UPDATE – 6:05 PM EST More comprehensive report on closing arguments to be posted soon. It will be up late tonight or in the morning tomorrow.
In the meantime, here’s my appearance on “The Matthew Filipowicz Show” yesterday talking about this hearing and some of the highlights over the past ten or so days. I appreciate Matt having me come on to share my reporting and recommend that people listen to his show.
UPDATE – 6:00 PM EST The defense pointed out that Staff Sgt. Terry did not testify during the hearing. He would have been able to confirm what happened on March 3, 2011, when Manning stood at parade rest naked. The guard who was in the observation booth did not testify either.
David Coombs argued the government “took great pains to bring everyone that had involvement” in a January 18, 2011, incident but not every one who witnessed what happened on March 3. Manning was counseled for everything he did wrong, even if it was the littlest thing.
CWO2 Barnes thought the incident was on Manning’s “hard card” (keeping track of any minor infractions, etc). She said it was one time occurrence and they told him to not do it again. But, Coombs argued, this was a soldier standing naked. They claim he chose to do this. Wouldn’t this have been a disciplinary infraction?
The Brig officers could produce no evidence that they disciplined him for this making it more and more likely that he was ordered to stand naked and put down his blankets and did not choose to stand naked so this could be reported and get him attention in the media (which the government argued).
UPDATE – 5:58 PM EST Coombs said he thinks the Brig officer-in-charge does not have the authority to take clothing from a detainee whenever he or she wants to take a detainee’s clothing.
UPDATE – 5:53 PM EST What happened when Manning was moved to Leavenworth in April 2011, Coombs argued, is the “best evidence Manning did not need to be in conditions” that were “onerous” to “ensure his presence” at a trial. He has had no issues while confined at Leavenworth except for an altercation with a detainee in December 2011. He has been allowed recreation call. He has been able to move outside his cell “freely without chains.” He has been allowed personal items in his cell. He has not tried to harm himself.
There at the facility the commanding officers listen to their doctors, Coombs said. The doctors are never overruled. And Manning has been happier and more talkative, according to officers in his Army chain of command who have visited with him to see that he is doing okay.
UPDATE – 5:50 PM EST The disruptive behavior that the government said justified the pretrial confinement conditions at Quantico happened when Manning was in Kuwait and then… …In January 2011, when there was an incident where he passed out in the indoor recreation room because, as Manning said, the guards were making him anxious.
UPDATE – 5:40 PM EST The government addressed the issues Quantico Marine Brig officers were having with Navy Captain Dr. William Hocter, the medical officer reviewing Manning’s mental health. Brig officers did not trust him.
Maj. Fein said the communication between Hocter and Brig officers “was not ideal.” Sometimes he put five words in a report. Sometimes he put one paragraph—”twice.” Manning never went without mental health care. Although there was a communication breakdown, ultimately information was still relayed. The recommendations were “given, received, reviewed and taken into consideration.”
This is kind of remarkable because the government did not decide to suggest Hocter was hard to trust because there was a suicide in the Brig that officers at Quantico had thought he was responsible for allowing to happen since he did not detect that this prisoner was considering suicide. The suicide took place months before Manning and became a bit of a red herring for why the officers did not take Hocter’s recommendations more seriously. The government must have recognized that the officers were at fault here in some respect and should’ve fired him or asked him to resign if they really didn’t trust Hocter.
UPDATE – 5:30 PM EST Maj. Ashden Fein addressed the issue of Manning’s lack of communication in the Quantico Brig. He said Manning spoke to visitors, even over the holidays. His counselor, GYSGT. Craig Blenis, said Manning did not communicate “consistently,” except in February when March Madness was coming. Manning never explained his “odd behaviors.” At no point “has there ever been explained.”
Judge Lind asked if the officers had asked him about these “odd behaviors.” Maj. Fein said there was “no evidence whether they asked them or not.” Lind appropriately followed up, “How does he know he has to explain the odd behaviors if he’s not asked?” Maj. Fein’s answer was that the defense was aware that these “odd behaviors” were documented but Manning never talked to “confinement officials” about what they were seeing. “The reason why the US government is not going to conjecture.” And Maj. Fein added there was “nothing at the level or modicum amount that would allow Brig officials to truly assess Pfc. Manning himself.”
UPDATE – 5:15 PM EST Judge Lind asked Maj. Fein to talk about exercise time. She said the facts are clear Manning had “sunshine call” until December 9. What is required of the Brig?
Maj. Fein stated, “The US government does concede it’s confusing, the regulations.” He said there’s recreation call, sunshine time and recreation for exercise activity. Recreations includes “physical and non-physical activities.” (So, as I type this blog update, according to the US government, I am engaging in “recreation.”)
