Title: Volume FOIA 031

Release Date: 2014-03-20

Text: 09460

Volume 31 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 ?surrimarizeo? 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

09461

1

one was not done.

I can’t remember.

2

to get incident reports, you know, not just on him, but other people

3

when--when things would occur that’s outside the normal or something

4

like that--or something like--for example, if a prisoner didn’t feel

5

well and they called medical; that kind of thing.

6

routinely incident reports would be written for anything that’s

7

outside the norm, ma’am.

8

MJ:

9

ATC[CPT VON ELTEN]: No, ma’am.

10

But for the most part, I used

So, yes, you’d--

Any follow-up based on that from either side?

CDC[MR. COOMBS]:

No, Your Honor.

11

[The witness was duly warned, permanently excused, and withdrew from

12

the courtroom.]

13
14

TC[MAJ FEIN]:

Ma’am, the United States requests a 10 minute

recess and it will be ready to call Major Zelek.

15

MJ:

All right, any objection?

16

CDC[MR. COOMBS]:

17

MJ:

No, Your Honor.

Court is in recess until 5 minutes to 1500 or 3 o’clock.

18

[The Article 39(a) session recessed at 1447, 10 December 2012.]

19

[The Article 39(a) session was called to order at 1459, 10 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.

Major Fein?

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09462

1

TC[MAJ FEIN]:

Ma’am, the United States calls Major Timothy

2

Zelek.

3

MAJOR TIMOTHY ZELEK, U.S. Marines, was called as a witness for the

4

prosecution, was sworn, and testified as follows:

5
6

DIRECT EXAMINATION
Questions by the assistant trial counsel [CPT VON ELTEN]:

7

Q.

8

at Quantico?

9

A.

Yes.

10

Q.

Good afternoon, Major Zelek.

11

Marine?

12

A.

I’m been in the Marine Corps for 12 years this summer now.

13

Q.

And what is your current duty title?

14

A.

My current MOS for the Marine Corps is a 4407, I’m a--I’m

15

And for the record, you are Major Timothy Zelek, stationed

How long have you been a

in--I’m a civilian personnel attorney for Marine Corps Base Quantico.

16

Q.

What do you do as a civilian personnel attorney?

17

A.

Primarily I handle civilian personnel matters.

But I also

18

have--handle all the labor issues for the base.

I meet with the

19

Union, do negotiations and stuff, but the majority of my work is done

20

in MSPB hearings or before the EEOC.

21

Q.

When did you arrive at Marine Corps Base Quantico?

22

A.

I arrived at Marine Corps Base Quantico in 2009.

23

Q.

And what was your initial position there?

5568

09463

1

A.

My initial position; I stood up the Civil Law Office.

2

Q.

And how long were you in that position?

3

A.

I was in the Civil Law Office from July of ’09 until

4

December of 2010.

5

Q.

And what happened in December of 2010?

6

A.

In December 2010, both the Deputy IG at Marine Corps Base

7

Quantico kind--he resigned, you know, pretty fast.

8

IG, she decided she was going to retire.

9

the deputy’s office and the IG herself was getting ready to

10

transition.

11

deputy’s--deputy IG office permanently.

And the actual

So there was a vacancy in

So they needed somebody to fill in--you know, in the

12

Q.

And who filled in?

13

A.

That was--I was the one that was selected to become the

14
15
16
17

Deputy Inspector General.
Q.

What did you do--what was your respons--what were your

responsibilities as Deputy Inspector General?
A.

Primarily I was the eyes and ears of the commander.

There

18

was five functions that an IG has, but prim--my primary duties were

19

one of inspection where I’d go and inspect units to ensure that they

20

were complying with different SOPs and stuff.

21

charged with investigations.

22

what was called the Base Commander’s Mailbox, which is similar to

23

like a hotline system where individuals could submit questions,

But then I was also

My daily duties included monitoring

5569

09464

1

problems, or concerns directly to the base commander.

2

one that would actually read those emails and then address those

3

concerns.

4
5
6

Q.

Let’s talk a little bit about each of those.

And I was the

Why would you

conduct an inspection?
A.

Inspections are--are conducted--I don’t want to say

7

annually, but usually every two or three years.

8

inspect the unit to ensure that they have all of their personnel--

9

personnel records up to date.

So you’d go in and

You’d inspect to ensure that they’re

10

following the proper policies for their unit.

And then advise them

11

on what they should--could do better, not only for their unit, but

12

also for the people that they serve.

13

Q.

And what would initiate an inspection?

14

A.

Usually--it’s--it’s all based off a calendar so that if--

15

you know, if you hadn’t done an inspection on a unit over, you know,

16

a year or two, then you’d go back.

17

what units were due inspections during what--during which year.

So we had a running tally as to

18

Q.

And why would you conduct an investigation?

19

A.

An investigation would be conducted if somebody had a

20

complaint about something that was going on at the base, you know.

21

Some of the inspections that--I’m sorry--yeah, some of the

22

investigations that we did--excuse me--had to do with different

23

community services, for instances, that was being done at the base,

5570

09465

1

or somebody had a complaint with the cleanliness of a building, or

2

somebody had some concerns over the security at certain buildings.

3

So they would send in their complaint to the Base Commander and then

4

I’d look into it.

5

Q.

And who was able to lodge a complaint?

6

A.

Pretty much anybody is able to lodge a complaint.

There’s-

7

-not only do we have a hotline where somebody could call in and voice

8

their concerns, but there was--like I said, you could actually go on

9

the Quantico website and there’s a link that you hit on the Quantico-

10

-Marine Corps Base Quantico website and actually submit an email that

11

would go directly to the Base Commander and I’d read that email.

12

Q.

And how did you determine which complaints were

13

investigated?

14

A.

All the complaints were looked into to some form.

Some

15

took more work than others.

16

have to pull the SOP or regulation.

17

an, you know, a one liner.

18

extra questions, you know, what are they really hoping to find out

19

about this.

20

kind of go back and kind of flesh out what the real issue was and

21

then try and resolve it to the best of my ability.

22
23

Q.

Others would be, you know, maybe I’d
And then I could shoot them back

Or for the most part I’d have to ask them

You know, some of the things are vague so I’d have to

Let’s talk a little bit more about PFC Manning’s

confinement at that brig.

When did you first become aware that PFC

5571

09466

1
2

Manning was confined at the brig?
A.

The first time I became aware--I want to say it was in--in

3

probably fall of ’09--I’m sorry--I’m sorry, Fall of 2010, doing--I

4

was still in the civil law office.

5

the civil law office at the time--Colonel Choike, the Base Commander,

6

he’d often ask me different questions or concerns regarding

7

regulations, policies, et cetera.

8

became aware of it was maybe at a staff meeting or something we had

9

weekly where somebody had brought up the fact that he was there.

10
11
12

Q.

You know, part of my function in

And the first time I believe I

When did PFC Manning’s confinement first become an issue

for you as Deputy Inspector General?
A.

When--in early December, I started to see that there were a

13

lot more--there was a lot more traffic in the--not only in the media,

14

but also in--in emails, phone calls, et cetera, and--why I say that

15

is at the time Ms. Epel, who was Inspector General for the base, I

16

was her legal counsel.

17

December saying she had some concerns with the amount of information

18

that was being put out there and some of the things they were saying.

19

That was early December.

I actually transitioned into the IG office

20

on the 13th of December.

From the 13th of December until--until I

21

actually went and inspected the brig on the 27th of December, I want

22

to say we had anywhere from 500 to, you know, 1000 phone calls that

23

were coming into the base and through different medias regarding PFC

So she would come--she came to me in early

5572

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1

Manning.

2

Q.

And what did you do in response?

3

A.

Well, initially when I--when we started seeing some of the

4

traffic, the majority of the stuff that was coming into the Base

5

Commander’s mailbox, when I’d write back to ask them what basis they

6

were making the statements they were doing, most of the emails were

7

not valid emails.

8

23d of December, there wasn’t really much I could do.

9

of the things, like I said, they were fake email accounts or some--

Okay, so initially from December 13th until the
The majority

10

or, you know, people saying--my response is going back to them saying

11

this email account’s been closed, et cetera.

12

On the 23d of December, I went to Colonel Choike and

13

told him that I had some concerns because some of the things that

14

were being put in the media at that time directly--you know, I felt

15

were unfair or I felt that they were maybe not accurate, so I think

16

they needed to be looked into.

17

to call Headquarters, IG and ask them if they would like to take this

18

case and come down and conduct an investigation of the brig.

19

point they told me they had no interest in conducting an

20

investigation.

21

December telling him that I wanted to go ahead and conduct an

22

investigation of the brig.

23

Q.

At that point I told him I was going

At that

So I had a meeting with Colonel Choike on the 23d of

And, sir, who was----

5573

09468

1

MJ:

Can I just interrupt you to make sure I understood that.

2

You went to Headquarters to try to get a Headquarters directed

3

investigation, and it was that higher headquarters that had no

4

interest?

5

WIT: Right.

6

MJ:

7

WIT: Yes.

8

MJ:

9

WIT: My high--the higher headquarters for the Inspector

10

Okay.

Thank you.

General’s Office, ma’am.

11

MJ:

12

WIT: Sorry.

13

Sorry to interrupt you.

Go ahead.

[Examination of the witness continued.]

14

Q.

Now, Major Zelek, was that HQ IG for the Marine Corps?

15

A.

That is correct.

The--Cynthia Edwards, the part that--

16

that’s my--she does the investigations for Headquarters, Marine

17

Corps.

18

Q.

Let’s talk a little bit about you report.

19

A.

Okay.

20

Q.

What ultimately was the basis for your deciding you needed

21
22
23

to initiate it?
A.

Well there--as I said there’s--there was a lot of

accusations and there were a lot--there was a lot in the media that

5574

09469

1

said PFC Manning was being mistreated at the brig.

Having worked for

2

Colonel Choike going on two years, I understood that, you know, he--

3

for me--he--he really cared about not only Marine Corps Base

4

Quantico, but he cared about all the people that were aboard his

5

base.

6

in the media, in a report, or somebody told him somebody was being

7

mistreated aboard his base, I knew it was a concern to him.

8

I know you he wanted me to look into it.

9

traffic was increasing that’s when I decided--I recommended to him

And so anytime there was something--well, something out there

10

that we needed to do something.

11

investigation.

I mean,

And so when I saw that this

We needed to conduct an

12

Q.

And what was Colonel Choike’s response?

13

A.

You know, I--at the time is when he--is when he said are

14

you sure, you know, Headquarters, IG didn’t want to do it?

15

said, yeah.

16

let me go to the brig and conduct the investigation.

17
18
19

Q.

And I

And then I was--ultimately I remember convincing him to

Let’s talk a little bit about the investigation itself.

What--how did you start it?
A.

On the 27th of December--and I’m not sure what that day

20

was--but I want to say it was either a Monday--a Monday or Tuesday

21

because it was after the holiday break.

22

a Captain Tomczak to let--to just give them a courtesy notification

23

that I was going to be going to the brig that day.

5575

I had contacted at the time

At the time from

09470

1

what--from my--from what I remember, Colonel Choike and I were the

2

only ones that had conversed about actually going and doing an

3

investigation of the brig.

4

same time I just wanted to let them know I was coming there so that

5

they knew.

6

I really want to preserve the brig and be able to, you know,

7

investigate it without them having any time to prepare.

But at the same time, you know--at the

But they weren’t given any kind of advance notice because

8

Q.

And who was Captain Tomczak?

9

A.

At the time I want to say he was--he was either the XO of

10

Security Battalion or and Operations Officer, I’m not--I don’t

11

remember exact--what his exact title was.

12

Q.

So what was your next step?

13

A.

Once I told him I was going over there, he met me at the

14

brig--at the front door.

15

Officer Averhart and I think it was Master Sergeant Papakie--I

16

believe he was there--and that’s when they checked me into the front

17

of the brig.

18

Q.

19
20

And that’s when he got Chief Warrant

And after getting check in, how did you begin your

investigation?
A.

Initially, you know, I wanted to check out the--just the

21

general, you know, areas of the brig.

We started--we started in the

22

chow hall area.

23

the chow hall area and made sure that the conditions were sanitary--

I checked--you know, pretty much I walked through

5576

09471

1

making sure that there wasn’t anything that seemed out of place.

2

From there--you know, I directed to him that there were certain areas

3

that I wanted to see.

4

area that was outside.

5

kind of observed not only the larger recreational area, but also the

6

maximum custody recreational area because I know that was receiving a

7

lot of publicity in the news.

8
9

I wanted to go out and see the recreational
So we took a walk out there.

You know, I

From there he took me to an area of the brig that I
know was--even though--he told me it was shut down, but I still

10

wanted to look at it.

11

maximum security area of the brig, okay.

12

of the brig was not being used, but you could tell that it was for--

13

it was a much more confined area because it had a lot better--a lot

14

more security measure, et cetera.

15

Marine Corps Base Quantico had not used that area of the brig for

16

some time.

17

follow the news, that’s where they had kept Hinckley back when the

18

Reagan assassination attempt was.

19
20
21

Q.

He told me it was there--it was their--the
That’s where--that section

And he told me that, you know,

That’s where, you know--you know, for those of us that

Let’s talk a little bit about those.

What did the door

look like to the cell in this area that wasn’t being used?
A.

Well there was--there was a much--from what I remember

22

there was a bigger electronic door that had to be triggered.

23

could tell that it was much--for me it looked like it was a much more

5577

You

09472

1

secure area inside--you know, what I mean--in general.

2

got in there, there was a row of--a narrow hallway and then there was

3

a row of cells.

4

were about half the size of where--of the--of where the special

5

quarters cells where all the other prisoners were being kept.

6

you got in there, there was another locking mechanism--another set of

7

security bars or something that went across the front, which was

8

either made out of--I don’t remember what the doors were, but I

9

remember there was a--some kind of door and then there’s a set of

And the only way I can describe it is those cells

10

bars that came in after that.

11

before you could actually access the cells.

12
13

Q.

So once you

Once

So there was actually like three sets

Let’s talk a little bit about the recreation areas you

reviewed.

14

A.

[Responded in the affirmative.]

15

Q.

What--what did--what was the recreation area like where PFC

16
17

Manning was given recreation call?
A.

It was just--from what I remember it was about the size,

18

maybe, of a basketball court.

19

there.

20

high fence around the whole thing.

21

into it--just a gate.

22
23

Q.

It did have like a basketball hoop in

And then there was a fence around it--maybe--maybe a 10 foot
And then there was one entrance

What did the cell in which PFC Manning was held in--what

did they look like?

5578

09473

1

A.

When--when you got down to where--what they told me were

2

special quarters cells, when you got down there, there was another

3

door.

4

duty hut was.

5

door that actually opened up or a door that slid--I want to say it

6

was a door that opened up.

7

someone and the door opened up.

8

entered it there were cells on each side and the cells that went on

9

in the back behind the duty hut.

10
11
12

There were actually two entrances on each side of where the

Q.

There was another--I don’t remember if there was a

The door--you had to--they notified
And then, as I said, there--or as I

And how many detainees were housed with another detainee in

a cell immediately adjacent?
A.

At the time that I inspected the brig, from what I--from

13

what I remember, I think there were eight detainees in the brig.

14

the way they were spread out--as I said, all the deta--all the

15

detainees were located in the special quarter’s section.

16

one had their own cell--one with an empty cell next to him and then

17

another detainee, then an empty--an empty cell, and then another

18

detainee.

19
20
21

Q.

And

And each

What did--what did you do to reach your conclusions about

PFC Manning’s custody and status at the brig?
A.

Well I went--they took me in the opposite end of the--the--

22

where PFC Manning was being held.

23

actually go through and observe all the detainees that were being

5579

So I had to opportunity to

09474

1

housed there.

As it’s custom when an officer comes on, they--they

2

called everyone--they said “attention on deck”, you know, which

3

notified everyone that when an officer’s on deck.

4

detainees actually stood up--stood up and stood at the front of their

5

cell.

6

‘em a greeting of the day.

7

asking how they were doing.

8

didn’t.

9

-I took the time to observe each and every cell, each and every

And each of the

So as I went by each one, you know, I either, you know, gave
A couple of them I, you know, I recall
And some of them responded to me, others

So as I went through there--like I said, I made sure that I-

10

detainee being housed, and then I walked around and--the very last

11

cell before you get back to the end where--is where PFC Manning was

12

being held right--which was right in front of the duty hut.

13
14
15

Q.

With whom did you speak about PFC Manning’s--the

determinations about his custody and status?
A.

The--just--I think--I think it was a Master Sergeant

16

Papakie--I think that’s what his rank was--and Chief Warrant Officer

17

Averhart, and then when she checked in, Chief Warrant Officer Barnes.

18

Q.

How long did your entire review take?

19

A.

The--I want to say my--‘cause--after I went through--after

20

I went through and observed all the detainees in the area, I--I went

21

into the duty hut for about--I want to say it was like 5 to 10

22

minutes, and--stayed and was conversing with Chief Warrant Officer

23

Averhart and directly observing Manning.

5580

After that they took me

09475

1

down--there were couple of areas I wanted to check ‘cause I didn’t

2

get to go back where the other side of the brig was.

3

other way was where the recreational room was.

4

recreational room was--I think they had like a TV room and some

5

magazine and books.

6

wanted to make sure I got a chance to check out.

7

there and observed that also.

And down the

They had--the

But then they also had an exercise room that I
And so I went down

8

Q.

And how long did you check out the exercise room?

9

A.

The--I wasn’t in the exercise room more than--I want to

10

say--not more than 10 minutes.

I recall--when I was in there, I

11

actually--I turned on like a piece of equipment, you know, I hit the

12

pedals on one to make sure they worked.

13

whole brig visit, I want to say I wasn’t there for more than an hour

14

and a half--maybe two hours at the most.

And--but--I went--I mean the

15

Q.

Did the machine work?

16

A.

Yes.

17

Q.

And how large was the area?

18

A.

It was probably--the--the actual exercise area, maybe

19

about--about as bit as this courtroom here--because--they had a lot

20

of machines in it.

So.

21

Q.

Would you say----

22

A.

Maybe from like your podium to the back wall.

23

Q.

Would you say approximately 30 feet by 30 feet?

5581

09476

1

A.

I’m not very good at those kind of dimensions.

But I--I--

2

if that’s what--from your podium to the back wall is I’ll--I’ll give

3

you that.

4

MJ:

That’s fine.

5

WIT: Thank you.

6

Q.

When did you complete your report?

7

A.

