David Coombs

Bradley Manning’s Sentence, Parole and Appeal Implications

CryingJusticeOn Monday I laid out the dynamics that would be in play for the court in considering what sentence to give Bradley Manning in light of both the trial evidence and testimony, and that presented during the sentencing phase after the guilty verdict was rendered. Judge Lind has entered her decision, and Bradley Manning has been sentenced to a term of 35 years, had his rank reduced to E-1, had all pay & allowances forfeited, and been ordered dishonorably discharged. This post will describe the parole, appeal and incarceration implications of the sentence just imposed.

Initially, as previously stated, Pvt. Manning was credited with the 112 days of compensatory time awarded due to the finding that he was subjected to inappropriate pre-trial detention conditions while at Quantico. Pvt. Manning was credited with a total 1294 days of pre-trial incarceration credit for the compensatory time and time he has already served since the date of his arrest.

Most importantly at this point, Manning was sentenced today to a prison term of 35 years and the issue of what that sentence means – above and beyond the credit he was given both for compensatory time and time served – is what is critical going forward. The following is a look at the process, step by step, Bradley Manning will face.

The first thing that will happen now that Judge Lind has gaveled her proceedings to a close is the court will start assembling the record, in terms of complete transcript, exhibits and full docket, for transmission to the convening authority for review. It is not an understatement to say that this a huge task, as the Manning record may well be the largest ever produced in a military court martial. It will be a massive undertaking and transmission.

At the same time, the defense will start preparing their path forward in terms of issues they wish to argue. It is my understanding that Pvt. Manning has determined to continue with David Coombs as lead counsel for review and appeal, which makes sense as Coombs is fully up to speed and, at least in my opinion, has done a fantastic job. For both skill and continuity, this is a smart move.

The next step will be designation of issues to raise for review by the “convening authority”. In this case, the convening authority is Major General Jeffrey Buchanan, who heads, as Commanding General, the US Army’s Military District of Washington. This step is quite different than civilian courts, where a defendant proceeds directly to an appellate court.

The accused first has the opportunity to submit matters to the convening authority before the convening authority takes action – it’s not characterized as an “appeal,” but it’s an accused’s first opportunity to seek relief on the findings and/or the sentence. According to the Manual for Courts-Martial, Rule for Court-Martial 1105:

(a) In general. After a sentence is adjudged in any court-martial, the accused may submit matters to the convening authority in accordance with this rule.

(b) Matters which may be submitted.
(1) The accused may submit to the convening au­ thority any matters that may reasonably tend to af­ fect the convening authority’s decision whether to disapprove any findings of guilty or to approve the sentence. The convening authority is only required to consider written submissions.
(2) Submissions are not subject to the Military Rules of Evidence and may include:
(A) Allegations of errors affecting the legality of the findings or sentence;
(B) Portions or summaries of the record and copies of documentary evidence offered or intro­ duced at trial;
(C) Matters in mitigation which were not avail­ able for consideration at the court-martial; and
(D) Clemency recommendations by any mem­ber, the military judge, or any other person. The defense may ask any person for such a recommendation.

Once the convening authority has the full record and the defense has designated its matters for review, Buchanan will perform his review and determine whether any adjustments to the sentence are appropriate, and that will be considered the final sentence. At this point, the only further review is by a traditional appeal process.

Generally, the level of appellate review a case receives depends on the sentence as approved by the Continue reading

The Bradley Manning Sentencing Dynamics

U.S. Army Private First Class Bradley Manning stands convicted of crimes under the Uniform Code of Military Justice (UCMJ). The convictions result from two events. The first was a voluntary plea of guilty by Pvt. Manning to ten lesser included charges in February, and the remainder from a verdict of guilty after trial entered by Judge Denise Lind on July 30.

The maximum possible combined sentence originally stood at 136 years for the guilty counts, but that was reduced to a maximum possible sentence of 90 years after the court entered findings of merger for several of the offenses on August 6. The “merger” resulted from the partial granting of a motion by Mr. Manning’s attorney arguing some of the offenses were effectively the same conduct and were therefore multiplicitous. The original verdict status, as well as the revised verdict status after the partial merger of offenses by the court, is contained in a very useful spreadsheet created by Alexa O’Brien (whose tireless coverage of the Manning trial has been nothing short of incredible).

Since the verdict and merger ruling, there have been two weeks of sentencing witnesses, testimony and evidence presented by both the government and defense to the court. It is not the purpose of this post to detail the testimony and evidence per se, but rather the mechanics of the sentencing process and how it will likely be carried out. For detailed coverage of the testimony and evidence, in addition to Alexa O’Brien, the reportage of Kevin Gosztola at FDL Dissenter, Julie Tate at Washington Post, Charlie Savage at New York Times and Nathan Fuller at the Bradley Manning Support Network has been outstanding.

