Title: Volume FOIA 029

Release Date: 2014-03-20

Text: 08796

Volume 29 of 111
SJAR ROT
FOIA Version

VERBAT IM 1

RECORD OF TRIAL2

(and accompanying papers)

of
(Name: Last, First, Middie initiai) (Sociai Security Number) (Rank)
Headquarters and
Headquarters Company,
United States Army Garrison U-S- Army FCDIJC Ml/er: VA 22211
(Unit/Command Name) (Branch of Service) (Station or Snip)
By
GENERAL COURT-MARTIAL
Convened by Commander

(Titie of Con vening Authority)

UNITED STATES ARMY MILITARY DISTRICT OF WASHINGTON
(Unit/Command of Con vening Authority)

Tried at

Fort. Meade, MD on see below

(Piace or Piaces of Triai) (Date or Dates of Triai-9

Date or Dates of Trial:

23 February 2012, 15-16 March 2012, 24-26 April 2012, 6-8 June 2012, 25 June 2012,

16-19 July 2012, 28-30 August 2012, 2 October 2012, 12 October 2012, 17-18 October 2012,
7-8 November 2012, 27 November - 2 December 2012, 5-7 December 2012, 10-11 December 2012,
8-9 January 2013, 16 January 2013, 26 February - 1 March 2013, 8 March 2013,

10 April 2013, 7-8 May 2013, 21 May 2013, 3-5 June 2013, 10-12 June 2013, 17-18 June 2013,
25-28 June 2013, 1-2 July 2013, 8-10 July 2013, 15 July 2013, 18-19 July 2013,

25-26 July 2013, 28 July - 2 August 2013, 5-9 August 2013, 12-14 August 2013,

16 August 2013, and 19-21 August 2013.

1 insert ?verbatirri or ?surrimari'zeo? as appropriate. This form be used by the Army and Navy for verbatim records of triai

2 See inside back co ver for instructions as to preparation and arrangement.

DD FORM 490, MAY 2000 PREWOUS OBSOLETE Front Cover

08797

1
2
3

A.

From my opinion, he probably wasn't getting the medical --

proper medical help that he needed, correct.
Q.

And based upon, you know, what you were seeing from Captain

4

Hocter, you didn't trust the recommendations that you were getting

5

from him.

6

A.

That's correct.

7

Q.

You thought Captain Hocter's evaluations of PFC Manning

8

were not consistent.

9

A.

That's correct, sir.

10

Q.

You told me you believed his evaluations were, quote, on

11

both sides of the water to cover his six in the case of PFC Manning

12

harming himself, end quote.

13

A.

That's correct.

14

Q.

And when you say "cover his six," what you mean is cover

15

his own back?

16

A.

Yes, correct.

17

Q.

And why did you believe that Captain Hocter was trying just

18
19

to cover his six, his own back?
A.

Because of--I think that he was conducting his duties in a

20

manner that if something should happen, because there was a prior

21

suicide on the base, at the facility, I just think that he was just

22

going through the motions in that regard in case something should

23

take place; that was my concern, as well.

4907

08798

1

Q.

So----

2

A.

I took that into consideration.

3

Q.

So basically he was just doing his weekly report so that if

4

Manning did something he could say, "Well, I saw him," but he wasn't

5

really trying to spend time with PFC Manning.

6

A.

And I--that's correct, sir, but I also would add to that,

7

you know, if I sit back and look at it, you know, again, if I'm

8

asking for the communication as the commander because that decision's

9

going to be left on me, I feel that he could have spent more time

10

instead of rushing in and rushing out.

11

you know, during that I understand that and all the rules and

12

regulations in regards to that, but I'm in a position that I need to

13

know, because at the end of the day, the medical piece is a small

14

piece of the totality of what goes on in confinement.

15

would have said or felt that this environment was not conducive to

16

PFC Manning, then confinement would not be the right place for him.

17

He need to have been in a medical facility to properly give him the

18

help that he needed.

19

condition--medical was needed.

20

wrote down, but----

21
22

Q.

Now, what they talk about,

If Dr. Hocter

Every week consistently he wrote that medical
I've got the exact verbiage that he

Well week after week, you would agree with me after 27

August with the exception of one time in December of 2010, Captain

4908

08799

1

Hocter made consistent recommendations to remove PFC Manning from

2

POI.

3

A.

Yes, sir.

4

Q.

And you never followed any of these recommendations.

5

A.

No, sir.

6

Q.

And primarily that was because you didn't trust Captain

7

Hocter.

8

A.

9

Yes, sir.

[The civilian defense counsel handed a document to the court

10

reporter.

11

handed it to the civilian defense counsel.]

12

Q.

The court reporter marked the document as AE 440F and

All right, so I'm showing you now, and I apologize I just

13

need to look at it for one second, what's been marked as Appellate

14

Exhibit 440Fox.

15

A.

Okay.

16

Q.

Now this is a--an e-mail where you write to Colonel Oltman

17

asking to meet with him in order to discuss your concerns about

18

Captain Hocter.

19

A.

That's correct.

20

Q.

And you cc'd Master Sergeant Papakie and Gunnery Sergeant

21
22

Blenis on this e-mail.
A.

[Reviewed exhibit] That's correct, sir.

4909

08800

1
2

Q.

So Master Sergeant Papakie and Gunnery Sergeant Blenis knew

that you did not trust the recommendations of Captain Hocter.

3

A.

Yes, sir.

4

Q.

And you told Colonel Oltman that you did not trust the

5

opinions of Captain Hocter.

6

A.

That's correct, sir.

7

Q.

You told Master Sergeant Papakie and Gunnery Sergeant

8
9
10

Blenis that you did not trust the opinions of Captain Hocter.
A.

I think I never told them directly outright I don't trust

Captain Hocter.

11

Q.

But they knew you didn't trust him.

12

A.

They probably could assume that.

13

Q.

Now you weighed--when you were making your decisions, you

14

weighed the recommendations of the C&A board, what you were seeing

15

from the counselor's notes, the observations of the brig staff, and

16

the recommendations of Captain Hocter;----

17

A.

Yes, sir.

18

Q.

---- is that correct?

19

A.

Yes, sir.

20

Q.

So those were kind of the information groups that you were

21

considering, and I guess maybe in addition to you just going and

22

seeing PFC Manning as well, in making your determination.

4910

08801

1

A.

Yes, sir; that was--those, everything you mentioned, were

2

factors.

3

necessarily doing but was not doing.

4

key in order to survive in general population.

5

not day care, you know, so it's very important before you put a

6

prisoner into general population with other prisoners essentially

7

that he can take care of himself and he can survive and operate

8

efficiently in that correctional setting.

9

at a unit, prisoners will pick on other prisoners, they will

10

Also were factors of again things that PFC Manning was not

instigate, and they will provoke.

Again, communication was the
Again, it's a prison,

If not, because just like

You know, I see it all the time.

11

Q.

Right.

12

A.

So those were factors that I looked at.

13

all of that.

14

Q.

I had to look at

Okay, so--just so I know for sure then, when you were

15

making your determination on MAX and POI, the information data points

16

that you had was the C&A board's recommendation?

17

A.

Yes, sir.

18

Q.

The counselor notes that you were getting from Gunnery

19

Sergeant Blenis.

20

A.

Yes, sir.

21

Q.

Any observations that might have been recorded by the brig

22
23

staff.
A.

That's correct, sir.

4911

08802

1

Q.

The recommendations from Captain Hocter.

2

A.

Yes, sir.

3

Q.

And then your own personal observations whenever you might

4

have gone up and spoken to PFC Manning.

5

A.

Yes, sir.

6

Q.

And when you looked at that, based upon those data points,

7

you did not consider Captain Hocter's information to be a equal data

8

point with the other data points that you were receiving.

9

A.

That is correct, sir.

10

Q.

And that kind of goes back to Colonel Oltman's e-mail that

11
12

you sent; it wasn't equal because you didn't trust Captain Hocter.
A.

That was part of it, sir, because, you know, again, Captain

13

Hocter to me was not consistent.

14

the totality, look at--put everything--take everything into account,

15

there was not a lot of weight there.

16

worked in the correctional facility, again, for 22 years, and I've

17

seen engaged psychiatrist, engaged individuals in regard to their

18

patient,----

19

Q.

Uh-huh.

20

A.

---- you know, and that--Captain Hocter did not present or

21
22
23

Again, I, you know, if I look at

Again, I've, you know, I've

give that.
Q.

And so you obviously then could see that by having somebody

who wasn't an engaged psychiatrist that that really wasn't fair to

4912

08803

1

PFC Manning because you weren't getting a mental health evaluation

2

that you could actually work with, correct?

3

A.

That's correct.

4

Q.

So if you had a doctor that was, in fact, engaged, a doctor

5

that you felt spent the time needed with PFC Manning to make a good

6

evaluation, then you would have weighed that recommendation more than

7

the one you were getting from Captain Hocter.

8

A.

That's correct, sir.

9

Q.

And obviously that would have been very helpful to you to

10

actually get an evaluation that you trusted in making the

11

determination, "Do I need to keep PFC Manning in MAX and POI or do I

12

not?"

13
14
15
16
17

A.

It would have played a great--it would have definitely

helped a lot, better.
Q.

Now based upon that, did you ever ask for a second opinion

besides Captain Hocter's?
A.

No, I did not ask for a--I more so complained about it.

18

Again, I expressed my concerns to--from one colonel, O-6, to take

19

care with another O-6, sir.

20

Q.

And that would be Colonel Oltman----

21

A.

Oltman, Colonel Oltman, yes, sir.

22

Q.

Did you ever ask Colonel Oltman to, "Hey, let's push to get

23

Captain Hocter replaced"?

4913

08804

1

A.

No, I did not make that comment in--for your verbiage to

2

ask him to get him replaced, because it was understood that--his

3

position on the base and things of that nature.

4

Q.

But why not?

I mean you're the brig OIC and you're not

5

getting the mental health support that you think you deserve and you

6

should be receiving, so why not say to Colonel Oltman, "Look, Captain

7

Hocter's a nice enough guy but he's not doing what he should be

8

doing.

9

A.

I want him replaced"?
Okay.

That was not my job to specifically fire or--an O-6

10

or more so I expressed my concerns to Colonel Oltman, I expressed my

11

concerns to him, you know, and I told him that I did not trust him,

12

you know, in that sense, and, you know, that was it.

13

Q.

Okay, but--and I know you couldn't fire him, but when you

14

expressed that to Colonel Oltman, didn't you ask Colonel Oltman to do

15

something about it or you were just venting to Colonel Oltman?

16

A.

Well, it was venting but, again, sir, you know, from one O-

17

6 to another O-6 and I think there was conversation there because,

18

again, Captain Hocter, more so, I guess he got a little better at one

19

time then he slacked off again.

20

Q.

Okay, so no--at no time with Colonel Oltman did you say to

21

him, "Sir, I need your help.

22

you raise this up the flagpole to get me somebody different?"

23

A.

Can you talk to Colonel Choike or can

Well I assumed that took place, sir.

4914

08805

1

Q.

But I'm asking did you ever ask Colonel Oltman----

2

A.

No, sir, I did not; per your verbiage, no, sir, I did not.

3

Q.

Now besides Captain Hocter, you eventually--and I know this

4

is towards the very end of your tenure--but you got Colonel Malone,

5

correct?

6

A.

I did not work with Colonel Malone, sir.

7

Q.

Well on two occasions Colonel Malone came forward to

8
9
10
11

basically consult with Captain Hocter; is that right?
A.

Yes, sir.

I saw the one.

I'm not sure of the other one,

but he may--I'm sure he did.
Q.

All right, and the other one actually was on the

27

12

August one, so you had the one that he consulted when he said, "Hey,

13

let's take him from Suicide Risk down to POI," and then you had

14

another one where, this is the 27 August, where he's saying, okay,

15

let's take him from POI and just put him--take him off of POI.

16

So I want to show you that; that's on Enclosure 21 of

17

Appellate Exhibit 259, and it's page 4 of 36 [handed exhibit to

18

witness].

Can you look at the dated report for that?

19

A.

The dated report is August 27, sir.

20

Q.

Okay, and then do you see where Captain Hocter indicates

21

that he consulted with Colonel Malone?

22

A.

[Reviewed exhibit] I see--yes, sir, I see that.

23

Q.

Okay.

4915

08806

1

A.

2

CDC[MR. COOMBS]:

3

I'm retrieving the appellate exhibit from the

witness.

4
5

Where he consulted with him, yes.

Q.

So I understand you didn't trust Captain Hocter, but did

you trust Colonel Malone, his consult?

6

A.

I had not established--I could not establish a rapport with

7

Colonel Malone.

8

may be but also on that document there it's saying further mental

9

health is necessary, as well, on that report that I guess Colonel

10

Malone consulted with him on.

11
12

Again, I think I met him once or whatever the case

Q.

Right, but even there they're saying that maybe further

mental health support's necessary but POI is not.

13

A.

Okay, well, again, that's for me to determine, sir.

14

Q.

Okay.

So based upon the fact that you didn't have a

15

previous working relationship with Colonel Malone then this decision

16

or recommendation by Captain Hocter didn't carry a lot of weight with

17

you?

18
19

A.

Again, that document is signed by Captain Hocter, and I

actually cannot validate if Colonel Malone was actually there or not.

20

Q.

Okay, so you didn't know if Captain Hocter was being

21

truthful with whether or not Colonel Malone actually consulted with

22

him.

23

A.

And I notice that now, sir, but, no, sir.

4916

08807

1

CDC[MR. COOMBS]:

2
3

All right, ma'am, I think maybe at this time it might be
good for the lunch break, and then I can continue with my cross?

4
5

Okay.

MJ:

All right.

Do the parties have a preference on how long we

go?

6

CDC[MR. COOMBS]:

If we could, defense would say 1320.

7

ATC[CPT VON ELTEN]:

8

MJ:

9

CDC[MR. COOMBS]:

Why don't we just say 1330 and make it a wash and go.
All right, Your Honor.

10

ATC[CPT VON ELTEN]:

11

MJ:

12

Yes, ma'am, 1:30.

All right, during the break, please don't discuss your

testimony or knowledge of the case with anyone.

13
14

Fine, Your Honor.

Anything else we need to address before we recess the
court?

15

CDC[MR. COOMBS]:

No, Your Honor.

16

ATC[CPT VON ELTEN]:

17

MJ:

No, ma'am.

Court is in recess till 1330.

18

[The Article 39(a) session recessed at 1209, 6 December 2012.]

19

[The Article 39(a) session was called to order at 1335, 6 December

20

2012.]

21

MJ:

This Article 39(a) session is called to order.

Let the

22

record reflect all parties present when the court last recessed are

23

again present in court.

The witness is on the witness stand.

4917

08808

1

Mr. Coombs.

2
3

CROSS-EXAMINATON CONTINUED
Questions by the civilian defense counsel [MR. COOMBS]:

4

Q.

Chief Averhart, I remind you that you're still under oath,

6

A.

Yes, sir.

7

Q.

Now we left off with you talking about the lack of trust

5

okay?

8

with Captain Hocter.

9

communicate with him about your lack of trust with his

10

Did you ever go to Captain Hocter and

recommendations?

11

A.

No, sir, I did not.

12

Q.

Did you ever go to him and communicate with him that you

13

thought he needed to spend more time in the facility?

14

A.

No, sir, I did not.

15

Q.

Did you ever go to him and communicate with him that you

16

believed he was simply running in and running out and not doing an

17

adequate evaluation of PFC Manning?

18

A.

No, sir, I did not.

However, I asked Captain Hocter after

19

he does his evaluation would he stop by my office so we can talk.

20

The majority of the time and normally I am there, because I consider

21

myself a workaholic, so I'm there when he would come if like--if he

22

doesn't--didn't come.

23

Q.

And did Captain Hocter come back and talk to you?

4918

08809

1

A.

He actually probably did that twice, you know, that he

2

would stop by my office and just to let me know that he was aboard.

3

Other than that, for the most part, sir, no, sir.

4

Q.

So----

5

MJ:

Would let you know what?

6

WIT: Let me know that he was aboard in the facility, ma'am.

7

Q.

I didn't catch that.

So did you communicate with him then, at that point, by

8

saying, "Hey, look, you know, I've asked you to stop by afterwards so

9

we could talk and you haven't been doing that?"

10

Did you tell him

that?

11

A.

I had stressed that to him probably once, sir, but that's

13

Q.

And why not?

14

A.

Well, sir, that's not my job to more so to beg or continue

12

it.
Why not talk to him more?

15

to go to him and ask him to stop by.

16

we've had, you know, a few meetings more so and I understood where he

17

was coming from; he understood where I was coming from; and I think--

18

I feel as an O-6 he knew what was needed.

19

Q.

He and I, we met.

You know,

Okay, but part of what you've said at least with regards to

20

PFC Manning as to why he was on his status was kind of a lack of

21

communication.

22

A.

Okay.

4919

08810

1
2

Q.

Do you see that you also must have had a lack of

communication with Captain Hocter?

3

A.

[Pause] I could see how that can be looked at in that

4

manner, sir.

5

Q.

Now, over the course of the same 5 months, from August to

6

December, Gunnery Sergeant Blenis in his counseling reports was

7

consistently informing you that PFC Manning was not presenting a

8

problem and was being courteous and respectful to the staff, correct?

9

A.

Yes, sir.

10

Q.

And during those same almost 5 months he was consistently

11

telling you that PFC Manning didn't have any disciplinary reports?

12

A.

That's correct, sir.

13

Q.

Any obver--excuse me, any adverse spot evaluations?

14

A.

That's correct, sir.

15

Q.

And he was also telling you that PFC Manning was either

16

receiving an average or an above average work in training report.

17

A.

I was very much aware of that, sir, as well.

18

Q.

Why wasn't at this point, then, when we get towards the end

19

of December, why wasn't Captain Hocter's recommendations along with

20

the consulting with Colonel Malone and Gunnery Sergeant Blenis's

21

consistent reports to you enough for you to say, "You know what?

22

can remove PFC Manning from MAX and POI"?

4920

I

08811

1

A.

Well when I look at those work in training reports or the

2

thought of disciplinary report or spot evaluation, actually PFC

3

Manning was not put in a position to work so the work in training

4

report was more so average.

5

report for cleaning his cell.

6

type of work that he did in his cell fluctuating between average--

7

fluctuating between average to above average then back down to

8

average for cleaning his cell, being respectful or disrespectful, so

9

essentially to be put in a position to receive a disciplinary report,

You know, he got a work in training
You know, those were to submit by the

10

he would counsel.

11

was not--was minor infraction and was not an infraction that warrants

12

a disciplinary report or even a negative spot eval because it

13

warranted a verbal warning, a counseling if you will, so.

14

Q.

You know, the things that Manning was counseled on

So why wasn't that enough if, you know, you've had now

15

almost 6 months of observation of him and, you know, good behavior

16

and consistent recommendations from your mental health professionals,

17

granted you didn't trust those recommendations, but why wasn't that

18

enough to say we're going to remove Manning from MAX and POI?

19

A.

Because I still had concerns.

Although the report came

20

from Gunnery Sergeant Blenis at the time, there was still the lack of

21

communication and even, you know, again, it goes back to the

22

intricate details of maybe indoctrination.

23

has a obligation and the prisoner also has an obligation as well in

4921

You know, the counselor

08812

1

regards to the communication to establish--because, again, before I

2

would have decided to put him into the general population, you know,

3

I would have had to have known that he could function properly in the

4

general population without allowing another prisoner to provoke him

5

or he provoke another prisoner.

6

Q.

Okay.

7

A.

Or the mere fact of just sitting back and doing nothing

8
9
10

watching TV and somebody jump on him.
Q.

All right, and we'll talk about protective custody; that's

what that would be, right?

11

A.

Yes, possibly.

12

Q.

Yeah, that wouldn't--that wouldn't necessarily be MAX and

13

POI; that would just be protective custody.

14

A.

Well, that would be my decision, sir.

15

Q.

Right, but if you thought somebody otherwise was a normally

16

good detainee but for one reason or another was threatened by other

17

detainees,----

18

A.

Uh-huh.

19

Q.

---- you'd put them in protective custody.

20

A.

That would've been a possibility, sir.

21

Q.

And you wouldn't put them necessarily in MAX and POI just

22
23

for that sole reason, right?
A.

If it--it--it totally depends on the circumstances.

4922

08813

1

Q.

Okay.

2

A.

It depends on the circumstances.

3

Q.

Yeah, we'll cover it in more detail.

4

A.

Okay.

5

Q.

All right.

6

Exhibit 259.

7

recommendations.

I'm showing you Enclosure 32 to Appellate

These are the classification and assignment board

8

A.

Yes, sir.

9

Q.

Correct?

10

A.

[Reviewed exhibit] Yes, sir, it is.

11

Q.

Now under the SECNAV Instruction, the manual talks about

12

classification and assignment boards; is that correct?

13

A.

That's correct.

14

MJ:

What manual?

15

CDC[MR. COOMBS]:

16

Q.

Excuse me, the SECNAV Instruction, ma'am.

And, in fact, why don't we go ahead and I'll give you a

17

copy of that; that's Enclosure 22 of Appellate Exhibit 259 as well.

18

[Handed copy to witness.] If you would, turn to page 103 of Enclosure

19

22--or, excuse me, Enclosure 40--I believe that's 47, instead of

20

Enclosure 22.

21

about classification and assignment boards?

Turn to page 103.

You see where that talks there

22

A.

[Reviewed exhibit] Page 103?

23

Q.

Yes.

4923

08814

1

A.

No, sir.

This is a signed statement from him.

2

Q.

I gave you the wrong thing; my apologies; that's why I had

3

this confusion.

[Pause] All right, I'll give you the right thing

4

this time, and I'll even turn to the page [handed exhibit to

5

witness].

So Enclosure 47 of Appellate Exhibit 259.

6

A.

[Reviewed exhibit.]

7

Q.

If you'll turn to now page 103.

8

Do you see where it talks

about classification and assignment boards?

9

A.

[Reviewed exhibit] Yes; correct, sir.

10

Q.

And under that--under the SECNAV Instruction, it states

11

that C&A boards are required to be established and are responsible

12

for making recommendations to the PCF commander concerning the

13

classification and assignment of detainees, correct?

14

A.

It says, "The C&A board shall establish an individual

15

prisoner custody classification using objective classification and

16

reclassification procedures," sir.

17
18

Q.

All right, and so the purpose of the C&A board is to make a

recommendation to you.

19

A.

That's correct, sir.

20

Q.

And under the regulation, they are supposed to use an

21
22

objective-based classification system.
A.

Yes, sir.

4924

08815

1
2

Q.

And the purpose, of course, is to establish the degree of

supervision needed to control an individual detainee.

3

A.

That's correct, sir.

4

Q.

PFC Manning's confinement status was reviewed weekly by a

5

C&A board, correct?

6

A.

That's correct, sir.

7

Q.

And you selected the membership of that board.

8

A.

Yes, sir.

9

Q.

How did you decide who would serve on a C&A board?

10

A.

As I am directed to establish a C&A board, sir, my senior

11

program officer--program officer--programs is the senior, if you

12

will, department that's embedded with the gunnery sergeant was the

13

chief in that position and I selectively established the board as

14

directed with other staff, noncommissioned officers, as those members

15

and also had a primary and an alternate because a member has to go on

16

leave and the operation continue--has to continue, you know, if a

17

member's on leave, training, or whatever the case may be.

18

the personnel that I have, I have to appropriately establish the--

19

establish and appoint the board with the trust and confidence that I

20

have in those individuals.

21
22

Q.

So I just want to understand the process.

So with

So you would --

would you select standing board members and say these are the people

4925

08816

1

who are going to be on the board for a period of time or would you

2

select board members for each week's board?

3

A.

I established the members that's going to be on the board

4

for, you know, during my tenure, if you will.

5

alternate.

6

don't know, until the paperwork get to my desk, so I have no control

7

on who is going to actually be on the board that particular week.

8

just give them a pool of individuals to stand the board.

9
10

Q.

I have a primary and a

You know, who stands the board that particular week, I

Okay, and the "pool of individuals," that would be from

people who worked at the brig staff, I guess?

11

A.

That's correct; yes, sir.

12

Q.

And how many brig staff personnel did you have to select

A.

[Pause] I had all staff noncommissioned officers.

13
14

I

from?

15

Counselors could stand, so I think probably about seven, six or seven

16

that I wanted to particularly be on that board, be on the

17

classification and assignment board.

18

Q.

All right, so at any one time you could have anywhere from,

19

I guess, six to seven people that you could touch and say, "You're on

20

the board"?

21

A.

Sure.

22

Q.

And my understanding is that the board only needed to have

23

three members?

4926

08817

1

A.

That's correct.

2

Q.

Okay, so when you----

3

A.

It could have three or more on the board.

4

Q.

But you needed to have at least three.

5

A.

At least three.

6

Q.

And for a board member, did you have a minimum rank

7
8
9

requirement in order to be sitting on the board?
A.

I was not going to have an E-3 or below on that board; E-3

or below on the board, no, sir.

10

Q.

So an E-4 and above would be okay?

11

A.

That's correct.

12

Q.

About 99 percent of the C&A boards that were done for PFC

13

Manning have Gunnery Sergeant Blenis as the senior board member.

14

A.

Okay.

15

Q.

Why did you have Gunnery Sergeant Blenis on his boards?

16

A.

Gunnery Sergeant Blenis was the chief counselor, as well as

17

the counselor for Manning.

18

per--in my purview I had no problem with Gunnery Sergeant Blenis

19

because of his professionalism and having the trust and confidence in

20

him that he can appropriately run the board.

21
22

Q.

I had no problem with--again, with the

Well you--my understanding is that normally what would

happen is the counselor would come and give a brief to the C&A board

4927

08818

1

members and then the C&A board members, based upon that and the other

2

documentation, would vote.

3

A.

Right.

4

Q.

Is that correct?

5

A.

Pretty much; yes, sir.

6

Q.

And then the senior board member is the one that fills out

7

the paperwork----

8

A.

Right.

9

Q.

---- for the other board members to see.

10

A.

Right.

11

Q.

Including the recommended status that that senior board

12

member may decide.

13

A.

The senior board member don't decide.

They vote on--on

14

whatever classification that they're going through as a combined

15

effort.

16

Q.

They vote on what the--what they're going to recommend.
Right, and so--and Enclosure 32 of Appellate Exhibit 259,

17

do you see as--and I'm looking just at, say, page 6 of 26, where

18

Gunnery Sergeant Blenis is the senior member of the board, right?

19

A.

Right.

20

Q.

So for this part here where it says, "Recommended status,"-

22

A.

Correct.

23

Q.

---- and that's put in there,----

21

---

4928

08819

1

A.

Right.

2

Q.

---- that's pre-filled out.

3

A.

That's correct.

4

Q.

And that's pre-filled out by the senior board member.

5

A.

That's correct.

6

More so the counselor, that's who this is

filled out by, the counselor.

7

Q.

And in this case they were one in the same.

8

A.

That is correct.

9

Q.

Okay.

10
11

So do you see how that might be a conflict to have

the senior board member be the counselor?
A.

I understand what perception might look like.

Again, with

12

the pool of individuals and my capabilities and limitations, okay,

13

that's the personnel in which I utilized.

14

Q.

But couldn't you--couldn't you say, "You know what?

For

15

PFC Manning, we're not going to have"--or, I mean, even when you

16

picked your six or seven people, couldn't you say that, "Look, the

17

counselor for that detainee can't be a member of the board"?

18

A.

Uh-huh.

19

Q.

Couldn't you make that a rule?

20

A.

That could have been a potential possibility.

21

Q.

And wouldn't that be a good rule, because in this instance,

22

the recommended status is filled out by the counselor and then when--

23

if you're the senior member of the board, everyone knows then what

4929

08820

1

your votes going to be because you've already put down your

2

recommended status.

3

A.

No.

Everybody does not know what the vote is going to be,

4

sir, because when you're actually--when you're actually on the board,

5

when they're having the board, each--there are three members on the

6

board,----

7

Q.

Right.

8

A.

---- okay, and the members have the opportunity--and the

9

counselor's job is to sell their--express to the board their--how the

10

progress or how the individual is being--acting his progress more so

11

[sic]; and each member may have a question.

12

where they can assign or mark also, check the box, and I'm sure

13

they'd have some type of notes or whatever the case may be prior to

14

completing the sheets.

15
16

Q.

Each member also has

Looking at the page 6 again of 26, Gunnery Sergeant Blenis

fills out the recommended status before the board starts.

17

A.

That's correct.

18

Q.

And as the counselor, then, he stands up and he says, "Hey,

19

this is what's happened; this is my recommended status for PFC

20

Manning," right?

21

A.

That's a possibility.

22

Q.

I mean, that's the way it's supposed to work, isn't it?

4930

08821

1
2

A.

Right, the counselor basically put his status in there as

well; yes, sir.

3

Q.

Right,----

4

A.

Right.

5

Q.

---- and so in this instance if you're the other two board

6

members, which we've got here Staff Sergeant Jordan and Staff

7

Sergeant Lee,----

8

A.

Right.

9

Q.

---- there's no doubt in your mind that if you're Staff

10

Sergeant Jordan or Staff Sergeant Lee what Gunnery Sergeant Blenis's

11

vote's going to be.

12

A.

Okay.

13

Q.

Isn't that correct?

14

A.

Well, if they know what his vote is going to be, it

15

I mean----

doesn't--that does not mean they have to agree with him.

16

Q.

Of course not, but they know his vote.

17

A.

Okay.

18

Q.

And can't you see that as a--as a problem because right

19

now, out of the gate, one of the three board members has already made

20

up his mind?

21

A.

Okay.

I don't see a problem with it because, again, these

22

members--and I've seen them get into discussion about--and they don't

23

always agree----

4931

08822

1

Q.

Uh-huh.

2

A.

---- and they are not expected to agree; that [sic] what

3

brings about their professionalism, you know, when they're not just

4

saying yes to an idea or thought or recommendation.

5

Q.

But you can--obviously you can see from being in the

6

military as long as you have the concern that in this case you've got

7

a senior board member who's already stated his vote how that might

8

influence junior members.

9

A.

Right; I understand perception, sir.

10

Q.

And would you not want to have that perception?

11

A.

Again, I understand the perception that it could possibly

12

give, again, but I have the trust and confidence in their

13

professionalism.

14

Q.

We heard from a witness yesterday, CW5 Galaviz, and he was

15

of the opinion that that would be improper to have the counselor also

16

as a voting member of the board.

17

A.

Okay.

18

Q.

Would you disagree?

19

A.

Well, Chief Warrant Officer Galaviz has his opinion as

21

Q.

No, but would you disagree with that, that it's improper?

22

A.

Yes, I disagree with that.

23

Q.

And can you tell me why?

20

well.

4932

08823

1
2

A.

I disagree--let me be clear, sir.

Could you ask that

question again?

3

Q.

Sure.

4

A.

I want to be clear.

5

Q.

Oh, I said Chief Galaviz testified that it would be

6

improper to have the counselor also be a voting member of the board,

7

that that shouldn't happen, and I asked if you agreed with that.

8

A.

No, sir, I do not agree, because in this----

9

Q.

And now I'm asking just why do you disagree?

10

A.

In this particular case, again, it was a unique case in

11

regards to the chief counselor is also Manning's counselor as well as

12

the senior member of the board.

13
14
15
16
17

Q.

Uh-huh.

But you could avoid that by just giving--putting

somebody else there, correct?
A.

Right; that's correct.

It could have been--that could have

been avoided to avoid the perception.
Q.

And so why didn't you--I just want to give you an

18

opportunity to answer it--why didn't you think it was improper to

19

have the senior board member also be his counselor?

20

A.

Because I did not think it was improper.

21

Q.

Is there a reason, though?

22

A.

No.

4933

08824

1

Q.

All right, so then the C&A board, if you see there for

2

Enclosure 22, the very first one is his, I guess, change of status,

3

dated 29 July 2010, and then we don't have another one until 2011.

4

A.

Right.

5

Q.

Do you know why the board wasn't using the required DD Form

6

2700 series to document its results?

7

A.

What DD Form sir?

This is a brig form.

8

Q.

No, I know that's a brig form.

9

A.

That's a brig form.

10

Q.

---- you aware that there's a DD Form?

11

A.

Yes; I am aware of the brig form, and that's in CORMIS.

Are----

12

long as the confinement classification and assignment board

13

procedures are annotated,----

14

Q.

Uh-huh.

15

A.

---- that's all that's required.

16

Q.

Chief Galaviz testified that there was a DD Form 2700

As

17

series, he couldn't remember the exact number, but he said that

18

that's a required form for C&A boards; would you agree or disagree?

19

A.

I would disagree.

20

Q.

Are you aware of a DD Form 2700 series for documenting the

21
22
23

C&A board's results?
A.

All that the SECNAV Instruction states that it has to be

documented.

It shall be documented.

4934

It states that it shall be

08825

1

documented.

2

now, okay, so----

3

Q.

It's now documented because in DoD we utilize CORMIS

I guess my question, though, is--and you can tell me you

4

are or you're not--are you aware of a DD Form that's within the 2700

5

series that is used to document a C&A board's results?

6

A.

No, sir.

7

Q.

Okay.

8

Now when you--I guess when the C&A board between Decem--

9

excuse me, between July to December and into early January when we

10

don't have anything in documentation, when the board completed its

11

results, how did you approve of them?

12

A.

13

correct, sir.

14

Q.

I'm sorry?

15

A.

I said give me a minute.

16

Q.

Oh, yeah, no problem.

17

A.

[Reviewed exhibit] Just with the CORMIS briefing and the

18
19
20
21

[Reviewed exhibit] I approve of--I want to make sure I'm

CORMIS, sir; that's how we approved them.
Q.

So, I mean, I just want to understand.

when somebody enters the information?
A.

Right, right.

4935

So then CORMIS is

08826

1

Q.

So if a C&A board meets say on, you know, August 20th and

2

they vote and they vote we want to keep PFC Manning in MAX and POI, -

3

---

4

A.

Right.

5

Q.

---- how did that get to you for you to say, as the

6

commander now, I approve of the C&A board's results; how did that get

7

to you?

8

A.

A briefing, sir.

9

Q.

So just a verbal?

10

A.

Right; yes, sir.

11

Q.

Do you recall who was doing that briefing to you?

12

A.

Sometime it would be Staff Jordan or Gunny Blenis.

13

Q.

And what would they--what would they say?

14

A.

Just brief--just basically brief the status of the board,

16

Q.

So they would come to you and do what?

17

A.

Just basically--we have the daily change sheet as well.

15

sir.

18

You know, it talks about custody classification in which the board

19

recommends, so that's on the daily change sheet.

20
21
22
23

Q.

Okay.

So the daily change sheet would have the vote--the

vote of the board?
A.

It would have the recommended approval or removal, and

that's what I would sign.

4936

08827

1

Q.

Okay, so when the board did its stuff, you didn't actually

2

see--did they bring up anything for you to look at to go through and

3

say, "Okay, I see where you got that and I agree," or did they just

4

simply say, "Hey, here's our vote; approve or disapprove"?

5

can brief it.

6

bottom, again, I can review it at that point in time, and that's what

7

I sign at the bottom of that daily change sheet.

A.

I

Once they brief the daily change sheet, because at the

8

Q.

No, what I mean is, like when the C&A board meets,----

9

A.

Right.

10

Q.

---- and apparently the way I understand it they're

11

reviewing stuff, some sort of file or whatever has happened that

12

week, and whatever they reviewed and then they vote, did they come to

13

you and hand that to you as well?

14

A.

Right.

15

Q.

And what were you looking at then?

16

A.

I look at if they recommended that Manning would move from,

17

we'll say, from max custody/SR to max custody/POI; that would be on

18

the daily change sheet and that's what I would sign.

19
20

Q.

But what would you get from the C&A board?

would their--what would they give you?

21

A.

No hand documentation, just briefing.

22

Q.

Okay, so nothing to look at.

23

A.

Right.

4937

I mean, what

08828

1
2
3

Q.

All right.

So then the verbal briefing was it more than,

"Hey, hey, Chief, the board met today and we recommend MAX POI"?
A.

Well, the board is only mandated or required to meet every

4

30 days.

5

was part of the progress for Manning's updated progress report.

6

Q.

I wanted to evaluate on a weekly basis because, again, that

Right, so--but my question now to you is once the C&A board

7

was done, did they come to you and say anything more than, "Hey,

8

Chief, we voted today.

9
10

A.

We vote for Manning to stay in MAX POI"?

Well basic--it didn't go as you are stating, but it's

something similar to that.

11

Q.

Okay, so nothing really in great detail to you?

12

A.

Right, right.

13

Q.

And then I guess at that point all you're doing is saying,

14
15

"I agree.
A.

Keep him in MAX POI"?
Well, again, as I look at the daily change sheet, I can see

16

it there, physically see it there, and I end up signing it at the

17

bottom.

18

recommendation then I would have them go back and correct or disagree

19

and they would go back and correct the documentation and come back

20

for signature.

If I did not agree with the moves, the daily moves or

21

Q.

So the daily change sheet, what is that?

22

A.

The "daily change sheet" just shows the custody and

23

classification, the work of inmates, where they're berthed at,

4938

08829

1

whether they're currently Work Program or different types of programs

2

that they're currently in.

3

Q.

And where is that held?

4

A.

That's held at the facility.

5

Q.

Now then as far as like is it outside of a detainee's cell

6

or is that held by----

7
8

A.

That's--that's a part of our administrative paperwork.

It's not held outside the prisoner's cell,----

9

Q.

Okay, so then----

10

A.

---- no.

11

Q.

---- how do you--who do you get the daily change sheets

13

A.

From Programs, from the Programs Department.

14

Q.

So if we were looking, and we don't have it, but if we had

12

from?

15

PFC Manning's daily change sheet, what would be on it?

16

Colonel Lind what would be on that?

Can you tell

17

A.

It would show----

18

MJ:

I mean, can I just ask a question before you do that?

19

CDC[MR. COOMBS]:

20

MJ:

21

Sure.

Is there a daily change sheet for each prisoner or is it

one that encompasses all of the prisoners?

4939

08830

1

A.

It encompasses all of them.

The daily change sheet

2

encompasses all prisoners in the facility or where they work at if

3

they were reviewed that day.

4

Q.

Okay, so then it would just list every detainee by name?

5

A.

Right, right.

6

Q.

So if we were looking just at Detainee Manning's entry,

7
8
9
10

from your memory what might be on that?
A.

How would that be reflected?

It would probably read something similar, Detainee Manning,

his cell current status would be MAX SR remain; from/to--from SR to
MAX SR, so basically status remained the same.

11

Q.

And then I guess there's a place for you to sign----

12

A.

At the bottom.

It would be all the way at the bottom of

13

the daily change sheet along with all the other detainees.

14

sign at the bottom of that sheet.

15
16

Q.

I would

And in your mind when you signed the daily change sheet,

that was approving the C&A board's results.

17

A.

That's correct.

18

Q.

Now, if you didn't--because it had all the detainees on

19

there, if there was a particular detainee that you did not agree

20

with, how would you document that on the daily change sheet?

21

A.

If I had a question about a particular move on why, let's

22

say, Prisoner Jones they maybe wanted to move to hallway worker and

23

they want to keep him on the counselor hallway or move him to the CO

4940

08831

1

hallway, I would just actually disapprove that and they would go back

2

and correct it to what it is it would be--normally be at the end.

3

Q.

And so I guess when you disapproved it, would you----

4

A.

I would just put a check----

5

Q.

---- make a notation on that person's line?

6

A.

Yes, sir.

I would make a notation on it and give that

7

paperwork back to them.

8

be whatever it is I'm going to approve.

9

Q.

10

They go back and correct it, that entry, to

Okay.
The Brig Form 4200 that, I guess, was changed in January

11

and you start to use it in January of 2011, can you tell me how the

12

form was changed and why?

13

A.

When you say "changed," as far----

14

Q.

Right.

So if, you know, when you look at the Brig Form

15

4200, and let's go to the very first one that you used in January,

16

and so that would be page 2 of 26.

17

A.

Okay.

18

Q.

All right, so looking at this form here, this is now a

19

4200.1 and dated January of 2011 and the previous form was just the

20

4200, dated September of 2009; is that correct?

21

A.

Right.

22

Q.

So can you tell me what was changed on that form and why?

23

A.

[Reviewed exhibit.]

4941

08832

1

Q.

2

any change."

3

A.

4
5
6
7

If nothing's jumping out at you, you can say, "I don't see

I don't see anything that's jumping out at me at this point

in time besides [pause]--I don't see anything at this time, sir.
Q.

Can you tell me why the brig started to use this Brig Form

4200.1 in January of 2011?
A.

Because looking at more--and I can only speculate at this

8

time, sir.

9

effective and efficient ways to do business, you know.

10

Q.

You know, we talked about in discussing, looking at more

So do you recall any sort of discussion of, "Hey, we're

11

going to now start to use this Brig 4200 Form that we haven't been

12

using for 5 months?

13
14
15

A.

And I actually think, you know, Master Sergeant Blenis

brought that to my attention.
Q.

Do you recall sending an e-mail on 29 December 2010,

16

telling then Gunnery Sergeant Blenis that the defense would be

17

eventually receiving all brig records?

18

A.

I probably did, sir.

19

Q.

And did you and Gunnery Sergeant Blenis have a conversation

20
21
22

about what that might mean?
A.

I can't remember, sir, but I'm sure that, you know, if I

sent--if you have the e-mail, could I look at that e-mail, please?

4942

08833

1

Q.

So 4 days after knowing that the defense was going to start

2

getting all of the records, that's when the C&A board starts using

3

this form, correct?

4

A.

I'd have to look at the e-mail, sir.

5

[The civilian defense counsel handed a document to the court

6

reporter.

7

handed it to the civilian defense counsel.]

8
9

Q.

The court reporter marked the document as AE 440G and

All right, I'm handing you what's been marked Appellate

Exhibit 440Golf.

10

A.

[Reviewed exhibit.]

11

Q.

Do you see where you were talking about the fact that the

12
13

defense is going to get all the brig records?
A.

One minute, sir, please.

[Reviewed exhibit] Yes, sir.

I

14

think--this is dated December the 29th.

15

confinement, you know, I think you've probably seen the e-mail in

16

regards to when I found out the progress report was actually coming

17

to you, you know, I kind of brought that to the attention of the

18

leadership because, again, you know, that document, unbeknownst to

19

me, was not going outside the realm of Colonel Oltman, you know, or

20

Colonel Choike.

21

getting those, so I knew that back months prior to that as well, so

22

in regards to this e-mail and I see that per your question.

I think early on in the

It was going all over the place and, again, you was

4943

08834

1

Q.

And we'll talk about when you actually sent your e-mail on

2

the weekly reports, but at this point, are you saying that the

3

creation or the use of this brig form had nothing to do with the fact

4

that the defense is going to be receiving all the brig records?

5

A.

The Brig Form 4200?

6

Q.

Exactly.

7

A.

Sir, the Brig Form 4200 was already in existence.

8

Q.

No; this is the--the fact that you started to use it again

9

in January.

10

A.

No, sir.

11

Q.

What's your understanding on whether or not PFC Manning was

12

ever informed that he could attend the C&A boards that were not being

13

documented between July, essentially, to January of 2011?

14
15
16
17
18

A.

It was my understanding that PFC Manning was aware of that

because that's covered in indoc.
Q.

So that would be where he would be aware that he could

attend the C&A board?
A.

When he went through the indoctrination class and I think

19

he probably scored a 90 on the class, but that should be something

20

that his counselor is expressing to him.

21

Q.

All right, and so as far as the C&A boards that were not--

22

never documented, that he would be informed somehow that he should be

23

attending those or could attend those?

4944

08835

1

A.

Well, from his counselor, yes, sir.

2

Q.

And in December of 2010, you directed that PFC Manning

3

would remain in MAX and POI until the 706 sanity board was completed,

4

correct?

5

A.

Yes, sir.

6

Q.

And when you directed that, that was part of your weekly

7

reports.

8

A.

Yes, sir.

9

Q.

So obviously the--Gunnery Sergeant Blenis testified he was

10

aware of this, members of your staff were aware of this order,

11

correct?

12

A.

Yes, sir.

13

Q.

And it was intended by you to be an order.

14

A.

Well it was intended because, sir, as I stated earlier,

15

that it was my understanding that Detainee Manning was going--

16

preparing for and getting ready to go to a 706 hearing, and I cannot

17

remember the source, but that was my understanding, that's why that

18

blurb was in--that was implemented in my document.

19

Q.

Right, but my question is, it was intended to be by you an

20

order; that he would remain in the--in MAX POI until the 706 board is

21

complete.

22
23

A.

No, not an order to my staff.

It was more so, again, in

regard--I'm the--I was the author of the progress report,----

4945

08836

1

Q.

Uh-huh.

2

A.

---- okay, so, again, it was just--that report, again,

3

going to Colonel Oltman and, again, eventually going to Colonel

4

Choike, you know, that document was, again, to show--that statement

5

was, again, to show that I, you know, was aware that a 706 was taking

6

place and that's what I wanted to, again, evaluate that; that's my

7

only speculative reason for implementing that blurb into that

8

document and no other reason.

9

CDC[MR. COOMBS]:

All right, we'll talk about that now then.

10

I'm retrieving from the witness Appellate Exhibit 440Golf; handing

11

the witness Enclosure 22 of Appellate Exhibit 259.

12

Q.

And let's look at page 63 of 109.

That's the first time

13

that you put your order as far as how PFC Manning would be held, and

14

are you--is your testimony today on the stand that that's not an

15

order to hold him in that particular status until the 706 is done?

16

A.

[Reviewed exhibit] It says, "Brig OIC approves and

17

directs," and I understand how the word "direct" comes across as an

18

order.

19

Q.

But that wasn't your intention?

20

A.

That he remain--the entire statement said, "The brig OIC

21

approves and directs that said named detainee remains in a heightened

22

security status, i.e., Prevention of Injury, until said named

23

detainee completes the pending 706 sanity board--sanity board."

4946

08837

1

Q.

Okay, so--but my question is, was that your--was that an

2

order for you to--by you to say keep him in until the 706 board is

3

done?

4

A.

At that point, yes, sir, I guess you could say that.

5

Q.

But I need you to say that, so was that an order?

6

A.

That was not an order to my staff.

Again, in the way it's

7

come across, it--you know, that had to be more like a--the blurb

8

shouldn't have read the way it's reading, and I did not mean for it

9

to read that way.

My intent was to more so articulate that I'm aware

10

that a 706 hearing is taking--going to take place here soon and, you

11

know, I'll be more prepared to make an assessment after that 706

12

because I don't really count on the 706.

13

Q.

But then I don't understand if that's the case why this

14

would even be needed because are you saying that if the board, all of

15

a sudden the C&A board recommended that PFC Manning be downgraded to

16

MDI say, are you saying from that statement that you would approve

17

that----

18

A.

I'm saying----

19

Q.

---- or would----

20

A.

---- I'm saying----

21

Q.

---- consider approving that or you would say not until the

22

706 board is done.

He's staying where he's staying?

4947

08838

1

A.

I'm saying that the 706 was a factor to me, okay, so not to

2

say that if the board had a came back and said take him off POI that

3

I would not have moved him, I'm not saying that.