I completed my report on the 28th of December.

You know

8

one of the things that, you know, I--I tried to do not only in my job

9

before is to be proactive--to be out in front of these things, but

10

also try to be very timely because I knew the Base Commander had some

11

concerns about what was being said.

12

once I got back, you know, to get to work immediately on it to start

13

drafting up the report.

14

I’m not positive.

And so I made it an effort to--

So I--I believe I dated it 28 December, but

So.

15

Q.

To whom did you give the report?

16

A.

I gave the report to Colonel Choike.

17

Q.

And what response did you receive after completing?

18

A.

Thank you--thank you for conducting this report.

You know,

19

I have it from here.

As in all the investigations, it’s up to--you

20

know, the inspector general acts as the--you know, does an

21

independent review and does an investigation--he just turns it over

22

to the commander.

23

and this place was Colonel Choike, to determine what, if any action,

And it’s up to the commander, whatever unit it is,

5582

09477

1

he was going to take.

2

Q.

Let’s talk a little bit about David House.

3

A.

Okay.

4

Q.

Are you familiar with Mr. House?

5

A.

Yeah, I’m--I’m familiar with him.

6

I’ve never met him, but,

you know, I’m familiar with the name.

7

Q.

How are you familiar with him?

8

A.

He--from what I remember at the ti--he was the one that was

9
10

visiting PFC Manning while he was confined at--while he was in
pretrial confinement.

11

Q.

Let’s talk a little bit about an incident where David House

12

was allegedly denied entry into Quantico.

13

that?

14

A.

I remember it being a Saturday.

What do you remember about

And he--he was actually--

15

he--he actually came to the base with another individual.

She was

16

either a reporter or a blogger of some sort because I remember while

17

she--while they were trying to get her access to the base, she

18

actually put out a blog on it.

19

two of them show up at to the base--I want to say she was driving and

20

there was some issue with them being allowed access to the base at

21

that time, either they’re--like I said, I don’t remember what the

22

problem was with either--there was an expired license or expired

23

registration, but something with regards to base security and the SOP

They showed up at the base and--the

5583

09478

1

that would not allow them access to the base.

2

Q.

And what was the response of the personnel at the gate?

3

A.

The personnel at the gate detained them.

They tried to

4

find a way to get David House access.

5

you know, they first suggested he could walk to go see him.

6

also tried to convince him to, you know, get a cab.

7

remember they provided him numbers with a cab company.

8

and I don’t remember, but I want to say that somebody even offered to

9

give him a ride to visit PFC Manning.

You know, I want to say they,
But they

From what I
And I think--

10

Q.

What is the basis for your knowledge of this event?

11

A.

The basis of my knowledge was--you know, as I said, there

12

was a blog out there on this.

13

I read about the newspaper articles that were published.

14

also remember that Monday being involved in a meeting--and I’m not

15

sure who was at the meeting, but I know Colonel Choike was there,

16

maybe--maybe Chief Warrant Officer Averhart, and, you know, maybe

17

Colonel Oltman where that was discussed about the incidents and what

18

happened over the weekend.

19

Q.

20

alternatives?

21

A.

So I had already read about the blog.
But then I

And what did Mr. House do after being offered these

From--from what I was--from what I remember I think he

22

declined them all.

And they were never able to--they were never

23

able, you know, give them access based off, you know, his

5584

09479

1

credentials.

2

think the car was eventually towed off-base.

3

I think, and then it was towed off-base.

4
5
6

Q.

So--they weren’t going to let the car on base.

So I

It was searched first,

And what did the press report based on statements from Mr.

House?
A.

That--from what I remember, that the Marine Corps was going

7

through added steps of preventing PFC Manning from having visitors.

8

And that, you know, that we were specifically targeting David House

9

to not allow him access to the base due to the fact that he had made

10

some prior statements in the press about--you know, about the

11

condition of PFC Manning.

12
13
14

Q.

And why are you familiar with Mr. House’s statements to the

press?
A.

I read them.

I read--I read about them, you know, in

15

previous newspaper articles.

You know, after--you know, it became

16

readily apparent to me after I did my report that this thing was only

17

going to heat up more.

18

emails--I want to say, you know, 30 to 50 emails a week.

19

point we started receiving letters in the mail.

20

a focal point for not only the Base Commander’s mailbox, as I was

21

doing before, but I became a focal point for all the letters.

22

then--so in conjunction with that, I was monitoring the press to see

23

what was being said and, you know, 9 times out of 10, people would

You know, I was consistently receiving

5585

At that

So I actually became

And

09480

1

cut a section from the press article and put it in their letter and

2

then send it into me.

So.

3

ATC[CPT VON ELTEN]: Thank you.

4

MJ:

Okay.

Mr. Coombs.

5
6

CROSS-EXAMINATION
Questions by the civilian defense counsel:

7

Q.

Major Zelek, Colonel Choike was your commander, correct?

8

A.

He was the Base Commander, yes.

9

Q.

And because you’re the Deputy IG under the base he would be

10

your base commander?

11

A.

Yes, that’s correct.

12

Q.

And you were requested by him to conduct a unannounced

13
14

visit of the brig, is that correct?
A.

I don’t recall him req--requesting me to do that.

As I

15

said before, I remember going to him and trying to be proactive to

16

head this off.

17

[Pause]

18
19
20
21
22
23

CDC[MR. COOMBS]:

Major Zelek, I’m handing you Appellate

Exhibit 442A [handing the document to the witness].
Q.

Do you see in this email where Colonel Choike indicates

that he directed you to do an unannounced visit of the brig?
A.

[Looking at the document] It says in here that he asked--he

asked me to do that.

That’s correct.

5586

This is the first time I’ve

09481

1

seen this email.

2

okay.

3

Q.

Trying--I’m just flipping through here to see if--

And I just want to make sure your memory is that you went

4

to Colonel Choike and said, hey, I think--let me do the visit of the

5

brig?

6

A.

That’s correct.

And I--I have a--I have a--I have a binder

7

that I keep track of my day-to-day happenings.

8

binder from that time period, and in my notes it says, you know, that

9

I went to Colonel Choike, I had a meeting, and I recommended to him

10
11

And I pulled up the

that we do an inspection of the brig.
Q.

Okay, so when Colonel Choike says there I requested that my

12

Deputy IG do an unannounced inspection of the brig, you think he’s

13

just res--basically recounting your request of him to let you do the

14

visit, is that right?

15
16
17

A.

That’s--that’s correct.

That’s--that’s how I remember it.

And I know that’s what my notes reflect.
Q.

And prior to your visit based upon your, I guess,

18

monitoring of the blogs and of newspaper accounts, you were aware

19

that there was quite a bit of international attention on PFC

20

Manning’s confinement, correct?

21

A.

That’s correct.

22

Q.

And you knew that Colonel Choike was going to use your

23

inspection regarding his decision on how PFC Manning was being held?

5587

09482

1

A.

As I stated before, as--as an inspector general for the

2

base--at the time I was the acting--I’m--as an independent body it’s

3

up to me to do the inspection.

4

to determine or to use the inspection for what he wants.

5

would be up to him as to what he wanted to use it for at that point.

6

And I don’t recall asking him what he was going to use the report

7

for.

8
9

Q.

Ultimately it’s up to the commander
So that

Well, due to the high profile nature of it, you knew that

he was obviously going to use your report?

10

A.

That’s correct.

11

Q.

And you also knew that and understood that Lieutenant

12
13
14
15
16
17

General Flynn would probably see your report as well?
A.

That’s correct.

Yeah, he’s the--he was the CG of MCCDC at

the time.
Q.

And prior to conducting your inspection, you believe that

the reports that were in the press were unfair?
A.

The things that were saying--you know, I--I--being in the

18

Marine Corps for 12 years, we have training every year that deals

19

specifically with hazing.

20

treat other individuals.

21

there, I--I felt was unfair because I couldn’t think that a Marine

22

would actually engage in the activity that they were saying was

23

happening.

We have training that deals with how you
And the things that they were saying in

5588

09483

1
2

Q.

Right.

And you also believed that--then obviously that the

reports were not accurate?

3

A.

I wanted to find out whether or not there was any truth to

4

the reports.

5

Q.

And so when you went to the brig to conduct your

6

inspection, I believe you testified on direct that the entire

7

inspection took around an hour and a half to two hours at most?

8

A.

That’s correct.

9

Q.

And when you were doing your inspection, you were not

10

checking on whether or not PFC Manning was improperly held in MAX

11

custody, correct?

12

A.

No, that was not part of it.

13

Q.

And you were also not inspecting whether or not PFC Manning

14
15

was improperly held in prevention of injury, correct?
A.

No, but I did ask questions about it.

I asked because some

16

of the reports that I was seeing in the newspaper addressed that.

17

from my own--not only from my own benefit, but I thought it would

18

enhance the report, I asked questions as to what those terms mean.

19
20

Q.

Right.

But you weren’t inspecting to basically give your

seal of approval that MAX and POI was appropriate for PFC Manning?

21

A.

That’s correct.

22

Q.

The sole purpose, I believe, of your inspection was to

23

So

determine whether or not the facility was sanitary and safe and how

5589

09484

1

each detainee was being held?

2

A.

That’s correct.

3

Q.

Now as part of your inspection you did not interview PFC

4
5

Manning, correct?
A.

I did not interview him.

But as I said before, I did--as I

6

stopped--all the detainees--I stopped in front of his cell.

7

remember him--like I said, he was standing at the cell.

I remember

8

giving him a greeting of the day.

And I--I may

9

have asked him how he was doing or I asked him some other question,

He gave me one back.

And I

10

at which point he never responded to me.

11

happened with a couple of other detainees, so I didn’t press the

12

issue.

13
14

Q.

All right.

So, you know, and that had

But--my question was you did not interview him

as part of your investigation?

15

A.

I did not.

16

Q.

So you were not asking him questions on whether or not he

17

thought he was being mistreated?

18

A.

No I did not.

19

Q.

And as part of your inspection you did not also interview

20

the mental health providers?

21

A.

I did not.

22

Q.

You didn’t review any of the mental health providers’

23

records either?

5590

09485

1

A.

No.

2

Q.

You did, however, take a tour of the facility with CW4

3

Averhart?

4

A.

I did.

5

Q.

And as part of that tour did you review the weekly reports

6
7

that were being filed by CW4 Averhart?
A.

I remember seeing a couple of the reports when--of that--I

8

want to say it was just--I don’t want to say--I want to say I

9

remember--I remember seeing the reports after the fact that I did my

10
11

report, not beforehand.
Q.

And if I understand correctly, as you were doing the

12

inspection, you would ask certain questions of either CW4 Averhart or

13

one of the guards and they would respond to you?

14

A.

That’s correct.

15

Q.

And you’re, of course, trusting that their responses to you

16

were truthful?

17

A.

I did.

That’s correct.

18

Q.

As part----

19

A.

And then I also--I mean, they’re--I asked--I also asked the

20

guards some questions when, you know, Chief Warrant Officer Averhart

21

would go and get me an SOP or get me something--and so I would talk

22

to the guards to check to see if their statements were different and

23

make sure that everything was consistent.

5591

09486

1

Q.

Okay.

And as part of your inspection you obviously

2

understood that PFC Manning was being held in maximum custody and

3

under prevention of injury?

4

A.

That’s correct.

5

Q.

And due to--due to the maximum custody and prevention of

6

injury status there were certain privileges that PFC Manning was not

7

afforded, correct?

8

A.

That’s correct.

9

Q.

You--you noted that he was not allowed to have contact with

10
11
12

other detainees?
A.

He--you know--that’s correct, he was--he was not allowed--

he--well, when you say not allowed----

13

Q.

Physical contact----

14

A.

----I mean, he isn’t----

15

Q.

----with other people.

16

A.

----that’s correct--person--right.

17

Q.

And due to the arrangement of cells, as you noted, no

18

detainee could see each other because of how the cells were located?

19

A.

That’s correct.

20

Q.

And you said during your inspection there were no detainees

21

that were housed directly to the left or right of somebody?

22

A.

That’s--not--not while I was there.

23

Q.

And did you ask at that point whether or not detainees

5592

09487

1

could speak to others in low conversational tones?

2

A.

I did.

3

Q.

And the guards told you they could do that as long as they

4

were not disruptive, correct?

5

A.

That’s correct.

6

Q.

And did you indicate or did the guards indicate to you what

7
8

they would consider to be disruptive?
A.

Just--you know, yelling--any kind of like, you know,

9

shouting, or, you know--I want to say, you know, making inappropriate

10

comments, you know, just talking, you know, things that would not be,

11

you know, appropriate in a conversational setting out loud.

12

Q.

Did any of the guards state to you that if a detainee was

13

not immediately to your left or to your right that you could not

14

speak to them?

15

A.

They did not.

16

Q.

Now you said you--you took a look at the recreational areas

17

that were available?

18

A.

I did.

19

Q.

And you looked at the outside rec area and inside rec area?

20

A.

I did.

21

Q.

And with regards to the inside rec area, you said you look

22

at a couple of the machines, you turned one of them on, and you

23

pushed a pedal?

5593

09488

1

A.

Correct.

2

Q.

And when you turned on the machine, did you actually check

3
4

to see if the machine was functional?
A.

I--I did--I just want, you know, I wanted to make sure that

5

if you turned it on that the--all the--it was, you know, like a

6

treadmill, and I wanted to make sure the thing moved--you know, the

7

belt moved--you know, if somebody got on it, it was going to work.

8

Q.

9

the belt go?

10
11

A.

All right, so you actually turned it on and then you made

Well, you can--I mean you can hit the--you know, the mile

per hour thing to make the belt go on its own.

So----

12

Q.

And is that what you did?

13

A.

----I didn’t get on it--I did, yes.

14

Q.

And what did you find?

15

A.

I found it worked and I turned it off.

16

Q.

And did you do that with every machine there or just one?

17

A.

I did not--just one.

And--I mean, the other stuff--I mean,

18

so long as it looked like it was in good repair or good state, I--you

19

know, I didn’t think I needed to test every piece of equipment that

20

was in there.

21

Q.

And at the time that you checked the machine did anyone

22

tell you that PFC Manning basically from 29 July to 10 December 2010,

23

just shortly before your inspection, was not permitted to get on the

5594

09489

1

treadmill?

2

A.

No they did not.

And--you know, I remember them saying he

3

had come down there to use the equipment, you know, I don’t recall

4

asking what equipment he used.

5

him down there to use it.

6

Q.

I recall they said that they did take

Did anyone ever tell you that during that time period, the

7

29 July to 10 December 2010, he was only given 20 minutes of rec

8

call?

9
10

A.

hour of rec call.

11
12

No, they--they actually told me he was given at least an

Q.

Did anyone ever tell you that when he was given his rec

call outside that he was kept in full restraints?

13

A.

They did not tell me that.

In fact, they said--you know,

14

if they--once they put him the--the area that he had, they said they

15

removed the restraints.

16

Q.

And did anyone ever tell you that once they took him to the

17

inside rec area, they removed the restraints with the exception of

18

the handcuffs, and would only let him use the bike?

19

A.

No, they told--they told me they’d remove those restraints

21

Q.

Would you surprise you if--if those were the actual facts?

22

A.

That they left the restraints on?

23

Q.

And why is that?

20

also.

5595

It would.

09490

1

A.

Because from my memory, I was told that, you know, when--

2

when they got in that area and they closed it that they removed all

3

the restraints.

4

Q.

And do you recall who told you that?

5

A.

It would have to be one of the individuals that was on the

6

tour with me; either Master Sergeant Papakie or Chief Warrant Officer

7

Averhart.

8
9

Q.

Now you--you said you looked at the outside area and was

the--roughly the size of a basketball court?

10

A.

For the--for the maximum security area; that’s correct.

11

Q.

And the area not for the maximum security area, that was

12

much larger?

13

A.

It was.

14

Q.

Did you see any equipment in the area for the maximum

15

security detainees, like basketballs or anything like that?

16

A.

There’s--there’s no equipment in either area.

You know, it

17

was just a big--it was a big open field.

And I was told that, you

18

know, they might be provided a ball or--a soccer ball or something to

19

use.

20

Q.

Did they ever show you any of that equipment?

21

A.

No, and I didn’t--I didn’t ask to see it.

22

Q.

Now also because of the way PFC Manning was being held, you

23

were aware that he was kept in his cell for 23 hours a day?

5596

09491

1

A.

I was, yes.

2

Q.

And required to eat in his cell?

3

A.

That’s correct.

4

Q.

Were you informed that he was not permitted to have

5

personal items in his cell?

6

A.

I was aware of that.

7

Q.

And did you know that he would have to request for toilet

8

paper if he needed it?

9

A.

I was aware of that also.

10

Q.

And what about having to request for soap.

A.

I--I--I was aware he had to--he was given very few items in

11
12
13
14
15

Did you know

that?

his--in his cell with him?
Q.

And you indicated that PFC Manning’s cell was directly

across from the observation booth?

16

A.

17

kitty-corner.

18

him directly.

19

Q.

And when you could observe him could you see him clearly?

20

A.

I could.

21

Q.

Did you during your time there ever see the guards go out

22
23

That’s correct.

Kind of like, you know, it was kind of

So--there’s like a one-way glass that I could observe

to make their five minute notation on PFC Manning?
A.

No.

They--they made--they made--they had a book that was

5597

09492

1

inside the duty hut where they’d make their notations there.

2

then I--I remember specifically looking at that where they said

3

checked--you know, I don’t remember what it said.

4

them--I said, you know, when you did this, you know, what--do you

5

actually go out there and do it or you stay?

6

during the normal hours if they could see him, they would make it

7

right from the duty hut--they’d observe him from there and do it.

8

That’s what--when I was there during my time, they had made two

9

entries that they had--you know, he was there and was okay.

10
11

Q.

Okay.

And

And--so I asked

And the mo--they said

When you said you were in the observation booth and

you could see him, what was PFC Manning doing at that point?

12

A.

PFC Manning--I remember him being in like a grey--like grey

13

sweatpants or grey sweatsuit type thing.

14

rack reading a magazine.

15

magazine, but I do recall he had two magazines that he was looking

16

at.

And he was sitting on his

I don’t--don’t remember--recall what

17

Q.

Oh, he had two magazines at the time?

18

A.

There was--I remember it was either a magazine or some

19

other book.

20

he was looking at.

21
22
23

Q.

There was one laying there and then he had one open that

Okay.

And based upon your observation of him did you

notice any odd behavior or anything out of the ordinary?
A.

No.

