                        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


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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


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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).

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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



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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.

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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.



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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


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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.




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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.


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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



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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)

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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.



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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.

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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


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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


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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


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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.


                                27
United 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



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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.




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