tagged w/ Military Justice
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Psychologists group deplores 'brutality' of Bradley Manning's prison conditions!
Rights advocates, government watchdogs and supporters of alleged WikiLeaks whistleblower Bradley Manning say they're becoming increasingly alarmed that the conditions under which the 22-year-old Army private is being held could amount to torture.
In the latest public pronouncements calling attention to Manning's plight, the Psychologists for Social Responsibility this week sent an open letter to Defense Secretary Robert Gates saying it is "deeply concerned" about Manning's confinement conditions at a military prison at Quantico, Va.
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"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," the group said. "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."
The letter deplores the "needless brutality" of Manning's conditions and says they undermine 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," the letter said. "Thus, such harsh conditions are counter to the interests of justice."
A Quantico prison spokesman denied that Manning is being treated unduly harshly. "Pfc. Manning is not being treated any differently than any other maximum-custody detainee in the brig," Lt. Brian Villiard told msnbc.com on Thursday.
According to his lawyer, David E. Coombs, Manning has been held in maximum custody under a "prevention of injury" watch at the Marine Corps brig at Quantico since July, when he was charged with disclosing classified U.S. information. The military suspects Manning downloaded and leaked a video purportedly showing U.S. helicopters firing on civilians in Iraq on July 12, 2007.
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The U.S. military also suspects him of being the source of the leak of hundreds of thousands of diplomatic cables and other government documents to WikiLeaks, though no charges have been filed in that case.
Coombs says Manning is confined in a 6-by-12-foot cell with a bed, a drinking fountain and a toilet for about 23 hours a day. On a " typical day," he is awakened at 5 a.m. and is not allowed to sleep between 5 a.m. and 8 p.m.; if he tries to sleep during those hours, guards will make him sit up or stand. He eats all his meals in his cell. He is allowed one hour of "exercise" daily outside his cell, consisting of walking in figure eights in an empty room, according to Coombs. When he goes to sleep, he is required to strip down to his boxer shorts and give his clothing to the guards. He is not allowed to have any personal items in his cell.
Story: U.S. tells agencies: Watch 'insiders' to prevent new WikiLeaks
Coombs has said that Manning's confinement conditions amount to punishment, even though he has yet to go to trial.
David House, a 23-year-old MIT researcher who has visited Manning several times at Quantico, contends that because Manning is under a "prevention of injury" watch, he is subjected to conditions "far beyond" other maximum-custody prisoners at the brig.
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"Over the course of my visits to see Bradley in Quantico, it’s become increasingly clear that the severe, inhumane conditions of his detention are wearing on Manning. The extraordinary restrictions of Manning’s basic rights to sleep, exercise, and communicate under the Prevention of Injury order are unnecessary and should be lifted immediately," House wrote in a recent blog post.
The United Nations' top anti-torture envoy, Manfred Nowak, is looking into a complaint that the Army private is being mistreated in custody, his office confirmed late last month.
'Treated equally'
Villiard, the Quantico spokesman, denied that Manning is in "solitary confinement" and said his conditions are no different than the brig's other maximum custody detainees. All detainees at Quantico, like Manning, are either awaiting or undergoing trial.
"He lives in his own cell. He’s allowed to converse with other detainees if he chooses to do so," Villiard said, noting that the layout of the brig is such that detainees can hear but can't see each other.
"He is treated equally across the board as it relates to other detainees," Villiard said. "It’s a brig. I’m not a qualified person to talk about what is torture and what is not. It’s a military brig and it’s not being run any differently than any other military brig."
He said Manning receives "regular visits from both medical and psychological providers" to ensure his well-being.
The Washington Times reported Tuesday that the Army is assembling a special board to evaluate Manning's mental state.
Army spokesman Lt. Col. Robert Manning, no relation to Bradley Manning, told the newspaper that no further legal proceedings will happen until a recommendation is made on his fitness to stand trial.
