The only remedy for the abuse of Bradley Manning and the government’s violation of the law is dismissal of all charges.

Every time I attend a Bradley Manning hearing the prosecutors show their outrageous disrespect for the law, demonstrate they cannot be trusted and that this prosecution should not proceed.

Beginning on November 27, the defense will argue a long-delayed motion to dismiss for unlawful pretrial punishment.  In a moment of high drama, Bradley is likely to testify about his nine months in solitary confinement during the argument of this motion.

Prosecutors Are Caught Hiding More than One Thousand Emails about Manning’s Confinement

The most recent reason for the delay in the hearing was the government was caught hiding 1,374 emails relevant to the confinement of Bradley Manning. Attorney David Coombs had requested all documents relevant to Manning’s confinement at Quantico but did not receive any of the emails. Hours before the deadline for filing the motion to dismiss the Government sent him 84 emails from Quantico that it said were “obviously material to the defense.”  They did not mention the existence of 1,290 other emails relating to Manning’s confinement.

Coombs, based on prior experience with the prosecution team, was suspicious.  The language “obviously material to the defense” was tortured.  Were there other documents that were material to the defense? The law requires the government to provide all material information.  Two government prosecutors responded that the 84 emails were all there was.  Coombs was still suspicious and decided to file a motion with the court on the matter.  At that point the prosecution admitted there were a total of 1,374 emails, but claimed only 84 were discoverable.

Coombs kept pushing and on the first day of the hearing last week the government provided him with a disc containing approximately 600 emails. The prosecutors gave no explanation as to how they jumped from 84 to 600 discoverable emails, even though Coombs asked how that occurred.  Now there are 700 emails in dispute, and Judge Denise Lind granted Coombs’ motion to have her review those to determine if they’re discoverable.

What did the emails contain?  Well, we don’t know yet what surprises are in the 600 given to Coombs during the hearing, but the 84 contained a blockbuster.  They revealed that the decision to hold Manning in tortuous solitary confinement conditions was not made because of Manning’s behavior at Quantico, not made because of the recommendations of the prison psychologists or psychiatrists, not made by the brig commander, not even made by the Commander at Quantico – but made by a three-star general in the Pentagon.

Who was the general in charge of Manning’s confinement?

Lieutenant General George Flynn, who was serving as the Commanding General of the Marine Corps Combat Development Command at the time, ordered Manning’s solitary confinement.

Flynn is a career officer who has been climbing the ladder in the military since 1975.  There are only 60 three-star generals in the entire U.S. Marine Corps.  Flynn is in the top echelon of Marine officers.  Flynn was nominated for appointment by the President under the advice of the Secretary of Defense and the Chairman of the Joint Chiefs of Staff as well as confirmed via majority vote by the Senate. Thus, this position, in addition to being an important military position, is one that requires political skill as well.

Among the positions he has recently held are Chief of Staff and Director, Command Support Center, United States Special Operations Command (2004-2006). Commanding General, Training and Education Command (2006-2007). Deputy Commanding General Multi-National Corps-Iraq (2008), Director for Joint Force Development, The Joint Staff J-7 (2011-). This includes positions he served in during the time documented by Manning’s alleged release.

During Flynn’s time at the U.S. Special Ops command, growing pains were reported as they were developing plans to have an expanded and more complex role against terrorism, working more closely with the CIA. In 2005’s Operation Red Wing, under his command, four Navy SEALs were pinned down in a firefight and radioed for help. A Chinook helicopter, carrying 16 service members, responded but was shot down. All members of the rescue team and three of four SEALs on the ground died. It was the worst loss of life in Afghanistan since the invasion in 2001.

The fact that an officer who was working so closely with the CIA was making the decisions about Manning’s incarceration raises questions about the purpose of Manning’s abusive confinement.  Even before knowing Lt. Gen. Flynn was in charge, many commentators believed Manning was tortured in an effort to break him so he would plead guilty and testify against Julian Assange. Now that we know a three-star general at the Pentagon was making the decisions, these suspicions have much greater credibility.

Who knows what will be uncovered in the 600 emails that have been provided and the remaining 700 in dispute? It already sounds like Manning’s defense needs to broaden its request to all communications involving Lt. Gen. Flynn about Manning, including with the Joint Chiefs of Staff, Secretary of Defense and the White House. We know that the White House in the Bush Administration was approving every step of the torture-interrogation of high profile suspects, so it seems likely that aggressive punishment of a U.S. soldier would need White House approval.  The Manning case is high profile, and it is hard to believe Lt. Gen. Flynn would risk his career by torturing a soldier without approval from political leaders at the Pentagon and White House.

And Manning was kept in torturous conditions.  Not only was he held in solitary for nine months, but he was also mistreated throughout that time. Manning’s confinement is detailed in the 109 page motion to dismiss filed by David Coombs. Manning was held in a windowless 6-by-8 cell in which he was not allowed to have any personal items. He was awakened at 5:00 AM and required to stay awake until 10 PM.  Among the conditions of his confinement were as follows:

– He was not allowed to exercise in the cell.

