D. Cal. 1995)(“many, if not most, inmates in the SHU experience some degree of
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
79
psychological trauma in reaction to their extreme social isolation and the severely restricted
environmental stimulation in [the Security Housing Unit]”); Bono v. Saxbe, 450 F. Supp. 934,
946 (E.D. Ill. 1978) (“[p]laintiffs’ uncontroverted evidence showed the debilitating mental effect
on those inmates confined to the control unit”), aff’d in part and remanded in part on other
grounds, 620 F.2d 609 (7th Cir. 1980); Koch v. Lewis, 216 F. Supp. 2d 994, 1001 (D. Ariz.
2001)(experts agreed that extended isolation causes “heightened psychological stressors and
creates a risk for mental deterioration”); Baraldini v. Meese, 691 F. Supp. 432, 446–47 (D.D.C.
1988)(citing expert testimony on sensory disturbance, perceptual distortions, and other
psychological effects of segregation), rev’d on other grounds sub nom. Baraldini v. Thornburgh,
884 F.2d 615 (D.C. Cir. 1989).
152. Thus, in ostensibly “protecting him from himself” (which the Defense submits is not what
the Brig was actually doing), confinement facility officials were actually causing PFC Manning
psychological harm.
15
In other words, the Brig authorities used the pretext of safeguarding PFC
Manning from his own mental instability to keep him under conditions of extreme psychological
stress for nearly nine months. In this respect, the Defense requests that this Court also consider
the amicus filing from Psychologists for Social Responsibility. See Attachment 41.
153. The Brig continually pointed to PFC Manning’s Suicide Risk status in Kuwait to justify the
decision to maintain PFC Manning on POI status. In his Response to PFC Manning’s Article
138 Complaint, **Redacted** justified the POI status as reasonable in light of all the
information “including his concern over [PFC Manning’s] comment regarding ‘always planning’
suicide at initial intake, his actions in actually making a noose at the previous facility [and] his
erratic behavior at the previous facility.” See Attachment 19. All of these events occurred
approximately 8 months prior to PFC Manning’s filing of the Article 138 Complaint, when PFC
Manning was first arrested, was in an unfamiliar environment, and did not have the support of
friends, family and counsel. PFC Manning tries to explain this to **Redacted**, to no avail:
15
The Defense submits that, to the extent that there might have been isolated instances of unusual behavior, it is the
direct result of being locked behind bars, starved of all human contact, and watched like a zoo animal for a period of
9 months. See Attachment 40. Indeed, Brig psychiatrists were not at all concerned about some of the apparent odd
behavior exhibited by PFC Manning (to the extent that it occurred). For instance, **Redacted**stated in his
affidavits:
Subsequently, I recommended that he be removed from POI as he continued to do relatively well in
the Brig (occasional mild, odd behaviors such as dancing around were noted in the log as well as
possible sleep walking). **Redacted**concurred. These recommendations were not followed.

On one occasion, concern was relayed to me about the odd behaviors seen in the cell mentioned in my
previous affidavit. I reported that I was not worried about the sleep walking and the dancing.
**Redacted**also factored in the apparent odd behavior in making his weekly recommendation that PFC Manning
was not at risk of self-harm. What is clear, though, is that the Brig itself created the circumstances which it then
used to justify the conditions of confinement.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
80
**Redacted**: [largely inaudible] Let’s go back to today. … The anxiety here,
today. That’s not the first time it’s happened since you’ve been in confinement.
As far as I know, it is the first time it’s happened since you’ve been here … but a
similar situation …
PFC Manning: I wasn’t, in Kuwait, I had no idea what was going on generally.
**Redacted**: But, would you say it was similar situation?
PFC Manning: No, no. The situation that happened today was more of … you
know, I’m lucid and aware and just trying to figure … It’s just a question of
trying not to appear like I was in Kuwait. Because that’s my main concern every
day, is how do I get off of POI status? How do I get off of POI status? When will
I be taken off of POI status? What is being used to justify the precautions? You
know … What concerns, you know, what am I doing that’s concerning
[inaudible]? So I’m constantly trying to figure out, run through all of those
things. And trying to make sure I’m not doing anything…
**Redacted**: [inaudible] … As time goes on, we have less of a concern, ok?
PFC Manning: Yes, GYSGT. But the restrictions were still in place. And I was

**Redacted**: Right. And we continually… We understand it’s not normal that
we have someone in POI for this period of time…
PFC Manning: Yes.
**Redacted**: It’s not [normal] … I guess we’ll just leave it at that. So as we go
on, we’re going to lessen your restrictions. They’re still be restrictions in place …
[inaudible] But I would have to disagree with you as far as what happened today
happened in Kuwait … anxiety attack …
PFC Manning: No, in Kuwait, I wasn’t lucid. I had …. [guard interrupts] It was
like a dream…
**Redacted**: But, they both ultimately ended up in you having an anxiety
attack … controlled fall, but …
PFC Manning: No, I don’t remember falling in Kuwait at all.
**Redacted**: Well, I can tell you, that’s what was reported to us … none of us
where there [refers again to PFC Manning’s suicide status Kuwait] … Us, as a
facility, we have to always err on the side of caution, okay. And not just the side
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
81
of caution, but over-caution. Especially when we’re talking about suicide, okay?
Nobody’s saying you’re going to kill yourself, alright? [inaudible] But we always
have to be more cautious than that. But you’re saying that ‘nobody else is on
suicide watch.’ The thing is what happened in Kuwait, what happened today …
PFC Manning: Those are totally different. I understand, I understand, I
understand, where you’re getting that … from the documentation. I mean, I quite,
I know where I am. I know I am … I know I am at Quantico base facility. I know
that I’m at a brig. I mean, I’m lucid and aware of where I am. I’m not …
See Attachment 25.
154. The concerns about Kuwait could not legitimately continue to indefinitely form the basis
for PFC Manning’s POI status, over the more compelling recommendations of multiple mental
health providers. The justification was thus disingenuous and pre-textual in light of the clear
psychiatric evidence to the contrary, and the Brig’s own stated procedures for reviewing POI
status. Brig officials appeared to be saying that if a detainee ever makes a comment about
suicide at any point in his incarceration, the detainee is de facto at risk for suicide.
Consequently, nothing the detainee could ever say or do subsequently would matter in the
classification of the detainee.
155. Even if the Brig’s concern about PFC Manning’s risk for self-harm were not pre-textual
(which the Defense submits that it was), such a concern was nonetheless exaggerated and grossly
out-of-proportion to the risk presented. Where a restriction imposed on a detainee is “arbitrary”
or “excessive” the restriction does not serve a legitimate government purpose. See United States
v. Crawford, 62 M.J. 411, 414 (C.A.A.F. 2006)(constitutional violation is established where
“conditions [are] unreasonable or arbitrary in relation to both purposes” of “ensuring … presence
for trial and the security needs of the confinement facility”). Here, the burdens placed upon PFC
Manning under the guise of protecting him from self-harm were arbitrary, unreasonable and
excessive, mandating a conclusion that PFC Manning’s Article 13 rights have been violated.
156. The Brig’s response to PFC Manning’s comment about the waistband of his underwear is
illustrative of the (willful) lack of logic that confinement officials brought to bear when it came
to PFC Manning. Any reasonable person could see that after eight months in MAX and under
POI, a detainee would become increasingly frustrated and might say something provocative. A
reasonable person would see that PFC Manning was not actually planning on killing himself with
the elastic band of his underwear. And yet, the Brig refused to see logic. This is true even
though Brig psychiatrists had specifically opined that PFC Manning’s comment about the elastic
band of his underwear was part of the process of his “intellectualization” of his conditions of
confinement and was in no way related to any suicidal ideations on the part of PFC Manning.
See Attachments 2, 9. The 4 March 2011 C&A Board noted that, “[PFC Manning’s] comments
have raised concern that [PFC Manning] may be formulating a plan to potentially kill himself.”
See Attachment 6. If PFC Manning were truly “formulating a plan to potentially kill himself,”
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
82
would he tell Brig guards exactly how he was going to do it? Again, logic seems to have been
checked at the gates of the Quantico confinement facility.
157. After PFC Manning made this comment, the Brig increased the special handling
instructions on PFC Manning, such that there was now a requirement that he strip naked and
wear a suicide smock at night. See Attachment 26. This requirement was arbitrary,
unreasonable and excessive in light of the perceived threat of self-harm. PFC Manning was
under 24-hour surveillance, with guards never being more than a few feet away from his cell.
Even if he wanted to, how could PFC Manning use his underwear to potentially commit suicide
without anyone noticing? Presumably, a guard would notice PFC Manning removing his
underwear and pulling at the elastic band in an effort to extract it from his underwear and then
attempt to use it to kill himself. Moreover, PFC Manning was permitted to have his underwear
and clothing during the day, with no apparent concern that he would harm himself during
daylight hours.
158. Further, the smock itself posed a greater risk to PFC Manning in terms of being a choking
hazard than PFC Manning’s underwear. On one occasion, PFC Manning got trapped inside the
smock. The situation is explained in an Incident Report on 13 March 2011:
Ma’am, on the above date and time while performing my duties as special
quarters supervisor, I, **Redacted**, noticed Det. Manning **Redacted**had his
head and arms inside of his POI jump suit. I then woke up SND and told him that
I need to see his face and to poke his head out. While doing what I instructed him
to do, SND realized he was stuck and began to roll around, saying, “I hate this
stupid thing.” I then told SND to calm down and stand up and try to pull the POI
jump suit over his head, but his arms were still stuck. I then called for the watch
supervisor, **Redacted**, to come down to special quarters to look at the situation
and get permission to open cell 191 and help SND. Upon **Redacted**arrival, he
evaluated the situation and opened cell 191 to help SND free his arms. Once
SND was situated, I then told him not to put his head and arms inside his POI
jump suit again, and that if he is cold to use his second POI blanket instead. The
DBS was then notified and this report was written, and the incident was recorded
on camera.
See Attachment 27.
159. Despite this incident and the recommendation of Brig psychiatrists, **Redacted**refused to
change the decision to require PFC Manning to surrender his clothing and wear a smock at night.
