From Bradley Manning’s lawyer Lieutenant Colonel David Coombs:
On March 1, 2011, the Quantico Base Commander, Colonel Daniel J. Choike, denied PFC Manning’s request to be removed from Prevention of Injury Watch and to have his custody classification reduced from Maximum to Medium Detention-In. The defense filed the following rebuttal to Colonel Choike’s response. Colonel Choike will now complete his action on the Article 138 complaint, and then forward the proceedings to the Secretary of the Navy, Ray Mabus, for his final review. If Secretary Mabus denies PFC Manning’s requested relief, the defense will file a Writ of Habeas Corpus to the Army Court of Criminal Appeals.
REBUTTAL TO COMPLAINT OF WRONGS UNDER ARTICLE 138 UCMJ BY PRIVATE FIRST CLASS BRADLEY MANNING U.S. ARMY
- 11 pages
- March 10, 2011
(1) On 18 January 2011, over the recommendation of Capt. Hocter and the defense forensic psychiatrist, Capt. Moore, CWO4 Averhart placed me under Suicide Risk. The Suicide Risk assignment resulted in me being required to remain in my cell for 24 hours a day. I was stripped of all clothing with the exception of my underwear. My prescription eyeglasses were taken away from me and I was forced to sit in essential blindness.
(2) The basis for the above treatment was due to my alleged erratic behavior on 18 January 2011. On that date, I was pulled out of my cell for my one hour of recreation call. When the guards came to my cell, I 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 me. The first guard told me to “turn left.” When I complied, the second guard yelled “don‟t turn left.” When I attempted to comply with the demands of the second guard, I was told by the first, “I said turn left.” I responded “yes, Corporal” to the first guard. At this point, the third guard chimed in by telling me that “in the Marines we reply with „aye‟ and not „yes.‟” He then asked me if I understood. I made the mistake of replying “yes, Sergeant.” At this point the forth guard yelled, “you mean „aye,‟ Sergeant.”
(3) The harassment by the guards continued as I was escorted to my one hour of recreation. When I arrived at the recreation room, I was told to stand still so they could remove my leg restraints. As I stood still, one of the guards yelled “I told you to stand still.” I 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?” I responded “aye Sergeant.” Right after I replied, I was once again yelled at to “stand still.” Due to being yelled at and the intensity of the guards, I mistakenly replied, “yes Corporal, I am standing still.” As soon as I said this, I attempted to correct myself by saying “aye” instead of “yes,” but it was too late. One of the guards starting yelling at me again, “what don‟t you understand” and “are we going to have a problem?”
(4) Once the leg restraints were taken off of me, I took a step back from the guards. My heart was pounding in my chest, and I could feel myself getting dizzy. I sat down to avoid falling. When I did this, the guards took a step towards me. I instinctively backed away from them. As soon as I backed away, I could tell by their faces that they were getting ready to restrain me. I immediately put my hands up in the air, and said “I am not doing anything, I am just trying to follow your orders.” The guards then told me to start walking. I complied with their order by saying “eye” instead of “yes.”
(5) I was allowed to complete my hour of recreation. During the hour, the guards did not harass me further. The guards also did not harass me when I was escorted back to my cell. Only later did I learn that there had been a protest outside the gates of Quantico the previous day. (See http://www.youtube.com/watch?v=x4eNzokgRIw). The rally was intended to bring attention to the conditions of my confinement. It is my belief that my treatment on 18 January 2010 by the guards and later by the PCF Commander was related to this protest and my earlier complaints.
(6) After being returned to my cell, I started to read a book. About 30 minutes later, the PCF Commander, CWO4 James Averhart, came to my cell. He asked me what had happened during my recreation call. As I tried to explain to him what had occurred, CWO4 Averhart stopped me and said “I am the commander” and that “no one could tell him what to do.” He also said that he was, for all practical purposes, “God.” I responded by saying “you still have to follow Brig procedures.” I also said “everyone has a boss that they have to answer to.” As soon as I said this, CWO4 Averhart ordered that I be placed in Suicide Risk Status.
(9) CWO4 Averhart placed me on Suicide Risk, over the recommendation of Capt. Hocter and the defense forensic psychiatrist, Capt. Moore. His decision was also in violation of Secretary of Navy Instruction (“SECNAVINST”) 1649.9C Paragraph 4205.5d. As a result of being placed on Suicide Risk, I was confined to my cell for 24 hours a day. I was also stripped of all clothing with the exception of my underwear. Additionally, my prescription eyeglasses were taken away from me. Due to not having my glasses, I was forced to sit in essential blindness during the day. I remained on Suicide Risk until 21 January 2010. The determination to place me on Suicide Risk was without justification and therefore constitutes unlawful pretrial punishment.
c. That the decision to strip me of all my clothing at night since 2 March 2011 was and continues to be improper.