– He was not permitted to lie down on his rack during the duty day.

– He was not permitted to lean his back against the cell wall; he had to sit upright on his rack without any back support.

– Manning was subjected to constant monitoring; the Brig guards were required to check on him every five minutes by asking him some variation of, “are you okay?”  Manning was required to verbally respond in some affirmative manner. Guards were required to make notations every five minutes in a logbook.

– Some lights would remain on all night. 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 Manning in order to ensure that he was okay.

– Manning was only given a mattress and when he tried to fold the mattress to make a pillow Brig officials took it away and gave him a suicide mattress with a built-in pillow, only a couple of inches high, not really any better than sleeping on a flat mattress. 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 Manning’s skin causing rashes and carpet burns. The blanket did not keep Manning warm due to its stiffness, did not contour to his body or retain heat.

– Manning was required to receive each of his meals alone in his cell. He was only permitted to eat with a spoon.

– Whenever Manning was moved outside his cell, he was shackled with metal hand and leg restraints and accompanied by at least two guards; the entire facility was locked down.

– He was not allowed to speak to other inmates and if he attempted to do so was stopped.

– Manning was permitted only 20 minutes of “sunshine call.” Aside from a 3-5 minute shower, this would be the only time he would regularly spend outside his cell. During this sunshine call, he would be brought to a small concrete yard and 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 Manning’s back). Two to three other guards would also be present observing Manning while he walked in figure-eights. He was not permitted to sit down or stay stationary.

After a protest in support of Manning outside of Quantico his conditons got worse. Guards harassed him to the point of bringing on a panic attack.  He was placed on suicide watch and had his clothes taken away from him at night, from March 3, 2011, through March 7, 2011, he was forced to stand outside his cell naked during morning inspection.

How involved was Lt. Gen. Flynn in determining these unjustifiable conditions of confinement?  During the last hearing, Coombs disclosed that Flynn was given detailed reports of minor details – he was even notified when Coombs visited his client.  Further, the commander at Quantico said in one email that all decisions to relax confinement needed to be approved by Flynn. This was known up and down the chain of command at Quantico.

The Quantico command had been told what they needed to do, as the Coombs motion states:  “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.”

The psychiatrist, who was originally a Brig psychiatrist and later appointed to the Defense team, expressed extreme frustration about the “bizarre” circumstances at Quantico saying: “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  . . . 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. . . . 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.”

Are these conditions acceptable under military law?

In United States v. Fricke, 53 M.J. 149, 155 (C.A.A.F. 2000) the accused alleged that he was placed in solitary confinement for an extended period of time because prison officials were attempting to “break him.” The court indicated that “coercing a confession is not a legitimate governmental objective.”

Indeed the only legitimate purposes are to ensure the accused’s presence at trial and the security of the facility.  In 2006’s United States v. Crawford, the Court of Appeals for the Armed Services found a 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.” Manning was an exemplary inmate who never gave Brig officials reason to believe he was a flight risk, making these harsh conditions, controlled from the Pentagon, impossible to defend.

As the Court of Appeal for the Armed Forces wrote in United States v. Combs, “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 . . ..” What was the “legitimate, non-punitive objective” of Manning not being able to lean against the wall while seated in his cell, lying down in his cell between 5 AM and 10 PM, exercising in his cell, being forced to stand naked to get his clothes back or being verbally checked every five minutes and waking him from his sleep to see if he was alright? The only purpose of these limitations was to punish, humiliate or break Manning. No doubt Lt. Gen. Flynn is well aware of how these stress techniques can break a person.

Any claim that these abusive conditions were to protect Manning is undermined by the well-known negative impact of solitary confinement.  Numerous federal courts having taken note of the serious negative consequences of such confinement.  The fact is the confinement facility officials were actually causing Manning psychological harm, not protecting him from harm. Finally, the fact that as soon as he was sent to Ft. Leavenworth his conditions changed virtually overnight, demonstrate the conditons at Quantico were unnecessary.

In multiple cases, military courts have found that dismissal of all charges is an appropriate remedy for pre-trial punishment.  Not only was Manning’s pre-trial confinement punishment in violation of military law, in addition after a 14-month investigation, the U. N. Special Rapporteur on torture Juan Méndez formally accused the U.S. government of “cruel, inhuman and degrading treatment” in violation of the International Covenant on Civil and Political Rights.

The motion to dismiss, and the hidden emails, highlights the prosecution’s continuous withholding of material information from the defense in violation of law. The prosecutors’ obfuscation is resulting in a delay of the court martial so that Manning’s trial will occur nearly 1,000 days after his confinement in violation of speedy trial requirements.  It is getting harder and harder to see how any remedy other than dismissal of the charges for outrageous government conduct would serve justice.

Take Action:

On September 6th the Bradley Manning Support Network is organizing protests at Obama campaign headquarters throughout the country.  More than two dozen cities are planning protests to support Manning.  Join us in the quest for justice for Bradley Manning, click here for more information.

By Kevin Zeese. September 4, 2012.