I mean, he just--like--like I said, he just was

5598

09493

1
2
3
4

reading a magazine.
Q.

And after conducting your--your tour of the facility for an

hour and a half to two hours, then I imagine you left at that point?
A.

Yeah.

Like I said, after I finished observing him is when

5

I went down to the other areas of the brig.

I walked around a little

6

bit more--just the hallways because I was trying to get a feel for

7

like temperature, I was trying to get a feel for cleanliness, and

8

just--you know, trying to, you know, get a lot more observation time.

9

But after that is when I went to--they have a mailroom there.

And

10

they had--they showed me all the mail and the letters that they were

11

getting for him.

12

had at that point I don’t know how many letters, sir.

13

having a conversation with them; who was monitoring these and that?

14

And that’s when--I remember after that specifically went back to

15

Colonel Choike saying, hey, you know, it’s--sir, why--you know, since

16

I’m doing this, you know, I’ll be the repository for these letters--

17

start going through these letters, et cetera.

18

went back into Chief Averhart’s office--asked him for--I think it was

19

the SOP that was included in my report.

20

more questions, and then I left.

21

So I remember seeing the mailroom--and that they

CDC[MR. COOMBS]:

Okay.

I remember

And then after that, I

And then asked him a few

I’m retrieving from the witness 442A

22

[handing the document to the witness], and handing the witness

23

Exhibit 442B [handing the document to the witness].

5599

09494

1

Q.

Major Zelek, is that your report?

2

A.

[Looking through the document] Yes, this--this is the

3

report I drafted.

4

you know, I have--I have my notes on it and highlighted and stuff.

5

So.

6

Q.

My report--the only thing different about mine is,

And prior to doing this report obviously you were--as

7

monitoring the Commander’s inbox, you were aware of what was going on

8

in this case in general, correct?

9

A.

I was, correct.

10

Q.

And I’m going to show you another appellate exhibit here

11

shortly and see if this is also due to looking at that mailbox.

12

A.

One--if I may?

13

Q.

Sure.

14

A.

One thing about--my report had all these references

15

attached to it also.

16

would not--in my report that was submitted to the Base Commander

17

would have had the newspaper articles, the instruction, and also the

18

SOP to it.

19

So, you know, while this would have my top, I

So.

CDC[MR. COOMBS]:

Retrieving from the witness Appellate

20

Exhibit 442B [retrieving the document from the witness], and handing

21

the witness Appellate Exhibit 442C [handing the document to the

22

witness].

23

ATC[CPT VON ELTEN]: Your Honor, may the government see Charlie?

5600

09495

1
2

CDC[MR. COOMBS]:

I apologize [handing the document to the

assistant trial counsel].

3

Q.

Major Zelek, looking at this it appears that you are

4

tracking email or newspaper articles in January of 2011, is that

5

correct?

6

A.

That’s correct.

7

Q.

And so can you--do you recall this email to Colonel Choike?

8

A.

[Looking at the document] I do.

9

You know, this would be

probably one of several--whenever there was a high vis or an article

10

that was--you know, I thought of importance, I ensured that he got

11

either--he got a hard copy of it or he got the link so he could look

12

at it.

13

Q.

And how--how would you find these articles yourself?

14

A.

Well there’s--the--there are a few websites out there that

15

I knew were putting articles out there.

16

the website I was familiar with.

17

of them had links, and then I’d go and check those out.

18

And so I would start with

And then I would go--if they--a lot

Q.

And were you doing this as part of your job as the Deputy

20

A.

Yes.

21

Q.

And that was just because it may be an issue that the

19

22
23

IG?
That’s correct.

command needs to be aware of?
A.

It was because the--not only was it by the fact that he was

5601

09496

1

in our brig--PFC Manning was in our brig, but there was--at this

2

point in January, we started to receive threatening phone calls.

3

started receive individuals saying that they were going to shut down

4

our computer systems, shut down our phone systems.

5

stuff out there--I believe it was Martin Luther King Day; they staged

6

a protest out in front of our gates.

7

there were a lot of things happening that--in this case that were

8

affecting Marine Corps Base Quantico.

9

CDC[MR. COOMBS]:

We

We were getting

So there was a lot of thing--

Okay, I’m retrieving from the witness

10

Appellate Exhibit 442C [retrieving the document from the witness],

11

and handing the witness Appellate Exhibit 442D [handing the document

12

to the witness].

13

Q.

Appellate Exhibit 442D--it appears that you were reviewing

14

something regarding request for support.

15

had to do something with trying to get a full time mental health

16

provider at the brig, is that correct?

17

A.

And I imagine this--this

[Looking at the document] You know, I--I don’t--I can’t say

18

if it was--had to do with the mental health provider.

19

you know, when I see the word support, and I remember the meetings

20

that were going on, the brig was understaffed from what I remember.

21

They did not have enough--they did not have adequate personnel to--

22

you know, to--to take care of the prisoners according to the SOP,

23

especially with one that was under--you know, under 24 hour

5602

I know that--

09497

1

surveillance.

2

earlier that year they’re--you know, earlier 2000--2011--I’m sorry,

3

earlier 2010, they had the suicide that was--had happened at the

4

brig.

5

Q.

And then--I also know they were concerned because of

Okay.

And so from your involvement, can you tell me why

6

you would be reviewing a letter to say that you believe it captures

7

the most of what we’re trying to achieve?

8
9

A.

From my standpoint--you know, I was--I was involved in the-

-you know, the weekly meetings or the monthly meetings regarding the

10

brig and the concerns that were happening there.

11

was part of the cc line in this email.

12

name was on it, you know, I took a look at the document to say, hey,

13

you know, I read it.

14

commented on the change there.

15

CDC[MR. COOMBS]:

So I--I would--I

And since--you know, since my

And, you know, I guess that, you know,

Okay.

Retrieving from the witness Appellate

16

Exhibit 442D [retrieving the document from the witness].

17

Major Zelek.

18

WIT: [Responding in the affirmative.]

19

ATC[CPT VON ELTEN]: Nothing, Your Honor.

5603

Thank you,

09498

1
2

EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:

3

Q.

Major Zelek, I have a couple of questions for you.

4

A.

Yes, ma’am.

5

Q.

Back in December when--I believe your testimony was earlier

6

you had read some of the newspaper articles and you were concerned

7

and you had approached Colonel Choike about doing this investigation,

8

but prior to that you had gone to the Headquarters, Marine Corps, and

9

that they weren’t interested.

10

A.

Why weren’t they interested?

I can’t comment, ma’am.

The conversation--I remember

11

having the conversation with Colonel Choike on the morning of the

12

23d--going back to my office, calling Headquarters Marine Corps IG,

13

you know, voicing my concerns to them, you know, telling them what I

14

was reading and, you know, what was happening there.

15

know, pretty much them telling me, you know, they had no interest in

16

it.

17

remember going back up to Colonel Choike’s office and saying, you

18

know, that it was--it would probably be in our best interest to do

19

an--you know, an investigation, you know, quality of life type

20

investigation of the brig.

21
22
23

And then, you

It was up to us to decide what we want to do with it.

Q.

And I

Why did you have to convince Colonel Choike to do the

investigation?
A.

You know, at the time--I mean--we had--up to that point--I

5604

09499

1

mean there was a--there were--there were numerous articles in the--in

2

the paper.

3

the stuff that was put out there, you know, they were just

4

statements, you know.

5

speculation as to what was happening at the brig.

6

you know, Colonel Choike did not think it was a concern.

7

told--you know, as I explained earlier with what happened earlier in

8

2010 and then additionally the increase of the phone calls that I was

9

getting, which he would not have been aware of that, you know, his

And, you know, I want to sa--for the most part, you know,

They weren’t based on any fact; they were just
So at that point,
But as I

10

mailbox--the Commander’s Mailbox was getting inundated with emails,

11

and the IG’s office was getting inundated with phone calls, he

12

wouldn’t have been aware that this was becoming an increasing

13

problem.

14
15

Q.

When you say “Commander’s Mailbox” do you mean Colonel

Choike’s mailbox----

16

A.

No.

17

Q.

----or General Flynn’s mailbox?

18

A.

Colonel Choike has his own personal email box that I think

19

is like Daniel.Choike.US--@USMC.mil.

20

basecommander, it goes directly to--which is--I have control over it,

21

he has access of it, so it’s a separate email account.

22
23

Q.

The Base Commander’s mailbox is

When you do your--as the inspector general, when you do

these investigations and inspections, do you do a broad range of

5605

09500

1

different divisions, how do you get any background expertise on the

2

particular areas that you are inspecting?

3

A.

I pull SOPs.

I pull--pull all the statues--the regulations

4

that govern whatever it is that I’m being concerned and whatever it

5

is I’m looking into.

6

know.

7

if--for instance, I had an inspection of the veterinary clinic, you

8

know.

9

called up the--you know, the head of the veterinary department to get

And then I call the experts in the areas, you

You know, it would depend.

You know, I mean, if there’s a--

So I called up to--I think it was at the time Fort Belvoir--I

10

some background information to help me do my investigation and

11

complete my report.

12
13
14
15

Q.

What did you have for background for your investigations at

the brig?
A.

I had the statute that was in there--I don’t remember what

it was--one of the references, and then I had the SOP.

16

Q.

I mean, did you have the Secretary of the Navy instruction?

17

A.

That’s correct.

18

Q.

That’s what you--okay.

19

A.

I’m sorry.

20
21

Yeah.

I--I couldn’t remember off the top--and then I

had the--the Brig SOP.
Q.

I guess I’m going back again to that email that Mr. Coombs

22

showed you; 442A, that goes between a lot of people--Mr. Geoffroy--a

23

lot of people up at the H--at the Headquarters level.

5606

09501

1

A.

Can I see that email, ma’am?

2

MJ:

Yes, can I----

3

CDC[MR. COOMBS]:

4

I’m handing the witness Appellate Exhibit

442A [handing the document to the witness].

5

WIT: Thank you.

6

MJ:

7

WIT: ----just so I know.

8
9

I’d like to take a quick second to read it--

Sure--please do.

[The witness reviewed the document.]
WIT: Okay.

10

Q.

I guess--would anybody--I’m looking at all the cc’s----

11

A.

Sure.

12

Q.

----everybody on there, would anybody from your

13

Headquarters IG Office have been part of this or have been aware any

14

this level of interest is going on.

15
16

A.

Let me--let me see--I--I know--I scanned it.

never rece--I never saw this email----

17

Q.

[Responded in the affirmative.]

18

A.

----so I would have not have seen it.

19

I don’t--I

I know most of the

players that are contained therein----

20

Q.

[Responded in the affirmative.]

21

A.

----and if you look at the timing of this email, was the

22

same day--it was the same day I went actually and inspected the brig.

23

So they would--they would not have--they would not have been aware

5607

09502

1

that I had already done that at that point ‘cause it started with

2

Major General--Major General Ary, which is the Staff Judge Advocate

3

of the Marine Corps.

4

already out in front of this in doing something.

5

throughout that--I don’t see any name that would lead me to believe

6

that Headquarters IG had any knowledge of this.

7
8
9
10

MJ:

So they wouldn’t have been aware that we were

Thank you.

That is all I have.

But there’s nobody

Does either side have any

follow-up based on that?
ATC[CPT VON ELTEN]: No, Your Honor.
CDC[MR. COOMBS]:

No, Your Honor.

11

[The witness was permanently excused, was duly warned, and withdrew

12

from the courtroom.]

13
14

MJ:

Are you ready to call your next witness or do you want

another recess?

15

TC[MAJ FEIN]:

16

MJ:

17

TC[MAJ FEIN]:

We’re ready, ma’am.

Please go.
Ma’am, the United States calls First Sergeant

18

Bruce Williams.

19

FIRST SERGEANT BRUCE WILLIAMS, U.S. Army, was called as a witness for

20

the prosecution, was sworn, and testified as follows:

21
22
23

DIRECT EXAMINATION
Questions by the trial counsel:
Q.

First Sergeant, you are First Sergeant Bruce Williams of

5608

09503

1

Headquarters and Headquarters Company, U.S. Army Garrison, Fort Myer?

2

A.

Yes, sir.

3

Q.

First Sergeant, how long have you been an NCO in the United

4

States Army?

5

A.

I’ve been an NCO for 15 years now, sir.

6

Q.

And how long have you been in the Army?

7

A.

20 years, sir.

8

Q.

And how about how long have you been the first sergeant of

9

your company?

10

A.

Almost 30 months now, sir.

11

Q.

30 months?

12

A.

Almost.

13

Q.

And do you know Private First Class Manning?

14

A.

Yes, sir.

15

Q.

How do you know Private First Class Manning?

16

A.

When he arrived in the area and--I--I became his first

17

sergeant then, sir, in 2010.

18

Q.

Do you remember about what date that was?

19

A.

Just--he arrived on July 28th, and I met him on July 29th.

20

Q.

And how many times--estimation--have you visited with

21

Private First Class Manning since you first met him?

22

A.

Altogether, both locations added, sir?

23

Q.

Any location that Private First Class Manning’s been at

5609

Maybe----

09504

1

since in your company?

2

A.

I’d say maybe 40 altogether.

3

Q.

And what locations--well, what military locations have you

4

visited Private First Class Manning at?

5

A.

Quantico and Fort Leavenworth.

6

Q.

And when was your first visit to Quantico?

7

A.

July 29th, 2010, around or about that day.

8

Q.

And why did you go that day?

9

A.

To introduce myself--let him know that I would be making--

10

the one being checks on him--myself and the commander, so he would

11

know who his leadership team was.

12

Q.

Who else went with you that first visit?

13

A.

Captain Casamatta, Lieutenant Colonel Leiker.

14

Q.

And who was--or is or was Lieutenant Colonel Leiker at the

16

A.

Battalion commander.

17

Q.

And what was the purpose--I guess--let me rephrase that.

15

time?

18

What was the--the role that you felt you had as the first sergeant

19

with visiting Private First Class Manning?

20

A.

To treat him just like I would any other Soldier handling

21

the well-being issues.

Make sure--if he had any needs or concerns

22

that I would address them or our command team would address it for

23

him.

5610

09505

1
2

Q.

And how would you describe your rapport with Private First

Class Manning?

3

A.

Good rapport, sir.

4

Q.

And why do you think that?

5

A.

After we got to know each other, we were--the meetings went

6

a little more relaxed.

7

reason to think he was being disrespectful or anything.

8

meetings.

9
10

Q.

Always professional.

I never gave him any
It was good

And how long were your visits on average with him at

Quantico?

11

A.

At Quantico; 15 minutes tops.

12

Q.

What about at the JRCF?

13

A.

Same, sir, 15 minutes.

14

Q.

So you all would fly out to the JRCF?

15

A.

Yes, sir.

16

Q.

And--and how would you visit when you’re at Quantico?

17

A.

Drive.

18

Q.

What type of visitation room did you meet Private First

19
20
21
22
23

Class Manning while at Quantico?
A.

It was a booth, sir.

He would be on one side of the glass

and I would be on the other.
Q.

And were the Marines present when you were--Marine guards

present when you were dis--in discussions with him?

5611

09506

1

A.

Yes, but outside the booth.

2

Q.

And how do you know that?

3

A.

Watched him every time, sir.

4

Q.

Could you just explain for--for the court what--what you

5
6

mean, like what did you watch when you’re sitting there in the booth?
A.

I would just watch Marines--they’ll be outside the door--

7

either closed or the door being slightly opened, but never inside the

8

room with us.

9

Q.

They were or they were not inside the room?

10

A.

They were not inside the room with us.

11

Q.

Okay.

12

A.

I would go over checklists that was created to ensure we

13
14
15
16

And what was--what did you do during your visits.

captured certain items about his wellbeing.
Q.

And what other type--general type of area as far as

specific areas did this checklist cover?
A.

It covered any medical, dental issues, his meals, clothing

17

items, sanitary items, talked about visitation, telephone, recreation

18

time, talked about if he met with chaplain, counselors, and talked

19

about was the facility treating him professional, how was the guards

20

treating him.

21

concerns I can help him with.

22
23

Q.

And at the end I would ask if there were any other

And now specifically in some of those areas, what did

Private First Class Manning consistently say about the way he was

5612

09507

1

being treated by the guards at Quantico?

2

A.

Professional or excellent.

3

Q.

And about how often did he say that and--when you had these

4

discussions with him?

5

A.

Every week.

6

Q.

Now when you went through this checklist, did you go

7

through every question on the checklist?

8

A.

Yes, sir.

9

Q.

So you didn’t skip any questions?

10

A.

No, sir.

11

Q.

Did Private First Class Manning answer the questions

12

beforehand at time?

13

A.

14

going to ask.

15

Q.

And what do you mean by “go through the motions”?

16

A.

After I finished one question, he might get ready--he might

17

After a while when--he pretty much memorized what I was
But I still had to go through the motions.

answer the next one for me as I’m--as I started reading it.

18

Q.

And so then what would you do at that point?

19

A.

I would shake my head--acknowledge his answer as I’m

20

finishing the sentence and do a checkmark.

21

Q.

So you would--you would ask ever single question?

22

A.

Yes, sir, even though pretty much knew what was coming

23

next, yes, sir.

5613

09508

1

Q.

And that includes even the back second page of it where--of

2

the form were he talks about having a brig SOP and understand the

3

grievance process?

4

A.

Yes, sir.

5

Q.

And on--in addition to Private First Class Manning talking

6

about the guards, what did he say consistently about his treatment

7

overall by the facility at Quantico?

8

A.

Professional.

9

MJ:

You said what?

Professional?

10

WIT: Professional.

11

MJ:

Okay.

12

Q.

How often did the accused raise issues or concerns about

13

his time at Quantico?

14

A.

To me; twice.

15

Q.

And what were those issues?

16

A.

One he didn’t understand how come he was on prevention of

17

injury.

18

process to see if he could come off of it.

And the second time was when he actually used the grievance

19

Q.

So going to the first one; when--when about was that?

20

A.

After a few months after he first got there.

21

TC[MAJ FEIN]:

22

MJ:

23

Hold on.

Your Honor, may I have a moment?

Yeah.

[Pause]

5614

09509

1

TC[MAJ FEIN]:

Your Honor, I’m handing First Sergeant Williams

2

Enclosure 26 to Appellate Exhibit 259 [handing the document to the

3

witness].

4

Q.

Do you recognize those documents, First Sergeant?

5

A.

Yes, sir.

6

Q.

And what are they?

7

A.

These are the checklist records that I would take or one of

8
9

the command team would take every time we went on a visit.
Q.

