United States v. Wise

UNITED STATES, Appellee
v.
James A. WISE, Private First Class
U.S. Army, Appellant
No. 06-0610
Crim. App. No. 20031310
United States Court of Appeals for the Armed Forces
Argued November 29, 2006
Decided April 24, 2007
BAKER, J., delivered the opinion of the Court, in which ERDMANN,
J., joined. EFFRON, C.J., filed a dissenting opinion.
STUCKY and RYAN, JJ., did not participate.
Counsel
For Appellant: Captain Sean F. Mangan (argued); Colonel John T.
Phelps II, Lieutenant Colonel Kirsten V. C. Brunson, Lieutenant
Colonel Steven C. Henricks, Major Charles L. Pritchard Jr., and
Major Billy B. Ruhling II (on brief).
For Appellee: Captain Andrew C. Baum (argued); Colonel John W.
Miller II, Lieutenant Colonel Michele B. Shields, and Captain
Magdalena A. Acevedo (on brief).
Military Judge: James Pohl
THIS OPINION IS SUBJECT TO REVISION BEFORE FINAL PUBLICATION.
United States v. Wise, No. 06-0610/AR
Judge BAKER delivered the opinion of the Court.
Appellant was a private first class (E-3) serving with the
411th Military Police Company in Iraq. On December 16, 2003, he
was convicted pursuant to his pleas by a military judge sitting
alone of false official statements and wrongful use and
distribution of controlled substances on divers occasions, in
violation of Articles 107 and 112a, Uniform Code of Military
Justice (UCMJ), 10 U.S.C. §§ 907, 912a (2000), respectively.
The military judge sentenced Appellant to a bad-conduct
discharge, confinement for eight months, and reduction to grade
E-1. The convening authority approved the bad-conduct discharge
and grade reduction, but in accordance with a pretrial agreement
only approved seven months of confinement. On February 2, 2006,
the United States Army Court of Criminal Appeals summarily
affirmed. United States v. Wise, No. ARMY 20031310 (A. Ct.
Crim. App. Feb. 2, 2006). Upon Appellant’s petition we granted
review of the following modified issue:
WHETHER APPELLANT’S CONFINEMENT CONDITIONS, INCLUDING AND
IN PARTICULAR WITH RESPECT TO HIS CLAIM OF HAVING BEEN
CONFINED WITH ENEMY PRISONERS OF WAR IN IRAQ, WERE
UNLAWFUL, AND WHETHER, IN THE CONTEXT PRESENTED, APPELLANT
FORFEITED HIS CLAIMS OF UNLAWFUL POST-TRIAL PUNISHMENT BY
FAILING TO EXHAUST HIS ADMINISTRATIVE REMEDIES UNDER UNITED
STATES V. WHITE, 54 M.J. 469 (C.A.A.F. 2001).
A prisoner must seek administrative relief prior to
invoking judicial intervention to redress concerns regarding
post-trial confinement conditions. United States v. White, 54
2
United States v. Wise, No. 06-0610/AR
M.J. 469, 472 (C.A.A.F. 2001). Absent some unusual or egregious
circumstance this means that the prisoner has exhausted the
prisoner grievance system in his detention facility and that he
has petitioned for relief under Article 138, UCMJ, 10 U.S.C. §
938 (2000). Id. For the case-specific reasons stated below,
including Appellant’s unrebutted statements regarding the nature
of his confinement, his informal efforts to seek redress, and
the unusual circumstances in which he was confined –- which
according to Appellant included the absence of a formal
grievance process –- we conclude that a review of Appellant’s
claims is warranted.
Turning to Appellant’s allegation that he was detained with
Iraqi enemy prisoners of war (EPWs) in violation of Article 12,
UCMJ, 10 U.S.C. § 812 (2000), we conclude that even if the facts
are as alleged by Appellant, based on the plain text and
legislative history to Article 12, UCMJ, Appellant was not
confined in “immediate association” with enemy prisoners or
other foreign nationals.
Appellant also avers that he was placed in irons while
confined in Iraq, in violation of Article 55, UCMJ, 10 U.S.C. §
855 (2000). Unlike the absolute proscription in Article 55,
UCMJ, against flogging and branding, the proscription against
the use of irons is qualified. Irons are permitted for the
purposes of safe custody. As there may be well-founded reasons
3
United States v. Wise, No. 06-0610/AR
for the use of irons in the combat situation presented, applying
the principles of United States v. Ginn, 47 M.J. 236 (C.A.A.F.
1997), we are unable to resolve Appellant’s claim without
further fact-finding. As a result, we remand this aspect of the
case to the Court of Criminal Appeals, which is authorized to
resolve the factual issue of why Appellant was confined in
Tikrit with irons. If the Court of Criminal Appeals orders
further fact-finding, including a DuBay1 hearing, and the
convening authority determines that such fact-finding is
impracticable, the convening authority may moot the issue and
the necessity of further fact-finding by awarding Appellant a
credit of twenty-one days for that period of time Appellant
alleges in his unrebutted affidavit that he was confined in
double irons in the Tikrit compound.
1
Unites States v. DuBay, 17 C.M.A. 147, C.M.R. 411 (1967).
4
United States v. Wise, No. 06-0610/AR
BACKGROUND2
During operations in Iraq, the 4th Infantry Division
captured and detained a number of EPWs.3 According to
Appellant’s affidavits, at the time of his court-martial, 100 to
150 EPWs were being held in the 4th Infantry Division EPW
confinement area in Tikrit, Iraq. The confinement area,
commonly referred to as “the cage,” was not a structure but an
area cordoned off by concertina wire, and further subdivided by
concertina wire into at least two sections. American soldiers,
including Appellant, were assigned as guards and escorted the
EPWs any time it was necessary to take them beyond the confines
of the wired area.
Following his conviction, Appellant was ordered into
confinement in “the cage” pending transfer to the confinement
facility in Kuwait to serve the remainder of his sentence.
2
Descriptions of Appellant’s confinement are from two sworn
affidavits Appellant executed in preparation for his appeal.
There is no evidence or affidavits provided on behalf of the
Government rebutting the information in these documents. “Under
these circumstances, we shall treat the statements in the
documents as establishing the factual setting of the appellate
proceedings.” United States v. Simon, 64 M.J. 205, 207
(C.A.A.F. 2006) (citing Ginn, 47 M.J. at 250). This is in
accord with the Supreme Court’s view that “[s]olemn declarations
in open court carry a strong presumption of verity.” Blackledge
v. Allison, 431 U.S. 63, 73-74 (1977).
3
For the purposes of this opinion, we take Appellant’s
nomenclature as stated, and express no view as to whether the
5
United States v. Wise, No. 06-0610/AR
Appellant and two fellow American soldiers were confined in a
section separated from the EPWs by “a single strand of
concertina wire.” According to Appellant, he was close enough
to the Iraqi EPWs for some of the EPWs to approach the dividing
wire and attempt to engage the Americans in conversation.