4

Q.

Well, okay, so why--why do you--go ahead and turn to page,

5

I guess, I think it's 65, the next time that you used the same

6

terminology, "approve and direct," why would you use it for the

7

following week?

8
9

A.

As I stated, sir, earlier that I was only speculating.

Again, during that time frame that--for that 3-week period of time

10

that the 706 was going to take place, not that we was cut-and-place -

11

-paste but my--the board--this progress report is just a template.

12

Yes, it change--it changes, and that statement stayed.

13
14

Q.

Well Gunnery Sergeant Blenis testified that he was aware

that that was what you directed?

15

A.

Yeah.

16

Q.

How did he know that that's what you directed?

17

A.

Well, Gunnery Sergeant Blenis has read the statement.

You

18

know, again, you know, he--I was the author and I signed the

19

document, okay, so I had the template of the--for the progress report

20

and that piece of it, I guess, stayed in there because, again, I

21

assumed, you know, I was only speculating that the 706 board was

22

going to be taking place in a few weeks.

4948

08839

1

Q.

And right now, under oath, you're saying that this

2

statement that you wrote in there, "approves and directs," does not

3

mean an order by you; it was just conveying what?

4
5

A.

As I stated earlier, I misarticulated what I wanted to put

in this document, sir.

6

Q.

What did you want to put in that document?

7

A.

Basically that it--again, it reads as directed and I

8

understand the perception of it and the way it should have been more

9

so articulated in the sense that after the 706 hearing--after the 706

10

hearing, then there would be further reviewing for the--further

11

reviewing to take Manning off of POI.

12

Q.

Okay, so if we could go back in time, you might want to

13

redraft it to say, "Hey, I'd really like to see the 706 board before

14

we remove him from POI but I might do it prior to the 706 board."

15
16

A.

Right.

If I could go back in time and change the blurb, I

would,----

17

Q.

What would you----

18

A.

---- you know,----

19

Q.

---- what would you put?

20

A.

---- you know.

21
22
23

As I just stated that after the--after the

706 hearing, said named detainee would be further reviewed.
Q.

Okay, so from that standpoint it looks again that he's

going to stay in POI until the 706 board is done; is that----

4949

08840

1

A.

2

author of it.

3

misinterpreted or more so misart--in articulating what that statement

4

should have said.

5
6

Q.

Well, no, I would not say that, because, again, I'm the
I understand what is going on.

Again, I

Okay, so did you know--did Gunnery Sergeant Blenis ever

convey to you that he had a conversation with me about the 706 board?

7

A.

No, I didn't.

8

Q.

During the December time frame.

9

A.

Right.

10

Q.

Did Gunnery Sergeant Blenis ever tell you that the 706

11
12
13
14

board was not even ordered to be resumed yet?
A.

No, I did not get that information, I don't think.

Well

actually I'll just say I don't remember.
Q.

Do you recall whether or not Gunnery Sergeant Blenis ever

15

told you that based upon conversations with me that it didn't look

16

like the 706 board was going to get done until 2011, March time frame

17

of 2011?

18

A.

No, sir, I don't remember that.

19

Q.

If you knew that the 706 board was not going to be done

20

until say March of 2011, how would you reword what you wrote in

21

there?

22

A.

If I knew that, I wouldn't even put the statement in there.

4950

08841

1
2

Q.

And, again, based upon what you put in there, that was not

supposed to be any sort of directive to keep him in POI----

3

A.

No, sir.

4

Q.

---- until the 706 was done.

5

A.

By no means.

6

Q.

All right.

7

So let's go ahead and talk for a moment about

your weekly reports.

8

A.

Yes, sir.

9

Q.

Now you knew they were obviously going to Colonel Oltman.

10

A.

Yes, sir.

11

Q.

And you would brief Colonel Oltman and consult with him

12

regarding the decisions that you were making on PFC Manning.

13

A.

Yes, sir.

14

Q.

And he would always concur with your decisions.

15

A.

I would not brief him prior to this report, sir.

What I

16

wanted to do, again, the report was to ensure that there was--

17

everything was open and transparent.

18

everything that was going on with PFC Manning while in confinement

19

under my--under my cognizance; that was the whole purpose of this

20

report.

21

Q.

I truly wanted to document

Uh-huh [affirmative response], but my question, though, is

22

once you went to go brief Colonel Oltman of your decisions, he would

23

concur with them.

4951

08842

1

A.

I did not brief Colonel Oltman prior to the report.

Every

2

Friday I look at--tried--my target date was every Friday and I just

3

e-mailed the report to him.

4
5

Q.

Is your testimony now that you didn't go discuss your

decisions with Colonel Oltman?

6

A.

Not my final decision for that prior--that upcoming Friday,

7

no.

8

forward you a report and I'm going to already approve for Manning to

9

remain in POI."

10
11

I did not go to him to say, "Hey, sir, on Friday I'm going to

Q.

No, sir, I did not do that.

Okay, no.

They--I guess maybe you're misunderstanding the

question then.

12

A.

Okay.

13

Q.

When you made your decision----

14

A.

Yes, sir.

15

Q.

---- I'm going to decide today Manning stays in MAX POI,---

17

A.

Yes, sir.

18

Q.

---- you briefed that decision to Colonel Oltman?

19

A.

No, sir.

16

20
21

-

I e-mailed the report to Colonel Oltman; that's

what I did; sir, you know, why, something to that effect.
Q.

Did you--did you ever brief to Colonel Oltman after the

22

fact, once you made your decision, what you were doing with PFC

23

Manning?

4952

08843

1

A.

If he called me, you know, because normally it would be a

2

Friday evening, if he called me or he had any questions about the

3

report or anything he would call me in regards to the decision I made

4

or the report, if he had----

5

Q.

And did----

6

A.

---- needed some clarification.

7

Q.

---- Colonel Oltman always concur with the decisions that

8

you made?

9

A.

Sure, sir.

10

Q.

And with regards to your reports, you obviously knew that

11

these were being briefed up to Colonel Choike.

12

A.

Yes, sir.

13

Q.

And did you ever receive anything from Colonel Choike down

14

to you to indicate that he did not concur with the decisions that you

15

had made?

16

A.

No, sir.

17

Q.

And you stated that you knew that these reports were being

18

briefed up to Lieutenant General Flynn.

19

A.

Sure.

20

Q.

And did you ever receive anything from Lieutenant General

21

Flynn to indicate that he did not concur with the decisions that you

22

made?

4953

08844

1
2

A.

I never received an e-mail directly from Lieutenant General

Flynn at all, never.

3

Q.

So that would be a no; you never received----

4

A.

That would be a no.

5

Q.

---- anything from him to say he didn't concur with what

6

you were doing.

7

A.

That's correct, sir.

8

Q.

So the flipside of never receiving anything from either

9

Colonel Oltman, Colonel Choike, or Lieutenant General Flynn as far as

10

not concurring with your decisions must mean that they concurred with

11

your decisions.

12

A.

Well the only e-mail that I saw in regards to--in regards

13

to Lieutenant General Flynn was in regards to he just wanted to make

14

sure that we was doing things right, i.e., having I think the Army

15

and other people come in, his IG coming over to the facility, and

16

things of that nature, that's what I received.

17

Q.

But my question to you is:

By never receiving anything

18

from any of your superiors that they nonconcurred with your actions,

19

you obviously could take that as they concurred with your actions?

20

A.

Yes, sir.

21

Q.

Now owing to his classification as a MAX detainee, PFC

22
23

Manning was subjected to restrictions, correct?
A.

Okay, I'm sorry, sir; say again?

4954

08845

1
2

Q.

Yes.

Owing to his custody status as a maximum detainee, he

was subject to certain restrictions.

3

A.

Yes, sir.

4

Q.

And PFC Manning was placed in a cell in front of, directly

5

in front of the guard post in order to facilitate his constant

6

monitoring, correct?

7

A.

That's correct, sir.

8

Q.

His cell was 6 feet wide by 8 feet long by 8 feet high.

9

A.

That's correct, sir.

10

Q.

His cell had one toilet, one rack to sleep on, a sink and a

11

water faucet, correct?

12

A.

Yes, sir.

13

Q.

And I guess in this case the sink and water faucet were

14

basically one in the same.

15

A.

Yes, sir.

16

Q.

He was awoken at 0-5 hours and required to remain awake in

17

his cell until 2200 hours.

18

A.

That's correct, sir.

19

Q.

And as you testified on direct, he was not permitted to lie

20
21
22

down on his rack during the duty day.
A.

During the duty day, unless he was sick in quarters or it

was a holiday or a weekend or holiday.

4955

08846

1
2
3

Q.

And he--nor was he permitted to lean back against the cell

wall during the duty day.
A.

Not--yes, sir.

He was allowed to lean back against the

4

cell wall.

5

up right, you know, right hand, right knee, left hand, left knee;

6

this was not the case, sir.

7
8
9
10

Q.

It wasn't like we was expecting him to just stand up, sit

So your testimony is that he could lean against the back of

the cell wall if he was on his rack?
A.

If he was sitting on his rack, sure.

You know, if he was

in a chair that was in his cell, then he could sit back in his chair.

11

Q.

Okay, but I'm talking about the rack.

12

A.

If he was in his rack then, sir, he was authorized to be in

13
14

his rack, so it was okay to lean back against the wall.
Q.

Okay.

So whenever PFC Manning was moved out of his cell

15

because he was a maximum detainee the entire facility had to be

16

locked down.

17

A.

That's correct, sir.

18

Q.

And no other inmate would be allowed to be moved while a

19

maximum custody inmate was outside of his cell.

20

A.

That's correct, sir.

21

Q.

Whenever he was moved, he was moved with his hands

22
23

handcuffed to a belt and his legs shackled.
A.

That's correct, sir, with two escorts.

4956

08847

1
2
3

Q.

And from 29 July 2010 to 10 December 2010, he was permitted

only 20 minutes of sunshine call.
A.

[Pause] I'm not sure of the time frame, sir.

You may be

4

right; I'm not sure.

5

[The civilian defense counsel handed a document to the court

6

reporter.

7

handed it to the civilian defense counsel.]

The court reporter marked the document as AE 440H and

8

CDC[MR. COOMBS]:

9

Appellate Exhibit 440Hotel.

10

Q.

I'm handing the witness what's been marked

I just wanted to provide that to you, Chief Averhart, to

11

give you maybe some context for the time period.

Looking at that

12

e-mail, does that help you realize when you might have increased PFC

13

Manning's rec call, I guess, from the 20 minutes of sunshine call to

14

the 1-hour rec call?

15

A.

Yes, sir.

16

Q.

And what time period do you think that would be then?

17

A.

That's December the 9th, 2010, that I----

18

Q.

Okay, so you think on that day it would have been or

19

December 10th?

20

A.

Around maybe the 10th on back, sir.

21

Q.

All right.

22

A.

Maybe the 10th.

4957

08848

1

Q.

Now during, I guess, the sunshine call, if he were going

2

outside, he would be brought to a small, concrete yard about a third

3

of the size of a basketball court.

4

A.

That is correct, sir.

5

Q.

And PFC Manning would basically only be permitted to walk

6

around?

7

A.

Yes, sir.

He'd walk around.

There was a ball there.

8

can also, if he wanted to do calisthenics there, he can do

9

calisthenics there.

He

10

Q.

I'm talking about the 20 minutes of sunshine call.

11

A.

Yes, sir.

12

Q.

When he was taken out for his 20 minutes of sunshine call,

13
14
15
16
17

he was still in full restraints.
A.

Except for leg irons, sir.

He was not walking around the

compound with leg irons on in the bulkhead.
Q.

We've had testimony from Master Sergeant Papakie that when

he was on an outside rec call, he remained in full restraints.

18

A.

I don't recall that, sir.

19

Q.

So from your memory right now, you believed he was not in

20
21
22
23

full restraints when he was outside rec call?
A.

That--that--the restriction of leg irons probably should

have been off, if I can remember correctly; I'm not sure.
Q.

The----

4958

08849

1

A.

I'd have to look at--do you have the handling letter?

2

Q.

I do not.

3

A.

Because that would be on the handling--his handling letter.

4

Q.

Master Sergeant Papakie testified that when he was brought

5

for indoor rec call, they would remove the leg irons----

6

A.

And----

7

Q.

---- leg irons but they'd keep him in handcuffs, so that

8

way he could--he couldn't use the treadmill but he could use the

9

bike; is that your memory?

10
11
12

A.
know.

[Pause] I don't remember everything, sir, everything, you

Again, I would have to look at the handling letter.
Q.

Obviously, I guess, the guards that were escorting him and

13

Master Sergeant Papakie would be probably in the best position to

14

know what was done on a day-to-day basis.

15

A.

Well, no, not to know what was done on a day-to-day basis

16

because some of the restrictions that I would put in that he would

17

not be taken out to rec call or rec call outdoors or indoors unless

18

Master Sergeant Papakie, myself, or the security chief was aboard;

19

and during that rec call, the duty brig supervisor had to be on site

20

to facilitate that rec call whether it was indoor or outdoor.

21

again, I just can't remember at this time exactly what restraints

22

that he had on or what I actually signed off on the handling order,

23

handling letter.

4959

So,

08850

1

Q.

Okay.

All right, so sitting there today, were you--were

2

you aware that he was in full restraints when he was on the outdoor

3

rec call?

4

A.

Yes, sir.

5

Q.

And for the 20 minutes, and then for the 20 minutes for the

6

indoor rec call that he was kept in handcuffs.

7
8
9
10
11

A.

Just handcuffs and no belt; that may have been correct,

Q.

Okay.

sir.
Now the 20 minutes of sunshine call, can you tell me

why you didn't increase that, say, in September of 2010?
A.

I think I had a meeting, and I have the e-mail from

12

Colonel--Captain Haberland, asked was there any flexibility and what

13

could I actually relax during that time frame, and it was determined

14

at that time what I was willing to relax in regards to the handling

15

of PFC Manning.

16
17

Q.

We've heard testimony that a detainee is required to

receive 1 hour of outside rec call.

18

A.

Okay; yes, sir.

19

Q.

From your memory, is that correct?

20

A.

Well it depends on the status, sir.

He was a MAX, a MAX

21

POI, so for all MAXs, all MAXs receive 20 minutes of sunshine call

22

and not just Detainee--Prisoner Manning; it's all MAXs.

4960

08851

1
2
3

Q.

But we've heard testimony, actually, that says that all

MAXs should get 1 hour of rec call; is that not your understanding?
A.

Well I understand it wasn't my understanding there, sir,

4

and MAXs receive 20 minutes of rec call.

5

the number of MAXs that we have in the facility, as well, so this--

6

that's dictated as well.

7
8

Q.

I mean, it also depends on

Okay, so from your understanding, 20 minutes is what

maximum detainees get.

9

A.

Right.

10

Q.

Not an hour.

11

A.

[Pause] Not an hour, sir.

12

Q.

Now, disciplinary segregation.

13

A.

Okay.

14

Q.

How much time does a disciplinary segregation detainee get?

15

A.

Disciplinary segregation does not get any.

16

Q.

No rec call whatsoever?

17

A.

Well, he don't get rec call.

He actually with--because his

18

privileges, he may have had loss of privileges, so when he go into a

19

disciplinary status, that's just what it is, he loses some type of

20

privileges and normally it's maybe rec call or sunshine call, TV

21

call, or even phone privileges, so it depends.

4961

08852

1

Q.

All right, so when you ran the brig then, if someone was in

2

disciplinary segregation, they would not get necessarily 1 hour of

3

rec call?

4

A.

No, sir.

5

Q.

Going back to PFC Manning, why did you extend the rec call

6
7
8
9
10

to 1 hour in December of 2010?
A.

After it was asked that--what I can be flexible on, sir,

and that's when the decision was made.
Q.

So it took somebody to ask you if you could be flexible

before you decided to extend it?

11

A.

What I--yes, sir.

12

Q.

So during August, September, October, November, it never

13

concerned you that PFC Manning was only getting 20 minutes of

14

sunshine call?

15

A.

It's not that it did not concern me, okay.

I look at my

16

plan of the day.

17

operation, and things of that nature, because, again, when you're

18

moving in MAX, everything stops and it does, you know, and you have

19

to implement that into the plan of the day, which is not the prisoner

20

[sic] fault, because my job is to make it happen.

21
22

Q.

I was looking at my--the plan of the day, the daily

Okay, so just because he was in MAX, you couldn't extend it

to 1 hour; is that what you're saying?

4962

08853

1

A.

I'm saying because it was his status; whether it was

2

Detainee Manning or any other prisoner, I did not extend--extend it,

3

sir.

4
5

Q.

Well when you extended it in December of 2010, it stayed at

1 hour from that point----

6

A.

Well--well----

7

Q.

---- forward, right?

8

A.

---- even when I made the decision to extend it in

9

December, okay, I had to look--work out some things, again, with the

10

plan of the day and set the--set the plan of the day to accommodate

11

that.

12

the day to accommodate that.

You know, of the--all the extra incentives, I set the plan of

13

Q.

And you were successful, right?

14

A.

Excuse me?

15

Q.

You were successful accommodating the 1 hour a day.

16

A.

Yes.

17

Q.

And so from December 10th forward, he got 1-hour-a-day rec

19

A.

Okay.

20

Q.

Is that correct?

21

A.

That's correct; as far as I know it is, sir.

22

Q.

So why didn't you do that earlier?

23

A.

Well, no reason.

18

call.

4963

08854

1

Q.

And I go back to you said it wasn't that you weren't

2

concerned, then what were you thinking in September, October, and

3

November when PFC Manning was only getting 20 minutes of sunshine

4

call?

5
6
7
8
9

A.

I was carrying out my plan of the day and the daily

operation of the facility.
Q.

Do you recall Captain Hocter during this time asking you to

give him more exercise time?
A.

Captain Hocter maybe when he stopped down in my office one

10

day I think that he did bring that up.

I do think that when he

11

stopped by my office, he did bring it up.

12

Q.

All right, so why did you wait until December then?

13

A.

And I'm not actually sure when he came down.

14
15
16

if that was December when he came down.
Q.

I'm not sure

I'm not sure, sir.

So, again, the--in your experience, have you had somebody

only receive 20 hours--I'm sorry----

17

A.

Twenty minutes.

18

Q.

---- 20 minutes of sunshine call for the extended period of

19

time PFC----

20

A.

Yes.

21

Q.

---- Manning has?

22

A.

Yes.

23

Q.

And that was because why?

4964

08855

1

A.

Because that was the daily routine; that was the plan of

2

the day; that was the standard operating procedures, local standard

3

operating procedures.

4

Q.

Now, due to, I guess, his extended time on either SR or POI

5

status, you authorized restraints to be removed when he conducted his

6

inside rec call, correct?

7

A.

Yes, sir.

8

Q.

I'm sorry?

9

A.

Yes, sir.

10

Q.

And PFC Manning at that point was then authorized--and this

11

was, again, in the December time frame, right?

12

A.

Yes, sir.

13

Q.

So at that point, PFC Manning was finally authorized to be

14

on the indoor rec area without any restraints.

15

A.

Right.

16

Q.

And when he went to the outdoor rec area without any

17

restraints.

18

A.

Right.

19

Q.

Also being in his status and apparently only because this

20

was all that was available at your facility, he was authorized

21

noncontact visits, correct?

22

A.

That's correct.

4965

08856

1
2

Q.

And according to your facility, the noncontact visits were

on Saturdays and Sundays between the hours of 1200 and 1500.

3

A.

That's correct.

4

Q.

And during these visits, PFC Manning would be required to

5

wear hand and leg restraints.

6

A.

That's correct.

7

Q.

He'd be required to meet his visitors in a 4 by 6 room that

8

was separated with a glass partition.

9

A.

That's correct.

10

Q.

And you understood based upon the Army Criminal

11

Investigation Division's request to install recording equipment that

12

PFC Manning's visits would be recorded.

13

A.

That's correct.

14

Q.

And in addition to being recorded, there was always a guard

15
16
17
18
19

that was standing outside of the door with the door slightly cracked.
A.

That is normal procedure for all maximum security in--

that's in visitation; yes, sir.
Q.

Right, so the normal procedure would be that you would have

that door slightly cracked and the guard standing right there.

20

A.

Yes, sir.

21

Q.

So even the guard could hear, obviously, the conversation.

22

A.

No, sir.

23

The guard is not--if the door is actually

cracked, the guard is not actually posted up against the door.

4966

The

08857

1

guard is actually in the vicinity; that way he can view in, in the

2

case of.

3

Q.

All right, so the guard is always able to see.

4

A.

He's always able to see, sir.

5

Q.

But not necessarily hear.

6

A.

That's correct.

7

Q.

Okay.

Now because of the fact that PFC Manning was in his

8

status, he was not permitted any sort of inside work within the

9

facility, correct?

10

A.

That's correct, sir.

11

Q.

And also because of his status, at night if the guards

12

could not see him clearly, meaning that he covered his head or he

13

turned away from the front door, they would wake him up to make sure

14

he was okay.

15

A.

Only if he covered his head, which--his entire body,

16

because in the indoctrination, all prisoners understand the rules and

17

regulations and some stuff you cannot authorize; to cover their body

18

up by--at nighttime.

19
20
21

Q.

And based upon your procedure and the rules, if you cover

your face with the blanket, then you're going to be awoken.
A.

They would ask him--if he's covering his face or covering

22

his entire body, they would attempt to get his attention to ensure

23

that he takes the cover off his head.

4967

08858

1

Q.

And the way they'd get his attention is to wake him up?

2

A.

If that's the--if that's the case, sir.

3

Q.

Now because he was on POI status, he also had additional

4

restrictions, correct?

5

A.

Yes, sir.

6

Q.

He was subject to constant observation by guards who stayed

7

in the observation booth.

8

A.

The guard shack across from his cell, that's correct, sir.

9

Q.

And because of his cell's location, he had no privacy

10

within his cell even if he was going to the bathroom.

11

A.

No prisoner have privacy in that sense, sir.

12

Q.

Well, not every prisoner has an observation booth right in

13
14
15
16
17

front of their cell, right?
A.

Not every prisoner has an observation booth.

You have to

go to correcting in regards to that, sir.
Q.

Okay, so because of his cell location, he was able to be

seen at all times.

18

A.

Basically.

19

Q.

Well basically----

20

A.

Yes, sir.

21

Q.

---- he was, okay.

22

A.

Right.

4968

08859

1

Q.

And when the guards would go out to ask PFC Manning if he

2

was okay, with some variation of are you okay, anything going on, the

3

brig rules required him to respond.

4
5

A.

Well, if he asked a question, sir, then, yes, it would be

required to yes or no [sic].

6

Q.

And PFC Manning, according to the log book, there was--the

7

guards were required to make some sort of notation on PFC Manning

8

every 5 minutes.

9

A.

Not on--not in the log book, but more so every 5 minutes if

10

there was anything out of the ordinary.

If there was anything out of

11

the ordinary, then there would be--that would be annotated in the log

12

book.

13

Q.

And those were 5-minute checks or what were they?

14

A.

If anything that was out of the ordinary.

15

Q.

Okay.

16

Now, again, because of his status, he was required

to eat his meals in his cell alone?

17

A.

Yes, sir.

18

Q.

And he was only permitted to eat his meals with a spoon.

19

A.

That's correct.

20

Q.

And there were usually no detainees on either side of PFC

21
22

Manning.
A.

That's correct, sir.

4969

08860

1
2

Q.

On one side of him, he always had in the cell next to him

his gear; is that correct?

3

A.

That's correct, sir.

4

Q.

So his entire time there, there was never anyone on that

6

A.

Right, sir.

7

Q.

And was that on his left side or his right side, from your

8

memory?

9

A.

5

side.

If I face the cell, I think it was on his--if I'm facing

10

the cell, it was actually on his right side, if I'm correct.

11

it was on his right side.

12
13

Q.

I think

Okay, and there was not another cell on that other side of

him, right?

14

A.

Sure; there was another cell.

There was Manning's cell; a

15

open space, that's where his gear was at, in that cell; and then

16

another cell.

17

Q.

18

Okay, and with regards to the other side of him, you said

that you believe at one time there was somebody there, at one time.

19

A.

No, sir.

21

Q.

Okay.

22

A.

Then you had a open cell that's the cell that his gear was

20

23

I think Manning's cell was the first cell on that

row.

in, and then another cell on--if I'm on my--as I'm facing his cell,

4970

08861

1

on the right side--I'm sorry--on the right side, I think there was a

2

gear locker there.

3
4

Q.

Okay, so there was never an opportunity to have somebody

directly next to him then.

5

A.

No, sir.

6

Q.

And were you aware of the fact that the brig staff believed

7

if you didn't have somebody right next to you that you were not

8

permitted to talk to them?

9

A.

That's not the case, sir.

Directly next to them, no, sir,

10

because as long as they're talking in a low conversational tone down

11

the row and I think only one time that Manning would have one

12

individual that was next--during the time of confinement that I--my

13

team that there was one person that was in his opposite cell.

14

not the opposite cell, the----

15

Q.

Cell next to his equipment.

16

A.

---- cell next to the equipment, yes, sir.

17

Q.

So if you were there, you were walking down, and PFC

The--

18

Manning was talking to the person not to his immediate right but the

19

cell right next to him in a low conversational tone,----

20

A.

Right.

21

Q.

---- you would have been okay with that?

22

A.

Yes, sir.

And my guards were okay with that as well.

4971

08862

1

Q.

Well that was going to be my next question.

So if you're

2

walking there and you see PFC Manning about to talk to the person

3

that's, you know, basically not to his immediate right but the next

4

cell over and you see your guard come out and say, "PFC Manning, you

5

cannot talk to somebody unless they're right next to you," you would

6

have corrected your guard?

7
8

A.

My guards wouldn't have did that, sir.

Let me--let me

explain something, sir.

9

Q.

But, no, just hear----

10

A.

Okay;----

11

Q.

---- my question.

12

A.

---- yes, sir.

13

Q.

You would have corrected your guard at that point.

14

A.

Would I have corrected a guard for--could you ask the

15
16
17

question again?
Q.

I want to make sure----

Yeah, sure.

So in my hypothetical, you're walking in to

Special Quarters 1,----

18

A.

Yes, sir.

19

Q.

---- and PFC Manning is the first cell to your right; then

20

you've got his gear in the next cell; and then you've got another

21

detainee next to that.

22

A.

Yes, sir.

4972

08863

1

Q.

And PFC Manning is about to talk and he begins to talk to

2

that other detainee and you witness your guard correct PFC Manning by

3

saying, "You cannot talk to him unless he's on your immediate right,"

4

you would have then said to your guard, if I'm understanding you

5

correctly, you know, "Corporal, Lance Corporal Whoever, you're wrong.

6

He can talk to him in a low conversational tone."

7
8

A.

That guard would not been have--would not have been

corrected on the spot in front of the prisoner;----

9

Q.

Okay.

10

A.

---- however, he would have been corrected.

11

Q.

All right, so the correct way would be to allow PFC

12

Manning, as long as he was talking in a low conversational tone, to

13

speak to another detainee.

14

A.

Definitely.

15

Q.

Would it surprise you if, in fact, the lower enlisted

16

guards were preventing him from talking to any other detainee?

17

A.

I would be surprised.

18

Q.

Would it surprise you if others believed he shouldn't talk

19

to other detainees because of national security risks?

20

A.

Would that surprise me?

21

Q.

[Nodded head indicating an affirmative response.]

22

A.

Well, that was--that will surprise me, as well, because,

23

again, this is in a correctional environment.

4973

Again, I think that

08864

1

the best guards that I had in the facility I had working in that

2

area.

3

Quarters.

4

the operation, so----

5
6

It takes a special type of individual to work Special

Q.

They understand the dynamics of that--that facility and

Okay.

Now because of his status, he was provided a--

initially a standard mattress but no pillow, right?

7

A.

Right.

8

Q.

During your entire time of having PFC Manning at the

9

facility, did you ever provide him with a pillow?

10

A.

11

pillow.

12

Q.

13
14

actually?
A.

Not a pillow.

Okay.

He was provided a mattress with a built-in

So if you saw a--what do your pillows look like,

Do you recall the pillows that you would issue?
The standard pillow was a regular pillow.

I think it was

15

made out of vinyl.

16

vinyl, and that's what we had.

17

[There was a pause in the proceedings while the civilian defense

18

counsel retrieved AE 412.]

19
20
21
22
23

Q.

The pillows that we had in stock was made out of

I'm showing you what's been marked Appellate Exhibit 412.

Is this a pillow that you might have issued?
A.

Sir, that's--that appears to be a standard pillow that we

have in our facility.
Q.

And did you ever give this to PFC Manning?

4974

08865

1

A.

I don't think we ever gave that to PFC Manning.

2

Q.

And why wouldn't you?

3

A.

Because--may I look at it, sir?

4

Q.

Sure.

5

CDC[MR. COOMBS]:

6

I'm handing the witness Appellate Exhibit

412.

7

A.

[Examined AE 412] Sir, in my history and we've had training

8

on items like this, this type of material can be used as--to hang

9

himself, cause injury to himself, because it's sturdy enough to do

10

so.

11

the potential that PFC Manning could hang himself with this pillow.

12

If this pillow is slowly and methodically taken apart, there is

CDC[MR. COOMBS]:

I'm retrieving from the witness what's been

13

marked Appellate Exhibit 412.

14

ATC[CPT VON ELTEN]:

Your Honor, for the record, Chief Warrant

15

Officer Bar--excuse me--Averhart held the pillow lengthwise, held the

16

seam at the top of the pillow, and was pulling at the seam of the

17

pillow pointing to the strength of the seam.

18

MJ:

19

CDC[MR. COOMBS]:

20

Q.

21
22

Thank you.
Thank you.

So that would be nothing you would give to PFC Manning due

to his status, correct?
A.

Yes, sir.

4975

08866

1
2

Q.

Now you testified that he was eventually provided with a

mattress with a built-in pillow.

3

A.

Yes, sir.

4

Q.

Do you recall what that mattress looked like?

5

A.

I think it was a long, blue mattress that can fit--that

6

will fit the bunk but it has--has a slope to it, and actually I think

7

it's a lot thicker than the normal mattress that we had in the

8

facility.

9

Q.

That was your memory of what the mattress looked like?

10

A.

I think that's the mattress we had.

11

Q.

Okay.

So [retrieving AE 414] I'm showing you what's been

12

marked Appellate Exhibit 414.

Prior to getting your suicide

13

mattress, did you have any in stock?

14

A.

No, sir, we did not.

15

Q.

So this would have been the first time you had a suicide

16

mattress?

17
18

A.

Yes, sir; that facility--this facility, the Quantico

facility, yes, sir.

19

Q.

And where did you obtain the suicide mattress?

20

A.

That mattress, I think, was obtained from the local county

21

jail.

22

it was--I know it was one of the local jails.

23

I think it was Rappahannock County Jail, I think.

Q.

But I think

And when is the last time you saw the suicide mattress?

4976

08867

1

A.

[No response.]

2

Q.

After PFC Manning?

3

A.

When I was at the facility, sir.

4

I'm not mistaken.

5
6

That was January 2011, if

Q.

And when you got the suicide mattress, did you look at it

before it was issued to PFC Manning?

7

A.

My staff did.

8

Q.

And this--is this the mattress that you gave to PFC

9

I think I actually did look at it.

Manning?

10

A.

I have no idea, sir.

12

Q.

Sure; go right ahead.

13

A.

[Moved from witness stand to examine AE 414.]

14

Q.

Is there a way you can tell whether or not this is the same

11

15

Do you mind if I stand up and look at

it?

mattress you gave him?

16

A.

To be honest, sir, I don't--I don't--I don't know.

17

Actually, I don't think so, but I could be--I could be--I don't think

18

so--that this is it, sir.

19

Q.

And why don't you think this is it?

20

A.

I think from my recollection is probably a lighter blue.

21

It may have been a little thinner, I think.

22

sir.

23

Q.

Okay.

4977

I'm really not sure,

08868

1

A.

I'm really just not sure.

2

Q.

Do you know if you marked the mattress that you got PFC

3

Manning in any sort of way?

4

A.

No, sir.

5

Q.

Okay.

6

A.

Yes, sir.

7

[The witness resumed his seat at the witness stand.]

8
9
10
11
12
13
14

All right, thank you, Chief Averhart.

Q.
413.

Okay, Chief, I'm going to show you now Appellate Exhibit

Is this--Appellate Exhibit 413, is this the standard mattress

that you had in your facility or is this similar to it?
A.

I think it's similar to it, sir, and may be the type.

I

think it's actually [examined AE 413]---Q.

And, Chief, just for the recording, if you could face this

when you're looking at it.

15

A.

Okay.

16

Q.

So could you tell me if that is the same mattress that you

17

had at your facility?

18

A.

I'm not sure, sir.

It appears to be----

19

Q.

Okay.

20

A.

---- that type of--it looks the same.

21

Q.

All right, so from your memory it was----

22

A.

From my memory.

23

Q.

---- basically this thickness and this----

4978

08869

1

A.

Yes, sir.

It looks similar.

And I actually seen them a

2

lot thinner; that's why I remember [inaudible due to noise from

3

moving the mattress] like that.

4

like this was gray, from my recollection,----

Actually, more of the ones we had

5

Q.

Okay.

6

A.

---- more of the color.

7

Q.

All right, thank you, Chief.

8
9

Now because of his status, he was permitted not to have
regular sheets or blankets, correct?

10

A.

That's correct, sir.

11

Q.

In fact, he was given a suicide proof blanket.

12

A.

That's correct, sir.

13

Q.

I'm showing you what's been marked Appellate Exhibit 411.

14

Chief, can you look at that and let me know if you think that that's

15

the same type of blanket.

16

A.

Yes, sir.

17

Q.

You believe that's the same type of blanket you provided?

18

A.

Yes, sir.

19

Q.

And how do you recognize that blanket?

20

A.

I actually recognize it by the--by the color.

21

looks the same color, but----

22

Q.

Are you familiar with how the blanket felt?

23

A.

[Examined AE 411] Yes, sir.

4979

It looks--it

08870

1

Q.

And does that feel like the same blanket you had?

2

A.

It actually looks the same, but as far as feel, I don't

3

know, sir.

4

Q.

Why don't you know?

5

A.

Because I don't know.

6

Q.

Oh, okay.

7

A.

I'm sorry, sir.

8

Q.

All right, so you can't tell by feeling it whether or not

9
10
11
12

I didn't--so----

I don't--I don't know.

it's the same blanket you had?
A.

Well if that's the same blanket, I just don't--I just don't

know, sir.
Q.

13
14

I'm sorry.

Okay.

Thank you, Chief.

Now also because of his status, he was not to have--or
allowed to have any personal items in his cell?

15

A.

That's correct, sir.

16

Q.

He was only permitted to have one book or one magazine at

17

any one time.

18

A.

Yes, sir.

19

Q.

And if he wasn't actively reading the book or the magazine,

20
21

then that would be secured from him.
A.

Yes, sir.

4980

08871

1

Q.

And also at the end of the day when after taps and he was

2

going to go to sleep, the book or magazine would be retrieved from

3

him.

4

A.

Definitely, sir.

5

Q.

If PFC Manning was attempting to exercise in his cell, he

6

would be permitted--he would be prevented from doing that because of

7

his status.

8

A.

That's correct, sir.

9

Q.

So if he attempted to do any push-ups or sit-ups, the

10

guards would correct him.

11

A.

That's correct, sir.

12

MJ:

Can I just ask something?

13

Because of his status or was

that a general rule for the entire brig?

14

WIT: General rule, ma'am.

15

MJ:

Okay, proceed.

16

Q.

Well, Chief, was it just because of his status?

17

A.

Well, his max custody status.

18

Q.

So if he were not on max custody and POI, he could, in

19
20
21

fact, exercise in his cell.
A.

Right.

I've allowed and I think we've allowed those

prisoners to do dips, like, if they are in their cells.

4981

08872

1

CDC[MR. COOMBS]:

I'm retrieving from the witness Appellate

2

Exhibit 440 and also copies of Enclosure 22 to Appellate Exhibit 259;

3

32 and 47 to Appellate Exhibit 259.

4

[The civilian defense counsel handed a document to the court

5

reporter.

6

handed it to the civilian defense counsel.]

The court reporter marked the document as AE 440I and

7

CDC[MR. COOMBS]:

I'm showing the witness what has been marked

8

Appellate Exhibit 440India.

9

Q.

Chief, do you--do you recognize that?

10

A.

[Reviewed exhibit] Yes, sir, I do.

11

Q.

And what is that?

12

A.

This is the response to request to redress PFC Bradley

13

Manning on the--dated 19 January 2011.

14

Q.

And, Chief, if you could, can you turn to page 5 of that?

15

A.

[Did as directed.]

16

Q.

Actually, the actual page 5.

17

A.

I'm sorry.

18

Q.

Oh, no worries.

19

A.

[Did as directed.]

20

Q.

Chief, do you see in--on page 5, in (fox)(3),----

21

A.

Yes, sir.

22

Q.

---- where you talk about exercise?

23

A.

Right.

4982

08873

1

Q.

And what--can you read what you say about exercise there?

2

A.

[Reading from exhibit] Because the indoor recreation area

3

is not a secured area, restraints are not normally removed from

4

maximum custody inmates.

5

disciplinary status are allowed to exercise in cell--exercise while

6

in their cell provided that it does not disrupt the good order and

7

discipline of the facility.

8

PFC Manning has been in SR or POI status and not allowed to exercise

9

within his cell, I authorize PFC Manning's restraints to be removed

All inmates unless in SR, POI, or in a

Due to the extended period of time that

10

while conducting recreation call inside, although he is not--

11

although----

12

Q.

13

You can stop there; that's fine.
I just want----

14

MJ:

15

CDC[MR. COOMBS]:

16

MJ:

17
18
19

Where am I looking on this thing?
Yes, ma'am; page 5.

Now are we talking about the pages on the bottom,

handwritten?
CDC[MR. COOMBS]:

Handwritten on the right-hand side, yes,

ma'am.

20

MJ:

21

CDC[MR. COOMBS]:

22

Where is this----

I have it in the middle, but okay.
They should be [pause]--you should have

handwritten on the right--far right-hand side, and I might not have

4983

08874

1

done that for this one.

2

would be page 7 of 57.

If you have it just in the middle, ma'am, it

3

MJ:

4

CDC[MR. COOMBS]:

5

MJ:

Okay, thank you.

6

Q.

So, Chief, you allowed detainees to exercise in their cell

7

Okay.
And then it would be under (fox)(3).

if they weren't MAX, POI, or some disciplinary segregation----

8

A.

Yes; yes, sir.

9

Q.

As long as it wasn't disruptive in any way.

10

A.

Right, right.

11

Q.

So if you were in--if you were MDI, you could do push-ups

12

in your cell.

13

A.

Right.

14

Q.

You could do sit-ups.

15

A.

Right.

16

Q.

And I guess you could do just about anything else as long

17

as it wasn't deemed disruptive----

18

A.

Right.

19

Q.

---- to good order and discipline.

20

A.

Right.

21

Q.

Now when PFC Manning went to sleep, he was required to

22

strip down to his underwear and then surrender his clothes to the

23

brig staff?

4984

08875

1

A.

That's correct.

2

Q.

And he was only permitted hygiene items when they were

3

needed.

4

A.

That's correct.

5

Q.

So if he needed toilet paper, he would have to request for

6

that in order to go to the bathroom.

7

A.

Yes, sir.

8

Q.

And obviously, then, he would have to wait to receive the

9

toilet paper.

10

A.

That's correct, sir.

11

Q.

And under your handling instructions, why couldn't he

12

receive toilet paper?

13

A.

Because toilet paper can be used as an item to commit

14

suicide, sir.

15

Q.

That would be by, I guess----

16

A.

Ingestion.

17

Q.

Okay, asphyxiating yourself.

18

A.

Swallowing it; you know, asphyxiating, yes, sir.

19

Q.

Now he was permitted to have one book, though, right?

20

A.

That's correct, sir.

21

Q.

Couldn't he rip the pages from the book and choke himself?

4985

08876

1

A.

He possibly could have done that as well; however, those

2

staff personnel are constantly monitoring him during the daytime and

3

at nighttime, books are not allowed in his cell.

4
5

Q.

So why not in the daytime allow him to have toilet paper if

the staff is constantly monitoring him?

6

A.

Because toilet paper was more susceptible to be hidden, for

7

one.

8

was acting upon that time because I know toilet paper was an item.

9

never--and although I considered a book as well because if someone

10

made up in their mind that they're going to do something, he could

11

have very easily taken a page and do the same thing.

12
13

Again, in--again, from my experience, that's what I knew and I

Q.

I

Yeah, so could you see, Chief, how it might be humiliating

to have to ask for toilet paper?

14

A.

Could be, sir.

15

Q.

And he also had to ask for soap when he needed to wash his

16

hands, correct?

17

A.

That's correct, sir.

18

Q.

For correspondence time, he was permitted, up until 27

19

October, 1 hour per day.

20

A.

Yes, sir.

21

Q.

And then after 27 October, that was changed to 2 hours per

A.

Yes, sir.

22
23

day.

4986

08877

1

Q.

And, again, with correspondence time, if he wasn't

2

actively, you know, using the pen and paper that he was provided,

3

---

4

A.

That's correct, sir.

5

Q.

---- it would be secured from him.

6

A.

That's correct, sir.

7

Q.

He was permitted to have a razor when he--in order to

8

shave, correct?

9

A.

Yes, sir.

10

Q.

And obviously you knew he could hurt himself with a razor.

11

A.

That's correct, sir.

12

Q.

But you would make sure someone's watching him while he's

13

-

using it.

14

A.

Yes, sir.

15

Q.

And then retrieve it when he was done.

16

A.

Yes, sir.

17

Q.

He was permitted to have socks, correct?

18

A.

Yes, sir.

19

Q.

And were these retrieved from him as well at the end of the

21

A.

I'm sure they were, sir.

22

Q.

And were you ever concerned about him harming himself with

20

23

day?

socks?

4987

08878

1

A.

[Pause] Not--no, sir.

I was not concerned about him

2

harming himself with socks or even his underwear.

3

happen.

4

Q.

And why weren't you concerned about that?

5

A.

Why were or was not?

6

Q.

Was not.

7

A.

I did not consider that a threat during my--under my

8

tenure, sir.

9

Q.

And----

10

A.

At that time because of the methods that was set.

11

Q.

And using your experience, why didn't you perceive the

12
13

I allowed that to

underwear or the socks as a potential threat?
A.

[Pause] The underwear and the socks could, as well, same as

14

any other item be used as a method to commit suicide.

15

perceive that at that particular time because I figured the threat

16

was assessed.

17

we monitored that type of stuff as well.

18

Q.

I did not

You know, he did not show that, but on the same token,

And I guess if he were going to try to harm himself with

19

those based upon where he was at, the guards would be able to see

20

that pretty quickly.

21

A.

For the most part, yes, sir.

22

Q.

And then, obviously, if he was trying to harm himself, the

23

guards could intervene.

4988

08879

1

A.

2

CDC[MR. COOMBS]:

3

That's correct.
Your Honor, if we could take a 15-minute

comfort break; then I'll continue?

4

MJ:

5

That's fine.
Court is in recess until a quarter after 3 or quarter after

6

1500.

7

[The Article 39(a) session recessed at 1459, 6 December 2012.]

8

[The Article 39(a) session was called to order at 1517, 6 December

9

2012.]

10

MJ:

This Article 39(a) session is called to order.

Let the

11

record reflect all parties present when the court last recessed are

12

again present in court.

13

Mr. Coombs.

14

CDC[MR. COOMBS]:

15
16

The witness is on the witness stand.

Thank you, Your Honor.
CROSS-EXAMINATION CONTINUED

Questions by the civilian defense counsel [MR. COOMBS]:

17

Q.

Chief Averhart, I remind you, you're still under oath.

18

A.

Yes, sir.

19

Q.

Chief, I'm giving you Enclosure 47 to Appellate Exhibit 259

20

again and directing your attention to page 96.

21

MJ:

And what is that?

22

CDC[MR. COOMBS]:

That is the SECNAV Instruction, ma'am.

4989

08880

1

Q.

I want to ask you a few questions about the SECNAV for a

2

second.

3

indicates that there's wide variations in both personality and

4

mentality of detainees, correct?

This manual provision that I direct your attention to

5

A.

Yes, sir.

6

Q.

And it states that when there is fair and impartial

7

treatment, prisoners generally present no serious disciplinary

8

problems, correct?

9

A.

That's correct, sir.

10

Q.

But then it also talks about how some detainees are

11

deliberately uncooperative.

12

A.

[Reviewed exhibit.]

13

Q.

That kind of goes over----

14

A.

Yes, sir.

15

Q.

---- to page 97.

16

A.

Right; right, sir.

17

Q.

And then on page 97, it continues that, "Some have

18

personality difficulties which make them chronic sources of trouble,

19

such as highly aggressive person or acutely depressed."

20

A.

Right.

21

Q.

Now under the SECNAV Instruction, if you look at 2(alpha)

22
23

on that page 97,---A.

Right.

4990

08881

1

Q.

---- it states that the kind of--the type of detainee that

2

should be in MAX are those detainees, quote, requiring special

3

custodial supervision because of high probability of escape or are

4

potentially dangerous or violent.

5

A.

Right.

6

Q.

Now from your standpoint as a commander looking at that, do

7

you read that to indicate that the detainee needs to either be a high

8

probability of escape or potentially dangerous or violent; those are

9

your, kind of, pre-categories?

10

A.

Are you referring to----

11

Q.

For max----

12

A.

---- Prisoner Manning?

13

Q.

---- custody.

14

A.

Maximum custody.

15
16

If the confining charge fit within this

category, yes, sir, or point severity, yes, sir.
Q.

All right, so from what you're looking at you would look to

17

see if they're a high probability of escape or if they're potentially

18

dangerous or violent.

19

A.

Look at all circumstances, sir.

20

Q.

But I'm looking at the maximum, so----

21

A.

Okay.

22

Q.

---- do you see under the SECNAV how it says those are the

23

types of detainees that should be in max?

4991

08882

1

A.

I understand that, sir.

2

Q.

Now if you go over to page 100, it talks about ultra-

3

conservative custody classifications result in a waste of prisoner

4

and staff manpower; do you see that?

5

A.

Right; I understand that, sir.

6

Q.

And would you agree that ultra-conservative custody status

7
8
9
10

would result in a waste of prisoner and staff manpower?
A.

I can agree with that; however, you know, everything is a

case-by-case basis.
Q.

But you would--from your perspective as a commander you

11

would agree that being ultra-conservative can be a waste of staff

12

manpower.

13

A.

If one would be ultra-conservative, sir, because--then

14

you're right, yes, it could, but I think it's also a case-by-case

15

basis.

16

Q.

Okay.

And turning back just real quickly to page 97, when

17

it talks about maximum prisoners, it states, quote, Ordinarily, only

18

a small percentage of prisoners shall be classified as MAX, end

19

quote.

20

A.

Yes, sir.

21

Q.

Is that your experience as a commander that only a small

22
23

percentage of prisoners are classified as max?
A.

That's correct, sir.

4992

08883

1

Q.

And so the overwhelming majority are MDI, I guess?