And who--who performed the majority of the visits for the

10

command team?

11

A.

Me, sir.

12

Q.

And then who else performed them in general if you weren’t

13
14

there?
A.

Captain Casamatta.

If he was absent; acting commander--

15

Captain Varner now, but at the time she was a lieutenant.

16

an acting first sergeant, Sergeant First Class Jones.

17

either one--one of--those team, we had Chief Winnimer [phonetic], who

18

was our XO--acting commander, also.

19

Q.

And we had

And when

And so going back to the question I asked you before, do

20

you, do you--and please feel free to use those documents to refresh

21

your memory, but when did--when, to the best of your knowledge did

22

Private First Class Manning first question his prevention of injury

23

status with you?

5615

09510

1

A.

[Looking at the documents] 10 September, sir, 2010.

2

Q.

10 September 2010?

3

A.

Yes, sir.

4

Q.

And did you do when he--or what did he ask for--what did he

5

voice to you?

6

A.

7

That he wasn’t aware how come he was still on that type of

watch.

8

Q.

And then what did you do when you were asked that question?

9

A.

At the conclusion of our--our session, I just asked the--

10

the enlisted members of the brig how come he was still on it.

They

11

pretty much gave me an explanation.

12

the same thing.

13

PFC Manning the next week on what I was told of how come he was still

14

on that type of watch.

And I asked Captain Casamatta

He gave me an explanation.

So I followed up with

15

Q.

And what were you told?

16

A.

To prevent him from harming hisself, sir.

17

Q.

And when--and when you followed up with Private First Class

18

Manning the following week, what--did Private First Class Manning

19

have any other questions about that?

20

A.

No, sir.

21

Q.

But he never voiced any other concerns about changing the

22
23

status or--or having more clarification about the status?
A.

No, sir.

5616

09511

1

Q.

Now you mentioned there was a second time that Private

2

First Class Manning asked for assistance with his status change.

3

When was that?

4

A.

[Looking through the document] It was in a January--it was

5

either in 2011--let’s see here [looking through the documents].

6

[Pause]

7

A.

I became aware of it on January the 14th of 2011.

8

Q.

And what did you become aware of at that point?

9

A.

That he had made a grievance on 7 January to figure out how

10

he can get off of prevention of injury.

11

Q.

And--and that’s what he told you?

12

A.

Yes, sir.

13

Q.

And what--what did you do about that once you were told

A.

At the conclusion of our session, I asked the warrant

14
15

that?

16

officer in charge of the facility about his grievance and how come it

17

wasn’t answered still for that week.

18

Q.

Okay.

19

A.

And he told me he would--he would answer it.

20

Q.

And was it--was it answered the following week?

21

A.

It was answered before I got back down there, sir.

22

Q.

Okay, but was it the actual following week----

23

A.

Yes, sir.

5617

09512

1

Q.

----or was it still open?

2

A.

It was still open on the 14th, but before I got back down

3
4
5

there the next week it was already closed.
Q.

Okay, so the following week, according to the forms, it was

closed out or was the question still pending?

6

A.

[Looking through the documents.]

7

Q.

And actually--I’m sorry.

8

moment.

9

A.

No, sir.

10

Q.

And why not?

11

A.

Sometimes we would be out on the road and we’ll notice that

12

But I’ll ask that question in a

Did you use these forms every single time you went down?

we didn’t have the sheet with us.

13

Q.

But you’d still visit?

14

A.

Yes, sir.

15

Q.

Okay, what would you do when you didn’t have this form?

16

A.

I would still use the Quantico standard form and take an

17

additional piece of paper from them.

18

that’s on the checklist.

19

memorandum of record to cover the conversation.

20

Q.

Okay.

And we’d still hit the items

And there were a few times where I did a

Thank you.

And so going back to the question asked;

21

was the following week after that 14 January, had the question been

22

answered or was it still pending according to the form?

23

A.

It had been answered, sir.

5618

09513

1

Q.

It had been answered?

2

A.

Yes, sir.

3

Q.

Okay.

4

A.

Nothing came about.

5
6
7

And then what about the following week?
Again, it just started to be

consistent; don’t understand how come he was still on it.
Q.

Okay.

Were you ever asked at that point to assist with

making a change or was it just--explain for the court----

8

A.

Never asked----

9

Q.

----what type of questions it was?

10

A.

Hooah.

Never asked to make a change--it was just when I

11

got to that portion of the check--check sheet, it would be a note

12

consistently that he didn’t understand why.

13

Q.

So why--if--starting in, you said, 10 September 2010, all

14

the way up and through including 14 January, if it consistently was

15

being checked “no”; he doesn’t understand why, why didn’t, I guess

16

you as a first sergeant or later company commander or anyone in the

17

chain of command, seek further clarification?

18

A.

Did feel--for myself personally, I didn’t feel there was

19

further clarification needed.

20

harm himself.

21

Q.

Okay.

22

A.

Just by me the first time.

23

It was just to ensure that he didn’t

And was that voiced to Private First Class Manning?

consistently be a “no.”

And then every week there would

So I just got the feeling that--although the

5619

09514

1
2
3

explanation was given, maybe it wasn’t a good enough reason to him.
Q.

Okay.

But he never specifically made any requests during

that time for any additional information?

4

A.

No, sir.

5

Q.

What about any other types of requests for--for supplies,

6

clothing, food?

7

First Class Manning while you were there--or while he was at

8

Quantico?

9

A.

Did you receive any other requests from Private

Yes, sir.

There was a time where he’ll turn in laundry and

10

some items would be missing.

11

and he’ll have them the next time--concerns about his uniform in

12

preparation for this.

13

some sneakers, all this items that came back from the theater.

14

handled some financial issues that he had--some previous travel

15

vouchers--and he wanted to see his LES--and dental.

16
17

Q.

So I’ll address that with the facility

There were times when he wanted some sweats,
We

So would it be accurate to say that when you had--received

this certain request the command acted on it?

18

A.

Yes, sir.

19

Q.

And how did you all typically act on it?

20

A.

As soon as possible.

As soon as we did all the

21

coordinating and planning, everything was taken care of.

22

was something minor like the clothing items, we just paid out of our

23

pocket just to get it done.

5620

And if it

09515

1
2

Q.

And did you give the feedback--or did you give feedback to

Private First Class Manning based on accomplishing his request?

3

A.

Yes, sir.

4

Q.

Was it your feeling that he understood or knew if he asked

5

for something he--you all would execute to the best of your ability

6

to do it?

7

A.

Yes, sir.

8

Q.

How often did the accused raise other concerns such as need

9
10

for medical care?
A.

Just after first--first getting to his--the facility, just

11

the general care.

12

But after that, nothing much.

13

Q.

Then he had some prescriptions he needed to fill.

And what did the chain--what steps did the chain of command

14

take in order to--or could you just explain for the court the steps

15

the chain of command took in order to move Private First Class

16

Manning such as--to Walter Reed or to a TDS office----

17

A.

Oh, yes, sir.

18

Q.

----if needed?

19

A.

Hooah.

Whenever we were going to make a movement, we’ll

20

make sure that we had properly trained personnel; chasers, for

21

escorting.

22

of the area to make sure we know the route.

23

enforcement to make sure that they--they were on board and they would

We’ll find out where the facility is.

5621

We’ll do a recon’

We’ll talk with law

09516

1

be able to escort us.

2

that we gave them some dignity and respect and he wasn’t put out on a

3

show as he was arriving to these areas.

4

doctor or the dentist with them--to ensure that they’ll be able to

5

see him even though, you know, he wasn’t a member of that facility

6

because some areas have Tricare rules where they can’t see people.

7

So we’ll square away all that ahead of time.

8

Quantico when we were coming so that they would have him prepared to

9

move out in a timely manner.

10

Q.

We checked the--the entry points to ensure

We checked with--if it was a

And, of course, we let

And when--so as a practical example, for instance, use the

11

706 at Walter Reed, what type of specific coordination would you have

12

to do in order to decrease any--the public viewing of Private First

13

Class Manning shackled?

14

A.

For the Walter Reed trip, we did the recon’.

We had--we

15

knew he was going to be traveling through the city as it’s--it’s a

16

nice drive through D.C. to get there.

17

entrance that wasn’t the main entrance so that he can get into the

18

facility--of course, with the dignity and respect; not being for

19

show.

20

We ensured that there was an

And the doctors already knew he was coming for the visit.
Q.

And that same type of procedure with the recon’s, the

21

tours, and the actual movements, both--that happened for locations at

22

Fort Belvoir?

23

A.

For SCIF’s?

5622

09517

1

Q.

Sure.

2

A.

Yes, sir.

3

Q.

Or in Alexandria for SCIF’s?

4

A.

Yes, sir.

5

Q.

Walter Reed?

6

A.

Yes, sir.

7

Q.

Everywhere he moved?

8

A.

Yes, sir.

9

Q.

What concerns did you have, First Sergeant Williams, about

Fort Myer?

10

the way--or about the accused possibly being treated poorly by the

11

Quantico officials?

12

A.

None, sir.

13

Q.

And why?

14

A.

Because every visit I felt that once I got to are there any

15
16
17

other concerns I can help you with, he would have told me.
Q.

And you--did you--but you felt you had that rapport where

he would tell you that?

18

A.

Yes, sir.

19

TC[MAJ FEIN]:

20

WIT: Yes, sir.

Thank you, First Sergeant.

21

[The civilian defense counsel retrieved the documents from the

22

witness].

23

TC[MAJ FEIN]:

Your Honor, Mr. Coombs retrieved Appellate--

5623

09518

1

Enclosure 26 to Appellate Exhibit 259.

2
3
4

CROSS-EXAMINATION
Questions by the civilian defense counsel:
Q.

First Sergeant, the first time you--you documented your

5

command visit, at least on the forms in Enclosure 26 of Appellate

6

Exhibit 259, was on 19 August 2010, correct?

7

A.

Can I see it, sir?

8

Q.

You most certainly can.

9

A.

Thank you, sir.

10

CDC[MR. COOMBS]:

I’m handing back Appellate Exhibit--

11

Enclosure 26 of Appellate Exhibit 259 [handing the document to the

12

witness].

13

A.

[Looking at the document] Yes, sir, first--first document.

14

Q.

And that form--that was a form that you received from

15

Captain Haberland, correct?

16

A.

Yes, sir.

17

Q.

And you or a member of your command would visit PFC Manning

18

weekly using that form?

19

A.

Yes, sir.

20

Q.

And as you said, your visits would be in a no contact

21

booth?

22

A.

Yes, sir.

23

Q.

And you would ask the questions, PFC Manning would give you

5624

09519

1

a yes or no answer, and then you would check the box?

2

A.

Yes, sir.

3

Q.

And then to the right of the boxes, if you had other

4

detail, that’s where you would write any details in the remarks

5

section?

6

A.

Yes, sir.

7

Q.

Now PFC Manning wouldn’t be filling out these forms,

8

correct?

9

A.

No, sir.

10

Q.

Either you or someone from the command would?

11

A.

Yes.

12

Q.

And then occasionally--or for the most part, you would

13

some--have him sign the document after it was done?

14

A.

All the time except once.

15

Q.

Okay.

Yes.

And the first time that you--you say that PFC

16

Manning told you he did not understand why he was in POI was on 10

17

September 2010, is that correct?

18

A.

Yes, sir.

19

Q.

And on that day he told you that he had been following the

20

rules?

21

A.

I don’t remember that, sir.

22

Q.

You remember him telling you that he didn’t do or say

23

anything that would indicate that he was going to harm himself?

5625

09520

1

A.

No, I don’t remember that, sir.

2

MJ:

When you’re saying you “don’t remember” are you saying you

3

don’t--you just don’t have a recollection of it or it never happened?

4

WIT: I have a recollection of having that conversation.

5

Q.

Do you recall us talking about this and you saying that he

6

was telling you, hey, First Sergeant, I don’t--I mean I’m not doing

7

anything to give them a reason to think I’m going to harm myself?

8

A.

After the months of it going on, not that first time.

9

Q.

Okay.

10

So at some point you recall him saying, hey, I’m not

doing anything to give them a reason to harm myself?

11

A.

Right.

But not 10 September--yes, sir.

12

Q.

Right.

So on 10 September he just simply said I don’t

13

understand why I’m on this----

14

A.

Yes, sir.

15

Q.

----status?

16

A.

Yes, sir.

17

Q.

And you told him you’d look into it?

18

A.

Yes, sir.

19

Q.

And that’s when I--you went and spoke to Master Sergeant

20

Papakie, is that correct?

21

A.

I can’t recall who I spoke to that day.

22

Q.

Was it an enlisted person you spoke to?

23

A.

It was an enlisted person.

5626

09521

1

Q.

And did--was it a senior enlisted or junior enlisted?

2

A.

Senior enlisted.

3

Q.

And when you spoke to that person he basically just told

4

you that they considered PFC Manning to be a risk of self-harm?

5

A.

Yes, sir.

6

Q.

And that was all they told you really?

7

A.

No, sir.

8

Q.

What else did they tell you?

9

A.

To make sure he didn’t hurt hisself was the reason that he

10

was on that type of watch.

11

Q.

Okay.

12

A.

Yes.

13

Q.

Now after speaking with this senior enlisted person, you

14

And that’s what they told you then?

went back to PFC Manning and you told him what you learned?

15

A.

After the--during the next visit.

16

Q.

And during that next visit you told him that that--you

17

know, the Quantico facility just considered him to be a risk of self-

18

harm?

19
20
21
22
23

A.

Not the same words, but that--they wanted to ensure that he

didn’t hurt hisself.
Q.

Okay, so you told him they had him in this condition

because they didn’t--they wanted to ensure he would not hurt himself?
A.

Yes, sir.

5627

09522

1
2

Q.

Now you didn’t have the authority to order PFC Manning’s

status to be changed, correct?

3

A.

No, sir.

4

Q.

And you let PFC Manning know that obviously you didn’t have

5

the authority to change his custody status?

6

A.

No, sir.

7

Q.

“No, sir,” you didn’t let him know or----

8

A.

I didn’t let him know that.

9

Q.

So did you tell him that you could change his custody

10

status?

11

A.

12

No, just that I would look into a reason for why he was

still on that status?

13

Q.

All right.

14

A.

Yes, sir.

15

Q.

And you’re Army?

16

A.

Yes, sir.

17

Q.

So it’s safe to assume that he knows that you don’t control

18

But obviously he’s in a Marine brig?

the Marine brig?

19

A.

Yes, sir.

20

Q.

Now you--you--you do have the ability to do certain things

21

as the first sergeant.

And that is to ensure he’s in proper uniform?

22

A.

Yes, sir.

23

Q.

To make sure he has shoes if he needs shoes?

5628

09523

1

A.

Yes.

2

Q.

And he’s getting dental care if he needs dental care?

3

A.

Yes.

4

Q.

And those are the things that you, the command, could

5

control, right?

6

A.

Yes.

7

Q.

Now on 17 September, 23 September, and 30 September, PFC

8

Manning continues to tell you he does not understand why he’s on POI.

9

Do you continue to tell him it’s just because the brig wants to

10

ensure he doesn’t harm himself?

11

A.

[Looking through the documents] No, sir.

12

Q.

What do you tell him when he’s telling you, no, I don’t

13
14

understand why I’m still on POI?
A.

After explaining it the first time, once we would get to

15

that portion, there was just a standard, no, and we would move onto

16

the next question.

17

Q.

And you indicated that at least in the subsequent occasions

18

that’s when he started telling you, hey, First Sergeant, I’m still

19

not doing anything to give them a reason why.

20

respectful, still doing everything I should be doing.

21
22
23

A.

I’m still being

That came once I found out he did the grievance months

later.
Q.

All right.

So the first time he says that is in----

5629

09524

1

A.

January----

2

Q.

----2011?

3

A.

----yes, sir.

4

Q.

All right, so during these times periods then in 2010, he’s

5

saying, First Sergeant, I don’t understand why, but there’s no

6

conversation between the two of you about it?

7

A.

Right, ‘cause it was--if I could do this--[reading from the

8

document] do you understand why you’re on sui--suicide watch or

9

prevention?

10

The--no.

When was the last time you saw a doctor,

therapist or counselor--we’d go to the date--it wasn’t----

11

Q.

And why----

12

A.

----an area for explanation at that point.

13

Q.

Okay, why as the first sergeant--why didn’t you think that

14

at that point when he’s saying “no” that you needed to go into more

15

detail with him or go back to a facility and--and get them to give

16

you a better answer?

17

A.

I was considering to be like when my--my son, who’s 16, he

18

has a driver’s permit and he wants to borrow my car.

19

drive, but--he say, hey, Dad, let me get the car.

20

drive.

21

still asks me all the time.

22

your explanation, however, you still don’t understand why.

23

Q.

I know he can

You know I can

I’m like no you can’t have it ‘cause it’s illegal.

Okay.

But he

So I considered it to be, hey, you have

So at this point then, if I understand you

5630

09525

1

correctly, PFC Manning knew that the facility was going to keep him

2

in this condition because they believed--they didn’t want him to do

3

anything to harm himself?

4

A.

Yes, sir.

5

Q.

And in addressing it with you that was the answer he got

6

and both of you knew that’s the answer that you got?

7

A.

Yes, sir.

8

Q.

Now starting in October--on 7 October 2010, you checked

9

“yes”--that’s Page 19 of 87--to that question “Do you understand why

10

you’re on suicide watch or injury prevention.”

11

checked “yes” on that--on that occasion?

Do you know why you

12

A.

[Looking at the document] He responded with a “yes”, sir.

13

Q.

And do you know--did you talk about that at that point?

14

A.

No, sir.

15

Q.

So you see that the “yes” is checked again on 13 October

16

and 21 October.

And I guess other than PFC Manning responding “yes”

17

to that do you know why that was a “yes” now that he understands the

18

why he’s on suicide watch or injury prevention?

19

A.

Other than as excepted [sic] in my first response, no, sir.

20

Q.

If you look to Page 27 of 87, that’s when one of the other

21

command members, Sergeant First Class Jones does the visit.

22

checks “no” to that question.

23

been on POI for 90 days.

And he

And he also notes that PFC Manning’s

Do you know why ----

5631

09526

1
2

TC[MAJ FEIN]:

Your Honor, I’m sorry to interrupt, but that’s

not Page 27.

3

WIT: 29 [looking at the document].

4

CDC[MR. COOMBS]:

5

Q.

29 of 87.

6

A.

No, sir.