She stated, “I have considered your complaint that the decision to remove your clothing during
sleeping hours is improper. I disagree. The removal of your clothing on 2 March 2011 was done
to ensure your safety and was a direct result of your comment … regarding the waistband in your
underwear which you considered to be dangerous.” See Attachment 20. Despite all logic to the
contrary, Brig officials continued to require that PFC Manning wear the smock at night,
apparently out of concern that PFC Manning planned to kill himself with his underwear.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
83
160. Further evidence of the lack of rational connection between measures adopted by the Brig
and a legitimate government objective is found in the measures associated with placing PFC
Manning on Suicide Risk on 18 January 2011. **Redacted**noted in his response to the Article
138 Complaint that the decision to place PFC Manning on Suicide Risk on that date necessitated
“only a few” additional special handling instructions, one of which was the removal of PFC
Manning’s eyeglasses.
16
See Attachment 19. It is impossible to conceive of a legitimate
government objective to be served in removing PFC Manning’s eyeglasses, forcing him to sit for
three days in his cell in essential blindness, dizzy and disoriented.
161. It is similarly impossible to rationalize any of the other restrictions imposed on PFC
Manning under either his POI or MAX status. A few of the absurd restrictions are outlined
below:
a) Constant Monitoring: It stands to reason that asking PFC Manning every five minutes
“are you okay?” would not ensure that PFC Manning was, in fact, okay. Moreover,
common sense dictates that that being asked “are you okay?” thousands of times over the
course of nine months would actually exacerbate a detainee’s sense of frustration and
cause mental anxiety.
b) Inability to Lay Down in His Cell or Place His Back Against the Wall: There does not
appear to be any legitimate penological reason for refusing to allow PFC Manning to lay
down in his cell, particularly when he was locked in it for over 23 hours per day. How
would allowing PFC Manning the ability to lay down increase his risk of self-harm?
Similarly, what possible justification could there be for not allowing a detainee to lean his
back against the wall, instead requiring him to sit up straight for all his waking hours?
c) Limitations on Reading Material: It is unclear how allowing PFC Manning only one
book or magazine in his cell at a time is related to the prevention of self-harm (especially
because PFC Manning was permitted to have a copy of the Brig’s rules and regulations in
his cell at all times). How would having two or three books or magazines in his cell
increase PFC Manning’s risk of self-harm?
d) Restrictions on Correspondence: For much of the time that PFC Manning was at
Quantico, he was only permitted one hour of correspondence time. Again, how would
permitting additional correspondence time increase PFC Manning’s risk of self-harm?
e) Refusal to Allow PFC Manning Basic Hygiene Items: It is impossible to understand
why PFC Manning was not permitted to have toilet paper in his cell and instead was
16
The fact that placing PFC Manning on Suicide Risk necessitated “only a few” additional handling instructions
demonstrates that there is not a significant distinction between Suicide Risk and POI status. However, the Brig was
not permitted to maintain PFC Manning on Suicide Risk status because that would have required the
recommendation of the Brig’s mental health provider (which the Brig decidedly did not have).
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
84
required to ask for it every time he wanted to go to the bathroom. This restriction was
arbitrary, excessive and degrading.
f) Restrictions on Exercise: PFC Manning was prohibited from exercising in his cell.
However, he was permitted to exercise at recreation call. It is unclear what the difference
between the two is, and why one does not present a risk of self- harm, while the other
does. Moreover, **Redacted**pleaded with the Brig to allow PFC Manning to exercise in
his cell. On 2 December 2010, for instance, **Redacted**wrote in his psychiatric
evaluation:
Pt reports good mood and no SI [suicidal ideations]. Does not require POI
from a psychiatric perspective.
Please let Pt do calisthenics in his cell. Thanks.
See Attachment 2 (large writing in original).
162. In short, the conditions imposed on PFC Manning to purportedly ensure that he would not
harm himself were wholly nonsensical. See, e.g. United States v. Thompson, 2008 WL 2259762
(A. F. Ct. Crim. App.)(“Nor are we able to see how forcing the appellant to remain on her bed,
without talking, somehow increased the government’s assurance that she would be available for
trial beyond that guaranteed by her general confinement”).
163. In United States v. Palmiter, 20 M.J. 90 (C.M.A. 1985), Chief Judge Everett found that
conditions less restrictive than the ones imposed on PFC Manning were not related to a
legitimate government objective. He stated:
For purposes of the motion, the Government admitted that appellant was initially
placed in a single cell about 6–feet by 7–feet, with a desk, toilet, chair, and bed.
He was only allowed to wear his undershorts, and to either sit at the desk or stand
from 0400 hours to 2200 hours. His only reading materials were a Bible and the
brig regulations. He was not allowed to write or receive letters, lie on the bed
between reveille and taps, or communicate with other prisoners.
Some of these conditions are far more onerous than would be required to assure
the detainee’s presence and so they violated Article 13. Regardless of the
restrictions that might be imposed on sentenced prisoners without violating
Article 55, [] it is hard to see why a pretrial detainee should be prohibited from
corresponding with persons outside the facility, such as his lawyers, family, or
friends; or be required to be only in undershorts and in the daytime to sit or stand,
rather than to lie in bed. No “alternative purpose” which seems reasonably related
to a legitimate governmental objective “is assignable for” these conditions.
Id. at 99-100 (emphasis supplied). Chief Judge Everett also emphasized that “[i]n arriving at this
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
85
conclusion, I have heeded the Supreme Court’s warning that “[s]uch considerations are
peculiarly within the province and professional expertise of corrections officials, and, in the
absence of substantial evidence in the record to indicate that the officials have exaggerated their
response to these considerations, courts should ordinarily defer to their expert judgment in such
matters.” Id.
164. Even if the restrictions placed upon PFC Manning were in some way related to a legitimate
government objective, they were nonetheless grossly exaggerated in light of any actual evidence
that PFC Manning was at risk of self-harm. For instance, for five months, PFC Manning was
forced to “exercise” while his hands and feet were shackled, with a guard accompanying his
every step. While this would certainly ensure that he wouldn’t harm himself, others, or escape
from the confinement facility, such a requirement appears wholly out-of-proportion to the risk
presented. See United States v. Contreras, 2011 WL 2864311, *5 (N.-M. Ct. Crim. App.)(“We
agree with the military judge that while it was permissible to assign the appellant cleaning
responsibilities, it was impermissible to have him clean in hand and leg irons.”).
165. It is clear that the numerous restrictions placed on PFC Manning owing to his classification
as a MAX detainee under POI status were not related to the legitimate government objective of
preventing PFC Manning from harming himself. Nor, as discussed below, were the restrictions
placed on PFC Manning legitimately related to either protecting other inmates or ensuring PFC
Manning’s presence at trial.
b) Preventing PFC Manning from Harming Others
166. There was equally no basis to conclude that PFC Manning was a risk to others, thereby
justifying his continued classification in MAX custody. The Brig notes continually indicate that
PFC Manning had been an “above average” detainee. See Attachment 5. **Redacted**, in his
conversation with PFC Manning, indicated that he “wish[ed] he had a hundred Mannings.” See
Attachment 25. The Pentagon has claimed publicly that PFC Manning has been an “exemplary”
detainee. PFC Manning had always been pleasant, respectful and cooperative with Brig officials
and guards.
17
17
In his 24 January 2011 submission, **Redacted**states that PFC Manning had violated prisoner rules and
regulations by not following instructions. He further states, “I have not imposed any disciplinary segregation, but
these incidents do cause me continuing concern regarding his safety and intentions.” See Attachment 15. The rules
“violations” that **Redacted**refers to are exceedingly minor (See Attachment 39) and do not provide a basis,
under any stretch of the imagination, for a “continuing concern regarding his safety and intentions.” For example,
on one occasion, a Brig guard documents an incident where PFC Manning was choking on a piece of meat; after the
guard dislodged it, PFC Manning indicated that he did not need medical care. On one occasion, PFC Manning
declined his recreation call because his medication made him extremely tired. On yet another occasion, a Brig guard
reported that after explaining to PFC Manning something dealing with the television schedule, PFC Manning
indicated he was done watching TV and it could be turned off. Frankly, with some of these reports, it is not even
clear what the “incident” is or why it is at all significant. Regardless, these are apparently the sorts of incidents that
**Redacted**refers to as somehow supporting the conclusion that he had “continuing concern” regarding PFC
Manning’s safety and intentions. A look at the incident reports themselves, however, completely undermines
**Redacted**statement.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
86
167. PFC Manning had never exhibited any violent tendencies towards other inmates at
Quantico. The Brig psychiatrists indicated that he was not a risk to others. In response to a
question as to whether they had “seen or documented any behavior to suggest that he is a risk to
harm others or himself, a disruptive detainee, or otherwise noncompliant with Quantico Brig
rules and procedures,” **Redacted**and **Redacted**responded as follows:
**Redacted**:
Not since I met him. Given the report from Kuwait, I had expected more
difficulty.

Given the amount of scrutiny he received from the Brig, and the seriousness of his
charges, I had expected him to have many more problems. I had initially
suspected that we would see regression and perhaps some suicidal behaviors. He
held up remarkably well. He was generally a well behaved detainee.
**Redacted**:
I have never heard of him being disruptive, but he does make provocative comments to
the staff as part of his intellectualization (e.g. 2 March 2011).
See Attachments 7-9.
168. Notably, the offenses with which PFC Manning is charged— offenses of which PFC
Manning has not been convicted—do not involve violence. There was absolutely no reason to
believe that the safety of other inmates would be compromised if PFC Manning were classified
as a Medium Custody detainee. See Lock v. Jenkins, 641 F.2d 488, 494 (7
th
Cir. 1981)(the
“state’s interest in secure confinement of [pretrial detainees] may justify confinement of
particular detainees because of their known characteristics, … additional severity in treatment in
the absence of knowledge of their individual characteristics is clearly excessive and amounts to
punishment”)(emphasis supplied). See also United States v. Swan, 45 M.J. 672 (N-M. Ct. Crim.
App. 1996)(solitary confinement justified to protect other detainees); United States v. Crawford,
62 M.J. 411, 415 (C.A.A.F. 2006)(maximum custody appropriate where accused presented a
“high risk of future serious misconduct including mass violence and physical harm to others”).