2

A.

Yes, sir, MDIs, especially if they're a detainee--all

3
4

detainees pretrial are normally MDIs--are MDIs.
Q.

Now, and I know I'm having you go back and forth, but if

5

you go back to page 100, it says, Classification decisions [sic] are

6

supposed to follow established, but flexible, procedures.

7

A.

Okay.

8

Q.

Do you see that?

9

A.

[Reviewed exhibit] I know what you're talking about, sir.

10

Q.

On page 100, just talking about classification decisions

11

are supposed to follow----

12

A.

What paragraph, sir?

13

Q.

I believe paragraph 3.

14

A.

[Reviewed exhibit] Yes, sir.

15

Q.

And you see where it says "established but flexible

16

procedures"?

17

A.

Yes, sir.

18

Q.

And would you agree with that as a commander that you

19

What paragraph?

should have flexible procedures on how you classify a detainee?

20

A.

Sure.

21

Q.

So that you shouldn't have kind of a cookie-cutter

22
23

approach; it should be case-by-case basis.
A.

That's correct.

4993

08884

1

Q.

Now going again back to page 98.

2

A.

[Did as directed.]

3

Q.

The SECNAV Instruction notes that MDI detainees are those

4

that, quote, present security risks not warranting MAX.

5

regarded as dangerous or violent, end quote.

They are not

6

MJ:

7

CDC[MR. COOMBS]:

8

A.

[Reviewed exhibit.]

9

Q.

Do you see that provision, Chief?

10

A.

Yes, sir, I do.

11

Q.

And would you agree that MDI detainees are those that

12

Where are you?
This is on page 98, ma'am, under bravo.

present security risks that don't warrant MAX?

13

A.

Yes, sure.

14

Q.

So MDI still are detainees that have security risks,

15

correct?

16

A.

Sure.

17

Q.

But they're just not regarded as dangerous or violent.

18

A.

Correct.

19

Q.

Now during the 127 days between 27 August, when Captain

20

Hocter initially recommended removing PFC Manning from POI, and the

21

end of December of 2010, did you ever think that MAX and POI was

22

ultra-conservative?

23

A.

No, sir, I did not.

4994

08885

1

Q.

Did you----

2

A.

For Detainee Manning, Prisoner Manning.

3

Q.

Right, for Detainee Manning.

4

A.

Right; no, sir, I didn't.

5

Q.

Did you ever think that was ultra-conservative?

6

A.

No, sir.

7

Q.

Did PFC Manning ever try to escape during that time period

8

that you're aware of?

9

A.

No, sir, not under my cognizance, no, sir.

10

Q.

During that time period, did PFC Manning ever try to

11

assault anyone?

12

A.

No, sir.

13

Q.

During that time period, did PFC Manning ever try to harm

14

himself?

15

A.

Yes, sir.

16

Q.

During the 27 August to December 2010 time frame?

17

A.

No, sir, not that I know, sir.

18

Q.

And during that time period, did PFC Manning engage in any

19

disruptive behavior?

20

A.

No, sir.

21

Q.

So if we're looking at that time period of almost, you

22

know, basically 5, almost 6 months, what were you looking at to say

23

that this was not ultra-conservative to keep him in MAX and POI?

4995

08886

1

A.

His confining charges of 128, assault, you know, as well as

2

the 134, okay, the--with the prerequisite or whatever that 30--134

3

dealing with national security, that is the piece that I was looking

4

at as well; that's a factor.

5
6

Q.

Okay, and that seems to be like your main factor, the

charges; is that right?

7

A.

Yes, definitely.

8

Q.

So if PFC Manning were charged with, say, just desertion,

9

that was the only offense,----

10

A.

Right.

11

Q.

---- and everything else was the same about him, would he

12

still be in MAX and POI in your mind in December of 2010?

13

A.

Can you repeat that again, sir?

14

Q.

Sure.

15

If PFC Manning were charged with just desertion,

that was his only offense.

16

A.

Okay.

17

Q.

So he comes to you, he--desertion.

18

A.

Right.

19

Q.

And everything else was the same, all the other things that

20

you know about PFC Manning were identical, would he still be in MAX

21

and POI in December of 2010?

22

A.

No, sir.

23

Q.

And why----

4996

08887

1

A.

Well----

2

Q.

---- is that?

3

A.

---- hold on, hold on.

4

Q.

Sure.

5

A.

There are--when you say factor everything else I know about

6
7

Let me be clear.

Manning, such as?
Q.

Everything.

So let's say he was instead of Kuwait, it was

8

some other confinement facility that he was initially picked up at;

9

he had his suicidal issues that you know about; and he came to your

10

facility for whatever reason.

11

A.

Right.

12

Q.

And then from the time that he got to your facility to

13

December,----

14

A.

Right.

15

Q.

---- so everything's the same; the only thing I'm changing

16

in the facts that you know about PFC Manning are his charges.

17

A.

Right.

18

Q.

Would he still be in MAX and POI in December of 2010?

19

A.

Maybe not that long, sir, but, yes, sir.

20

Q.

Okay----

21

A.

May--maybe but not that long because, again, normally with

22

a desertion charge, a desertion charge does not carry a lengthy

23

sentence if found guilty.

So I see this type of confinement all the

4997

08888

1

time, and that prisoner, once his lawyer advise him and tell him that

2

there's a paperwork process to process him out, that prisoner

3

conforms to everything.

4

told.

5

to be a productive citizen in society.

6

out, so he's going to do what it needs to take to get out.

7

going to establish that communication with his counselor.

8

to get involved in Programs.

9

stay under the radar, and get out.

He's going to do what he's told, when he's

He's going to prepare to establish himself to be rehabilitated
You know, he's ready to get
He's
He's going

He's going to just try to do his time,

10

Q.

All right, and changing the hypothetical just slightly.

11

A.

Okay.

12

Q.

If the charges were something that in your experience would

13

mean that the Soldier in this--yeah, in this case, a Soldier, is

14

going to be court-martialed and if found guilty would receive some

15

time but not an extremely long time but it's not a paperwork issue

16

where you're just filing some paperwork and then you're out,----

17

A.

Right.

18

Q.

---- would you believe that PFC Manning would still be in

19
20

MAX and POI in the December of 2010 time frame?
A.

He probably would not be MAX POI, again, not for that long

21

of a period of time, sir.

Again, it's a case-by-case basis, you

22

know, and I know it's hypothetical and so I can say I don't know.

4998

08889

1
2

Q.

Okay, and so I guess hearing what you have to say that it

was a big factor that he was facing such serious offenses.

3

A.

Yes, sir.

4

Q.

Now at the end of November, Gunnery Sergeant Blenis told

5

you that he had overheard from the guards, talking about PFC Manning,

6

some odd behavior that they noted or at least behavior that they

7

noted about PFC Manning; is that correct?

8

A.

Yes, sir.

9

Q.

And I want you to have the benefit of the paperwork, too.

10

I'm going to give you Enclosure 22 of Appellate Exhibit 259.

This is

11

your weekly reports.

12

[handing exhibit to witness].

13

that, and I'll retrieve from you--actually, I'll leave these exhibits

14

with you.

I believe it's on page--yes, it's on page 47
If you would, just take a look at

15

A.

[Reviewed exhibit.]

16

Q.

So at the end of November, Gunnery Sergeant Blenis notes

17

that he overheard some guards talking about PFC Manning?

18

A.

[Reviewed exhibit] Yes, sir.

19

Q.

And in particular he told you that he heard from one of the

20

guards that PFC Manning was licking the bars while sleepwalking.

21

A.

[Reviewed exhibit] Yes, sir.

22

Q.

He also reported to you that PFC Manning had been seen

23

dancing in his cell?

4999

08890

1
2

A.

[Reviewed exhibit] I actually think that was on another

occasion, sir, not during this time frame.

3

Q.

So not from the behaviors listed there?

4

A.

No, sir; I don't think so.

5

I don't see that dancing

[reviewed exhibit].

6

Q.

[Pause] You're right.

So another time he was noted dancing

7

in his cell?

8

A.

Yes, sir.

9

Q.

And based upon some of these odd behaviors or perceived odd

10

behaviors, you ordered that a special log book would be created in

11

order to document anytime the staff saw anything.

12

A.

That's correct.

13

Q.

And you didn't want it in the normal log book because you

14

didn't want to have to look through everything, right?

15

A.

Right.

16

Q.

You wanted it basically in a log book for PFC Manning so

17

that it could be easily found.

18

A.

Right.

19

Q.

And the guards, then, would be the guards that were in that

20

duty hut that was directly across from his cell, correct?

21

A.

Right.

22

Q.

And they would be the ones that anytime they noted anything

23

they would write it down; is----

5000

08891

1

A.

Right.

2

Q.

---- that right?

3

A.

Right.

4

Q.

And when you ordered the log book, did you ever say that

5
6

you knew where this whole thing was heading?
A.

People were----

No, I never said that, sir; but, again, with my years of

7

experience, you know, I've seen high profile cases.

8

normally take place, so I was basically aware of a day like today,

9

you know, at the end result what could take place.

10
11

Q.

This is what

All right, so at the time that you ordered it, you--you

knew--that was in your mindset that you knew where this was going.

12

A.

Yes, sir.

13

Q.

And you knew that eventually questions would be asked by

14

people.

15

A.

That's correct, sir.

16

Q.

And did that--did the behaviors that people were--or guards

17

were noting, did that factor into your decision to keep PFC Manning

18

in MAX and POI?

19

A.

It was--it was a factor as well, sir.

Again, and I thought

20

about a gamut of things, you know, from the observation of the staff,

21

the assessment by Captain Hocter, you know, especially because he is

22

aware of this type of stuff that was going on, definitely.

5001

08892

1

Q.

Okay, so--and the behaviors that you were concerned about

2

most, can you tell me which ones of those you were concerned about

3

most?

4

A.

Well probably the licking of the bars.

5

Q.

That was the one that concerned you the most?

6

A.

[Pause] Well the licking of the bars is probably the--that

7
8
9
10
11
12

I would consider the serious one.
Q.

And on that specific behavior, were you ever told that PFC

Manning was apparently seen doing that when he was sleepwalking?
A.

It was said sleepwalking; however, who knows if he was

sleepwalking or not.
Q.

Well did you ever get a report that when the guards came

13

out and they said his name that he was startled and he appeared to

14

have just been woken up?

15

A.

Yes, I did.

16

Q.

And did anyone ever convey to you that this behavior was

17

shared with the docs and the docs said that that was kind of a normal

18

side effect of medication?

19

A.

No, sir, they did not.

20

Q.

And if you were told----

21

A.

And more so the doc did not.

22

Q.

Okay.

23

And if you were made aware of that fact that as a

side effect of the medication you could have sleepwalking and this

5002

08893

1

could be normal behavior, would this behavior, then, be of a concern

2

to you?

3

A.

That behavior, sir, is definitely a concern for me,

4

especially if I knew he was going to the general population.

5

wouldn't want him in the general population sleepwalking, again, you

6

know, because of the ramification that could possibly take place if

7

he's sleepwalking in the general population.

8

I

Q.

Well, I mean, that sleepwalking would be, I guess, when ---

10

A.

Right.

11

Q.

---- when you're in your cell though,----

12

A.

Right.

13

Q.

---- right?

14

A.

Right; yes, sir.

15

Q.

So what I'm saying is if a doctor told you or you got

9

-

16

information that, hey, this licking the bars was because of the

17

medication he was under and not some mental problem, it's just a

18

normal side effect of the medication, would you, then, look at that

19

and say, okay, that's not an odd behavior I need to be concerned

20

about?

21

A.

22

prison.

23

Q.

That would be a concern of mine, sir.

Again, it's a

That would be a concern of mine.
So it would still be a concern of yours?

5003

08894

1

A.

Yes, sir, definitely.

2

Q.

And why is that?

3

A.

Definitely, because we're in a prison and just the factor

4

of medication, the individual being on medication, and those type of

5

acts, again, are just not conducive to that correctional environment.

6
7

Q.

But you wouldn't hold that involuntary act against the

detainee to hold him in MAX and POI, would you?

8

A.

[Pause] Probably not.

9

Q.

Okay.

10

A.

Well just, again, in my experience, sir, I, you know, and

And why not?

11

I've seen a lot of prisoners do a lot of things, that's just not

12

something that I've seen.

13
14

Q.

I know but you just said you wouldn't hold it against him

because it's involuntary because of medication, right?

15

A.

Right.

16

Q.

Now the other behaviors, were there any others that you

17
18

were concerned about?
A.

[Reviewed exhibit] Although I look at things like the sword

19

fighting, imaginary characters in his cell, you know, he may have

20

been bored and, you know, although they appear to be abnormal, I

21

wouldn't want any other prisoners to see that because they would pick

22

at him.

23

into consideration as well; the lifting of the weights and things

You know, he may have been bored, so I take things like that

5004

08895

1

like that, he may just have been entertaining himself.

2

know, although I have an objective view of it, even making faces, I

3

make faces in the mirror, so but on the same token, I realize I would

4

not want other prisoners to see that in there because they will--in

5

that type of environment they will provoke him.

6

Q.

Again, you

Okay, so taking that aside, and we'll talk about the

7

concern of other detainees, if you heard just behavior of, you know,

8

imaginary sword fighting, making faces in the mirror, playing peek-a-

9

boo, you, as a brig OIC, would not be concerned about that with a MAX

10

detainee because you'd chalk that up to boredom in his cell?

11
12
13

A.

Well that's--again, everything is a case-by-case basis,

Q.

But I'm asking for you, if you heard, hey, Chief Averhart,

sir.

14

you know, Detainee Smith was making faces in his mirror, you know,

15

the detainee's lifting weights, doing sword fights with himself, and

16

he's in MAX, you know he's in there for 23 hours a day, would you say

17

that's not a big concern because he's probably just bored?

18
19
20

A.

Well what I did, sir, I'd just make sure that we document

that and just, you know, keep moving.
Q.

No, I know, but I want to get your view of that behavior,

21

make sure I understand you correctly.

22

at that and say that's normal behavior because he was just bored?

5005

Are you saying you would look

08896

1

A.

No, I wouldn't say that's normal behavior.

2

that's normal behavior.

3

understand why one would be doing that.

I would not say

I would say that I could potentially

4

Q.

And why would one be doing that?

5

A.

Again, as I stated, you know, if I look at things in an

6

objective view, he could have been bored.

7

same token, there could have been something, you know, going on in

8

his head.

9

Q.

I don't know.

But on the

I don't know that.
Okay.

And did you know that other brig staff have

10

testified that they've seen behavior like that and they chalked it up

11

to boredom?

12

A.

Potentially they could have; no one's told me that.

13

Q.

But would that----

14

A.

By other--by other prisoners?

15

Q.

Right, and would that be something where you would say I

16

could see that happening if you're on MAX; that you're just bored,

17

you do something to entertain yourself?

18
19

A.

Again, sir, in prison, for the most part, that type of

stuff is not taking place.

20

Q.

It's not taking place?

21

A.

No, sir.

22

Q.

Were you aware----

23

A.

An average--go ahead.

I'm sorry.

5006

08897

1

Q.

Were you aware that the brig psychiatrist were informed

2

about this behavior and they said it was not anything to be concerned

3

about?

4

A.

In regards to Manning or other prisoners?

5

Q.

In regards to PFC Manning.

6

A.

Okay, no one's ever told me that, and the doc definitely

7

didn't tell me that.

8

Q.

So you were not aware that the doctors had been told----

9

A.

Well I'm sure that the doc know about it, but they didn't

10
11

talk to me about it, you know, that type of behavior.
Q.

Did any of your lower brig staff tell you, hey, we

12

documented that behavior but it's not abnormal; we see other

13

detainees doing that as well?

14

A.

No.

They are documenting that behavior because they've

15

asked--been, you know, asked to document that, so I don't go down

16

talking to, you know, the junior Marines in regards to that--that

17

type of stuff.

18
19
20
21
22

Q.

Were you concerned when you looked at this behavior, were

you concerned by any of this behavior?
A.

Definitely; as I stated earlier, sir, definitely concerned.

Everything on here concerns me, you know.
Q.

And what did you do based upon your concerns?

5007

08898

1

A.

I just basically made sure that we annotated it.

Again, I

2

was aware that Dr. Hocter knew about this, you know, so he had never

3

talked to me about it, you know, but I was aware that he was aware of

4

it.

5

Q.

6

document it.

7

A.

Document, yes, sir.

8

Q.

Now, on 15 December, Gunnery Sergeant Blenis sent you and

9
10

So the only thing you did based upon your concern was to

Master Sergeant Papakie an e-mail regarding a package that was sent
for PFC Manning but he refused the package; do you recall that?

11

A.

Yes, sir.

12

Q.

And in that e-mail, Gunnery Sergeant Blenis talks about the

13

fact that it was likely a package for his upcoming birthday from a

14

family member, but because a construction worker took it from

15

Amazon.com and tried to deliver it, he refused delivery of it.

16

A.

That's correct.

17

refuse delivery of it.

18

the mail away.

Okay, well, first of all, Gunny did not

Gunny can't turn the mail away.

I can turn

19

Q.

Oh, so was it--was it you that refused the package?

20

A.

Ultimately--ultimately, I have to sign all documentation

21
22
23

for mail returned.
Q.

Okay.

And at that time there was construction outside of

the brig.

5008

08899

1

A.

Yes, sir.

2

Q.

And that was basically right at the front road leading up

3

to the brig, correct?

4

A.

That's correct.

5

Q.

Can you tell me why you refused the package?

6

A.

A couple reasons.

First of all, if there was a package he

7

didn't receive, Prisoner Manning, no, because he's passed indoc.

8

should have dropped a DD 510 to receive the package, whether it's for

9

a birthday, Christmas, or whatever the case may be.

10

Q.

And let's stop that before you go to the next reason.

11

detainee doesn't drop a 510 to say, you know what?

12

me something for my birthday.

He

So a

Someone's sending

13

A.

Right.

14

Q.

If that's the only reason, would you as the brig staff say,

15

okay, look.

16

ahead because it's your birthday and we're going to go ahead and look

17

at it, make sure it's not contraband, and then we'll let you have it.

You didn't drop a 510 for this, but we're going to go

18

A.

Right.

19

Q.

Would you do that?

20

A.

No, sir.

21

Q.

No exceptions.

22

A.

No, sir.

5009

08900

1
2

Q.

So if they don't drop a 510 to say that someone's mailing

them something, no exceptions, the package goes back.

3

A.

That's correct.

4

Q.

And why is that?

5

A.

Well, sir, that is not the normal procedures.

Again, when

6

I look at something of this sensitive of a nature, okay, I was

7

actually receiving personal--personal mail in regards to

8

unprecedented direct mail coming to me, direct mail coming to the

9

facility with no return address.

10
11
12

You know, I did not know how to

take whatever package that was coming to that facility.
Q.

Well, that's going into another reason.

I just want to

stick with the--and we'll take Detainee Smith,----

13

A.

Okay.

14

Q.

---- you know, so it's not Detainee Manning.

Detainee

15

Smith receives a package.

You know it's--Detainee Smith's birthday

16

is upcoming but he doesn't drop a 510 to tell you, "Hey, Chief, I'm

17

going to receive a package from my mom for my birthday."

18

A.

Yes, sir.

19

Q.

My understanding of what you testified to is in the

20

Detainee Smith situation, his package is being refused.

21

A.

That's correct, sir.

22

Q.

And that's why I was asking why is that?

23

A.

Because, sir, it's not normal procedure to receive mail.

5010

08901

1

Q.

So you wouldn't make an exception for Detainee Smith by

2

saying, "You didn't drop the 510.

We'll take a look at it and make

3

sure it's not contraband.

4

to let you have your birthday present"?

For your morale and whatnot, we're going

5

A.

No, sir.

6

Q.

So if you didn't follow the procedures, you don't get your

7
8
9
10
11

package.
A.

That's correct, sir.

I have mail clerks assigned to the

brig to properly go over to the mail--post office to receive mail.
Mail--all mail must be received through the direct--correct channels.
Q.

All right, so then--all right, so now let's go--I think you

12

have another reason why you would have refused Detainee Manning's

13

package aside from that, and you were going to go into that.

14

there another reason you would have refused the package?

15

A.

Is

Well, as I stated, the mail was not being delivered through

16

the correct channels; it was not being delivered by, in this case,

17

the postal clerks.

18

Q.

And why----

19

A.

And proper procedures.

20

Q.

---- why is that a problem?

21

A.

Because it's not the proper channels to receive mail into

22
23

the correctional facility, sir.
Q.

Okay.

And that was your only concern?

5011

08902

1

A.

[Pause] Yes, sir; I think so.

2

Q.

All right, so then apparently what happens is Gunnery

3

Sergeant Blenis sends you an e-mail on that day and he talks about

4

the fact that the package was being rejected and returned to sender

5

due to the manner in which it was received and the fact there was no

6

prior request made,----

7

A.

Yes, sir.

8

Q.

---- but then he ends the e-mail saying, "and we felt like

9

being dicks."

10

A.

Yes, sir.

11

Q.

And your response to that--and, of course, he sends that to

12

you and Master Sergeant Papakie, right?

13

A.

Yes, sir.

14

Q.

Your response to that is, "You crazy, Gunny."

15

A.

I said, "You crazy, Guns.

16

Q.

And why did you respond that way?

17

A.

Well, sir, I responded because I understand what the Gunny

18

meant.

I understand that it was in no way attempting to be

19

demeaning, disrespectful, that he just ended it with a joke, although

20

it was inappropriate and tasteless, you know, and it shouldn't have

21

been made, but I understood what the gunny was doing.

5012

08903

1

[The civilian defense counsel handed a document to the court

2

reporter.

3

handed it to the civilian defense counsel.]

The court reporter marked the document as AE 440J and

4

Q.

And I'm handing you Appellate Exhibit 440Juliet.

5

A.

Yes, sir.

6

Q.

Is that the e-mail that you received?

7

A.

That is the e-mail, sir.

8

Q.

Now, as you say, it was inappropriate and unprofessional,

9

[Pause] That is the e-mail, sir.

right?

10

A.

Yes, sir.

11

Q.

And was it also problematic that this was PFC Manning's

12

counselor saying this?

13

A.

That's understood, sir.

14

Q.

And because, as you said on direct, the counselor is the

15

advocate for the detainee, right?

16

A.

Right.

17

Q.

The counselor is the main source of communication between

18

the staff and the detainee.

19

A.

That's correct, sir.

20

Q.

The counselor is the main source of communication between

21
22

the detainee's attorney and the detainee.
A.

That's correct, sir.

5013

08904

1
2

Q.

an inappropriate joke.

3
4

A.

It came to me, not to Detainee Manning, sir; and, again,---

Q.

Granted but it's coming to you and also to Master Sergeant

-

5
6

And in this instance, the counselor is making a, at best,

Papakie, right?

7

A.

Right.

8

Q.

And at that point as the commander, did you think, you know

9
10

what?

I'm going to use this as a training tool and do an on-the-spot

correction?

11

A.

Well, sir, who said I did not do that.

12

Q.

Well I'm asking you.

13

A.

Yes, sir.

14

Q.

Did you do that?

15

A.

You know, he and I had a conversation in regards to that.

16

I understand, again, that this was inappropriate.

17

that enough that it should not have been said----

I cannot stress

18

Q.

Did you stress that to him?

19

A.

Yes, sir, I did.

20

Q.

How did you stress that to Gunnery Sergeant Blenis?

21

A.

Just had a simple conversation with the gunny,----

22

Q.

And what did you tell him?

5014

08905

1

A.

---- and said, "Hey, Gunny," said, you know, although I

2

responded with "You crazy Guns," you know, and that's how I meant it,

3

you know, I know that it was--he said it in a jokingly manner;

4

however--and when he came up that evening, later on that evening, you

5

know, I just basically simply said, "Hey, Guns, you know, you know,

6

what are you doing?" you know, basically, well I probably just said,

7

"What the f," you know, and that was basically it and I left it at--

8

left it at that, you know, because he is the consummate professional

9

and I think, again, saying, you know, just by what he said, although,

10

again, was inappropriate and he should not have said that, again,

11

that cannot take away from what Gunny Blenis have attempted to do,

12

his passion for what it is that he do, and how he works and, you

13

know, again, his commitment and dedication to the Marine Corps and

14

his job.

15
16

Q.

But can you see how others might look at that statement and

say, "I don't think he's actually trying to help PFC Manning"?

17

A.

Definitely, sir.

18

Q.

And I guess when you said you did kind of the on-the-spot

19

correction later that day, you said you said something along the

20

effects of, "What the f?"

21

A.

I did say, you know, just talked to Gunny.

22

Q.

And how did Gunny Blenis respond back to you?

23

A.

Good to go, sir.

5015

08906

1

Q.

So----

2

A.

Again, it wasn't something, sir, that I had to get into

3

deep conversation, you know, jumping up and down on my desk, you

4

know, hollering, yelling at the gunny, like, you know, what are you

5

doing?

6

understand the type of rapport and relationship that I have with my

7

staff noncommissioned officers.

8

tolerated.

9

Q.

You know, you shouldn't be doing this or that.

You know, he

He know that this can't be

And how did you orient him to the fact that you were

10

correcting him about this e-mail?

11

talk to you about the e-mail?"

Did you tell him, "Hey, I want to

12

A.

No, I did not.

13

Q.

So how did he know what you were correcting him on?

14

A.

Just the comments that's made at the end, sir, that right

15

there.

16

Q.

He knew what I was talking about.
That's what I mean; like how did he know?

So later on in

17

the day, if I'm picturing this right, you approach Gunnery Sergeant

18

Blenis or he approaches you, and you do the, "Hey, Gunny, what the

19

f?"

How does he know what you're talking about?

20

A.

I brought it to his attention, sir.

21

Q.

And how did you do that?

22

A.

Basically, you know, referred to the e-mail--referred to

23

the e-mail and basically, you know, said, "Hey, Gunny, what the f?"

5016

08907

1
2

Q.

Okay, so you said, "Hey, Gunny, I want to talk to you about

the e-mail you sent----

3

A.

No.

4

Q.

---- earlier today."

5

A.

I showed it to him on my computer, sir.

6

Q.

Oh, okay, so----

7

A.

Because----

8

Q.

---- this was in your office?

9

A.

In my office, when he come in my office, he comes in my

10

office to brief me,----

11

Q.

Okay.

12

A.

---- okay, so basically, you know, that was it.

13

wasn't nothing that I dwelled on nor he dwelled on.

14

meant in regards to that.

15
16

Q.

Again, it

He knew what I

All right, so he comes to your office and then you have the

e-mail up or you pull the e-mail up----

17

A.

Just pull the e-mail up.

18

Q.

---- and you say----

19

A.

Just pulling the e-mail up, yes, sir.

20

Q.

Okay, so you pull the e-mail up and you say, "Hey, Gunny,

21

what the f?"

22

A.

Yes, sir.

23

Q.

And then what did he say back to you?

5017

08908

1

A.

He said, "Good to go, sir."

2

Q.

So it was you didn't have to talk about it; he knew what

3

you were----

4

A.

That's correct, sir.

5

Q.

Okay.

6

And did you ever see Gunnery Sergeant Blenis be

unprofessional again?

7

A.

No, sir.

8

Q.

Do you recall him ever sending an e-mail with the weekly

9
10

report saying, "Hey, it's cold outside.

Here's something that would

warm your hearts"?

11

A.

Yeah.

12

Q.

Did you consider that professional?

13

A.

I understood where he was coming from with that e-mail as

14

well, because he sent that to me.

15

Q.

And did you consider that professional?

16

A.

Yes, sir.

17

Q.

What did you--what did you think he meant by that?

18

A.

The heat was out in the facility at that time, and actually

19

I was actually ramping up to, you know, because I was actually

20

complaining that the heat was off at the facility.

21

have my prisoners over there freezing and I had to come up with an

22

alter--another course of action how we was going to get this place

23

warm, so I actually e-mailed, it may have been, Colonel, maybe Major

5018

I wasn't going to

08909

1

Evans or Colonel Choike in regards to it being cold.

2

it was going over there and I said we're freezing, or something to

3

that nature, and I think Gunny or Papakie may have been on that e-

4

mail; and so that's--I think that's what the gunny was meaning in

5

regards to that.

6
7
8
9
10
11
12
13
14

Q.

He asked me how

And to your knowledge was Gunny--Gunnery Sergeant Blenis

ever unprofessional any other time?
A.

Not that I know of or can remember at this time, sir.

I'm

not sure.
Q.

Now in--on January 14th, 2011, you participated in a

meeting held by Colonel Oltman; do you recall that?
A.

Do you have an e-mail or anything about this I can refer

to, maybe?
Q.

I do.

I just wanted to see if you recalled.

Do you recall

15

having a meeting with Captain Hocter, Captain Moore, Lieutenant

16

Colonel Greer, yourself,----

17

A.

Yes, sir.

18

Q.

---- your staff, and Colonel Oltman?

19

A.

It was at the brig, in the brig chow hall, sir?

20

Q.

That is correct.

21

A.

Yes, sir.

22

Q.

And during that meeting, Captain Hocter questioned why PFC

23

I remember doing that meeting, yes, sir.

Manning was still on POI.

5019

08910

1

A.

Right.

2

Q.

Do you recall Colonel Oltman, then, saying that PFC Manning

3
4
5

would be held in MAX and POI indefinitely?
A.

Not--no, sir, not indefinitely.

I don't remember that.

don't remember that piece.

6

Q.

You don't remember him saying that.

7

A.

Not indefinitely, no, sir.

8

Q.

What do you recall him saying?

9

A.

I know we talked about Manning's status.

[Pause] I truly

10

don't recall the conversation, sir; that's 2 years ago, so I don't

11

recall the intricate details of that conversation.

12

[The civilian defense counsel handed a document to the court

13

reporter.

14

handed it to the civilian defense counsel.]

15

Q.

The court reporter marked the document as AE 440K and

I'm handing you Appellate Exhibit 440Kilo.

This is an

16

e-mail from Lieutenant Colonel Greer, and that's the SJA again,

17

correct?

18

A.

Yes, sir.

19

Q.

And if you look down at I believe it's paragraph 3 on his

20

e-mail,----

21

A.

Okay.

22

Q.

---- or issue 3.

23

A.

Issue 3, yes, sir.

5020

I

08911

1
2

Q.

He talks about the meeting in which Captain Hocter voiced

his concerns about the POI, correct?

3

A.

[Reviewed exhibit] Yes, sir.

4

Q.

And when Captain Hocter voiced that opinion, did you--do

5

you recall Colonel Oltman stating back to him, quote, Nothing's going

6

to happen to PFC Manning on my watch, end quote?

7
8

A.

[Reviewed exhibit] If an e-mail said that, I'm not sure.

don't remember it as such.

9

Q.

Do you--so from your memory just sitting there today, do

10

you remember Colonel Oltman saying, Nothing's going to happen on my

11

watch, end quote?

12

A.

I don’t remember exactly what Colonel Oltman stated, sir.

13

Q.

Do you recall words to that effect?

14

A.

I don't remember exactly what he said.

15

Q.

Do you recall Colonel Oltman ever saying something along

16

the lines of, Nothing's going to change; he won't be able to hurt

17

himself; he won't be able to get away; and our way of making sure of

18

this is he will remain on this status indefinitely?

19

A.

No, sir, I do not.

21

Q.

You don't recall him saying that.

22

A.

No, sir.

20

I

I definitely do not remember him saying

that.

5021

08912

1
2

Q.

point and voicing his concerns?

3
4

Do you recall Captain Hocter getting very upset at this

A.

I remember Captain Hocter got upset but I don't remember

everything he said as well.

5

Q.

I don't remember.

Do you recall if Captain Hocter said something to the

6

effect of, Sir, I'm concerned if you're going to do that; maybe you

7

want to call it something else because it's not based on anything

8

from behavioral health?

9
10

A.
statement.

11
12

Q.

I don't remember any of it actually.
Do you recall Captain Hocter and Colonel Malone--or, excuse

me, Captain Hocter and Colonel Oltman both getting upset though?

13
14

Well as I stated, I don't remember all of Captain Hocter's

A.

I do remember that they kind of, you know, they had some

words and they got upset; that potentially could have happened.

15

Q.

And do you recall Colonel Oltman ever saying anything along

16

the lines of, We'll do what we want to do.

17

recommendation.

18

else?"

19
20

A.

You make your

I have to make a decision based upon everything

As I stated, sir, I don't remember exactly what was said

during the meeting.

21

Q.

So then I guess you don't also recall Captain----

22

MJ:

Okay, Mr. Coombs, he doesn't remember anything.

23

-

5022

Please ---

08913

1
2

CDC[MR. COOMBS]:

I understand, ma'am, but that's why I want to

ask him if he--when I say it, if any of that jogs his memory.

3

MJ:

How much more of this do we have?

4

CDC[MR. COOMBS]:

5

MJ:

All right, go.

6

Q.

So you don't recall Captain Hocter responding, "Then don't

We've got three more questions, ma'am.

7

say it's based on mental health.

8

just don't say we're somehow involved in this"?

You can say it's max custody but

9

A.

No, sir, I don't remember.

10

Q.

And you don't recall Colonel Oltman responding, "That's

11

what we're going to do"?

12

A.

No, sir.

13

Q.

Do you recall Colonel Oltman making it clear at the meeting

14

that the decision to keep PFC Manning on MAX and POI was coming from

15

somebody higher than him?

16

A.

Definitely, no, sir.

17

Q.

You don't recall that.

18

A.

No.

19

MJ:

I need to ask you again just one thing.

20

don't recall, that can mean two things:

21

it definitely didn't happen.

When you say you

either you don't remember or

Could you answer one way or the other?

22

WIT: I don't remember, ma'am.

23

MJ:

Okay.

5023

08914

1

Q.

Now during this meeting, Captain Moore informed Colonel

2

Oltman that he was going to be part of the defense team; do you

3

recall that?

4

A.

Yes, sir.

5

Q.

And do you recall Colonel Oltman responding to him, "That's

6

not going to happen, Doc"?

7

A.

I don't remember that as well.

8

Q.

But the next day when Captain Moore was appointed to the

9

defense team--or, excuse me, Captain Moore was appointed to the

10

defense team, do you recall at that point the fact that he was no

11

longer invited to any of the meetings?

12

A.

I don't remember that as well.

13

Q.

Did you perceive Captain Moore being appointed to the

14
15

defense team to be a conflict of interest?
A.

I think I put out a e-mail somewhere, maybe in January, and

16

I think that's how--that was prior to this meeting, and I think

17

that's what kind of sparked the meeting because I wanted the list--I

18

asked maybe Captain Haberland I wanted to know a--I wanted a list of

19

all personnel who was assigned to Prisoner Manning's team because,

20

again, I had personnel calling the facility, you know, and I think it

21

was very much appropriate that I know who was on the team because if

22

they're going to be dealing with him coming to visit, then we want to

5024

08915

1

make sure the right individual visit him because there were a lot of

2

people trying to get in to see him.

3

Q.

Well with regards to Captain Moore,----

4

A.

Right.

5

Q.

---- Captain Moore was a forensic psychiatrist who was

6

doing work at the brig, correct?

7

A.

Okay.

8

Q.

And do you recall once you found out that Captain Moore was

9
10

Yeah, he was coming in from time to time.

a member of the defense team that you said, "Hey, I think that's a
conflict of interest"?

11

A.

I probably did say that, sir.

12

Q.

And why did you think it was a conflict of interest?

13

A.

Because I think Captain Moore was also maybe wrote--I

14

don't--really don't remember because I think he wrote an evaluation

15

or was also making recommendations, attempting to make

16

recommendations in regards to taking Manning off POI and, again, I

17

think that was--I don't remember all the extra details, sir.

18

said, that piece right there blew up and I just don't remember all

19

the intricate details of that, the conversations, the reason why, and

20

things of that nature.

21

CDC[MR. COOMBS]:

All right.

Like I

If you would, let's go to--I'll

22

retrieve from you Appellate Exhibit 440Kilo and also 440Juliet; and

23

let's go back to Appellate Exhibit 440India, okay?

5025

[Handed AE 440I

08916

1

to witness.]

And, ma'am, if you're looking at 440India, if you'll go

2

to the third page of that.

3

MJ:

4

CDC[MR. COOMBS]:

5

So I'm looking at 440India, which is what?
This is the 138 response by Chief Averhart.

[Pause]

6

MJ:

Go ahead.

7

Q.

Directing your attention to the very last paragraph on that

9

A.

Okay.

10

Q.

Do you see where you talk about the issue that you take

8

11

I'll get it.

page.

with Captain Moore being part of the defense team?

12

A.

Right.

13

Q.

And can you tell me why you felt at that point it was a

14
15

conflict of interest?
A.

Okay.

I signed this document on the 24th of January, 2011,

16

and I stated that, "During Captain Hocter"---- this is my response,

17

then, to the----

18

MJ:

19

CDC[MR. COOMBS]:

20

MJ:

21

CDC[MR. COOMBS]: ---- on that page.

22

A.

23

What paragraph am I reading?
The very bottom paragraph, ma'am,----

Okay

This is my response to--response to request for a redress,

Article 138, UCMJ, of PFC Bradley Manning, dated 19 January 2011, and

5026

08917

1

in that I stated, "During Captain Hocter's tenure, he has also

2

consulted Captain Brian Moore, who the defense has now identified as

3

a member of PFC Manning's defense team.

4

provided to the correctional facility previously and is, in my

5

opinion, a conflict of interest.

6

extent Captain Moore's opinion affected Captain Hocter's

7

recommendation; however, I feel it is important that this

8

relationship is highlighted for the record."

9
10

Q.

This information was not

It cannot be determined to what

And why did you think that once Captain Moore was a part of

the defense team that was a problem?

11

A.

Well, the fact that it was--I felt that it was not only a

12

deceptive move that should have been devised from the onset.

It

13

should have been noted that Captain Moore was part of the defense

14

team.

15

been noted and annotated as such that Captain Moore was a member of

16

the defense team so we can--my staff can properly annotate that and

17

officially go through the official chains to allow your psychiatrist

18

to properly evaluate Manning under the title that he is your

19

psychiatrist, not the fact of in a deceptive mode to come over to be

20

Captain Hocter's consultant.

If he having [sic] access to the facility, then it should have

Now, that was my issue;----

21

Q.

And so you----

22

A.

---- that was the only issue.

5027

08918

1

Q.

---- you thought it was deceptive to have Captain Moore

2

acting in his role as a consultant once you found out that he was

3

ultimately appointed as a member of the defense team.

4

A.

To not--not to identify that on the onset, yes, sir.

5

Q.

Did you convey that to Captain Moore?

6

A.

That came out--again, that was part of previously I sent

7

the e-mail out a couple days after--because I found that out, and I

8

think that's probably what generated the meeting at the facility on

9

the mess deck during that time frame.

I'm almost positive.

Again, I

10

can't recollect that piece there.

However, I was never alone with

11

Captain Moore in that regard to express that, but I expressed it to

12

the colonel at the time and the individual at the time.

13

Q.

All right, let's talk about----

14

A.

Previously.

15

Q.

---- 18 January 2011.

16

A.

Okay, sir.

17

Q.

Now you ordered PFC Manning to Suicide Risk on that day,

18

correct?

19

A.

Yes, sir, I did.

20

Q.

And I want to discuss what happened that day.

21

A.

Yes, sir.

22

Q.

You were told at some point that PFC Manning had an issue

23

during his rec call.

5028

08919

1

A.

Yes, sir.

2

Q.

And despite that issue, whatever it may be, PFC Manning was

3

allowed to complete his hour of rec call.

4

A.

Yes, sir.

5

Q.

And about 30 minutes later, you came to PFC Manning's cell

6

to discuss what happened.

7

A.

Yes, sir.

8

Q.

And PFC Manning was in his cell.

9

A.

Yes, sir.

10

Q.

When you looked at him, he looked to be physically okay.

11

A.

He appeared to be physically okay, but that was my purpose

12

for going down, too, because I personally wanted to know what

13

happened.

14
15

Q.

All right, but as I asked, when you looked at him, he

appeared to be physically okay.

16

A.

He appeared to be physically okay, yes, sir.

17

Q.

He was sitting on his bunk rack, reading a book.

18

A.

I'm not sure if he was sitting on his rack, reading a book.

19

He may have been, but I wasn't sure that--I think Master Sergeant

20

Papakie was speaking with him at that time.

21

Q.

When you walked up, you asked him how he was doing?

22

A.

Yes, sir.

23

Q.

And he replied, "Fine, sir."

5029

08920

1

A.

Right.

2

Q.

Then you asked him if he was sure.

3

A.

Maybe I may have said that, if he was sure.

I may have

4

said asked him if he was sure or not because I wanted to know what

5

took place, so I was establishing dialogue with him at that

6

particular time, sir.

7
8

Q.

And maybe just to refresh your memory, then, we'll--going

back again to the exhibit we were just using,----

9

A.

Okay.

10

Q.

---- Appellate Exhibit 440I, within this appellate exhibit,

11

which is--for the judge it would be page 8 of 57, it talks about what

12

happened on that day, right?

13

A.

[Reviewed exhibit] Yes, sir.

14

Q.

Okay, so in your version on that day, you say that you then

15
16

asked him if he was sure and he replied again to you, "Yes, sir."
A.

[Reviewed exhibit] "I asked him how he was doing and he

17

replied, 'Fine, sir.'

18

said, 'Yes, sir.'

I then asked PFC Manning was he sure.

I"----

19

Q.

Okay, so----

20

A.

I'm sorry.

21

Q.

---- then you asked him,----

22

A.

Yes, sir.

23

Q.

---- "Are you sure," and he replied, "Yes, sir."

5030

He

08921

1

A.

Yes, sir.

2

Q.

Now you were not by yourself when you were asking him these

3

questions, correct?

4

A.

That is correct, sir.

5

Q.

There were other guards present?

6

A.

Yes, sir.

7

Q.

And from your memory, who else was present?

8

A.

I think Master Sergeant Papakie, Master Sergeant Blenis,

9

Gunny Blenis at the time.

I think my DBS may have been present.

10

Q.

That would have been?

11

A.

Um----

12

Q.

Would that have been GM2 Webb at the time?

13

A.

Yes, sir.

[Pause] I think my security chief, Gunny Fuller,

14

may have been present outside the Hatch 1 and Staff Sergeant Lee.

15

Yeah, I think he was outside the hatch.

16

the time was Master Sergeant--Master Sergeant and Gunny Blenis.

So I think on that row at

17

A.

And GM2 Webb.

18

Q.

And GM2 Webb, yes, sir.

19

A.

You then started questioning PFC Manning about the reports

20

that he had become anxious and exhibited labored breathing during

21

recreation call; is that correct?

22

A.

Yes, sir.

5031

08922

1
2

Q.

And he told you that the guards had made him anxious and he

had an anxiety attack.

3

A.

Right.

4

Q.

And PFC Manning told you that the guards were giving him

5

contradictory orders at the time.

6

A.

[Reviewed exhibit] Okay.

7

Q.

Is that correct?

8

MJ:

Well wait a minute, okay.

9

WIT: Not that it happened.

10
11

Is that--did that happen or not?

I understand--let me--well I'm

trying to read.
Q.

Well, from your memory and then you can also if you need to

12

but from your memory did PFC Manning tell you that the guards were

13

giving----

14

A.

Sir----

15

Q.

---- him contradictory orders?

16

A.

---- sir, that was 2 years ago, so I don't remember

17

everything; that's why if it's written here, I would like to read it

18

because it was fresh in my mind during that time, if I may, sir?

19

Q.

Okay.

20

A.

[Reviewed exhibit] Okay.

I can't see anywhere in here,

21

sir, that, you know, I was advised of--although I saw the redress,

22

his statement and everything, I was never told during that time frame

5032

08923

1

about the--that I remember about the guards giving him contradictory

2

orders.

3

Q.

4

Do you recall PFC Manning telling you that the guards were

anxious and that was making him anxious; do you recall that part?

5

A.

I think I remember that piece, sir.

6

Q.

And do you recall PFC Manning telling you he didn't

7

understand why the guards were anxious on that day?

8

A.

[Reviewed exhibit] Why the guards was anxious that day, no,

10

Q.

You don't recall that or you don't think that happened?

11

A.

I don't recall that, sir.

12

Q.

Now as you were asking him about what was happening----

13

A.

Yes, sir.

14

Q.

---- at the time period, PFC Manning said that because of

9

15

sir.

being anxious he fell during the rec call.

16

A.

[Reviewed exhibit] Okay, um----

17

Q.

Do you recall that?

18

A.

[Reviewed exhibit] You know, when I--no, sir, I don't

19

recall that; however, when I went to speak to Manning, Manning began

20

to question me again, saying things again, why was he here, why are

21

they looking at me, and things of that nature.

22

Q.

We'll get to that part,----

23

A.

Okay.

5033

08924

1
2

Q.

---- but you don't recall him ever telling you, "I fell

down during the rec call"?

3

A.

Yes, sir.

4

Q.

Did he tell you that he fell down because he became

5

lightheaded?

6

A.

Yes, sir.

7

Q.

And then you asked him again how he was feeling after he

8

I was advised of him falling down, yes, sir.

said that?

9

A.

Yes, sir.

10

Q.

And after you asked him if he was okay twice and what

11

happened on the rec call, PFC Manning then told you apparently he

12

wanted to go home.

13

A.

He did say he wanted to go home.

14

Q.

He asked you why did all these Marines show up.

15

A.

Yes, he did say that as well.

16

Q.

And he was probably referring to Master Sergeant Papakie,

17
18
19

Gunnery Sergeant Blenis, GM2 Webb, and yourself.
A.

Well, he--his voice was very elevated at this time.

He

was--he was yelling during that time frame, okay.

20

Q.

But my question----

21

A.

Yeah.

22

Q.

---- was he was referring to, I guess, the other people who

23

were there with you.

5034

08925

1
2
3

A.

Well I'm not sure who he was referring to, but he said, you

know, he made the comment then he said, "Why are they looking at me?"
Q.

All right, and when he said, "Why did all these Marines

4

show up?" that was yourself and there was at least three other people

5

with you.

6

A.

And I'm not--yes, sir.

7

Q.

And this is when PFC Manning yelled out, "Why are you

8

psychoanalyzing me?"

9

A.

Right.

10

Q.

He asked, "Why are you staring at me?"

11

A.

Right.

12

Q.

And then he asked you why you were yelling at him.

13

A.

Right.

14

Q.

And you said that you weren't yelling at him.

15

A.

Right, sir; yes, sir.

16

Q.

That was just your voice.

17

A.

Right; yes, sir.

18

Q.

Could you understand at this point that PFC Manning might

19

be having another anxiety attack in the cell?

20

A.

Okay.

21

Q.

Could you understand that?

22

A.

I could understand that.

5035

08926

1

Q.

And could you see how your questioning of him with the

2

other Marines present may be causing him, again, to have an anxiety

3

attack?

4

A.

Well, no, sir, because, again, if I'm going down there,

5

again, to personally observe what's going on with PFC Manning

6

because, again, this is unorthodox for him.

7

know, personally see his--what was going on with him.

8

concerned about him.

You know, I wanted to
I was

That's why----

9

Q.

Yeah, I know but----

10

A.

---- that's why I went there.