UPDATE – 5:10 PM EST Judge Lind asked Maj. Fein about whether he thought Manning was required to have 1 hour of exercise while he was being held. Maj. Fein said he believed the regulations for the Brig instructed officers to give general population detainees 1 hour. However, “each detainee would have special handling instructions,” according to the US government. The handling letter for a detainee would determine how much exercise a detainee would have.
UPDATE – 5:00 PM EST Court adjourned about 3:15 PM EST (according to Nathan Fuller). Closing arguments were completed The judge said it will take time to transcribe recordings of the proceedings. She needs to go over the material. Court will be back in session Jan 8-11 2013. Judge Lind may rule on whether Manning was unlawfully punished during this motion hearing.
UPDATE – 1:45 PM EST Maj. Ashden Fein is in the middle of the government’s closing argument. It appears to be conceding that there are days when Manning was improperly put on suicide risk in August 2010 and January 2011 that should be credited. They want a 7-to-1 maximum credit but would push for 1-to-1 credit.
The government is moving through maximum custody status, his lack of communication and then Brig official decisions. They are briefly raising issues that have to do with behavior. The judge is asking questions ever few minutes so it is hard to tell what in the government’s prepared closing argument they have been able to get through.
UPDATE – 12:40 PM EST More on the defense’s closing argument later. Going to get this closing argument from government and then I have to get to downtown Washington, DC, to do Al Jazeera English interview
UPDATE – 12:20 PM EST Judge Lind asks about the lack of communication from Manning. Coombs calls this a “red herring.” The response to his Article 138 complaint from CWO4 Averhart, Brig OIC, says nothing about communication issues with Manning. There were issues in March after his underwear was taken by CWO2 Denise Barnes, the new Brig OIC.
“It’s clear Manning does the only sane thing and that’s to stop communicating with these people cause when he says anything it’s used against him,” Coombs said. He thought he was getting through to MSGT. Brian Papakie at one point, talking to him about his frustration over being on POI, and MSGT. Coombs added MSGT. Papakie used the information given to him to go have his underwear taken away for a month and a half
UPDATE – 12:10 PM EST Judge Army Col. Denise Lind asked what proof the defense had of “intent to punish” Manning. Defense lawyer David Coombs answered CWO4 James Averhart’s order to keep Manning in prevention of injury (POI) status until Sanity Board completed, Col. Oltman’s order to keep Manning in POI indefinitely (at the January 14, 2011 meeting) and the influence of Lt. Gen. George Flynn, the commanding general of Quantico.
UPDATE – 12:05 PM EST The defense finished its closing argument. The government will begin its argument at 12:45 PM EST.
Closing arguments in Pfc. Bradley Manning’s “unlawful pretrial punishment” hearing will take place today. It will bring to an end argument on a defense motion alleging Manning was mistreated at Quantico Marine Brig that began over ten days ago.
There is no question as to what the defense will put forward in their closing argument. They will argue officers at the brig made a decision to hold Manning in the harshest conditions possible, regardless of his psychological health. They will present details to the judge to support their belief that this treatment was a “flagrant violation” of Manning’s “constitutional rights” and Judge Army Col. Denise Lind should dismiss all charges with prejudice. If she does not wish to dismiss the charges, they will urge her to, at minimum, grant relief in the form of a 10-for-1 sentencing credit for the 258 days PFC Manning inappropriately spent in the equivalent of solitary confinement. (For more, see the defense motion with many of the main arguments that has been public for months now.)
From testimony and questions in court, it appears the government’s argument has been that they erred on the side of extreme caution when handling Manning and it was within their right to keep him in restrictive confinement conditions. The government has also argued that Manning had multiple opportunities to complain about his confinement but did not use them all and was mostly just using his lawyer, David Coombs, to advocate for him after December 2010. He was not using all the avenues the Quantico Brig made available to him as a detainee. Also, Manning was interested in publicity—building his image by using bloggers or reporters in the media—and this took priority over getting out of confinement condition, which he complained about every now and then while he was imprisoned.
There are about ten to twelve people here today. Charlie Savage of the New York Times is here to cover the closing arguments. It seems all the criticism of the Times for not being here has worked.
A good amount of media is here today, more than yesterday. The Washington Post has their reporter here. And then, there are the regulars – Courthouse News, AP, Alexa O’Brien and courtroom sketch artist Clark Stoeckley along with some reporters from the Bradley Manning Support Network, who were credentialed this round.
I am here and will be covering until early this afternoon. About 1:30 pm EST, even if closing arguments are still finishing, I have to get back to Washington, DC, for an interview for “The Listening Post” on Al Jazeera English.
Updates will appear at the top. Follow me @kgosztola for updates during short breaks.