169. In United States v. Singleton, 59 M.J. 618 (Army Ct. Crim. App. 2003), the accused was
held for 57 days in special quarters before he was transferred to the general confinement
population. In that case, the accused had been charged with “serious, violent offenses” (rape of a
minor), had failed to comply with restrictions ordered by his company commander, and had a
serious drug and alcohol problem. Id. at 623-4. Thus, the temporary placement of the accused in
special quarters for 57 days was justified. Here, PFC Manning spent approximately 265 days in
solitary confinement at Quantico. He was not charged with a violent offense; he did not have
any disciplinary issues; and did not have any drug or alcohol problems. If it was not necessary to
keep a violent sex offender who disobeyed orders in special quarters, surely it was not necessary
to keep PFC Manning in MAX custody in order to protect others.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
87
170. It should be noted once again that PFC Manning is 5’3 in height and 115 pounds in weight.
Presumably, Brig guards would have been able to easily restrain PFC Manning in the extremely
unlikely event that he were to be disruptive and pose a danger to others. Moreover, the Defense
would venture to guess that other pretrial detainees could “hold their own” if some sort of
altercation ensued. Placing PFC Manning in shackles and locking down a Marine confinement
facility every time PFC Manning was moved (e.g. to speak with his counsel on the phone; to
attend his sunshine call) was clearly excessive and arbitrary in considering whether PFC
Manning’s confinement conditions serve the government objective of ensuring the safety of
other detainees.
c) Ensuring PFC Manning’s Presence At Trial
171. Finally, PFC Manning’s confinement conditions were not rationally related to the
government objective of ensuring PFC Manning’s presence at trial. There is no indication that
PFC Manning was a flight risk at the time of his confinement at Quantico. United States v.
Crawford, 62 M.J. 411, 415 (C.A.A.F. 2006)(additional restrictions warranted because detainee
was “both a flight risk and a serious risk of future misconduct.”); United States v. Willenbring,
56 M.J. 671, 678-9 (Army Ct. Crim. App. 2001)(additional restrictions warranted because “Brig
officials clearly had reason to believe that [detainee] was a flight risk and posed a risk to others
… The record establishes a litany of violent, predatory, and dangerous criminal behavior.”).
172. In PFC Manning’s case, he was an exemplary inmate who never gave Brig officials reason
to believe he was a flight risk. See United States v. Fuson, 54 M.J. 523, 526 (N-M. Ct. Crim.
App. 2000)(holding that imposition of harsher conditions on accused was not justified on the
basis that accused was a flight risk, noting that the accused “was not a ‘management problem’ or
a disciplinary problem in the brig. His conduct was consistently evaluated as ‘sat,’
(satisfactory)…”); United States v. Brown, 2006 WL 1662963, *4 (N-M. Ct. Crim. App.)(“…
this court has warned of the danger of basing pretrial confinement decisions solely on the
seriousness of an offense or the maximum punishment authorized. In this case, the appellant had
already demonstrated that he was not a flight risk for an extended period of time.”).
173. The Brig, however, used the seriousness of the charges to conclude – for all time and for all
purposes – that PFC Manning was a flight risk. The seriousness of the charges themselves,
however, cannot justify an automatic conclusion that a pretrial detainee is a flight risk and thus
belongs in MAX custody. See United States v. Scalarone, 52 M.J. 539, 544 (N-M. Ct. Crim.
App. 1999)(finding that the “focus on the possibility of the [accused’s] escape due to the
seriousness of the charges, as the reason[] to assign him to “Special Quarters,” resulted in the
imposition of conditions more rigorous than necessary to ensure his presence for trial.”); United
States v. Hancock, 2011 WL 2557622 (N-M. Ct. Crim. App.)(finding unlawful pretrial
punishment where the accused had spent 136 days in solitary confinement as an arbitrary
response to the seriousness of the charges against him); United States v. White, 2006 WL
4579019 (N.-M. Ct. Crim. App.)(finding illegal pretrial punishment where custody determination
was based solely on the severity of the murder charge against the accused; court noted that “the
maximum custody conditions were not rationally based on security concerns taking into account
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
88
all of the circumstances, and the resulting conditions were more rigorous than necessary to
ensure the [accused’s] presence at his trial.”); United States v. Kinzer, 56 M.J. 739 (N-M. Ct.
Crim. App. 2001)(finding illegal pretrial punishment where Marine brig had a “standard
procedure … that detainees facing more than seven years of confinement were considered escape
risks per se, and assigned to special quarters”). Otherwise, any detainee facing serious criminal
charges would automatically be deemed a flight risk and relegated to MAX custody for the
duration of his time in pretrial confinement.
174. That the seriousness of the charges formed the basis for the decision to retain PFC Manning
in MAX and on POI is evident in **Redacted**Response to PFC Manning’s Article 138
Complaint. **Redacted**states:
Classification of prisoners is governed by reference (c). Classification criteria …
include, but are not limited to: assaultive behavior, serious criminal record
(convicted or alleged), low tolerance of frustration, poor home conditions or
family relationships, mental evaluations indicating serious neurosis or psychosis,
demonstrated pattern of poor judgment, and length of potential sentence. The
charge sheet available to the PCF upon confinement alleged breaches of security
regulations and the leakage of classified documents involving national security.
See Attachment 18.
175. What is telling is that **Redacted**proceeds to list all the factors that should be considered
in the classification decision, but only hones on one: the seriousness of the charges. See also id.
(“Although your mental state was a primary concern and focus, it was not the only factor
justifying MAX custody. You are facing serious charges involving wrongfully accessing and
transferring classified information and a maximum punishment of 52 years of confinement and a
dishonorable discharge.”).
176. In **Redacted**Response to PFC Manning’s Rebuttal to the Article 138 Complaint, he
states:
I have reviewed the entire record and concur that maximum custody is the
appropriate classification for PFC Manning. This does not foreclose a future
change in his custody classification. For this reason, his classification and
assignment is continuously reviewed. However, he is pending extremely serious
charges with national security implications.
See Attachment 19. See also Attachment 15 (**Redacted**indicating that “it is my professional
opinion that PFC Manning’s maximum custody classification is based upon his charges, national
security concerns and his behavior while in the facility.”).
177. It is abundantly clear that the seriousness of the charges themselves was the primary reason
why the Brig (and **Redacted**) thought it appropriate to keep PFC Manning on MAX and
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
89
POI.
18
This is further evidenced by **Redacted**** findings where he states that, “[t]o the
******* ********** request for information on the authority to impose and the purpose of the
isolation regime, the government responded that the prison rules authorized the *******
********** to impose it on account of the seriousness of the offense for which he would
eventually be charged.” See Attachment 32 (emphasis added).
178. Applying some common sense for a moment, given that PFC Manning was in a secure
Marine facility, contained within a Marine compound, it is hard to imagine any scenario under
which PFC Manning would have been able to escape. Apparently, security at Quantico includes
“a single chain-link fence about 20 feet high with razor wire, cameras, and guards.”
http://en.wiki pedia.org/wiki/Marine_Corps_Brig,_Quantico. Recall again that PFC Manning
diminutive in size. The average Marine Brig guard would likely be nearly 6 feet tall and about
200 pounds. It defies logic to think that somehow, even if he wanted to, PFC Manning could
escape from Quantico. The case of United States v. Fuson, 54 M.J. 523, 526 (N-M. Ct. Crim.
App. 2000) is apposite in this context. In that case, the trial counsel argued:
Your Honor, the reason why the accused is in special quarters is because of his
medical condition. It’s not a form of punishment. It’s because it is to protect
himself and to maintain good order within the brig. Id. at 526.
179. The court did not accept what it saw as a nonsensical argument, stating, “We cannot
condone the imposition of harsher conditions upon a military accused because he has an injury
or, for that matter, suffers from some other illness. We think it is somewhat obvious that having
a strained right knee does not make an accused a greater flight risk or that placement in ‘special
quarters’ is necessary to ensure the presence of such injured personnel for trial.” Id. at 527.
Likewise, the Defense submits that it is “somewhat obvious” that, given PFC Manning’s
physical stature and his location in a secure confinement facility within a secure Marine
compound, that he was not legitimate flight risk.
180. Moreover, the Government did not have a greater interest in ensuring that PFC Manning
appeared at trial than it did with any other pretrial detainee confined at the Quantico Brig. And
yet, other detainees were not subjected to these conditions. See United States v. Harris, 2007
WL 1702575, *2 (finding illegal punishment where “the Government presented no evidence that
[detainee] was a flight risk or that there was any risk that he would harm himself or others if
lesser degrees of restraint were utilized.”); United States v. Fricke, 53 M.J. 149, 154 (C.A.A.F.
2000)(noting that conditions similar to those alleged by accused [confinement in cell for 23
hours a day] “have previously been considered far more onerous than would be required to
assure [accused’s] presence [at trial].”)(citations omitted).
181. In his response to PFC Manning’s Article 138 Complaint, **Redacted**noted that in
determining PFC Manning’s classification status, relevant concerns included “national security
concerns and protection of classified material.” See Attachment 19. It is impossible to fathom
18
This is also clear when one looks at the C&A Board reviews from 3 January 2011 onward. See Attachment 6.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
90
how “national security concerns” and “protection of classified material” would be impacted if
PFC Manning were to be retained in MDI (rather than MAX) and not under POI status. As such,
these factors are unrelated to any legitimate government objective – and in particular, to the
objective of ensuring PFC Manning’s presence at trial. Also in this Response, **Redacted**
astoundingly refers to all these conditions as “narrowly tailored.” See id. Not only were the
conditions decidedly not narrowly tailored, they were arbitrary, purposeless and bore no relation
to a legitimate governmental goal. See United States v. Crawford, 62 M.J. 411, 416 (C.A.A.F.
2006)(“we [do not] condone arbitrary policies imposing ‘maximum custody’ upon pretrial
prisoners.”); United States v. James, 28 M.J. 214, 216 (C.M.A. 1989)(conditions that are
arbitrary or purposeless can be considered to raise an inference of punishment).
182. The decision to retain PFC Manning under MAX and POI cannot be justified by general
averments that “the ******* ********** has the inherent authority over those in his custody to
maintain good order and discipline and the responsibility to ensure safety and security in the
PCF.” See Attachment 18. As the 7
th
Circuit aptly stated in Lock v. Jenkins, 641 F.2d 488, 498
(7th Cir.1981), courts need not “grant automatic deference to ritual incantations by prison
officials that their actions foster the goals of order and discipline.” In this case, there has been
nothing but “ritual incantations.”