All that is left are closing arguments and deliberation by Judge Lind on the final sentence she will hand down. So, what exactly does that portend for Bradley Manning, and how will it play out? Only Judge Lind can say what the actual sentence will be, but there is much guidance and procedural framework that is known and codified in rules, practice and procedure under the UCMJ.

Initially, the obvious should be stated, Bradley Manning is in front of an Army court martial process under the UCMJ, and while there is Continue reading

What Happened to Bradley Manning in January

I wanted to put a few details about what happened to Bradley Manning in January together.

The other day Manning’s lawyer, David Coombs, revealed he had been about to file a habeas petition when DOD suddenly decided to move Manning to Fort Leavenworth (where he arrived last night). At issue was a meeting that occurred on January 13:

The defense recently received reliable reports of a private meeting held on 13 January 2011, involving high-level Quantico officials where it was ordered that PFC Manning would remain in maximum custody and under prevention of injury watch indefinitely.  The order to keep PFC Manning under these unduly harsh conditions was issued by a senior Quantico official who stated he would not risk anything happening “on his watch.”  When challenged by a Brig psychiatrist present at the meeting that there was no mental health justification for the decision, the senior Quantico official issuing the order responded, “We will do whatever we want to do.”

That meeting happened just five days before the guards harassed Manning and Brig Commander James Averhart decided to play god with him, according to the chronology laid out in Manning’s Article 138 complaint. Here’s how Manning described the guards’ petty bullying.

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.”

After Manning returned to his cell from recreation, Averhart came to his cell, declared he was, for all practical purposes, Manning’s God. Then, he ordered Manning be stripped and put on suicide watch.

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.

Admittedly, once I heard that I would be placed under Suicide Risk, I became upset. Out of frustration, I placed my hands to my head and clenched my hair with my fingers. I did yell “why are you doing this to me?” I also yelled “why am I being punished?” and “I have done nothing wrong.” I then asked CWO4 Averhart “what have I done to deserve this type of treatment?”

CWO4 Averhart did not answer any of my questions. He instructed the guards to enter my cell and take all my clothing. At first I tried to reason with CWO4 Averhart by telling him that I had been a model detainee and by asking him to just tell me what he wanted me to do and that I would do it. However, I gave up trying to reason with him once the guards entered my cell and ordered me to strip. Instead, I lowered my head and starting taking off my clothes.

Continue reading

MSNBC’s New Sources on Bradley Manning’s Treatment: Pentagon Officials

Back in January, long-time Pentagon reporter Jim Miklaszewski caused a stir when he published a story with two big scoops. First, that investigators had been unable to tie Bradley Manning to Julian Assange. More importantly, Miklaszewski cited “military officials” saying that Brig Commander James Averhart had improperly put Manning on suicide watch on January 18.

On Monday, U.S. military officials also strongly denied allegations that Manning, being held in connection with the WikiLeaks’ release of classified documents, has been “tortured” and held in “solitary confinement” without due process.The officials told NBC News, however, that a U.S. Marine commander did violate procedure when he placed Manning on “suicide watch” last week.

Military officials said Brig Commander James Averhart did not have the authority to place Manning on suicide watch for two days last week, and that only medical personnel are allowed to make that call.

The official said that after Manning had allegedly failed to follow orders from his Marine guards. Averhart declared Manning a “suicide risk.” Manning was then placed on suicide watch, which meant he was confined to his cell, stripped of most of his clothing and deprived of his reading glasses — anything that Manning could use to harm himself. At the urging of U.S. Army lawyers, Averhart lifted the suicide watch. [my emphasis]

That’s interesting because his version of similar allegations yesterday includes new sources: Pentagon officials (though the claim that Manning was not tortured remains sourced exclusively to “military officials”).

Military and Pentagon officials insist the action was punishment for what the Marines considered disrespect from Manning. Such tactics for disciplinary reasons are against military regulations.

[snip]

This will make visits with his civilian attorney, family and some friends more difficult, but it’s the nearest such facility for pre-trial confinement the Army has. Manning will have to return to Fort Belvoir in Virginia for any court appearances.  Putting him back into Quantico is “out of the question,” according to Pentagon and military officials, so the Army may make arrangements with a civilian detention facility to hold him temporarily as needed.

U.S. military officials, who spoke to NBC News on condition of anonymity, deny Manning was tortured, but one said “the Marines blew it” in terms of how they treated him. [my emphasis]

In other words, unless Miklaszewski is playing fast and loose with sourcing conventions, sometime in the last three months, some civilian(s) at the Pentagon reviewed what happened back in January and came to the same conclusions that the anonymous military officials had: Manning’s forced nudity and suicide watch were punitive, not preventative.

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Emptywheel Twitterverse
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bmaz @onekade I deal with cops all the time via fax; I see nothing whatsoever implausible about it.
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bmaz RT @GormoJourno: @mattdpearce It was passed to me by a cop with decades on the force. It is 100% authentic.
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