Maj. Ashden Fein of the prosecution (Sketch by Clark Stoeckley)

Military prosecutors challenging a defense motion alleging Pfc. Bradley Manning was subjected to “unlawful pretrial punishment” while imprisoned at Quantico are arguing Manning had multiple avenues available to him if he wanted to complain about his confinement, which he never used.

Manning, who is being prosecuted for allegedly providing classified information to WikiLeaks, testified this past week on his confinement. He detailed how he was held at Quantico from July 29, 2010 to April 20, 2011. Maj. Ashden Fein cross-examined Manning and tested this theory on Manning: that he somehow had not used all the opportunities he had at Quantico to oppose restrictive conditions.

Manning would have commanders from his company visit him in the Brig. He would have opportunities to meet with clergy. He would have counseling sessions with Gunnery Sergeant Craig Blenis. He would have sessions with a psychiatrist, Navy Captain Dr. William Hocter. Col. Robert Oltman, who was a Security Battalion commander, would stop by Manning’s cell periodically. There were “chits”—forms—Manning had which he could put in an “old ballot box” that would come by his cell on a cart and the “chit” was a way of communicating with the officer-in-charge (OIC) of the Brig. He could have submitted a “chit” to the inspector general but never did.

As Fein argued when cross-examining Manning, Manning was able to use “chits” and request assistance from the chain of command on changing his prevention of injury (POI) status, which authorized the Brig to treat him cruelly. The requests never asked the “chain of command” to assist Manning with getting off POI status. Checklists filled out by commanders there was never any indication that Manning was asking to be taken off POI status. Manning countered explaining he had conveyed this to commanders.

There are multiple reasons why this argument is disingenuous and flawed. One, Manning and his defense—in particular, his lawyer, David Coombs—were actively pursuing administrative or legal remedies as early as December 2010 to get Manning into better confinement conditions.

Manning told Coombs on November 30 in testimony, “We looked at it from the vantage point I wanted to get off POI and best way to do that legally was exhaust my administrative remedies.”

Coombs also emailed Fein prior to December and Fein said he would look into what he could do to get Manning off POI.  Nothing meaningful happened after this email. In early January, Coombs submitted a “memo” to CWO4 James Averhart, the Brig OIC, requesting Manning’s confinement conditions be improved. Then, on January 19, the defense filed an Article 138 complaint asserting “the action of holding PFC Manning in Maximum (MAX) custody, under Prevention of Injury (POI) watch for over five months and recently placing him under suicide risk was an abuse of CWO4 James Averhart’s discretion.” The defense was prepared to file a writ of extraordinary relief if necessary.

Secondly, it is not true that Manning was not taking issue with his confinement conditions when meeting with commanders. On September 22, 2010, he said to a commander he was not aware of why he was on POI. The commander talked to him about it. On February 11, 2011, he raised the issue of injury watch or suicide prevention. Sgt. Jones wrote that Manning had been on “injury prevention” for six months. They had a discussion about the status.

More importantly, this is an inherently authoritarian argument to make. Somehow the prosecution would have the public believe it was not enough for Manning to use his legal team to go through administrative or legal channels in the military to pursue improved confinement conditions. He had to constantly raise his voice every chance he got, even if that meant terribly irritating officers in the Brig, who were in positions of power to make his life even more of a miserable hell.

Also, in January 2011, Manning took the unusual and rare step of appearing before a Classification & Assignment (C&A) Board, which met weekly to review his classification as a MAX detainee on POI status. The board members testified during proceedings over the past few days that it was mostly unheard of for detainees to actually appear before the board, even though they had the right. Manning stood before the board of officers and confronted them not once but two times before he was finally transferred to Leavenworth in April.

Quantico was receiving intense media attention in December 2010 and that attention escalated in January 2011. Protests were taking place and senior officials were coming out against the confinement conditions, which the Brig was imposing on Manning. A support network that was working with Coombs had formed and the effort was aimed at raising public awareness around Manning’s confinement conditions. This included blog posts by Coombs on Manning that gained traction in the media, which would have brought to Brig commanders’ attention in the “early bird,” military synopsis of various news stories/press releases.

In conclusion, the military prosecutors want the world to totally ignore the power dynamics of prison. This is best exemplified by the fact that there was a March 4, 2011 incident where Manning stood at parade rest at the front of his cell completely naked. He tried to stand covered up with his POI blanket but an officer from inside the observation booth said something like, “Is that how you stand at parade rest, Detainee Manning?” Manning knew it was an indirect command and put the blanket down and then stood at parade rest naked. A Duty Brig Supervisor (DBS) passed by and did not ask why he had no clothing or blanket to cover him. Even though it was against Brig policy to stand for count naked, this was permitted to occur.

The prosecutors and commanding officers from the Brig want to say Manning voluntarily put the blanket down and was not ever ordered to stand naked. If that is the case, the DBS would have stopped to take issue with Manning’s decision to stand naked. It certainly was not normal for detainees to stand naked in front of their cells.

The justification for the incident is similar to much of the prosecution’s argument: Bradley Manning voluntarily chose to experience conditions, conditions which have been deemed inhumane by human rights advocates. Bradley Manning opted to stand completely naked. Bradley Manning did not do a good enough job of making it clear to the Brig that he did not like being treated appallingly.

It all leads one to conclude the military prosecutors want the world to think if the Brig punished Bradley Manning, the military or government should not be held accountable because it was not adequately made aware of the fact that Bradley Manning did not like the punishment. And, as far as legal arguments go, there are few arguments more perverse than this.