Appellant also states that one of the EPWs recognized him as a
former guard, and that he recognized several of the EPWs as
prisoners he had once guarded. Further, he states that two of
the EPWs had tuberculosis and were quarantined from the others,
but were separated from Appellant by no more than fifteen feet
and one coil of concertina wire.
Appellant states that he was ordered to wear a blue
jumpsuit, similar to the one worn by many of the EPWs. He also
asserts that for the seven days he remained confined in “the
cage,” he was kept in “double irons” -- leg shackles and
handcuffs -- even while eating and sleeping. The handcuffs were
only removed when he was taken to the latrine.
After a week, Appellant was transferred to a confinement
facility at Camp Arifjan, Kuwait, where he served the remainder
of his sentence before returning to the United States.
Appellant argues that the conditions of his post-trial
confinement violated his rights. In particular, with respect to
individuals referenced are appropriately referenced as EPWs,
“other foreign nationals,” or in some other manner.
6
United States v. Wise, No. 06-0610/AR
his placement in irons, Appellant claims a violation of Article
55, UCMJ. With respect to his placement in proximity to the
Iraqi prisoners, Appellant claims a violation of Article 55,
UCMJ, and of his Eighth Amendment right to be free from “cruel
and unusual punishment.” See U.S. Const. amend. VIII.
DISCUSSION
This case poses two separate questions:
(1) Is Appellant barred from pursuing his claim by a
failure to exhaust his administrative remedies while
confined in Iraq?; and
(2) Was Appellant’s incarceration in the enclosed
confinement area in violation of his rights in that he
was:
a. Placed in immediate association with EPWS; or
b. Placed in double irons for the extent of his stay in
“the cage”?
I. Exhaustion of Administrative Remedies
“[A] prisoner must seek administrative relief prior to
invoking judicial intervention” to redress concerns regarding
post-trial confinement conditions. White, 54 M.J. at 472;
United States v. Miller, 46 M.J. 248, 250 (C.A.A.F. 1997)
(quoting United States v. Coffey, 38 M.J. 290, 291 (C.M.A.
1993)). This requirement “promot[es] resolution of grievances
at the lowest possible level [and ensures] that an adequate
record has been developed [to aid appellate review].” Miller,
46 M.J. at 250.
7
United States v. Wise, No. 06-0610/AR
We review factual findings under a clearly erroneous
standard, but the “ultimate determination” of whether an
Appellant exhausted administrative remedies is reviewed de novo,
as a mixed question of law and fact. See, e.g., United States
v. Anderson, 55 M.J. 198, 201 (C.A.A.F. 2001).
Exhaustion requires Appellant to demonstrate that two paths
of redress have been attempted, each without satisfactory
result. Appellant must show that “absent some unusual or
egregious circumstance . . . he has exhausted the prisoner-
grievance system [in his detention facility] and that he has
petitioned for relief under Article 138.” White, 54 M.J. at 472
(citation and quotation marks omitted); see also United States
v. Lovett, 63 M.J. 211, 215 (C.A.A.F. 2006) (holding that in
order to claim Eighth Amendment violations, the appellant must
show, inter alia, “that he has exhausted the prisoner-grievance
system . . . and that he has petitioned for relief under Article
138”) (citation and quotation marks omitted).
Article 138, UCMJ, provides that:
Any member of the armed forces who believes himself
wronged by his commanding officer, and who, upon due
application to that commanding officer, is refused
redress, may complain to any superior officer, who
shall forward the complaint to the commissioned
officer exercising general court-martial jurisdiction
over the officer against whom it is made. The officer
exercising general court-martial jurisdiction shall
examine into the complaint and take proper measures
for redressing the wrong complained of; and he shall,
as soon as possible, send to the Secretary concerned a
8
United States v. Wise, No. 06-0610/AR
true statement of that complaint, with the proceedings
had there on.
Since a prime purpose of ensuring administrative exhaustion
is the prompt amelioration of a prisoner’s conditions of
confinement, courts have required that these complaints be made
while an appellant is incarcerated. See, e.g., United States v.
White, No. ACM 33583, 1999 CCA LEXIS 220, at *4, 1999 WL 605616(A.F. Ct. Crim. App. July 23, 1999) (holding that solely raising
conditions of confinement complaints in post-release clemency
submissions is inadequate to fulfill the requirement of
exhausting administrative remedies and that “after the appellant
has been released from confinement . . . we have no remedy to
provide”), aff’d, White, 54 M.J. at 475.
In the current case, there is no record of Appellant filing
complaints about his confinement conditions while in “the cage,”
either through a prisoner grievance system or to his chain of
command under Article 138, UCMJ. Even when Appellant was
removed from the confinement area and transported to Kuwait,
complaints regarding his confinement conditions in Iraq were
still not raised. Pursuant to Rule for Courts-Martial (R.C.M.)
1105(b)(2)(D), Appellant submitted a clemency request on January
1, 2004, less than a week after his removal from the confinement
area in Tikrit. In that request he did not reference the
conditions in Tikrit. Appellant’s counsel also did not raise
9
United States v. Wise, No. 06-0610/AR
the matter in an additional clemency submission filed February
6, 2004.
However, Appellant states that he raised concerns about
confinement early during the course of his legal proceedings.
Appellant initially raised this issue immediately after his
conviction and before his confinement. Worried that he would be
incarcerated with the EPWs, Appellant spoke with his battalion
commander about his concerns and the commander attempted to
arrange for Appellant to be held in his unit area in Tikrit
until he could be transferred to a confinement facility to serve
his sentence. According to Appellant, his battalion commander’s
superior declined and ordered him into “the cage.” Prior to
incarceration, Appellant was also in contact with other
representatives from his unit and his trial defense counsel, to
whom he relayed his concerns. These attempts were also to no
avail.
Appellant further claims that upon being placed in “the
cage,” he was given only a rudimentary in-processing, was denied
contact with his attorney, and was provided no explanation of
how to raise complaints. Appellant also claims that he had no
knowledge of Article 138, UCMJ, procedures and further states
that he did not believe that he had any way of raising his
concerns while in “the cage.”
10
United States v. Wise, No. 06-0610/AR
The present record does not reflect that Appellant’s
command in Tikrit had an institutionalized complaint mechanism
specific to the EPW confinement area, and Appellant’s attempts
to informally communicate with, and complain to, his guards were
met with silence. On one of the few occasions that the guards
responded to Appellant’s concerns -- when Appellant raised his
anxiety about being kept in close proximity to two EPWs who he
was informed were suffering from tuberculosis -- the guards
spurned his complaints. Additionally, notwithstanding the
preference for raising the issue while undergoing the alleged
onerous confinement conditions, in this case Appellant was kept
under the complained-of conditions for only a week, limiting the
possible time during which to complain.