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Bradley Manning's supporters and rights advocates have urged citizens to contact Quantico and ask that the restrictions of the "prevention of injury" order be lifted.
Villiard said Quantico has received "a good number" of phone calls from concerned citizens about Manning. He said most of them are relieved when base officials explain that Manning is not being treated any differently than other detainees.
"There’s nothing going on here that the Marine Corps has any reason to be concerned about and there's no reason for the civilian community to be concerned about, either," Villiard said.Psychologists group deplores 'brutality' of Bradley Manning's prison... more
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03 january 2011
Motion to Dismiss for Lack of Speedy Trial
The Sixth Amendment right to a speedy trial is applied to military jurisprudence through two separate and distinct provisions-- Rule for Court-Martial (R.C.M.) 707 and Article 10 of the Uniform Code of Military Justice (UCMJ) (10 U.S.C. § 810). While both provisions seek to protect the same constitutional right, and while there is considerable overlap between the two, each provision has separate rules regarding when the protections attach and when they are breached.
Whether stemming from R.C.M. 707 or from Article 10 UCMJ, a motion to dismiss for lack of a speedy trial must be raised before the court-martial is adjourned, and it is waived by a guilty plea, as provided in R.C.M. 907(b)(2)(A) and 905(e). Once the issue is raised, the burden of persuasion rests with the government. R.C.M. 905(c)(2)(B). Before hearing on the motion, the parties may stipulate as to undisputed facts and dates of relevant pretrial events. The stipulation will provide the court a chronology detailing the processing of the case. R.C.M. 707(c)(2).
R.C.M. 707
R.C.M. 707 provides that charges against an accused must be dismissed if they are not brought to trial within 120 days of the earlier of preferral, pretrial confinement, or recall to active duty under R.C.M. 204. Arraignment equals trial under R.C.M. 904. The date the charge is preferred, pretrial restraint is imposed, or on which the accused is called to active duty does not count toward the 120 days. The date the accused is brought to trial does count. If the accused is released from pretrial confinement for a “significant period,” the time period runs from the earlier of preferral or re-imposition of restraint. United States v. Reynolds, 36 M.J. 1128 (A.C.M.R. 1993). A lesser form of restriction may be considered to be a release from confinement.
If charges are dismissed or a mistrial is granted, the speedy trial clock is reset to begin on; date of dismissal in cases where the accused remains in pretrial restraint; date of mistrial, or; earlier of re-preferral or imposition of restraint for all other cases. R.C.M. 707(b)(3)(A), United States v. Bolado, 34 M.J. 732 (N.M.C.M.R. 1991); aff’d, 36 M.J. 2 (C.M.A. 1992). If there is no re-preferral and the accused remains in pretrial confinement, then the time period starts the date the charges are dismissed or a mistrial is declared. If a rehearing is ordered or authorized by an appellate court, then there is a new 120-day period. See United States v. Becker, 53 M.J. 229 (C.A.A.F. 2000) (applying R.C.M. 707 timing requirements to a sentence rehearing but finding that remedy of dismissal of charges too severe).
A commander can dismiss charges even if there is an intent to re-institute charges at a later date. Dismissal of charges cannot, however, be a subterfuge to avoid the 120 day speedy trial clock. United States v. Robinson, 47 M.J. 506 (N.M.C.C.A. 1997). Factors courts will consider to decide if a dismissal is a subterfuge are: Convening Authority's intent, notice and documentation of action, restoration of rights and privileges of accused, prejudice to accused, and whether there were any amended or additional charges. See also United States v. Anderson, 50 M.J. 447 (C.A.A.F. 1999), wherein CAAF finds no subterfuge under the facts of the case and declares, contrary to the Government’s concession, that the speedy trial clock was restarted on the date of dismissal. Withdrawal by a commander under R.C.M. 604, however, does not toll running of speedy trial clock. United States v. Weatherspoon, 39 M.J. 762 (A.C.M.R. 1994); See United States v. Tippit, 65 M.J 69 (C.A.A.F. 2007) (based upon the SJA’s advice, the Special Court-Martial Convening Authority (SPCMCA) signed a withdrawal of charges – C.A.A.F. honored the SPCMCA intent to dismiss the charges despite the misnomer and found no violation of R.C.M. 707).