7

Q.

Was that ever brought up to--to you as the first sergeant?

8

A.

I was away at a different installation.

9

Q.

I’m sorry.

10

A.

So--he never--I was away at a different installation.

11
12

29?

Okay.

Do you know why he indicated no at that point?

So

he might have addressed it with the commander.
Q.

Now on 10 November, Chief Winnimer con--conducts the visit.

13

And he checks “no” to, again, the question of whether or not PFC

14

Manning understands if he’s on--why he’s on suicide or prevention of

15

injury.

16

A.

Do you see that?
[Looking at the document] He--he was checking “no” in an

17

area saying “no” that PFC Manning was not on either.

18

incorrect entry right there.

19
20

Q.

Right.

So that was an

So that’s not valid ‘cause you know he was still on

prevention of injury at this point, right?

21

A.

Oh, yes, sir.

22

Q.

Now if you--if you look then at the 18 November 2010 entry-

23

-I believe that’s on Page 33, but verify for me--of 87.

5632

09527

1

A.

[Looking at the document] Yes, sir.

2

Q.

Is that Page 33?

3

A.

Yes.

4

Q.

And it goes back to checking “yes” in response to do you

5

know why you’re on suicide or injury prevention.

6

do you recall why?

7
8

A.

Just standard questions and giving a yes or no answer from

Q.

Okay.

him.

9
10

Do you know why or

Then we--the forms not used for the 26 November

visit, correct?

11

A.

[Looking through the documents] Correct.

12

Q.

But it does--and it does not appear to me at least looking

13

at that, that that question is covered.

14

being covered?

15

A.

Do you see that question

Well what I wrote in my own handwriting on that day was

16

[reading from the document] still on injury prevention and he knows

17

why.

18

Q.

All right.

If you go down----

19

MJ:

But what page are we on with this now?

20

WIT: 35 of 87.

21

CDC[MR. COOMBS]:

22

MJ:

Got it.

23

Q.

So do you know why you would--you would write that?

35 of 87, ma’am.

Go ahead.

5633

09528

1

A.

Because PFC Manning and myself--if I forgot the checklist,

2

we would go down things that we could remember.

3

me write that, sir.

4

Q.

Okay.

And that’s what made

So then if you go to 10 December, and--and pretty

5

much for the rest of December; the 10 December, the 14 December, and

6

23 December, each one of those is checked--two of them by Sergeant

7

First Class Jones and one by you--that PFC Manning does not

8

understand why he’s on injury prevention.

9

you recall why that would be the case?

During this time period do

10

A.

[Looking at the documents.] No, sir.

11

Q.

If you go to Page 47 of 87, you see that that’s--on 5

12

January 2011, Captain Casamatta conducts the visit, correct?

13

A.

[Looking at the document] Yes, sir.

14

Q.

And PFC Manning tells him that he doesn’t understand why

15

he’s on POI?

16

A.

17
18

[Looking at the document] I can’t tell with the--the copy

is saying though on this one.
Q.

Did Captain Casamatta ever tell you that--and I believe

19

it’s documented there--that he would speak to the Master Sergeant

20

about why?

21

A.

He didn’t tell me, sir.

22

Q.

Do you know if Captain Casamatta spoke to Master Sergeant

23

Papakie about this?

5634

No, sir.

09529

1

A.

Yes.

He spoke with him--I’m assuming he’s the same one I

2

talked to the day I asked.

3

----

But he spoke with him at that time, also

4

Q.

And ----

5

A.

---- about--and received the same type of answer.

6

Q.

Just that they ----

7

MJ:

This is what ----

8

Q.

---- did ----

9

MJ:

---- this is what timeframe?

10

CDC[MR. COOMBS]:

11

Q.

12

5 January 2011, ma’am.

That, again, that they just didn’t want PFC Manning to harm

himself, and that’s why they had him in that condition?

13

A.

Correct, sir.

14

Q.

If you go now to Page 49 of 87, that’s your 14 January 2011

15

visit, is that correct?

16

A.

[Looking at the document] Yes, sir.

17

Q.

Now on that day PFC Manning tells you apparently--or either

18

this visit or a previous one where he’s still not doing anything to

19

be on POI, correct?

20

A.

Correct.

21

Q.

And he tells you, hey, I’m--I’m doing everything I’m

22
23

supposed to be doing?
A.

Correct.

5635

09530

1
2

Q.

And he notifies you that, hey, I even filed a grievance

with the Brig Commander but I haven’t heard anything back from him?

3

A.

Correct.

4

Q.

And you asked him, okay, when’d you file it?

5

And he tells

you 7 January?

6

A.

Correct.

7

Q.

And you actually document that on the form, do you not?

8

A.

Yes, sir.

9

Q.

And when you hear that he hasn’t heard back based upon his

10

DD 510 complaint you’re surprised?

11

A.

Yes, sir.

12

Q.

You’re surprised because a week has gone by?

13

A.

Yes, sir.

14

Q.

And you tell him, hey, I’m going to look into that issue,

15

and I’ll talk to the warrant myself?

16

A.

Yes.

17

Q.

And you did, in fact, approach Chief Averhart and you asked

18
19
20

him about that?
A.

I don’t remember the chief’s name, I’m sorry.

remember the faces all the time.

21

Q.

It was a warrant officer though, right?

22

A.

Yes, sir.

23

Q.

And he was the Brig OIC?

5636

But I

09531

1

A.

Yes, sir.

2

Q.

So you go up to him and you say, hey, look, I’m hearing

3

that PFC Manning has filed a DD 510 grievance form with you and you

4

haven’t responded back to him yet?

5

A.

Yes, sir.

6

Q.

And he doesn’t look at you like he doesn’t know what you’re

7

talking about?

8

A.

No, sir.

9

Q.

In fact, he says, yeah, I’m going to--I’m going to respond

10

to him?

11

A.

Correct.

12

Q.

And he says that the response is going to be that his

13

request to be removed is going to be denied?

14

A.

He didn’t respond to me of what the decision would be.

15

Q.

What did he say to you?

16

A.

He told me he was going to give him a response.

17

Q.

All right.

18

So he didn’t convey that that would be in a

negative?

19

A.

Correct, sir.

20

Q.

All right.

21

A.

Yes, sir.

22

Q.

Now from that point forward if you--you see pretty much 21

23

So--and this was on 14 January, correct?

January, 28 January, 4 February, 11 February, 25 February, 2 March,

5637

09532

1

PFC Manning continually says I don’t understand why I’m on POI.

2

A.

[Looking at the document] Yes, sir.

3

Q.

And based upon the previous responses you got from the

4

brig, you don’t really do anything to follow-up on that at this

5

point, right?

6

A.

Correct.

7

Q.

‘Cause they’re--as the first sergeant do you believe

8

there’s anything you can do to get PFC Manning off of POI?

9

A.

No, sir.

10

Q.

Now on 11 March--that’s Page 73 of 87, you note that PFC

11

Manning does--still does not understand why he’s on POI, but you also

12

note that he tells you about increased restrictions of being required

13

to basically wear a suicide smock at night?

14

A.

[Looking at the document] Correct.

15

Q.

And at that point are you aware that he’s having to

16

surrender his underwear too?

17

A.

No, sir.

18

Q.

All right.

19

if anything?

20

A.

And I didn’t know about the smock until that day.
And when you hear about that what did you do,

After--he didn’t give me a reason that he was wearing the

21

smock.

22

caused them to require that.

23

Q.

But after the session I asked the facility personnel what

And what did they tell you?

5638

09533

1

A.

That he made some comments that--some words to the effect

2

of all he had to do was such and such to hurt himself.

3

didn’t tell me specifically what he said he could do.

4
5

Q.

All right.

But they

And did you follow that up with PFC Manning to

ask him about what he said?

6

A.

No, sir.

7

Q.

Now on 18 March, 23 March and 31 March, again, PFC Manning

8

tells you he does not understand why he’s on POI?

9

A.

[Looking at the documents and no response.]

10

Q.

During that time period do you know if you re-approached

11

the brig to find out why he’s still on POI?

12

A.

I never did, sir.

13

Q.

Now we don’t have any command forms for April of 2011, do

14

you know why?

15

A.

[Looking at the document] April 2011 we--well, I know I

16

myself and a few others of the command team were TDY for a few weeks

17

at Fort Lee, Virginia.

18
19

Q.

Okay.

Now PFC Manning is eventually transferred from

Quantico to the JRCF on 20 April 2011, is that correct?

20

A.

21

off my head.

22

Q.

23

And I cannot who was sitting in my seat then.

[Looking at the document] I can’t confirm that date, sir,

All right.

But he’s event--he eventually goes to the JRCF,

correct?

5639

09534

1

A.

Yes, sir.

2

Q.

And your command visits continue there?

3

A.

Yes, sir.

4

Q.

And at the JRCF you notice a change in PFC Manning,

5

correct?

6

A.

Yes, sir.

7

Q.

You notice that he’s happier?

8

A.

Yes, sir.

9

Q.

He’s more talkative?

10

A.

Yes, sir.

11

Q.

And, in fact, you also note that he’s not on MAX or POI?

12

A.

Correct, sir.

13

CDC[MR. COOMBS]:

14

WIT: You’re welcome, sir.

15

MJ:

16

TC[MAJ FEIN]:

17
18
19

Thank you, First Sergeant.

Redirect?
Yes, Your Honor.
REDIRECT EXAMINATION

Questions by the trial counsel [MAJ Fein]:
Q.

First Sergeant, first, in reference to a line of

20

questioning when it deals with you being part of the Army command and

21

reference PFC Manning being housed in a Marine facility; if you’d

22

felt that Private First Class Manning’s health and welfare was having

23

a detrimental effect, could you have done something as his Army first

5640

09535

1
2

sergeant?
A.

Any--anytime I knew of any concern, I immediately went to

3

the commander.

4

a bad situation for him, of course, I would have taken it to Captain

5

Casamatta and we would have went higher to either have him placed

6

somewhere else or someone who could take action there at the facility

7

to change the accommodations.

8
9

Q.

So if it was something that was really bad--you know,

So at no point did you feel that--that you had no recourse

if it did get that bad with the Marines?

10

A.

No, sir, never.

11

Q.

Also, just a point of clarification for the court; on 14

12

January when Private First Class Manning was discussing with you the

13

grievance, did he tell you specifically--if you remember--that he

14

filed a grievance or that he filled a DD 510?

15

A.

Grievance.

16

Q.

Okay.

17

A.

No, sir.

18

I didn’t know the form number.

Do you even know what a DD 510 is?
I just assumed from today that that’s the

grievance form.

19

Q.

So you never even heard DD 510 before?

20

A.

No, sir.

21

Q.

Have you heard the term “chit” before?

22

A.

No, sir.

23

Q.

C-H-I-T?

5641

09536

1

A.

No, sir.

2

TC[MAJ FEIN]:

Thank you.

3
4
5

RECROSS-EXAMINATION
Questions by the civilian defense counsel [Mr. Coombs]:
Q.

First Sergeant, with regards to going to higher level

6

command, are you aware whether or not Captain Casamatta ever brought

7

this issue up to his battalion commander or Colonel Coffman?

8

A.

I’m not aware of that, sir.

9

Q.

So you--you hadn’t received any information that Captain

10

Casamatta might have brought this concern up to echelons above him?

11

A.

I’m not aware of that, sir.

12

CDC[MR. COOMBS]:

13

WIT: Your welcome.

14

TC[MAJ FEIN]:

15

MJ:

17
18

Thank you, First Sergeant.

No, Your Honor.

All right.

16

All right.

I just have a couple.

EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q.

First Sergeant, going back to the question that trial

19

counsel just asked you about the 14th of January, there’s a whole

20

series of questions about the inmates’ grievance procedures.

21

did you understand that block to mean?

22
23

A.

What

Your Honor, I understood it to mean that he--he was briefed

on the procedures.

He received a handbook that--at the conclusion of

5642

09537

1

the briefing he understood that while his stay--while during his stay

2

if he had any concerns he can address it with them and they’ll give

3

him an answer to his concerns.

4

Q.

The following week you have a--on the 20th, you have a

5

star--it says that--you have the handwritten questions, it says

6

[reading from the document] same grievance pending with a big star.

7

Why and how was this implemented?

Is that your writing on that one?

8

A.

Yes--yes, Your Honor.

9

Q.

Why is that starred like that?

10

A.

The--there was a change in his question of how was it

11

implemented instead of how can he come off.

12

about that.

13

prevention of injury instead of he came there and it was changed to

14

prevention of injury.

15
16
17

Q.

So I asked the facility

And they said ever since his entrance there he was under

It just stayed that way consistently.

When you had these command visits, how was the

communication between you and PFC Manning?
A.

Always professional.

I’ll ask the questions, he’ll give me

18

a response.

And sometimes at Quantico he might have a--a counseling

19

session or something.

20

might have to go a little quicker or--once I got to the Fort

21

Leavenworth facility, depending on my flight time or if they--they

22

were saying it’s lunch time or so forth, it’ll go fast.

23

flight or counseling time was the case during out discussion I’ll

So--‘cause I could arrive at any time.

5643

So I

But if no

09538

1

probably do the checklist and then just talk about anything else.

2

But always professional at Quantico.

3

Q.

When you were at Quantico did you ever--did your discussion

4

ever go beyond this question and answer on the checklist--did you

5

talk about anything else?

6
7
8
9
10

A.

We talked about a car accident one time that was--I think

in his hometown.
Q.

And that was about it, ma’am.

Did he initiate conversation with you or did everything go

one-way from you to him?
A.

I always initiated the discussion.

And I also initiated

11

the one about the car accident ‘cause I knew he was from there so I

12

asked him if he knew about it.

13

Q.

Did you feel that PFC Manning was reluctant to talk to you?

14

A.

No, Your Honor.

15

Q.

Did his demeanor change over time while the time he was at

16
17

Quantico or was it pretty consistently all the way through?
A.

Consistent all the way through except the time he told me

18

he was a smock--he wasn’t--he’s a little more--I guess more stern

19

that day.

20

he was a little more relaxed--still professional, but that day he

21

just looked bothered.

He just had a sterner look on his face that day.

Usually

22

Q.

When you say “stern” just describe it the best you can?

23

A.

Like that--if I could do the facial expression--but ----

5644

09539

1
2
3

MJ:

Let the record reflect the witness is making a stern facial

expression.
A.

Let’s see, usually there’s a relaxed facial expression, but

4

I could see there was a few muscles being used to--to make his face

5

look a little different once we got to that area.

6
7

Q.

Did he appear pleased or displeased that he was wearing the

suicide smock?

8

A.

Displeased.

9

Q.

What else did he say about it other than he was wearing it?

10

A.

That day he didn’t tell me what was the cause for him to

11

wear it.

But I received a--I was under the perception that he didn’t

12

do anything out of the normal to cause it just by the way he--he told

13

me, hey, I’m wearing this smock at night.

14

Q.

And he never said why?

15

A.

He never told me why.

16

Q.

And how did you learn about the underwear comment?

17

A.

I asked some of the enlisted personnel of the facility once

18

our session was over.

19

Q.

Did you ever ask PFC Manning why he was ----

20

A.

No, Your Honor.

21

Q.

---- wearing the smock?

22

A.

No.

23

Q.

After that session--was it 7 March or something around

5645

09540

1

then--after that session did that stern demeanor continue?

2

A.

No, they stopped using the smock.

So it stopped.

3

Q.

When did they stop using the smock?

4

A.

I can’t confirm, ma’am--Your Honor.

I’m--that could have

5

been the last day--the day I was there--or it could have went on a

6

day or two after.

7

visit.

8
9
10

Q.

It wasn’t being used by the time I did my next

Okay, just to make sure I understand this, your 11 March

visit--I’m sorry--there was a smock, and then your 18 March visit
there was no more smock?

11

A.

Right, Your Honor.

12

Q.

How did you know that?

13

A.

During my next visit once we got to that area--well,

14

actually I found out when I got there that he wasn’t wearing it

15

because I asked the facility personnel.

16

area--I’m--I’m quite sure he would have told me that he was still--

17

still wearing it.

18
19
20

Q.

And when we got to that

So the facility personnel told you on the 18th of March

that he wasn’t wearing the smock anymore?
A.

Correct.

‘Cause I came in--I usually do--I have to come

21

in--I sign in, give them my ID and so forth.

22

words to a few people--ask them how are things.

23

Q.

And I’ll just say a few

And was that the last discussion you had of any smocks

5646

09541

1
2
3

after that with anybody?
A.

Yes, Your Honor.

And I never mentioned the smock to PFC

Manning during that session that day.

4

Q.

On the 18th?

5

A.

On the 18th.

6

MJ:

Any follow-up based on that?

7

TC[MAJ FEIN]: Just looking through--one moment, please, Your

8
9
10

Honor.
MJ:

Yes.

[Pause]

11

TC[MAJ FEIN]: No, Your Honor.

12

CDC[MR. COOMBS]:

No, Your Honor.

13

[The witness was permanently excused, was duly warned, and withdrew

14

from the courtroom.]

15

MJ:

Okay, what is remaining?

16

TC[MAJ FEIN]:

Ma’am, for tonight what’s remaining is calling

17

Captain Casamatta, the company--the previous company commander.

18

United States requests a 15 minute recess.

19

MJ:

That’s fine.

20

TC[MAJ FEIN]:

The

What about Colonel Coffman?

Your Honor, at this time the government does not

21

intend to call him, but would like to reserve final decision until

22

after Captain Casamatta’s testimony.

23

MJ:

All right.

And how long of a recess do you want?

5647

09542

1

TC[MAJ FEIN]:

15 minutes, Your Honor.

2

MJ:

3

CDC[MR. COOMBS]:

4

MJ:

Okay, defense, any--anything?
No objection, Your Honor.

All right, court is in recess until 1655 or 5 minutes to 5.

5

[The Article 39(a) session recessed at 1641, 10 December 2012.]

6

[The Article 39(a) session was called to order at 1705, 10 December

7

2012.]

8
9

MJ: The Article 39(a) session is called to order.

Let the

record reflect all parties present when the court last recessed are

10

again present in court.

11

TC[MAJ FEIN]:

Yes?

Ma’am, the United States calls Captain Joe

12

Casamatta.

13

CAPTAIN JOE CASAMATTA, U.S. Army, was called as a witness for the

14

prosecution, was sworn, and testified as follows:

15
16
17
18

DIRECT EXAMINATION
Questions by the trial counsel [MAJ Fein]:
Q.

