A significant pretrial hearing in the court martial of Pfc. Bradley Manning, the soldier being prosecuted by the United States government for allegedly releasing classified information to WikiLeaks, concluded yesterday. For more than ten days, the defense and government had witnesses testify on Manning’s treatment while he was confined at Quantico Marine Brig in Virginia. The hearing ended with closing arguments from the defense and government.
Due to the length of the closing arguments and the fact that I would like to share as much as possible, the following is only a report on most of the defense’s closing argument and some of what the judge asked the defense about during the closing argument. A post to be published soon will cover the government’s closing argument and the questions the judge had for the government.
The defense delivered its closing argument first. Manning’s civilian attorney, David Coombs, stood near the lectern in the courtroom and started up a PowerPoint presentation that had the main points he wanted to communicate to Judge Army Col. Denise Lind.
Immediately, Lind stopped Coombs to have him clearly outline what proof the defense had that Brig officers had an “intent to punish” Manning. He answered Brig OIC CWO4 James Averhart’s order to keep Manning in prevention of injury (POI) status until a Sanity Board completed, Col. Robert Oltman’s order to keep Manning in POI indefinitely (declared at a January 14, 2011 meeting) and the influence of Lt. Gen. George Flynn, the commanding general of Quantico. He added, “If conditions are more onerous than necessary, that can give rise to an intent to punish.”
Coombs told the judge there had been clear violations of suicide risk instructions because CWO4 Averhart had not taken Manning off suicide risk when the medical officer recommended he be taken off. Manning should have also been given an hour recreation call but had “sunshine call” for only twenty minutes until December 2010.
CWO2 Denise Barnes, who replaced CWO4 Averhart as Brig OIC in mid-January 2011, believed she had the authority to take Manning’s underwear from him each night after a comment he made on March 2 when he was expressing his frustration with being held on prevention of injury status (“if I really wanted to kill myself, I could do it with the elastic waistband of my underwear”). A top correctional official in Marine Corps Headquarters, CWO5 Abel Galaviz, disagreed and found she could not just take his underwear and should have placed him on suicide risk status if she had wanted to take his clothing.
She had no authority as a Brig commander to take the underwear, the defense added, and that was further evidenced by Lt. Col. Troy Wright, law enforcement policy administrator for the Marine Corps, sent CWO2 Barnes an email saying what she had done was “inconsistent with the way we’re supposed to do business.” She acknowledged during her testimony she had found an “in around.” By not putting him on suicide risk, she did not have to let Manning keep his underwear at night if a medical officer objected to her decision.
Coombs argued it’s not that Manning should have been treated differently than other detainees in maximum custody or on POI status. The “issue is why he was a MAX/POI detainee” after Aug 13, 2010.
Coombs raised the issue of Lt. Gen. Flynn’s involvement, as he had said Manning was a “prime candidate to take his life” in an email in early August. Col. Daniel Choike, the Quantico Base commander, followed the guidance of his general.
Lind showed skepticism. Was there an order to keep him on POI or MAX? Coombs said there did not need to be an order. “His guidance” had the same impact any order would have had. Lind then asked about the evidence that high-ranking officers were having this influence. Coombs cited weekly progress reports on Manning. Even Manning’s counselor, then-Gunnery Sgt. Craig Blenis, knew these weekly reports—typically not produced for individual detainees—were being read by high-ranking officers in the chain of command.
What was Lt. Gen. Flynn doing that was unusual? Coombs told Lind a three-star general had reached down and asked to be briefed before any decisions were made about Manning. He wanted officers running the Brig to know that before they executed any changes—especially after he read about Manning’s treatment in the New York Times in early March—they needed to inform him of what they would be doing so he could intervene if necessary.
The officers, as Staff Judge Advocate (SJA) Lt. Col. Chris Greer said, did not want to be the “ones left holding the bag” if something happened to Manning. They were concerned with “the media impact” and “political impact of the situation.” Lind did not see a problem. Coombs added they were more concerned about how his confinement would appear to the command in the Marine Corps than how best to ensure his presence at trial. They focused on not letting anything happen on their watch and even indicated if no one under Army letterhead wanted to come and take responsibility for him they needed to let the Marine Corps make decisions without trying to interfere.
Staff Judge Advocate to the Commandant of the Marine Corps, Major General Vaughn Ary, were in on “silencing” critics. They did not want an investigation into the Quantico Brig. The investigation that was initiated by Maj. Timothy Zelek, the inspector general at Quantico, was done as walkthrough to confirm that Manning was being held like other MAX or POI detainees. Maj. Zelek did it to prove to himself that he was right. The media reports on Manning’s treatment were all pure exaggeration or fabrication.
Lind wondered if something had gone wrong with Manning, wouldn’t the Brig have been responsible? Didn’t they have a “legitimate interest” in protecting him? Coombs agreed this was true but how they were trying to prevent him from harming himself was “arbitrary.” They had the medical officer, Navy Captain Dr. William Hocter, saying month after month he should not be on POI. And at a certain point, the only justification they had for keeping him on this status was an incident that happened in Kuwait, a statement he made when he came to the Brig—“Always planning, never acting”—on a form he filled out and some behaviors.