Appellant also states that he attempted to lodge complaints
about “the cage” as soon as he was afforded the opportunity to
do so once he arrived at Camp Arifjan, Kuwait. He raised his
complaints about his treatment in Iraq with the guard force
supervisor at Camp Arifjan but was told that he could not use
the Camp Arifjan complaint system to lodge an objection about
his confinement in another location. Finally, less than a month
after being released from confinement and returning to the
United States, Appellant swore an affidavit that detailed the
conditions he experienced in Iraq.
11
United States v. Wise, No. 06-0610/AR
Based on the foregoing, we conclude that in the “unusual”
circumstances presented, Appellant is entitled to have the
merits of his claims addressed. Among other things, Appellant
has asserted that he made numerous informal attempts to raise
the conditions of his confinement in Iraq with his chain of
command. Accepting Appellant’s affidavits on their face,
Appellant asserts that he was not briefed on, nor otherwise made
aware of, any formal process of complaint at the facility in
Tikrit during the first year of combat operations in Iraq. He
further states that his efforts while confined in Kuwait to
raise his concerns were brushed aside. The Government has
chosen not to factually rebut Appellant’s affidavits. Those
allegations regarding confinement with EPWs and the use of leg
irons are serious, raise matters of first impression for this
Court for which there is no extant guidance, and are potentially
subject to repetition during ongoing combat operations. In such
circumstances, we conclude that unusual circumstances warrant
review of Appellant’s claims, notwithstanding his failure to
exhaust those formal mechanisms of administrative review usually
associated with permanent and established facilities.
In reaching this conclusion, we are cognizant that
Appellant was represented by counsel. Further, defense counsel
was sufficiently established in the operational setting
presented to file for clemency using letterhead designated “U.S.
12
United States v. Wise, No. 06-0610/AR
Army Trial Defense Service, Region IX, Tikrit Field Office,
Tikrit, Iraq.” Ordinarily, we would expect competent counsel to
raise confinement concerns like Appellant’s at the time they are
brought to counsel’s attention, or to indicate as part of the
appellate record, why they were unable to do so in the context
presented. These factors weigh in favor of a conclusion that
Appellant did not exhaust his administrative remedies.
Nonetheless, in our view, it factors into, but does not
ultimately change, our conclusion that the better view is that
unusual circumstances warrant consideration of Appellant’s
claims. In this regard we note the absence of guidance from
this Court on the subject of exhaustion in an operational
setting.
II. Did the Conditions of Confinement in Tikrit Violate Article
12, UCMJ, Article 55, UCMJ, or the Eighth Amendment?
We now examine the specific aspects of confinement about
which Appellant complains. This Court reviews de novo the
question of whether an appellant has been subject to
impermissible conditions of post-trial confinement in violation
of Article 55, UCMJ, and/or the Eighth Amendment. White, 54
M.J. at 471.
Appellant’s initial grievance is that the conditions of
confinement in Tikrit and then at Camp Arifjan, Kuwait,
subjected him to conditions that did not meet the standards for
13
United States v. Wise, No. 06-0610/AR
the incarceration of United States Army prisoners set out in the
Dep’t of the Army, Reg. 190-47, Military Police, The Army
Corrections System (June 15, 2006) [hereinafter AR Reg. 190-47].
In this context, we find his complaints regarding his
confinement in Kuwait without merit4 and turn to the two issues
that warrant review: Appellant’s claim of having been
incarcerated in irons and his incarceration in proximity to
enemy prisoners of war during the seven days in Tikrit.
1. Appellant’s Incarceration with Iraqi Prisoners of War
Article 12, UCMJ, provides: “Confinement with Enemy
Prisoners Prohibited[.] No member of the armed forces may be
placed in confinement in immediate association with enemy
prisoners or other foreign nationals not members of the armed
forces.”5 (emphasis added).
4
AR. 190-47 is a 100-pluspage document detailing the Army
corrections program, including the appropriate conditions of
confinement for Army inmates. The extensive list includes
details ranging from the physical design of facilities to the
provision of “health and comfort supplies” for prisoners. Id.
at para. 10-9. However, the Army is provided explicit
flexibility by a provision in the regulation for “field
expedient detention cells,” a provision that holds, inter alia,
that “[d]etention cells used during field and combat operations
will correspond to established . . . standards to the maximum
degree possible under existing conditions.”
5
We note that para 3-2.e, of AR Reg. 190-47 tracks the language
of Article 12, UCMJ:
Incarceration with enemy prisoners of war. Members of the
Armed Forces of the United States will not be incarcerated
in immediate association with enemy prisoners of war (EPW)
14
United States v. Wise, No. 06-0610/AR
Interpreting Article 12, UCMJ, is an issue of statutory
interpretation, which we review de novo, United States v.
Martinelli, 62 M.J. 52, 56 (C.A.A.F. 2005), as is the question
whether Article 12, UCMJ, has been violated. The interpretation
of Article 12, UCMJ, in this context is an issue of first
impression.
A. Text of the Statute
The prohibition to which Article 12, UCMJ, is directed is
not absolute in the sense that flogging or branding is
proscribed in Article 55, UCMJ. Rather, the prohibition against
“placing” American personnel in association with enemy prisoners
or other foreign nationals is qualified by the nature of the
association. Only “immediate association” is directly
proscribed. Thus, the interpretation of Article 12, UCMJ, rests
on an understanding of not just “association” but of the
particular type of association to which the article is directed.
Although the other terms in Article 12, UCMJ, are
straightforward and can and should be read in light of their
plain meaning and prior use in our case law, “immediate
or other foreign nationals not members of the Armed
Services of the United States, unless the EPW or foreign
nationals are being detained under military control for
suspected or proven criminal conduct.
We conclude that the stated exception in AR Reg. 190-47 is
inapposite in this case.
15
United States v. Wise, No. 06-0610/AR
association” is subject to multiple interpretations. See United
States v. Warner, 62 M.J. 114, 120 n.30 (C.A.A.F. 2005) (citing
Lamie v. United States Trustee, 540 U.S. 526, 536 (2004)).
There is no explanatory introductory paragraph in the
article that sheds light on the meaning or purpose of the
statute. The few military cases that have used the term
“immediate association” have done so outside the context of
Article 12, UCMJ, analysis and are not on point.6 The dictionary
is only marginally more helpful. The dictionary defines
“immediate” as “direct” or “proximate.” Webster’s Third New
International Dictionary Unabridged (2002), available at
http://unabridged.merriamwebster.com (last visited Apr. 24,
2007). “Association” is defined as the state of being
“connected” or “combine[d].” Webster’s Ninth New Collegiate
6
This Court recognizes that the term “immediate association” has
been used in cases referring to Article 13, UCMJ, 10 U.S.C. §
813 (2000), and in particular when analyzing whether pretrial
inmates were inappropriately held with convicted prisoners. In
that context, “immediate association” was synonymous with
“commingling.” See, e.g., United States v. Palmiter, 20 M.J.