You are Captain Joe Casamatta, currently of First Army

Division, East?

19

A.

I am.

20

Q.

And how long have you been in the Army, Captain Casamatta?

21

A.

I’ve been in the Army for just over 16 years, sir.

22

Q.

And how long have you been an officer?

23

A.

I’ve been an officer just over 6 years, sir.

5648

09543

1
2

Q.

And before becoming an officer what was your last position

and rank?

3

A.

I was a platoon sergeant at Fort Sam Houston.

4

Q.

And what was your rank?

5

A.

I was a staff sergeant (promotable).

6

Q.

And when were you company commander of Headquarters

7
8
9
10
11
12

Company, U.S. Army Garrison, Fort Myer?
A.

I was company commander from January 2010 until July of

this year.
Q.

And what were the general responsibilities of your company

and the personal in your company?
A.

Well the HHC, USAG has about two thousand Soldiers in it.

13

And our responsibility primarily were UCMJ actions for those

14

Soldiers--and--basically in the National Capital Region, but we had

15

Soldiers all over the world to include every embassy.

16

Q.

And do you know Private First Class Manning?

17

A.

I do.

18

Q.

How do you know him?

19

A.

I know him because he’s a Soldier that was under my

20

command.

21

Q.

And when did he join your command?

22

A.

He came to us in--excuse me, I can’t remember the exact

23

date, but it was--I believe July of ’10.

5649

09544

1

Q.

Of 2010?

2

A.

Of 2010.

3

Q.

And where did you first meet with him?

4

A.

I first met with him in Quantico Brig.

5

Q.

And about how many times while he was still at the Quantico

6

Brig did you meet with him personally?

7
8

A.

rough estimate.

9
10

While he was at Quantico, I would say 10 times--that’s a

Q.

And how often did someone from your command--a leader from

your command meet with him?

11

A.

Well, our goal was every other week to meet with him. We

12

tried for more--to meet with him more.

13

week.

14
15
16

Sometimes it was every third

But typically every other week was our general mark.
Q.

And what was the purpose of your--direction to have someone

meet with him every other week?
A.

The purpose to meet with Private Manning was to make sure

17

he was being taken care of appropriately and to make sure if he had

18

any needs they were being taken care of.

19

Q.

And did you use a checklist for that?

20

A.

We did use a checklist.

21

Q.

And how did you develop that checklist?

22

A.

The checklist was given to us by Captain John Haberland.

23

Initially the checklist was a little bit different than the one that

5650

09545

1
2
3
4

we have today.
Q.

And so how--how--how did you develop the final one that

your command started using and still use today?
A.

The checklist that--that he had given us, I guess, had been

5

used in different--in the Army in different capacities.

6

formatted it specifically to--around the needs that we have for this

7

particular Soldier.

8
9

Q.

So we simply

During your visits how would you describe Private First

Class Manning and your direct rapport?

10

A.

I believe we had a good rapport?

11

Q.

And why?

12

A.

We had several conversations--not just about the checklist,

13
14
15

but we talked--every time I went to visit him we spoke.
Q.

And--and your conversations weren’t just about the

checklist?

16

A.

No.

17

Q.

Do you remember any specific topics or general topics that

18
19

No they were not.

you all discussed outside of the checklists?
A.

Yes.

We spoke of his family.

We spoke of the area--the

20

general area and--where he’s from.

21

Most of our conversations were focused around sports.

22
23

Q.

We spoke a lot about sports.

Now going back to the actual checklists, to the best of

your knowledge how would you summarize how Private First Class

5651

09546

1
2
3

Manning described his treatment by the guards at Quantico?
A.

Professional was a use--a word that he used on a regular

basis.

4

Q.

And what about how the facility as a whole treated him?

5

A.

Again, the word professional was used the vast majority of

6
7
8

the time.
Q.

How often did Private First Class Manning raise issues or

concerns about his pretrial confinement at Quantico?

9

A.

Infrequently.

10

Q.

And what were the issues that he did mention infrequently?

11

A.

The issues that he raised were being on increased status

12

prevention of injury and then suicide--prevention of suicide.

13

Q.

What about any other needs or wants while he was there?

14

A.

There was a couple of--of needs for basic sundry items.

15

Although the shaving kit and that kind of stuff was taken care of,

16

there was also some clothing issues; some shoes and some PTs, nothing

17

major.

18

him out of theater.

19

Q.

Most of the stuff he had already had--they had brought with

And so--before we go into any other further details, could

20

you explain, please for the court, how did your typical meeting go as

21

far as your interaction with the facility, Private Manning, the

22

visitors’ booth, et cetera?

23

A.

Well, do you want me to start at the beginning, sir?

5652

Or---

09547

1

-

2
3

Q.

Sure.

Please walk--walk the court through--when you showed

up--in general.

4

A.

Yes, sir.

Ma’am, the typical meetings--the first time we

5

had boots on ground, I brought my Battalion Command and Command

6

Sergeant Major and my First Sergeant down to Quantico so we could

7

meet with the Soldier and we could meet with the staff and find out

8

exactly where he was going to be staying.

9

we did a full round of the facility--checked out everything in the

10

area.

11

the Sergeant Major had talked to the Soldier, every meeting went

12

pretty much the same as far as the checklist goes.

13

questions--yes or no questions--and a few of them require actual

14

explanations in ‘em to check on his health and welfare.

15

And then we met with the Soldier.

We were greeted and--and

Q.

From that point on, after

It’s a series of

And so if there was an issue such as you mentioned socks

16

and sweat pants, what did--what did your leadership under your

17

command do with--with those issues?

18

A.

With a--a few things like shoes, I just purchased--I mean

19

it was no big deal, it’s just a pair of shoes--and a few other

20

things.

21

to read magazines--if he was, you know, as far as receiving books go,

22

and if they had any kind of library system for him or anything like

23

that.

Magazines, for example, I--I want to know if he was allowed

So most of the stuff was just easily--more easily purchased

5653

09548

1

than--than going through our supply system to provide that stuff for

2

him.

3
4

Q.
the brig?

5
6

And if requested for that material would you consult with

A.
that?

Yes to make sure it wasn’t contraband or anything like

Absolutely, sir, yes.

7

Q.

8

confinement.

9

A.

Yes.

10

Q.

What did Private First Class Manning bring up about his

11
12

And what did--so now going back to his status in

concerns or confusion about his status?
A.

Well, again, he brought up the fact that he was on

13

prevention of injury status.

14

status.

15

Q.

16

And he wasn’t sure why he was on that

And do you remember when he first brought that up to a

member of the chain of command?

17

A.

I cannot recall off the top of my head.

18

Q.

Was it before or after the New Year?

19

A.

It was before the New Year.

20

Q.

Before or after Thanksgiving?

21

A.

I would say right around Thanksgiving.

22
23

Maybe--maybe after,

but I truly do not recall.
Q.

And when it was first brought up what did you do as a

5654

09549

1

company--or, first, was it brought up to you or a subordinate?

2

A.

It was brought up to me from----

3

Q.

And--and--one--I’m sorry.

4

A.

----from my First Sergeant.

5

Q.

Okay, so once the First Sergeant brought it up to you what

6
7

Go ahead.

did you do as the company commander with that information?
A.

Well the first thing I did since I was in my office when he

8

told me is I let my--the Battalion Command Sergeant Major and the

9

Battalion Commander know.

And then I spoke to the Brig NCOIC at the

10

time, Master Sergeant Papakie, about it.

11

Quantico to speak to the Chief Warrant Officer-In-Charge.

12
13
14

Q.

And then I went out to

And what did they--what information did you glean from this

talk--talks you had with them?
A.

Well from the brig personnel that--that the status was

15

increased to make sure he didn’t hurt himself or anybody else.

16

make sure that he was being kept safe for lack of a better term.

17

Q.

To

And--and once you received a response from the brig

18

officials did you--did you relay that back to Private First Class

19

Manning?

20
21
22
23

A.

We spoke it about it at the next checklist--at--yes, at the

next meeting that I had with him.
Q.

So do you know why the accused continued to not understand

why he was on POI status?

5655

09550

1

A.

I do not know.

2

Q.

How often did Private First Class Manning raise other

3

concerns such as need for medical care?

4

A.

He did not.

5

Q.

He never asked for dental or medical care?

6

A.

No.

7

Q.

To you or to your--to like the First Sergeant or others?

8

A.

Nothing was ever brought to my attention.

9

I knew he--he

had a medical--he had a dental appointment and then a 706 board,

10

which as at an off-site facility.

11

know, the medical questions, he never had any medical concerns.

12

Q.

But every time he was asked, you

Okay, so would he be accurate to say that when--if your

13

subordinates, including First Sergeant, could not deal with an issue

14

on their own they’d bring it to your attention personally?

15

A.

Absolutely.

16

Q.

Did you bring any issues to the attention of your seniors;

17

your Battalion Commander or your Garrison Commander, Colonel Coffman?

18

A.

I did.

19

Q.

And what did you bring to their attention?

20

A.

Specifically the two--the two issues.

Number one, the

21

increased--the status of prevention of injury, and then the suicide--

22

increase to suicide prevention status.

23

Q.

And what was the purpose of bringing it to their attention?

5656

09551

1
2
3
4
5

A.

Well, again, both of them were brought to their attention

because it was a change in the Soldier’s status.
Q.

Were you asking for assistance to--to--to make a change

with the brig?
A.

During the prevention of suicide, I was asking for

6

assistance because the--it wasn’t moving--I needed the information to

7

why he was changed to an increase of suicide status.

8

receive the--at that time the appropriate feedback from the brig.

9

And I did not

Q.

Okay, then what----

10

MJ:

What timeframe are we talking about?

11

WIT: Ma’am, this would have been around a month before they

12

moved him from that facility in Quantico.

13

though.

14

TC[MAJ FEIN]:

15

MJ:

16

[Pause]

17

TC[MAJ FEIN]:

I could be off on my date

Your Honor, may I have a moment?

Yes.

Your Honor, I’m handing Captain Casamatta

18

Enclosure 26 of Appellate Exhibit 259 [handing the document to the

19

witness].

20

Q.

Do you recognize these, Captain Casamatta?

21

A.

I do, sir.

22

Q.

What are they?

23

A.

Sir, these are the checklists that we use at this time when

5657

09552

1

we were visiting the brig at Quantico.

2

Q.

Okay.

Could you please look through there and--to make

3

this easier, either look in the January or the March timeframe of

4

2011 and see what the date is of the event or around the date you’re

5

talking about.

6

A.

[Looking through the documents] Ah, yes.

8

Q.

And what’s the date?

9

A.

---- I’ve got the 14 January 2011 checklist in front of me.

10

Q.

And so is--is--so what would you estimate the date is of

7

11

when you reached out to your chain of command for assistance?
A.

It would--it was as soon as First Sergeant let me know that

13

this was an issue.

14

sir.

16

Sir, I’ve

----

12

15

Okay.

Q.

So it was either the 14th or early on the 15th,

Okay, and then what was--so what--again, explain to the

court what the purposes of you going to your senior chain of command?

17

A.

To inform them that there was a change in his status.

18

Q.

Okay, and then--but did you need assistance?

Were you

19

asking--I think this is confusing from what you just said.

20

that you needed assistance to effecting the change to the status or

21

was it to inform them?

22

A.

It was to inform them at this time, sir.

23

Q.

Okay.

Was it

Did you ever at any point, that time or any time,

5658

09553

1

need assistance in having his status changed?

2

A.

I did not need assistance with that, no.

3

Q.

Okay.

4

A.

Because I--at the time I didn’t feel that--that it was

5

Why not?

necessary, sir.

6

Q.

Why?

7

A.

I’m sorry, sir, I don’t understand.

8

Q.

Well, you just--you just answered at the time you did not--

10

A.

Yes.

11

Q.

----feel it necessary.

9

12

--

Why did you feel at the time it

wasn’t necessary?

13

A.

14

off of.

15

necessary to intervene in what they were doing, sir.

16

Q.

Because the--the brig had there SOP that they were going
And that’s--that’s what they did, sir.

I didn’t feel it

Okay, so after First Sergeant came back to you in January

17

of 2011, what did you do as a next step other than notify your chain

18

of command?

19
20

A.

I approached the brig about it--again, the status change,

the NCOIC and the OIC of the brig.

21

Q.

And did you receive a response back from them?

22

A.

I did, sir.

23

Q.

And what was the response?

5659

09554

1

A.

That they hold boards to--to evaluate whether or not

2

they’re at the appropriate level--there’re grievance boards, and

3

they’re--to make sure the procedures are being followed

4

appropriately, sir.

5

Q.

Were you satisfied at the time with that response?

6

A.

I was, sir.

7

Q.

And did you relay that response back to Private First Class

8

Manning?

9

A.

I did, sir, yes.

10

Q.

And after you relayed that response did he--did he ask for

11

any more assistance with any changes to his status itself?

12

A.

Not at that time, sir.

13

Q.

Did he at any other time?

14

A.

No--no, sir.

I apologize, but when we had gone over--I

15

mean every time he had an issue with his status and it was addressed,

16

they were noted appropriately, sir.

17
18

Q.

Okay, and just to explain it to the court, when you say an

issue with the status ----

19

A.

Yes, sir.

20

Q.

---- could you please explain what you mean with that?

21

A.

Sir, from what I understand there’s three levels of status.

22

There’s--at the brig, there’s no status just a regular Soldier being

23

detained or Marine being detained, prevention of injury, and then the

5660

09555

1
2

third level is prevention of suicide and prevention of injury.
Q.

When it was the issue of Private First Class Manning’s

3

confusion was it that he was asking you to have his status changed or

4

was it simply he was confused on why he was in that status?

5

A.

He was confused as to why he was in the status, sir.

6

Q.

And when you briefed your higher chain of command did they-

7
8
9
10

-was it ever to ask for assistance to change his status?
A.

No--no, sir.

for assistance.
Q.

I wasn’t reaching out to the chain of command

No.

During your personal visits with him and through your back-

11

briefs from your subordinates, including the first sergeant, did you

12

ever feel that--that Private First Class Manning’s health and welfare

13

was degrading to a level to get involved at all?

14

A.

No, sir.

15

Q.

And if he had, what would you have done?

16

A.

If it had I would have taken action, sir.

I would have not

17

only spoken with the Marine Corps chain of command, I would have

18

spoken to my chain of command as well.

19

brought a chaplain with me--I would have done something to help him,

20

sir, if I thought he needed that help.

21

Q.

And if necessary I would have

And--and actually this is the final question--well, not the

22

final--final series, did you--were you regularly briefing your chain

23

of command?

5661

09556

1

A.

I was, sir.

2

Q.

And that was Colonel Leiker and Colonel Coffman?

3

A.

That’s correct, sir.

4

Q.

And in the January timeframe who else visited on one

5

occasion with your--with your First Sergeant to visit Private First

6

Class Manning?

7

A.

Sir, I believe our--our Sergeant Major went as well.

8

Q.

So Colonel Coffman ordered his Sergeant Major to go?

9

A.

That’s correct, sir.

10

TC[MAJ FEIN]:

Thank you, Your Honor.

11
12
13

No further questions.

CROSS-EXAMINATION
Questions by the civilian defense counsel [Mr. Coombs]:
Q.

Captain Casamatta, when you started using the form that you

14

covered for the weekly reviews, that form was given to you by Captain

15

John Haberland, correct?

16

A.

That’s correct, sir.

17

Q.

And that was the first time that a lawyer had told you to

18

use a specific form to visit a--a pretrial confinee, correct?

19

A.

That is correct, sir.

20

Q.

And at some point PFC Manning started to complain to you

21

about his POI status?

22

A.

Sir, what do you mean by complain to?

23

Q.

He started complaining about being on POI status, correct?

5662

09557

1

A.

Sir, yes.

2

Q.

And--and you knew that he was taking issue with being held

3

We noted that.

in that position?

4

A.

Sir, again, I don’t understand the question.

Are----

5

Q.

You knew that PFC Manning, when he was saying I don’t

6

understand why I’m here, he wasn’t happy about being held in POI

7

status?

8

A.

Yes, sir.

9

Q.

And you don’t recall the exact date when he first stated to

10

complain about it, but you know it was sometime in 2010?

11

A.

Yes, sir, that’s correct.

12

Q.

And when PFC Manning brought that up to you then you knew

13

that it was an issue that you had to address?

14

A.

Yes, sir.

15

Q.

And I believe you told me that initially you brought that

16

issue up with Captain Haberland?

17

A.

I did, sir.

18

Q.

And you told him about PFC Manning no understanding why

19

he’s on POI?

20

A.

I did, sir.

21

Q.

And then you also brought that issue up with your Battalion

22
23

and Brigade Commander, Lieutenant Colonel Leiker and Colonel Coffman?
A.

That’s correct, sir.

5663

09558

1
2

Q.

And did any of those individuals, to your knowledge, take

any action based upon the issue?

3

A.

I do not know the answer to that, sir.

4

Q.

Now as you testified on direct, you or a member of your

5

command would try to visit PFC Manning at least weekly if possible?

6

A.

We attempted to, sir.

7

Q.

And these visits were always done in a no-contact booth?

8

A.

A no-contact booth--yes, sir.

9

Q.

And you would ask the questions or someone from your chain

Yes, sir.

10

of command would ask the questions and--and they would be reflected

11

on those forms, right?

12

A.

Yes, sir.

13

Q.

And during the time that you were filling out the form, you

14

would--you’d sometimes have extra time afterwards to take to PFC

15

Manning?

16

A.

Sir, we were never limited in our time.

17

Q.

Okay, so you had conversations with him after the form was

18

completed?

19

A.

Yes, sir.

20

Q.

And what would you--you said you talked about various

21

things; his home life, sports, and what not, is that correct?

22

A.

We did, sir.

23

Q.

And was PFC Manning talkative when you spoke to him?

5664

09559

1
2
3
4

A.

Not at first, sir.

Not at first.

We--we spoke more and

more as the weeks went on, sir.
Q.

All right, so initially he wasn’t as talkative to you, but

then he started to become more talkative?

5

A.

That’s correct, sir.

6

Q.

And we his responses when he became more talkative limited

7

to just a yes or no response?

8

A.

No, sir.

9

Q.

How would you describe his general demeanor when he was

10

talking to you?

11

A.

Engaged, sir.

12

Q.

Was he always respectful?

13

A.

Always, sir.

14

Q.

Did he ever say anything to you that indicated to you he

15

might be a risk of harming himself?

16

A.

No, sir.

17

Q.