(1) On March 2, I was informed of your decision regarding my Article 138 complaint. Understandably frustrated by this decision after enduring over seven months of unduly harsh confinement conditions, I asked the Brig Operations Officer, MSG Papakie, what I needed to do in order to be downgraded from Maximum Custody and POI Status. MSG Papakie responded by telling me that there was nothing I could do to downgrade my detainee status and that the Brig simply considered me a risk of self-harm. Out of frustration, I responded that the POI restrictions were absurd and sarcastically told him if I really wanted to harm myself, that I could conceivably do so with the elastic waistband of my underwear or with my flip-flops.
(2) Later that same day, I was approached by GYSGT Blenis. He asked me what I had done wrong. I told him that I did not know what he was talking about. He said that I would be stripped naked at night due to something that I had said to MSG Papakie. Shocked, I told him that I hadn‟t said anything. I told GYSGT Blenis that I just pointed out the absurdity of my current confinement conditions.
(3) Without consulting any Brig mental health provider, Chief Warrant Officer Denise Barnes used my sarcastic comment as justification to increase the restrictions imposed upon me under the guise of being concerned that I was a suicide risk. I was not, however, placed under the designation of Suicide Risk. This is because Suicide Risk would have required a Brig mental health provider’s recommendation in order for the added restrictions to continue. While the PCF Commander needed the Brig Psychiatrist’s recommendation to keep me under Suicide Risk, no such recommendation was needed in order to increase my restrictions under POI Status. The conditions of POI Status require only psychiatric input, but ultimately remain the decision of the PCF Commander.
(4) In response to this specific incident, the Brig Psychiatrist met with me. After speaking to me, he assessed me as a “low risk and requiring only routine outpatient follow-up [with] no need for … closer clinical observation.” In particular, he indicated that my statement about the waist band of my underwear was in no way prompted by “a psychiatric condition.”
(5) Since 2 March 2011, I have been stripped of all my clothing at night. I have been told that the PCF Commander intends on continuing this practice indefinitely. Initially, after surrendering my clothing to the Brig guards, I had no choice but to lay naked in my cold jail cell until the following morning. The next morning I was told to get out of my bed for the morning Duty Brig Supervisor (DBS) inspection. I was not given any of my clothing back. I got out of the bed and immediately started to shiver because of how cold it was in my cell. I walked towards the front of my cell with my hands covering my genitals. The guard told me to stand a parade rest, which required me to stand with my hands behind my back and my legs spaced shoulder width apart. I 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 my cell. The DBS looked at me, paused for a moment, and then continued to the next detainee‟s cell. I was incredibly embarrassed at having all these people stare at me naked. After the DBS completed his inspection, I was told to go sit on my bed. About ten minutes later I was given my clothes and allowed to get dressed.
(6) After apparent outside pressure on the Brig due to my mistreatment, I was given a suicide prevention article of clothing called a “smock” by the guards. Although I am still required to strip naked in my cell at night, I am now given the “smock” to wear. At first, I did not want to wear this item of clothing due to how coarse it was and how uncomfortable it felt. However, the Brig now orders me to wear the “smock” at night.
(7) Given the above circumstances, the decision to strip me of my clothing every night for an indefinite period of time is clearly punitive in nature. There is no mental health justification for the decision. I am under 24 hour surveillance, with guards never being more than a few feet away from my cell. I am permitted to have my underwear and clothing during the day, with no apparent concern that I will harm myself during this time period. The determination to strip me of all my clothing every night since 2 March 2011 is without justification and therefore constitutes unlawful pretrial punishment.
4. I have, both by statute and the Eighth Amendment, the right to protection against cruel and unusual punishment. See United States v. Matthews, 16 M.J. 354, 368 (CMA 1983); Article 55, Uniform Code of Military Justice (UCMJ), 10 U.S.C. § 855. The Secretary of the Navy Instruction 1649.9C details the procedures and safeguards for classification of inmates, evaluation of inmates and the limited use of special quarters. The Navy Instruction states “discipline is to be administered on a corrective rather than a punitive basis.” Additionally it states “no persons, while being held for trial may be subjected to punishment or penalty other than arrest or confinement, nor shall the arrest or confinement imposed upon them be any more rigorous than the circumstances require.” My confinement classification and status are in clear contravention of the Navy Instruction.
5. Under my current restrictions, in addition to being stripped at night, I am essentially held in solitary confinement. For 23 hours per day, I sit alone in my cell. The guards checked on me every five minutes during the day by asking me if I am okay. I am required to respond in some affirmative manner. At night, if the guards can not see me clearly, because I have a blanket over my head or I am curled up towards the wall, they will wake me in order to ensure that I am okay. I receive each of my meals in my cell. I am not allowed to have a pillow or sheets. I am not allowed to have any personal items in my cell. I am only allowed to have one book or one magazine at any given time to read. The book or magazine is taken away from me at the end of the day before I go to sleep. I am prevented from exercising in my cell. If I attempt to do push-ups, sit-ups, or any other form of exercise I am forced to stop by the guards. Finally, I receive only one hour of exercise outside of my cell daily. My exercise is usually limited to me walking figure eights in an empty room.