183. It is evident that the decision to retain PFC Manning in the functional equivalent of solitary
confinement for almost nine months was arbitrary, capricious and not rationally related to a
legitimate government objective. It is worth noting that the Marine Corps has long history of
arbitrary and unreasonable Brig policies which amount to pretrial punishment.
184. For instance, in United States v. Anderson, 49 M.J. 575 (N-M. Ct. Crim. App. 1998), the
court found that there was an “unwritten policy” at the Camp Pendleton Marine confinement
facility that “places pretrial confines in maximum-custody status based solely on whether the
potential confinement they face is greater than 5 years.” Id. at 576. In finding that this
constituted unlawful pretrial punishment, the court stated:
Based on the information available to the court, we are very concerned about what
appears to be an arbitrary policy to place in maximum confinement all persons
who face a period of confinement in excess of 5 years. All such persons
apparently remain in maximum confinement, with all the deprivations that entails,
until trial or such time as the service member enters into a pretrial agreement
capping confinement at 5 years or less.
We recognize, of course, that the potential length of confinement a service
member faces is a relevant factor in determining the likelihood he may attempt to
flee. Moreover, the seriousness and nature of the offenses can be relevant in
determining both the individual’s flight risk as well as whether he represents a
danger to others in the brig. We are hesitant to second-guess the decisions of brig
personnel, who are required to maintain good order and discipline under difficult
circumstances. Based on their extensive training and experience, we recognize
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
91
that such personnel are generally much better equipped than are we to make such
tough calls. Had the decision-making process considered all the relevant factors,
we would intervene only under the most unusual circumstances. Here, however,
the Government has made no effort to rebut the appellant’s contentions that the
length of potential confinement was the only factor brig personnel considered.
Before significantly curtailing the freedom of Marines facing general courtsmartial,
this court and others responsible for the military justice system must
ensure the integrity of the system. These decisions cannot be based on a single
blanket criterion to the exclusion of all other factors.
Id. at 576-7 (emphasis in original).
185. The Court also expressed concern “about this policy’s coercive effect on pretrial confinees.
It places considerable pressure on them to enter into a pretrial agreement and then plead guilty
simply to get out of maximum custody.” Id. The court further admonished those involved “in
the administration of Navy and Marine Corps brigs” to “ensure that decisions whether to place
pretrial confines in a maximum-custody status are based on all relevant factors.” Id.
186. Anderson is not the only case to address the arbitrary Brig policy at Camp Pendleton. See
United States v. Evans, 55 M.J. 732 (N-M. Ct. Crim. App. 2001)(“As we have found in other
cases, however, we find that the decision to place the appellant in Special Quarters 1 was made
in conformance with the standard operating procedures [SOP] then in existence within the brig at
Camp Pendleton. That SOP required that anyone facing more than five years confinement to be
automatically placed in Special Quarters 1. Accordingly, we find that the decision to place the
appellant in Special Quarters 1 was based on an arbitrary policy and resulted in the imposition of
conditions more rigorous than necessary to insure his presence for trial.”)(citations omitted);
United States v. Rodriguez, 2002 WL 31433595 (N-M. Ct. Crim. App.)(“To the extent his
custody determination was based solely on that criterion, it resulted in conditions more rigorous
than necessary to ensure the appellant’s presence for trial. Based upon the evidence presented to
us, we find that the appellant has met his burden and the Government has not. Accordingly, we
find that the decision to place and keep the appellant in special quarters was based solely upon an
arbitrary policy in place at the Camp Pendleton Brig and resulted in the imposition of conditions
more rigorous than the circumstances required to insure the appellant’s presence at
trial.”)(citations omitted); United States v. Salinas, 1999 WL 1076885, *4 (N-M. Ct. Crim.
App.)(“In light of the available facts, we are convinced that the 5–year criterion for maximum
custody dispositions existed at the Camp Pendleton Base Brig at the time of the appellant’s
pretrial confinement. And, in the absence of more convincing evidence that this rule was not
applied to him, and in the interest of judicial economy, we will afford the appellant an additional
128 days of judicially ordered credit to be applied against his approved sentence.”). Nor is the
policy that existed at Camp Pendleton an isolated one. See United States v. Kinzer, 56 M.J. 739,
741 (N-M. Ct. Crim. App. 2001)(arbitrary brig policy existed at Camp Lejeune).
187. Like in Anderson and in all the cases cited above, the Marine brig at Quantico had an
arbitrary policy to keep PFC Manning (and only PFC Manning) in MAX and on POI
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
92
indefinitely. As the Court of Appeal for the Armed Forces has said, “we do [not] condone
arbitrary policies imposing ‘maximum custody’ upon pretrial prisoners. We will scrutinize
closely any claim that maximum custody was imposed solely because of the charges rather than
as a result of a reasonable evaluation of all the facts and circumstances of a case.” See United
States v. Crawford, 62 M.J. 411, 416 (C.A.A.F. 2006). The policy to keep PFC Manning on
MAX and POI was not based on any legitimate government objective, such as protecting PFC
Manning from self-harm, protecting others, or ensuring PFC Manning’s presence at trial.
Instead, the decision was an “unwritten policy” by the higher-ups at Quantico who had decided
that, as long as PFC Manning remained at Quantico, nothing would ever change. United States
v. Anderson, 49 M.J. 575 (N-M. Ct. Crim. App. 1998).
188. But after PFC Manning was moved to the Fort Leavenworth Joint Regional Correctional
Facility (JRCF), things did change. After a routine indoctrination period, PFC Manning was
assigned to Medium Custody. The severe restrictions on his liberty have been lifted. He is now
permitted to eat with other detainees, socialize with other detainees, walk around without metal
shackles, have personal and hygiene items in his cell, etc. PFC Manning has been held in this
status for approximately the past 15 months.
189. The fact that PFC Manning went from MAX and POI at Quantico to Medium Custody at
the JRCF virtually overnight is evidence that he was improperly held in MAX and POI to begin
with. See United States v. Kinzer, 56 M.J. 739, 741 (N-M. Ct. Crim. App. 2001)(“The fact that
the appellant was released from special quarters the very next day after securing a pretrial
agreement that limited his post-trial confinement to only three years is strong evidence that his
assignment to special quarters was based primarily upon a length-of-sentence policy, and not
upon other appropriate factors. Accordingly, we find that the decision to place the appellant in
special quarters was based on an arbitrary policy and resulted in the imposition of conditions
more rigorous than necessary to insure his presence for trial.”).
190. For the reasons outlined above, it is clear that the conditions of PFC Manning’s
confinement were not related – much less rationally related – to the only permissible government
objectives in imposer greater than normal confinement restrictions: protecting PFC Manning
from harming himself; protecting PFC Manning from harming others; and ensuring PFC
Manning’s presence at trial.
D. The Conditions of PFC Manning’s Confinement Were so Onerous that they Permit
the Per Se Inference that his Article 13 Rights were Violated
191. In United States v. McCarthy, 47 M.J. 162, 165 (C.A.A.F. 1997), the Court of Appeals for
the Armed Forces held that conditions of confinement may be so egregious and onerous that
“they give rise to a permissible inference that [the accused] is being punished, or may be so
excessive as to constitute punishment.” Such is the case here. The harsh conditions under which
PFC Manning was confined over the course of nine months while in pretrial confinement at
Quantico give rise a sole permissible inference: PFC Manning was punished in violation of his
Article 13 rights. See also United States v. Fulton, 52 M.J. 767 (A. F. Ct. Crim. App.
2000)(noting that “the actions of the confinement staff were so egregious that we … are
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
93
inescapably led to only one conclusion: The [accused] was intentionally subjected to unduly
rigorous conditions which cannot be supported by any legitimate government purpose.”).
a) The Conditions of PFC Manning’s Confinement in MAX and on POI were Unduly
Onerous
192. PFC Manning served over nine months of confinement in MAX custody and under either
Suicide Risk or POI. While PFC Manning was not technically held under the classification of
“solitary confinement” (a classification that the Quantico Brig does not have
19
), the cumulative
effect of PFC Manning’s confinement conditions were tantamount to solitary confinement. See
United States v. Amaro, 2009 WL 1936444, *1 (A. F. Ct. Crim. App.)(accused’s confinement in
“protective custody” was “tantamount to solitary confinement”).
193. In his Testimony before the Senate Judiciary Subcommittee on the Constitution, Civil
Rights, and Human Rights Hearing on Solitary Confinement,
20
**Redacted****** described the
characteristics of solitary confinement as follows:
19
See Attachment 15 (“The Quantico base pretrial confinement facility does not have solitary confinement”).
20
The Committee was established to investigate the “serious human rights, fiscal, and public safety consequences”
associated with the use of solitary confinement in American Prisons. See Statement of **Redacted************,
Attachment 37. **Redacted** writes:
Although solitary confinement was develop as a method for handling highly dangerous prisoners,
it is increasingly being used with inmates who do not pose a threat to staff or other inmates. Far
too often, prisoners today are placed in solitary confinement for minor violations that are
disruptive but not violent. At the same time, conditions within segregation units have become
increasingly harsh. In many cases, human contact is virtually eliminated. Officers deliver meal
trays through a door slot, and visits by mental health staff are conducted through the cell door.
Interaction with other prisoners is often not allowed, and visits with family members may be
prohibited for a year or more.
There are significant fiscal, safety and humanitarian consequences for this trend toward
increasingly harsh conditions of solitary confinement and its more frequent use to punish nonviolent
behavior. Evidence provided by the Vera Institute and others now suggests that placing
inmates in solitary confinement with minimal human contact for days, months and years is
exceptionally expensive and, in many cases, counterproductive. Not only do these studies show
that segregation does little or nothing to lower overall rates of violence, there is evidence that it
actually increases recidivism rates after release, posing a danger to the public.
Id. Similarly, **Redacted******** expresses the following views on solitary confinement:
In 1995, a federal district court described similar cells at California’s Pelican Bay State Prison:
“The cells are windowless; the walls are white concrete. …The overall effect [] is one
of stark sterility and unremitting monotony. Inmates can spend years without ever
seeing any aspect of the outside world except for a small patch of sky. One inmate
fairly described [it] as being ‘like a space capsule where one is shot into space and left
in isolation.’”