Wasn’t communication a large part of it? Lind asked. “That’s the red herring” in this, Coombs answered. The defense filed a formal complaint (Article 138) and when CWO4 Averhart responded there was nothing written in the response about Manning’s lack of communication.
The first real issues with communication came up in March after Manning started to have his underwear taken from him each night. According to Coombs, Manning did “the only sane thing” and that was to “stop communicating with these people” because when he said anything it was used against him.
“Communication is a two-way street,” Coombs stated later in his closing argument. Did they go and tell him certain behavior was of concern to them? Never.
Coombs argued the system fed off itself. “At best,” there was an “incestual relationship with everybody” at the Brig and in the Marine Corps chain of command. It is “amazing how everybody in this process knew everybody,” Coombs added. They wanted to maintain the status quo. CWO2 Barnes had been concerned that she only had 16 years and could not retire if something were to happen.
Lind asked what the defense’s position was on discussion just before January 18, 2011, on removing Manning from POI or MAX, which MSGT. Blenis, SSGT. Jordan and MSGT. Papakie suggested in testimony. Coombs declared, “I think each one of those perjured themselves on the stand. That was never a thought process. That was never a discussion.”
Cpt. Joseph Casamatta, an Army commander who visited Manning multiple times in the Brig, went to CWO4 Averhart on January 14. CWO4 Averhart never said anything about this chatter when he asked for an official explanation for why Manning was still on POI.
People testified that it was not so bad for Manning. CWO2 Barnes said she got to eat what Manning got to eat and was not treated in any exceptional way. But, he should not have been on MAX or POI, Coombs again emphasized.
The mental health professionals talked about how his confinement conditions were a “stressor.” The fact his “spirit wasn’t broke is really kind of amazing.” They watched this young man 24/7. They took notes every five minutes. Every moment of his life including his use of the toilet was watched. It was watched through an observation booth and he could not see who was in there.
He was under constant observation. Yet, they can “only point to a small handful of behaviors”—sword fighting with imaginary characters, dancing or playing peek-a-boo with the mirror. “Licking the bars,” even though that was proven to be side effect of medication Manning was taking.
Even the guards—Lance Corporal Lance Corporal Joshua Tankersly and Lance Corporal Jonathan Cline—said this was “normal behavior” for detainees held in their cell for 23 hours a day. Amazing thing is that there was not more of this behavior in Manning’s 6 x 8 cell.
Manning was moved around in full shackles in the facility. The facility would go on lockdown any time he was moved in the facility. When his family or friends visited him, they had to look at him in shackles.
One might think this was jail but Dr. Hocter, Col. Rick Malone, a mental health professional and SSGT. Jordan each testified Manning had been held in conditions they had only previously seen imposed on “death row detainees.” He was held on POI for the majority of his confinement, which was extraordinary since it is supposed to be a temporary status.
“What the government thought was the best evidence,” they were doing the right thing—the Classification & Assignment board reviewing Manning’s confinement conditions on a weekly basis—“was basically a complete sham as it was setup.” Forms were filled before the meetings. Then-GYSGT. Blenis, served on the board as a senior member but was also Manning’s counselor. Junior officers knew of his vote from the outset of meetings. The junior officers never dissented and always voted the same as his counselor. (CWO5 Galaviz said there might have been “unnecessary command influence” in his testimony.)
Manning appeared before the board for the first time on January 21, 2011. He was asked about the “Always planning, never acting” statement he made when he was processed upon arrival. Manning told the board it may have been false. The board members wondered how they could trust him now. His statements before the board became part of the justification for keeping him on POI.
Logic somehow didn’t make it into Quantico, Coombs asserted. “All logic was checked at the door.” And, “If Quantico could have put him in a straitjacket” and padded room, they would have.
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.
Lind asked about “protective custody.” Multiple officers suggested in testimony that detainees in general population may have hurt him because of the offense he is alleged to have committed. CWO4 Averhart even said from the witness stand that the other prisoners are “very patriotic” and they knew what he was alleged to have done. CWO2 Barnes said other inmates had family who visited them and knew about Manning and there was chatter.
Had there been actual evidence that Manning would be harmed if placed in general population, the appropriate course of action would have been protective custody. It would have been better than putting the facility on lockdown every time he left his cell. Manning would not have had to wear restraints when moving. He would not have had to ask for toilet paper. He would have been allowed hygiene items in his cell. He may have had some more privacy if he was not placed in a cell right in front of the observation booth. He could have maybe been allowed to go on recreation call with another detainee so he could have some interaction. His guests would not have had to see him in restraints. He would have been able to exercise in his cell.
These are “small differences,” but the differences would have meant Manning was not being unnecessarily punished while he was held at Quantico.
The defense requested the dismissal of all charges with prejudice. If the court does not want to give this kind of relief, which it can give, the court should issue a ten-to-one credit for days when Manning was unlawfully punished while he was there in confinement for over two hundred days.