That Time When Solitary Confinement Was Not Considered “Solitary Confinement”

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It has been more than three years now, but I can still remember the awestruck feeling I had in January 2013 while observing Chelsea Manning’s court-martial proceedings for the unauthorized disclosure of classified military documents to Wikileaks. This thought kept pouring through my mind as I sat intently listening to Col. Lind as she read her decision: “How is solitary confinement not ‘solitary confinement’?”

On 18 May, Amnesty International, with the help of attorneys from Keker & Van Nest, LLP, filed an amicus brief with the U.S. Army Court of Criminal Appeals in support of Chelsea Manning’s appeal of her sentence. While Manning’s attorneys are raising several points on appeal, Amnesty International’s brief focused on the conditions of her pre-trial detention, arguing that Judge Lind erred when finding that Manning was not subject to prolonged solitary confinement that amounted to pre-trial punishment in violation of Article 13 of the Uniform Code of Military Justice (UCMJ).

Under Article 13 of the UCMJ, “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.”[i]

Manning’s trial attorney submitted a motion under Article 13 seeking dismissal of the charges or a reduction credit against any sentence she should receive if found guilty on the charges levelled against her. In her decision on the motion, Judge Lind denied that Manning had suffered pre-trial punishment when she concluded that Manning “was not held in solitary confinement”, because “[s]olitary means alone and without human contact,” whereas Manning “had daily human contact” with her guards and “weekly visits with [her] counselor and mental health professionals.” In all, Judge Lind provided Manning with a credit of 112 days against any sentence she were to receive if found guilty, based on the number of days that Manning was held under Prevention of Injury Status beyond what was recommended by mental health personnel.

Judge Lind came to this decision despite the fact that Manning was held before trial at the Marine Corps Brig at Quantico in a 6’ by 8’ cell, for 23 to 24 hours a day, for 9 months. These are conditions that would meet the definition of prolonged solitary confinement under both U.S. and international law. They are the same conditions that the UN Special Rapporteur on Torture, Juan Mendez, found to be cruel and inhuman punishment and in violation of Manning’s rights to physical and psychological integrity and to be presumed innocent prior to trial.[ii] Conditions that qualify as “punishment” no matter what standards you looked to or how you tried to define it, and would be unconstitutional under U.S. law and in violation of international law.

When I reflect on that day in court at Fort Meade more than three years ago, I remember sitting there, furiously scribbling my notes, shaking my head in disbelief as my brain tried to process what Judge Lind was saying. Then that thought circled through, “How is solitary confinement not ‘solitary confinement’?” I guess when it involves Chelsea Manning.


 

[i] See Article 13 of the Uniform Code of Military Justice, available at:

http://www.ucmj.us/sub-chapter-2-apprehension-and-restraint/813-article-13-punishment-prohibited-before-trial

[ii] See, Report of the Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment, Juan E. Méndez, addendum, A/HRC/19/61/Add.4, 29 February 2012, available at:

https://documents-dds-ny.un.org/doc/UNDOC/GEN/G12/110/40/PDF/G1211040.pdf?OpenElement

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