Some delays are excludable from the 120-day limit under R.C.M. 707. All periods of time during which appellate courts have issued stays in the proceedings, or the accused is hospitalized due to incompetence, or is otherwise in the custody of the Attorney General are excluded from the 120-day limit. If after commitment under R.C.M. 909(f), the accused is returned from the custody of the Attorney General to the custody of the general court-martial convening authority, a new 120-day time period begins upon such return.
Any pretrial delays granted by the convening authority before referral or by the military judge after referral are excluded. United States v. Lazauskas, 62 M.J. 39 (C.A.A.F. 2005). The convening authority may delegate the power to grant continuances to an Article 32 investigating officer. The Manual for Courts-Martial (M.C.M.) discussion of R.C.M. 707(c)(1) lists examples of when a pretrial delay might be granted. These include the need for: time to enable counsel to prepare for trial in complex cases; time to allow examination into the mental capacity of the accused; time to process a member of the reserve component to active duty for disciplinary action; time to complete other proceedings related to the case; time requested by the defense; time to secure the availability of the accused, substantial witnesses, or other evidence; time to obtain appropriate security clearances for access to classified information or time to declassify evidence; or additional time for other good cause.
Go to full article:
http://www.armycourtmartialdefense.info/2011/01/motion-to-dismiss-for-lack-of-speedy.html03 january 2011
Motion to Dismiss for Lack of Speedy Trial
The Sixth Amendment... more
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Hasan likely suffered from secondary PTSD (Post Traumatic Stress Disorder) in listening to the many troops' horrid stories of war as they came to him after returning from war. Fort Hood Private Michael Kern who knew of Hasan tells of his own problems dealing with his killing a child, and how stories like this had to effect Hasan.
Watch the video: http://www.democracynow.org/2009/11/9/when_the_war_comes_homes_iraq
Hasan had tried in vain to leave the military but there was no way once you are deployed as the private says.
Hasan's cousin tells Amy Goodman, "About a week before the incident, he hired a lawyer in order to leave the Army, get married, and live his life. But they rejected his request and asked him to go to Afghanistan. This was the biggest shock for him. So, there’s another reason why he did what he did, not just because of the harassment of the soldiers. There is another reason."
An independent journalist and author Dahr Jamail describes how the military pressures troops to "suck it up" and not admit to any PTSD, which indicates the problem is a "rampant problem." According to Jamail, "And even those that do get help and go get treatment, they find themselves being put back into action anyway. As of last year, more than 43,000 soldiers already listed as medically unfit to be deployed were deployed anyway. We have a situation right now in Iraq where 12 percent of combat troops in Iraq, and then over in Afghanistan 17 percent of combat troops in Afghanistan, are already on psychotropic meds to help them sleep at night and because they have PTSD and severe depression. And this is just that we know of. So, they’re encouraged not to talk about it, not to get help. And then when they do, they simply don’t tend to get the treatment that they need."
Private Kern went on to say that he didn't think anyone at Ft. Hood saw Hasan's religion as the problem, "And even those that do get help and go get treatment, they find themselves being put back into action anyway. As of last year, more than 43,000 soldiers already listed as medically unfit to be deployed were deployed anyway. We have a situation right now in Iraq where 12 percent of combat troops in Iraq, and then over in Afghanistan 17 percent of combat troops in Afghanistan, are already on psychotropic meds to help them sleep at night and because they have PTSD and severe depression. And this is just that we know of. So, they’re encouraged not to talk about it, not to get help. And then when they do, they simply don’t tend to get the treatment that they need.:
Hasan's lawyer requested he not be interrogated until further investigation and doubts there can be a fair trial in light of Obama's Tuesday visit and public statement made by the post commander.