11

Q.

You ask him--you go down to see him.

12

okay?"

13

"Yes, sir," and then you ask him another question, you know, what

14

happened essentially.

15

caused him to become anxious again?

16
17
18
19

He says, "Fine, sir."

You ask him, "Are you

You ask him, "Are you sure?"

He says,

Can you see how those questions might have

A.

Okay, sir, that's my job to ask questions; that's my job---

Q.

But my question to you is can you see how your questions

-

might have caused him to be anxious?

20

A.

No.

21

Q.

You don't see that.

22

A.

No.

5036

08927

1
2

Q.

All right, so then apparently at that point your testimony

is that he punched himself in the head repeatedly.

3

A.

That is my testimony, sir; yes, sir.

4

Q.

So you're saying that he punched himself in his head

5

repeatedly, and I think what you write is he physically struck

6

himself in the head very violently and aggressively; that's what you-

7

---

8

A.

Yes, sir.

9

Q.

---- re----

10

A.

Yes, sir.

11

Q.

---- what you record.

12

A.

Yes, sir.

13

Q.

And how was he striking himself in the head very violently

14
15

and aggressively at this point?
A.

He actually did this little volley of maybe about--like I

16

said, they may have lasted 2, 3 seconds with hitting his head like

17

that, you know, and that's how he did it.

18

Q.

19

closed?

20

A.

All right, so the witness when requested--you had your fist

Well, again, whether he was striking his head with his open

21

hand or closed hand, sir, I wasn't so in tune to see was his fist

22

closed--closed fist or open hand.

23

all I could see is what he was doing and it appeared to me, if I'm

5037

I was so in tune with him, like,

08928

1

looking at him now, trying to reflect back, it appears that he was

2

doing like this.

3

CDC[MR. COOMBS]:

All right, so when the witness said "like

4

this," he had his hands in what appear to be a closed fist striking

5

himself in roughly the cheek area.

6

WIT: Cheek and head, yes, sir.

7

Q.

8
9
10
11
12

And so you said when you saw him do this, he was doing this

for 2 to 3 seconds?
A.

Maybe, you know, 2 to 3 seconds.

I'm unsure how many times

he struck hisself [sic], but it was just kind of like that.
Q.

And no doubt in your mind he's striking himself in his face

and head with his--with his either closed fist or hands.

13

A.

Yes, sir.

14

Q.

And repeatedly.

15

A.

Yes, sir.

16

Q.

No doubt in your mind.

17

A.

That's correct, sir.

18

Q.

And so when you see him striking himself repeatedly, what

19
20

do you attempt to do at that point?
A.

I asked him to calm down.

I asked--asked him to calm down.

21

Again, I lowered my tone, you know, you know, and I tried to more so

22

take a more passive role and get--to get him to calm down and asked

23

him to sit down.

5038

08929

1

Q.

Now does he--is he bleeding at all from striking----

2

A.

No, sir.

3

Q.

---- himself?

4

A.

No, sir.

5

Q.

He's not bleeding?

6

A.

No, sir.

7

Q.

And because he's striking himself in his face repeatedly

8

and head repeatedly, did you immediately call for a medic?

9
10
11
12
13
14

I did not see any blood, no, sir.

A.

What we did was call Code Blue, sir; called Code Blue

Q.

Well we'll get to that.

I'm just asking did you call for a

medic?
A.

Well the process when you call a Code Blue then medical

come over, sir.

15

Q.

So that was part of your decision-making?

16

A.

Yes, sir.

17

Q.

All right, so we'll get to the Code Blue then.

18
19
20

---

That---Did you

actually have a medic check PFC Manning out?
A.

A medic should have checked him out that evening.

A medic

did not check him out in--directly in front of me, no, sir.

21

Q.

So you don't know if a medic ever checked PFC Manning out.

22

A.

Later on that evening, sir--that afternoon, they checked

23

him out, sir.

5039

08930

1

Q.

Do you know that for a fact?

2

A.

No, sir, I do not know that for a fact.

Q.

All right, so then as you said you--when you saw this, you

3

Let me say it like

that.

4
5

ordered PFC Manning into--you ordered a special move Suicide Risk;

6

that's what you said.

7

A.

Yes, sir.

After he--after he would not calm down, after he

8

would not calm down and I asked him, you know, repeatedly, tried to

9

get him just to calm down and he would not.

He actually became more

10

agitated and I told Master Sergeant--directed a special move to

11

Suicide Risk at that time.

12

Q.

All right.

13

A.

And I--and I actually moved out of Special Quarters at that

Q.

Okay, so before you move out, I want to see what else you

14
15

time.

16

recall seeing.

So you said you were asking him to calm down and he

17

wouldn't calm down and he even got more agitated?

18

A.

Right.

19

Q.

And what did he do when he got more agitated?

20

A.

He was just flailing his arms around and things of that

21

nature, sir.

22

Q.

So when you say--what did you say he was doing?

23

A.

Flailing his arms around.

5040

08931

1
2

Q.

"Flailing his arms around," and when the witness said that

basically you were putting your arms towards your side----

3

A.

Right, uh-huh; yes, sir.

4

Q.

---- at the time, and that--was that all he was doing?

5

A.

That was basically it, sir.

6

around.

7

remember him just basically moving his arm around and moving about

8

the cell; that was about it.

9

He was just throwing his arms

Q.

He didn't hit himself in the head anymore; that's all I can

Okay, and so when you--when you saw that, then you--you

10

ordered the special move Suicide Risk and then I believe you went

11

into the observation room and you called for a Code Blue.

12

A.

[No response.]

13

Q.

Is that correct?

14

A.

I can't remember if I walked outside.

I think I walked

15

outside or I may have walked in the observation room, but I think I

16

walked outside the Special Quarters.

17

Q.

So wherever you went, you ordered a Code Blue?

18

A.

Right.

19

Q.

And a Code Blue is what?

20

A.

A "Code Blue" is an emergency; could be due to potential

21

violence, a fight; disorder, some type of disruptive disorder in the

22

facility.

23

Q.

Is a Code Blue a frequent occurrence?

5041

08932

1

A.

No, sir, it's not.

2

Q.

So when you order a Code Blue, basically what happens is as

3

part of that your staff prepares to do a cell extraction.

4

A.

Basically prepares to do a cell extraction.

5

Q.

And a cell extraction basically is when they suit up in

6

riot gear, essentially,----

7

A.

That's correct, sir.

8

Q.

---- in order to forcibly remove a detainee from his cell.

9

A.

Yes, sir; but in this case--in this case, after I walked

10

away because I could not get him to calm down, I directed Suicide

11

Risk and I can't--actually don't remember without looking at the

12

paper exactly what Manning said at that point in time; however, I

13

know Master Sergeant Papakie began to try to get his clothes.

14

asked him for his clothes, and he began not to want to give his

15

clothes.

16

the SORT team was stood up, the SORT team was stood up.

17
18

Q.

He

He wanted to negotiate and at which time then that's when

All right, so I want to go back to when you were in front

of his cell, talking to PFC Manning----

19

A.

Right.

20

Q.

---- for a moment, okay?

21

A.

Yes, sir.

22

Q.

So before you order the special move and before you order

23

the Code Blue.

5042

08933

1
2
3
4
5

Is your memory of that where PFC Manning starts to talk to
you about how he's frustrated with his current conditions?
A.

Well I think he began to try to talk and negotiate, sir, at

that time.
Q.

But this is before--I'm saying before you ordered the SR

6

and before you ordered the Code Blue, do you recall when you were

7

talking to PFC Manning where he expressed to you his frustration with

8

his current confinement conditions?

9

A.

I do not remember that.

10

Q.

Do you remember him saying to you that he doesn't

11

understand why he's in POI?

12

A.

I don't remember him saying that to me, sir.

13

Q.

And do you recall ever saying to him and stopping him and

14

telling him that you are the commander and you are the one who's

15

going to decide ultimately what status he's in?

16

A.

I do remember saying something about me being the

17

commander, sir; yes, sir, I do remember that, and I think--because he

18

actually became disrespectful.

19

time, so I reminded him that I was the commander.

20

wasn't about his status or whatever the case may be because, again,

21

at this point in time, I had observed this young man for a period of

22

time and it was totally out of character for him----

23

Q.

He became very disrespectful at that

And I want to talk about----

5043

You know, it

08934

1

A.

---- to be acting----

2

Q.

---- the time that you believe he became disrespectful to

3

you,----

4

A.

Right.

5

Q.

---- so at that point I think you were telling him you're a

6

commander, you're the one who ultimately decides, and he's

7

disrespectful because he says to you, "Hey, you still have to follow

8

brig procedures;----

9

A.

Yes.

10

Q.

---- everyone has a boss----

11

A.

Yes.

12

Q.

---- that they have to answer to,"

13

A.

Yes, sir.

14

Q.

---- and that's when you tell him, you know, basically he's

15
16
17

being disrespectful to you.
A.

Q.

19

to you.

20

A.

22
23

I think it was during that volley of

conversation, yes, sir.

18

21

Yes, sir.

And you raise your voice because he's being disrespectful

I don't think I raised my voice.

I may have raised my

voice, you know, I'm not sure, but I know---Q.

And it was at that time when he was disrespectful to you

that you ordered him into SR.

5044

08935

1

A.

No, sir.

It was not during that time frame.

2

Q.

So your memory isn't that you ordered him into SR and then

3

out of frustration that's when he put his hands to his head and

4

yelled, "Why are you doing this to me?"

5

A.

No, sir.

6

Q.

You don't recall that?

7

A.

No, sir.

8

Q.

Meaning that you don't believe that happened----

9

A.

Well----

10

Q.

---- or you don't remember that happening?

11

A.

No, sir.

12

mentioned it.

13

Q.

14

I don't remember that happening the way you just

Do you remember him saying to you, "What have I done to

deserve this punishment?"

15

A.

Well, I do remember him--Manning was talking and, again, I

16

was walking away because, again, he could not be reasoned with at

17

that point in time.

18

[sic] up side the head, and he needed to give his clothes up at that

19

time.

20
21

Q.

He began to get loud.

He had struck hisself

Well do you remember him yelling to you, "What have I done

to deserve this type of treatment?"

22

A.

He may have--he may have yelled that.

23

Q.

And you didn't answer any of those questions because----

5045

08936

1

A.

No, sir.

2

Q.

---- you were walking away from him.

3

A.

No, sir.

4

Q.

And that's when wherever you went, either into the

5
6

observation room or outside, you ordered the Code Blue.
A.

I ordered the Code Blue after I instructed Master Sergeant

7

to--that he would be going on Suicide and he became--in a manner he

8

did not want to go--give up his clothes.

9

only reason that a SORT team was being manned up to --if he did not

That was be --that was the

10

give his clothes up, then we was going to have to go in, not

11

extracting him from that cell but to simply get his clothes.

12

Q.

Yeah, but from the time period when Manning is talking to

13

you and he's being, in your estimation, disrespectful, that's prior

14

to you ordering the Code Blue.

15

A.

That may have been, sir.

That may have occurred then.

16

Q.

Okay, and so then when you order the Code Blue, that's when

17

you kind of remove yourself from the situation because you have to

18

maintain your objectivity?

19

A.

[Reviewed exhibit] Yes, sir.

20

Q.

And then at that point, apparently, PFC Manning's still

21

delaying giving his clothing, and he's trying to reason with Master

22

Sergeant Papakie.

23

A.

Yes, sir.

5046

08937

1

Q.

And since you ordered the Code Blue, then part of that

2

process is, like I said, everyone suits up but you also break out the

3

video camera in order to record the cell extraction.

4

A.

Yes, sir.

5

Q.

And because you have the videotape, then each Marine in the

6

extraction process is instructed on what they're going to do and then

7

if they actually are going to do the cell extraction, you record each

8

Marine saying what his job is going to be for the cell extraction.

9

A.

That's correct, sir.

10

Q.

Now you didn't do a cell extraction, did you?

11

A.

No, sir.

12

Q.

And that's because PFC Manning surrendered his clothes.

13

A.

Yes, sir.

14

Q.

But the videotape continued in order to capture what was

15

going on with PFC Manning.

16

A.

Yes, sir.

17

Q.

And do you know why; did somebody order that to be

18

videotaped?

19

A.

No, sir.

20

Q.

Do you know why it was videotaped?

21

A.

I don't know why, sir.

22

Q.

So that didn't come from you saying----

23

A.

No, sir.

5047

08938

1

Q.

---- videotape this?

2

A.

No, sir.

That did not come from me saying videotape that

3

piece, because my only piece of concern with the whole--that process

4

was the SORT team.

5

clothes, then that's the piece that I wanted to videotape.

6

the other dialogue between Manning and Master Sergeant Papakie, no,

7

sir; that was not my concern to have videotaped.

8
9
10

Q.

If I had to initiate a SORT team to extract those
As far as

Now, why did you put PFC Manning on Suicide Risk on 18

January?
A.

Because, sir, I was concerned for PFC Manning's safety and

11

I was concerned that he would hurt hisself [sic] because, again, in

12

my 22 years of experience, you know, I've seen that look twice in

13

regards to prisoners and Manning had a look that day unlike any other

14

time that I've seen him in the facility.

15

Q.

I was truly concerned.

If you turn to page 105 of the SECNAV Instruction,

16

Appellate Exhibit, I believe, 47--or, excuse me, Enclosure 47 of

17

Appellate Exhibit 259.

18

MJ:

What page?

19

CDC[MR. COOMBS]:

Ma'am, it's page 105.

20

[There was a pause in the proceedings while the military judge

21

located the referenced page of the exhibit.]

22

Q.

Do you see where it talks about Suicide Risk on page 105?

23

A.

That's correct, sir.

5048

08939

1

Q.

And under (bravo) it says, "Prisoners who have threatened

2

suicide or have made a suicidal gesture but are found fit for

3

confinement may be placed in the category of Suicide Risk for

4

observation.

5

A.

Yes, sir.

6

Q.

How did PFC Manning make a suicidal gesture or threaten

7

suicide?

8
9

A.

Okay, just the fact of assaulting himself in the manner

that he did and under my purview because in regards to him I am

10

responsible for his custody and control and Number one his safety,

11

which is paramount, that--that's why I directed Suicide Risk, sir,

12

for observation in that regards.

13

Q.

But I guess I just want to make sure I understand.

What

14

did you think was a threat of suicide or a suicidal gesture from PFC

15

Manning's actions?

16
17
18

A.

Just the fact of him hitting himself as violently as he

Q.

So the aggressive and violent way in which he struck

was.

19

himself in the face and head from your memory made you think he's a

20

suicide risk?

21

A.

22

Yes, sir, and that he had the potential, you know.

know, I don't know what was going through his head.

5049

You

I cannot make

08940

1

that assessment.

2

man did not hurt himself.

3
4

Q.

Well, all I wanted to ensure that--that this young

Now you then say that when you ordered him into Suicide

Risk that you wanted to get the docs there as well, right?

5

A.

Yes, sir.

6

Q.

And your testimony on direct was that Captain Hocter didn't

7

arrive there until about 2 hours later.

8

A.

I think it may have been about 2 hours, sir.

9

Q.

And why do you think it was 2 hours later?

10

A.

Because of the time that had elapsed.

I know that

11

everything had calmed down, and I was actually in my office and I

12

went to report to higher that--what had just taken place, so just the

13

time that had elapsed; you know, that's why I asked that--made that

14

comment.

15
16

Q.

Would it surprise you if Captain Hocter actually got there

25 minutes after you directed him into Suicide Risk?

17

A.

Maybe.

I'm not sure.

18

Q.

Well, I mean, that's a big difference than 2 hours, right?

19

A.

Yes, sir.

20

[The civilian defense counsel handed a document to the court

21

reporter.

22

handed it to the civilian defense counsel.]

The court reporter marked the document as AE 440L and

5050

08941

1

CDC[MR. COOMBS]:

I'm handing the witness what's been marked

2

Appellate Exhibit 440Lima.

3

Q.

Do you recognize that?

4

A.

[Reviewed exhibit] Yes, sir.

5

Q.

Do you see your e-mail where you report that you placed PFC

6

Manning in Suicide Risk at 1520 hours, on 18 January?

7

A.

Right; that's correct, sir.

8

Q.

And do you also see where you report that Captain Hocter

9
10

[counsel pauses because witness is rubbing exhibit against
microphone] came to--I'm sorry.

You--Chief, you've got your----

11

A.

Oh, I'm sorry [adjusts exhibit].

12

Q.

Yeah, there you go.

13
14

Do you also see where you report that Captain Hocter comes
to the brig at 1545 hours to see----

15

A.

Yes, sir.

16

Q.

---- PFC Manning?

17

A.

Yes, sir.

18

Q.

Now after placing PFC Manning in Suicide Risk, you

19

immediately report this to Colonel Oltman.

20

A.

Yes, sir.

21

Q.

And at 17--or, excuse me, yeah, 1722 hours, you sent

22
23

another e-mail to Colonel Oltman.
A.

[Reviewed exhibit.]

5051

08942

1

Q.

Do you see that?

2

A.

[Reviewed exhibit] Yes, sir.

3

Q.

And in that e-mail you told Colonel Oltman that you had

4

spoken with Captain Hocter.

5

A.

Right.

6

Q.

And Captain Hocter had recommended only a 24-hour POI for

7
8
9

PFC Manning and not Suicide Risk.
A.

[Reviewed exhibit] I stated that, "Sir, I've spoken with

Dr. Hocter and he recommended POI.

He stated that Detainee Manning's

10

unusual behavior has diminished and he is relaxed at this time after

11

their conversation.

12

to Detainee Manning in order to keep him relaxed.

13

to monitor said detainee in a Suicide Watch status and downgrade

14

accordingly to his behavior in confine--to confinement.

15
16

Q.

Dr. Hocter did not administer anymore medication
We will continue

All right, so my question is, at that point you reported

that Captain Hocter had recommended only 24-hour POI.

17

A.

Right.

18

Q.

And, in fact, as you say, at that point Captain Hocter said

19

Manning was--PFC Manning was relaxed and didn't need any medication

20

in order to relax him.

21

A.

[No response.]

22

Q.

Correct?

23

A.

Correct.

5052

08943

1
2

Q.

Now you chose to ignore Captain Hocter's recommendation on

the 18th of January, didn't you?

3

A.

Ignore?

4

Q.

Or not follow,----

5

A.

Okay.

6

Q.

---- how about that?

7

A.

Yes, sir.

8

Q.

So you chose not to follow Captain Hocter's recommendation

9

on 18 January.

10

A.

That's correct.

11

Q.

And you told Colonel Oltman that you would continue to

12

monitor PFC Manning in Suicide Watch and downgrade when you believed

13

his behavior warranted that.

14

A.

Yes, sir.

15

Q.

Now, again, under the SECNAV Instruction, did you believe

16

you had the authority to keep PFC Manning on Suicide Watch over the

17

recommendation of Captain Hocter?

18

A.

Yes, sir.

Being as, again, you know, once Captain Hocter

19

came to the facility, as quick as he was in, he was out of the

20

facility.

21

face.

22

wanted to review him more.

You know, again, I saw the look in Detainee Manning's

I saw him strike hisself [sic] in the manner that I did, and I

5053

08944

1
2

Q.

So you did not believe that you were violating the SECNAV

Instruction at that point?

3

A.

No, sir.

4

Q.

Now I'm showing you page 23 of 36 for Enclosure 21 of

5

Appellate Exhibit 259, the--essentially the doctors' recommendations.

6

This has a form in it of moving PFC Manning from Suicide Risk back to

7

POI; is that correct?

8

A.

[Reviewed exhibit] Yes, sir.

9

Q.

And can you tell the court what date you ordered PFC

10

Manning back to POI from Suicide Risk?

11

A.

12

CDC[MR. COOMBS]:

13

That was the 20th of January, 2011, sir.
Okay.

So I'm retrieving the exhibit from the

witness.

14

Q.

So PFC Manning stayed in Suicide Risk on the 18th, 19th,

15

and on the 20th until at the time in which you ordered him on the

16

20th to go back to Suicide--excuse me, back to POI; is that correct?

17

A.

Yes, sir.

18

Q.

Do you recall what time of day you ordered him back into

A.

I think it was at--it was definitely that afternoon, on the

19

POI?

20
21

20th.

I'm not sure of the time.

5054

08945

1

Q.

Okay.

So from the 18th, 19th, and then to the afternoon of

2

the 20th, you believed in spite of the doctors' recommendations that

3

PFC Manning needed to be on Suicide Watch.

4

A.

Yes, sir.

5

Q.

And what did you see on the 20th to make you feel that you

6
7

could put him on POI?
A.

What I visualized on the 20th, Detainee Manning, Prisoner

8

Manning, was back to his normal self.

His conversation, his

9

communication to me is back to just like a totally different person.

10

Q.

And what was his normal self?

11

A.

He was always steady.

You know, he's always been

12

respectful, courteous.

13

did that, you know, and sometimes, you know, although his

14

conversations with me, I didn't expect them to be long and lengthy,

15

he would have--and I think that he and I had a rapport, although it

16

wasn't, you know, such a big thing, he was--he just appeared to be

17

hisself [sic], the Manning that I had come to know.

18

Q.

You know, he do what he's told.

He always

And that would be the Manning that you had seen really from

19

the time period that he got there to the 20th of January, with the

20

exception of 18 January; is that right?

21
22

A.

Right, and, again, I also took into account of the--because

I would ask those--the staff NCOs, the counselor, you know, as well;

5055

08946

1

then I wanted to go down and see him myself.

2

interest in that.

3
4

Q.

I took a personal

So the conversational way that PFC Manning was on the 20th

was just the way he was before----

5

A.

Yes, sir.

6

Q.

---- the 18th?

7

A.

And he was apologetic, as well, you know, and just

8

basically said, you know.

9

Q.

And basically said what?

10

A.

He just basically--just apologetic in regards to his

11
12

behavior.
Q.

13

Okay.
Now we previously covered that you know CW5 Galaviz, right?

14

A.

Yes, sir.

15

Q.

CW5 Galaviz conducted a special inquiry into the 138

16

complaint; is that correct?

17

A.

Yes, sir.

18

Q.

And he conducted this inquiry in February of 2011.

19

A.

Yes, sir.

20

Q.

Now you had--you----

21

MJ:

What was the date?

22

CDC[MR. COOMBS]:

23

February of 2011, ma'am.

exact date.

5056

I don't have the

08947

1

MJ:

Right.

2

Q.

You had contact with Chief Galaviz before his special

3

inquiry, correct?

4

A.

What do you mean "contact"?

5

Q.

You had e-mailed him before; you had seen him before.

6

A.

Sure; sure, sir.

7

Q.

So February of 2011 wasn't the first time that he came to

8

He's----

the brig.

9

A.

Well February of 2011, sir, I had already departed.

I was

10

already checked out of the facility at that time.

11

the facility over to Chief Warrant Officer Barnes during that time;

12

she was the CO of the brig, OIC.

13
14

Q.

Yeah, February 2011, was the date of his report.

He

actually came, though, when you were still the brig OIC in January.

15

A.

Okay.

16

Q.

Do you recall that?

17

A.

He came down a couple times.

18

I actually turned

Yes, sir, I actually does --I

do remember him coming down.

19

Q.

Do you remember basically escorting him around when he was-

21

A.

I do.

22

Q.

---- doing his inspection?

23

A.

I do.

20

---

5057

08948

1
2

Q.

And just for a timeline, you changed basically command with

CW2 Barnes on the 24th of January; is that right?

3

A.

Yes, sir.

4

Q.

So when you escorted CW5 Galaviz around, this wasn't

5

somebody that you had no previous contact with.

6

A.

That's correct, sir.

7

Q.

Now you and Chief--CW5 Galaviz were included on e-mails

8

together?

9

A.

That's correct, sir.

10

Q.

And these e-mails included people like Colonel Choike,

11

Lieutenant General Flynn?

12

A.

[No response.]

13

Q.

Is that correct?

14

A.

Yes, sir.

15

[The civilian defense counsel handed a document to the court

16

reporter.

17

handed it to the civilian defense counsel.]

18

Q.

The court reporter marked the document as AE 440M and

And I want to talk about an e-mail that was sent on 29

19

December 2010 by Lieutenant Colonel Wright and he cc's you on that e-

20

mail.

21

A.

Okay, sir.

22

Q.

Did you know who Lieutenant Colonel Wright was?

23

A.

Yes, sir.

5058

08949

1

Q.

And how did you know him?

2

A.

I know him as the--to be the head of PS Division, and that

3

is the division in which the MP, military police, and correctional

4

officers--corrections military occupational specialty falls under out

5

of Headquarters, Marine Corps.

6

Q.

7

Wright?

8

A.

9

Did you ever have any contact with Lieutenant Colonel

He and I've, you know, we've spoke, you know, we've been at

conferences together, you know, although, you know, I did not know

10

him when he was a young corrections officer.

11

during that time frame.

He was a lance corporal

I did not know him during that time frame.

12

Q.

How long have you known Lieutenant Colonel Wright?

13

A.

I just met him actually when he was at the--the head of PS

14

Division.

15

Q.

So how long would that be?

16

A.

Maybe the first time I came in contact with him probably in

17

2008 or '09, something like that, at a conference.

18

sure.

19

CDC[MR. COOMBS]:

I'm really not

All right, I'm retrieving from the witness

20

Appellate Exhibit 440L and handing the witness Appellate Exhibit

21

440M.

22

WIT: Yes, sir.

5059

08950

1

Q.

Now in this e-mail exchange, do you--do you see on 29

2

December 2010 where Lieutenant Colonel Wright talks about the fact

3

that because of the attention that PFC Manning's case continues to

4

have, he believes it wise to have as many people possible in their

5

official capacity be witness to the conditions PFC Manning is subject

6

to so they can personally attest that he is being treated in

7

accordance with regulations?

8
9
10
11

A.

[Reviewed exhibit] Is that the e-mail December 29th, 2010,

at 8:18?
Q.

I'm not for sure on the time, but do you see the part where

Lieutenant Colonel Wright talks about that?

12

A.

[Reviewed exhibit] Yes, sir.

13

Q.

And Colonel Choike responds to the e-mail on 30 December

14

2010, correct?

15

A.

[Reviewed exhibit] Yes, sir.

16

Q.

Now both in the initial e-mail and in the response, both

17

you and Chief Galaviz are included on the e-mail.

18

A.

Okay.

19

Q.

Is that right?

20

A.

Yes, sir.

21

Q.

And in addition to you, Colonel Oltman, Colonel Shumake,

22
23

Mr. Durham, and Mr. Geoffroy are also cc'd on the e-mail.
A.

Yes, sir.

5060

08951

1

Q.

Did you know who Colonel Shumake was?

2

A.

No, sir.

I'd heard the name but did not know who--

3

specifically who he was.

4

couldn't pick him out.

If he was in this room right now, I

5

Q.

Did you know who Mr. Durham was?

6

A.

Yes, sir.

7

Q.

And how did you know Mr. Durham?

8

A.

I used to work for Mr. Durham at--when I was at

9
10

I used to----

Headquarters, Marine Corps, in 2004 to 2007 time frame.

He was the

deputy of PSL.

11

Q.

Did you know who Mr. Geoffroy was?

12

A.

Yes, sir, definitely.

13

Q.

And how did you know Mr. Geoffroy?

14

A.

When I worked at Headquarters, Marine Corps, during the

15

period of 2004 to 2007, as the deserter officer for the Marine Corps,

16

I was at Headquarters up there with him.

He was my boss.

17

Q.

So Mr. Durham and Mr. Geoffroy are former bosses of yours.

18

A.

That's correct, sir.

19

Q.

Now in his reply, Colonel Choike states that he had his own

20

IG, which is Major Zelek, make an unannounced visit to the brig.

21

A.

Yes, sir.

22

Q.

Do you recall Major Zelek's visit?

23

A.

Yes, sir, I do.

5061

08952

1

Q.

And then if you look to 4 January 2011, at 0630, Colonel

2

Wright cc's you on the e-mail where he discusses the fact that

3

Colonel Shumake may not need to visit due to the fact that they've

4

seen Major Zelek's report.

5

Do you see that?

6

A.

[Reviewed exhibit.]

7

Q.

It's basically at the top of, I believe, one of the pages.

8

A.

[Reviewed exhibit] I see that Colonel Choike wrote to

9

Lieutenant Colonel Wright stating that "I still believe that a visit

10

is warranted as requested by Mr. Geoffroy and Lieutenant General

11

Flynn."

12

Q.

All right, so looking at--if you go to the e-mail right

13

before that, you should see Lieutenant Colonel Wright saying that we

14

might not do the visit.

15

A.

[Reviewed exhibit] Yes, sir.

16

Q.

Okay.

So then as you point out, Colonel Choike says, hey,

17

Lieutenant General Flynn really wants the visit, and because you are

18

cc'd on all these e-mails, you obviously know that Lieutenant General

19

Flynn is following what's going on.

20

A.

That's correct.

21

Q.

And because you're cc'd on these e-mails, you obviously

22

know that the very first e-mail is from Major General Ary, that's the

23

very last page in your packet.

5062

08953

1

A.

[Reviewed exhibit.]

2

Q.

Correct?

3

A.

Yes, sir.

4

Q.

And obviously it's not normal for you, even as a CW4, to be

5

included on e-mails where you have two- and three-star generals in

6

the e-mail chain.

7

A.

I disagree, sir.

8

Q.

That is normal for you?

9

A.

I'm sometime on e-mails with two-star and three-star

10

generals.

11

our correctional environment or things that may going on--be going

12

on, because I am involved in other things as well, you know, I may be

13

on an e-mail with a three-star general or two-star general; that's

14

not unheard of.

15

Q.

It depends on what the subject again [sic].

All right, maybe I'll approach it this way.

No, our--with

Is it normal

16

for you to get on an e-mail chain with Major General Ary and

17

Lieutenant General Flynn?

18

A.

By no means,----

19

Q.

By no----

20

A.

---- no, sir.

21

Q.

---- means, it's not?

22

A.

No, sir.

5063

08954

1

Q.

And you see from those e-mails, at least from the tenor of

2

the e-mails, Major General Ary writes that Lieutenant General Flynn

3

has the utmost trust and confidence in the way the brig is being run

4

and that PFC Manning's treatment meets DoD standards.

5

A.

Yes, sir.

6

Q.

And then obviously your former boss talks about the fact

7

that, you know, we need to get as many people as possible to attest

8

that PFC Manning is being treated in accordance with regulations.

9

A.

Yes, sir.

10

Q.

And you're seeing this e-mail chain, correct?

11

A.

Yes, sir; yes, sir.

12

Q.

And so from your perspective, obviously, you already know

13

that some people above you think everything is fine with PFC Manning

14

at the Quantico brig.

15

A.

Yes, sir, and they have every right to--to think that.

16

Q.

And maybe so but you understand that people above you are

17

saying you're doing it right.

18

A.

Yes, sir.

19

Q.

And so even before CW5 Galaviz comes to do his inspection

20

as part of the 138 response, you already know that people above him

21

have said there's nothing wrong with what you are doing.

22

A.

Right.

5064

08955

1

CDC[MR. COOMBS]:

All right, I want to talk about another

2

e-mail.

3

[The civilian defense counsel handed a document to the court

4

reporter.

5

handed it to the civilian defense counsel.]

6

The court reporter marked the document as AE 440N and

CDC[MR. COOMBS]:

I'm retrieving from the witness Appellate

7

Exhibit 440Mike and handing the witness Appellate Exhibit

8

440November.

9

Q.

10

Now you see this is an e-mail--there's at least one e-mail

from CW5 Galaviz to you on 10 January 2011.

11

Do you see that?

12

A.

[Reviewed exhibit] Yes, sir.

13

Q.

And he sends you an e-mail discussing the fact that they

14

would like to have Army Corrections conduct a review of your custody

15

classification process and decisions regarding PFC Manning.

16

A.

Yes, sir.

17

Q.

He sent this e-mail to you and Colonel Oltman, among

18

others, correct?

19

A.

[Reviewed exhibit] Yes, sir.

20

Q.

And Colonel Oltman responds that he wanted to discuss this

21

issue with the base commander; that would be Colonel Choike.

22
23

Is that right?
A.

Yes, sir.

5065

08956

1

Q.

Colonel Oltman wanted to clarify if the Army would be doing

2

a review of your procedures to ensure compliance or if they would be

3

conducting an independent assessment, correct?

4

A.

[Reviewed exhibit] Yes, sir.

5

Q.

And CW5 Galaviz, then, clarifies that it would just be a

6
7

review of your procedures and not an independent assessment.
A.

[Reviewed exhibit] This says "provide an independent review

8

of the custody classification process used to produce a maximum

9

custody."

10
11

Q.

So they're not going to do an independent assessment;

they're just going to review the procedures, correct?

12

A.

Yes, sir.

13

Q.

And CW5 Galaviz also indicates that this is what Colonel

14
15

Choike and Lieutenant General Flynn apparently want.
A.

[Reviewed exhibit] It say [sic], "Additionally, I believe a

16

previous e-mail sent by Mr. Geoffroy to Lieutenant General--by Mr.

17

Geoffroy to Lieutenant General Flynn and Colonel Choike implied that

18

we had asked the Army to come down for this reason.

19

can find the correspondence and send it to you as a reference."

20
21
22
23

Q.

I will see if I

Okay, so he indicated that this review was something that

Colonel Choike and Lieutenant General Flynn wanted.
A.

[Reviewed exhibit] It states that "Lieutenant General Flynn

and Colonel Choike implied" this came from Mr. Geoffroy.

5066

08957

1

Q.

All right, so then you sent this entire e-mail chain to

2

Gunnery Sergeant Blenis, Staff Sergeant Buck, Gunnery Sergeant

3

Fuller, and Master Sergeant Papakie, correct?

4

A.

Yes, sir.

5

Q.

You told them that the classification procedures were going

6

to be reviewed.

7

A.

Okay.

8

Q.

You--is that correct?

9

A.

Yes, sir.

10

Q.

And you told them to ensure that they were on point and to

11

be ready to discuss this evening.

12

A.

That's correct.

13

Q.

And did you have that meeting on that evening?

14

A.

I'm sure we did, sir.

15

Q.

And what was discussed?

16

A.

As it stated, we discussed about the classification

17

procedure, I guess.

I don't remember that exact meeting, but I'm

18

sure if that's what it says we discussed, that's what we discussed.

19

Q.

So you don't recall having the meeting?

20

A.

I do not recall having the meeting.

21

Q.

All right, let's go back for a moment to your weekly

22
23

reports, okay?
A.

Yes, sir.

5067

08958

1
2

Q.

You had earlier testified that you were aware that the

defense was somehow getting your weekly reports.

3

A.

Sure.

4

Q.

And from your memory you thought that was much earlier,

5

sometime in 2010.

6

A.

Yes, sir.

7

Q.

And that's when you complained about it.

8

A.

Well I didn't complain about it.

9

I made--brought it to

light, sir.

10

Q.

You brought it to light----

11

A.

Yes, sir.

12

Q.

---- of----

13

A.

That--that the one to Captain Haberland, I think that's who

14

the conversation was with via e-mail.

15

telephone as well.

16
17
18
19
20

Q.

I think he and I spoke on the

Okay, and do you recall what time in 2010 you thought that

happened?
A.

Well that may have been in September/October time frame, if

I'm not mistaken, sir.
CDC[MR. COOMBS]:

Okay.

21

[The civilian defense counsel handed a document to the court

22

reporter.

23

handed it to the civilian defense counsel.]

The court reporter marked the document as AE 440O and

5068

08959

1

CDC[MR. COOMBS]:

I'm retrieving from the witness what's been

2

marked Appellate Exhibit 440November and handing the witness

3

Appellate Exhibit 440Oscar.

4

Q.

Do you see that e-mail between you and Captain Haberland?

5

A.

[Reviewed exhibit] Yes, sir.

6

Q.

And this happened really late December/early January of

7
8
9

2011, correct?
A.

This particular e-mail has some dialogue back in December

29th, yes, sir, only to December 29th and the 30th of December,----

10

Q.

Okay.

11

A.

---- so the 29th and 30th of December.

12

Q.

What's your reply date?

13

A.

[Reviewed exhibit] My reply date is 29--I'm sorry--29--I

14
15

responded 29 December 2010.
Q.

Okay, and you state there that you didn't want the defense

16

counsel to get access to your weekly reports; you tell Colonel Oltman

17

that; is that correct?

18

A.

What I state is, "Captain Haberland, Per our conversation--

19

per our previous conversation concerning the weekly progress report

20

concerning PFC Manning that I provide to the Security Battalion

21

commanding officer, you stated to me on the phone that Manning's

22

defense attorney, Mr. Coombs, has received the report in the past.

23

As the writer of the report, I have concerns that individuals are

5069

08960

1

receiving this report that shouldn't be and don't have the need-to-

2

know.

3

capacity."

I asked my leadership to address this issue in an official

4

Q.

All right, so,----

5

A.

Yes, sir.

6

Q.

---- again, you send an e-mail to Colonel Oltman where you

7

basically indicate to him you didn't want defense counsel to receive

8

access to your weekly reports.

9

A.

[Reviewed exhibit] I said I have concerns----

10

Q.

All right,----

11

A.

---- that individuals----

12

Q.

---- well those concerns----

13

A.

---- are receiving----

14

Q.

---- were what?

15

A.

Because, again, the genesis of the report was ensure, yes,

16

ensure transparency but then it could give my boss a snapshot, you

17

know, of Prisoner--PFC Manning's condition of living in--status in

18

the brig on a day-to-day or weekly basis, if you will.

19

the report, I think systematically, every Friday, so as he go into

20

the weekend, you know, he has something.

21

have updated information on Prisoner Manning.

I provided

He thinks he's at home, he

22

Q.

And----

23

A.

However, this document morphed into something else.

5070

08961

1

Q.

And you didn't want the defense to receive access to it.

2

A.

That's correct.

3

Q.

And why didn't you want the defense to receive access to

4

your weekly reports?

5

A.

Because the weekly reports was made for the commander

6

review.

Now if I knew that, again, you know, normally it's not

7

unheard of on a case, prisoners, counselors, prisoner attorneys,

8

whether it's--or prosecutor or defense in the facility to call the

9

counselor and ask for a progress report as they're preparing their

10

case to go to trial.

11

style again.

12

else, called something else, because a progress report is prepared by

13

counselors for the prosecution or the defense in preparation for

14

trial is something totally different but similar to this, this type

15

of report.

16

Q.

17
18

You know, so it's normal but it's a different

This report should have probably been named something

Okay.
So let's talk now just a little bit about your decision of

POI, right, Prevention of Injury.

19

A.

20

ATC[CPT VON ELTEN]:

21

10-minute comfort break.

22
23

MJ:

Yes, sir.
Your Honor, the United States requests a

All right, the court is in recess till 1700, or 5 o'clock.

[The Article 39(a) session recessed at 1653, 6 December 2012.]

5071

08962

1

[The Article 39(a) session was called to order at 1706, 6 December

2

2012.]

3

MJ:

This Article 39(a) session is called to order.

Let the

4

record reflect all parties present when the court last recessed are

5

again present in court.

6

Mr. Coombs.

7
8

The witness is on the witness stand.

CROSS-EXAMINATION CONTINUED
Questions by the civilian defense counsel [MR. COOMBS]:

9

Q.

Chief Averhart, I remind you, you're still under oath.

10

A.

Aye, sir.

11

Q.

Now, Chief, I'd like to now talk about another provision

12

within the SECNAV Instruction; so if you would, open the SECNAV

13

Instruction to page 104 of 388.

14

A.

Sir, yes, sir.

15

Q.

And that, again, is Enclosure 47 of Appellate Exhibit 259.

16

Now just in general, the SECNAV Instruction would trump any local SOP

17

that you might have, correct?

18

A.

Yes, sir.

19

Q.

So it's a--it's the provisions that you have to comply

A.

Yes, sir.

20
21

with?

5072

08963

1

Q.

Now if you look at the SECNAV, you see--do--are you

2

familiar with whether or not Prevention of Injury is a status within

3

the SECNAV?

4

A.

Yes, sir.

5

Q.

Is it a status within the SECNAV?

6

A.

Not a status, sir; no, sir.

7

Q.

And from your memory or knowledge, where does the status

8

Prevention of Injury come from?

9

A.

It's coming from all local policies and such.

10

Q.

Now in the SECNAV, because there's not a designation of

11

POI, the SECNAV does, in fact, talk about Prevention of Injury,

12

though, correct?

13

A.

Yes, sir.

14

Q.

And that's under the administrative segregation section; is

15

that right?

16

A.

Yes, sir.

17

Q.

And if you would look at the page 104, could you find a

18

provision where it talks about Prevention of Injury and read that

19

section to us?

20

A.

[Did as directed] "Some prisoners require additional

21

supervision and attention due to personality disorder, behavior

22

abnormalities, risk of suicide or violence, or other character

23

traits.

It you require--if required to preserve order, the brig

5073

08964

1

officer or in his absence the brig duty officer, duty brig supervisor

2

may authorize Special Quarters for such prisoners for purposes of

3

control, prevention of injury to themselves or others.

4

Q.

That"----

All right, so from that, then, would you agree with me that

5

basically Prevention of Injury is part of an admin segregation

6

determination; is that right?

7

A.

Sure.

8

Q.

And from your memory does the SECNAV Instruction talk about

9

Prevention of Injury in any other light other than admin segregation?

10

A.

Not right offhand, sir, to memory.

11

Q.

And aside--so if you would, turn to the top of page 105.

12

A.

[Did as directed.]

13

Q.

On that page, do you see where it says, "All prisoners in

14

Special Quarters," and this is part of the admin segregation, "shall

15

be continual--under continual supervision.

16

be taken in equipping, inspecting, and supervising their quarters to

17

prevent escape, self-injury, and other serious incidents.

18

be sighted at least once every 15 minutes by a staff member and shall

19

be visited daily by a member of the medical department and the Brig

20

O."

Special precautions shall

They shall

21

A.

Yes, sir.

22

Q.

"In addition it is highly desirable that prisoners in

23

Special Quarters be visited daily by a chaplain."

5074

08965

1

Do you see that?

2

A.

Yes, sir.

3

Q.

Now it says that a medical officer has to visit with

4

detainees every day when the detainee is on this Prevention of Injury

5

under admin segregation.

6

Manning's case?

7
8

A.

Do you know if that happened in PFC

I'm not sure if the medical officer came over or the

independent corpsman came over.

9

Q.

And do you know whether it was even--if it was the

10

independent corpsman or the medical officer, if that happened every

11

day?

12

A.

Yes, sir.

13

Q.

And did that happen every day?

14

A.

I'm sure; yes, sir.

15

Q.

And why are you sure of that?

16

A.

Because on the 509, you have to sign in the block, and if

17

something like that was not taking place, I'm sure I would have heard

18

about it from the operation chief so we can ensure that that was

19

taking place.

20

Q.

And it also says that--so I guess in this instance, PFC

21

Manning would have been visited by a doctor or one of the corpsman

22

every day for, I guess, his entire time at Quantico?

5075

08966

1

A.

Every day someone should have been going by his cell; yes,

3

Q.

And what do they--what do they do?

4

A.

Just if--especially if he's been receiving medication, the

2

sir.

5

doctor, the independent corpsman was authorized, because he was an

6

independent corpsman, the same status as a doc to administer that

7

medication to him.

8
9

Q.

And why do they have that requirement for a doctor or a

corpsman to visit a detainee that's in admin segregation every day?

10

A.

Just to ensure that his medical needs are being taken care

12

Q.

Why is that a concern?

13

A.

That medical needs are taken care of, sir?

14

Q.

Right, for the admin seg, because that's not a requirement

11

15

of.

for your normal MDI detainees, right?

16

A.

Right.

17

Q.

So why is that a requirement for your admin seg detainees?

18

A.

[Pause] I'm not sure.

19

Q.

Could it be because admin segregation is kind of deemed as

20
21
22

a difficult thing to be under?
A.

Well, I would not say that, sir, you know, because, you

know, could be under medical--admin segregation for medical reasons,

5076

08967

1

for other reasons as well, just where the individual have--maybe

2

have, let's say, lice or things of that nature.

3
4

Q.

So as a general proposition you wouldn't say being under

admin segregation is a difficult thing to do?

5

A.

No, sir.

6

Q.

So, again, I guess go back to, then, why would you need to

7

have a doctor see the detainee or a corpsman see the detainee every

8

day?

9
10

A.

Well, again, sir, the doc should be seeing the prisoners

every day that's in Special Quarters--in Special Quarters.

11

Q.

And why is that?

12

A.

For medical needs and plus that's what the instructions

Q.

But, again, and I'm sorry.

13
14
15

say.
I don't mean to be circular

here, but that's not a requirement for MDI, correct?

16

A.

No, sir.

17

Q.

And because it is an added requirement for either the

18

Special Quarters or the admin seg, it would imply to me that it's

19

because of some reason and you--are you aware of that reason?

20
21

A.

Well let me--let me finish, sir.

Quantico is not a normal facility----

5077

In a normal facility, and

08968

1

Q.

No, I know--I know that.

I'm just simply saying in

2

general, an MDI person, if they--because I know you're going to say

3

that at Quantico, everyone's in Special Quarters.

4

A.

That's correct, sir.

5

Q.

But what I'm going to ask you is for admin seg under the

6

SECNAV it indicates that you have this other requirement, but you

7

wouldn't have that requirement for a normal MDI detainee, so I'm

8

wondering why that would be.

9
10
11

A.

Because a normal MDI detainee would be in general

population, sir, and he would not be in Special Quarters.
Q.

It also talks about--okay, I'll move on.

It talks about a

12

chaplain having to see the person every day and that being highly

13

advisable.

14

admin seg every day and make it highly advisable?

15

A.

Why would you want to have a chaplain visit people in

Well, sir, normally at the normal facility, larger

16

facilities, a chaplain is personally assigned to the jail.

He has a

17

officer in--a office inside the brig, which makes it easily

18

accessible.

19

segregation and to Special Quarters, they don't have the capacity to

20

walk around free on a walking chit as any other prisoner who may want

21

to go speak to the chaplain or who may want to go to the chapel

22

during a certain period of time, so it's advisable that the chaplain

23

come down to Special Quarters to see those individuals during a

For those individuals that's assigned administrative

5078

08969

1

routine day because something may going--be going on.

2

helps the morale as well.

3

Q.

Again, it

Exactly, so I guess from my non-correctional view, when I

4

look at that it implies to me that admin segregation is a little more

5

hard on the detainee so we want to make sure medical is seeing him

6

and we want to make sure a chaplain is seeing him and we want to make

7

sure the brig OIC is seeing him daily in order to ensure everything's

8

okay.

9

A.

That's correct, sir.

10

Q.

And would you agree with that?

11

A.

That's fine, sir.

12

Q.

All right, so then let's talk about the POI of PFC Manning

13

under this provision.

14

A.

Okay.

15

Q.

What is the longest you've seen someone other than PFC

16
17
18
19
20

Manning be in POI within Quantico?
A.

Well Manning is the longest--served the longest in POI,

sir, from my--under my watch, sir.
Q.

All right, so now let's eliminate Manning from that

equation.

21

A.

Yes, sir.

22

Q.

What's the longest you had somebody else in POI?