90, 98 (C.M.A. 1985) (Everett, C.J., concurring in the result).
While informative, we find our use of the term in reference to
Article 13, UCMJ, inapposite in our discussions of Article 12,
UCMJ, for two reasons. First, the understanding that the
prohibition on “commingling” is synonymous with “immediate
association” has become moribund as this Court has followed
civilian courts into looking at the intent of jailers, rather
than the physical placement of inmates, in determining
violations of Article 13, UCMJ. See id. at 95 (majority
opinion). Second, Congress only saw fit to place “immediate
association” in Article 12, UCMJ, suggesting that there were
special concerns that it wished to address in this regard.
16
United States v. Wise, No. 06-0610/AR
Dictionary 110 (9th ed. 1991). Thus, it appears that Article
12, UCMJ, prohibits United States personnel from being confined
in a manner so that they would be directly connected or combined
with captured foreign personnel. Appellant contends that he was
separated from Iraqi prisoners by only a “single strand of
concertina wire.” Yet, even a single strand of wire is not an
insubstantial barrier and may have prevented Appellant’s
“connection” or “combination” with captured personnel.
Concertina wire is high-strength, spring-steel wire with
multiple barbs attached at short intervals. Field
Fortifications, Subcourse EN0065, Edition B, United States Army
Engineer School, Fort Leonard Wood, Missouri, Lesson 4, §4-5.a,
available at http://www.globalsecurity.org/military/
library/policy/army/accp/en0065/le4.htm (last visited Apr. 24,
2007). Wires form coils so that when they are unrolled they
take on a cylindrical shape akin to a concertina. See id.
Persons handling concertina wire wear heavy reinforced gloves to
avoid being cut by the wire. See id. §§ 4-2.6., 4-6. The
standard concertina wire used by the United States military
creates a cylindrical shape three feet in diameter. Id. § 4-
5.a.
In our view, a single strand of concertina wire represents
a real boundary between Appellant and foreign personnel.
Nonetheless, the fundamental question remains: what sort of
17
United States v. Wise, No. 06-0610/AR
separation is mandated by Article 12, UCMJ? With the text of
the statute indeterminate, and in the absence of case law, we
“turn to the primary source of the statute,” its legislative
history, for guidance. Warner, 62 M.J. at 120 n.30.
B. Legislative History
Unclear language can become clear if the congressional
intent behind the legislation is reviewed. See, e.g., United
States v. Disney, 62 M.J. 46, 51 (C.A.A.F. 2005) (looking inter
alia to legislative history to divine the purpose of a statute
criminalizing the certain activities with explosive materials);
United States v. Reeves, 62 M.J. 88, 93 (C.A.A.F. 2005)
(invoking legislative history to understand the congressional
purpose behind the Child Pornography Prevention Act of 1996);
Loving v. United States, 62 M.J. 235, 241 (C.A.A.F. 2005)
(relying on legislative history to glean the congressional
intent behind Article 76, UCMJ, 10 U.S.C. § 876 (2000)).
The legislative history surrounding Article 12, UCMJ,
identifies the concerns it sought to address. Article 12, UCMJ,
stems from conditions of confinement experienced in World War
II, a still-recent event when the UCMJ was debated in 1950.
During that war the various military branches conducted two
million courts-martial of United States personnel. James B.
Roan & Cynthia Buxton, The American Military Justice System in
the New Millennium, 52 A.F. L. Rev. 185, 187 (2002). Some
18
United States v. Wise, No. 06-0610/AR
American servicemembers who had been convicted in these courts-
martial had, at times, been held in prisons overseas with
prisoners of war or other enemy nationals. See Uniform Code of
Military Justice: Hearings on H.R. 2498 Before a Subcommittee
of the House Committee on Armed Services, 81st Cong. 914-16
(1949), reprinted in Index and Legislative History, Uniform Code
of Military Justice (1950) (not separately paginated)
[hereinafter Legislative History].
The legislation from which Article 12, UCMJ, eventually
derived was initially presented in the House of Representatives,
as a part of the Selective Service Act directed to remediating
the concerns about United States personnel being confined with
foreign nationals during World War II. According to testimony
from Robert W. Smart, a professional staff member of the House
Committee on Armed Services at the time, the article was
originally “brought before the House [by] Mr. [Omar T.] Burleson
of Texas [the previous year during debates on the Selective
Service Act, with the sole goal ensuring] that American boys
were not confined with prisoners of war or other enemy
nationals,” which Representative (Rep.) L. Mendel Rivers, the
vice chair of the Committee stated “[often] happened during the
war.” Id. at 914. Language in line with Rep. Burleson’s
amendment was adopted in Article 16 of the Selective Service Act
of 1948, which stated that American servicemen could not be
19
United States v. Wise, No. 06-0610/AR
“confined with enemy prisoners or any other foreign nationals
outside of the continental limits of the United States.”
Selective Service Act of 1948, Pub. L. No. 80-759, § 212, 62
Stat. 604, 630 (1948) (emphasis added).
However, once debate on the UCMJ commenced before the House
Committee on Armed Services in March 1949, it became evident
that the breadth of the article’s language could create
difficulties for military operations overseas. Felix Larkin,
Assistant General Counsel in the Office of the Department of
Defense, testified before the Committee and asserted that in
many places “[t]here may not be more than one jail or place of
confinement.” Legislative History, supra, at 914. Thus, if
prisoners of war or enemies were already incarcerated in the
single facility, no American could be imprisoned with them, and
vice versa.
Mr. Larkin and the Committee were especially concerned
about this language as it pertained to the Navy. Id. at 914-15.
If a naval vessel captured an enemy vessel at sea it may have
been unable to incarcerate enemy sailors in the ship’s brig if
American sailors were already confined there. Id.
This concern led the Committee to propose and the Congress
to adopt the “immediate association” language, which, according
to Mr. Larkin, meant that “you could keep [American and foreign
personnel] in the same jail [but had to] segregat[e] them in
20
United States v. Wise, No. 06-0610/AR
different cells.” Legislative History, supra, at 914. As the
commentary to the proposed article stated, it was “intended to
permit confinement in the same guardhouse or brig, but would
require segregation.” Id.
Appellant avers that he was held in a facility that also
housed Iraqi prisoners of war. As he recounted, “[t]here were
EPWs in the cage when I was housed there, although we were
separated by a strand of concertina wire.” Despite this
barrier, the Iraqis were close enough for some of prisoners to
attempt to engage Appellant in conversation and for one prisoner
to recognize Appellant, and for Appellant to recognize many of
his former prisoners. Moreover, for five of the seven days
Appellant was as close as fifteen feet to two of quarantined
Iraqis.