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
94
I should acknowledge that the term “solitary confinement” is a term of art in
corrections. Solitary or isolated confinement goes by a variety of names in U.S.
prisons—Security Housing, Administrative Segregation, Close Management,
High Security, Closed Cell Restriction, and so on. But the units all have in
common the fact that the prisoners who are housed inside them are confined on
average 23 hours a day in typically windowless or nearly windowless cells that
commonly range in dimension from 60 to 80 square feet. The ones on the smaller
side of this range are roughly the size of a king-sized bed, one that contains a
bunk, a toilet and sink, and all of the prisoner’s worldly possessions. Thus,
prisoners in solitary confinement sleep, eat, and defecate in their cells, in spaces
that are no more than a few feet apart from one another.
See Attachment 37. Thus, the combination of PFC Manning’s MAX and POI status (coupled
with his periodic Suicide Risk status) most certainly amounts to what would colloquially be
known as “solitary confinement.”
21
194. There was absolutely no justification – and there can be no justification – for the continued
decision to hold PFC Manning in solitary confinement for over nine months. In United States v.
King, 61 M.J. 225, 229 (C.A.A.F. 2005), the Court of Appeal for the Armed Forces found an
Article 13 violation where the accused was arbitrarily placed in solitary confinement for a mere
two weeks. In that case, the court said, “[p]lacing [an accused] in a segregated environment with
all the attributes of severe restraint and discipline, without an individualized demonstration of
cause in the record, was so excessive as to be punishment …”. Similarly, in United States v.
Amaro, 2009 WL 1936444 (A. F. Ct. Crim. App.), the Court found a violation of Article 13 and
awarded 4-for-1 credit where the accused spent 33 days in conditions tantamount to solitary
confinement. If a few weeks of solitary confinement cannot be tolerated, what are we to say
about approximately 265 days?
195. Even where solitary confinement serves some sort of legitimate non-punitive objective,
military courts have considered the length that a prisoner is placed in solitary confinement in
Imagine spending 23 hours a day in a cell like that – for days, months, years – with no window to
the outside world and very little, if any, human contact.
The United States holds far more prisoners in solitary than any other democratic nation. The
Bureau of Justice Statistics found that in 2005, U.S. prisons held 81,622 people in some kind of
restricted housing. In my home state of Illinois, 56% of the prison population has spent time in
segregation.
…But we now know that solitary confinement isn’t just used for the worst of the worst. Instead,
we are seeing an alarming increase in isolation for those who don’t need to be there – and for
vulnerable groups like immigrants, children, LGBT inmates, supposedly for their own protection.
Id.
21
PFC Manning’s cell at Quantico was much smaller that the cells typically seen by **Redacted**in solitary
confinement. PFC Manning’s cell was a windowless cell that was 48 square feet in dimension (6×8).
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
95
order to discern whether the condition is imposed as punishment in violation of Article 13. In
United States v. Suttle, 2011 WL 5221266 (N.-M. Ct. Crim. App.), the court found that the
accused spent 59 days in solitary confinement in a Japanese prison for a legitimate non-punitive
reason. The Court in that case emphasized that, “The conditions in special quarters were neither
so onerous, nor lingered so long, as to constitute punishment, …” Id. at *4. Here, even if MAX
and POI were rationally related to a legitimate government objective (which the Defense submits
they were not), the conditions did in fact “linger so long[] as to constitute punishment” in
contravention of Article 13.
196. Even Brig official **Redacted**admitted to PFC Manning that his treatment at Quantico
was “not normal.” He stated, “We understand it’s not normal that we have someone in POI for
this period of time… It’s not [normal] … I guess we’ll just leave it at that.” See Attachment 25.
Not only was the treatment not normal, it was onerous, degrading and harmful to PFC Manning’s
mental health.
22
197. It is trite law that PFC Manning is presumed innocent until proven guilty. And yet, PFC
Manning has been treated in a manner that would not even be appropriate for convicted
offenders. Campbell v. Cauthron, 623 F.2d 503 (8
th
Cir. 1980)(“conditions found to constitute
cruel and unusual punishment when imposed on convicted inmates would surely be viewed as
unconstitutional punishment when imposed on similarly situated unconvicted detainees”). In
fact, **Redacted**, one of the treating psychiatrists at the Brig, has indicated that the only time
he has ever seen anyone held in conditions similar to PFC Manning was when he treated
prisoners on death row. That a psychiatrist with over a decade of experience has only witnessed
conditions like the ones endured by PFC Manning when he visited death row should speak
volumes as to how far outside the lines Quantico acted in imposing pretrial punishment on PFC
Manning.
198. The conditions under which PFC Manning was held for over eight months ride roughshod
over PFC Manning’s right to be presumed innocent and his right against pretrial punishment.
Even leaving aside any conceivable justification for the imposition of these restrictions, it is clear
that these conditions amount to per se unlawful pretrial punishment.
b) The Conditions of PFC Manning’s Confinement Sparked Domestic and International
Outrage
22
The excessiveness of the restrictions placed on PFC Manning are highlighted when one looks at the
corresponding Army Regulation governing corrections practices. Under Army Regulation 190-47, designation in
special quarters is determined “upon recommendations of the professional support staff or correctional treatment
staff or medical authority.” See Section 12-6. Even where “determined necessary by a medical authority, prisoners
designated for special quarters should be allowed to participate in work/training activities, consume meals with the
general population, and participate in recreation programs. Special quarters will be terminated as soon as it is
determined that the prisoner can be quartered satisfactorily within the general population.” Id. Although the
regulation does not provide an outermost guidepost to the length of time a detainee can spend in special quarters, it
does provide that “Disciplinary segregation … normally should not exceed 60 consecutive days. Prisoners held in
disciplinary segregation for periods exceeding 60 days will be provided the same program services and privileges as
prisoners in administrative segregation and protective custody.” Id.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
96
199. The egregious conditions of PFC Manning’s confinement sparked both domestic and
international outrage. In a letter to ********************, the program director of Amnesty
International wrote:
Amnesty International recognizes that it may sometimes be necessary to segregate
prisoners for disciplinary or security purposes. However, the restrictions imposed
in PFC Manning’s case appear to be unnecessarily harsh and punitive, in view of
the fact that he has no history of violence or disciplinary infractions and that he is
a pretrial detainee not yet convicted of any offence. The conditions under which
PFC Manning is held appear to breach the USA’s obligations under international
standards and treaties, including Article 10 of the International Covenant on Civil
and Political Rights (ICCPR) which the USA ratified in 1992 and which states
that “all persons deprived of their liberty shall be treated with humanity and with
respect for the inherent dignity of the human person”. The UN Human Rights
Committee, the ICCPR monitoring body, has noted in its General Comment on
Article 10 that persons deprived of their liberty may not be “subjected to any
hardship or constraint other than that resulting from the deprivation of liberty;
respect for the dignity of such persons must be guaranteed under the same
conditions as for that of free persons …”.
The harsh conditions imposed on PFC Manning also undermine the principle of
the presumption of innocence, which should be taken into account in the
treatment of any person under arrest or awaiting trial. We are concerned that the
effects of isolation and prolonged cellular confinement – which evidence suggests
can cause psychological impairment, including depression, anxiety and loss of
concentration – may, further, undermine his ability to assist in his defence and
thus his right to a fair trial.
In view of the concerns raised, we urge you to review the conditions under which
PFC Manning is confined at the Quantico naval brig and take effective measures
to ensure that he is no longer held in 23 hour cellular confinement or subjected to
other undue restrictions.
See Attachment 28.
200. Further, almost 300 law professors signed a letter admonishing the government for the
“degrading,” “inhumane,” “illegal,” and “immoral” conditions of PFC Manning’s confinement:
The sum of the treatment that has been widely reported is a violation of the Eighth
Amendment’s prohibition of cruel and unusual punishment, and the Fifth
Amendment’s guarantee against punishment without trial. If continued, it may
well amount to a violation of the criminal statute against torture, defined as,
among other things, “the administration or application… of… procedures
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
97
calculated to disrupt profoundly the senses or the personality.”
Private Manning has been designated as an appropriate subject for both Maximum
Security and Prevention of Injury (POI) detention. But he asserts that his
administrative reports consistently describe him as a well-behaved prisoner who
does not fit the requirements for Maximum Security detention. The Brig
psychiatrist began recommending his removal from Prevention of Injury months
ago. These claims have not been publicly contested. I n an Orwellian twist, the
spokesman for the ******* ********** refused to explain the forced nudity
“because to discuss the details would be a violation of Manning’s privacy.”
The Administration has provided no evidence that Manning’s treatment reflects a
concern for his own safety or that of other inmates. Unless and until it does so,
there is only one reasonable inference: this pattern of degrading treatment aims
either to deter future whistleblowers, or to force Manning to implicate Wikileaks
founder Julian Assange in a conspiracy, or both.
If Manning is guilty of a crime, let him be tried, convicted, and punished
according to law. But his treatment must be consistent with the Constitution and
the Bill of Rights. There is no excuse for his degrading and inhumane pretrial
punishment. As the **Redacted****Redacted**put it recently, they are
“counterproductive and stupid.” And yet **Redacted** has now been forced to
resign for speaking the plain truth.
The WikiLeaks disclosures have touched every corner of the world. Now the
whole world watches America and observes what it does; not what it says.
**Redacted****Redacted**was once a professor of constitutional law, and entered
the national stage as an eloquent moral leader. The question now, however, is
whether his conduct as **Redacted****Redacted**meets fundamental standards of
decency. He should not merely assert that Manning’s confinement is “appropriate
and meet[s] our basic standards,” as he did recently. He should require the
Pentagon publicly to document the grounds for its extraordinary actions –and
immediately end those which cannot withstand the light of day.
See Attachment 29.
201. American’s foremost constitutional law scholar, **Redacted****Redacted**, denounced
PFC Manning’s conditions of confinement as “not only shameful but unconstitutional.” See
http://www.guardian.co.uk/world/2011/apr/10/bradley-manning-legal-scholars-letter. *******
********** stated that the treatment was objectionable “in the way it violates his person and his
liberty without due process of law and in the way it administers cruel and unusual punishment of
a sort that cannot be constitutionally inflicted even upon someone convicted of terrible offences,
not to mention someone merely accused of such offences.” Id.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
98
202. Medical professionals also decried PFC Manning’s treatment as amounting to “needless
brutality.” Psychologists for Social Responsibility (PsySR) sent the following letter to ********
**Redacted**:
As an organization of psychologists and other mental health professionals, PsySR
is aware that solitary confinement can have severely deleterious effects on the
psychological well-being of those subjected to it. We therefore call for a revision
in the conditions of PFC Manning’s incarceration while he awaits trial, based on
the exhaustive documentation and research that have determined that solitary
confinement is, at the very least, a form of cruel, unusual and inhumane treatment
in violation of U.S. law.