5079

08970

1

A.

2

I'm not sure.

3

Q.

4
5
6
7
8

Probably maybe I would say no more than 2 months, if that.

Are you familiar with, based upon your training, the long-

term effects of restrictive custody?
A.

I'm familiar with the long-term effect the--effect that

restrictive custody could possibly do.
Q.

I am familiar with that, sir.

And have you been taught about this--these effects through

your training?

9

A.

We have had classes.

10

Q.

And I imagine as a correctional expert you might have read

11

up on----

12

A.

Sure.

13

Q.

---- how long-term segregation or restrictive custody might

14

impact a detainee.

15

A.

Yes, sir.

16

Q.

Did it ever--did you ever consider the possibility that the

17

long-term MAX and POI that you've had PFC Manning under was

18

detrimental to him?

19

A.

No, sir.

20

Q.

And why not?

21

A.

Because again, you know in my correctional experience, I've

22

seen individuals who have been MAX over 20 years, you know, in

5080

08971

1

confinement, especially at Leavenworth.

2

served in maximum capacity for a long time.

3

Q.

These individuals have

Okay, so with PFC Manning, I guess your experience of

4

seeing other people on MAX you didn't, as the commander, think that

5

maybe having him on MAX and POI for this length of time is not a good

6

thing for him?

7

A.

No, sir, I did not think that in regards to it, because

8

again, this is corrections and it's--and it's a jail; and again I

9

looked at the confining charges.

10
11

I looked at different aspects of

the confinement and which gives me justification.
Q.

Okay, and I want to give you an opportunity to, then,

12

explain why did you believe you needed to have Manning in MAX and

13

POI, let's say, prior to 18 January?

14

A.

Because of the fact that I was afraid that he would hurt

15

hisself [sic], for one.

16

charges.

His--MAX him because of his confining

17

Q.

Okay.

And then after 18 January?

18

A.

[Pause.]

19

Q.

I know you only had a few more days but----

20

A.

Yes, sir; the same thing, sir.

21

Q.

The same thing, just the confinement charges and----

22

A.

Yes, sir.

23

Q.

---- your fear that he might harm himself.

5081

08972

1

A.

Yes, sir.

2

Q.

When PFC Manning filed his Article 138 complaint, you

3

submitted a response, correct?

4

A.

Yes, sir.

5

Q.

And that's been marked as Appellate Exhibit, I believe,

6

440Lima?

7

A.

Yes, sir.

8

Q.

Now you didn't----

9

MJ:

I have 440India.

10

CDC[MR. COOMBS]:

Thank you, Your Honor, 440India.

11

Q.

Did you--you didn't draft this response, correct?

12

A.

I drafted the response, sir.

13

the response.

14

[The civilian defense counsel handed a document to the court

15

reporter.

16

handed it to the civilian defense counsel.]

I had my counselor look at

I had my SJA look at the response; yes, sir.

The court reporter marked the document as AE 440P and

17

CDC[MR. COOMBS]:

I'm showing the witness what's been marked

18

Appellate Exhibit 440Papa.

19

WIT: Okay; yes, sir.

20

Q.

This is an e-mail from you to Gunnery Sergeant Blenis

21

asking him to help you draft your reasoning for the Article 138

22

response, correct?

23

A.

Okay; yes, sir.

5082

08973

1
2

Q.

you draft, quote, a reasoning for MAX and POI, end quote.

3
4

And you were asking him if you look in the e-mail to help

Do you see that?
A.

What I stated is "Over the next week I need to formulate

5

the responses for Manning 138 complaint--complaint.

As the

6

respondent, I have the opportunity to explain why I made the decision

7

in this case, re: his assignment to MAX and his POI status.

8

response need not to be lengthy, but I would appreciate your

9

assistance in drafting a reasoning for the MAX and POI.

The

On the 138,

10

he is arguing that I abused my discretion in making these decisions.

11

I am not justifying.

12

attached document and change as you see fit.

13

is talking about the suicide watch again."

14

I'm explaining my decision.

Please use the

This piece--this piece

I gave him the format, gave him, and I wanted him to go

15

ahead and look at it.

16

the individual that worked more with him; and again, my response was

17

coming from all the material that I accumulated, my progress report,

18

things of that nature.

19
20

Q.

All right, and again, when you look at that e-mail, you

asked him to draft, quote, a reasoning for MAX and POI, end quote.

21
22

Yes, sir, I did do that, because, again, he is

Do you see that?
A.

I see that, sir.

5083

08974

1
2

Q.

Now, any idea why you might have said "a reasoning" and not

"the reasoning"?

3

A.

I have no idea why I articulated it in that manner, sir.

4

Q.

Now you attached a document and said, "Please use the

5

attached document and change as you see fit."

6

A.

That's right.

7

Q.

What did you attach?

8

A.

That was basically the--my template of what I already had

9

ridden--written, so I basically already gave him information

10

Q.

And why did you----

11

A.

---- with my response.

12

Q.

---- tell him he could change as he sees fit?

13

A.

Because, again, sir, I already had formulated the

----

14

foundation for my document, you know.

15

wickets, you know, some things that I may have missed in regards to

16

the initial complaint and then I was going to forward it over to my

17

SJA.

18
19
20

Q.

I know he was going to hit the

Now how did--how can you, I guess, trust Gunnery Sergeant

Blenis to articulate your reasoning as a commander for MAX and POI?
A.

Well, I don't think he was going to articulate my

21

reasoning, for one.

Again, I understand what this reads; however,

22

again, I presented everything to him how I wanted to go ahead and

5084

08975

1

make sure I was hitting the wickets and covering the things per the

2

complaint, which is perfectly good--good to do.

3
4
5

Q.

Well did you have your own reasonings or did you just

accept what Gunnery Sergeant Blenis wrote for you?
A.

My reasoning, again, sir, I presented the formation--the

6

format to him, the foundation, the statement to him that I wanted him

7

to look over.

8

Q.

9
10

Now one of the things that other witnesses and including

yourself have said to justify the POI has been a lack of
communication, correct?

11

A.

Yes, sir.

12

Q.

And do you see anywhere in your Article 138 response where

13

you say that he's in the situation he's in because he's not talkative

14

enough to you?

15

A.

[Reviewed exhibit.]

16

MJ:

What paragraph is that?

17

CDC[MR. COOMBS]:

18

MJ:

19

WIT: [Reviewed exhibit.]

It's not, ma'am.

Okay.
Okay, sir, in my response to the

20

request for redress of the Article 138 of PFC Manning, dated

21

19 January, it does not talk about or speak about his lack of

22

communication.

5085

08976

1

Q.

Now, I want to go back to another thing you talked about on

2

direct.

3

PFC Manning from others?

You said that part of your decision process was to protect

4

A.

Yes, sir.

5

Q.

And, in fact, you said, quote, I have no doubt something

6

would have happened in general population, end quote; is that

7

correct?

8

A.

Yes, sir.

9

MJ:

Is that in the Article----

10

CDC[MR. COOMBS]:

11

MJ:

12

CDC[MR. COOMBS]: ---- testimony.

13

MJ:

---- testimony, okay.

14

Q.

And you talked about that the detainees you had were

15

No, ma'am, that's in his direct----

---- 138--oh, that's----

patriotic.

16

A.

Yes, sir.

17

Q.

But that you thought they would, in fact, do something to

18

PFC Manning.

19

A.

I talked about in my experience, and when I say they're

20

"patriotic," you know, and I'm sure Prisoner--PFC Manning is as

21

patriotic as well, the fact that I'm saying if he's put in general

22

population, there is the potential of provocation, provoking either

23

them to him or him to them, because again, they knew he was there,

5086

08977

1

they knew why he was there, and they knew, you know, just knew his

2

status.

3

Q.

4
5

How many detainees did you have on average when you had PFC

Manning?
A.

I'm not sure, sir, how many I had then.

I'm not sure.

I

6

know at one time it--actually I think [the military judge sneezed]

7

the day I left--bless you, ma'am--the day I left I think I had

8

probably dropped down to seven--I'm not sure if they was all

9

detainees or prisoners, to be honest, I'm just not sure because our

10

facility transitioned from a Number I facility to a pretrial

11

confinement facility and I know we started transporting those

12

prisoners down to the Norfolk jail.

13
14

Q.

All right, so on average would it sound about right to you

that you would fluctuate between maybe six to eight or so detainees?

15

A.

About 6 to 11 or something like that, yeah.

16

MJ:

Six to what?

17

WIT: Six to eleven,----

18

CDC[MR. COOMBS]:

19

WIT: ---- maybe something like that.

20

Q.

21
22
23

Okay.

And did any of these other detainees ever articulate a

threat towards PFC Manning?
A.

By no means, because if they would have, then they would

have been actually locked down as well.

5087

08978

1

Q.

So from what you were receiving from the guards, did you

2

have any information to indicate that there was a potential for any

3

other detainee to want to harm PFC Manning?

4

A.

Not that there was the potential or hearing anything from

5

the guards, but, again, prisoners talk.

6

network.

7

jail ask the prisoners.

8
9

Q.

You know, they have their

They talk and if you really want to know what's going on in

Right, but that's what I meant.

From your standpoint as

the brig OIC, did you have any information that you could, you know,

10

on paper or whatnot, point to and say, "Well this is why I'm

11

concerned about PFC Manning"?

12

A.

No, sir.

13

Q.

So it was just more a feeling on your part----

14

A.

Yes, sir.

15

Q.

---- that someone might try to harm him.

16

A.

Just the tempo and again what's on--what was displayed on

17

the news.

18

is on or the news is on, something like that, you know, or the

19

newspaper that may be laying around, you know, you can see they knew

20

what was going on.

21
22
23

Q.

You know, if you're walking around the dorms while TV call

And there is a custody status called "protective custody,"

right?
A.

It is, sir.

5088

08979

1

Q.

And when someone's placed on protective custody, if that's

2

the only reason, so they're MDI but let's say, for whatever reason,

3

other detainees want to harm him,----

4

A.

Right.

5

Q.

---- and you're going to place him on protective custody.

6

A.

Right.

7

Q.

How is he held?

8

A.

He held basically in administrative segregation and, again,

9
10

in his status, if I had had Manning on it, he would have been in
maximum PC, MAX PC.

11

Q.

12

MDI detainee.

13

A.

Right.

14

Q.

But for whatever reason there's some other detainees that

15

But let's just take it to a normal detainee.

I'm a normal

I've been a model detainee, no issues, okay?

want to harm me.

16

A.

Right.

17

Q.

And you decide I'm going to put Detainee Coombs into

18

protective custody.

19

A.

Right.

20

Q.

Would I be placed in MAX?

21

A.

You could poten--it depends on your charges.

22
23

an MDI; you could be an MDI---Q.

Protective custody.

5089

You could be

08980

1

A.

---- protective custody, yes, sir.

2

Q.

All right, so if you're an MDI Protective Custody, how is

3

it different?

4

A.

I just have you in a--you eat your--you eat your meals in

5

your cell; you eat segregated; you're segregated from the other

6

prisoner population; you watch TV by yourself; instead of watching it

7

in your cell, you'll probably go out to the day room, so I formulate

8

that in the plan of the day to accommodate in a sense.

9

Q.

All right, so if I'm MDI and I'm in Protective Custody, I

10

might--I might eat--I could eat maybe in the chow hall but separate

11

from everybody, right?

12

A.

No, sir.

13

Q.

You wouldn't let me do that?

14

A.

No, sir.

15

Q.

So I'd have to eat in my cell.

16

A.

That's correct.

17

Q.

But you would let me watch television in the dayroom apart

18
19

from everyone else?
A.

It depends if I was running during their rec call or

20

sunshine call different, you know, because someone--in the Quantico

21

instance, someone would have been there in the Special Quarters area

22

so I could have ran that rec call--I'm sorry--the TV call during that

5090

08981

1

time frame while the entire prisoner population is outside to the rec

2

call, so----

3

Q.

Okay.

4

A.

---- I could have probably, you know, kind of maneuvered

5

and set the POD to accommodate something like that; and if not, then

6

he would have probably had to watch TV in front of--in his cell, on

7

the rolling cart.

8
9

Q.

And if I was MDI Protective Custody, would I be allowed

maybe to go down to the library?

10

A.

Yes, sir.

11

Q.

And when it comes to outdoor rec, I guess I'd have my

12

outdoor rec separate?

13

A.

Yes, sir.

14

Q.

And would that be in the larger outdoor rec area or would

15
16

that be in the MAX outdoor rec area?
A.

It would probably be in the--in the small rec area or most-

17

-I probably ran it in the indoor rec because of manpower, that would

18

have been manpower intensive to stop the POD and have one prisoner on

19

the rec yard while everybody else was locked down is just unheard of.

20

Q.

No one would be locked down, would they, if I'm MDI?

21

A.

Well they would not be on the yard to participate in

22

recreation call with him.

5091

08982

1
2
3
4

Q.

Right.

So would I--if I'm MDI, would I be allowed to do

the general rec area or would I not be allowed to?
A.

Probably not the outside rec.

You know, I probably would

have to come up with some other method to ensure rec call.

5

Q.

And I guess that would only be because of manpower issues?

6

A.

And it would be a case-by-case basis, sir.

7

Q.

Okay.

8
9
10

If I'm MDI Protective Custody, is there anything else that
would be different than the normal MDI?
A.

[Reviewed exhibit] Work, there would be no work--he would

11

not be working in an area--actually would not be allowed out of his

12

cell to work during normal work call.

13

Q.

Okay, so because of Protective Custody, no----

14

A.

Because of Protective Custody, right.

15

Q.

---- work detail?

16

A.

No work detail.

17

Q.

And how about if I'm MDI, I obviously can have my personal

18

hygiene items.

19

A.

Sure.

20

Q.

And I can have as many, well, books and magazines and

21
22
23

stuff?
A.

You can have the normal books per the rules and regulations

which is allowed for prisoners.

5092

08983

1

Q.

And personal items I could have as well in my cell.

2

A.

Sure.

One thing you probably could not have is your boots

3

would not be allowed in the cell because of bootlaces and things of

4

that nature.

5

all prisoners boots are taken from them when they go into Special

6

Quarters.

The boots would be secured where all the other shoes--

7

Q.

Even MDI.

8

A.

Yes, sir.

9

CDC[MR. COOMBS]:

10

Okay.

I believe that's all the questions I have for you.

11

WIT: Thank you, sir.

12

CDC[MR. COOMBS]:

13

MJ:

Thank you, Your Honor.

Captain Von Elten?

14
15

All right, Chief Averhart, thank you.

REDIRECT EXAMINATION
Questions by the assistant trial counsel [CPT VON ELTEN]:

16

Q.

Chief Warrant Officer Averhart,----

17

A.

Yes, sir.

18

Q.

---- is there a requirement that detainees be allowed to

19

speak to one another?

20

A.

There's no requirement, sir.

21

Q.

How is a detainee's cell determined?

22

A.

How is his cell determined?

23

Q.

Determined.

5093

08984

1

A.

His berthing area?

2

Q.

Oh, no, a specific cell within a berthing area.

3

A.

I'm sorry; maybe I don't understand your question, sir.

4

Q.

If I'm in Special Quarters Alpha Row,----

5

A.

Yes, sir.

6

Q.

---- how do you determine which cell I go into?

7

A.

It's determined by the C&A board what cell that the

8

prisoner will be berthed in.

9

Does that answer your question?

10

Q.

Yes.

11

A.

Okay.

12

Q.

How often was a skin count conducted for general

13
14

population?
A.

A skin count is--well you got three mandatory counts during

15

the day and skin counts are conducted at nighttime at--I'm sorry--

16

after taps and that's every hour.

17

Q.

Does that include general population?

18

A.

Yes, sir.

19

Q.

How often was somebody in the observation booth on the

20
21

Special Quarters row?
A.

Someone was in the observation booth continuously.

You

22

know, I wanted that booth to be manned and that was whether Prisoner

23

Manning was there or not; that needs--that's a post and he had

5094

08985

1

workers in there walking the rows and signing the 509s.

2

NCO, E-4, at least a E-4 or E-5. I think I may have had a E-5 running

3

Special Quarters.

4

Q.

There's a

Defense counsel brought up Captain Hocter's request for PFC

5

Manning to conduct calisthenics in his cell.

6

Enclosure 21 to Appellate Exhibit 259;----

I'm going to hand you

7

A.

Yes, sir.

8

Q.

---- turn to page 15, please.

9

A.

[Reviewing exhibit] 15?

10

Q.

Fifteen.

11

A.

[Did as directed] Yes, sir.

12

Q.

What did Captain Hocter request?

13

A.

He said, "Please let patient do calisthenics in his cell.

14
15
16
17
18

Thanks."
Q.

Why wasn't PFC Manning allowed to conduct calisthenics in

his cell?
A.

Because of in a MAX--during this time he was MAX POI and it

was not authorized, sir.

19

Q.

Why wasn't that authorized?

20

A.

Because of his status.

21

Q.

And why did his status----

22

A.

And custody.

23

Q.

---- not allow him to exercise----

5095

08986

1

MJ:

2

WIT: Both, ma'am.

3

Q.

4
5

Custody or status or both?

Why did his custody and status not allow him to exercise in

his cell?
A.

Okay, custody and status did not allow him to exercise in

6

his cell just simply because under the rules having the opportunity

7

to possibly harm themselves or hurt themselves or fall--by falling.

8
9

ATC[CPT VON ELTEN]:

I'm handing the witness Enclosure 1 to

Appellate Exhibit 259 and retrieving Enclosure 21.

10

Q.

Turn to page 15 of Enclosure 1, please.

11

A.

[Did as directed] Yes, sir.

12

MJ:

What are you handing now?

13

ATC[CPT VON ELTEN]:

14

MJ:

Okay.

15

Q.

What change did you make to PFC Manning's handling

16
17

Enclosure 1, ma'am, page 15.

instructions in regard to recreation?
A.

[Reviewed exhibit] Stated that said name--[cleared throat]

18

excuse me--said named prisoner/detainee will receive one hour

19

recreation call in the Special Quarters recreation yard or inside

20

recreation area in case of inclement weather.

21

restraints will be removed during recreation call.

Said named detainee

22

Q.

How much recreation call did you authorize?

23

A.

One hour, sir.

5096

08987

1
2

Q.

And what is--what date did you authorize 1 hour of

recreation call?

3

A.

That was on December 10th, sir, 2010.

4

Q.

Going to 18 January 2011, what was PFC Manning's emotional

5

state when his arms were flailing?

6

A.

He was very agitated.

7

Q.

And what level of emotional control did he have?

8

A.

At that point in time when he was striking hisself [sic]

9

He just seemed to be very angry.

violently it didn't appear that he had any control.

Although it was

10

very quick and deliberate, you know, again, it was just a look that

11

he had at that point in time that was just different.

12
13

Q.

Let's talk a little more about the observation room.

How

large was the room?

14

A.

The observation room for the guards?

15

Q.

Yes.

16

A.

That room was a rather large room.

It had all our monitors

17

in that room, desks, a couple chairs.

18

if you look at this area over here, probably about the size of that

19

because you can actually go through Door 1 and that length of that

20

room will take you through the other side of Door 2 to another room.

21
22
23

ATC[CPT VON ELTEN]:

It was a large room.

The witness pointed to the panel seated

area.
MJ:

Actually

Which is approximately how big?

5097

08988

1
2

ATC[CPT VON ELTEN]:
feet long.

3

MJ:

4

WIT: Yes, ma'am.

5

Q.

6
7

Which is approximately 8 feet deep and 16

That sound about right?

What would the guards look like--look at on the monitors in

the observation room?
A.

The guard--you know, they had--they had a variety of things

8

to do because that was their post.

They wasn't just sitting there in

9

their--the--in the window peering at Prisoner Manning.
They had other prisoners, as well.

They would be

10

doing their work.

The NCO is

11

running his log book and operating his post, as well; and there's

12

certain procedures in the plan of the day.

13

Quarters as well.

He has to run for Special

14

Q.

How much would they be looking out the window?

15

A.

Well they physically had to check him every 5 minutes, so--

16

but there was a row NCO that took care of his row--his row, but,

17

again, the post was manned 24 hours a day, continuously, with at

18

least three Marines, three or four Marines in that--in that area and

19

at least one E-4 and above there at all times.

20
21

Q.

What else do guards do other than look at the monitors and

do work?

22

A.

Well that's what that post--Special Quarters is a very

23

secure area.

They just had to make sure that they walk around every

5098

08989

1

15 minutes; signed their 509s; then be there for the prisoners to

2

ensure the plan of the day is carried out and things of that nature.

3

Q.

What kind of work do you mean they were doing in the room?

4

A.

The guards?

5

Q.

[Nodded head indicating an affirmative response.]

6

A.

Again, the--they had their--their work essentially is the

7

operation of that post in accordance with the plan of the day, you

8

know, so there may have been things going on whether it's TV call,

9

hygiene call, the cleaning--cleanliness of that Special Quarters

10

area, the entire area, you know, they have a day-to-day routine and

11

things that they need to take place during that time frame.

12

ATC[CPT VON ELTEN]:

13

MJ:

14

CDC[MR. COOMBS]:

Any final?

15
16
17
18

Thank you.

No, ma'am.

EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q.

All right, Chief Averhart, my name is Colonel Lind.

I have

a few additional questions for you.

19

A.

Yes, ma'am.

20

Q.

Is there a brig policy that you put out, a brig--a local

21

brig policy?

22

A.

Standard operating procedures, ma'am?

23

Q.

Yes.

5099

08990

1

A.

Yes, ma'am.

2

Q.

I'm looking at that and I'm curious because it has two

3

conflicting provisions under classification and assignment.

4

A.

Yes, ma'am.

5

Q.

One of them says, "Maximum custody:

Prisoners requiring

6

special custodial supervision because of the higher probability of

7

attempted escape due to potential length of sentence or because they

8

are charged with"--well, I'm sorry.

9

"A prisoner may be designated as maximum security because they have

Let me read the relevant piece.

10

been determined to pose a threat to their own or another individual's

11

safety," and then that's followed on by, "Ordinarily only a very

12

small percentage of prisoners should be classified as Maximum

13

Custody."

14

the portion saying, "Some prisoners require additional supervision

15

and attention due to personality disturbances, behavioral

16

abnormalities," et cetera, and it says under (e), "Prevention of

17

Injury (POI):

18

intend to or are contemplating harming themselves or others will be

19

assigned Maximum Custody."

20

So what governs:

21

A.

And then I look at a separate section that says--it's in

Those prisoners who have given an indication that they

may be assigned or will be assigned?

Will be assigned, ma'am.

5100

08991

1

Q.

So if someone--if the C&A board, I guess, if they're doing

2

two separate determinations, under your policy if they determine POI

3

that's it; you're done, right?

4

A.

Yes, ma'am.

5

Q.

So there is--is there a separate Maximum Custody

6
7

determination at that point?
A.

Will----

Well now is that--excuse me, ma'am.

Is that--what date is

8

on that document there?

9

facility during the same month that Manning came in.

10
11
12
13
14
15

MJ:

I know I took over the--took over the

All right, Government, what--let me show the witness the

appellate--it's Enclosure--one of the enclosures to your---ATC[CPT VON ELTEN]:

Ma'am, it's Enclosure 48 to the

government's response.
MJ:

Okay.

Is it actually in an appellate exhibit somewhere

that I can show the witness?

16

ATC[CPT VON ELTEN]:

17

MJ:

18

WIT: Sorry, ma'am.

19

MJ:

Yes, ma'am.

I don't want to give him my marked up copy.

That's okay.

20

[There was a pause in the proceedings while the assistant trial

21

counsel located the appellate exhibit and handed it to the witness.]

22

MJ:

Thank you, Captain von Elten.

23

ATC[CPT VON ELTEN]:

You're welcome, ma'am.

5101

08992

1

WIT: Thank you, sir.

2
3
4

What page, ma'am?

EXAMINATION BY THE COURT-MARTIAL CONTINUED
Questions by the military judge:
Q.

What you have is the brig policy that I was referring to.

5

Well the first one that says "may be POI" is on page 96, right at the

6

bottom of the classification and assignment under Number 1, Maximum

7

Custody, the last--second to last sentence.

8

A.

[Reviewed exhibit] 96, ma'am?

9

Q.

I'm sorry.

I take that back.

It's--yeah, on the first

10

one, yes; 96 of 189.

Do you have the--it should say, "Classification

11

and Assignment," about two-thirds of the way down.

12

A.

[Reviewed exhibit.]

13

ATC[CPT VON ELTEN]:

Ma'am, if the United States could clarify

14

for the copy that Chief Averhart is probably looking at the

15

numbering.

16

On the bottom right, it would be the set of numbers on the top of the

17

two, where it says, "Page 96 of 189."

There's actually three sets of numbers on the document.

18

MJ:

Let me see your exhibit; maybe I can help you.

19

WIT: Yes, ma'am [handing exhibit to military judge].

20

MJ:

That's okay.

I'm sorry.

Yeah, it's the pages that are right here

21

[showing to witness].

I know there's a bunch of different ones, but

22

let's pull it up right now just [locating correct page of exhibit].

5102

08993

1

Okay, that can't be it because this stops at page 86.

2

must be more to it.

3

ATC[CPT VON ELTEN]:

4

MJ:

5

CDC[MR. COOMBS]:

6

MJ:

7

Hold on.

[Shook head indicating a negative response.]

All right, let's--we'll just retrieve the original

appellate exhibit.
ATC[CPT VON ELTEN]:

9

MJ:

10

12

Ma'am, could we get an in place recess?

Do you have a copy of it?

8

11

[Pause] There

Yes, ma'am.

Is it on disk or is it hard copy, the original?

ATC[CPT VON ELTEN]:

Hard copy.

Ma'am, I have the remainder

here.
MJ:

Oh, you do, okay.

Here, just give them both back.

13

[The witness did as directed and returned the exhibits to the

14

military judge.]

15
16
17

MJ:

Thank you.

[The assistant trial counsel handed the exhibit to the witness.]
WIT: Thank you, sir.

18

[Reviewed exhibit] Okay; yes, ma'am.

19

Q.

Okay, and then the second one was on page 101.

20

A.

[Reviewed exhibit.]

21

Q.

Flip to that one and look at (e); it talks about Prevention

22
23

of Injury "will be" assigned to Maximum Custody.
A.

Yes, ma'am.

I see that.

5103

08994

1

Q.

2

what governs.

3

A.

[Reviewed exhibit] Should be "may be," ma'am.

4

Q.

Huh?

5

A.

Should be "may be."

6

Q.

So it's not "will be," so----

7

A.

Right.

8

Q.

Can he--can someone be on POI status and be MDI?

9

A.

Yes, ma'am, they could.

10

Q.

So do you--I mean, do you have any idea, I mean, this says

11

And I believe you testified earlier that the "will be" is

"will be."

12

A.

Excuse me, ma'am.

I'm sorry.

I'm----

13

Q.

That's okay.

14

A.

---- I'm getting--getting confused here.

They would not be

15

on--a prisoner would not be on MDI and POI, ma'am, at the same time.

16

It would be MAX POI.

17

Q.

Why?

18

A.

Because of the--if he's potentially going to hurt himself,

19

that would make him a maximum security prisoner.

20

Q.

Why?

21

A.

Because of the potential--being potentially violent and

22

dangerous; the potential to hurt himself or to hurt other staff; to

5104

08995

1

disrupt the good order and discipline of the facility; and also to

2

violate the custody and control of the facility and other inmates.

3

Q.

[Pause] The other regulatory provision I wanted to talk to

4

you about because I am still a little confused on this, the 20

5

minutes of sunshine call for maximum custody prisoners, where does

6

that come from?

7

A.

I think that was a local policy, ma'am.

8

Q.

Okay.

9

Look at page 18 of 189, and it goes into page 1--19,

and it talks about exercise and recreation training.

It says,

10

"Outdoor exercise areas for the general population will be provided

11

to ensure that prisoners receive at least 1 hour of exercise in

12

accordance with the plan of the day," and then it goes on to say,

13

Number 2, an additional exercise area is provided for those prisoners

14

within the population that cannot participate in the general

15

recreation call due to custody or current handling requirements."

16

There's nothing in paragraph 2 that references a time,----

17

A.

Yes, ma'am.

18

Q.

---- so does it default back to 1 or is it something

19
20

different?
A.

It's something different, ma'am, and I'm thinking that,

21

again, for all MAX we've had like a commanding officer policy

22

memorandums in which basically located in Special Quarters in which

23

we govern by.

I'm not sure why it's in this doc--not in this

5105

08996

1

document, but it should be.

A time limit should be in that order,

2

but it's not.

3

Q.

It is in something else?

4

A.

[Pause] I cannot remember at this time actually, ma'am, but

5

I'm thinking that it was on one of my commanding officer policy

6

memorandums.

7

Q.

Is there a set exercise time set by the SECNAV Instruction?

8

A.

Yes, ma'am, 1 hour; and, again, that's the general

9

population, or normal population.

10

Q.

What about for maximum custody?

11

A.

I'll just have to look and see, ma'am [reviewed exhibit].

12

Q.

Oh, you've still got that, okay.

13

A.

[Reviewed exhibit.]

14

Q.

Well what was your--let me just--we--you don't need to go

15

through that whole thing.

16

the time that you were making these decisions, what was your

17

understanding of what the SECNAV Instruction required?

What was your awareness at the time--at

18

A.

Well for maximum security----

19

Q.

Yes.

20

A.

---- 20 minutes--20 minutes of rec call--I'm sorry--

21
22

sunshine; 20 minutes of sunshine call.
Q.

And you believe that's somewhere in the SECNAV Instruction.

5106

08997

1

A.

Yes, ma'am.

I'm not sure--necessarily sure that it's in

2

the SECNAV as 20 minutes.

3

regards to maximum security, 20 minutes.

4

Q.

Again, I think that was a local policy in

Because there is something in the SECNAV Instruction, and

5

that would have been at--I think Mr. Coombs might have asked you

6

about it before--requiring an hour for people in disciplinary

7

segregation.

8

A.

[No response.]

9

Q.

Does that ring a bell to you?

10

A.

It does ring a bell and him asking me that, ma'am.

11

Q.

Okay, let me--hold on here.

I have a lot of paper to deal

12

with here too.

[Reviewed exhibit] It would be on page 5-29 of what

13

you're looking at, which would be if you look at the side there 157

14

of 388.

15

A.

16

in the local.

17

Q.

Does it have the pages on the side "157 of 388"?

18

A.

[Reviewed exhibit.]

19

CDC[MR. COOMBS]:

[Reviewed exhibit] Actually, this SECNAV does not have 5 --

Ma'am, that copy doesn't go up to that; that

20

only had the provisions I was covering with him.

21

Because the SECNAV Instruction, as you know, is----

22

MJ:

I know; it's large.

5107

I apologize.

08998

1

ATC[CPT VON ELTEN]:

2

Enclosure 47.

3

MJ:

Ma'am, the government has the entire

Okay, can you help?

Just flip to page 157 for him; that's

4

probably the end of this that I'm going to ask about.

5

[The assistant trial counsel did as directed.]

6
7
8
9
10

ATC[CPT VON ELTEN]:

Ma'am, I'm handing Chief Warrant Officer

Averhart page 157.
Q.

Now do you see it down there on Number 5?

This is talking

about--if you look at the page before it--it's talking about the
people on disciplinary segregation.

11

A.

Yes, ma'am.

12

Q.

And I guess my confusion is this paragraph says 1-hour

13

exercise period and a 5- to 10-minute shower privilege shall be

14

granted daily when the prisoner's behavior is satisfactory.

15

prisoner on disciplinary segregation is allowed an hour, why is a

16

prisoner in maximum custody not also allowed an hour?

17

A.

If a

Because the prisoner may be in a disciplinary status,

18

ma'am, but he may not be in a maximum security prison.

19

prisoner can be disciplinary, he may have received disciplinary, loss

20

of privileges, he may be an MDI or MDO, but he can be in a

21

disciplinary status and not considered a maximum security prisoner.

22

Q.

23

segregation.

He can be--a

This provision applies to everybody on disciplinary

5108

08999

1

A.

[Reviewed exhibit.]

2

Q.

Chief, let me put it this way then.

You've been working in

3

confinement facilities for 22 years or somewhere in the corrections

4

process.

5

been the----

6

A.

Twenty minutes.

7

Q.

---- rec call?

8

A.

Yes, ma'am.

9

Q.

In what----

10

A.

Yes, ma'am.

11

Q.

---- other facilities, for example?

12

A.

Excuse me, ma'am?

13

Q.

What other facilities, for example?

14

A.

Camp Lejeune facility, ma'am.

15

Q.

Uh-huh.

16

In the other facilities that you've worked at, what has

Twenty minutes all the way through?

[Pause] And, again, you didn't write the SECNAV

Instruction so you----

17

A.

No, ma'am.

18

Q.

---- if it's there for disciplinary segregation and there's

19

nothing on maximum custody, I guess you can't answer for me why it's

20

in the SECNAV Instruction for people on disciplinary segregation.

21

A.

No, ma'am.

5109

09000

1

Q.

During the 9 months that the--that PFC Manning's on POI

2

status, how many other, approximately, detainees did you have on POI

3

status or Suicide Risk at that time?

4
5

A.

Ma'am, I think--during my tenure I think there may have

been, to include Prisoner Manning, may have been a total of four.

6

Q.

[Pause] That's POI and Suicide Risk?

7

A.

Yes, ma'am.

8

Q.

And I believe you testified earlier the longest you've seen

9

anybody else on POI is 2 month.

10

A.

If that, ma'am.

I think I said "if that."

11

Q.

Now would that 2 months be because they had acted in a

12

manner that allowed them to be taken off POI or because at that point

13

they got all the paperwork signed and they were gone?

14

A.

To some of that, ma'am, they was in, they was out, or they

15

established themselves via communication and did the things that they

16

needed to do to come off POI.

17

really wasn't a long time, so I know I'm speaking off the cuff here,

18

but it wasn't a very long time.

So--but the majority of them just

19

Q.

When did you first come on board as the Brig O?

20

A.

Early July, ma'am.

21

Q.

Was that when the--Quantico was first becoming a facility

22

just for pretrial detainees?

5110

09001

1

A.

It was during that--that was the genesis of it, ma'am,

2

because I transitioned the facility into the pretrial facility.

3

can't remember the date, the exact date, but that was during that--

4

during that time frame.

5

Q.

I

When you transitioned Quantico to be a facility for

6

pretrial detainees, what was your understanding of the length of time

7

that people would--that your--Quantico was equipped to handle a

8

pretrial detainee?

9

A.

Pretrial was going to be a short time, maybe up to 90 days

10

they would have transitioned out for court; that was routinely what

11

they was looking at; and post-trial, a short time thereafter, no more

12

than 30 days after there was a sentence adjudged.

13

Q.

Is that written down somewhere?

14

A.

Yes, ma'am.

I think that's in the memorandum of

15

understanding for the pretrial confinement facilities.

16

think also the SECNAV may also speak about it, as well, the Level I

17

and pretrial confinement facilities; SECNAV talks about that as well.

[Pause] And I

18

Q.

I could be----

19

A.

Yes, ma'am.

20

Q.

---- mistaken.

21

A.

[Began to review exhibit.]

22

Q.

What gave--made you have the understanding that your

23

I thought the SECNAV said up to a year.

facility was to take pretrial detainees for 90 days or less?

5111

09002

1

A.

Yeah, ma'am, I'm looking at the memorandum of

2

understanding, new memorandum of understanding that was signed.

3

Normally, the pretrial confinement facility, like the Quantico

4

facility, is the facility that serviced the National Capital Region,

5

and it was expected because there was no other facility in the

6

vicinity it was expected to be a short-term facility.

7

Q.

What is the difference in resourcing for a facility that is

8

expected to be short-term pretrial detainee versus one I guess maybe

9

another level up that is expected--anticipated that they're going to

10
11

house pretrial detainees longer?
A.

Yes, ma'am.

Most--Number 1, the difference, ma'am, is a

12

Level I is basically self-sustaining.

13

own chow hall; you have your medical personnel.

14

earlier, you have your chaplain; you have all those in-house re----

15

Q.

And are you Level I?

16

A.

Now, ma'am?

17

Q.

Yes.

18

A.

At the facility I'm in now?

19

Q.

Yes.

20

A.

We just moved up to Level II.

21

Q.

No, no, no; no, no.

22

You have those--you have your
Like we said

I mean, with Quantico at the time,

what level was it, just so I understand----

5112

09003

1
2

A.

Quantico was Level I; then it downgraded to a Level--

pretrial confinement.

3

Q.

Okay, so the Level I is self-sustaining and that's what

4

Quantico was.

5

A.

It was, yes, ma'am.

6

Q.

---- I interrupted you.

7

A.

I'm sorry.

8

Q.

---- medical officer.

9

A.

Level I, you have your chow hall.

So, I'm sorry,----

You had your own----

You're able to feed--

10

you're resourced and your staff can feed the personnel.

You have

11

your independent corpsman or medical officer; chaplain.

You have

12

your work supervisor, which may be a civilian, and you have your own

13

administrative section, as well.

14

Q.

Now, help me clear up my confusion here.

We were talking

15

earlier about Quantico being designated as a pretrial confinement

16

facility for short-term pretrial confinements.

17

A.

Yes, ma'am.

18

Q.

Is a confinement facility that's for longer term pretrial

19

confinements a Level I or is that something different?

20

A.

Yes, ma'am.

21

Q.

So Level I is pretrial and post-trial.

22

A.

Yes, ma'am.

5113

09004

1

Q.

Okay.

So what would be the difference between how Quantico

2

was resourced once it became a pretrial confinement facility for

3

short pretrial confinements and a Level I facility?

4

A.

The difference would be manning would be a great

5

difference.

6

like the Quantico facility they planned to close the chow hall down.

7

You had to outsource and bring food in.

8

work supervisor billet job went away.

9

Q.

The facility was not a self-sustaining reduction in--say

The civilian personnel, the

When you were first notified that you were getting PFC

10

Manning, did you have--were you notified that this would be a

11

potential long-term pretrial confinement?

12

A.

No, ma'am.

We were not.

13

Q.

Did you know at the time that it could potentially be?

14

A.

No, ma'am.

15

Q.

Other than PFC Manning, what's the longest in your tenure

16

pretrial detention that you had approx--you don't have to know

17

exactly but approximately?

18

A.

At Quantico, ma'am?

19

Q.

Yes, after it became a pretrial confinement facility.

20

A.

I have no idea, ma'am.

[Pause] I think those individuals

21

who was already in the facility after we became a pretrial, I think a

22

lot of those individuals after I left they were still there.

23

just not----

5114

I'm

09005

1

Q.

So there may--there were people who were there in 2010 when

2

you got there as pretrial detainees were still there in 2011 when you

3

left?

4

A.

No, ma'am, actually weren't.

No, ma'am.

A lot of those

5

guys who had came in actually under my watch, maybe we say,

6

November/December time frame, they was there after I left and while I

7

was at Chesapeake, they came down to Chesapeake after they was

8

adjudged, so there may have been like anywhere from 90 to 120 days

9

for more--period of time.

10

Q.

So when you came in, in July of 2010,----

11

A.

Yes, ma'am.

12

Q.

---- during the period of time from July to January, was

13

there any pretrial detainee that had stayed at Quantico longer than,

14

say, 4 months?

15

A.

Not that I know of, ma'am.

16

Q.

So most of them were in that 90-day window that you were---

18

A.

Yeah; yes, ma'am.

19

Q.

---- you were talking about?

20

A.

Yes, ma'am.

21

Q.

Do you believe that Quantico was resourced to provide for a

17

-

22

pretrial detainee who was going to be there 6 months, 9 months, a

23

year, 2 years?

5115

09006

1

A.

No, ma'am.

2

Q.

What do you think was the farthest out edge that you

3
4

believe your facility was resourced for?
A.

I think after we downgraded to a pretrial confinement

5

facility, ma'am, and lost the normal resources, whether it was

6

manpower and other prisoners, we lost the capability to properly

7

sustain as an entity.

8

you know, whether it was prisoner escort around the base to medical,

9

dental, and things of that nature that was over in a medical

We lost the capability to properly perform,

10

facility, we lost that capability in a sense, you know, and by having

11

PFC Manning at that facility, you know, again, by being a high

12

visibility case, you know, normally when he moved about on the base,

13

the base was locked down as well, you know, because one thing about

14

it is when I--I think one time he went over to the medical--medical

15

branch clinic on the base and, you know, I was not going to allow him

16

to be paraded around through the front door where families, kids, and

17

everybody gawking, looking, and things of that nature, so prior to

18

moving out, I made sure that he was taken through a more secure area,

19

things of that nature.

20

the base may have had, as well, that, you know, everything had to

21

stop, you know.

22
23

Q.

So I think that was one of the issues that

[Pause] Did PFC Manning ever complain about being on POI

status to you?

5116

09007

1

A.

No, ma'am.

2

Q.

Well you got that 510 chit that one time.

3

A.

Yes, ma'am, that--I'm sorry--that one time that was--that

4

was dated 7 January and I received it on the 20th of January,

5

somewhere in that nature.

6

Q.

Just to make sure I understand your testimony, you said

7

even though it was dated 7 January, when you talked to PFC Manning,

8

he said he may have been confused on the dates.

9
10
11

A.

Yes, ma'am.

He said he may have been confused--may have

gotten--his exact words were he may have gotten his days mixed up.
Q.

So you believe, then, just to make sure I understand this,

12

you believe, then, that it was the chit was file--or put in the cart

13

sometime close to the 20th, not the 7th?

14

A.

That's what I think and I would have to believe that

15

because I know that I am diligent in checking my box; you know,

16

that's--that's--that's very serious.

17

Q.

[Pause] I just want to clarify your testimony with respect

18

to the SECNAV Instruction portion on, you know we talked about if you

19

put somebody on Suicide Risk and the psychiatrist comes back and

20

says, "No, I don't think he needs to be there,"----

21

A.

Yes, ma'am.

5117

09008

1

Q.

---- that "shall" language, did you think you have the

2

authority as the brig OIC to override what the psychiatrist said with

3

Suicide Risk?

4

A.

No, ma'am.

I understand what the--what the SECNAV say, you

5

know, the way I interpret it.

6

need to look at taking him off of Suicide Risk, okay, after he's

7

cleared.

8

Manning and I just really felt that due to what I--how I saw the--

9

Captain Hocter interacting and what I felt that he was not doing and

10

I questioned that and I would have hated to have had something and I

11

not know happened to PFC Manning.

12

Q.

Again, it's saying "shall," that I

I looked at the fact again, ma'am, in regards to PFC

So my understanding of your testimony to be, you knew what

13

the SECNAV Instruction required but you thought in this particular

14

case it didn't matter what it required, his safety was paramount and

15

you did what you had to do.

16

A.

Well, I said that not in that manner, ma'am, that I used

17

the word "shall" and not inter--interpreting that he was going to be

18

moved, but I just wanted to evaluate him a little bit more because it

19

didn't give me a time limit to say immediately or within 48 hours or

20

72 hours.

21
22
23

Q.

[Pause] You testified earlier about putting PFC Manning in

general population and the concerns that that caused you.
A.

Yes, ma'am.

5118

09009

1

Q.

Is that a proper consideration for either POI or MAX?

2

A.

His safety and well-being, ma'am, his safety and

3

well-being, meaning that I thought about, you know, what--I wanted to

4

and thought about ways, you know, him going through his custody

5

downgrading, that's what I mean.

6

downgrading, and I thought about, you know, the factor of putting

7

him, you know, if he--his behavior, you know, his behavior warranted

8

if he should get in general population the fact of him being around

9

other prisoners or the potential of what that could cause.

10

Q.

I thought about his custody

I guess where my confusion is lying there is because if you

11

downgraded his custody to MDI you could still put him in protective

12

custody, right?

13

A.

Yes, ma'am.

14

Q.

Which would be he would have more privileges and freedoms

15
16

than he would have under MAX POI, right?
A.

There may have been some--a few things that he could have

17

done more than if he was on protective custody, but I never

18

considered putting him on protective custody.

19

Q.

So when--I guess where I'm going with this is when you

20

were--was being away from the general population a consideration of

21

yours in whether to classify him maximum or MDI?

22
23

A.

No, ma'am.

I never looked at it as that or keeping him

away from the general population in that regard.

5119

I looked at his

09010

1

confining charges, and I looked at, you know, more so and thinking

2

that, you know, that he would hurt himself, harm himself.

3

Q.

So when deciding maximum custody not withstanding POI--well

4

were you looking at the fact that he was going--considering harming

5

himself as part of your maximum custody determination?

6

A.

Yes, ma'am, because of him--his background history, the

7

background summary, because of the incident in Kuwait, and things of

8

that nature, the making of the noose.

9

Q.

And I think you were asked this before.

If you made the

10

decision to remove him from POI at some point--I'm asking you to

11

speculate here a little bit here--would you have tried to make the

12

decision, then, to--would the custody determination be completely

13

independent for maximum versus MDI at that point or were they kind of

14

a package?

15
16
17
18
19

A.

It was kind of a package, ma'am, with the POI--the POI and

the MAX; it was kind of a package.
Q.

So was it primarily the POI that was driving the MAX, even

though there were other considerations?
A.

Although the MAX was driving, again, the 134, the potential

20

length of the alleged crime, that was the driving force and because

21

of the escape--escape risk and also the assault or potentially

22

violent and dangerous.

5120

09011

1

Q.

[Pause] So I guess I'm confused a little bit on if you said

2

you were going to remove him from POI, would you still--would you

3

still have been considering leaving him on maximum custody at that

4

time?

5

that's where I'm getting confused.

You had testified earlier they went as a package deal and

6

A.

Yes, ma'am.

7

Q.

It can't be both.

8

A.

You know, what I was saying, ma'am, I'm sorry about that,

9

you know, what we thought about, you know, and I said "we" because,

10

again, I challenged them, you know, the C&A board, I challenged them

11

on why this or why that and we would hope that something would just

12

be without issue or nothing going on and, you know, and I would have-

13

-honestly, I would have attempted to downgrade him and give him the

14

opportunity, you know, and if something was going to happen but I

15

would have hated to have also downgraded him and then something bad

16

happened, you know, so.

17

Q.

Downgrading him and have a risk that something bad would

18

happen, I mean, the his--I guess where I'm--his history isn't going

19

to change; it is what it is.

20

A.

Right.

21

Q.

Was there a possibility at some point that regard--with

22

that history there could be some possibility of him coming off the

23

POI?

5121

09012

1
2
3

A.

Yes, ma'am.

There possibly could be a potential of him

coming off at some point.
Q.

[Pause] Were you ever concerned that as time went on,

4

August, September, October, November, that your recommendation--the

5

C&A board's recommendations were consistently at odds with the

6

doctors and nobody was talking?

7

A.

Yes, ma'am.

I was very concerned about that, and I wish

8

Dr. Hocter and I would have had a better relationship, you know,

9

again, and to be truthful, you know, I think when--by--by not taking

10

PFC Manning off POI and I really think that it was more of he looked

11

at me as being a CWO4 and him being as a captain, you know, and I'm

12

not, you know, taking his recommendation and he kind of gave his--his

13

attitude was kind of like that.

14
15

Q.

So if--was his attitude because he was an O-6 and you were

a CW4 or because----

16

A.

