Maj. Ashden Fein (Sketch by Clark Stoeckley)

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 on December 11. 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.

The defense delivered its closing argument first (a full report on the argument can be read here). The government presented its closing argument in the afternoon. The following is a report on much of what the government stated in their argument and what the judge asked the government to further address.

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Following a lunch recess, the government had military prosecutor Major Ashden Fein step up to give a closing argument. He started by outlining the law to the judge, as if she might need a reminder. An officer must have knowingly and deliberately violated regulations. The judge must determine whether there was an intent to punish Manning, was it so excessive to constitute punishment and/or did officers abuse their discretion.

Fein declared, “The US government argues Quantico staff had one interest – to protect Manning from harming himself and others while ensuring he was present for future proceedings.” The treatment was not “so excessive to constitute punishment” when considering factors like the potential length of sentence (life without parole), poor family relationships and home conditions, low tolerance of frustration and “disruptive behavior.”

Judge Army Col. Denise Lind asked at what point did the “disruptive behavior” start. Fein said it started in Kuwait “in documentation that came” with Manning to Quantico. The judge asked when it happened after arriving at Quantico. Fein told the judge it began with an incident on January 18, 2011.

The government proceeded to argue, with the exception of two times, officers had not abused their discretion. There were two periods in Manning’s confinement August 6-11 in 2010 and January 18-20 in 2011 when Manning had not been taken off suicide risk when medical officers advised the Brig officer-in-charge (OIC). For seven days, Manning was improperly held on suicide risk and the government conceded the defense should receive 1-for-1 credit or seven days for this abuse.

The judge asked what the government’s position was on taking clothing. She asked about a proponent of the regulations, Lt. Col. Troy Wright, who sent an email saying that’s not how we do business after CWO2 Denise Barnes, Brig OIC, began to take Manning’s underwear each night on March 2. Fein told the judge it went to her discretion. Plus, “What was the alternative?” She had this statement in front of her about underwear “that wasn’t going to be taken lightly” (e.g. if I wanted to kill myself I could do it with the elastic of my waistband). He also argued she had “tailored a specific remedy for the statement” and not put him on suicide risk because of its intrusive nature.

“Let me just go down that road a bit. How much leeway do Brig officials have to do a suicide risk-lite if you will?” Judge Lind asked. To which Fein responded, “No line” and there “should be no line” because “every individual detainee has his own or her own unique circumstances.”

Fein essentially said he could have been on suicide risk all the time. Manning may not have liked being checked every five minutes while on prevention of injury (POI) status, but at least he did not have a guard peering into his cell every day. “In 5 minutes, that’s 5 minutes of potential privacy that an individual gets where otherwise an individual wouldn’t have it,” Fein stated.

At no point in proceedings was there ever any evidence presented that Manning had been an escape risk. The government, however, seemed to think designating Manning a maximum custody detainee was appropriate because he always posed an existential escape risk. Fein suggested a “lay person”—someone who does not work in the Brig—might think escape has to be an “overt act,” like “to have a hammer and have a chisel and scope the fence line or flee when given the opportunity.” But, what needed to be made clear was potential length of sentence is “huge factor if not the greatest factor for a Brig OIC in determining if escape is a factor.”

Fein reiterated length of sentence, low tolerance of frustration, poor family ties and risk of self-harm along with risk of escape were major factors for keeping him in MAX custody. The judge asked if there was any requirement to reconsider these factors over time. Fein said there was no requirement in the US government’s opinion. And, he added the closer one gets to trial, the more one has the realization that a sentence could occur and that increases the escape risk.

Fein ran down the list of documents the Brig used when determining Manning’s confinement conditions: his charge sheet, paperwork Manning signed, Brig forms, notes from the Classification & Assignment review boards, special handling instructions, weekly progress reports going up the chain of command, “chits” that were complaints sent to the Brig OIC, etc.