In the majority opinion of the U.S. Supreme Court case Medley, Petitioner, 134
U.S. 1690 (1890), U.S. Supreme Court Justice Samuel Freeman Miller wrote, “A
considerable number of the prisoners fell, after even a short confinement, into a
semi-fatuous condition, from which it was next to impossible to arouse them, and
others became violently insane; others still, committed suicide; while those who
stood the ordeal better were not generally reformed, and in most cases did not
recover sufficient mental activity to be of any subsequent service to the
community.” Scientific investigations since 1890 have confirmed in troubling
detail the irreversible physiological changes in brain functioning from the trauma
of solitary confinement.
As expressed by **Redacted**, a psychologist and expert in the assessment of
institutional environments, “Empirical research on solitary and supermax-like
confinement has consistently and unequivocally documented the harmful
consequences of living in these kinds of environments . . . Evidence of these
negative psychological effects comes from personal accounts, descriptive studies,
and systematic research on solitary and supermax-type confinement, conducted
over a period of four decades, by researchers from several different continents
who had diverse backgrounds and a wide range of professional expertise…
[D]irect studies of prison isolation have documented an extremely broad range of
harmful psychological reactions. These effects include increases in the following
potentially damaging symptoms and problematic behaviors: negative attitudes and
affect, insomnia, anxiety, panic, withdrawal, hypersensitivity, ruminations,
cognitive dysfunction, hallucinations, loss of control, irritability, aggression, and
rage, paranoia, hopelessness, lethargy, depression, a sense of impending
emotional breakdown, self-mutilation, and suicidal ideation and behavior” (pp.
130-131, references removed).
**Redacted**concludes, “To summarize, there is not a single published study of
solitary or supermax-like confinement in which non-voluntary confinement
lasting for longer than 10 days where participants were unable to terminate their
isolation at will that failed to result in negative psychological effects” (p. 132).
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
99
We are aware that ********************************** has told AFP that
Manning is considered a “maximum confinement detainee,” as he is considered a
national security risk. But no such putative risk can justify keeping someone not
convicted of a crime in conditions likely to cause serious harm to his mental
health. Further, history suggests that solitary confinement, rather than being a
rational response to a risk, is more often used as a punishment for someone who is
considered to be a member of a despised or “dangerous” group. In any case, PFC
Manning has not been convicted of a crime and, under our system of justice, is at
this point presumed to be innocent.

In addition to the needless brutality of the conditions to which PFC Manning is
being subjected, PsySR is concerned that the coercive nature of these conditions –
– along with their serious psychological effects such as depression, paranoia, or
hopelessness — may undermine his ability to meaningfully cooperate with his
defense, undermining his right to a fair trial. Coercive conditions of detention
also increase the likelihood of the prisoner “cooperating” in order to improve
those circumstances, even to the extent of giving false testimony. Thus, such
harsh conditions are counter to the interests of justice.
Given the nature and effects of the solitary confinement to which PFC Manning is
being subjected, Mr. Secretary, Psychologists for Social Responsibility calls upon
you to rectify the inhumane, harmful, and counterproductive treatment of PFC
Bradley Manning immediately.
See Attachment 30. This organization has also submitted an amicus filing for this Court’s
consideration. See Attachment 41.
203. One member of the Obama administration was fired for his comments regarding PFC
Manning’s conditions of confinement. In March 2011, *****************************
***************** was asked the following question, “There’s an elephant in the room during
this discussion: Wikileaks. The US government is torturing a whistleblower in prison right now.”
**Redacted**replied by denouncing the abuse of PFC Manning as “ridiculous and
counterproductive and stupid.”
23
**Redacted**was forced to “resign” shortly after he made the
comment. **Redacted**later stood by his statement, saying that “if you have to explain why a
guy is standing naked in the middle of a jail cell, you have a policy in need of urgent review.”
24
204. European leaders have also criticized the United States for its treatment of PFC Manning.
In an open letter to **Redacted****Redacted**, among others, members of the European
23
See http://www.nytimes.com/2011/03/14- /us/politics/14crowley.html.
24
See http://www.guardian.co.uk/commentisfree/cifamerica/2011/mar/29/bradley-manning-wikileaks.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
100
parliament wrote to express concerns about human rights abuses against PFC Manning. They
urged the United States to allow the United Nations to investigate the claims:
By preventing UN officials from carrying out their duties, the United States
government risks undermining support for the work of the United Nations
elsewhere, particularly its mandate to investigate allegations of torture and human
rights abuses. In order to uphold the rights guaranteed to Bradley Manning under
international human rights law and the US constitution, it is imperative that the
****** ****** ******* ********** be allowed to properly investigate evidence
of rights abuses. PFC Manning has a right to be free from cruel and unusual
punishment. People accused of crimes must not be subjected to any form of
punishment before being brought to trial.
See Attachment 21.
205. That the conditions of PFC Manning’s confinement while at Quantico sparked domestic
and international outrage should have signaled that what the Brig was doing was not only wrong,
but egregiously wrong. Nearly every constituency that has heard about the conditions of PFC
Manning’s confinement, from doctors to lawyers to politicians, has considered these conditions
to constitute not only “unlawful pretrial punishment” but also a gross violation of PFC
Manning’s basic human rights.
c) The **Redacted****Redacted**Was Not Permitted to Investigate the Conditions of PFC
Manning’s Confinement
206. The ****************************, **Redacted**, repeatedly attempted to investigate
the harsh conditions of PFC Manning’s confinement only to be met with Brig assertions that any
interview of PFC Manning would be subject to monitoring. In a Press Release issued by the
United Nations Office of the High Commissioner, the U.N. expressed grave concern that the
United States would not permit unrestricted access to PFC Manning:
12 July 2011
GENEVA – The ******* ********** on Torture today expressed concerns
about restrictions placed by the United States Government on his interaction with
detainees.
Commenting on his attempts to gain unrestricted access to Private first class
Bradley Manning, a United States soldier detained for allegedly leaking classified
US communications to the WikiLeaks website, **Redacted**said: “I am assured
by the US Government that Mr. Manning’s prison regime and confinement is
markedly better than it was when he was in Quantico. However, in addition to
obtaining first hand information on my own about his new conditions of
confinement, I need to ascertain whether the conditions he was subjected to for
several months in Quantico amounted to torture or cruel, inhuman or degrading
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
101
treatment or punishment. For that, it is imperative that I talk to Mr. Manning
under conditions where I can be assured that he is being absolutely candid.”
At the ******* ********** request and after several meetings, the US
Department of Defense has allowed **Redacted** to visit Pfc. Manning but
warned him that the conversation would be monitored. Such a condition violates
long-standing rules that the UN applies for prison visits and for interviews with
inmates everywhere in the world. On humanitarian grounds and under protest,
**Redacted**offered to Manning, through his counsel, to visit him under these
restrictive conditions, an offer that Manning has declined.
The ******* ********** has, since the beginning of the year, been in
negotiations with the US Government over unrestricted access to Manning. Last
month, the Government informed him that it was not in a position to accede to the
request for a private and unmonitored meeting with Manning.
“The question of my unfettered access to a detainee goes beyond my request to
meet with Mr. Manning – it touches on whether I will be able to conduct private
and unmonitored interviews with detainees if I were to conduct a country visit to
the United States,” **Redacted** said.
He added that maintaining the principle of unfettered access to detainees is an
important part of his responsibility as the UN expert on torture. It also determines
whether UN experts can conduct credible enquiries into allegations of torture and
ill-treatment when they visit places of detention and detainees. In 2004, the US
Government allowed **Redacted** predecessor, ******* **********, and three
other mandate-holders, access to the Guantanamo Bay facilities, but the *******
********** administration imposed conditions that the UN mandate-holders
could not accept. Early in his tenure, which began on November 1, 2010,
**Redacted** formally asked the US Government for permission to visit
Guantanamo Bay, a petition that has been renewed on several occasions since
then. No answer has yet been given to this request.
“The United States, as a world leader, is a strong supporter of the international
human rights system. Therefore, its actions must seek to set the pace in good
practices that enhance the role of human rights mechanisms, ensuring and
maintaining unfettered access to detainees during enquiries,” he added.
See Attachment 32.
207. On 29 February 2012, the **Redacted****Redacted**issued a statement condemning the
conditions of PFC Manning’s confinement and the United States’ violation of the “terms of
reference applied universally in fact-finding by Special Procedures” (i.e. its failure to permit an
unmonitored visit). **Redacted**wrote:
United States of America
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
102
(a) UA 30/12/2010 Case No. USA 20/2010 State reply: 27/01/2011 19/05/2011
Allegations of prolonged solitary confinement of a soldier charged with the
unauthorized disclosure of classified information.
170. The ******* ********** thanks the Government of the United States of
America for its response to this communication regarding the alleged prolonged
solitary confinement of Mr. Bradley E. Manning, a US soldier charged with the
unauthorized disclosure of classified information. According to the information
received, Mr. Manning was held in solitary confinement for twenty-three hours a
day following his arrest in May 2010 in Iraq, and continuing through his transfer
to the brig at Marine Corps Base Quantico. His solitary confinement – lasting
about eleven months – was terminated upon his transfer from Quantico to the Joint
Regional Correctional Facility at Fort Leavenworth on 20 April 2011. In his
report, the ******* ********** stressed that “solitary confinement is a harsh
measure which may cause serious psychological and physiological adverse effects
on individuals regardless of their specific conditions.” Moreover, “[d]epending
on the specific reason for its application, conditions, length, effects and other
circumstances, solitary confinement can amount to a breach of article 7 of the
International Covenant on Civil and Political Rights, and to an act defined in
article 1 or article 16 of the Convention against Torture.” (A/66/268 paras. 79 and
80) Before the transfer of Pfc Manning to Fort Leavenworth, the *******
********** requested an opportunity to interview him in order to ascertain the
precise conditions of his detention. The US Government authorized the visit but
ascertained that it could not ensure that the conversation would not be monitored.