Yes, ma'am.

17

Q.

---- he was a doctor and you weren't or both?

18

A.

I think both.

I think it may have been both, but I do

19

understand and see that there was a communication issue between he

20

and I and, again, never a trust because, again, I just didn't like

21

the fact that at the end of the day Dr. Hocter would, you know, come

22

over to the facility or he's made comments that he has another

23

patient waiting, you know, so that would sometimes upset me in the

5122

09013

1

sense that, you know, that I didn't think that he would run in, he

2

would do a--what he called a quick assessment, and then leave the

3

facility, you know, and, again, I think that by him stopping by my

4

office because I'd make sure I'm there because I know that he was

5

routine, he was consistent when he did come over in the evening time

6

at the end of the day and I know I would be there and he would run in

7

and run out.

8

come during--up in the day as well, but again, he wouldn't stop by my

9

office.

10

Q.

And there was some times during the day that he would

He would just come in the facility and leave out.
[Pause] You've been involved in corrections for 22 years.

11

Just give me a ballpark figure, just an average of pretrial

12

detainees, about how many at a given time, percentage, would have

13

mental health conditions?

14
15
16

A.

I've seen at least seven at the same time with a mental

health condition in the same status:
Q.

No, no.

I don't mean that.

three in Suicide---I guess let me ask the

17

question here.

If somebody has a mental health issue, does that

18

immediately put them on POI and Suicide--or Suicide Risk?

19

A.

[No response.]

20

Q.

Somebody arrives with ADHD or PTSD or anything----

21

A.

That would have been a determining factor in order for them

22

to go on MAX, ma'am, so I think that's more of a case-by-case basis,

5123

09014

1

as well, and I've seen it both ways.

2

seen that during my tenure, as well.

3
4

Q.

I've seen MDI, MAX MDI.

I've

So if a person arrives as a pretrial detainee and has a

mental health condition----

5

A.

Yes, ma'am.

6

Q.

---- but no history of trying to hurt themselves, would

7

they automatically be placed on POI?

8

A.

No, ma'am.

9

Q.

Would they automatically be placed in maximum custody?

10

A.

It's--like I said, it's a case-by-cases basis, ma'am.

I've

11

seen it--especially with the general population or prisoner

12

population of 150, let's say 150, and I've been at a 100--a facility

13

with a 180 prisoners and you're going to have those type of issues

14

going on, but you have your staff on hand.

15

psychiatrist or mental health specialist on staff to work the

16

facility and to work those cases, so when those individuals are in

17

Special Quarters, she sit at the board and she help facilitate that

18

and give them a treatment plan and things of that nature.

19

a active treatment plan and that's part of their plan of the day.

20
21

Q.

You have an on-staff

They have

In these facilities, are you talking about post-trial

detainees, actual sentenced inmates?

22

A.

Pretrial, as well, ma'am.

23

Q.

Pretrial as well?

5124

09015

1

A.

Yes, ma'am.

2

Q.

The Level I facilities that we were talking about that

3

could potentially house long-term pretrial detainees,----

4

A.

Yes, ma'am.

5

Q.

---- to your knowledge is it part of their resourcing to

6
7

have an in-house mental health provider?
A.

At some facilities, like our Okinawa facility and our

8

Lejeune facility and the Camp Pendleton facility, we had that; and

9

even the current facilities now, like I work at the Martin Day, they

10
11
12

have an on-staff Mental Health Department.
Q.

Is this the new facility that you work at; is that the one

at Chesapeake?

13

A.

Yes, ma'am.

14

Q.

And is that a Level I facility?

15

A.

It was just upgraded to a Level II facility, ma'am, with

16
17
18
19

full programming.
Q.

When it was a Level I facility, what kind of mental health

support did it have?
A.

Well we had a--upon opening the facility, we had a mental

20

health specialist as the Director of Mental Health in the facility,

21

so we started this facility--when we opened the facility up, we had

22

mental health on staff and now we have a full-time Mental Health

5125

09016

1

Department with approximately a staff of about 8 mental health

2

individuals.

3

Q.

In your 22 years of experience, have you had--have you been

4

in other facilities where you had mental health as an ad hoc duty at

5

the facility?

6

A.

7
8
9

Yes, ma'am, the Ford Island facility at Pearl Harbor,

Hawaii, and that was years ago but they was way ahead of the game.
Q.

[Pause] Because I believe--just talking about the C&A

boards, you talked to me about in July they had a hard copy form and

10

started using a hard copy form--the board started using a hard copy

11

form again in January.

12

A.

Yes, ma'am.

13

Q.

What is your understanding of what is required to document

14

a C&A board?

15

A.

We use--as long as it's recorded----

16

Q.

What is, I mean, just the result or the--or a process of

17

some kind?

18

A.

The process, ma'am.

19

Q.

And assuming you were going into CORMIS and--is the process

20

recorded as it's being done or is it recorded by somebody afterwards?

21

A.

It's recorded by someone afterwards, ma'am.

22

Q.

And who would be in charge of that?

23

A.

That would be the senior--chief counselor.

5126

09017

1
2
3

Q.

And is there some sort of format that it is supposed to be

reported in CORMIS?
A.

Just on the prisoner--I forgot what number page it is, as

4

well as you have the classification and assignment--I'm sorry--the

5

daily change sheet, daily change roster, as well.

6

Q.

And if I understood your testimony, it's the data--daily

7

change sheet that you saw and when you received an oral briefing when

8

you decided----

9

A.

Right.

10

Q.

---- to.

11

A.

Yes, ma'am.

12

Q.

When you received PFC Manning, I believe that was on the

13

29th of July,----

14

A.

Yes, ma'am.

15

Q.

---- and you testified earlier, I believe, you had

16

accompanying documentation.

17

have it before?

18

A.

Would that arrive with him or did you

That arrived with him, ma'am.

I had no paperwork in

19

regards to--I personally had no paperwork in regards to PFC Manning

20

nor did my staff.

21

Q.

When you got these documents, did they include PFC

22

Manning's history in Kuwait or did they go back and include the

23

history at Fort Drum?

5127

09018

1

A.

History in Kuwait, ma'am.

2

Q.

Were you ever aware of any history of PFC Manning at Fort

4

A.

No; no, ma'am.

5

Q.

Did you ever become aware of any history of PFC Manning at

3

6

Drum?

Fort Drum?

7
8

A.

I don't think I have any idea of what you're talking about

now, ma'am, in regards to Fort Drum.

9

Q.

I--sometimes the records that you have from one facility

10

will have compiled other things that they have gotten from a history

11

from before.

12

A.

No, ma'am.

13

Q.

Did the Kuwait records have anything prior to the

14

confinement in Kuwait?

15

A.

No, ma'am.

I didn't see anything from Fort Drum.

I just

16

saw the write-up from the doctors in Kuwait and that was basically

17

it.

18

Q.

[Pause] Going back to the January time frame,----

19

A.

Yes, ma'am.

20

Q.

---- you testified earlier that I believe that you and

21

Gunnery Sergeant Blenis, you were thinking at some point in December

22

or January that maybe it was time to consider taking PFC Manning off

23

of POI; am I--is that right?

5128

09019

1

A.

Yes, ma'am.

2

Q.

Would that have been before the--I believe the meeting was

3

on the 14th with the one that got a little heated with Colonel Oltman

4

and Colonel [sic] Hocter?

5
6

A.

I think it may have been--I think it was after that, ma'am.

I'm thinking it was after that.

7

Q.

I don't remember.

Because I was going to say if you all were thinking about--

8

if you think it's after that, this question isn't going to make any

9

sense, but I was thinking if you all were thinking about taking PFC

10

Manning off of POI somewhere around that meeting between Colonel

11

Hocter and Colonel Oltman.

12

A.

Yes, ma'am.

13

Q.

Did you ever think about saying something to the effect

14

that:

15

about it?

16

Everybody, let's not get excited.

A.

No, ma'am.

We're still--we're thinking

I did not think to say nothing during that time

17

frame of that meeting.

18

meeting and before January the 18th meltdown, yes, ma'am.

19
20

MJ:

Like I said, I think it was more after that

Okay, Counsel, rather than me go through dozens of pages of

notes, can either side tell me what the date of that meeting was?

21

CDC[MR. COOMBS]:

14 January, ma'am.

22

ATC[CPT VON ELTEN]:

At approximately----

5129

09020

1
2

Q.

would have been a 4-day period that you were----

3
4

A.
maybe.

5
6

So it would have been between 14 and 18 January, so it

Q.

I think it was probably around that time frame then, ma'am,
You know, that's kind of tight right there.

I'm not sure.

And you were questioned about those notations that you put

in the weekly reports about waiting for the 706 board and----

7

A.

Yes, ma'am.

8

Q.

---- directive and I believe your testimony was, so that

9

wasn't really an order.

If, say, on the 5th of January, the 12th of

10

January, or any time that that language was in there, if the C&A

11

board came to you and said, "Well, you know, we're considering now

12

taking PFC Manning off of POI and/or MAX," would you have considered

13

that?

14

A.

Yes, ma'am.

If the C&A board had came to me with that,

15

yes, ma'am, I would have because I know they would have good reason

16

to come to that and they really believed in what they was saying

17

because it was an objective board.

18

the hard question why.

19

Q.

And I would--I would have asked

Why?

Okay, hold on.

I have to go back to the end of my notes

20

now and write this down.

21

is on the 18th of January, 2011, when you were talking to PFC Manning

22

and he was saying things that you perceived to be disrespectful,----

23

A.

[Pause] The last couple of questions I have

Yes, ma'am.

5130

09021

1

Q.

---- did that make you angry?

2

A.

No, ma'am.

It was just the fact that, you know, when he

3

was yelling, I figured, you know, and I asked him to sit down

4

[cleared throat]--excuse me--I asked him to sit down and I was trying

5

to talk to him, you know, because, again, I had never seen him in

6

that manner.

7

of it was loud, other prisoners was in the--in the--in Special

8

Quarters, they could potentially hear what was going on, so it was

9

important in regards to the discipline side of the house, so I, in

It did not make me angry, but it was--you know, because

10

fact, let Prisoner Manning know where he's at, he is in confinement,

11

and my position as well, so it did not make me angry because I've

12

dealt with that type of stuff before.

13
14

Q.

[Pause] Did your placement of PFC Manning on the 18th of

January into Special Move Suicide Risk----

15

A.

Yes, ma'am.

16

Q.

---- have anything to do with your being angry and wanting

17

to punish him?

18

A.

No, ma'am, by no means; by no means.

19

Q.

So it was done for his safety.

20

A.

Yes, ma'am, definitely, and I was very concerned.

As I

21

stated, in my 22 years I have seen that look.

22

on another prisoner who actually attempted suicide and I was very

23

concerned about PFC Manning; that's why I would do the safety things,

5131

I have seen that look

09022

1

you know, because I didn't want him being humiliated.

You know, I

2

had a staff specifically working in Special Quarters.

I would not

3

allow people who did not--although they was my brig staff, if they

4

were not trained in Special Quarters, they could not even go in

5

Special Quarters.

6

face didn't help, yes, ma'am.

7
8

MJ:

Thank you.

I don't think I have any other further

questions.

9
10

I was very concerned about PFC Manning and his

Does either side desire any additional questions based on
mine?

11

ATC[CPT VON ELTEN]:

12

MJ:

Go ahead.

13
14

Yes, ma'am.

REDIRECT EXAMINATION
Questions by the assistant trial counsel [CPT VON ELTEN]:

15

Q.

Chief Warrant Officer Averhart,----

16

A.

Yes, sir.

17

Q.

---- what's a DA board, Delta Alpha?

18

A.

Disciplinary adjustment board, sir.

19

Q.

And what is its purpose?

20

A.

Its purpose is to if a prisoner should get a disciplinary

21

report, a board will convene to--because they have the authority also

22

in the facility to render punishment for infractions that may violate

5132

09023

1

the prisoner rules and regulation, so a disciplinary adjustment board

2

would meet in that regards.

3

Q.

Did PFC Manning ever go before a DA board?

4

A.

No, sir.

5

Q.

So was PFC Manning on administrative segregation or

6

disciplinary segregation?

7

A.

It was more of administrative, sir.

8

Q.

More or----

9

A.

It was administrative, sir.

10

Q.

Let's talk a little bit about sunshine call and the

11

process----

12

A.

Yes, sir.

13

Q.

---- of a maximum custody detainee.

14

A.

Yes, sir.

15

Q.

How did--how does that happen?

16

A.

How does it happen for him----

17

Q.

What's the first step in the process of taking a maximum

18

custody detainee to sunshine call?

19

A.

To sunshine call outside, sir?

20

Q.

Yes.

21

A.

Basically if you want to take a maximum security, you get

22

the proper escorts in place to prepare for the move; you call--give

23

your facility time to lock down and you would lock the facility down;

5133

09024

1

you would get the prisoner--the prisoner would be dressed; and you

2

would escort him from his living quarters to the area in which he's

3

going to conduct his recreation call or sunshine call at and you take

4

the opportunity, again, once he get in his secured area, then you

5

will commence normal operation until it's time for rec call is

6

secured to get him back and you go through the reverse order back to

7

his living quarters, locking the facility down and make sure you have

8

the proper security and escorts set.

9

Q.

How much manpower does that require?

10

A.

Anytime you have prisoners outside in the recreation yard,

11

you have to have rovers outside the perimeter, as well as your guards

12

who are escorting him, so a normal operation at least four

13

individuals will ensure that security is set for rec call.

14

your two that are escorting; then you also have your rovers on the

15

outside, external of the entire perimeter, just standing by posted.

You have

16

Q.

Does that take away supervision from other detainees?

17

A.

Sure, sir; yes, sir.

It doesn't take away supervision from

18

other detainees, but the fact is you would normally have the manpower

19

on that watch section to continue the operation.

20

extenuating factors whereas you're at your minimum manning, your

21

minimum manpower on that watch section, then you have to make the--

22

that duty brig supervisor will make the choice then in order to carry

23

out the plan of the day what to secure, whether it's going to be

5134

If there should be

09025

1

maybe rec call, sunshine call, or that's for the entire population or

2

whatever the case may be and he would normally report --if he could

3

not carry out the normal plan of the day, he would then report what

4

did not get carried out and why; and there have been times because of

5

manpower issues someone had to depart the facility for an emergency

6

situation during the day.

7

escorts or temporary release that's out, you know, the brig is

8

escorting individuals to medical, dental, or some type of appointment

9

elsewhere and your manpower can actually diminish in a period of

10
11
12

time.
Q.

Would you say all of that coordination can place a burden

on a brig?

13

A.

14

ATC[CPT VON ELTEN]:

15

MJ:

16

CDC[MR. COOMBS]:

Sure; yes, sir.

19
20

Thank you.

Defense?
Yes, Your Honor.

17
18

Some things--you may have three or four

RECROSS-EXAMINATION
Questions by the civilian defense counsel [MR. COOMBS]:
Q.

You were at the Security Battalion before you took over as

the brigade OIC, correct?

21

A.

As the brig OIC, yes, sir.

22

Q.

And at the time that you were at the Security Battalion was

23

the brig a Level I facility?

5135

09026

1

A.

It was a Level I, sir.

2

Q.

About how many detainees do you recall the facility held as

3

a Level I?

4

A.

Well prisoners or detainees?

I mean----

5

Q.

Both, just----

6

A.

Well, I think they probably had about--they can hold a 100-

7

-about 150, but they probably had about--I didn't keep up with brig

8

issues because I was working in a whole different department.

9

think they probably had at one time about 40 at that facility,

I

10

because, again, they was in the process of down--downsizing, and

11

although that process was not vast until the--we actually

12

transitioned to a pretrial confinement facility, then the population

13

went away.

14
15

Q.

And you said that as a pretrial confinement facility, you

lost some of your resources, correct?

16

A.

Yes, sir.

17

Q.

So how many detainees do you think you were--you had the

18

sufficient manpower in order to hold as pretrial confinement

19

detainees?

20

A.

[No response.]

21

Q.

Like what would be your max outer limit before you'd say,

22

"You know what?

We don't have enough staff to manpower this"?

5136

09027

1
2

A.

[Pause] I think it would probably have been--prisoners and

detainees altogether or just the----

3

Q.

Well if I'm understanding you correctly, when you go to

4

pretrial confinement, you're going to have your pretrial confinement

5

detainees----

6

A.

Okay, right.

7

Q.

---- and then you're just going to have your post-trial

8

that are just waiting to get shipped out to somewhere else, right?

9

A.

Yes, sir.

10

Q.

So how many detainees do you think you could hold when you

11

were now a pretrial confinement facility with the manpower that you

12

had?

13
14
15
16

A.

I would say with that current living condition, we probably

could hold probably 15 to 20.
Q.

And would that be 15 to 20 where you would have sufficient

manpower to do your plan of the day?

17

A.

Yes, sir.

18

Q.

And anything more than that I guess then you would--you

19
20

would not have sufficient manpower.
A.

Right, because before--actually doing it--before I actually

21

took control of the facility, the prisoners that were in general

22

population, they had--in operation with their open-squad bay and the

23

previous--the prior commanding officer, due to manpower lost, they

5137

09028

1

had put everyone in Special Quarters, which freed up a lot of bodies

2

to do other things in the facility to carry out the plan of the day.

3

Q.

Now with PFC Manning there as a max detainee,----

4

A.

Yes, sir.

5

Q.

---- that obviously was a manpower drain on your

6

resources,----

7

A.

Sure;----

8

Q.

---- right?

9

A.

---- yes, sir.

10

Q.

How many max detainees do you think you could have in your

11
12

facility before it would be too much of a drain?
A.

I think at one--at one given time, I think I had four, to

13

include PFC Manning; at that one given time, for a period of time, I

14

think I had three or four, I'm not sure, sir, but I think it was

15

three or four.

16

Q.

And was that--I guess you could handle three or four?

17

A.

I could handle three or four.

18

Q.

And would there be an outer limit where you could not

19
20

handle more max detainees?
A.

If I would have had five or six, then we would have had

21

problems; and what I mean by "problems," before I can do a mass

22

movement, I would have to have augmented from somewhere and took

23

bodies maybe from my day section and minimized my day watch to put

5138

09029

1

into my security set.

2

scheme of maneuver to make it happen.

3

Q.

You know, I would have to come up with some

And if I understand some of your answers to Colonel Lind's

4

questions, am I correct in saying that 90 days would have been your

5

preferred amount of time to hold a pretrial confinement detainee----

6

A.

Yes, sir.

7

Q.

---- as that outer max?

8

A.

Right.

9

Q.

And why is that?

10

A.

Because it was just stated as a pretrial confinement

11

facility and, you know, as sticking with the guidance, you know, and

12

I think it was 90 days to no more than 120 that those individuals

13

should transition in and out.

14
15

Q.

And is there a reason why after 90 days you would--you

would not want to have the detainee still at your facility?

16

A.

You know, sir, I don't get caught up in that; my job is

17

just to--it's a correctional officer.

18

lawyers and Headquarters, Marine Corps, you know, once they designate

19

the time prerequisite, you know, and they send the individual to the

20

jail due for confinement, you know, I don't get into a lot of--a lot

21

of stuff with the lawyers and things of that nature; that's not my

22

job.

5139

You know, the individual's

09030

1

Q.

No, no, but what I was asking was, is there a reason in

2

your mind that you thought 90 days would have been the outer limit

3

for you wanting to hold on to somebody?

4

A.

Well I think that--not that I wanted to hold on to them.

5

In fact, the guidance or--and I'm thinking in the MOU, memorandum of

6

understanding, which was signed for the pretrial and new table of

7

organization, that it was up to 90 days for pretrial, and I could be

8

mistaken, sir.

9
10

Q.

But from your standpoint as a commander, was there a reason

why, other than the MOU, that 90 days would be your outside limit?

11

A.

No, sir.

12

Q.

So I guess if the MOU said 240 days, you would have been

13
14

I have no idea.

fine with 240 days?
A.

Yes, sir, because that's what the guidance says.

You know,

15

I don't--again, you know, I monitor that type of stuff and I would

16

try to keep stats on it because I have done that in the past, keep

17

stats on how long an individual is in confinement; and, again, I--

18

sometimes I would let legal know, the SJA know, base SJA know how

19

long the individual and try and get a status on them as well.

20

Q.

Is there a correlation between the length of time

21

somebody's in a pretrial confinement status and the resources you may

22

need to provide to them?

23

A.

Is there?

5140

09031

1

Q.

A correlation between the amount of time they're in

2

pretrial confinement and maybe the resources that you might need to

3

start to provide to them the longer they're there?

4

A.

Well, sure, there's a correlation, sir, because, again, you

5

have an individual in pretrial confinement and the longer he's in

6

pretrial confinement, he may get anxious; that's a possibility.

7

Sure, anything is possible, but, again, I don't worry about, you

8

know, why because I'm sure that their attorney's monitoring that type

9

of stuff and trying to get their client to trial as soon as possible.

10

CDC[MR. COOMBS]:

11

Okay.

Thank you, Chief.

12

WIT: Yes, sir.

13

MJ:

14

ATC[CPT VON ELTEN]:

15

MJ:

All right, anything else for this witness?
No, ma'am.

All right, CW4 Averhart, you are temporarily--or you are

16

permanently excused physically, but I'd like you to leave your cell

17

phone number with a representative from the government so we can

18

contact you if we need to have anything further for these

19

proceedings.

20

WIT: Aye, ma'am.

21

MJ:

Please don't discuss your testimony or knowledge of the

22

case with anyone other than counsel or the accused while the

23

proceedings are still going on.

5141

09032

1

Thank you.

2

WIT: Aye, aye, ma'am.

3

Okay, ma'am.

[The witness withdrew from the courtroom.]

4

MJ:

All right, do the parties have a proposed order of march?

5

ATC[CPT VON ELTEN]:

Ma'am, the United States recommends that we

6

recess for the night and start tomorrow morning at 0930 with Chief

7

Warrant Officer 2 Barnes.

8

MJ:

9

CDC[MR. COOMBS]:

10
11

MJ:

Any objection?
No, Your Honor.

Anything else we need to address before we recess the court

for the evening?

12

CDC[MR. COOMBS]:

13

ATC[CPT VON ELTEN]:

14

MJ:

15
16

No, Your Honor.
No, Your Honor.

Court is in recess.

[The Article 39(a) session recessed at 1839, 6 December 2012.]
[END OF PAGE]

5142

09033

1

[The Article 39(a) session was called to order at 0933, 7 December

2

2012.]

3

MJ:

This Article 39(a) session is called to order.

Let the

4

record all parties present when the court last recessed are again

5

present in court.

6
7

Do we have anything we need to address before we call the
next witness?

8

TC[MAJ FEIN]:

No, ma’am.

9

CDC[MR. COOMBS]:

No, Your Honor.

10

MJ:

Please call the next witness.

11

ATC[CPT VON ELTEN]:

12

Warrant Officer Denise Barnes.

13

CHIEF WARRANT OFFICER DENISE BARNES, U.S. Marines, was called as a

14

witness for the prosecution, was sworn, and testified as follows:

15
16
17
18

Ma’am, the United States calls Chief

DIRECT EXAMINATION:
Questions by the assistant trial counsel [CPT von Elten]:
Q.

And for the record you’re Chief Warrant Officer Two Denise

Barnes, Deputy Inspector General, Marine Corps Base Quantico?

19

A.

Yes, sir, I am.

20

Q.

Thank you.

21

A.

Thank you.

22

Q.

Chief Warrant Officer Barnes, how long have you been a

23

Marine?

Please be seated.

5143

09034

1

A.

For 16 years and 8 months, sir.

2

Q.

And how long have you been in corrections during that time?

3

A.

15 years and 8 months, sir.

4

Q.

What kind of schooling have you attended as -- in

5

corrections?

6

A.

Sir, from Basic Correctional Specialist Course.

Then I

7

volunteered to attend the Naval Correctional Counselors Course in

8

Lackland.

9

Q.

And when did you become a warrant officer?

10

A.

In February of 20 -- February of ’08, sir.

11

Q.

What are some of the correctional positions you’ve held?

12

A.

Pretty much all of them, sir.

13

I’ve been a mailroom clerk.

14

been a watch stand.

15

administrative chief.

16

as a programs chief from time to time.

17

Q.

I’ve been a master control NCO.

I’ve been a counselor.

19

brig?

21
22
23

And I’ve also stood in

Let’s talk a little bit about your time at Marine Corps

Base Quantico, the brig there.

A.

I’ve

I’ve been a duty brig supervisor -- been the

18

20

I’ve been a dorm supervisor.

How long were you the OIC of the

I took over 24 January of 2011, sir.

And I left in

February of this year -- February 21st of this year, sir.
Q.

When did you begin the process of selecting assignments

that ultimately led you to Quantico?

5144

09035

1

A.

Well in the summer of 2010 at the American Correctional

2

Counselor -- American Correctional Association Conference,

3

Headquarters Marine Corps, we meet as a group for a couple of days

4

prior to the actual conference.

5

Warrant Officer Galaviz and some other staff was talking to us about

6

potential orders.

7

the order that we preferred the, sir.

And there was a meeting where Chief

And we were asked to pick three duty stations in

8

Q.

And when did you receive your orders for Quantico?

9

A.

Approximately October of 2010, sir.

10

Q.

What was your duty title at the Quantico Brig?

11

A.

I was the Brig Officer-In-Charge, sir.

12

Q.

And what were your responsibilities as the Brig OIC?

13

A.

Overall to ensure the custody and, you know, safe operation

14

of the facility every day, sir, so to maintain custody and control,

15

sir.

16
17

Q.

When you assumed command of the Quantico Brig what kind of

detainees were there?

18

A.

Well we had a mixture.

We have regular detainees.

We also

19

had some post-trial because even in the pretrial facility we do get

20

some post-trial for a short period of time.

21

sir.

22

assignments and statuses, sir.

23

So we had a mixture,

We had maximum custody, medium in custody, different work

Q.

What did you do to prepare to become the OIC of the

5145

09036

1
2

Quantico Brig?
A.

Well, sir, I actually had a little bit of experience.

3

duty station before that in Okinawa, I started out as the Brig

4

Officer.

5

relief of the previous CO there.

6

The

Then I moved up to become the Commanding Officer upon

Also I actually had a little experience there with the --

7

some of the things I was doing was just, you know, making sure that I

8

had a -- a list of things to accomplish when I got there and

9

officially took over such as addressing the staff, you know, letting

10

them know, hey, you know, I’m different from Chief Warrant Officer

11

Averhart.

12

what I expected from them as Marines, sailors, airmen.

13

explained to them what type of leadership they can accept -- they can

14

expect from me.

15

to them that I under -- I was well informed of everything that was

16

taken place prior to my arrival; the threats, the issues with phone

17

calls, and that kind of thing.

18

is our job, this is what we do every day.

19

professionalism.

20

stress is too much, you need to let me know.

21

you get help.

22

how the facility is running, when was the last time they were

23

inspected, that kind of thing, sir.

I don’t use a cookie cutter approach.

I explained to them
I also

One of the other things I did was to kind of explain

And I just reiterated to them; this
I expect 100 percent

And in the event, you know, you feel that the
We’ll make sure that

So just talking to the staff kind of going back to see

5146

09037

1

Q.

What threats and issues were you talking about?

2

A.

Well when I was changing over with Chief Warrant Officer

3

Averhart, I was briefed that the staff would get a lot of threatening

4

phone calls.

5

possibly being targeted.

6

call the lines all throughout the day and just either hang up or say,

7

you know, very mean things -- threaten them.

8

wish that on anybody.

9

reasons why when I came in I made it a point to let them know they’ve

10

done a great job up until that point, and they have to continue to be

11

professional.

12

Privacy Act and give information out.

13

to -- to endure that and be as professional as they can.

Them -- themselves or their families were, you know,
People would call and harass -- they’ll

It was -- sir, I don’t

It was very distressing.

We cannot answer questions.

So that’s one of the

We don’t violate the

So they just have to continue

14

Q.

And who briefed you?

15

A.

What’s that, sir?

16

Q.

Who briefed you?

17

A.

Chief Warrant Officer Averhart, sir.

18

Q.

Let’s talk a little bit about your first actions when you

19
20

took over the brig.
A.

What steps did you take?

Well one of the first things, again, sir, I did was make

21

sure that I talked to each security section.

We had three.

I talked

22

to them.

23

security schedules; covered leadership; covered the types of things

I also talked to the -- the staff that was not on those

5147

09038

1

that I expected.

2

leader.

3

brush things under the rug.

4

where I have to make, you know, negative recommendations or get -- or

5

if they have to be, you know, they get in trouble and that kind of

6

thing, that it’s out of my hands once I make that recommendation and

7

that I don’t brush things under the rug.

8
9

I told them what they can expect from me as a

I also told them that despite the circumstances I don’t
And if they put me in a position to

One of the other things that I did aside from addressing
the staff and setting expectations was just going through the

10

facility, finding out if there were major issues with the structure -

11

- anything like that.

12

functional adequacy inspection they had by Headquarters Marine Corps

13

to find out were they mission capable or not; they were.

14

Also talked about -- was looking into the last

The other thing I did, sir, was to talk to all the inmates.

15

I -- the same thing; I let them know, you know, hey, I’m the new CO

16

in case you didn’t know.

17

them, which is to follow rules and reg’s.

18

them that it’s not worth it to argue with guards or be

19

unprofessional.

20

to them that there’s a CO’s mailbox, and I’m the only one with that

21

key.

22

510 to talk to me in private about that issue.

23

I explained to them what I expected of
But I also explained to

I need to know if things are going on.

I reiterated

So if they had a problem or concern they could submit a DD Form

The other thing I talked about was their behavior.

5148

I just

09039

1

reminded them that it’s important that they don’t get written up or

2

disciplinary reports because if we’re asked for a progress report, we

3

have to put everything in there; good, bad, and just be objective.

4

And that might come into play if they get found guilty and if they

5

get sentenced.

6

understood, you know, it’s probably in my best interest to -- you

7

know, to perform well as an inmate and that kind of thing.

8
9

So I stressed that point to them so they kind of

So I just kind of talked to them and let them know, hey, I
hold the staff accountable.

I have no issues.

If you bring it up to

10

me -- feel comfortable to talk to me about anything.

11

them an opportunity to ask me questions, you know, and they -- they

12

pretty much didn’t.

13

Q.

And I allowed

Let’s talk about a few of things you just mentioned.

Would

14

-- in your correctional experience what would members of a brig staff

15

tell detainees at other facilities about progress reports?

16

A.

They would basically tell them the same thing that I did,

17

especially the counselors.

They’ll talk to them about why it’s

18

important to receive good work and training reports.

19

important to utilize the system.

20

prisoners to use for redress.

21

there.

22

use the chain-of-command.

23

command visits or any other time of issues.

Why it’s

There’re some many systems for

They can request mast while they’re in

They can talk to me one-on-one if there are issues.

They can

They certainly can inform their command at

5149

09040

1

So, you know, they would tell the inmates, hey, look, make

2

sure you use all your avenues to address issues rather than acting

3

out or taking it upon yourself because, again, we don’t initiate

4

those progress reports like, you know, we don’t call and say, hey,

5

your client is not doing well.

6

progress -- we don’t -- we don’t typically do that.

7

to them and we’re up front with them to let them know if we are asked

8

to provide one, it’ll have everything in there; good and bad, and

9

that it may affect them later at sentencing.

10
11
12
13

Q.

We’re going to do a progress -- a

How many detainees did you meet with upon taking command of

the brig?
A.

I don’t recall, sir.

There really wasn’t that many.

Q.

Did you meet with all of them?

15

A.

Yes, sir, I did.

16

Q.

Let’s talk a little bit about PFC Manning.

18

I

know we were not to full capacity.

14

17

But we do speak

What did you

know about PFC Manning prior to assuming command?
A.

Pretty much just what was in the news, you know, that he

19

was accused of leaking classified material.

But that was it.

20

of made it a point not to really get into, you know, whatever it is

21

they were reporting.

22

you know, as far as I’m concerned, he’s one detainee of many that I’d

23

be responsible for.

A lot of times it’s just sensationalism.

I kind

And,

So other than that, sir, that was pretty much

5150

09041

1

it.

2

Q.

When did you first speak with PFC Manning?

3

A.

January 24th, when I spoke to all the other inmates, sir.

4

Q.

And what did you discuss with him?

5

A.

I pretty much said the same thing I said to the other

6

inmates.

But I had a little extra time with him because I explained

7

to him that any extra privileges he was granted by Chief Warrant

8

Officer Averhart that those were still in effect; I’m not changing

9

those.

We talked about things like extended visits, if he wanted

10

more rec call; I told him I’m willing to do that.

So he just needed

11

to maintain the lines of communication and just let me know what he

12

wanted.

13

most part except that I understood his situation -- his conditions,

14

and I let him know that I was willing to extend those without a

15

problem.

So this -- just something -- again, the same speech for the

16

Q.

17

status?

18

A.

Could you repeat the question, sir?

19

Q.

What did you do about all the custody -- the custody and

20
21

What did you do about all of the detainees’ custody and

status for all the detainees?
A.

Oh, that’s one other thing I did, sir.

When I did take

22

over I instructed the brig supervisor that I wanted an independent

23

review -- my own review of all the inmates.

5151

Just coming in -- I

09042

1

mean, Chief Warrant Officer Averhart did what he did.

I wasn’t

2

concerned with that, and I don’t use a cookie cutter approach to

3

leadership.

4

make their recommendations so I can review them individually and make

5

sure that they’re properly classified.

So I asked them specifically to review every inmate and

6

Q.

What documentation did you review for PFC Manning?

7

A.

Well I looked at his entire record book.

8

everything we had received from Kuwait.

9

from his command; I looked at all of that.

Looked at

Any -- anything in his book
I looked at his intake

10

paperwork when we -- when we got him.

I looked at the stuff that he

11

filled out.

12

about everything in his records -- the confinement order and

13

everything.

I looked at the initial custody classifications.

14

Q.

Would that include the charge sheet?

15

A.

Yes, sir.

Just

Initially it was just a confinement order and

16

some other paperwork.

17

charges in there, sir.

And, yes, there was some wording of the

18

Q.

Do you remember what he was charged with at that time?

19

A.

At the time the confinement order had 128, sir.

And there

20

was one Article 131 for wrongfully, I guess, releasing government

21

information.

22

Q.

23

Let’s talk a little bit about some of the initial

determinations you made for PFC Manning.

5152

What privileges of Chief

09043

1

Warrant Officer Aver -- that Chief Warrant Officer Averhart had

2

granted PFC Manning did you continue?

3

A.

He had on extra hour of correspondence time; I kept that

4

up.

I know he -- initially there was a problem with the heat there,

5

whatever, and they were allowed to wear sweats during the day.

6

wasn’t an issue for me when it was cold.

7

know if he needed extended recreation call, I’m willing to do that as

8

well.

That

The same thing, letting him

That’s pretty much it, sir.

9

Q.

What about visitation?

10

A.

Yeah, visitation wasn’t -- was not affected.

As a matter

11

of fact, I was aware that some of his family would be visiting from a

12

distance.

13

know, he’s certainly welcome to ask for that.

And I explained to him about extended visits and that, you

14

Q.

And why did you grant PFC Manning visitation privileges?

15

A.

Well there was no reason to deny that, sir.

I mean,

16

visitation is not taken away unless they’re a disciplinary problem or

17

anything.

18

sir.

19
20
21

Q.

So visitation -- him getting visits was never an issue,

What about authorizing PFC Manning to speak to other

detainees in a low conversational tone?
A.

That was never an issue as well, sir.

There were people

22

housed next to him from time to time, which is certainly fine.

23

I’ve never had an issue with that.

5153

I just caution all detainees

And

09044

1

though not to discuss their charges --

2

Q.

Do you know --

3

A.

-- or alleged charges.

4

Q.

-- do you know if PFC Manning spoke to the other detainees?

5

A.

You know, I’m not too sure.

They told me he would

6

interact, but me myself, I just didn’t see it.

But I was told that,

7

yes, he did speak to other detainees from time to time.

8

Q.

What about phone privileges?

9

A.

That was never taken away, sir.

10

Q.

Why was PFC Manning granted phone privileges?

11

A.

All detainees are allowed phone privileges unless they

12

abuse the phone system, maybe they call and they’re threating -- for

13

example; threating somebody or contacting somebody that’s on the

14

victim/witness list or something like that.

15

are not -- are not an issue, sir, again, unless the privilege is

16

abused.

17

Q.

What about television privileges?

18

A.

Same thing, sir; that was not denied.

But normally the phones

So he was allowed phone calls and visits.

There was a TV

19

mounted on the -- on the little stand that was rolled in front of his

20

cell.

21

to watch, sir.

And he could pretty much, you know, tell them what he wanted

22

Q.

How much could PFC Manning watch television?

23

A.

Usually it’s an hour in the evening, sir.

5154

And then on the

09045

1

weekends, you know, if there’s nothing else going on and no issues,

2

more if needed.

3
4
5

Q.

What about -- you mentioned correspondence privileges.

What did you do for correspondence privileges?
A.

Again, sir, that wasn’t limited.

You know, inmates are

6

allowed to write.

7

allowed to send or receive.

8

that the -- that the -- when they get mail, that we scan it properly,

9

especially in his case.

10
11
12
13

There’s no limit on how many letters you are
The only thing we do is just make sure

So we just, again, when the -- the concern

for all detainees at heart, we just scanned the mail pretty good.
Q.

And how much time could PFC Manning spend engaging in

correspondence?
A.

As much as he chose, sir.

That was -- that was pretty much

14

his choice.

So, again, he had two hours of correspondence time.

15

That was extended an hour by Chief Warrant Officer Averhart.

16

didn’t change that.

17

Q.

Why did you continue it?

18

A.

I didn’t have a problem with it, sir.

And I

Certainly I

19

understand he’s been -- he had been in the -- in our custody for a

20

while -- in that custody and status for a long time, so for me, I

21

feel that if -- if we’re seeing positive behavior and we can do

22

things to help out, whether they request it or not, you know, I don’t

23

have issues with something like that; granting extra rec call or

5155

09046

1

extra correspondence time.

I didn’t have an issue with that.

2

Q.

And what about library privileges?

3

A.

The same thing.

They had a lot of books on the cart, and

4

they would roll the cart around.

5

to read it.

6

opportunity to request maybe a magazine subscription, that kind of

7

thing.

8

facility, they can request subscriptions of magazines or request that

9

somebody sends magazines or books of whatever type as long as it was

10

He can pick something off of there

If he wasn’t interested, certainly he had the

So if they didn’t like pretty much what we had in the

approved in advance.

11

Q.

And what about recreation call?

12

A.

That went fine.

He would -- I know sometimes he chose not

13

to do recreation call.

14

voluntary statement saying that he chose not to have rec call.

15

he would take full advantage of the recreation area.

16

a couple of times myself.

17
18
19
20
21
22
23

Q.

But

I observed him

So.

Let’s talk a little about some of the restrictions placed

on PFC Manning.
A.

And, you know, we just had him fill out a

Why was he required to wear restraints?

All maximum custody detainees are required to wear

restraints when outside the cell, sir, not just Manning.
Q.

Why are maximum custody detainees required to wear

restraints?
A.

Per the SECNAV, sir.

That’s -- that’s the guidance in the

5156

09047

1

SECNAV; that they’ll be restrained when outside of their cell and as

2

they’re moved through the facility, sir.

3
4

Q.

And why was the facility placed in lockdown when PFC

Manning was moved?

5

A.

That’s standard at all brigs, sir.

But with any MAX

6

detainee we shut the facility down.

This way it stops other

7

prisoners and we make sure that the area’s clear for movement of that

8

inmate.

9

you know, to protect each inmate.

Because, again, we have an obli -- we have an obligation,
And usually with MAX custody

10

prisoners that’s -- that’s the standard in -- through our facilities,

11

sir, is just keep the facility in lockdown.

12

prisoners’ movement out of the area where the MAX prisoner is being

13

moved to or from.

14
15

Q.

It limits the other

How much recreation call do maximum custody prisoners

usually receive?

16

A.

One hour, sir.

17

Q.

When does a detainee receive Sunshine Call?

18

A.

That’s at the discretion of the CO.

I mean, a lot of it is

19

based on behavior, but that’s certainly at the CO’s discretion.

20

you know, I just went with our recreation call usually every day,

21

sir.

22
23

Q.

Why was PFC Manning not authorized to lie on his rack

during the day?

5157

But,

09048

1

A.

The rule is that no detainees are allowed to lie on their

2

rack throughout the day, sir.

I mean, we do have some that are on

3

work assignments or some that just remain in their cells maybe

4

because they’re on medical segregation or some other status.

5

detainees are allowed to lay on their racks or sleep throughout the

6

day, sir.

7

Q.

And why is that?

8

A.

Well, sir, I mean, that’s just a rule.

9

engage them.

But no

We try -- we always

I mean, for one, we do have visits.

The chaplain, for

10

example, will come down to visit.

The medical officer will come down

11

to visit.

12

throughout the day.

13

detainees, you know, we keep them up.

14

that -- that have work assignments and they do have to work in the

15

facility, sir.

So there’s just a lot of activity that’s going on
And because we know they ask to speak to the
And, again, we do have some

16

Q.

Why was PFC Manning not able to have a work assignment?

17

A.

For MAX custody inmates, sir, they’re not allowed to have

18

work assignments.

Because that means they would have to mingle with

19

other detainees and SECNAV doesn’t allow that, sir.

20

Q.

Why was PFC Manning not allowed to have gear in his cell?

21

A.

Sir, the rules are the same for all POI/SR.

Their gears in

22

a cell right next them in close proximity.

23

whether it’s hygiene gear or anything like that, it was given to

5158

And as they require gear,

09049

1
2
3

them.

So that’s all SR/POI detainees, sir.
Q.

And why was PFC Manning limited to a single spoon for

meals?

4

A.

That’s -- sir, that’s the standard.

5

Q.

Why is that the standard?

6

A.

Again, on POI or SR that’s the -- that’s the standard with

7

all detainees or prisoners.

8

whole thing is just limiting risk.

9

what we do.

10
11
12
13

So.

They just -- you know -- again, the
And that’s -- that’s -- that’s

But that is the standard for everybody, sir, that’s on

POI or SR.
Q.

During your time as the OIC at the brig what changes did

you make to PFC Manning’s handling instructions?
A.

I did allow him to have note -- note writing -- I’m sorry,

14

note pad and a pen throughout the day.

15

counselor about that.

16

didn’t have an issue with that.

17

I made based on his request.

18

was to have his underwear removed at night, just between taps and

19

reveille, sir.

20
21
22
23

Q.

I think he had talked to his

His counselor came to me about it.

And I

So that was one of the changes that

As some -- one other change that I made

We’ll take about the underwear in a few minutes.

But whose

request was it to give PFC Manning additional note taking equipment?
A.

I believe he talked to his counselor about it.

And his

counselor spoke to me about it and said, you know, he don’t see the

5159

09050

1

issue with it.

And I -- I said good.

And he was given note taking

2

gear throughout the day, and not just during correspondence time.

3

Q.

And who was his counselor?

4

A.

Back then Gunnery Sergeant, but now Master Sergeant,

5

Blenis.

6

Q.

7
8
9

Why did you continue the handling instructions that require

a second chance vest?
A.

I mean, I have an obligation to protect all inmates

regardless of the alleged charge, regardless of, you know, their

10

situation -- how they act in confinement.

11

things in correction is to safeguard the inmates.

12

protect them.

13

issues of national security, I am well aware that just like he has

14

supporters, maybe some showed distain, and I didn’t care about that.

15

I cared about him getting to and from his appointments safely.

16

that’s why I felt it was important to maintain the -- the second

17

chance vest and the Kevlar at all times when he’s out of the

18

facility.

19
20
21

Q.

That is one of the biggest
You have to

I thought it was important when you have alleged

Let’s talk a little bit about custody status now.

So

What

does maximum custody mean?
A.

Maximum custody just means that there’s some inmates who

22

require additional supervision.

And that could because of the nature

23

of the alleged charges; potential length of sentence; poor family

5160

09051

1

ties.

There are a bunch of factors that are not all inclusive, sir.

2

But for -- excuse me, for maximum custody those are some of the big

3

factors.

4

Q.

And what does prevention of injury mean?

5

A.

Prevention of injury just means that basically there is

6

some -- some feeling that maybe a prisoner has that potential to harm

7

himself or herself.

8

that’s used to kind of make sure that we take enough action to make

9

sure that somebody doesn’t harm themselves.

And so prevention of injury is just a status

10

Q.

And how often was PFC Manning’s custody status reviewed?

11

A.

It was reviewed weekly, sir, although we were only required

12
13
14
15

to review it every 30 days.
Q.

What are some of the factors you considered for prevention

of injury?
A.

I looked a quite a few things, sir.

Again, going back to

16

the issues from Kuwait -- I looked at the statement on his intake

17

form about always planning, but never acting.

18

took into consideration is the fact that he never clearly answered

19

whether or not he wanted to hurt himself.

20

know, just breakdowns in communication.

21

first took -- took over.

22

of seeing behavior from day to day.

23

Q.

Some of the things I

I also looked at, you
That was not the case when I

Also looked at the differences we were kind

How much -- how often did you meet with PFC Manning?

5161

09052

1

A.

Well every day, sir, I’ll walk down to special quarters two

2

or three times a day.

Walk through the facility -- talk to the other

3

inmates.

4

or more if I was -- if I was in the facility, sir.

So every -- as far as Manning, I would see him twice a day

5

Q.

And how long would you meet with him?

6

A.

Just a few minutes just to find out, you know, how he’s

7

doing.

8

that.

If there are issues with chow, with the staff, anything like
So usually it would last a few minutes.

9

Q.

How many times did you discuss issues with PFC Manning?

10

A.

I actually -- as far as at length and not the standard when

11

I’m making the rounds just walking through every day?

12

Q.

Yes.

13

A.

Somewhere about three to four times I spoke to him one on

14

one without the guards present, both in special quarters and one time

15

he was in my office up front; so about three to four times, sir.

16

Q.

And who initiated those conversations?

17

A.

I did, sir.

18

Q.

And how many times did PFC Manning initiate them?

19

A.

He didn’t.

And that was one of my concerns.

Because to me

20

he wasn’t taking advantage of maintaining communication, you know,

21

like extended visitations, things like that.

22

because I wanted to remind him, hey, look, what I said on 24

23

January’s true.

So I initiated it

I said you haven’t been taking advantage of those

5162

09053

1

things.

I said, but I want you to understand that, you know, it’s

2

important.

3

that we establish trust, maintain communication, because -- I told

4

him -- I said, I don’t have an issue taking you off of POI.

5

but you got to talk to me.

6

you’re -- I see some frustration building up, you’re not really

7

talking to the staff, I told him those things concern me.

8

have no issues, none, taking you off POI, I said, but -- I need you

9

to appear in front of the C&A board.

The other things I covered with him was it’s important

I said,

I said when communication is decreased

I said, I

I need you to answer questions

10

honestly.

I said, just like you depend on me to keep you safe from

11

harm, I have to be able to pend -- depend on you to do the right

12

things and to have that communication -- honest communication.

13

we have to build that rapport.

14

inmates.

15

that he can see, hey, look, I can get off of POI.