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Retired Col. John P. Galligan said he was contacted Monday by Maj. Nidal Malik Hasan's family and was headed to an Army hospital in San Antonio to meet Hasan.
"Until I meet with him, it's best to say we're just going to protect all of his rights," Galligan said. "There's a lot of facts that still need to be developed, and the time for that will come in due course."
"You've got his commander in chief showing up tomorrow," Galligan said. "That same kind of publicity naturally creates an issue as to whether you find a fair and impartial forum, whether that's in the military or even if it were in a federal forum."
Hasan, 39, is accused of opening fire on the Army post on Thursday, killing 13 people and wounding 29 before civilian police shot him in the torso. He was taken into custody and eventually moved to Brooke Army Medical Center, where he was in stable condition Monday and able to talk, hospital spokesman Dewey Mitchell said.
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But Hasan has not yet been charged. Meanwhile the AP reports that a 9/11 terrorist contact praised Hasan's actions, which exacerbates the widespread hatred toward Hasan and is exactly the kind of reporting that makes for this issue of him being unable to get a fair trail.
http://www.google.com/hostednews/ap/article/ALeqM5ihGepAkECGoDagETVBMpPb3w7Y3gD9BS96PO2
Military justice experts agree that this trial will be a long complicated proceeding. His physical and mental health will first have to be evaluated and will likely cause a delay of many months. He will be tried under the military justice system, not civilian law, unless there are findings that he was operating as an international terrorist, in which case he'll be transferred for federal prosecution under ant-terrorism laws.
If he remains in military custody it's unlikely he'll get the death penalty since the military justice system's lengthy appeals process has effectively thwarted all executions since 1961.
Hasan has not yet been charged with any crime either civilian or military. Richard Durbin, chief of the criminal section for the U.S. Attorney's Office in San Antonio declined to comment on Sunday.
Because of the high publicity the Army will offer his defense a "wide latitude."
The Houston Chronicle reports the following:
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“We're in for a long haul,” said Scott L. Silliman, a retired career JAG officer in the Air Force who now directs Duke University Law School's Center on Ethics and National Security....
What's likely to occur is a court-martial under Article 2 of the Uniform Code of Military Justice, to punish offenses allegedly committed by a man wearing a U.S. military uniform against other military personnel on a military base. The Army's Criminal Investigation Division is responsible for recommending charges, prompting the military equivalent of a grand jury, known as an Article 32 hearing, where both prosecutors and defense can present evidence.
Those results would be reviewed by base commander Cone, who would decide whether to convene a court-martial. The 12-person jury would be composed of officers higher in rank than Hasan – lieutenant colonels and above.
Under the rules of military justice, Hasan is permitted to have a lawyer present during interrogation, but former military lawyers say that the Army psychiatrist cannot be questioned by Army Criminal Investigation Division agents until doctors formally deem him medically and mentally able.
“A doctor would have to certify that the suspect is competent to decide whether to remain silent, speak to investigators or ask for a lawyer,” Silliman said. “He would have to be able to make an intelligent and informed decision before waiving any of his rights.”
....One military justice expert also predicted that an insanity defense is unlikely. Silliman said the standard for an insanity defense under the Uniform Code of Military Justice is that the suspect “cannot comprehend the wrongfulness of his actions.”
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Hasan's family demands that he be allow to speak to a lawyer before investigators or any mental health evaluation.
The Chronicle also reports that the trial will likely be moved from the Ft. Hood location because of the "climate" there and the large number of local victims.
Image: Kileen prepares for Obama's visit Tuesday
http://www.chron.com/disp/story.mpl/nation/6710592.htmlHasan likely suffered from secondary PTSD (Post Traumatic Stress Disorder) in... more
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