Since a non-private conversation with an inmate would violate the terms of
reference applied universally in fact-finding by Special Procedures, the *******
********** had to decline the invitation. In response to the *******
********** request for the reason to hold an unindicted detainee in solitary
confinement, the government responded that his regimen was not “solitary
confinement” but “prevention of harm watch” but did not offer details about what
harm was being prevented. To the ******* ********** request for information
on the authority to impose and the purpose of the isolation regime, the
government responded that the prison rules authorized the ******* **********
to impose it on account of the seriousness of the offense for which he would
eventually be charged. The ******* ********** concludes that imposing
seriously punitive conditions of detention on someone who has not been found
guilty of any crime is a violation of his right to physical and psychological
integrity as well as of his presumption of innocence. The ******* **********
again renews his request for a private and unmonitored meeting with Mr.
Manning to assess his conditions of detention.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
103
(b) AL 15/06/2011 Case No. USA 8/2011 State reply: None to date Follow-up to
a letter sent 13 May 2011 requesting a private unmonitored meeting with Private
(Pfc.) Bradley Manning.
171. The ******* ********** thanks the Government of the United States of
America for its response to the communication dated 13 May 2011 requesting a
private unmonitored meeting with Private Bradley Manning. Regrettably, to date
the Government continues to refuse to allow the ******* ********** to conduct
private, unmonitored, and privileged communications with Private Manning, in
accordance with the working methods of his mandate (E/CN.4/2006/6 paras. 20-
27).
Id.
208. In March 2012, **Redacted**, speaking at a U.N. Human Rights Council meeting in
Geneva, condemned PFC Manning’s treatment as “cruel, inhuman and degrading treatment,”
specifically citing “the excessive and prolonged isolation he was put in during the eight months
he was in Quantico.” He also rejected the justifications offered by government officials for what
was done to Manning: “the explanation I was given for those eight months was not convincing
for me.” Id. It is hypocritical for the United States to admonish other countries for their lack of
transparency in the treatment of prisoners, while refusing to allow the United Nations meaningful
access to a pretrial detainee on U.S. soil.
209. By insisting that the visit be monitored,
25
Quantico officials could thwart the very purpose
of the process: to allow PFC Manning to speak candidly about the conditions of his confinement
without fear of reprisal. The Defense submits that the failure to allow PFC Manning to have
access to **Redacted**for an unmonitored visit where PFC Manning could freely discuss the
conditions of his confinement in the hopes of getting some type of reprieve from them itself
amounts to unlawful pretrial punishment. Because everyone at the Quantico Brig was abiding by
**Redacted** unlawful order to not remove PFC Manning from MAX or POI, there was
nowhere for PFC Manning to go – other than outside the chain of command – to potentially get
relief. The failure to permit PFC Manning an unmonitored visit with the **** *******
********** ** ******* was designed to cover up from public view the wrongs that were being
perpetrated at Quantico. Not only were Quantico officials insistent on keeping PFC Manning in
MAX and on POI for the duration of his pretrial confinement, they were also insistent on
shutting him up about it by foreclosing the only remaining avenue of redress – an organization
outside the U.S. government.
210. The Brig’s failure to allow PFC Manning access to the ****** ******* *******
********** ** *******, in clear violation of international norms, itself amounts to punishment
and also permits the per se inference that PFC Manning was being punished in contravention of
his Article 13 rights.
25
The Brig, through the Government in this case, advanced the most narrow and nonsensical reading of the Brig’s
visitation rules. See infra, Facts. Regardless, well-established norms of international law clearly take precedence
over Quantico’s poorly-drafted visitation policy.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
104
d) The Conditions of PFC Manning’s Confinement Permit the Per Se Inference that PFC
Manning was Punished in Violation of Article 13
211. The cumulative conditions under which PFC Manning was held are unduly onerous,
degrading, and detrimental to PFC Manning’s mental health. Even leaving aside any
conceivable government justification for these restrictions, the severity of the conditions under
which PFC Manning was held permit the per se inference that the conditions were meant to
punish PFC Manning. See U.S. v. Harris, 2007 WL 1702575, *2 (“When an arbitrary brig policy
results in particularly egregious conditions of confinement, the court may infer that an accused
has been subject to pretrial punishment”).
212. Indeed, courts have found Article 13 violations in circumstances far less egregious than
these. See United States v. Scalarone, 52 M.J. 539 (N-M. Ct. Crim. App. 1999)(finding illegal
pretrial punishment where accused held in medium custody special quarters for 87 days; in these
special quarters, the accused was segregated from other prisoners and housed in a smaller cell for
23 hours a day); United States v. Fuson, 54 M.J. 523, 526 (N-M. Ct. Crim. App. 2000)(finding
illegal pretrial punishment where accused spent 32 days in special quarters; the conditions under
which the accused was held included “a 6’ x 9’ cell with no windows and having to remain in his
cell 24 hours per day except for chow and a one-hour recreation break Monday through
Friday.”); United States v. Sterling, 2009 WL 1936287 (A. F. Ct. Crim. App.)(finding unlawful
pretrial punishment where accused was placed in administrative segregation for 75 days,
confined to a single cell up to 23.5 hours a day). See also Lock v. Jenkins, 641 F.2d 488, 494 (7
th
Cir. 1981)(finding a due process violation where pretrial detainees spent at 22 hours daily in their
cells); Campbell v. Cauthron, 623 F.2d 503 (8
th
Cir. 1980)(finding a due process violation where
pretrial detainees were locked in cells twenty-four hours per day, with release only three times
weekly; these detainees, however, were not in solitary confinement); Ramos v. Lamm, 485 F.
Supp. 122 (D. Colo. 1979)(district court finding conditions of confinement unconstitutional and
ordering that no prisoner could be housed in less than 80 square feet for more than 20 hours per
day.); Lyons v. Powell, 838 F.2d 28, 29 (1
st
Cir. 1988)(“In view of the apparently small area of
confinement, we are further troubled by the appellant’s contention that he was confined to his
cell for 22-23 hours per day for a 27-day period”); Magluta v. Samples, 375 F. 3d 1269, 1274
(11
th
Cir. 2004)(11
th
Circuit “readily concluded” that the plaintiff stated a claim for a substantive
due process violation where “plaintiff was confined under extremely harsh conditions – in
solitary confinement (under conditions unlike other pretrial detainees or even convicted
prisoners), locked in an extremely small, closet-sized space, and with minimal contact with
human beings for a prolonged time … ”; in Magluta, unlike the situation here, the plaintiff was
actually a flight risk, as evidenced by officials’ investigation into four separate escape plots.).
213. Thus, the conditions that PFC Manning endured for nine months are not constitutionally
permissible. The conditions were so draconian and so far removed from the outer boundaries of
propriety that they permit the per se inference of punishment in violation of Article 13.
E. Dismissal of All Charges is the Only Appropriate Remedy in this Case
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
105
214. Although some form of confinement credit is the typical remedy in cases involving
unlawful pretrial punishment, dismissal is available as a remedy in an appropriate case. The
Defense submits that if dismissal is not warranted in this case, then in what case would dismissal
ever be warranted? The Defense does not believe that there has ever been such an egregious
case of unlawful pretrial punishment in Army history. This Court needs to send a message that
an unlawful order to keep a pretrial detainee in the equivalent of solitary confinement for almost
nine months cannot – and will not – be tolerated.
215. In the recently-decided case of United States v. Zarbatany, 70 M.J. 169, 175 (C.A.A.F.
2011), the Court of Appeals for the Armed Forces said, in no uncertain terms, that dismissal is a
potential remedy for Article 13 violations:
Our inquiry does not end there, however. As previously noted, R.C.M. 305(k)
does not limit the availability of other remedies under Article 13, UCMJ. It is
axiomatic, for example, that a court with appropriate jurisdiction may remedy an
ongoing Article 13, UCMJ, violation through the writ of habeas corpus. No
doubt, additional credit under R.C.M. 305(k) is a remedy for violations of Article
13, UCMJ. Indeed, it is a normative remedy and one that has been expressly
endorsed in the rules. But this Court has never held that R.C.M. 305(k) is the
exclusive remedy for Article 13, UCMJ, violations. To the contrary, our case law
explicitly recognizes that certain circumstances may warrant other relief. In
Crawford, for example, we said that “[w]here we find that maximum custody was
arbitrary and unnecessary to ensure an accused’s presence for trial, or unrelated to
the security needs of the institution, we will consider appropriate credit or other
relief to remedy this type of violation of Article 13, UCMJ.” Prior case law has
recognized that “other relief” for Article 13, UCMJ, violations may range from
disapproval of a bad-conduct discharge, to complete dismissal of the charges,
depending on the circumstances. It follows that if a court can dismiss a charge in
response to violations of Article 13, UCMJ, as in Nelson, a court can do
something less by setting aside a discharge.
Therefore, we reiterate this Court’s prior holdings, that although R.C.M. 305(k) is
the principal remedy for Article 13, UCMJ, violations, courts must consider other
relief for violations of Article 13, UCMJ, where the context warrants.
Id. (citations omitted). See also United States v. Fulton, 52 M.J. 767, 769 (A. F. Ct. Crim. App.
2000)(“We conclude that where no other remedy is appropriate, a military judge may, in the
interest of justice, dismiss charges because of unlawful pretrial punishment, which violates
Article 13”).
216. In Zarbatany, the Court of Appeals for the Armed Forced emphasized that relief under
Article 13 must be “meaningful.”
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
106
This Court first addressed the question of whether meaningful relief is required
for violations of Article 13, UCMJ, in Nelson …. In Nelson, the appellant pled
guilty to various violations of the UCMJ, including unauthorized absence,
violating a lawful general order, possession of marijuana, and breach of
restriction, and was sentenced to a bad-conduct discharge, forfeiture of all pay and
allowances, confinement at hard labor for six months, and reduction to E–1. The
appellant was placed in pretrial confinement under circumstances
indistinguishable from those of adjudged and sentenced inmates including
identical indoctrination, dress, living, eating, and labor requirements. This Court
reversed the board of review, holding that the appellant’s pretrial confinement
conditions constituted pretrial punishment in violation of Article 13, UCMJ, and
due process. The appellant having already served his sentence, the only
unexecuted portion of the sentence was the punitive discharge. The appellant
requested relief in the form of dismissal of the charges and specifications.
Although the court recognized that the board of review was the proper authority
for reassessing the appropriateness of the sentence, the Court nonetheless
concluded that “modification of the sentence is in order.” Specifically, the Court
held:
Under these circumstances, were we simply to return the case to
the board of review for reassessment of the sentence, we would
thereby imply that the bad-conduct discharge may be affirmed.