Did he ever say anything to you that would indicate that he

18

might be a risk of harming someone else?

19

A.

No, sir.

20

Q.

Did he ever say anything to indicate to you that he was

21

contemplating escaping from Quantico?

22

A.

No, sir.

23

Q.

When you spoke to him during his time at Quantico overall

5665

09560

1

how did--how did he appear to you?

2

A.

Well mannered, sir.

3

Q.

All right.

And the time period that you spoke to him

4

afterwards about how long were your conversations once you got done

5

with the form when you just kind of talked to him?

6

A.

7

minutes, sir.

8

Q.

9

Sir, I--they varied in time; 10 minutes to 15, maybe 20

And during that time period did you ever feel that he was

becoming--he was withdrawn or reserved when you were talking to him?

10

A.

Not particularly, sir.

11

Q.

And was there a time period where you--you thought you

12

No.

noticed a decline in his speaking to you?

13

A.

No, sir.

14

Q.

Now for the majority of the times a box is checked “no” in

15

response to the question of do you know why you are on POI, is that

16

correct?

17

A.

Yes, sir.

18

Q.

And what was your understanding as the commander why PFC

19
20

Manning kept on saying “no” to that answer?
A.

Again, sir, the brig had put him on POI and that they had

21

no articulated that to the point that PFC Manning was happy with that

22

answer, sir.

23

CDC[MR. COOMBS]:

I’m handing you Enclosure 26 to Appellate

5666

09561

1

Exhibit 259 [handing the document to the witness].

2

MJ:

Yes, Major Fein?

3

TC[MAJ FEIN]:

4

Q.

Nothing, Your Honor.

Now I want to ask you a question about a particular form in

5

there, but before I do, you said that he wasn’t happy with the

6

response.

7

adequate response from the brig to indicate why they had him on POI?

You as the company commander did you feel you got an

8

A.

I do, sir.

9

Q.

And why did you feel that?

10

A.

Sir, because this is their--their mission.

11
12
13
14

job, sir.

This is their

Q.

And I believe that that was their call to make.
But did they adequately explain it to you, like why they

thought he was a risk to self-harm?
A.

Sir, I--again, I wasn’t second guessing them.

And I don’t

15

believe he was in any immediate threat by being in an increased

16

status.

17

Yes, sir.

18
19
20

Q.

So that--I believe they adequately explained that to me.

Okay.

And I guess--can you tell me the extent to--how they

explained it to you why they thought he was a risk of self-harm?
A.

Sir, just the--the situation that the Soldier was in.

21

Certainly the increased stress that was in his life, and all the

22

other factors that were playing a part of--of his current pretrial

23

confinement, sir.

5667

09562

1

Q.

But I guess based upon your observations and exchange with

2

PFC Manning, did you notice anything that would make--to make you

3

feel that PFC Manning was going to harm himself?

4

A.

No, sir.

5

Q.

Now if you would, turn to Page 48 of the Enclosure.

6

This

is your 5 January 2011 command visit.

7

A.

[Looking through the document] Yes, sir.

8

Q.

Now during that time PFC Manning tells you again that he

9

doesn’t understand why he’s on POI, correct?

10

A.

11

me--yes, sir.

12

Q.

13

[Looking at the document] Excuse me one second, sir.

All right.

And I believe next to that you document that

you’re going to discuss this with a master sergeant?

14

A.

Yes, sir.

15

Q.

And was that Master Sergeant Papakie?

16

A.

I believe that to be correct, sir.

17

Q.

All right.

18
19
20

Let

And--and so I imagine that you went and you

spoke to Master Sergeant Papakie about that?
A.

Sir, I spoke to one of the--sir, I don’t recall the NCO’s

name that I spoke to on that day.

21

Q.

When you spoke to them what--do you recall the

22

conversation?

23

A.

I recall the conversation, sir.

5668

09563

1

Q.

And what did you ask them?

2

A.

Sir, I asked the question why is this Soldier on an

3

increased level of protection and what does he need to do to get off

4

of it and what procedures can be followed if he doesn’t agree with

5

his--his current status?

6

Q.

And what did they tell you?

7

A.

That he’s on the appropriate status.

And that every week

8

it gets reviewed as far as--increased statuses get reviewed.

9

the committee decides that he should be reduced in status, then

10
11
12

And if

that’s what would happen.
Q.

Did they--when you asked the question of why he was on that

status, they indicate why he was on that status at that point?

13

A.

No--none.

14

Q.

Now I want to ask you about two separate instances where

15

the Quantico brig increased the restrictions on PFC Manning, okay?

16

A.

Yes, sir.

17

Q.

And the first is documented as being on 18 January 2011, in

18

response to an anxiety attack that PFC Manning had.

19

him on suicide risk.

20

risk at that time?

And they placed

Were you aware that they placed him on suicide

21

A.

Not when it happened, sir.

22

Q.

Were you later informed?

23

A.

Yes, sir.

5669

09564

1
2

Q.

And if I understand based upon our previous conversations,

you went to go speak to PFC Manning at this point?

3

A.

I did, sir.

4

Q.

And when you saw him, you didn’t see anything, based upon

5

your observation of him, that would indicate that he was a suicide

6

risk?

7

A.

I did not, sir.

8

Q.

And did you address this issue then with the brig?

9

A.

Sir, I did not at that time.

10

Q.

But did you later ----

11

A.

I did, sir.

12

Q.

---- address it with the brig?

13

A.

Sir, again, I went to see the Chief Warrant Officer to find

And how so?

14

out what happened.

15

Soldier didn’t feel that that was necessary, what was the standard

16

operating procedure, sir.

17
18

Q.

And, again, if the grievance procedure--if the

Did the--and if you went to see the Warrant Officer, was

that Chief Averhart?

19

A.

I believe so, sir, yes.

20

Q.

And did Chief Averhart tell you why he placed PFC Manning

21
22
23

on suicide risk?
A.

Sir, because of an outbreak--that occurrence that had

happened--that the Soldier had an outburst, sir.

5670

09565

1

Q.

And at that point did he inform you that the--the brig’s

2

forensic psychiatrist had indicated that suicide risk was not

3

warranted?

4

A.

He did not, sir.

5

Q.

Would that have been a piece of information that you would

6

like to have known?

7

A.

Yes, sir.

8

Q.

And if that had been told to you what would you have done?

9

A.

Sir, I would have readdressed the issue.

10

Q.

And, in fact, you did also address this issue with Captain

11

Haberland at the time, too, right?

12

A.

I did, sir.

13

Q.

And how so?

14

A.

Sir, I brought it up to him just like I had anytime

15
16
17

anything was out of the norm for our meetings, sir.
Q.

And did Captain Haberland inform you that the brig

psychiatrists were saying that suicide risk was not warranted?

18

A.

No, sir.

19

Q.

Did you address this issue with your Battalion and Brigade

20
21

Commanders?
A.

With the Battalion Commander, sir.

I can’t recall if at

22

this time I brought it up to the Garrison Commander or if I allowed

23

my boss to do so.

5671

09566

1

Q.

And how did you address it with Lieutenant Colonel Leiker?

2

A.

Sir, it was--it was informal relationship.

He allowed me

3

into his office any time after a meeting with PFC Manning to bring up

4

any issues that I had.

5

him, sir.

6

Q.

So I used that open-door to discuss this with

And you had said that had you known that the brig

7

psychiatrist were saying that suicide risk was not warranted you

8

would have readdressed the issue.

9

A.

I would have.

10

Q.

And what would you have done?

11

A.

Well, sir, again, I would have, you know, contacted the

12

brig and asked them for any kind of justification.

13

tell them how to do their job, but the bottom line is, I would have

14

wanted to find out exactly why--on what basis were they refusing to--

15

to decrease the status, sir.

16

Q.

Again, not to

Now on 2 March, that the second time that restrictions are

17

increased.

That’s when PFC Manning is--well actually 3--toward the

18

end of 2 March his underwear is removed from him.

19

A.

Yes, sir.

20

Q.

Were you informed about that?

21

A.

Not at the time, sir.

22

Q.

But later were you informed?

23

A.

Yes, sir.

5672

09567

1
2
3
4

Q.

And did you address this issue with PFC Manning at any

A.

Sir, we spoke--we spoke about the increase in status but

time?

not specifically of the incident, sir.

5

Q.

Well did you ever find out about the comment that PFC

6

Manning made?

7

A.

I did, sir.

8

Q.

And did this sound like a threat of suicide?

9

A.

Not to me, sir.

10

Q.

And why not?

11

A.

Sir, I--now I have the luxury of looking at it from an

12

outside point of view, sir.

And, quite frankly, I--I wouldn’t take

13

that comment from PFC Manning as a suicidal threat or ideation.

14

simply would take it as a tongue-in-cheek comment.

I

15

Q.

And why--why would you take it that way?

16

A.

Sir, nothing about his demeanor led me to believe he was

17

suicidal.

18

person.

19

actually killing himself with his underwear, sir.

20
21

Q.

And, quite frankly, he’s an intelligently and articulate
And I believe he--he just wouldn’t have such thoughts of

Now when you heard about this and based upon how you felt,

you did bring this issue up again with Captain Haberland, correct?

22

A.

Yes, sir.

23

Q.

And--and you addressed it also with Colonel Coffman?

5673

09568

1

A.

I did, sir.

2

Q.

And what did you tell Colonel Coffman?

3

A.

Sir, I told him just that; that it appeared as though PFC

4

Manning had made a comment that got him into a situation where he was

5

on an increased suicide watch and his liveries had been removed at

6

that time, sir.

7

Q.

And when you addressed it with Colonel Coffman was it just

8

to inform him of that or was it to also inform him that you didn’t

9

believe the increased status was warranted?

10

A.

Sir, I did not believe the increased status was warranted

11

at that time.

12

Q.

And--but did you inform Colonel Coffman of that fact?

13

A.

I did, sir.

14

Q.

And what was his response?

15

A.

Sir, although he was in the middle of doing several things

16

at once, I--I can’t remember if I specifically requested that he

17

speak to the brig--or the Commander of Quantico itself, but we talked

18

about him talking to the Commander of Quantico, sir.

19

Q.

Okay, so the gist of the conversation after you raised it

20

to Colonel Coffman was, hey, look, I’ll address this issue with

21

Colonel Choike, the Marine Corps Base Commander?

22

A.

Yes, sir.

23

Q.

And do you know if that was ever actually done?

5674

09569

1

A.

Sir, I do not know at that time if that was done.

2

Q.

Now you had talked about several times where PFC Manning

3

was taken to various appointments, were you ever along with those as

4

an escort?

5

A.

I was, sir.

6

Q.

And during that time did you have the ability to observe

7

PFC Manning’s conduct?

8

A.

I did, sir.

9

Q.

And how would you characterize PFC Manning’s conduct when

10

you were taking him around to various appointments?

11

A.

Very professional, sir.

12

Q.

Did you ever have any issues with him?

13

A.

Never, sir.

14

Q.

All right.

15

A.

None, sir.

16

Q.

Was he ever disrespectful to any of your--I guess any of

17

Did he ever have any outbursts?

your company Soldiers or yourself?

18

A.

No, sir.

19

Q.

Now PFC Manning was eventually transferred to the JRCF on

20

20 April, is that correct?

21

A.

Yes, sir, that’s correct.

22

Q.

And how were you made aware of the pending transfer?

23

A.

Sir, I received a phone call when the--as the transfer was

5675

09570

1

happening, sir.

2

Q.

So you didn’t find out in advance?

3

A.

I did not, sir.

4

Q.

When you found out he was being transferred what’d you do?

5

A.

Sir, I immediately went in and told my Battalion Commander

6
7
8

that the transfer had been completed, sir.
Q.

And once PFC Manning got to the JRCF did you continue to

conduct your command visits?

9

A.

Yes, sir.

10

Q.

And when you saw PFC Manning at the JRCF did he look

11

different to you?

12

A.

He did, sir.

13

Q.

How so?

14

A.

Sir, he looked more at ease, more lively, sir.

15

Q.

And to this day do you understand why PFC Manning was held

16

in MAX and POI for 9 months at Quantico?

17

A.

No, sir.

18

CDC[MR. COOMBS]:

19

MJ:

20

TC[MAJ FEIN]:

21

MJ:

Thank you.

Redirect?
No, Your Honor.

I have a couple of questions.

5676

09571

1
2
3

EXAMINATION BY THE COURT-MARTIAL
Questions by the military judge:
Q.

Now you talked about on the 2nd of March--the 3rd of March

4

after the underwear comment about PFC Manning’s change in status, did

5

you think he was on suicide risk that whole time?

6
7
8
9
10
11
12

A.

Not the entire time.

Not until this incident happened,

ma’am.
Q.

I mean on the--what was your understanding of what changed

with PFC Manning after the comments of 2 March?
A.

That’s when I--to my understanding he was put on the

increased status--the maximum level of status the facility allowed.
Q.

If he remained on prevention of injury with the underwear

13

taken away at night because of the comment, do you have the same

14

concerns that you had--that you just articulated?

15

A.

Which concerns, ma’am.

16

Q.

That you just testified to with the defense counsel--that--

17

where you--you became concerned that the increased status wasn’t

18

warranted?

19

A.

Yes, ma’am.

20

Q.

Okay, so he didn’t--so to remain POI you would have the

21

Yes, ma’am.

same concerns?

22

A.

I had the same concerns, yes, ma’am

23

Q.

When did you first become aware that the psychiatrist had

5677

09572

1

for the most part not been recommending a continuation on POI?

2

A.

Once this trial started.

3

Q.

Do you think that you should have been made aware of that?

4

A.

I believe I should have been made aware of that, yes,

5

ma’am.

6

Q.

Why?

7

A.

Ma’am, as the commander I believe I should have been

8

privileged to that information if nothing more than--than to have

9

another avenue to speak with the Soldier.

You know, any opportunity

10

I had to speak with PFC Manning, I took.

11

professional is recommending against something I would like to know

12

that so maybe I can be a part of that decision making process.

13

Q.

And if a medical

I guess that’s where I’m confused because I thought you

14

testified earlier that that decision making process was up to the

15

brig?

16

A.

It is up to the brig, ma’am.

It is up to the brig.

But

17

nonetheless, if I believe something’s wrong I--I have no problem

18

pointing that out, ma’am.

19
20

Q.

Did PFC Manning ever tell you that anybody was recommending

that he come off of POI?

21

A.

22

[Pause]

23

Q.

No, ma’am.

At some point did you begin to see media articles about the

5678

09573

1

conditions of confinement or any of that ----

2

A.

A few times, ma’am.

3

Q.

---- publicity?

4

A.

Throughout the entire ordeal, ma’am.

Around when did you begin to see that?

5

on the news or anything to that effect.

6

news for a while.

7
8
9

Q.

You know, when it was

It was certainly front page

Did that cause you any concern that maybe something was

not--maybe the word wasn’t substantive?
A.

No, ma’am.

No, ma’am.

One particular article that was

10

brought to my attention stated how I--I as his commander forced PFC

11

Manning to stand at attention while I spit on him.

12

Q.

Really?

13

A.

So I certainly gave no credence to--to anything.

14

it was on the news I simply turned it off.

15

[Pause]

16

Q.

17

of the brig.

18

Commander?

And when

Now you spoke to Chief Averhart while he was the commander
Did you also speak to CW2 Barnes while she was the Brig

19

A.

I did, ma’am.

20

Q.

And what--did you ever have a conversation with her about

21

why PFC Manning remained on POI status?

22

A.

I did, ma’am.

23

Q.

Can you tell me about that?

5679

09574

1

A.

Ma’am, the conversation was--again, just that, to figure

2

out exactly why he was on increased status, and more importantly,

3

what status a normal detained individual would be on.

4

differences between that and what PFC Manning was currently on.

And what the

5

Q.

And what did she tell you?

6

A.

That Manning being, number one, pretrial confinement made

7

his situation completely different.

8

that’s involved in this--the case that’s going up to--everything else

9

that’s going on made Private Manning a different issue; they had to

10

And, number two, everything

pay special attention.

11

Q.

Did she ever say how that related to the status he was in--

13

A.

Ma’am, that was ----

14

Q.

---- with his custody level?

15

A.

---- yes, ma’am.

12

--

Yes, ma’am.

That--that because of the

16

weight of everything that was happening, they were afraid he was

17

going to hurt himself.

18

Q.

When you asked--which brig officials did you ask the

19

question that you testified about earlier; how can he get off of that

20

status?

21

A.

22
23

Who did you discuss that with?
Ma’am, the--the NCOIC--the shift NCOIC and--and, again, the

Chief Warrant Officer--CW3--that was the-Q.

Chief Averhart or ----

5680

09575

1

A.

---- Averhart ----

2

Q.

---- Chief Barnes?

3

A.

---- yes, ma’am.

4

Q.

Okay.

5

A.

Again, that there’s a board process that’s in place to

Averhart.

So what did these people tell you about this?

6

review any decisions that are made.

7

use.

8
9
10
11

Q.

And that’s the system that they

And in my view that’s a little bit unresponsive to the

question of what PFC Manning can do.

Did--did they ever address that

question from you?
A.

Other than to say that the status was appropriate, no,

12

ma’am.

No, ma’am.

Again, the--the system that they used and the

13

evaluation system that they used specifically was in place for a

14

reason.

15

action.

16

Q.

And they had him where they found it to be an appropriate

And did I understand your testimony correctly earlier when

17

you said one of these conversations took place somewhere around the

18

14th or 15th of January?

19

A.

Yes, ma’am.

20

Q.

Did anybody you talked to from the brig on or about the

21

15th of January, tell you that there was some considerations of maybe

22

taking PFC Manning off of the POI status by brig officials?

23

A.

Not that I recall, ma’am.

5681

09576

1

MJ:

2

TC[MAJ FEIN]:

3

MJ:

4

Any follow-up based on that?
May I have a moment?

Yes.

[Pause]

5

TC[MAJ FEIN]:

No, Your Honor.

6

MJ:

7

CDC[MR. COOMBS]:

All right.

Anything from the defense?
No, Your Honor.

8

[The witness was duly warned, permanently excused, and withdrew from

9

the courtroom.]

10

MJ:

11

TC[MAJ FEIN]:

12
13

Okay.
Your Honor, the United States requests a 15-

minute recess to finalize the recommendation for going forward.
MJ:

Well that’s fine.

14

earlier than that?

15

TC[MAJ FEIN]:

16

MJ:

17

CDC[MR. COOMBS]:

18

MJ:

Okay, do you want to start at 1800 or

1800’s fine, ma’am.