The situation in forward positions during combat -- as in
the current case -- is not dissimilar from the hypothetical Navy
ship at sea that has captured enemy sailors. In both cases,
capacity to house prisoners may be limited and thus placing
foreign and American prisoners in the same facility -- while
ensuring some segregation -- is in line with the text as well as
the spirit and history of Article 12, UCMJ. Indeed, the
alteration of the text of Article 12, UCMJ, from the original
seen in the Selective Service Act of 1948, reflects that
Congress specifically intended to avoid designating situations
21
United States v. Wise, No. 06-0610/AR
like the one in which Appellant found himself as per se
violations of Article 12, UCMJ.
As Mr. Larkin testified in 1949, the drafters intended
Article 12, UCMJ, to “prohibit incarceration in close
association but not with because ‘with’ has the connotation that
you could not keep them in the same prison and there may be only
one.” Legislative History, supra, at 915. The following
testimonial exchange between Mr. Larkin and Rep. John Anderson
further emphasized this point, expanding it to include both
United States facilities and “foreign jails”:
MR. ANDERSON: [I]s there any place in the code that
expresses prohibition against confining our men in foreign
jails?
MR. LARKIN: No; but this one prevents them being confined
with enemy prisoners of war or foreign nationals not
members in the same cell.
. . . .
MR. ANDERSON: [U]nder this code, could a commanding
officer have an enlisted man . . . confined in a foreign
jail?
MR. LARKIN: Yes, he could, for a short time or whatever
time is necessary. But if they are so confined they may
not be in immediate association with any [foreign
nationals].
Id.
In the only federal case in either the military or civilian
systems directly addressing this provision, the United States
Court of Appeals for the Tenth Circuit -- hearing a habeas
22
United States v. Wise, No. 06-0610/AR
corpus claim -- came to the same conclusion, holding that the
“heart of this prohibition [in Article 12, UCMJ] lies in the
words ‘in immediate association’ and is not necessarily violated
by the general confinement of the designated classes of
prisoners within the same institution.” Kuykendall v. Taylor,
285 F.2d 480, 481 (10th Cir. 1960).7
Based on this analysis, and assuming Appellant’s statements
as factually accurate, we conclude that Appellant’s conditions
of confinement while housed in the EPW “cage” did not violate
his Article 12, UCMJ, rights.8 See Ginn, 47 M.J. at 248 (“[I]f
7
The appellant’s Article 12, UCMJ, claim was one of several he
lodged in his habeas claim, which centered on his mistaken
belief that the Naval Reviewing Authority did not have the power
to change the location of his confinement. Kuykendall, 285 F.2d
at 480-81. While rejecting the entirety of his petition, the
reviewing court could find no evidence that any foreign
nationals were incarcerated in the same facilities in which he
was imprisoned (initially the United States Naval Disciplinary
Barracks, Naval Operating Base, Terminal Island, San Pedro,
California, and then the United States Disciplinary Barracks at
Fort Leavenworth), let alone “in immediate association” to the
appellant. Id. at 481. Regardless, the court’s view on the
meaning of Article 12, UCMJ, while not binding, is persuasive
and instructive.
8
Applying Ginn, and assuming Appellant’s affidavits are
accurate, Appellant has not demonstrated that the conditions to
which he was subjected were “sufficiently egregious” or amounted
to unnecessary or wanton infliction of pain to give rise to the
presumption that he was being impermissibly punished. Nor is
there evidence that the Government intended to punish Appellant
by confining him in “the cage” rather than a more formalized
facility, or that the Government was “deliberately indifferent”
to Appellant’s well-being in doing so. As a result, we do not
find Article 55, UCMJ, or the Eighth Amendment implicated in
Appellant’s placement in the confinement area in Tikrit. See
23
United States v. Wise, No. 06-0610/AR
the facts alleged in the affidavit allege an error that would
not result in relief even if any factual dispute were resolved
in appellee’s favor, the claim may be rejected on that basis.”
Ginn, 47 M.J. at 248.) The Government’s segregation of
Appellant from enemy prisoners and other foreign nationals was
manifest and bona fide, and as a result, if indeed he was
separated by concertina wire,9 Appellant was not imprisoned in
“immediate association” with foreign personnel.
2. Appellant’s Incarceration in Irons
According to Appellant’s unrebutted affidavit, for the
entirety of his incarceration in the EPW confinement area he was
placed in double irons, i.e., handcuffs and leg cuffs. His
handcuffs were only removed when he was escorted to the latrine.
United States v. Fischer, 61 M.J. 415, 423 (C.A.A.F. 2005)
(holding in the context of pretrial confinement that
“sufficiently egregious” conditions can give rise to a
presumption that a detainee is being punished citing United
States v. James, 28 M.J. 214, 216 (C.M.A. 1989)); Palmiter, 20
M.J. at 95 (holding that improper intent by confinement
officials can be determinative in finding violations of
confinement conditions); Lovett, 63 M.J. at 216 (holding that an
appellant must demonstrate that “officials knew and . . .
disregarded known risks to inmate safety” in order to show a
violation of the Eighth Amendment (citing Farmer v. Brennan, 511
U.S. 825, 837 (1994)).
9
We reach this conclusion without expressing a view as to the
relative merits in this and other contexts of the government’s
methods of complying with Article 12, UCMJ. Indeed, in this
case our decision is based not on the facts as adjudicated, but
on one side’s unrebutted affidavit examined consistent with
Ginn.
24
United States v. Wise, No. 06-0610/AR
These facts implicate Appellant’s rights under Article 55, UCMJ,
which provides that:
Punishment by flogging, or by branding, marking, or
tattooing on the body, or any other cruel or unusual
punishment, may not be adjudged by any court-martial
or inflicted upon any person subject to this chapter.
The use of irons, single or double, except for the
purpose of safe custody, is prohibited.
Emphasis added.
To have been permissible, the use of irons must have met
two criteria: such use could not have been for punishment, and
the irons must have been employed to effectuate “safe custody.”
Regarding the possible punitive use of the irons, this Court has
stated that “[I]n the absence of a showing of intent to punish,
a court must look to see if a particular restriction . . . ,
which may on its face appear to be punishment, is instead but an
incident of a legitimate nonpunitive governmental objective.”
Palmiter, 20 M.J. at 95 (quoting Bell v. Wolfish, 441 U.S. 520,
539 n.20 (1979)) (alteration in original). Further, as the
United States Court of Appeals for the Tenth Circuit held:
Prison officials have wide discretion to determine
what measures should be taken in order to preserve
order and security in a detention facility.
Determining [for example] that a particular inmate
poses a security risk to fellow inmates and to
corrections personnel [or to himself], and requiring
that inmate to wear ankle and wrist restraints is
certainly within this discretion.
25
United States v. Wise, No. 06-0610/AR
Sanders v. Hopkins, 131 F.3d 152 (10th Cir. 1997) (table
decision) (published in text format at 1997 U.S. App LEXIS
34179, at *6-*7, 1997 WL 7552776, at *2).
This Court has not addressed the meaning of “safe custody.”