Such a course would deprive the accused of all meaningful relief,
and would rightly suggest that this Court is prepared to wink at
such grossly illegal treatment of men in pretrial confinement. The
disastrous effects of such a situation upon the system of military
justice itself are so manifest as to require us to eliminate that
possibility.
Since Nelson, this Court has sought to “ensure meaningful relief in all future
cases” involving violations of Article 13, UCMJ. However, as in the context of
appellate due process delay, the question of what relief is due to remedy a
violation, if any, requires a contextual judgment, rather than the pro forma
application of formulaic rules. Whether meaningful relief has been granted and
should be granted will depend on factors such as the nature of the Article 13,
UCMJ, violations, the harm suffered by the appellant, and whether the relief
sought is disproportionate to the harm suffered or in light of the offenses for
which the appellant was convicted.
In light of these cases, we conclude that meaningful relief for violations of Article
13, UCMJ, is required …
Id. (citations omitted).
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
107
217. The Defense believes that simple “X-for-1” credit does not remedy the egregious
punishment to which PFC Manning was subjected for almost nine months at Quantico and which
sparked both domestic and international outrage. An award of pretrial sentencing credit would
simply permit Brig officials, now and in the future, to punish soldiers with absolute impunity.
From the Brig’s perspective, if a soldier is facing a high enough sentence (e.g. life in prison)
there is no reason not to subject the soldier to Article 13 punishment. In PFC Manning’s case,
assume that the Government could prove its case and that PFC Manning were to be sentenced to
life in prison, without the possibility of parole. Assume further that PFC Manning was subjected
to 258 days of illegal pretrial punishment
26
for which he was awarded 3-for-1 credit (amounting
to 774 days). Where would this leave him? In the exact same position that he would be in
without the sentencing credit. In other words, as long as a solider is charged with very serious
crimes, there is no disincentive for Brig officials to refrain from imposing punishment prior to
adjudication.
218. One might argue that Brig officials will refrain from illegally punishing accuseds because
they, themselves, might face consequences for subjecting soldiers to Article 13 punishment. The
Defense is not aware of any case where confinement officials were called to task for imposing
Article 13 punishment on a pretrial detainee. In fact, in United States v. Anderson 49 M.J. 575
(N-M. Ct. Crim. App. 1998), the Court learned of an unwritten Marine policy which per se
amounted to unlawful pretrial punishment and, in a footnote, the court encouraged those
involved “in the administration of Navy and Marine Corps brigs” to “ensure that decisions
whether to place pretrial confines in a maximum-custody status are based on all relevant
factors.” Id. This footnote hardly screams outrage.
219. This is not the message that we want to send – either to those who punish soldiers
unlawfully, or to those soldiers who are unlawfully punished. To allow the deplorable actions of
those at Quantico (not to mention those who turned a blind eye to those actions) to go unchecked
would make an absolute mockery of the constitutional protections which PFC Manning should
be afforded. Article 13 provides that “No person, while being held for trial, may be subjected to
punishment or penalty other than arrest or confinement upon the charges pending against him,
nor shall the arrest or confinement imposed upon him be any more rigorous than the
circumstances require to insure his presence.” This is a codification of the constitutional
protection that PFC Manning enjoys by virtue of the Fifth Amendment Due Process Clause. Bell
v. Wolfish, 441 U.S. 520 (1979). The clause provides that a person shall not be “deprived of life,
liberty, or property, without due process of law.” The Due Process Clause does not provide that
one can permissibly be deprived of such liberty, so long as a military judge tacks on some
illusory credit when sentencing an accused. Confinement officials do not get to trammel on an
accused’s constitutional rights and “buy” their way out of it through judge-imposed sentencing
credit. If the constitutional protection against pretrial punishment is to mean anything, then all
charges again PFC Manning must be dismissed with prejudice.
26
The Defense concedes that PFC Manning’s initial classification in MAX and under Suicide Risk could have been
legitimate based on information known by the Brig at the time. However, continuing to hold PFC Manning in
Suicide Risk after 6 August 2010, in contravention of the mental health provider’s recommendation, amounted to
pretrial punishment.
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
108
220. In this case, PFC Manning personally and through his counsel complained for over eight
months about the draconian conditions of PFC Manning’s confinement. The Government in this
case did nothing about it. In late November 2010, the Government contacted the Brig about the
following:
Defense has made a request that PFC Manning’s status be reduced from POI to
some other status where he is able to have more time outside or workout in his
cell. My understanding is that his status determination is made based upon a list
of factors including his charges, mental health and behavior. Since the Defense
has made this request to lower his status it is something that we have to at least
address. Is there a lesser level of POI that PFC Manning could be moved to. If
the recommendation of the Brig personnel is to have him remain on POI that is
fine, we just need to have it addressed to the Defense counsel.
See Attachment 35.
221. The Government’s request shows that the Government could not care less whether PFC
Manning was actually removed from POI status (“If the recommendation of the Brig personnel is
to have him remain on POI that is fine”); it just wanted to protect itself against an Article 13
claim. This is further evidenced when the Government states:
The defense counsel is concerned about PFC Manning’s mental and physical
health in relation to his small amount of time outside. In order to combat any
potential Article 13 issues I would like to get a copy of the logs that show when
PFC Manning went outside and how long he stayed there. I know that he usually
gets 20 minutes daily but I need to have the logs to show that.”
Id. Far from trying to remedy the situation and uphold PFC Manning’s constitutional rights, the
Government was simply looking for documentation that could be used to “combat any potential
Article 13 issues.” Id.
222. Not only did the Government not do anything about it, nobody did anything about it. The
Staff Judge Advocate’s Office did nothing about it; the Quantico confinement facility did
nothing about it; **Redacted**did nothing about it; **Redacted**did nothing about it; *****
**Redacted**did nothing about it; **Redacted**did nothing about it. How an American soldier
could be left to languish in solitary confinement for nine months is incomprehensible. This case
has given American justice, and military justice in particular, a bad name.
223. In United States v. Fulton, 55 M.J. 88, 90-91 (C.A.A.F. 2001), Chief Justice Crawford
stated:
A court should not use its supervisory authority to impose extraordinary remedies
to vindicate wrongs unless the person allegedly wronged has sought, and failed to
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
109
obtain, reasonable, remedial relief through, e.g., command channels, either
directly or under Article 138, UCMJ, 10 USC § 938; the Inspector General’s
Office; or the Chaplaincy. If the command and staff offices have turned a blind
eye toward an egregious situation, dismissal of court-martial changes would be
warranted as an extraordinary measure.
The quote could not be more apt if spoken about the instant case. Here, PFC Manning had
repeatedly sought remedial relief through every avenue available for a period of eight months.
Everyone involved “turned a blind eye toward an egregious situation.” Id. This Court cannot
also turn a blind eye toward this egregious situation. Accordingly, dismissal is available as an
appropriate remedy; indeed, the Defense submits it is the only appropriate remedy. See also
United States v. Zarbatany, 70 M.J. 169, 172 (C.A.A.F. 2011)(finding illegal pretrial punishment
where “specific complaints … should have put the commander on notice that [the accused] was
being illegally punished [but] he didn’t care because he thought the punishment was appropriate
for the crimes he had done – overcoming the accused’s presumption of innocence.”).
224. To the extent that this Court does not believe that dismissal of all charges with prejudice is
an appropriate remedy (which the Defense submits that it is), the Defense asks that this Court
award at least 10-for-1 credit for the egregious Article 13 violations outlined above. In addition,
the Defense requests that, depending on PFC Manning’s forum selection, this Court also
consider the illegal pretrial punishment in fashioning an appropriate sentence. In United States v.
Fulton, 52 M.J. 767 (A. F. Ct. Crim. App. 2000), the military judge found that there had been
105 days of illegal pretrial punishment. He determined that he would “factor in [the illegal
pretrial punishment] facts and determine an appropriate sentence” and he would order credit for
the punishment endured.
225. That at least 10-for-1 credit is warranted is supported by United States v. Zarbatany, 70
M.J. 169 (C.A.A.F. 2011). In that case, the accused was in “virtual lockdown” status for a
period of 119 days while in pretrial confinement. The accused was denied access to mental
health counseling, despite repeated requests. The military judge ultimately awarded 4-for-1
credit, but noted that “the court is very tempted to provide ten-for-one credit solely on the mental
health issue considering this installation’s notice of the seriousness of the mental health issues.”
In Zarbatany, the 4-for-1 credit proved to be “meaningful relief” since the accused was only
sentenced to confinement for six months (and thus, the confinement credit exceeded his
sentence). See United States v. Zarbatany, 2012 WL 215865 (A. F. Ct. Crim. App.); See also
United States v. Tilghman, 44 M.J. 493 (C.A.A.F. 1996)(awarding ten-for-one credit for illegal
pretrial confinement in contravention of judge’s order).
226. In the instant case, the Defense submits that, if this Court is not inclined to dismiss the
charges, confinement credit of at least 10-for-1 must be applied against any potential sentence.
PFC Manning was held in “virtual lockdown” for more than double the length of time of the
accused in Zarbatany. Like in Zarbatany, the Brig repeatedly ignored serious mental health
concerns – that continuing to hold PFC Manning in the equivalent of solitary confinement was
detrimental to his mental health. The remedy in Zarbatany meant that the accused was
United States v. PFC Bradley E. Manning
Defense Article 13 Motion
110
immediately released from pretrial confinement upon his conviction. Likewise, any remedy
crafted by the Court here must also provide meaningful relief – which the Defense submits
would consist of considering the Article 13 issue in sentencing (if PFC Manning proceeds judge
alone) and awarding at least 10-for-1 credit.
CONCLUSION
227. In light of the foregoing, the Defense requests this Court dismiss all charges with prejudice
owing to the flagrant violation of PFC Manning’s constitutional right to not be punished prior to
trial. Should this Court determine that dismissal is not an appropriate remedy, the Defense
requests meaningful relief in the form of at least 10-for-1 sentencing credit for the 258 days PFC
Manning inappropriately spent in the equivalent of solitary confinement and, if PFC Manning
elects to proceed judge-alone, consideration of the unlawful pretrial punishment issue in
sentencing.
Respectfully submitted,
DAVID EDWARD COOMBS
Civilian Defense Counsel

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