Article 13 and PFC Bradley Manning
The defense has raised the conditions of PFC Bradley Manning’s confinement conditions on multiple occasions with the Quantico confinement facility and the Army Staff Judge Advocate’s (SJA) Office assigned to handle this case. Our efforts, unfortunately, have not resulted any in positive results. To its credit, the SJA office is attempting to correct this situation. However, given the fact that Quantico is a Marine Corps facility, it has similarly had no success.
PFC Bradley Manning, unlike his civilian counterpart, is afforded no civil remedy for illegal restraint under either the Federal Civil Rights Act or the Federal Tort Claims Act. Similarly, the protection from cruel and unusual punishment under the Eighth Amendment and Article 55 of the Uniform Code of Military Justice (UCMJ) does not generally apply prior to a court-martial. Thus, the only judicial recourse that is available is under Article 13 of the UCMJ.
Article 13 safeguards against unlawful pretrial punishment and embodies the precept that an accused is presumed innocent until proven guilty. 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 required to insure his presence, but he may be subjected to minor punishment during that period for infractions of discipline.
Military courts have consistently asserted Article 13 protection broadly to protect servicemembers awaiting trial. Illegal pretrial punishment can take many forms. The most common examples are unreasonable or harassing restraint that creates an appearance that the servicemember is guilty and onerous pretrial confinement conditions. Article 13 provides that pretrial confinement should not be “more rigorous than the circumstances require to insure” the servicemember’s presence at court. “Conditions that are sufficiently egregious may give rise to a permissive inference that an accused is being punished. . . .” United States v. King, 61 M.J. 225, 227-28 (C.A.A.F. 2005); see also United States v. Crawford, 62 M.J. 411 (C.A.A.F. 2006). Arbitrary or purposeless conditions also can be considered to raise an inference of punishment. King, 61 M.J. at 227-28 (citing United States v. James, 28 M.J. 214, 216 (C.M.A. 1989)).
A defense motion for Article 13 credit is generally made before pleas are entered. As such, the first time this issue can be raised is once the case is referred to a court-martial. The issue of whether there is a violation of Article 13 is litigated in a pretrial motion hearing. At this hearing, the defense may call witness and the accused may testify concerning the nature of the pretrial confinement conditions. The defense carries the burden by a preponderance of the evidence to show a violation of Article 13.
If a military judge determines that a servicemember has been illegally punished prior to trial, she has substantial discretion to grant administrative credit, usually in the form of additional pretrial confinement credit, or even grant an outright dismissal of the charges. See, e.g., United States v. Fulton, 55 M.J. 88 (2001) (holding that the military judge has the authority to dismiss charges as a remedy for unlawful pretrial punishment). There is no set formula for calculating the appropriate amount of credit for unlawful pretrial punishment in violation of Article 13, UCMJ. For example, in United States v. Suzuki, the military judge awarded three days credit for every one day of illegal pretrial confinement. 14 M.J. 491 (C.M.A. 1983).
A case that is similar on facts to that of PFC Manning’s is United States v. Avila. 53 M.J. 99 (C.A.A.F. 2000). In Avila, a servicemember raised an Article 13 motion alleging illegal pretrial punishment based upon his pretrial confinement. During the servicemember’s pretrial confinement, by brig policy and based solely on the serious nature of his pending charges, the servicemember was housed in a windowless cell; not allowed to communicate with other pretrial confinees; given only one hour of daily recreation; made to wear shackles outside of his cell, and only allowed to see visitors separated by a window. The CAAF agreed with the lower court’s holding that the brig policy of assigning all pretrial confinees facing a possible sentence of five or more years to maximum (solitary) confinement was unreasonable. The court ordered an additional 140 days of pretrial confinement credit due to the violation of Article 13.
Based upon the facts of this case, the defense will file an Article 13 motion at the appropriate time. Until that time, we will continue to work through military channels and the SJA office to remove the harsh conditions of confinement.