Lower courts have found the use of irons appropriate when
necessary to limit the potential risk of harm to an inmate or
harm caused by an inmate, or to prevent a well-founded concern
regarding escape. For instance, the United States Navy Court of
Military Review found that leg irons were appropriately used for
safe custody when they were placed on a known violent prisoner
who had recently threatened an officer, and the prisoner was
only constrained in such a manner for the duration of a two-hour
transport flight. United States v. Ewing, 44 C.M.R. 738, 741
(N.C.M.R. 1971). Similarly, the United States Coast Guard Board
of Review approved the use of leg irons on a prisoner who had
escaped in the past and “showed . . . signs of [once again]
going over the hill.” United States v. St. Croix, 18 C.M.R.
465, 467 (C.G.B.R. 1955). The logic of Ewing and St. Croix is
parallel to holdings in the civilian courts. See, e.g., LeMaire
v. Maass, 12 F.3d 1444, 1457 (9th Cir. 1993) (holding that
keeping a known violent prisoner shackled and handcuffed even
when showering was permissible so as to protect staff and fellow
inmates); Selby v. Martin, 84 F. App’x 496, 498-99 (6th Cir.
26
United States v. Wise, No. 06-0610/AR
2003) (holding that confinement in leg irons and belly chains
was allowed for an inmate convicted of attempted escape).
Though the location of Appellant’s confinement in Tikrit,
Iraq, may have limited his escape risk, we are not provided any
evidence of his propensity to abscond. Nor are we provided any
evidence that the use of irons was necessary for safe custody.
Such evidence is dispositive of an Article 55, UCMJ, violation
regarding the use of irons, and once an appellant makes a
colorable claim that he was put in irons, the burden for
establishing that an exception to the statute’s prohibitions
were met falls to the government. In the context of an Article
13, UCMJ, claim, the appellant is experiencing the deprivations,
or has experienced the deprivations, of which he complains and
thus retains the burden of demonstrating the violative
conditions. However, in this context, the information as to
whether the irons were used as punishment or were used to
effectuate “safe custody” is within the possession of the
government.
As a result, on the present record before this Court we
lack the necessary facts to determine whether the use of irons
was necessary for “safe custody” and thus nonpunitive given the
combat context presented. Such a finding “may justify [the]
imposition of conditions and restrictions” without those
conditions and restrictions becoming punitive. Bell, 441 U.S.
27United States v. Wise, No. 06-0610/AR
at 539-40 (“[I]f a particular condition or restriction . . . is
reasonably related to a legitimate governmental objective, it
does not, without more, amount to ‘punishment.’”).
DECISION
The decision of the United States Army Court of Criminal
Appeals is affirmed as to the findings but set aside as to the
sentence. The record of trial is returned to the Judge Advocate
General of the Army for remand to that court. The Court of
Criminal Appeals is authorized to resolve the factual issue of
why Appellant was confined in Tikrit with irons. If necessary,
that court may order a DuBay hearing. If the Court of Criminal
Appeals orders further fact-finding and the convening authority
determines that such fact-finding is impracticable, the
convening authority may resolve the matter and moot the
necessity for further fact-finding by awarding Appellant twenty-
one days of confinement credit for that period of time Appellant
alleges in his unrebutted affidavit that he was confined in
double irons in the Tikrit compound. Following this action,
Articles 66 and 67, UCMJ, 10 U.S.C. §§ 866, 867 (2000), shall
apply.
28
United States v. Wise, No. 06-0610/AR
EFFRON, Chief Judge (dissenting):
Exhaustion of remedies is a critical component of
litigation concerning the conditions of confinement. Our case
law requires an appellant to demonstrate exhaustion of remedies
absent unusual or egregious circumstances. See, e.g., United
States v. White, 54 M.J. 469, 472-73 (C.A.A.F. 2001). As noted
in the majority’s opinion, the exhaustion requirement promotes
two goals: (1) resolution of grievances at the lowest possible
level; and (2) development of an adequate record for judicial
review.
The record in the present case demonstrates that Appellant
did not pursue the opportunities for relief that were available
early in his period of confinement when he had the assistance of
counsel. Further, the record does not establish the unusual or
egregious circumstances that would excuse failure to exhaust
under our case law. Under these circumstances, I respectfully
dissent from the majority’s decision to remand this case to the
United States Army Court of Criminal Appeals for proceedings on
the merits of Appellant’s claim.
I. BACKGROUND
A. RECENT SUPREME COURT DECISIONS ON EXHAUSTION OF REMEDIES
Recent decisions by the Supreme Court confirm our reliance
on the exhaustion doctrine, but call into question our practice
United States v. Wise, No. 06-0610/AR
of placing the burden on the appellant to demonstrate
exhaustion.
In Woodford v. Ngo, 126 S. Ct. 2378 (2006), the Supreme
Court underscored the dual purposes of the exhaustion
requirement in the context of the Prison Litigation Reform Act
of 1995, 42 U.S.C. § 1997e(a) (2000). First, exhaustion creates
an incentive for resolution of claims at the prison level
without resort to litigation. Woodford, 126 S. Ct. at 2388.
Second, “exhaustion often results in the creation of an
administrative record that is helpful to the court. When a
grievance is filed shortly after the event giving rise to the
grievance, witnesses can be identified and questioned while
memories are still fresh, and evidence can be gathered and
preserved.” Id.In Jones v. Bock, 127 S. Ct. 910, 919 (2007), the Supreme
Court considered which party should bear the burden of proving
exhaustion. The Supreme Court concluded that failure to exhaust
administrative remedies is an affirmative defense available to
the government in civil litigation about prison conditions. Id.
at 921. In that context, once a prisoner raises a claim of
illegal punishment, the burden is on the government to prove
failure to exhaust. Id.Although our prison condition litigation arises in a
criminal rather than a civil context, we typically have looked
2
United States v. Wise, No. 06-0610/AR
to the Supreme Court’s doctrine in such cases to guide the
litigation of prison condition complaints in the military
justice system. See, e.g., United States v. Lovett, 63 M.J.
211, 215 (C.A.A.F. 2006) (relying on Farmer v. Brennan, 511 U.S.
825, 834 (1994), to allocate the relative burdens of the parties
on the merits of a prison conditions claim). Our practice of
placing the burden on an appellant to prove exhaustion is a
judicial doctrine, not specifically required by the Uniform Code
of Military Justice or the Manual for Courts-Martial. In light
of the Supreme Court’s decision in Jones, 127 S. Ct. at 921, it
is not apparent why the prison condition litigation in the
military should not place the burden on the government rather
than on the defense to demonstrate a failure to exhaust
available remedies.