16

to do.

And

I mean I’ve had rapport with other

And I -- my goal was to strive to get to that with him so

17

Q.

And what PFC say in response?

18

A.

He just said, okay, ma’am.

That was it.

Here’s what I need

One time when we

19

did talk -- and, again, this was just me in him in the room, no

20

guards, he did express frustration with it.

21

everything I just said to you, sir.

22

you’re not talking to me, if you’re not answering directly do you

23

want to harm -- when you make statements to the C&A board such as --

5163

And I explained

I said, hey, look -- I said, if

09054

1

well the statement about you not wanting to hurt yourself may be

2

false.

3

you know, I don’t have a problem making changes.

4

you really don’t talk to me as much -- you know, sometimes you get

5

really frustrated with the staff even when they’re not correcting you

6

on something you did wrong.

7

I said, you know, you have to -- you have to do the leg work.

8

ball’s in your court.

I told him that does not make me feel comfortable.

I said,

I said, but when

Sometimes it’s just them trying to help.
The

9

Q.

Why would PFC Manning get frustrated with the staff?

10

A.

I mean -- from what he told me, sir, it’s just he doesn’t

11

really like a lot of people talking to him or being around him.

12

I also explained that they have a job to do.

13

it’s -- it’s frustrating -- you probably don’t like it, I said, but

14

because I hold them accountable, I need to know that they’re doing

15

their jobs.

16

know.

17
18
19

Q.

But

I said, so -- you know,

And when they’re not doing that that’s when I need to

What was your overall level of communication with PFC

Manning?
A.

Sir, when I first took over it was -- it was pretty good.

20

I mean we’ll talk about the meals and everything ‘cause they ate

21

pretty good there.

22

Birthday, for example, or the Navy Birthday, they would get to eat

23

steak, lobster and shrimp.

I was big on that.

I mean for the Marine Corps

For heritage meals like St. Patty’s day

5164

09055

1

or Black History Month, Asian Pacific Heritage Month, they all had

2

special meals.

3

So we would talk about food.

4

he’s into basketball -- that kind of thing -- he likes that.

You

5

know, I mentioned before that I saw him working out one day.

So when

6

I went to the dorm he like stopped, came to attention.

7

no, no, carry on.

8

those pull-ups and dips.

9

That day the detainees ate the same things we ate.
We’d talk about -- you know, I know

I said, no,

So I said, hey -- I said, I see you trying to do
That’s good.

So we would joke around in the beginning.

You know, he

10

might make a comment or so -- if I change my hair or something, you

11

know, he might, you know, make a comment about that -- nothing out of

12

line.

13

So we’d talk about, you know, just things in general.

14

always ask him, hey, you got problems with the staff or anything?

15

would even ask about times when he’s out of my custody at the --

16

whether it’s dental, medical or at any appointments.

17

about the chasers -- if they’re giving him his chow on time -- that

18

kind of thing.

19

sir.

And I welcome that.

That’s the feedback I like from inmates.
And I would
I

I would ask him

So we talked about things like that in the beginning,

20

Q.

And how did that change?

21

A.

Sir, it just -- and it really shocked me -- just over time

22

he would -- because he would look at me, he would laugh, like it

23

would be eye contact.

He might make a joke or two -- think he’s

5165

09056

1

pretty funny.

I mean we’ve exchanged, you know, little jokes back

2

and forth there, but then over time it’s like just reduced eye

3

contact, very short, one word answers.

4

good morning.

5

No, ma’am.

6

before he would engage in, you know, in conversation.

7

know I -- I talked to him about -- because I noticed he wasn’t

8

filling out the voluntary statements when he did not want recreation

9

call.

How are you?

Good, ma’am.

Any questions for me?

And I talked to him.

‘Cause I’ll ask -- say, hey,
Any problems or concerns?

No, ma’am.

And that’s it.

I said, Manning, look.

But

At one point I

I said, I

10

understand -- ‘cause he -- he informed me that his attorney told him

11

do not fill out any statements.

12

advice of your attorney.

13

-- but what I want you to understand is when I come in in the morning

14

and I see that DBS report, I need to know -- I need to see that

15

voluntary statement attached so I know you chose not to go to

16

recreation call and not that the guards just arbitrarily said, awe,

17

we won’t give you rec call today ‘cause I -- and I reminded him -- I

18

said, I hold the staff accountable.

19

rug.

20

and Gunny Blenis because sometimes they would make the rounds in

21

special quarters with me.

22
23

I said, you need to follow the

I understand that’s important.

I said, but

I don’t brush things under the

And he’s heard me say that in front of Master Sergeant Papakie

So I was just kind of big on -- by all means, if your
attorney is giving you guidance; great.

5166

But I just kind of let him

09057

1

know how that kind of hurts us and what we have to do.

2

everything with us -- you know, it’s important especially something

3

like no rec call because that’s something I’m big on -- rec call,

4

phones, visits, that kind of thing.

5

privileges -- you know, that they receive them unless I take it away

6

for disciplinary reason.

7
8

Q.

Because

And I like to make sure those

What effect did the level of communication you had with PFC

Manning have on your decisions regarding his custody and status?

9

A.

It’s one of the things I looked at, sir, to be honest with

10

you.

You know, some things were going on -- on with him.

And so,

11

you know, it’s just a lot of little things.

12

friends were removed from his visitation list but not from mailing.

13

You know, it’s just kind of -- it just made it a little more

14

difficult for me to establish that rapport.

15

are not in the corrections field, but having a lot of MAXs or POIs or

16

SRs is taxing on the staff.

17

MAXs and we really try our best to, you know, to limit that number.

18

So it’s just kind of affected me because I was hoping the rapport we

19

had in the very beginning to kind of, you know, to continue and to

20

get better.

21

he would explain to me what he put on -- about the statement he made

22

on his intake form -- that kind of thing, I feel honestly if we had

23

better communication and it was ongoing and getting better as time

Some family members and

Again, sir, I know you

We typically have a very small number of

Because I felt if we had honest open communication and

5167

09058

1

went along and I had a clear understanding of his situation in Kuwait

2

and all that and why he did some of the things he did, I honestly

3

felt it would have given me a much better insight to him as a person.

4

And, again, I’ve made it clear to my boss and my chain of command and

5

to Manning, I have no issues taking you off of POI.

6
7
8
9

Q.

What was PFC Manning’s level of communication with the brig

staff?
A.

Again, much like mine in the beginning; it was good.

From

before I took over -- from what I hear -- and, again, the

10

communication decreased as well with them, not just with me.

One of

11

the concerns I had was -- especially with his counselor.

12

corrections world the counselor is like -- you know, that’s the

13

advocate for the prisoners.

14

brig supervisor and say, hey, you know, my client is doing great.

15

want these changes made -- that kind of thing.

16

if -- if they don’t speak to anybody else or they don’t maintain a

17

good relationship with anybody else, that counselor is very

18

important.

In the

That’s the one who goes to the CO or the
I

So it’s important --

19

Q.

And what was your opinion of PFC Manning’s counselor?

20

A.

To be honest with you, Master Sergeant Blenis is one of, if

21

not the best, staff NCOs I’ve had the pleasure to work with.

22

very knowledgeable.

23

experience.

He’s objective.

He’s

He -- he has a lot of

You know, he’s not a -- definitely not afraid to express

5168

09059

1

his opinion.

2

we did not disagree, and there were times we didn’t -- I’m sorry, if

3

we didn’t agree, he -- it was times when he understood, ma’am, this

4

is my point.

5

at the end of the day, you know, who I was, who he was, and he drove

6

on.

7

with him again, it’ll be a welcomed opportunity; top notch.

8
9
10

He always had respect.

And I listened.

He knew what his place was.

But if we didn’t agree, he understood

But he’s absolutely -- if I have the privilege of ever working

Q.

What was -- how much weight did then -- then Gunnery

Sergeant Blenis’ recommendations carry?
A.

It carried a lot of weight.

But, again, there’s so many

11

things we look at, not just the counselor’s recommendation.

12

spent a lot of time with him.

13

carried a lot of weight.

14

integrity -- never questioned it, never had an issue with him.

15

sets high standards, not just on the corrections side, but Marine

16

wise as well.

17

wasn’t anything superficial.

18
19
20

If

Q.

But he

You know, he -- so his recommendations

Because, again, he was somebody that had

So his -- his write-ups held a lot of weight.

He

It

So it held a lot of weight, sir.

Let’s move back to the staff a little bit.

What behavior

did the staff report to you about PFC Manning?
A.

They would say things like -- like I know one time he used

21

the hinge of his glasses to shave hair off of his eyebrows or

22

something like that.

23

informed he would lick bars or talk to himself or act out things in

They had to counsel him on that.

5169

I was

09060

1

his cell.

Carry on conversations by himself.

2

the behaviors that they reported to me.

So those are some of

3

Q.

And when was PFC Manning being seen by a corpsman?

4

A.

Now the corpsman would come typically twice a day, sir, for

5

sick call and med’ call.

The medical officer, he would come once or

6

more a week, or more if we needed him because OCS was right by the

7

brig.

8

there.

9

sir.

So it was just a couple of minutes to get to our facility from

10

Q.

11

boards.

12

boards?

13

A.

But a corpsman was in that facility every day, twice a day,

Let’s talk a little bit about classification and assignment
How would -- when would you talk to member of the C&A

Pretty much when they were done deliberating.

I was not

14

back there with them when they were holding the boards.

15

they were done and they would bring the paperwork to me, I would

16

normally question the senior member.

17

member of that board just to kind of find out, you know, how they

18

arrived at those recommendations; that kind of thing.

19

involved while the board was going on, but I would typically talk to

20

them afterwards, sir.

If he wasn’t available -- a

21

Q.

And what would the C&A boards recommend?

22

A.

Could you repeat that question, sir?

23

Q.

What would the C&A boards recommend?

5170

But when

So I never got

09061

1

A.

In general or ----

2

Q.

In general about PFC Manning?

3

A.

They recommended maintaining the MAX custody and POI for

4

the most part every -- you know, every week when he got reviewed.

5

Q.

Why was PFC Manning’s counselor on the C&A boards?

6

A.

Well, Gunnery -- Master Sergeant Blenis had two roles; one,

7

he was Manning’s counselor, and he was the programs chief -- the

8

senior gunnery sergeant at the time.

9

sense.

And that’s typical.

So he was dual-hatted in that

Every counselor, which we had other

10

counselors -- Sergeant Morales was a counselor as well -- but each

11

counselor fills out that worksheet.

12

them know, hey, look I’m putting you up for review for X, Y and Z.

13

And then they present that to the board as well.

14

practice for the counselor -- the inmate’s counselor to fill out that

15

paperwork and be part of the board.

16

on the board to answer questions that the board members may have.

17

[Pause]

18

[The assistant trial counsel handed a document to the military

19

judge.]

20

MJ:

21

ATC[CPT VON ELTEN]:

22

MJ:

23

They talk to the inmate -- let

Not as a voting member, but be

Is this my copy?
Yes, ma’am.

Thank you.

[Pause]

5171

So that is standard

09062

1
2
3
4
5

ATC[CPT VON ELTEN]:

I’m handing the witness Appellate Exhibits

441A, B, and C [handing the documents to the witness].
Q.

Chief Warrant Officer Barnes, how are classification and

assignment boards supposed to be documented?
A.

Well, sir, they are supposed to be documented, but there’s

6

no -- there’s no form that is used.

The SECNAV just says that the

7

recommendations of the classification and assignment board must be

8

recorded and forwarded to the brig OIC or chief petty officer-in-

9

charge for approval.

So because there’s no form, sir, to be very

10

honest, every brig drafts up a local form.

11

look alike, sir.

So none of them really

12

Q.

Now what have -- what have I handed you?

13

MJ:

Will you identify what appellate exhibits they are for the

14

record?

15

Q.

Yes.

16

A.

[Looking at the documents] Sir, it just looks like the list

17

What is Appellate Exhibit 441A?

of DD forms that’s used throughout corrections, sir.

18

Q.

And what document is that?

19

A.

[Looking at the document] This is SECNAV Instruction

20

1640.9(c), sir.

21

Q.

So it’s an appendix ----

22

A.

An appendix.

23

Q.

---- listing all the DA -- DD forms listed in SECNAV?

5172

09063

1

A.

Yes, sir, and the NAVMCs that are used, sir.

2

Q.

And what is Appellate Exhibit 441B?

3

A.

[Looking at the document] It’s the BUPERS Instruction, sir,

4

1640.22.

5

sir.

And it also has a list of forms that we use in the brig,

6

Q.

And what is Appellate Exhibit 441C?

7

A.

[Looking at the document] Can I have a few minutes to go

8

through all of them, sir?

9
10

Q.

It’s just a bunch of DD forms.

Absolutely.

[Pause while the witness looked through the documents.]

11

A.

Sir, these are a bunch of forms that’s used in facilities -

12

- everything from parole and clemency, release order, DD Form --

13

forms that counselors use, the ones the inmates fill out on intake,

14

sir.

15
16
17

Q.

Now we’ve heard testimony that C&A boards are supposed to

be documented on a 2700 DD Form -- 2700 series?
A.

No, sir, that’s incorrect.

Those 2700 forms -- for

18

example, a reclassification sheet is -- if a counselor was

19

recommending maybe they switch from medium in custody to MAX custody

20

or vice versa, they would use that form.

21

page where notes can be made, but that form is not used to document

22

the actions of the C&A board.

23

SECNAV, it just says it shall be recorded for approval.

And there’s an addendum

And, again, sir, I go back to the

5173

So there’s

09064

1

not a DD form in the 2700 series for the C&A action -- for the C&A

2

board’s action, sir.

3
4

Q.

So which of the forms in Appellate Exhibit 441C would be

used for classification and assignment boards?

5

A.

Well, to -- are you talking about to document the --

6

Q.

To document the finding?

7

A.

-- actions of the board -- none of these, sir.

8

ATC[CPT VON ELTEN]:

9
10

Thank you.

Retrieving Appellate Exhibits

441A, B, and C [retrieving the exhibits from the witness].
Q.

Let’s keep talking about documents.

What kind of documents

11

did you review in making determinations about PFC Manning’s custody

12

and status?

13

A.

Again, sir, I looked at the inmate background summary.

I

14

looked at the initial custody classification.

I looked at all the

15

paperwork we got from Kuwait, sir, plus, you know, work and training

16

reports.

17

Reviewed -- again, just went back over notes from the C&A board --

18

that kind of thing, sir.

Review the hard card entries -- that kind of thing, sir.

19

Q.

What about counseling notes?

20

A.

Yep, I would review those, sir, as well.

21

Q.

And how often would you review information in CORMIS?

22

A.

Just randomly, sir.

23

I mean, for me, the counselors are

supposed to make entries at least weekly.

5174

So I would randomly check

09065

1

-- you know, to check -- make sure that the entries aren’t behind.

2

mean this wasn’t a problem at Quantico, but I’ve worked larger

3

facilities before where when you have a big case load it’s very easy

4

that the counselors could fall behind.

5

things that I was big on.

6

sir, there’s never an issue on notes being late or not put into

7

CORMIS because I have access to CORMIS.

8
9
10

Q.

I

And that’s just one of the

So I would do it randomly, but, again,

Let’s talk a little bit about the psychiatric

recommendations.

What would PFC Manning’s psychiatrists’ recommend

usually?

11

A.

Usually, sir, both Doctor Malone and Doctor Russell, from a

12

psychiatric standpoint, you know, they would say, hey, you know, he

13

does not need to be separated.

14

talk about whether he’s at low, medium or high risk to harm himself.

15

You know, they’ll give some additional information ‘cause I requested

16

that.

17

requested to sit down with all of the providers that were coming in

18

so we could establish rapport and I can, you know, talk to them and

19

let them know, hey, look, this is -- I’m leaning on you.

20

that.

21

responsibilities, they understood mine.

22

recommend, you know, that -- depending on the write-ups.

23

some of them have changed, so they’ll just document whether he’s a

He does not -- you know, they’ll also

But just so you know, sir, when I first took over, I -- I

I depend on

So we talked -- so we understood -- I understood their

5175

But typically they would
I mean,

09066

1

low, medium or high risk; that he doesn’t need to be maybe on POI

2

from a psychiatric standpoint.

3

Q.

Let’s talk about each mental health provider individually.

4

A.

Okay.

5

Q.

How often would you meet with Colonel Malone?

6

A.

Actually I would talk to him.

What was common was we would

7

talk when he first came to the facility so I could kind of brief him

8

on anything that occurred since his last visit.

9

would stop by an see me.

On the way out he

We’d talk, you know, about the eval that he

10

wrote.

11

discussed -- excuse me, what was discussed in there.

12

a point to talk before and after each visit, sir.

13

there, he would talk to the brig supervisor.

14

it a point to communicate.

15

Russell -- because, again, I made it clear from the onset, whether it

16

was the psychiatrist or the Marine Family Life Consultants or the TBI

17

specialists, everybody who came in there to assist prisoners in any

18

way, I need eyes on.

19

rapport.

20
21
22
23

Q.

Obviously he didn’t violate HIPAA or tell me what was
But we made it

And if I wasn’t

But he would -- we make

Same thing with Lieutenant Colonel

I need to talk to them and, you know, establish

Why didn’t you follow Colonel Russell’s recommendation to

remove PFC Manning from prevention of injury status?
A.

I said -- first, let me say I do respect both of their

professional expertise, but, again, that mental health evaluation was

5176

09067

1

just one aspect of the total circumstances of things I needed to

2

consider when I made that decision.

3

from a psychiatric standpoint there’s really nothing there, but at

4

the same time we all know that you don’t have to have a mental health

5

issue to want to kill yourself.

6

the linebacker from the Kansas City Chiefs -- prime example last week

7

when he killed his girlfriend and committed suicide.

8

I looked at what their recommendations were.

9

Lieutenant Colonel Russell though, there are a couple of things that

I mean, granted they were saying

I mean, Jovon Belcher from the K --

So I -- again,

But in the case of

10

he stated in there where he just kind of said, hey, look, I

11

understand -- and he put that in his eval’s -- I understand why

12

there’s concern.

13

that Manning needed to do.

14

that he understood our level of concern.

15

were changes -- total changes -- difference of behavior with them and

16

with the staff.

17
18
19
20

And he reiterated, you know, the things that --

ATC[CPT VON ELTEN]:

But he definitely noted on those eval’s
He understood that there

I’m handing the witness Enclosure 21 to

Appellate Exhibit 259, Page 31 [handing the document to the witness].
MJ:

What are you -- what are you handing me again -- to her,

excuse me.

21

ATC[CPT VON ELTEN]:

22

MJ:

23

ATC[CPT VON ELTEN]:

Enclosure 21 to Appellate Exhibit 259.

Okay.
Page 31.

5177

09068

1

MJ:

Go ahead.

2

Q.

What did Lieutenant Colonel Russell recommend for PFC

3
4

Manning’s status?
A.

[Looking at the document] Can I have a couple of minutes --

5

I mean, just read through it, sir?

6

[Pause while the witness read through the document.]

7

A.

He just said -- and I’m not going to read the whole thing,

8

sir, but he just says necessary assurance of safety is difficult to

9

achieve if SM chooses not to communicate with facility staff.

10

I

cannot recommend changing his POI status given his behavioral change.

11

Q.

How often did you meet with Lieutenant Colonel Russell?

12

A.

If Colonel Malone was not available and he would come in,

13

sir, same thing; when he came in the facility we would talk for a

14

little bit -- catch up on events.

15

he was done.

16

that kind of thing seriously.

17

took over, I noticed the form was kind of bare bones; not a lot of

18

information.

19

I sitting down, talking, and establishing, hey, look, yeah, that need

20

-- probably needs to be some more meat and potatoes in here.

21

both came up with that form.

22

highly respect their field -- the line of work and everything they

23

bring to the table.

And I would also talk to him once

Again, for me, I put -- I took their evaluations and
One of the things I also did when I

So this current form was a result of Doctor Malone and

So we

But, again, with both of them, sir, I

And we had a great relationship.

5178

They

09069

1

understood -- Doctor Malone said the same thing; he understood that I

2

had other things to consider in addition to his recommendation on the

3

mental health piece.

4

understands what we have to do.

5

talked a lot.

6

would invite them.

7

I was very proud of that.

8

Q.

9

and potatoes?

10

A.

And he just -- you know, he said he totally
Again, the rapport was great.

We

As a matter of fact, when we had brig functions, I
So we had a very good working relationship.

And

What do you mean the form -- the old form needed more meat

The other form -- like for example, sir, on this one where

11

it says, like, level of alertness, level of orientation, mood and

12

affect, throw up content -- you know, just -- and I don’t know if

13

it’s in any one of these [reading from the document].

14

it’s just -- you know, it’s just kind of -- it’s different from the

15

previous ones they were using, I guess, when he first got here.

16

just thought that we needed some more information on here.

17

Malone agreed.

18

it.

19

point on.

And he did a draft.

I said, yeah, it was very good.

20

Q.

Did Colonel Malone ----

21

MJ:

Hold just a moment.

22

ATC[CPT VON ELTEN]:

23

So you can see

So I

Colonel

He asked me if I was good with
And we started using from that

Yeah?

Your Honor, the witness can identify what

page she was looking at in the enclosure.

5179

09070

1

WIT: Page 31.

2

ATC[CPT VON ELTEN]:

3

WIT: Oh.

4

ATC[CPT VON ELTEN]:

5

WIT: It’s Page 31.

6

MJ:

7
8
9
10

Just for the record.

After -- I’m sorry.

Okay.

[Examination of the witness continued.]
Q.

Did Colonel Malone or Lieutenant Colonel Russell ever tell

you that prevention of injury was causing harm to PFC Manning?
A.

No, sir.

And that’s one of the things that I would discuss

11

because, again, I’m not trained in psychiatry.

12

And, again, when I sat down with them a lot of it was also to educate

13

myself.

14

that’s one of the -- one of the main things I wanted to know.

15

Because I told them -- I said we would definitely have to come up

16

with a different plan.

17
18
19

So I have no idea.

But, no, they never said that it was detrimental.

But

And they said no.

ATC[CPT VON ELTEN]:

I’m retrieving Enclosure 21 to Appellate

Exhibit 259 [retrieving the document from the witness].
Q.

What would you have done if Colonel Malone or Lieutenant

20

Colonel Russell had told you prevention of injury was doing harm to

21

PFC Manning?

22

A.

23

Honestly, sir, I would have taken him off.

But I would

have definitely looked for, you know, for other ways to help him.

5180

09071

1

Towards the end of his confinement we -- the Base Commander and a

2

couple other people said, hey, look, let’s try to get other qualified

3

people in here to -- to kind of help us out.

4

they would have said, hey, look, this is causing damage, then, yes, I

5

would have taken him off of POI.

6

necessarily on Doctor Malone or Doctor Russell.

7

again, maintained communication and maybe looked me in the eye and

8

said, ma’am, I don’t want to kill myself.

9

in Kuwait.

But honestly, sir, if

But, again, I would not wait
If Manning himself,

Here’s what was going on

I know you weren’t there, but let me just explain what

10

was going on with me at the time; why was I suicidal.

Here’s why I’m

11

not suicidal now.

12

look, your comments to that C&A board is very concerning to me.

13

got -- I mean, I have -- you put me in a very bad spot here.

14

still did not communicate clearly with me and said, ma’am, I don’t

15

want to kill myself or hurt myself in any way, and this is why.

16

Here’s what I have going for me despite the circumstances.

17

did it.

18

Maybe it’ll be a chit.

19

- talking to him in private with no guards within earshot range --

20

even in my office -- I felt maybe a change of environment or scenery

21

might be different.

22

long, when you deal -- I’ve had -- as a counselor when I was in this

23

-- I’ve had murderers on my case list -- that I’ve had child

And even after I talked to him and I said, hey,
You

He

He never

I would hope every day -- I checked that CO’s mailbox.
Again, with him -- with me talking with him -

Because, again, being in corrections for so

5181

09072

1

molesters on my case load.

So for me, you know, I don’t -- the less

2

charges -- I don’t get caught up with that.

3

can I do to help?

4

where we turn out productive citizens.

5

mistake -- and I want to be part of that process that helps to lowers

6

the recidivism rate.

I focus on, hey, what

And let’s -- I want to be part of that process
Even though they made a

7

Q.

Did you ever intend to punish PFC Manning?

8

A.

Never, sir.

9

I value the -- my accomplishments in 16 years

and my integrity more than anything else.

I mean, I don’t -- for me;

10

I have nothing to gain by that.

As a matter of fact, again, with the

11

staffing issues and having MAXs, you know -- you know, caught up --

12

you know, it limited some things we have to do.

13

to go to professional development schools; that had to be delayed.

14

So again, sir, there was never an intent to punish PFC Manning even

15

though I was targeted.

16

internet.

17

brig except for the line that they called attorneys on -- I had to

18

have every line recorded by the G6 for the National Capital Region.

19

So despite all that, sir, I came to work every day.

20

I treated him like every other detainee.

21

other POIs.

22

we have other ones in that same -- in the same predicament.

23

me it was very big.

Staff members needed

My family’s information was put out on the

My staff was threatened.

I had to have all lines in that

You know -- and

I had other MAXs, other SR,

I can’t just -- you know, we only focus on Manning, but
So for

And one of the other reasons was I was very

5182

09073

1

proud to be the only chief warrant officer two to run any facility in

2

the Marine Corps.

3

put professionalism first.

4

also as a correctional counselor, that is a big deal, and it set a

5

lot of the foundations that I have as a CO; the way you treat

6

prisoners, you have to treat them with dignity and respect regardless

7

of the charges, regardless of what is being said about you.

8

there’s never an intent -- and I’m sorry I’m going on.

9

passionate about that.

10

So that was a big deal to me.

So again, I always

The background that I had coming up and

So, no,

I’m just real

There’s never an intent, whether it’s to

punish him or any other detainee.

11

Q.

12

injury?

13

A.

Were you ever ordered to keep PFC Manning on prevention of

Never was by anybody.

As a matter of fact, when I took

14

over on my in-brief with Colonel Oltman, I said I clearly realize you

15

just had a CW4 with 22 - 23 years of experience running that jail for

16

you.

17

you have nothing to worry about.

18

you know, they try to pick the best and the brightest.

19

informed him -- I said, sir, all I ask is that when I make a decision

20

of -- on anything in that facility and I’m asked by anybody to go

21

against that and take extra risk.

22

documented in writing.

23

time was I ever ordered to keep him as a MAX custody, to keep him in

I’m coming in with 14 years of experience, but I can assure you
As you know for warrant officers,
And I

I said please make sure that’s

And if I’m given a direct order -- but at no

5183

09074

1
2

POI by anybody.
Q.

Let’s talk a little bit about your ultimate determinations.

3

What factors did you basis the decision to put him on maximum

4

custody?

5

A.

Again, sir, with the custody by itself, the status is sort

6

of different.

7

seriousness of the alleged charge in this case, one, and possibly

8

could affect or involve national security.

9

seriousness of the alleged charge.

But in terms of custody, again, when you have the

So you look at the

You look at family relationships,

10

the potential length of sentence that the person could be facing.

11

You look at how well they deal with stress.

12

that I looked at, sir.

13
14
15

Q.

So those are the things

And what factors did you consider for placing PFC Manning

on prevention of injury?
A.

Again, sir, it was -- everything I had available to me at

16

the time from Kuwait, looking at decreased communication, the

17

behavior that was going on.

18

made to the C&A board when he did appear.

19

considered, sir.

In confinement; the statements that he
Those are the things I

20

Q.

Let’s talk a little bit about early March 2011.

21

A.

Okay.

22

Q.

What happened on 2 March 2011?

23

A.

That day, sir, he received some additional charges there;

5184

09075

1

104, which is very serious.

2

response to his 138, which did not grant him relief.

3

as well, he had a conversation with Master Sergeant Papakie and made

4

a -- I guess he was a little frustrated there from what I gathered,

5

and he made a statement about the POI thing is absurd, I guess -- and

6

I’m not quoting directly, but something along the lines that if I

7

really wanted to hurt -- you all let me keep my underwear with the

8

waistband in it, which is the most dangerous piece -- and a couple

9

other things he said, sir, but that’s what he told Master Sergeant

10

He also received Colonel Choike’s
But on that day

Papakie.

11

Q.

So how did you find out initially?

12

A.

Him -- Master Sergeant Papakie and then Gunnery Sergeant

13

Blenis, they came up to the office to talk -- to brief me on it.

And

14

obviously I felt very uneasy.

15

comment, but, you know -- I said, you know -- I had to make a

16

decision then, you know.

17

you know, you have to take -- take that seriously.

18

me.

19

they were allowed to keep their underwear.

20

facility to facility.

21

things like maintaining your clothes, your underwear, or that kind of

22

thing, you know, you still want inmates to maintain dignity.

23

that’s -- those are personal items.

Obviously -- I didn’t like the

You can’t let that comment ride.

What --

So they briefed

And I said, you know, at nighttime -- even SRs, just like POI,
And that varies from

It’s basically the CO’s discretion.

5185

But to me

I mean,

And, you know, of course when

09076

1

you’re confined these are things that are near and dear to you.

But,

2

again, at nighttime when it’s dark, you know, and the -- the

3

opportunities may be a little bit better if anyone wanted to harm

4

themselves, you know.

5

comfortable with that -- with that comment -- and, again, when I

6

looked at it in totality; what had happened earlier in the day, and

7

the -- you know, the decreased communication, easily getting

8

frustrated, I took all those things into consideration and just --

9

you know, I decided, okay, well only from taps to reveille that his

I said, you know, I don’t really feel

10

underwear’s taken from him.

11

before reveille each guard would normally put like razors or hygiene

12

gear on the feed trays.

13

sure that his stuff is there prior to reveille so that when reveille

14

goes -- between reveille and count he’ll be ready to go.

15
16
17

Q.

However, same procedure as usual, right

So I just made it clear, hey, look, make

What other factors happened earlier in the day that you

just mentioned that were part of the circumstances you considered?
A.

Again, he -- he had received the -- Colonel Choike’s

18

response from that -- the 138 that he had filed.

And it did not

19

grant him relief.

20

know, carries a significant -- if anyone is convicted carries a heavy

21

sentence, you know.

22

that occurred earlier in that day, you know, receiving that new

23

charge sheet -- to me, you know, his state of mind at that time, how

He also received the new charge of 104, which, you

So those two things again just from that day --

5186

09077

1

would you handle that?

2

that’s -- that’s something that maybe could set him off.

3

were well informed in advance that he would be receiving that charge

4

sheet that day.

5

that’s -- that’s some pretty heavy stuff to deal with.

6
7
8
9

Q.

So in my mind I’m thinking, you know, maybe

And we were just kind of on standby ‘cause, again,

Well let’s back up a little to after you hear initially

about PFC Manning’s comment.
A.

I mean, we

What do you do in response?

Again, I talked to Master Sergeant Papakie and then Gunny

Blenis, and, you know, I told them what my decision was.

I asked for

10

their input.

They said they think it’s a good course of action to

11

take because, again, for me, I wanted to take the least intrusive

12

measures that I could to still safeguard him and prevent, you know,

13

anything from going wrong.

14

Q.

Did you talk to PFC Manning about the comment?

15

A.

I did.

16

Q.

When did you talk to him?

17

A.

I don’t recall if it was later that day or the next day.

I let him know I wasn’t comfortable with it.

18

But I know I definitely addressed it with him.

Because, as a matter

19

of fact, I do remember he kind of got -- he raised his voice a little

20

bit and became a little bit disrespectful.

21

said, I understand you’re frustrated.

22

being frustrated, but the way you talk to me, I said that’s what I

23

have an issue with.

And I said, hey -- I

I don’t have an issue with you

I said if you need a few minutes to calm down

5187

09078

1

and come back in here, let me know.

I said but at the end of the day

2

you’re an active duty soldier and you’re talking to a commissioned

3

officer.

4

That’s not what I want to do.

5

only time that we have this kind of chat.

6

had any issues with him, but he became a little out of line.

7

had to let -- remind him that because I have a laid back demeanor

8

that he doesn’t get to talk to me that kind -- in that manner.

I said -- and you don’t want me referring charges on you.
I said so let this be the first and
I mean normally I hadn’t
And I

9

Q.

What explanation did PFC Manning offer?

10

A.

He kind of said the -- the same thing -- well, I just think

11

it’s stupid.

12

When I talked to you from the very beginning, I explained what you

13

needed to do.

14

said you haven’t even submitted a DD Form 510 asking to talk to me.

15

You haven’t asked me to change your status.

16

board I don’t want to hurt myself; this is why.

17

different from Kuwait.

18

- I said when I observe you -- you know, whether it’s at rec call --

19

in the cell -- and then I kind of brought that up -- I said, well,

20

when you’re talking to those psychiatrists -- I said you are a

21

totally different person.

22

here.

23

reduced communication, very short answers, getting agitated easily.

And I said -- I said, Manning, you got to listen to me.

I said you don’t talk to me in detail like before.

I

You haven’t told the C&A
Here’s what’s

And then on top of that -- like I told him

-

I see the Manning I used to see when I got

But when they leave, it’s just complete -- goes right back to

5188

09079

1

And I told him -- I said, you know, you have to talk to me.

I said

2

there are two people in this facility who advocate more than others

3

on your behalf.

4

I said I’m the one who has the authority to make those changes.

5

said -- but it’s a -- it’s teamwork.

6

will do my part.

I said that’s your counselor -- I said and it’s me.

You have to do your part, I

7

Q.

Why not place PFC Manning on suicide risk at that time?

8

A.

Well, I honestly did not feel he was suicidal.

9

I

I mean the

SECNAV is clear; he did not threaten to kill himself, and he did not

10

make a suicidal gesture.

Now the differences I know sometimes -- you

11

know, POI and SR, the conditions are interchangeable, but in the

12

SECNAV it doesn’t say that on SR I have to take their underwear.

13

Frankly, in brigs I’ve seen it done different ways.

14

on SR they were allowed to keep their underwear and some facilities I

15

see they were not.

16

clothing when deemed necessary.

17

-- either POI or SR directly.

18

two, it just says that underwear may be taken, you know, when deemed

19

necessary.

20

not make a suicidal gesture.

21

100 percent agitated and -- and -- anything like that.

22

feel he was suicidal.

23

and, again, taking everything else in totality, that I needed to not

When somebody’s

So, again, the SECNAV just says we can remove
And they did not tie that to a cert

It just -- as it’s discussed in those

So I just -- again, he did not threaten suicide, he did
And he didn’t, you know -- he wasn’t
So I did not

But I just felt like based on that comment --

5189

09080

1

take that comment lightly.

And I didn’t.

I mean, again, for me

2

coming up most of my experience have been admin’ and being a

3

counselor, I understand full well that little things like having your

4

-- your -- detainee uniform or your underwear, those things allow you

5

to maintain dignity even when you’re confined.

6

important things to me.

7

decision lightly.

And those are

So trust me, sir, I did not make that

8

Q.

What if the comment was only sarcasm?

9

A.

Well, sir, I can’t determine that.

I mean, again, I don’t

10

know him well enough to -- to say, oh, he’s always sarcastic.

11

jokes like that.

12

goal was to achieve the same level of communications that I did with

13

other inmates who were on SR - POI, who, again, they followed my

14

recommendations.

15

some inmates from SR and some inmates from POI.

16

rules for Manning.

17

difference is -- with one particular detainee, he said, ma’am, here’s

18

why I don’t need to be on POI.

19

first of all, physically.

20

knew right then and there I wasn’t ready to die.

21

thing was my sister owns her own business.

22

I get out I can work for her.

23

had a meltdown and felt that I wanted to kill myself before was

I don’t know him like that, sir.

We talked.

He

And, again, my

We got through things.

And I removed

I did not change the

They were all told what they needed to do.

The

He said my suicide attempt hurt,

He said -- and it scared me.

I honestly

He said the other

And she -- she said when

He said, ma’am, the only reason why I

5190

09081

1

because -- by trade he’s an infantryman and he had PTSD -- some TBI.

2

They pulled him out of the infantry unit and they put him over at the

3

Officer Candidates School in an administrative role.

4

handle that.

5

down; he wanted to get back to the fight.

6

clearly.

7

to his counselor, Master Sergeant Blenis.

8

is what’s been going on with him.

9

was taken off SR and then off POI.

10
11
12

His thing was he felt he was letting other Marines

He was honest.

Q.

He couldn’t

So he communicated with me

He maintained good eye contact.

I talked

He said, ma’am, yes, this

And -- yes, I took him off.

Let’s talk a little bit about the next morning.

He

What

happened?
A.

Well, when I came to work I was informed that Manning stood

13

up naked.

14

I said he is supposed to have his gear like everybody else.

15

normally lay it out right before reveille.

16

place.

17

count, he realized he was standing naked.

18

appalled, of course.

19

reveille goes at 05, count begins at 0510.

20

items were given before and there was a 10 minute gap -- that’s one

21

reason why it took everybody by surprise.

22

briefed on when I came to work.

23

Q.

So immediately, you know, I’m like what?

What happened?
They

I was told that that took

And when the DBS, Staff Sergeant Terry, came down there for
And he was totally

But at that time he was conducting count.
So -- because -- the

So that’s what I was

So what did you tell Staff Sergeant Terry?

5191

Now

09082

1

A.

Well -- of course I asked him -- I said, you know, the

2

guy’s in special quarters.

3

said, you know -- he said, ma’am, no.

4

usual.

5

everybody’s feed tray; razors, that kind of thing, so they can shave

6

and all that.

7

day.

8

anybody tell him to stand up naked?

9

Sergeant Terry said, ma’am, we’re just as confused as you are.

10

What the hell?

I said -- excuse me.

They followed business as

Normally right before reveille they put this stuff on

He said, ma’am, we didn’t do anything different that

I said, you better be very clear -- you know -- I said did

had two blankets.

He had two blankets.

Staff
He

It was no need for that.

11

Q.

Did anyone counsel PFC Manning?

12

A.

Yes.

Master Sergeant Papakie counseled him so he

13

understood.

14

didn’t -- nobody told him to standup naked.

15

that -- in general, sir, is that brigs have females on the staff.

16

nudity -- we don’t encourage that; partial or full -- we don’t

17

encourage that.

18

using the bathroom while a female was in special quarters.

19
20
21

I

Q.

But in talking to him, he said he understood that he
And the other issue with
So

You know -- and he was also counseled before for

Did you ever consider taking PFC Manning off of prevention

of injury?
A.

Yeah I did.

But I said to myself -- I said, will -- I will

22

continue to engage him and let him know, hey, I don’t have a problem

23

taking you off of POI.

In chats with Colonel Oltman, Colonel Choike

5192

09083

1

-- I remember even sending a couple of emails -- I said, hey, I need

2

him to do the legwork.

3

about it -- again, in talking to the psychiatrist -- when I asked him

4

-- I said, hey, just so I know, is this status that he’s in, and for

5

the length of time that he’s in it, is it causing him harm?

6

both -- both Doc Russell and Doctor Malone said no.

7

I stated before, sir, had they told me that this is causing damage --

8

it didn’t even have to be considerable, just any kind of damage --

9

yes, I would have taken him off.

I have no issues taking him off.

I thought

They

But -- again, as

But, again, I would have had to be

10

creative and -- and kind of look for other ways.

11

just -- the issue wasn’t taking him off.

12

behavior wise in that facility, you know.

13

decreased communication, not even submitting me a chit -- I mean my

14

issue is for inmates -- and I told them all the time, if you don’t

15

feel comfortable talking to me, talk to your command.

16

I fully realize that whoever comes down to do command visits -- maybe

17

they don’t have the best rapport -- it’s kind of like, hey, I have to

18

come see you.

19

big on.

20

find out who’s not getting command visits -- that kind of thing.

21

a matter of fact, we had a Navy detainee who had issues.

22

got involved.

23

there’s no communication -- I didn’t care if he would -- maybe he

What do you need?

I didn’t play around.

But, again, it’s

The issue was what we see
Again, looking at history,

And sometimes

But that’s another thing that I was
I used to talk to the counselors to

And they squared it away.

5193

As

I quickly

So -- you know, when

09084

1

would talk to Staff Sergeant Jordan because he’s in the Army.

2

if he had a close relationship with him -- something.

3

tried, sir.

4
5
6

Q.

Maybe

But I just

You know.

What effect did the underwear comment have on your decision

making going forward?
A.

You know, it was just one of those things.

I was open to

7

review it again.

8

would consider that strongly.

9

need to just -- you need to have a good conversation with me not

And had he asked for it back, you know, of course I
And I would tell him, hey, look, you

10

just, hey, I want my underwear back.

So the effect it had going

11

forward was just one of those things of, you know, we’ll review it

12

case-by-case.

13

honest with you, that day -- with everything that took place, I was

14

just a little frustrated that day.

15

I realize how it put you all in a heightened state of maybe of alert

16

of something.

17

understand why you did it.

18

I’m just joking.

19

you know, there are a lot of things we just can’t take lightly.

20

mean if I’m walking, you know, somewhere in a building or something,

21

and I say fire, fire, that’s going to -- people are just all going to

22

run out -- go crazy.

23

and think.

If maybe he comes back and says, ma’am, to be very

Honestly, you know, I feel bad.

But could I please have it back?

This is -- I

You don’t know me well enough to know if

And unfortunately, sir, in a -- in -- in a jail,

Where’s the fire?

They’re not going to stop

So, again, sir, comments made prisoners; not just

5194

I

09085

1

Manning, we have to -- you know, it’s some things we have to kind of,

2

you know, take seriously.

3

to him and giving it back to him, again, had we talked or had he

4

explained what got him to that point that day.

5

- getting the new charges or getting the 138 response from Colonel

6

Choike.

7

Q.

After the March comment, the brig obtained a suicide smock

for PFC Manning.

9

smock?
A.

Maybe it wasn’t the -

I don’t know, sir.

8

10

But, again, I was not opposed to talking

What complaints did PFC Manning make about the

He never complained to me.

But I know there’s one time he

11

got stuck in it and he-- but he never said, hey, it’s either too big

12

or too small.

13

the best one they could find at the time.

14

ma’am, this smock is either -- it’s -- I’m having problems with it or

15

-- or anything like that.

16

just said -- I think he said something to the effect of I just hate

17

this stupid thing, or something.

18

me or talked to me again when I would make the rounds every day.

Headquarters Marine Corps purchased those.

And that’s

But he never told me, hey,

I did hear -- I guess when he got it -- he

But he never submitted a DD 510 to

19

Q.

Did he ever complain about irritation -- skin irritation?

20

A.

No.

And the other thing, sir, again, just like with the

21

psychiatrist, I would always meet with Commander Bui, he was the

22

medical officer at OCS at the time.

23

would with the psychiatrist.

So we would talk just like I

And I would ask about medication

5195

09086

1

refills.

Are everybody up on refills?

Any problems that I need to

2

be concerned with?

3

HIPAA, but he would just sum me up everybody’s good to go, or, hey, I

4

got to order something for somebody or this prisoner’s going to need

5

blood work.

6

again, I -- you know, I always maintained communication and very

7

close relationship with the providers.

8

me.

And he would -- of course without violating

So those were the types of conversations we had.

But,

And nothing was ever said to

9

Q.

Did he ever complain about a rash?

10

A.

No, sir.

11

Q.

Could PFC Manning have complained to the corpsman?

12

A.

Yeah.

If he did, sir, it never made it back to me.

But

13

linens and stuff, sir, we would send outside the facility to get

14

surveyed and then -- so prisoners have fresh laundry all the time.

15

But nothing came to my attention as far as him having a rash or

16

anything ‘cause obviously I would have stopped him from wearing it,

17

and let Headquarters Marine Corps know, hey, I know you bought these,

18

but I’m not letting him wear it because it’s irritating his skin or

19

something like that.

But nobody ever said anything to me, sir.

20

ATC[CPT VON ELTEN]:

21

WIT: You’re welcome.

22

CDC[MR. COOMBS]:

23

Thank you, Chief Warrant Officer Barnes.

Ma’am, if we could have maybe 5 after to

resume?

5196

09087

1

MJ:

Are there any objections?

2

ATC[CPT VON ELTEN]:

3

MJ:

All right.

No, ma’am.

Court is in recess until 5 minutes after 11.

4

[The Article 39(a) session recessed at 1055, 7 December 2012.]

5

[The Article 39(a) session was called to order at 1108, 7 December

6

2012.]

7

MJ:

This Article 39(a) session is called to order.

Let the

8

record reflect all parties present when the court last recessed are

9

again present in court.

10
11

CDC[MR. COOMBS]: Yes.
CROSS-EXAMINATION
Questions by the civilian defense counsel:

14

Q.

Chief Barnes, I remind you you’re still under oath.

15

A.

Yes.

16

Q.

Chief, you’ve been a warrant officer you said since

17

Mr.

Coombs?

12
13

The witness is on the witness stand.

Good to go, sir.

February of 2008?

18

A.

Yes, sir.

19

Q.

And you’ve been in corrections for 16 years?

20

A.

One year out of that time, sir, I was an instructor at the

21

Staff Noncommissioned Officers Academy.

22

I’ve ever been out of the line of corrections, sir.

23

Q.

And that’s the only time

And you took over for CW4 Averhart as the Brig OIC on 24

5197

09088

1

January 2011?

2

A.

Yes, sir.

3

Q.

And CW4 Averhart had 20 plus years of experience, correct?

4

A.

That’s correct, sir.

5

Q.

And every other Marine confinement facility at the time

6

that you were at Quantico had a brig OIC that was at least CW3 or

7

higher, correct?

8

A.

That’s correct, sir.

9

Q.

And at the time you took command obviously you were a CW2?

10

A.

That’s right, sir.

11

Q.

And you told the defense that the fact that you came in to

12

replace a CW4 with 20 plus years of experience spoke volumes about

13

you?

14

A.

I did, sir.

15

Q.

And as soon as you became the Brig OIC, you ordered a

16

classification review for every detainee, correct?

17

A.

That’s correct, sir.

18

Q.

And that’s because you said you don’t do a cookie cutter

19

approach?

20

A.

Right.

21

Q.

You wanted to stay ahead of the game?

22

A.

Say that again?

23

Q.

That’s what you said to the defense; you wanted to stay

Meaning what, sir?

5198

09089

1

ahead of the game by doing a complete classification review of all

2

the detainees.

3

A.

No.

I said I wanted my own assessment, sir.

Because,

4

again, Chief Warrant Officer Averhart ran the brig his way -- and

5

just like we talked that day you came up to me and said the same

6

thing, sir.

7
8

Q.

Yeah.

So you didn’t want to follow CW4 Averhart’s

decisions just because he did it, correct?

9

A.

That’s correct, sir.

10

Q.

You wanted to make your own determinations?

11

A.

That’s correct, sir.

12

Q.

And you didn’t reclassify Manning after you did this

13

initial classification review, correct?

14

A.

Right.

15

Q.

And the reason it didn’t -- you didn’t reclassify him was

16
17

His custody did not change, sir.

That’s correct.

because you told the defense you needed more time to get to know him?
A.

I don’t know if I was saying that to the defense, sir.

I

18

said, again, that initial -- our review of all inmates was to just

19

make sure that by my standards they were properly classified.

20

again, I had said, you know, I don’t -- you know, I like to make my

21

own assessment.