What was the government’s position on the testimony CWO5 Abel Galaviz, a top Marine Corps corrections investigator, gave about the board reviewing Manning being irregular? Fein’s answer was that CWO5 Galaviz “was not at the Brig at the time.” Also, there are no prohibitions against having a counselor on the board itself. The Brig had made a decision to have the “most experienced senior counselor” on the board. There was “no evidence other than hypothetical” that there had been any unnecessary command influence by then-Gunnery Sgt. Craig Blenis, Manning’s counselor.

“Everyone testified it did not happen, that there was any influence,” Fein argued. “If it did happen, it was Manning’s counselor who would be the influence,” and, if anyone would know more about Manning, it was his counselor so it was not a problem.

Fein addressed the testimony of Navy Captain Dr. William Hocter and Brig officers. He said “communication was not ideal.” Sometimes Hocter put “five words” in his reports. Sometimes he put one paragraph—”twice.” Importantly, 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.”

Remarkably, the government chose to downplay the lack of trust Brig officers had for Hocter. Officers at Quantico thought Hocter was responsible for allowing a suicide to happen in the Brig. The suicide, which took place months before Manning’s confinement, 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.

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“For Pfc. Manning, there’s a pattern of behavior, not just a pattern of misbehavior,” which the Brig officers judged when placing him on POI, Fein argued. The judge asked he was on POI because of his mental health condition. To this, Fein said the US government believed it was a “large factor” but “one of many factors.”

Judge Lind asked about whether the Classification & Assignment review board looked at Manning’s POI status independent from factors that would make him a MAX custody detainee. The government suggested they had. His special handling instructions said POI, suicide risk or MAX. Forms were filled out where officers could write in different areas and make separate determinations.

Fein proceeded to outline how Manning had failed to communicate with Brig officers. He argued Manning had spoken with visitors over the holidays. They had the recordings. He had not consistently communicated with then-GYSGT. Blenis, his counselor (except in February when it came to March Madness and basketball).

Manning did not testify as to why he had engaged in “odd behaviors.” Judge Lind then asked if any officer had asked him. Fein told the judge “there was no evidence whether they asked him or not.”

“How does he know he has to explain the odd behaviors if he’s not asked?” Lind asked.

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.”

The judge followed up: Why didn’t GYSGT. Blenis or MSGT. Brian Papakie ever tell Manning he needed to start communicating if they wanted him to make a change?

To this Fein said there was no evidence an “overt statement” was ever relayed but it was clear “they always tried to elicit it from him.” For example, during his appearance before the C&A Board on January 21 they tried to engage him but Manning did not respond.

Fein contended the government was nont in a position to know “how or why Pfc. Manning made the decision to vocalize to Brig officials.” He was “advised to be patient and be there.” Consistently he did not communicate.

The judge wanted to know why a response to an official complaint (the Article 138 complaint) had not mentioned communication issues. The US government did not know why.

Judge Lind asked about exercise time. The facts, she said were that Manning had twenty minutes of “sunshine call” until December 9, 2010. What did the government understand as being required? Fein replied, “The US government does concede it’s confusing, the regulations.” He then said recreation includes physical and non-physical activities and under Manning’s status there was not necessarily a requirement for physical activities.

“Correspondence time” is “considered recreation,” Fein claimed. Television call was also part of recreation.

Judge Lind asked Fein about whether he thought Manning was required to have 1 hour of exercise while he was being held. 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.

The government also made an argument that amounted to Manning as a detainee did not have the authority to second-guess the decisions of the Brig officers. Also, Manning was not like the other detainees and the officers did their best to try and figure Manning out so they could take care of him properly.

In the end, it was not dissimilar from how the Quantico Brig officers consistently made up excuses for why they treated him like they treated him when they had no real evidence. The government’s case was limited to rules, regulations and the conventional wisdom of military officers and their views on running correctional facilities. There was not much the government could rebut except to say it was within its right for Quantico to impose strict conditions on Manning as they did for nine months.