B. THE CONVENING AUTHORITY’S POWER TO PROVIDE A REMEDY
FOR ILLEGAL CONFINEMENT CONDITIONS
The convening authority has broad power to provide relief
for illegal confinement conditions imposed prior to the
convening authority’s action on the sentence under Rule for
Courts-Martial (R.C.M.) 1107. In the course of taking such
action, the convening authority has broad discretion to
disapprove the sentence in whole or in part, mitigate the
sentence, or change the sentence as long as the severity of the
punishment is not increased. R.C.M. 1107(d)(1). The
requirement for post-trial action on the sentence provides an
3
United States v. Wise, No. 06-0610/AR
opportunity to bring illegal confinement conditions to the
attention of a responsible official, because the convening
authority is obligated to consider “any matters submitted by the
accused under R.C.M. 1105 or, if applicable, R.C.M. 1106(f).”
R.C.M. 1107(b)(3)(A)(iii).
The defense counsel’s obligation to serve the post-trial
interests of his or her client includes a responsibility to
ensure that appropriate sentence credits are applied against the
sentence approved by the convening authority. See David A.
Schlueter, Military Criminal Justice Practice and Procedure §
17-2(B)(7) (6th ed. 2004). As noted in Schlueter’s treatise,
“defense counsel should be prepared to file any written briefs
or documentation that demonstrate accused’s entitlement to a
sentence credit. . . . [A]ny information about sentence credits
should be transmitted to the convening authority at an early
opportunity.” Id.
The defense has multiple opportunities to present
information about confinement conditions to the convening
authority before the convening authority decides whether to
approve the sentence. See R.C.M. 1105; R.C.M. 1106; Article
38(c), UCMJ, 10 U.S.C. § 838(c) (2000); United States v. Fagnan,
12 C.M.A. 192, 195, 30 C.M.R. 192, 195 (1961). See generally
David A. Shaw, The Article 38c Brief: A Renewed Vitality, Army
Law., June 1975, at 26. Given this direct access to the
4
United States v. Wise, No. 06-0610/AR
convening authority, defense counsel “bears a . . . [heavy]
burden of ensuring that the convening authority is aware of
those matters that indicate that clemency may be warranted.”
Schlueter, supra, at § 17-8(B)(1).
C. DEVELOPMENT OF THE FACTUAL RECORD
1. Trial and post-trial proceedings (December 2003-March 2004)
a. The Appellate Rights Memorandum
Two days before his trial, Appellant signed and initialed a
memorandum documenting his post-trial rights. Appellant
acknowledged that:
I have the right to submit any matters I
wish [sic] the convening authority to
consider in deciding what action to take in
my case. . . . If I have matters that I wish
the convening authority to consider, . . .
such matters must be submitted within 10
days after I or my counsel receive a copy of
the record of trial . . . .
b. Trial and Sentencing
On December 16, 2003, in Tikrit, a special court-martial
consisting of a military judge sitting alone adjudged the
sentence in Appellant’s case. The sentence included eight
months of confinement.
c. Appellant’s Memorandum to the Convening Authority
On January 1, 2004, Appellant submitted a memorandum to the
convening authority requesting approval of an administrative
discharge or reduction of confinement to no more than four
months. Appellant’s request was typed on “United States Army
5
United States v. Wise, No. 06-0610/AR
Trial Defense Service” letterhead, with the image of the
Department of Defense symbol and the reply address of the Trial
Defense Service.
In his two-page memorandum, Appellant admitted having made
mistakes in his life, and accepted responsibility for the crimes
he committed. He told the convening authority that he wrote the
letter not to make excuses, but to ask for clemency. He
described his difficult childhood and the abuse he suffered in
foster homes. Appellant discussed his decision to join the
military, and the happiness he found in the Army. Finally, he
told the convening authority that he was ready to excel again in
the civilian world, and that approval of his request for a post-
trial administrative discharge or reduction of confinement would
give him the head start he needed. Appellant concluded by
thanking the convening authority for reading his letter.
The January 1 memorandum did not mention the conditions of
Appellant’s confinement. The memorandum did not indicate that
he was incarcerated with enemy prisoners, that he was
incarcerated in irons, or that he had any concerns about health,
or safety, or improper treatment. Appellant did not indicate
that he had any difficulty in contacting his lawyer or his unit
during his incarceration.
6
United States v. Wise, No. 06-0610/AR
d. The SJA’s Post-Trial Recommendation
The staff judge advocate (SJA) submitted the required post-
trial recommendation under R.C.M. 1106 to Appellant’s defense
counsel on January 30, 2004. The defense counsel acknowledged
receipt the same day. The SJA’s post-trial advice recommended
approval of the adjudged sentence except for any confinement in
excess of seven months, as provided for in the pretrial
agreement.
e. Defense Counsel’s Submission to the Convening Authority
On February 6, 2004, Appellant’s defense counsel submitted
post-trial matters to the convening authority “[p]ursuant to
[R.C.M.] 1105 and 1106 and Articles 38(c) and 60.” The
submission consisted of a two-page memorandum typed on “U.S.
Army Trial Defense Service” stationary. The memorandum included
the Trial Defense Service Tikrit Field Office reply symbol and
address in Iraq.
Defense counsel’s memorandum did not request any
corrections to or changes in the SJA’s post-trial advice. The
defense requested that the convening authority approve an
administrative discharge or, in the alternative, disapprove any
confinement in excess of four months.
Defense counsel described Appellant’s background and his
efforts to become a good soldier. The defense memorandum
attached two stipulations of expected testimony from Appellant’s
7
United States v. Wise, No. 06-0610/AR
trial in which noncommissioned officers who knew Appellant
vouched for his ability to overcome his troubles. Defense
counsel personally offered to discuss Appellant’s case with the
convening authority, and listed his phone number at Forward
Operating Base Speicher in Tikrit, Iraq.
f. The SJA’s Addendum and the Convening Authority’s Action
The SJA’s Addendum to the post-trial recommendation, dated
March 7, 2004, acknowledged Appellant’s R.C.M. 1105 and 1106
submissions, and adhered to the original recommendation. The
convening authority acted that same day, approving Appellant’s
sentence to confinement for seven months, reduction to Private
E-1, and a bad-conduct discharge.
2. Proceedings before the Court of Criminal Appeals
a. Appellant’s First Affidavit
On August 9, 2004, while in the State of Texas, Appellant
signed a four-page affidavit, which he wrote “to accompany” the
appellate brief in his case. The affidavit described his
conditions of confinement in Tikrit, Iraq, and Camp Arifjan,
Kuwait. Appellate defense counsel included the affidavit as
Appendix A in the brief filed with the Court of Criminal
Appeals.