22

as changing his custody I need more time.

23

you know -- probably saying words along the effect of, hey, look, I’m

But

But I don’t recall telling the defense that as far

5199

I said -- I remember --

09090

1
2
3

open to make changes.
Q.

You don’t recall telling the defense that you wanted to

determine how he would react to the change in leadership style?

4

A.

I don’t recall telling Captain Tooman that, sir.

5

Q.

You don’t recall saying that you thought you needed about

6

30 days in order to see how he would change to the new leadership

7

style and for you to get an idea of who he was before you made a

8

decision?

9

A.

I don’t quite recall that, sir.

10

Q.

Now when you say you don’t recall that, are you saying you

11

don’t believe that happened?

Or are you saying I just don’t recall?

12

A.

Sir, I just don’t recall.

I mean, Captain ----

13

Q.

Does that sound like you where you might say, you know

14

what, when I come in -- especially with someone like PFC Manning -- I

15

want to see how he reacts to the change in leadership style?

16

that sound like you?

17
18
19

A.

I mean in general, sir, I just try to establish rapport

with prisoners.
Q.

Does

And, again -- yeah, you could phrase it that way.

Well, I wanted to see if that sounded like you where you’d

20

want to say, you know, what, as -- as the new Brig OIC, change in

21

leadership style, I want to see how the detainee reacts to my new

22

leadership style.

23

A.

Does that sound like you?

Yes, sir.

5200

09091

1

Q.

And does it sound like you to say, especially with PFC

2

Manning -- or actually with any detainee -- I want to have a period

3

of time to observe them so that I can see what type of detainee they

4

are with my own eyes?

5

A.

I mean -- yes.

6

Q.

Okay.

7

With any detainee, sir, yes.

So you kept PFC Manning on for that first month in

MAX and POI just like your predecessor, correct?

8

A.

Yes, sir.

9

Q.

And when you took over for Chief Averhart you got the

10

standard briefing from him on all the detainees?

11

A.

Yeah, he just -- yeah, he briefed me on the inmates, sir.

12

Q.

And that briefing included PFC Manning?

13

A.

That’s correct.

14

Q.

And you believe the difference with PFC Manning as opposed

15

to the other detainees was the risks that were posed by -- in terms

16

of people calling the brig or mail packages being coming -- being

17

sent to the brig and the protests, correct?

18

A.

Could you repeat that question, sir?

19

Q.

Right.

20

detainees --

21

A.

Right.

22

Q.

-- to include PFC Manning.

23

The difference -- you got briefings on all the

And the main difference from

your perspective with PFC Manning was the -- the attention the brig

5201

09092

1

was getting by phone calls; maybe they would be threatening or

2

whatnot, packages arriving at the brig, or protests outside of

3

Quantico?

4

A.

Yes, I was concerned with, sir.

5

Q.

I’m sorry.

6

A.

Yes, sir.

7

Q.

So -- and then Chief Averhart briefed you on all these

8

things?

9

A.

He did, sir.

10

Q.

He also briefed you on the fact that a weekly progress

11

report was needed to be filed up to the Security Battalion Commander?

12

A.

Yes, sir, he did.

13

Q.

And that was a weekly progress report specifically on PFC

14

Manning?

15

A.

That’s correct, sir.

16

Q.

Now you didn’t do weekly progress reports on any other

17

detainees?

18

A.

No, sir.

19

Q.

And you understood that these were going up to the Security

20

Battalion Commander, Colonel Oltman?

21

A.

That is correct, sir.

22

Q.

And that he would be forwarding them up to Colonel Choike?

23

A.

That’s what I was told, sir, yeah.

5202

09093

1
2

Q.

And you also were told that Colonel Choike then would be

sending these up to General Flynn?

3

A.

I was not told that, sir.

4

Q.

So as you sit there on the stand under oath do you believe

5
6

that these reports were being forwarded up to General Flynn?
A.

I mean they could have been, sir.

But, again, every week I

7

sent it to Colonel Oltman.

8

-- yes, it was mentioned that Colonel Choike is engaging.

9

to see what’s going on -- and he gets them.

10

I didn’t know.

11

star MCCDC at the time, sir.

And, again, through conversations I know

12
13
14

Q.

He wants

But as far as that, I --

I was -- maybe it did go to him.

He was the three-

And I just want to get, Chief, from your perspective why

you thought that it would likely or might be going to General Flynn?
A.

I mean, again, sir, he’s the three-star that runs MCCDC.

15

And obviously this is a high-profile case.

16

just wanted to know, you know, hey, how’s he doing on a weekly basis?

17

I don’t know, sir.

18

Q.

Maybe for himself, he

And I’m not asking you to say why he was receiving it.

But

19

from your perspective as the Brig OIC, you believed it was likely

20

that General Flynn would be receiving these reports as the three-star

21

MCCDC?

22
23

A.

Again, sir, you know, possibly.

my chain and -- and that was it.

But, again, I sent it to

I mean, I -- could I just assume,

5203

09094

1

okay, well this is the guy in charge of the base, this may be

2

something he wants visibility on.

Sure it’s a possibility, sir.

3

Q.

And did you believe it was a possibility at the time?

4

A.

At the time, no, sir.

I did not know.

To be very honest,

5

a lot of things at Colonel Choike’s level or above I wasn’t involved

6

with.

7
8

Q.

So at the time you did not believe that these reports were

going up to General Flynn?

9

A.

I had no way of knowing, sir.

And, again, I honestly did

10

not think about, okay, who after Colonel Oltman or Colonel Choike is

11

getting these weekly reports.

12
13

Q.

Okay, so that’s your testimony right now; at the time you

didn’t believe they were going up to General Flynn?

14

A.

I didn’t think about that -- no, sir.

I just knew Colonel

15

Oltman -- Colonel Choike.

16

that, okay, he runs the base.

17

had no way of knowing what Colonel Choike did with those reports, or

18

Colonel Oltman after he sent it to Colonel Choike, sir.

19
20

Q.

So, again, that would be an assumption
He might want to be engaged.

But I

And you weren’t assuming that they were going to General

Flynn?

21

A.

Sir, again -- sir, I’m not quite sure what you’re getting

22

at.

I mean, again, when I sent those weekly reports to Colonel

23

Oltman -- you know, again, in some conversations Colonel Choike would

5204

09095

1

mention reviewing those reports.

2

sat and said, well, I wonder what General Flynn thinks when he reads

3

these?

4

level I did not get involved in conversations between Colonel Choike

5

-- General Flynn, or Colonel Oltman -- General Flynn.

6

involved in those things.

7
8
9

Q.

But, again, I, in my mind, never

Again, you have to understand something, sir, at the brig

I did not get

And were you aware that Gunny Sergeant Blenis believed that

these reports were going up to General Flynn?
A.

Okay, sir -- may be.

When -- when they took over last year

10

-- when Manning got there last year, whatever protocols that were in

11

place, whatever they -- they could have been told directly that it

12

was going to him.

13

were doing our changeover, he was just telling me, hey -- I asked him

14

what requirements does the battalion or base commander have?

15

talked about that.

16

Colonel Choike to see what they did with it.

17

Blenis said that, sir, again, back in 2010 when I was not at the

18

facility, maybe they were told, hey, General Flynn wants these.

19

don’t know, sir.

20

Q.

Okay.

I have no clue, sir.

All I’m saying it when we

He

And, again, I never questioned Colonel Oltman or
So if Master Sergeant

I

And -- and that was never a discussion with you and

21

anyone in your staff that these reports might be landing on General

22

Flynn’s desk?

23

A.

No, sir.

I don’t recall having any conversation with my

5205

09096

1

staff saying, hey, these reports are going to be on General Flynn’s

2

desk ‘cause I wasn’t -- I wasn’t told.

3

So if he wants to be engaged, he can ask for those things.

4

Q.

Okay.

But, again, he runs the base.

And when you came aboard Colonel Choike never told

5

you specifically, hey, this is what you need to do with PFC Manning,

6

correct?

7

A.

No, sir.

8

Q.

And ----

9

MJ:

Wait a minute.

10

Q.

“Correct” meaning he never told you?

11

A.

He never -- he never told me to keep in a status, sir.

12
13

Is it correct or not correct?

Colonel Choike never told me that.
Q.

Okay.

His guidance to you -- at least what you told the

14

defense -- was something to the effect of “Welcome aboard, I know

15

there’s a lot going on.

16

your judgment.

17

corrections subject matter expert.

18

if there are detainee decisions to be made.”

19

along that line to the defense?

20

A.

I expect you to be professional.

They put you in charge of the brig.

Something similar.

I trust

You are the

I’m going to have to rely on you
Do you recall saying

I won’t say it was that exactly, but --

21

because I was asked about the nature of that conversation and some of

22

that sounds correct, sir.

23

Q.

Okay.

Anything stand out from there where you say that

5206

09097

1

doesn’t sound correct?

2

A.

I mean I don’t recall everything I told Captain Tooman a

3

while back.

But I do remember saying that -- he says, hey, you’re

4

the subject matter expert.

5

professional.

6

Q.

Welcome aboard -- ready to be

And that was it, sir, that I can remember right now.

Okay.

And then you told the defense that Colonel Choike

7

would never be so unprofessional as to tell you how to run your brig

8

or to treat detainees?

9

A.

That’s correct.

10

Q.

And you said if, in fact, you were told by Colonel Choike

11

how to do something like run your brig or treat a certain detainee

12

your response would be “Well, sir, I’m the Brig CO for the reason and

13

I know how to run a brig.”

14

A.

No, sir.

15

Q.

You wouldn’t have responded?

A.

Like I said earlier, sir -- just like I told Colonel

16
17

How would you have responded

then?

18

Oltman, if I make a decision based on my best correctional judgment -

19

- excuse me, and knowledge and I am directed to do something

20

otherwise, I would just prefer that in writing so that at the end of

21

the day I can show, hey, I was directed to do that.

22

be so disrespectful to talk to Colonel Choike in that manner.

23

Q.

Okay.

So --

5207

But I would not

09098

1

A.

That was just ----

2

Q.

-- if he were -- as we said in the previous question so

3

unprofessional as to tell you how to run your brig, your response

4

would have been not, hey, I’m the CO for a reason, I’m running the

5

brig, it would have been, okay, give me that in writing and I’ll

6

execute to your direction?

7

A.

Yes, sir.

8

Q.

Now you obviously knew that you were the commanding officer

9

of the brig though, right?

10

A.

That’s right, sir.

11

Q.

And weren’t you empowered by the SECNAV instruction to make

12

these decisions?

13

A.

Yes, I have the authority to make decisions, sir, yes.

14

Q.

Have you ever had a situation -- I know you said you were a

15

brig commander for a period of time prior to Quantico, right?

16

A.

Yes, sir, for a short period of time, yes.

17

Q.

And have you ever had a situation where a brigade level or

18

base commander told you how to hold a particular detainee?

19

A.

No, sir.

20

Q.

That would have been a first for you if Colonel Choike did

22

A.

That’s correct, if he did it, sir.

23

Q.

Now, you also said that as far as being a brig commander

21

that?

5208

09099

1

that’s not normal for a CW2?

2

A.

That’s right, sir.

3

Q.

And you told the defense, again, that -- you believed that

4
5

spoke volumes about you?
A.

That’s right.

That they had confidence in -- in my

6

leadership and -- and experience to make that decision ‘cause I don’t

7

get, again, to pick where I go, you know.

8
9

Q.

Sure.

Now you conducted a review of PFC Manning’s MAX and

POI status every week, correct?

10

A.

Yes, sir.

11

Q.

And that was the same as CW4 Averhart?

12

A.

What do you mean what was the same; the process -- or what

13
14
15

are you talking about, sir?
Q.

The same being that they conducted a review of PFC

Manning’s status every week?

16

A.

Yes, sir, I continued that.

17

Q.

And although not required by the SECNAV be every week, you

18

informed the defense that a lot of facilities do that every week?

19

A.

That’s correct, sir.

20

Q.

That’s actually kind of been the norm?

21

A.

That’s correct, sir.

22

Q.

Even though under the SECNAV every 30 days the standard of

23

practice within your expertise is we’re going to do it every week?

5209

09100

1

A.

For MAX custody inmates, sir, that’s correct.

2

Q.

All right.

3

communication with PFC Manning was going well?

4
5
6

So in your first 30 days you felt that your

A.
good.

I can say when I first took over, you know, everything was

There were no issues.
Q.

And I think -- I wrote down what you said on direct; you

7

guys would talk about food.

8

working out.

9

right?

10
11
12
13

A.

You would talk about basketball, about

And he even made an occasional comment about your hair,

Yeah, he might notice it’s different or something like

that, yeah.
Q.

And -- and so -- at least at this point you thought -- you

said your communication with you is good, correct?

14

A.

In the beginning, yes, sir, it was.

15

Q.

And you also said on direct that the communication with the

16

staff was good too at that point as well?

17

A.

From what I saw, yes, sir.

18

Q.

So when you spoke with PFC Manning on your rounds -- I

19

asked you to give me kind of an example of a typical conversation --

20

or at least Captain Tooman did, and you gave the following example --

21

and tell me if this sounds about right.

22

A.

[Responded in the affirmative.]

23

Q.

Hey, good morning.

How are you -- that’s you.

5210

Manning

09101

1

responding: Good.

Any problems with chow?

2

was pretty good this morning, ma’am.

3

ate such and such.

4

such?

5

go.

6

your typical conversation?

Manning responding; it

I wasn’t that hungry so I just

And you asking; any problems with the staff or

And he says; no, ma’am.

Then you respond; all right.

And you move on to the next person.

Good to

Does that sound about like

7

A.

For the most part, sir, yes.

8

Q.

Now as your conversations with him were being done when you

9
10
11
12
13
14

were making the round these would normally be about 20 seconds.
Would you agree with that?
A.

No, it would be more than 20 seconds, sir.

talked ---Q.

How long would you speak to him then?

You’re -- this is

when you’re making the rounds with every detainee, correct?

15

A.

Right.

16

Q.

How long would you speak with him then?

17

A.

It would not be 20 seconds, sir.

18

You know, I

But, again, sir ----

wouldn’t be like, you know, 5 or 10 minutes.

But at the same time it
I mean -- again ----

19

Q.

So how long would you say?

20

A.

I’d say -- I’d say a couple of minutes, sir.

21

Q.

So at some point within those -- after the 30 days or so

I mean ----

22

and as you get into the March timeframe, you notice a difference in

23

the minute or two conversations that you were having with PFC

5211

09102

1

Manning, is that correct?

2

A.

That’s correct, sir.

3

Q.

You believed that he was more curt with you?

4

A.

Yes.

5

Q.

He was never disrespectful during these round conversations

6

And, again, lack of eye contact was in there.

that you were having?

7

A.

No, sir.

8

Q.

But he would just use one word answers instead of something

9

more verbose?

10

A.

Right.

11

Q.

And he sometimes as you said wouldn’t maintain good eye

12

contact?

13

A.

That’s correct, sir.

14

Q.

And you believe that this communication with PFC Manning

15

degraded over time then?

16

A.

Yes, sir.

17

Q.

And this concerned you?

18

A.

It did, sir.

19

Q.

And the concern factored into your decision to keep PFC

20

Manning on MAX and POI I imagine?

21

A.

Yes, sir, it was one of the factors.

22

Q.

And so let’s -- let’s now -- let’s now talk about the C&A

23

board just for a moment.

You were also concerned about PFC Manning’s

5212

09103

1

appearance before the C&A board, correct?

2

A.

3

said to them.

4

Q.

5

board enough?

6

A.

That’s correct, sir.

7

Q.

And you thought he should be appearing more often

8

Not so much concerned about his appearance -- but what he

Well you were concerned he wasn’t appearing in front of the

especially if he wanted to get off of MAX and POI?

9

A.

Yes, sir.

10

Q.

You thought if he appeared before the board he could

11

explain himself and communicate with the staff about why he thought

12

he should be off of MAX and POI?

13

A.

That’s correct, sir.

14

Q.

You made a point when you arrived in telling PFC Manning

15

that he needed to appear in front of the C&A board?

16

A.

Yes, sir.

17

Q.

And PFC Manning, to your knowledge, appeared in front of

18

the C&A board on three occasions?

19

A.

Yes, sir.

20

Q.

Now in your experience is it typical for a detainee to

21
22
23

appear in front of the C&A board?
A.

Well it depends on what they were being reviewed for, sir.

I mean, I’ve seen some detainees be good with it.

5213

They feel that

09104

1

their counselor can articulate their needs well.

2

done both ways, sir.

3

board members may have had questions for that detainee.

4

they don’t.

5

Q.

So I’ve seen it

But normally they don’t unless, you know, the
But normally

And we’ve heard other testimony that it -- it’s actually

6

extremely rare for a detainee to appear in front of a C&A board.

7

Would you agree or disagree with that?

8

A.

9

“rare.”

I mean, it’s not common, sir.

I don’t know if I would say

But, again, with -- whoever has testified before -- we all

10

come from different backgrounds, we’ve been in different lengths of

11

time, so -- again, for me, it just wasn’t common to see that detainee

12

in front of the C&A board, sir.

13
14

Q.

Okay.

And I want to ask you a couple of questions about --

about the C&A forms, okay.

15

A.

16

CDC[MR. COOMBS]:

17

Okay, sir.
All right, so I’m showing you Enclosure 32

of Appellate Exhibit 259 [handing the document to the witness].

18

WIT: Okay.

19

Q.

And I first want to start off with -- and I know this is

20

kind of before your time, but you said you reviewed the C&A board

21

results as part of kind of your overall review of PFC Manning, is

22

that correct?

23

A.

Yes, sir.

I kind of go through them -- go through them

5214

09105

1

kind of just see.

2

But still just to kind of see -- he’s appearing, yes or no; that kind

3

of thing.

4

Q.

Okay.

But, again -- you’re right; it was before my time.

And so I want to ask you just a couple of questions.

5

So you see the first one on Page 1; this is a C&A board for July

6

29th, basically bringing him and putting him in MAX and SR, is that

7

correct?

8

A.

Let me take a look [reviewing the document].

9

Q.

And this wouldn’t be the entire board meeting.

10
11
12

This would

be just his change of status, is that right?
A.

[Looking at the document] Well, no, this was filled out --

yeah, this is from a board, sir.

13

Q.

Okay.

14

A.

[Responded in the affirmative.]

15

Q.

-- this is a C&A board meeting on July 29th apparently to

16
17

So from -- what you’re looking at now one Page 1 --

say he’s should be in MAX and SR?
A.

Right.

Whenever there’s a new confinement, yes, the C&A

18

board meets the next day.

19

see -- just go over everything the duty brig supervisor, did, you

20

know, the night before.

21

from a board that was held, sir.

22
23

Q.

Okay.

into now 2011.

Because what they’re doing is meeting to

So, yes, this would -- this board -- this is

And then when we look to Page 2, we skip all the way
So now we go from July 29th --

5215

09106

1

A.

Okay.

2

Q.

-- 2010 to the very next C&A board form is January 3d of

4

A.

[Looking at the document and responding in the

5

affirmative.]

6

Q.

3

2011.

Now from your experience is that typical not to have C&A

7

board forms being -- or the results of the board being reduced to a

8

form?

9

A.

Well I’ve seen it done both with this form and recorded in

10

CORMIS ‘cause, again, the SECNAV just says, you know, the

11

recommendations of the board shall be recorded.

12

know, when or how or where.

13

would use this and CORMIS, or this or CORMIS, but from my experience

14

-- and even when I’ve been enlisted, we’ve mostly used the worksheet.

15

But, again, it can be recorded in CORMIS.

It doesn’t say, you

So I’ve seen it, again, where brigs

16

Q.

Okay.

And I’ll cover CORMIS in a moment.

17

A.

Okay.

18

Q.

But from your experience -- and it looks like once you took

19

over as the Brig OIC they were always reduced to the form, is that

20

right?

21
22
23

A.

Yes, sir.

But also -- it was also put into CORMIS.

But,

yes, we used the forms every -- every day, sir.
Q.

And is that because that was your preference as the Brig

5216

09107

1

OIC that, hey, I needed to have this reduced to writing or was that

2

somebody else’s preference?

3

A.

4

be recorded.

5

roster as well, or in CORMIS.

6

be something that the CO will sign saying what prisoner -- what

7

custody to what or what -- or what -- you know, work assignments

8

would change or something to that effect.

9

preferred the worksheet so I know the board members.

10
11

I mean it’s my preference.
So it can be on this.

But, again, we know it has to
I could be on the daily change

So at the end of the day there has to

But me personally, I also
And if I have

questions or other stuff, you know, I can ask them.
Q.

So if -- from your time as the Commander, if you found out

12

that the board met, but that you didn’t see this sheet, and they

13

wanted you to approve what the board recommended, would you have

14

said, well, hold on a second, I need to see the sheet?

15
16
17
18

A.

Yeah.

I mean, it was standard practice, sir.

But, yeah, I

always looked for the sheet with the book so I can review it.
Q.

And you said in CORMIS -- is CORMIS a -- explain CORMIS for

me for a moment?

19

A.

CORMIS stands for the Corrections Management Information

20

Systems, sir.

21

you know, of that inmate.

22

sentence computation in there.

23

charges, the sentence if they’re post-trial; that kind of thing.

And basically that has basically an electronic record,
If they’re a prisoner, you’ll see a
You’ll see, you know, the alleged

5217

So

09108

1

CORMIS is just a database that’s used to put the prisoners’

2

information in, sir.

3

Q.

Okay.

And does -- when you say that the C&A board is put

4

in CORMIS, what do -- what do they put inside CORMIS for the C&A

5

board results?

6

A.

Well they’d just put C&A board, and then in the field box

7

they’ll just type out; the board met that day, the board members,

8

whether or not -- maybe the detainee appears or something like that.

9

But there’s -- this form is -- again, like the localized -- most of

10
11

this would not be in CORMIS, sir.
Q.

Okay, so you wouldn’t put the forms in CORMIS; you might

12

just have a blurb saying C&A board met, recommended the person stay

13

in whatever custody status --

14

A.

Right.

15

Q.

-- and that was approved?

16

A.

Right.

The form remained in the prisoner’s book, however,

17

upon transfer then everything in the book is scanned into CORMIS.

18

But typically, on a day to day basis, this would be filed in the

19

book, sir.

20

CORMIS the C&S board met; that kind of thing.

21

And, again, you know, they’ll still put a note maybe in

CDC[MR. COOMBS]:

And I’m showing you Attachment 5 to the

22

defense’s motion, Appellate Exhibit 258 [handing the document to the

23

witness].

5218

09109

1

Q.

And I’m going to show you this because I believe this is

2

what’s been represented as CORMIS.

Is the CORMIS to you?

3

can just kind of look through that and tell me.

And if you

4

A.

[Looking at the document] Yeah, this looks like CORMIS.

5

Q.

And so when -- and I see a lot of the stuff in CORMIS is

6

the counselor’s notes.

7

CORMIS?

8

A.

9
10
11

Yes, sir.

Is that typical of what’s -- what’s put in

They have to put the -- their notes in there.

So most times, yes, you would see counselor’s notes.

But, again,

sir, you would also see board results.
Q.

And can you, if you would, Chief, just find one example of

12

where they -- the boards results is documented in CORMIS.

13

tell me what page and then, if you would, just read that.

14
15

A.
me a lot.

[Looking at the document] I’ll be a minute, sir.

And just

You gave

So ----

16

Q.

No, just -- just one example.

17

A.

Okay.

18

Q.

I just -- your very first time you come across anything

19

that references a C&A board.

20

[The witness did as directed and reviewed the document.]

21

A.

Okay, I’ve got one here.

It says ----

22

Q.

And what page are you one just so I know?

23

A.

I’m sorry.

It’s Page 8, sir.

5219

09110

1

Q.

Okay.

2

A.

[Reading from the document] Yeah, it says board review and

3

results; it said he was notified that his custody and status would be

4

reviewed by the classification and assignment board today for a seven

5

day review.

6

did not request to appear before the board.

7

Brig Psychiatrist on 18 March 2011.

8

problems since his last review.

9

sorry -- since his last review and have been an overall average

SND, said named detainee, did not have any questions and

10

detainee.

11

POI, and remain in SQN.

12
13

Q.

It is recommended that SND -- I’m

Okay, and who -- who put that into CORMIS?

Can you tell

from that entry?
A.

15

CDC[MR. COOMBS]:

17

SND had not presented any

It’s recommended that SND be -- remain MAX custody, remain

14

16

SND was evaluated by the

It says Gunnery Sergeant Blenis, sir.
All right.

I’m retrieving Attachment 5 from

the witness [retrieving the document from the witness].
Q.

So in this instance then the extent of what was documented

18

for the C&A board was, hey, we met, and we recommended this, and this

19

is what our recommendation is?

20

A.

Looking at those notes, sir, yes.

21

Q.

And with regards to the notification to the detainee that

22
23

he could, if he wished, appear before the board?
A.

[The witness responded in the affirmative.]

5220

09111

1
2
3
4

Q.

The only documentation to support that is whatever Gunny

Sergeant Blenis wrote?
A.

No, sir.

One of -- I made a -- I actually made a change to

the form they were using before.

And I added ----

5

Q.

And I’ll talk about that --

6

A.

Okay.

7

Q.

-- but I’m saying for here, what’s in CORMIS --

8

A.

[Responded in the affirmative.]

9

Q.

-- there’s no documentation in CORMIS saying detainee

10
11

refused to appear?
A.

Well he typed his notes though, sir.

But -- I mean, that’s

12

what he put in there that SND was advised -- I just read it -- that

13

he be reviewed.

14

okay, he signed something saying -- that it’s not probably going to

15

be scanned into CORMIS at that time.

16
17

Q.

Right.

But if you’re looking for something else to show,

And so the only thing that we have to say that the

detainee didn’t want to come is what’s written in CORMIS there?

18

A.

No, sir, it’d be on the brig form.

19

Q.

Well that’s what we’re going to go to now.

20

A.

Okay.

21

Q.

So -- so then in January we have a brig form, right?

22

A.

[Responded in the affirmative.]

23

Q.

And it -- for whatever reason it gets started to be used

5221

09112

1

again on January 3d.

Did Chief Averhart ever tell you why they

2

started to use the form again right after January?

3

A.

I don’t recall us talking about that, sir.

4

Q.

Okay, and my -- again, my understanding of your testimony,

5

and you correct me if I’m wrong, you would expect them to use this

6

form?

7

A.

Yeah, the -- to document, you know, the board -- the

8

proceedings.

9

Q.

Yes, sir.

And so now I want to go to the very first time PFC Manning

10

appeared before the board, which is 21 January, which is Page 7 of

11

26.

12

before the board?

Do you see where there’s election for PFC Manning to appear

13

A.

[Looking at the document] Yeah, it’s up top, sir.

14

Q.

And I want to ask you about that because it’s not on the

15

previous form, Page 6 -- do you see that on Page 6?

16

A.

[Responded in the affirmative.]

17

Q.

So it’s not on that form, right?

18

A.

Right.

19

Q.

But it is on Page 7, the very first time he appeared.

20
21

Can

you tell me why that was added, if you know?
A.

Okay.

Well during our change over, sir, we did talk.

And,

22

again, I was still kind of reviewing how they do things or whatever.

23

And I looked at the form.

And I asked them, I said, you know, with

5222

09113

1

all due respect -- Chief Warrant Officer Averhart’s still in the

2

seat, I said, but where -- how do I know that that prisoner was told

3

-- or detainee that they’re getting reviewed?

4

it, and they said, you know what, ma’am -- okay, good to go.

5

that’s what you want -- you’ll be taking over.

6

there.

7

toes, but, you know, I was just asking questions like -- stuff like

8

this.

9

with it, sir.

10
11
12

So they thought about
If

We’ll add that in

So to be very honest, I just did not want to step on his

So -- and -- you know, he -- I guess he didn’t have a problem

Q.

Okay.

And so this was -- then the genesis for this was

from you?
A.

Right.

Because, again, I was in the facility -- around

13

that time we were going back and forth -- left seat, right seat kind

14

of thing -- kind of changing over.

15

going through things, seeing how they do things, and just asking

16

questions, sir.

17
18

Q.

Okay.

And, again, I was just kind of

And then, you know, as we go on, Gunny Sergeant

Blenis happens to be like the senior member --

19

A.

[Responded in the affirmative.]

20

Q.

-- for pretty much every board for PFC Manning, would you

21
22
23

agree?
A.

Well a lot of him he was, sir.

like Gunnery Sergeant Fuller.

But at times it would be

So it just kind of depended on staff

5223

09114

1

availability.

2

Q.

3

this.

And so I want to ask you now a question about -- about

We had previous testimony from CW5 Galaviz --

4

A.

Okay.

5

Q.

-- that the process was such that the counselor would fill

6

out this form before the board met.

7

A.

Yes, sir.

Is that your understanding?

And speaking also from experience, the counselor

8

usually will meet with that detainee.

9

time.

10
11

That form is done ahead of

They’ll talk to the detainee about what they’re recommending.

And then that’s presented to the C&A board.
Q.

Okay.

And then one of the things the counselor’s -- the

12

counselor does is he or she would fill out the -- the recommendation

13

-- the recommendation for the status that they should be in.

14

right?

15

A.

That they think -- right.

16

Q.

And my understanding is that if the counselor’s the

Is that

That’s correct, sir.

17

advocate for the detainee, sometimes that may be where the

18

counselor’s advocating, hey, you should lower the status and try to

19

convince the board why, is that correct?

20

A.

That’s correct, sir.

21

Q.

And then sometimes because the counselor has seen the

22

detainee, he or she may be advocating that, hey, you actually either

23

should raise the status or you should keep it as the same?

5224

09115

1

A.

That’s correct, sir.

2

Q.

And so the counselor at that point -- the hat that they’re

3

wearing is basically information to board?

4

A.

That’s correct, sir.

5

Q.

Now, Chief -- CW5 Galaviz saw it as a conflict to have the

6

counselor also be a voting member of the board.

7

a conflict?

8
9

A.

No, sir.

Did you see that as

And here is why; that facility before I got there

was reduced to PCF only.

So we lost some of the bodies -- you know,

10

they lost some of the bodies they had.

So when you are right at TO

11

and sometimes below it, you know -- again, the SECNAV says the

12

programs chief, security chief -- so the main areas in the brig;

13

programs, admin’, and security, those would be the board members.

14

it can appear -- and maybe it’s a conflict of interest, when simply

15

it just so happens that’s his counselor as well because -- we try to

16

put the most experienced counselor with MAX detainees or detainees

17

such as Manning.

18

interest.

19

we were working with.

20

Blenis -- I’ve known him for a long time.

21

objective.

22

not like blur the lines or, you know, try to circumvent things.

23

again, sir, with the staffing that we had, it -- that’s kind of how

So

But, no, I didn’t see that as a conflict of

For one, we had no control over the -- you know, the staff
The other things was, I know Master Sergeant
And I know that he’s very

He values his integrity like I do.

5225

And he -- he would
But,

09116

1

it left us.

2

to do it.

3

Q.

I mean there was times he was out and Gunny Fuller had

Well we have all the forms, and pretty much every form he

4

is the senior member of the board.

5

would see -- and I want to see if you agree with me or not -- is

6

because he’s a voting member of the board, and he’s already indicated

7

his recommendation as to the status that PFC Manning should be in

8

before the board really starts to vote --

And I think the conflict that I

9

A.

[Responded in the affirmative.]

10

Q.

-- that the two junior members of the board to him already

11
12

know the vote of the senior board member.
A.

Oh, no, they know he’s making a recommendation, sir.

13

That’s the first thing.

14

you know.

15

worksheets just in general with detainees where they did not always

16

agree.

17

I’m recommending.

18

understand that their vote is their own.

19

oh, well that’s what he’s recommending; let’s go with it.

20

again, not -- it just so happens not in this case, but there are

21

other cases where I saw a difference.

22

on an inmate about giving him interior work detail.

23

said, no, I disagreed.

The other thing is they don’t always agree,

So to be very honest with you -- and I’ve seen some

They understood that, hey, this is my client.

This is what

But the board members, in no uncertain terms,
And they don’t go off of,
And,

For example; they were voting
And some of them

I put him in PC ‘cause he was supposed to

5226

09117

1

testify against somebody and I didn’t know who.

2

safeguard him.

3

differently regardless of that counselor’s recommendations.

4
5

Q.

So I wanted to

So there are times when the board members voted

But in this instance the vote -- the board members never

voted different, correct?

6

A.

In this instance you’re correct, sir.

7

Q.

And would you at least give me that you could see how

8

somebody would say the senior board member; and also the counselor,

9

who’s already made his decision, that might not be a good person to

10

also have as a voting member of the board?

11

A.

12

it that way.

13

Q.

14
15

Could you see that?

You mean -- to be honest, sir, somebody you could look at

And -- but could you see that?

Could you look at that and

say, you know what, I could see that that’s not the ideal practice?
A.

Again, sir, I did not see it that way simply because, one,

16

I knew the board member, and they knew their vote is independent.

17

Again, we had -- that was the best staff we had at the time, sir.

18
19
20

Q.

And -- I know you said that’s the best staff we had at the

time, but you had more than three staff members, correct?
A.

Well, of course, sir, but, again, we aim for those section

21

heads.

I mean there were a couple of times it was a sergeant -- and,

22

again, between, you know, training, people just out of work, again,

23

we try to find the most senior people to be on the board as possible.

5227

09118

1
2

Q.

And as you noted there was an occasion at least where Gunny

Sergeant Blenis wasn’t on the board, is that correct?

3

A.

There were times he wasn’t on the board, sir.

4

Q.

So it was possible to have somebody besides Gunny Sergeant

5

Blenis as the senior board member?

6

A.

That’s correct, sir.

7

Q.

So if you would have seen it as a potential conflict or the

8

ideal practice, you could have said, look, we’re not going to have

9

the counselor also be a voting member?

10
11

That was a possible thing for

you to do?
A.

Not based on the circumstances, sir.

Again, with what we

12

had -- again, I just said I can see how maybe somebody would say this

13

is a conflict of interest.

14

conflict of interest.

15

time, you know, we did what we -- what we could do -- you know, the

16

best that we could do.

17
18

Q.

I explained why I didn’t feel it was a

But, again, with the staff that we had at the

So I guess when Gunny Sergeant Fuller on Page 21 of 26 was

the senior voting member --

19

A.

[Looking at the document] Okay.

20

Q.

-- again, Blenis would have filled out this form as the

21
22
23

counselor, correct?
A.

Well, if Gunny Sergeant Blenis wasn’t there at day, sir --

well he -- well, for one, I don’t know on that particular day if, you

5228

09119

1

know, he was out or not.

2

met with him and made that recommendation and he had training or had

3

to leave.

4

Gunnery Sergeant Fuller’s operations chief, but could he have been

5

the one to fill out that form as well, yes.

6

out from time to time and ----

7
8

Q.

But -- I mean, it could be that maybe he

I can’t tell you for sure on that day -- okay, yes,

I mean, counselors are

But the normal practice would be that the counselor for the

detainee would fill out the form?

9

A.

Right.

10

Q.

So if the normal practice were followed, then in this

11

instance you would have three voting members who have not expressed

12

or ready their opinion as to the status, correct?

13

A.

Not until they meet, sir.

14

Q.

Right.

So from a staffing standpoint, I know you were at

15

minimal staff, but I want to make sure your testimony is clear.

16

you wanted you could have always ensured three voting members other

17

than Gunny Sergeant Blenis?

18
19
20

A.

Well, look -- I mean I’m not exactly sure what -- what

you’re trying to get at, sir.
Q.

If

We ----

I’m just trying to say like if you wanted -- if you said,

21

you know what, I am not going to let the counselor be a voting member

22

of the board.

23

that you could round up three people to sit on PFC Manning’s board?

If you wanted to -- you had the staffing to ensure

5229

09120

1
2
3

A.

Yes I could do that, sir.

But, again, they would not be

holding the key billets that they should be holding.
Q.

Okay.

Now with the membership of the board, was that

4

something that you yourself appointed people to a standing board, or

5

was that kind of ad hoc where you would say we’re doing a board today

6

and you three people are on the board?

7

A.

I didn’t pick the board members, sir.

I mean, they know

8

it’s usually programs chief, security chief and operations or the

9

admin’ chief; so that was standard.

And that’s, you know, what’s in

10

the SECNAV.

11

somebody’s out of work that day, then, of course, you know, we’ll

12

find a replacement.

13

day and say, hey, you, you and you, you’re on the board.

14

Q.

But, again, sir, based on availability -- maybe

But me myself, I didn’t walk around like every
No sir.

So how did the board -- then I’m a little confused because

15

we’ve heard other testimony that there was a standing board members

16

that were selected by the Brig CO.

17

A.

Well -- right.

18

Q.

Under your practice that wasn’t the case?

19

A.

Again, sir, it’s by billet.

Yes, they know that, hey, the

20

programs chief, security chief, admin’ chief, yes, you are members of

21

the C&A board.

22

we’ll -- you know, we’ll have somebody else.

23

practice that the members are appointed so that they know that

And, again, when they’re not available, sir, then

5230

So, yes, that is the

09121

1
2

programs chief, admin’ chief and security chief.
Q.

Is that something where you do -- do that in a memo where

3

you sign and you say, you know, based upon billet these following

4

billets will be members of the board, and these following individuals

5

will be alternates in the case -- in the case of these members not

6

being available?

7

A.

Not a -- not a letter like that with alternates, sir.

But,

8

you know, I believe it was just something to the effect of the C&A

9

board is comprised of and has those billets.

But, again, sir,

10

sometimes people were out; whether it’s leave, you know, or TAD or

11

TDY, and then somebody else would move up.

12

person acting in that billet at the time, sir.

13

Q.

Okay.

So, again, we went on the

Now the first occasion that PFC Manning appeared

14

before the board was, in fact, on 21 January of 2011.

15

before you took command, is that correct?

16

A.

17

CDC[MR. COOMBS]:

And that was

That’s correct, sir.
All right.

So I’m again going to hand you

18

enclosure 32 of Appellate Exhibit 259 [handing the document to the

19

witness].

20

WIT: Yes, sir.

21

CDC[MR. COOMBS]:

22

Q.

23

I’ll put that on Page 7.

I just want to ask you some questions about what you were

told regard -- regarding that time period.

5231

Now the reason you know

09122

1

that -- about the C&A board was because Chief Averhart, I imagine,

2

briefed you on the fact that PFC Manning went to this board, is that

3

correct?

4

A.

Yes, sir.

Again, that was in my change-over -- just

5

walking around and -- still giving him his space, but still staying

6

engaged with what was going on.

7
8

Q.

And you also, I imagine -- as you said, you reviewed the

C&A board documents?

9

A.

That’s correct, sir.

10

Q.

And at the C&A board PFC Manning did, in fact, ask to be

11

removed from MAX and POI didn’t he?

12

A.

I believe so, sir, yes.

13

Q.

And one of the questions the board members asked him was

14

about his comment on the intake questionnaire of always planning,

15

never acting --

16

A.

[Responded in the affirmative.]

17

Q.

-- do you recall that?

18

A.

Yes, sir.

19

Q.

And PFC Manning said something to the effect that the

20
21
22
23

statement was not truthful or may not have been truthful?
A.

I believe, yeah, something that could be false or could

have been false, yes, sir.
Q.

And this raised concerns apparently in the minds of the C&A

5232

09123

1

board members about PFC Manning’s ability to be truthful?

2

A.

Yes, sir, you could say that.

3

Q.

And based upon the board documentation the board followed

4

on with him on questions when they said, well, if you’re lying about

5

that, how do we know you’re not lying about not wanting to kill

6

yourself?

7

A.

Do you recall that?
I don’t recall the exact words, but it was something along

8

those lines like, well, if that statement was false could the fact --

9

could the statement now that you don’t want to harm yourself, could

10
11

that be false also?
Q.

Okay.

And so as the board members asked PFC Manning about

12

that, then PFC Manning responded by saying, obviously that you don’t

13

know that I’m being truthful or not.

14

Correct?

15
16
17

A.

On what I was briefed they asked, you know, could this

statement also be false?
Q.

I could be untruthful.

And he said, yes.

That’s what I was told.

And were you ever -- did you ever talk to the counselors or

18

-- excuse me, the brig psychiatrist about PFC Manning’s tendency to

19

intellectualize things?

20
21
22
23

A.

I mean, I vaguely recall Doctor Malone -- he -- he

mentioned something about intellectual stimulation or something ---Q.

No, I meant like his -- when he thinks about stuff, he

sometimes intellectualizes things; that he talks about things in the

5233

09124

1
2

abstract maybe?
A.

To be honest, sir, I don’t remember.

So for example if

3

someone said, you know, are you, in fact, sitting in that chair right

4

now, and you would say, yes, I am.

5

you might say, well anything’s possible.

6

where PFC Manning’s asked are you lying -- is it possible you’re

7

lying?

8

as a -- as something that PFC Manning might do?

9
10
11

Is it possible you’re not?

make that determination.
Q.

Well from what PFC Manning was asked, he was asked is it

possible that you’re lying right now.

13

possible.

15
16
17

Do you see that

I mean -- again, sir, I don’t know well enough to -- to

12

14

Do you see in this instance

He could say, yeah, it’s possible I’m lying.

A.

A.

And he said it -- it’s

Again, sir, the words are different, but in the general

consensus he said, yes, it could be false.
CDC[MR. COOMBS]:

I’m handing you what’s been marked Appellate

Exhibit 441D [handing the document to the witness].

18

WIT: Okay.

19

MJ:

20

CDC[MR. COOMBS]:

21

Q.

Have you see that document before?

22

A.

[Looking at the document] This is a Word document.

23

And

And what was the appellate exhibit number?
Appellate Exhibit 441D.

haven’t seen a Word document like this, sir.

5234

I

09125

1

Q.

You’ve never seen something like that before.

2

A.

[Looking at the document] I mean the information that’s on

3

there looks like something that could have been captured in CORMIS.

4

But a Word document just like this -- a standalone document, no, sir.

5

Q.

Well how should that form be?

6

A.

I mean if it’s in CORMIS, again, you’ll see either

7

counselor’s notes or if it was a C&A board, you know, like say board

8

review results or something like that, but never just this document.

9

I mean ----

10

Q.

Go ahead.

11

A.

Yeah, I mean -- I just -- again, I just never see a stand

12

alone document like this.

So -- I mean, I don’t know where this

13

would have come from except ----

14

Q.

Can you look at the second page for me?

15

A.

[The witness did as directed] Okay.

16

But, again, they never

typed anything on a standalone Word document like this, sir.

17

Q.

And why don’t they do that?

18

A.

They annotate it in CORMIS, sir.

19

Q.

And so ----

20

A.

And it’s saved in CORMIS.

So.

And this way -- ‘cause, again,

21

this information doesn’t need to be saved anywhere else.

22

is what they use when they annotate their entries -- or the C&A board

23

entries.

They’re not a stand alone document like this.

5235

But CORMIS

So I don’t

09126

1

know where this came from.

2

alone document like this.

3

Q.

But, no, they’ve never given me a stand

And so from when you -- when you looked at the C&A board

4

results as part of your review of the packet, did you see a document

5

like that?

6

A.

No, they would have this worksheet -- you know, and there’s

7

-- but not a sheet like this where all of this where all of this is

8

typed on a standalone document.

9

the document].

They had this sheet [referring to

And if there was something that couldn’t fit on this,

10

they might have an addendum.

11

was typed here, but not -- again, not a document like this, though

12

[referring to the document].

13

Q.

But it would be a continuation of what

And, Chief, can you find within the Enclosure 32 the type

14

of document you would expect to see if they needed to do something in

15

addition to the C&A board?

16

see one of those.

17
18
19
20
21
22
23

A.

I think if you go towards the end you’ll

[The witness did as directed] Yes, a DD Form -- the

continuation sheet, sir.
Q.

And can you tell -- tell me what page you see the proper

continuation sheet on?
A.
in there.
Q.

[Looking through the documents] I think you have a couple
Does it matter which one, sir, or the last one?
No, no, we’ll just do the first one you found.

5236

09127

INSTRUCTIONS FOR PREPARING AND ARRANGING RECORD OF TRIAL
USE OF FORM - Use this form and MCM, 1984,
Appendix 14, will be used by the trial counsel and
the reporter as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a verbatim record is prepared. Air
Force uses this form and departmental
instructions as a guide to the preparation of the
record of trial in general and special court-martial
cases in which a summarized record is authorized.
Army and Navy use DD Form 491 for records of
trial in general and special court-martial cases in
which a summarized record is authorized.
Inapplicable words of the printed text will be
deleted.

8. Matters submitted by the accused pursuant to
Article 60 (MCM, 1984, RCM 1105).

COPIES - See MCM, 1984, RCM 1103(g). The
convening authority may direct the preparation of
additional copies.

12. Advice of staff judge advocate or legal officer,
when prepared pursuant to Article 34 or otherwise.

ARRANGEMENT - When forwarded to the
appropriate Judge Advocate General or for judge
advocate review pursuant to Article 64(a), the
record will be arranged and bound with allied
papers in the sequence indicated below. Trial
counsel is responsible for arranging the record as
indicated, except that items 6, 7, and 15e will be
inserted by the convening or reviewing authority,
as appropriate, and items 10 and 14 will be
inserted by either trial counsel or the convening or
reviewing authority, whichever has custody of
them.

13. Requests by counsel and action of the
convening authority taken thereon (e.g., requests
concerning delay, witnesses and depositions).

1. Front cover and inside front cover (chronology
sheet) of DD Form 490.
2. Judge advocate's review pursuant to Article
64(a), if any.
3. Request of accused for appellate defense
counsel, or waiver/withdrawal of appellate rights,
if applicable.
4. Briefs of counsel submitted after trial, if any
(Article 38(c)).
5. DD Form 494, "Court-Martial Data Sheet."

9. DD Form 458, "Charge Sheet" (unless included
at the point of arraignment in the record).
10. Congressional inquiries and replies, if any.
11. DD Form 457, "Investigating Officer's Report,"
pursuant to Article 32, if such investigation was
conducted, followed by any other papers which
accompanied the charges when referred for trial,
unless included in the record of trial proper.

14. Records of former trials.
15. Record of trial in the following order:
a. Errata sheet, if any.
b. Index sheet with reverse side containing
receipt of accused or defense counsel for copy of
record or certificate in lieu of receipt.
c. Record of proceedings in court, including
Article 39(a) sessions, if any.
d. Authentication sheet, followed by certificate
of correction, if any.
e. Action of convening authority and, if appropriate, action of officer exercising general courtmartial jurisdiction.
f. Exhibits admitted in evidence.

6. Court-martial orders promulgating the result of
trial as to each accused, in 10 copies when the
record is verbatim and in 4 copies when it is
summarized.

g. Exhibits not received in evidence. The page
of the record of trial where each exhibit was
offered and rejected will be noted on the front of
each exhibit.

7. When required, signed recommendation of
staff judge advocate or legal officer, in duplicate,
together with all clemency papers, including
clemency recommendations by court members.

h. Appellate exhibits, such as proposed instructions, written offers of proof or preliminary
evidence (real or documentary), and briefs of
counsel submitted at trial.

DD FORM 490, MAY 2000

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