The soldier charged in the biggest security breach in U.S. history, was appearing before a military court at Fort Meade, Md., Tuesday, seeking to avert a trial by arguing that he has been subjected to "unlawful pretrial punishment" and "unduly onerous confinement conditions."
Army Pfc. Bradley Manning was expected to testify that he was locked up alone in a small cell for nearly nine months at the Marine Corps brig in Quantico, Va., and forced to sleep naked for several nights — treatment his lawyers say constituted illegal punishment — and grounds to cancel the trial.
Military judges can dismiss all charges if pretrial punishment is particularly egregious, but experts say it is rare that they do. Military prosecutors in the case maintain that Manning’s treatment was proper — confining him initially as a maximum-security detainee who posed a risk of injury to himself or others, and after later evaluation changing his status to medium risk.
In a 28-page motion filed in August, civilian attorney David Coombs builds an argument, based in part on dozens of email messages, that Quantico officials operated in a culture where "anything goes" and "nobody is held to account for their conduct," and willfully ignored the advice of medical professionals who did not support the solitary confinement.
The motion requests that if the court decides to go forward with the trial and Manning is convicted, he should be given 10 days' credit for time served for every one that he spent in "in conditions tantamount to solitary confinement."
A United Nations investigator called the conditions of Manning's time at Quantico cruel, inhuman and degrading, but stopped short of calling it torture.
Coombs, who specializes in representing soldiers, also argues that Manning has been deprived of the right to a speedy trial.
In total, Manning has been held in pre-trial detention since May 29, 2010 — nearly two and half years.
"By the time the Government actually brings PFC Manning to trial in February of 2013 (983 days after he was placed into pretrial confinement), the Empire State Building could have been constructed almost three times over," Coombs recently wrote in his blog on the case.
But there are few precedents for military judges dismissing charges based on pretrial punishment.
The usual remedy is credit at sentencing for time served, said Lisa M. Windsor, a retired Army colonel and former Army judge advocate now in private practice in Washington.
In a 1956 case, U.S. v. Bayhand, a military appeals court ordered all charges dismissed against a soldier who had been forced during his pretrial confinement to do hard labor alongside a sentenced prisoner. The court ruled that the soldier had been given an illegal order.
Since then, there have been few, if any, cases in which pretrial punishment has led to dismissal of all charges. Lt. Col. Eric Carpenter, chairman of the criminal law department at the judge advocates school in Charlottesville, Va., said he couldn't find one but he couldn't say for sure that the remedy hasn't been granted.
Manning, a 24-year-old native of Crescent, Okla., is accused of sending hundreds of thousands of classified Iraq and Afghanistan war logs and more than 250,000 diplomatic cables to the secret-spilling website WikiLeaks while he was working as an intelligence analyst in Baghdad in 2009 and 2010.
Manning has offered to take responsibility for offenses that constitute a small subset of the charges against him. The military judge hasn't yet ruled on whether the offer is permissible, and prosecutors have not said whether they would still pursue the charges against him.
If convicted of aiding the enemy — the most serious of 22 charges he faces — Manning faces possible life imprisonment.
This article includes reporting from NBC News' Kari Huus and The Associated Press.
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