The affidavit is the first document in the record in which
Appellant discusses the conditions of his confinement. The
affidavit describes the first week after his sentence was
8
United States v. Wise, No. 06-0610/AR
adjudged, in which he was confined in Tikrit, Iraq. The
affidavit stated that: Appellant spent one week confined in
Tikrit along with Iraqi prisoners; he was separated from the
Iraqis by only a strand of concertina wire, and he was able to
recognize some of the Iraqi prisoners as having been
incarcerated previously with his unit; he was placed in
handcuffs and leg irons the entire time he was incarcerated in
Tikrit, even while eating and sleeping; he was housed
approximately fifteen feet away from two Iraqi prisoners with
tuberculosis for five days. The affidavit stated that after one
week in Tikrit, he was transferred to Camp Arifjan, Kuwait,
where he spent the remainder of his seven month sentence in
poorly ventilated conditions, oppressive heat, and
unsatisfactory hygiene and dining facilities. He was released
in June 2004.
The affidavit does not mention any attempt on his part to
talk with prison authorities or his defense counsel about his
treatment in Tikrit or Kuwait. The affidavit contains no claim
that he was discouraged or prevented from complaining about the
conditions of his confinement. The affidavit contains no
indication as to why he did not raise these matters to the
convening authority or otherwise file a complaint during the
period in which he had the active assistance of defense counsel
in submitting post-trial matters.
9
United States v. Wise, No. 06-0610/AR
b. Appellant’s Brief to the Court of Criminal Appeals
Appellant’s brief to the Army Court of Criminal Appeals
alleged cruel and unusual punishment during his incarceration in
Iraq and Kuwait. The defense brief did not address the issue of
exhaustion of administrative remedies, nor did the brief
otherwise indicate why Appellant had not complained to military
authorities requesting relief from the appellate courts. The
brief did not claim that trial defense counsel had been
ineffective in his post-trial representation of Appellant.
c. The Government’s Brief at the Court of Criminal Appeals
The Government’s Answer at the Court of Criminal Appeals
addressed Appellant’s complaints of cruel and unusual punishment
by asserting Appellant’s failure to exhaust administrative
remedies. Appellant did not file a reply brief to the Court of
Criminal Appeals and did not file a further affidavit at that
court addressing the question of exhaustion.
d. The Decision of the Court of Criminal Appeals
The Court of Criminal Appeals affirmed in a summary
disposition.
3. Further appellate proceedings
a. The Petition for Review
Appellant sought a grant of review under this Court’s
discretionary jurisdiction, Article 67(a)(3), UCMJ, 10 U.S.C. §
867(a)(3) (2000). In his petition supplement, Appellant
10
United States v. Wise, No. 06-0610/AR
requested that we grant review of a single issue, whether his
confinement conditions constituted cruel and unusual punishment
under Article 55, UCMJ, 10 U.S.C. § 855 (2000), and the Eighth
Amendment to the Constitution. The Government filed a letter
response attaching its brief before the Court of Criminal
Appeals in which it argued that Appellant had failed to exhaust
his administrative remedies. Appellant did not address
exhaustion in his petition supplement, and did not file a reply
to the Government’s submission.
b. The Grant of Review
On August 15, 2006, this Court granted review of a modified
issue, asking whether Appellant’s confinement conditions were
unlawful, and “whether, in the context presented, Appellant
forfeited his claims of unlawful post-trial punishment by
failing to exhaust his administrative remedies.”
c. Appellant’s Second Affidavit
On September 21, 2006, Appellant wrote and signed an
affidavit that, for the first time, addressed exhaustion of
administrative remedies. The affidavit stated that he had not
had any contact with his unit or anyone else during the week
following December 16, 2003, in which he was confined in Tikrit.
He stated that he had not received normal in-processing in
Tikrit, and was not informed how to contact an attorney or how
to raise concerns and complaints. He stated that when he tried
11
United States v. Wise, No. 06-0610/AR
to speak with American personnel he was ignored. He added that
after he arrived at the confinement facility in Kuwait he was
allowed to file complaints and raise concerns about the Kuwait
facility, but was told that he could not complain about the
conditions in Tikrit because it was a different facility. He
further stated that he did not receive any explanation about the
Article 138, UCMJ, 10 U.S.C. § 938 (2000), grievance process,
and that he did not know what it was, how it worked, or how he
could use it to address his treatment in confinement.
The affidavit makes no mention of his submission to the
convening authority on January 1, 2004, a week after he
completed his confinement in Tikrit, nor does the affidavit
address the representation he received from his defense counsel
over the next two months. The affidavit offers no explanation
as to why he did not request relief from the convening authority
in his post-trial submission during the period in which he was
receiving legal representation by trial defense counsel on post-
trial matters.
The brief filed by appellate defense counsel likewise is
silent on these matters. Appellant has not addressed his
failure to request redress during the period in early 2004,
immediately following his time in the Tikrit facility, in the
context of the direct communications that he and counsel were
having with the convening authority. The defense brief makes no
12
United States v. Wise, No. 06-0610/AR
claim that combat, field, or operational conditions facing
Appellant and his counsel restricted communications between
counsel and client, or otherwise inhibited the filing of a
complaint during the two-month period following his time in the
Tikrit facility when counsel and client were communicating with
the convening authority. The defense brief makes no claim of
ineffective assistance of counsel either with respect to the
submissions to the convening authority or with respect to
preserving Appellant’s rights by seeking redress under Article
138, UCMJ, or otherwise.
II. DISCUSSION
The primary focus of the present case is Appellant’s
confinement in Tikrit during the week after his December 16,
2003, court-martial. The record demonstrates that in the two-
month period following his confinement in Tikrit, Appellant had
access to counsel, communicated with counsel, and submitted
requests for sentence relief to the convening authority while he
was incarcerated. Appellant’s brief does not explain why he
failed to request that the convening authority provide him with
sentence credit for illegal confinement, or why he did not have
an adequate opportunity to utilize the assistance of counsel in
obtaining redress. Since his release from confinement,
Appellant has not asserted that operational conditions or any
13
United States v. Wise, No. 06-0610/AR
other circumstances inhibited his communication with counsel
during the period in which the defense was making submissions to
the convening authority. He has not asserted that his defense
counsel was ineffective for failing to inquire about or pursue
the conditions of his post-trial confinement.
The record demonstrates that Appellant had a clear
opportunity to seek relief during the period immediately
following his confinement in Tikrit when he was in communication
with defense counsel and the convening authority. The record
does not contain an adequate explanation for Appellant’s failure
to do so during that period. A request for relief at that time
would have provided the opportunity to create an appropriate
administrative record of his confinement conditions. As the
Supreme Court recently observed in Woodford, 126 S. Ct. at 2388,
witnesses could have been identified and questioned while
memories were still fresh, and evidence could have been gathered
and preserved.
Under these circumstances, whether the burden falls on
Appellant or on the Government, the record demonstrates that
Appellant’s claim does not meet the exhaustion of remedies
requirement. In that posture, it would be inappropriate to
provide Appellant with the opportunity to create the record now
that could have been created near the time of his incarceration
in Tikrit. Further inquiry into the merits of the claim is
14
United States v. Wise, No. 06-0610/AR
unwarranted. Accordingly, I respectfully dissent from the
majority’s decision to remand this case for further proceedings
on the merits of Appellant’s claim.
15