A former Marine Corps brig commander testified Thursday that a vague rule meant he could keep Pfc. Bradley Manning on suicide watch even after a psychiatrist determined that wasn't necessary, as lawyers for the soldier at the center of the WikiLeaks case chipped away at inconsistencies in the military's rationale for how it jailed Manning.
The Army private has argued in the pretrial hearing that the conditions of his confinement at the Marine base at Quantico, Va., were so harsh that the charges — including aiding the enemy by giving classified information to WikiLeaks, the anti-secrecy website — should be dropped.
Regardless of whether they prevail, Manning's attorneys have used the hearing to portray the 24-year-old as a victim of hard-headed captors who went out of their way to punish him even though he has yet to be tried.
On the eighth day of the pretrial hearing at Fort Meade, Chief Warrant Officer 4 James Averhart was called to the stand by prosecutors — their 10th witness in the last five days. Defense attorney David Coombs spent about five hours on a cross-examination aimed at undercutting the government's position that brig commanders believed Manning's treatment was justified to prevent self-injury.
A day earlier, the Marine Corps' chief of corrections testified that Averhart wrongly kept Manning on suicide watch for at least seven days of his nine months' confinement. A former brig supervisor denied making light of Manning's homosexuality when he referred to the soldier's underwear as "panties" in a staff memo sparked by Manning standing naked at attention one morning. Manning claims he was ordered to do so.
The defense claims Manning's confinement amounted to illegal pretrial punishment, and that all charges against Manning should be dropped or he should at least get extra credit at sentencing.
Manning was held at Quantico in maximum custody from July 2010 to April 2011, when he was moved to medium-security confinement at Fort Leavenworth, Kansas. While at Quantico, Manning was on either suicide watch or injury-prevention status, both involving additional security measures. Averhart and his successor rejected psychiatrists' nearly weekly recommendations to ease the restrictions that kept Manning in an 8-by-6-foot cell at least 23 hours a day.
Coombs and Averhart sparred Thursday over the meaning of the word "shall" in this military corrections regulation: "When prisoners are no longer considered to be suicide risks by a medical officer, they shall be returned to appropriate quarters."
The defense attorney asked why Averhart didn't act immediately after receiving the psychiatric report. Averhart said the regulation meant the prisoner should be removed from suicide watch "at a particular time to be determined."
"'Shall' does not mean, the way I perceive it, 'immediately', or 'right now'," he said.
Coombs tried to pin him down: "Does that have a time limitation?"
Averhart said the regulation allowed him to decide when the restrictions should be eased.
"Although the order is vague — it does say 'shall,' it does not say 'right now' or 'immediately,' sir — it still gives me the opportunity to evaluate," he said.
Averhart said he didn't act immediately in part because of Manning's history of anxiety, depression and suicidal gestures, including knotting a bedsheet into a noose in his cell in Kuwait before he was moved to Virginia. At Quantico, Manning was uncommunicative — another suicide risk indicator, Averhart testified.
The Marine Corps chief of corrections, Chief Warrant Officer 5 Abel Galaviz, testified Wednesday that Averhart violated the regulation twice — once in August 2010 for five days and once in January 2011 for two days — after psychiatrists recommended that Manning's handling instructions be relaxed from "suicide risk" to "prevention of injury."
Prisoners on suicide risk are allowed little if any clothing at night and denied even basic overnight amenities, including toilet paper and soap. Manning had to ask a guard for those items.
Averhart also testified on cross-examination that he "misarticulated" a written instruction to a senior brig staff member in late December 2010, directing that Manning remain in maximum custody and on injury-prevention status until the conclusion of his so-called "sanity board." A sanity board is a routine military pretrial proceeding to assess a defendant's mental health. Manning's sanity board issued its final report April 22, 2011, two days after he was moved to Fort Leavenworth.
The ex-brig commander said the directive wasn't an order, but Galaviz testified Wednesday that it sounded like one. Galaviz said the directive could have prejudiced the brig staff members on an in-house board that made confinement recommendations to Averhart.
Averhart testified that when he wrote the memo, he thought Manning's sanity board would convene within weeks. He said he meant to convey that Manning's status would be reviewed after the hearing.
"I misarticulated what that statement should have said," Averhart said. "If I could go back in time and change it, I would."
Averhart testified that he put Manning on suicide watch Jan. 18, 2011, after Manning punched himself in the head during a heated discussion about his restrictions. Averhart had gone to Manning's cell after hearing the soldier had suffered what the defense has characterized as an anxiety attack.
"All I wanted to ensure was that this young man did not hurt himself," Averhart said. "I saw the look in detainee Manning's face. I saw him strike himself in the manner that I did and I wanted to review him."
He also testified that pretrial detainees were supposed to have been kept in the brig for up to 90 days — not nine months — under an agreement with the Defense Department.
The government must prove by a preponderance of evidence that brig officials justifiably believed the strict conditions were needed to keep Manning from hurting or killing himself. The hearing resumes Friday and is scheduled to run through Dec. 12, with Saturday and Sunday off.
Manning, a 24-year-old native of Crescent, Okla., is charged with 22 offenses, including aiding the enemy, which carries a maximum penalty of life in prison. He's accused of leaking hundreds of thousands of classified Iraq and Afghanistan war logs and more than 250,000 diplomatic cables while working as an intelligence analyst in Baghdad in 2009 and 2010. He's also charged with leaking a 2007 video clip of a U.S. helicopter crew gunning down 11 men later found to have included a Reuters news photographer and his driver. The Pentagon concluded the troops acted appropriately, having mistaken the camera equipment for weapons.