All right.

Any objection?
No, Your Honor.

Court is in recess until 1800 or 6 o’clock.

19

[The Article 39(a) session recessed at 1743, 10 December 2012.]

20

[The Article 39(a) session was called to order at 1803, 10 December

21

2012.]

22
23

MJ:

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

Let the

record reflect all parties present when the court last recessed are

5682

09577

1

again present in court.

2

TC[MAJ FEIN]:

Major Fein, what is the government’s plan?

Ma’am, the United States does not intend to call

3

Colonel Coffman any longer for this motions hearing.

4

does not intend to call him as a defense witness.

5

the government closes its case on the motions hearing.

6

And the defense

So at this point

The government recommends, with the defense’s concurrence,

7

that the court recesses tonight, reconvenes at 10 o’clock tomorrow

8

morning for oral argument.

9
10

MJ:

Okay, why 10 o’clock?

TC[MAJ FEIN]:

Ma’am, 10 o’clock provides a little bit

11

additional time to wrap up today’s testimony to prepare.

12

isn’t late in the day so we can finish at a reasonable hour.

13

MJ:

14

CDC[MR. COOMBS]:

15

MJ:

16
17
18

Okay.

And then

Any objection to that?
No objection, Your Honor.

All right, then we will go ahead and recess the court for

the evening--whoops.
TC[MAJ FEIN]:

There’s a--there’s one more thing--sorry, Your

Honor.

19

MJ:

Okay.

20

TC[MAJ FEIN]:

Also, the United States would--would like to, I

21

guess, admit it as an appellate exhibit what’s been marked--

22

previously marked as Appellate Exhibit 443.

23

government’s motion or response--appellate--to Appellate Exhibit--or

5683

Your Honor, in the

09578

1

what has been marked as Appellate Exhibit 259, Enclosure 2 was a

2

single memorandum signed by Master Sergeant Adkins.

3

MJ:

4

TC[MAJ FEIN]:

5

MJ:

6

TC[MAJ FEIN]:

7

Whoa, whoa, whoa.

9

TC[MAJ FEIN]:

---- Enclosure 2 ----

10

MJ:

11

TC[MAJ FEIN]:

12

MJ:

13

TC[MAJ FEIN]:

16

In the original motion or response to the motion

---MJ:

15

I’m sorry, yes, Your Honor.

This is the ----

8

14

---- Enclosure 2 to Appellate Exhibit 259 ----

---- is a memorandum for record.

Okay.
The government intended originally to provide

three memorandums--memoranda for record that are similar ---MJ:

Are they all part of this--I mean do they all fall in line

with Enclosure 2?
TC[MAJ FEIN]:

18

same type of memorandum.

20

I got it.

---- yes, ma’am.

17

19

Now you’re going too fast for me now.

MJ:

They’re the same substance or subject matter--

Well is there any objection to just making it part of

Enclosure 2 so we don’t have a million more appellate exhibits?

21

TC[MAJ FEIN]:

Not from the government, ma’am.

22

CDC[MR. COOMBS]:

23

MJ:

Nothing from the defense, Your Honor.

Okay, why don’t we just go ahead--and if you could get me

5684

09579

1

copies of those I can put them in and then I will now have ----

2

TC[MAJ FEIN]:

So, ma’am, we’re adding two more documents--

3

excuse me, three more documents to that enclosure.

4

marked as Appellate Exhibit 443.

5

MJ:

6

TC[MAJ FEIN]:

7

And it’s not

Do I have a copy of those or?
Yes, ma’am.

Right there [referring to the court

reporter].

8

MJ:

Thank you.

9

TC[MAJ FEIN]:

The court reporter’s handing them to you.

10

[The court reporter handed the documents to the military judge.]

11

[Pause]

12

MJ:

Let me just ask both sides a question.

I remember I had a

13

question of one of the witnesses about whether the brig was aware of

14

the mental health history coming back from Fort Drum.

15

dated December of ’09.

16

the brig or not?

17
18
19
20

TC[MAJ FEIN]:

Did that go to

Ma’am, these memoranda were not provided to the

brig.
MJ:

So you’re offering it just so I have it in reference to

what, if any, prior history there was?

21

TC[MAJ FEIN]:

22

MJ:

23

That would be part of that.

This all is

Okay.

Yes, ma’am, for oral argument.

So both sides are in agreement on that; anything

that predated Camp Hammer was not ----

5685

09580

1

TC[MAJ FEIN]:

Well, no, ma’am.

I’m sorry.

To clarify; the

2

medical records--Private First Class Manning’s medical records were

3

available to the brig psychiatrist and other medical professionals

4

while they were there at Quantico.

5

these MFRs and an AAR by CID was not available to the Quantico Brig.

6
7

MJ:

Any other documentation such as

Okay, so brig officials didn’t they--their determination

had nothing to do with Enclosure 2?

8

TC[MAJ FEIN]:

9

MJ:

That is correct, Your Honor.

Okay, and then defense agrees?

10

CDC[MR. COOMBS]:

11

TC[MAJ FEIN]:

Yes, Your Honor.

And then, also, Your Honor, tomorrow morning the

12

government intends to provide a--a list of emails between the

13

prosecution and defense--have already been provided to the court as

14

part of the trial that really outlines Article 13 and discussions

15

counsel had and didn’t have.

16

title it ahead of time for the court.

17

MJ:

18

TC[MAJ FEIN]:

19

MJ:

20

Okay.

It’s part of oral argument.

We’ll

And are you ---That’s it, Your Honor.

---- also going to do that with respect to the speedy trial

like I asked you to?

21

TC[MAJ FEIN]:

22

MJ:

23

address today?

Oh, absolutely, ma’am.

All right, anything else from either side that we need to

5686

09581

1

TC[MAJ FEIN]:

2

CDC[MR. COOMBS]:

3

MJ:

4

morning.

5

[The Article 39(a) session recessed at 1808, 10 December 2012.]

6

All right.

No, ma’am.
No, Your Honor.
Court is in recess until 10 o’clock tomorrow

[END OF PAGE]

5687

09582

1

[The Article 39(a) session was called to order at 0957, 11 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

Is there anything we need to address before we begin argument?

7

TC[MAJ FEIN]:

8

CDC[MR. COOMBS]:

9

MJ:

10
11

No, Your Honor.

All right.

No, Your Honor.
Mr. Coombs?

CDC[MR. COOMBS]:

Yes, Your Honor.

Your Honor, I am handing

you a copy of what’s been marked as Appellate Exhibit 443.

12

MJ:

Thank you.

13

CDC[MR. COOMBS]:

Your Honor, for the Article 13 issue, our

14

motion lays out what we believe to be the basis for why this should

15

be granted by this court.

16

violations in the defense’s position on Article 13.

17

When you take a look there are some clear

The first, the max in POI after 27 August 2010.

Here not

18

only is there what appears to be a clear intent at issue but also no

19

legitimate non-punitive basis for why the conditions were in place.

20
21
22
23

MJ:

What is the evidence in this point of intent to punish at

this time?
CDC[MR. COOMBS]:

The evidence would be both the order of

Chief Averhart to keep PFC Manning in POI until the 706 board was

5688

09583

1

completed.

2

maximum POI indefinitely and what we believe and we will go through

3

the facts of Lieutenant General Flynn’s influence.

4

Your Honor, under Article 13, if conditions are more onerous then

5

necessary that can give rise to a intent to punish.

6

The order by Colonel Oltman to keep PFC Manning in

Additionally,

So, some of the other violations you see the SR.

We know

7

that Chief Averhart had a belief that SR meant to be determined.

8

That’s a clear violation of the SECNAV Instruction.

9

has testified as to why a commander would have to remove an

Chief Galaviz

10

individual from SR as soon as a Brig psychiatrist said it was no

11

longer needed.

12

from Chief Galaviz that should be 1 hour.

13

Barnes that that should be 1 hour.

14

MJ:

15

is there anything else in the SECNAV that addresses 1 hour?

16

The 20-minute of sunshine:

We know that at least
We even heard from Chief

Other than the disciplinary segregation paragraph in the SECNAV,

CDC[MR. COOMBS]:

There isn’t anything that says that an exact

17

hour is needed, no, Your Honor.

Although, you do see disciplinary

18

segregation is given 1 hour.

19

was not in any disciplinary segregation so it would be counter

20

intuitive to say that he would get something less than the 1 hour.

And so, in this instance PFC Manning

21

We also know that the removal of the underwear.

22

Barnes initially said that she had the authority to do that and in

23

fact disagreed with Chief Galaviz and Lieutenant Colonel Wright on

5689

Chief

09584

1

the fact that she was taking actions that were counter to the SECNAV

2

instruction.

3

acknowledged that yes, indeed she was using a provision under suicide

4

risk to give her the authority to remove clothing.

5

violation of the SECNAV Instruction.

6

MJ:

Based upon the court’s questions to her, she

Let me ask you on that.

Again, another

The SECNAV Instruction that talked

7

about removal of clothing are under the suicide risk provisions.

8

What is the defense’s position, is there some kind of inherent

9

authority in a Brig Commander to remove clothing in other

10
11

circumstances?
CDC[MR. COOMBS]:

Nothing that I could see in the SECNAV

12

Instruction and that is why Lieutenant Colonel Wright said, look you

13

are taking steps that are in conformity of suicide risks and you are

14

not placing the individual in suicide risk.

15

Barnes to Master Sergeant Papakie basically alludes to the fact that

16

she believed at that time she figured an end-around.

17

if we were to put him on suicide risk and once a doctor said it was

18

not warranted what would we have done with the underwear?

19

thought.

20

would have had to give the underwear back.

21

figured something around the SECNAV Instruction.

22

she acknowledged to the court that her authority was in fact under

23

the suicide risk provisions.

The email from Chief

She said, look,

Food for

Really what that was meaning--meant to say was look, we

5690

And she had said, hey, I
Well, on the stand

09585

1

Then we see the standing naked on 3 March.

I’ll go into

2

more detail on this but the fact that we do not have anybody coming

3

to testify about that who has first-hand knowledge other than PFC

4

Manning should speak volumes.

5

defense’s position is not whether or not PFC Manning was treated

6

differently than other max and POI detainees, the issue is why was he

7

ever a max and POI detainee after 27 August 2010.

8

that gives rise to the Article 13 and it is the defense’s position

9

that the reason why he remained in max or POI was the influence of

Now, again, the issue here under the

That is the issue

10

Lieutenant General Flynn.

11

General Flynn sends an email saying that in his opinion PFC Manning

12

is a prime candidate to take his own life.

13

he directs Colonel Choike to tell everybody who has any contact with

14

PFC Manning the absolute necessity of keeping a close watch on him.

15

MJ:

16

CDC[MR. COOMBS]:

We know from the very beginning Lieutenant

He is a suicide risk and

What was the date of the email?
That was 9 August.

And so you get this

17

email, 9 August, again this is right, this is actually right after

18

Captain Hocter says PFC Manning is no longer a suicide risk, but PFC

19

Manning is still on suicide risk precautions until 11 August.

20

it’s clear that Colonel Choike followed the guidance of his general.

21

Did Lieutenant General Flynn issue an order to keep PFC Manning in

22

max and POI?

23

did that and accomplished that and we see the fact that----

No, probably not, but he didn’t need to.

5691

Now,

His guidance

09586

1

MJ:

What evidence do we have of that?

2

CDC[MR. COOMBS]:

Well, the evidence that we have is the fact

3

of what he directed is the weekly reports that go up through the

4

chain of command and Colonel Choike----

5

MJ:

What evidence do we have that he directed that?

6

CDC[MR. COOMBS]:

Because Colonel Choike in response, again on

7

that 9 August email, says based upon what you said, I’m going to

8

direct that we get a weekly report coming up from Colonel Oltman to

9

me and then to give to you.

And what you see from that is how PFC

10

Manning is being held and everybody knows, even Gunny Sergeant Blenis

11

in one of his emails acknowledges that he knows that these weekly

12

reports are going up through the chain.

13

General Flynn’s desk or even higher headquarters and what they are

14

not hearing is anything back from the chain saying we are not

15

concurring and we know that Colonel Oltman is concurring with

16

everything.

17

point is to continue the course of action that you are doing, keeping

18

him in max and POI, being ultra conservative because at this point

19

you know that your three-star general believes he is a suicide risk

20

and hasn’t said anything to the contrary.

21

And landing either on

So, from that then the easiest course of action at that

Now, we see the March email where they do make certain

22

changes then it even becomes clearer the involvement of Lieutenant

23

General Flynn at that point.

Colonel Choike on the stand tried to

5692

09587

1

say, look, you know, I know what the email said, but that’s not what

2

it meant, but it’s clear.

3

briefing up to him and then he was going to take whatever steps they

4

were going to suggest to General Flynn for his concurrence or non-

5

concurrence.

6

MJ:

Colonel Choike was going to receive a

Wasn’t that email generated as a result of General Flynn

7

waking up in the morning and reading an article in the New York Times

8

and that was the first he had heard of it?

9

CDC[MR. COOMBS]:

That was and he sent the email saying I

10

would rather get some information on this then hearing it in the

11

Early Bird.

12

MJ:

Isn’t that something a commander would normally do?

13

CDC[MR. COOMBS]:

That may be the case, Your Honor, but the

14

issue here is a three-star general reaching down all the way to say,

15

okay, from this point forward, now before you do anything you need to

16

brief it up to me for my concurrence/non-concurrence.

17

been simply, hey look, I want to be made aware of that.

18

have been fine but that is not what that email says and that’s not

19

the steps he directed.

20

something in writing.

21

Flynn’s concurrence/non-concurrence then the common sense response

22

from Colonel Choike would have been, Colonel Oltman, you’ve got it

23

all wrong, General Flynn just wants to be briefed.

Had it just
That would

And Colonel Oltman said, look, I want
Again, if there--if this was not General

5693

Don’t worry about

09588

1

concurrence/non-concurrence.

2

His response is we are not going to get anything in writing from the

3

CG.

4

MJ:

But that’s not his response to them.

What is the defense’s position on Lieutenant General

5

Flynn’s authority to do just that if he decided to do that, before

6

you execute any changes with respect to PFC Manning’s custody, I want

7

to know what they are and I want to have an opportunity to intervene?

8
9

CDC[MR. COOMBS]:

Well, you know, at this point it is unclear.

Colonel Choike believed that General Flynn did not have that

10

authority.

He believed as a Base Commander he did though, he had the

11

authority for potentially to do something but not General Flynn.

12

MJ:

So, he had authority but his boss didn’t?

13

CDC[MR. COOMBS]:

14

MJ:

15

CDC[MR. COOMBS]:

That’s what Colonel Choike testified to.

Well, what’s the defense’s position on that?
The defense’s position is under the SECNAV

16

Instruction it is the Brigade--the Brig OIC who has the authority to

17

make changes.

18

a certain Battalion Commander said, hey, I’m going to hold him in a

19

particular custody status, I’m going to direct the Brig OIC to do

20

that.

21

probably follow that.

22

that authority, it doesn’t appear so.

23

supposed to be the person who has the final say, but even if they do

Now, in this instance you could see where if, in fact,

Well, you would see a chain of command, the Brig OIC would
Whether or not the SECNAV Instruction gives

5694

It looks like the Brig OIC is

09589

1

have the authority the problem here isn’t necessarily that they might

2

have taken that step.

3

looking at any objective criteria that PFC Manning was now a suicide

4

risk and the influence that came down of keeping him in max and POI

5

was based upon General Flynn’s initial concern.

6

because General Flynn becomes even involved in the most minor details

7

dealing with who’s visiting PFC Manning, whether or not I’m

8

contacting him and it’s really kind of a cyclic thing where you see

9

by looking at the emails you can see that Colonel Choike is kind of

The problem is that they determined without

And you see this

10

like the hub of information.

11

hand side which is Galaviz, Captain Neill, Colonel Johnson, his SJA

12

support, all supporting the idea that everything that the Brig is

13

doing is correct.

14

And you get Lieutenant Colonel Greer sending information to the MDW

15

SJA shop saying look, if you don’t like the way he’s being held, take

16

him from us.

17

we are the one left holding the bag if something happens to him.

18

most telling email is Colonel Choike’s back to Colonel Oltman why

19

General Flynn wants to be involved, because he wants to consider the

20

impact, the political impact of this situation, the immediate impact.

How they are holding him is correct, is lawful.

But unless and until you come and take control of him,

21

MJ:

22

CDC[MR. COOMBS]:

23

And, you get his staff on the right-

The

What’s the problem with that?
The problem with that is because they were

more concerned with how that it would appear if something happened to

5695

09590

1

PFC Manning to the Marine Corps, to Quantico, and to this command,

2

than they were on whether or not PFC Manning was actually a risk to

3

do self-harm.

4

conditions that we need to impose upon PFC Manning to ensure his

5

presence at trial.

6

focus.

7

Let’s not have anything backfire and make us look bad.

8

emails, especially Lieutenant Colonel Greer’s is the most telling one

9

of them all, of saying well, look, we are going to be the ones left

And because their concern was not on what are the

That wasn’t their concern.

That wasn’t their

Their focus was let’s not have anything happen on our watch.
And the

10

holding the bag if something happens to him.

We don’t see anyone

11

coming here under an Army letterhead saying we are going to assume

12

responsibility.

13

from us.

14

then also from--on the left-hand side from Colonel Oltman you get

15

Colonel Oltman at least in a meeting indicating that PFC Manning is

16

not going to remove--be removed from this custody status.

17

going to stay in this status indefinitely.

18

voice of reason----

If you don’t like how we are holding him, take him

And so you get the information going back and forth and

19

MJ:

20

CDC[MR. COOMBS]:

He is

And that’s where one

Is that the 14 January email?
It is but that really kind of shows for the

21

first time because somebody voices a complaint and that’s Captain

22

Hocter saying, look, you know, if you are going to keep him on POI,

23

just don’t say there is a behavioral health reason for it because

5696

09591

1

there is not.

2

Oltman issues basically his directive that he’s receiving from higher

3

and who’s presence there is of course Averhart, Barnes’ replacement,

4

and all of the Brig staff.

5

on and even when the MDW SJA shop gets complaints from the defense,

6

you see from the emails that they are less concerned about--about the

7

potential Article 13 issue as far as punishment of PFC Manning and

8

more concerned about getting information to combat the potential

9

Article 13 issue.

10

Change your SOP if that’s the case.

But Colonel

And so everybody understands what’s going

And so what happens here under the defense’s argument is a

11

complete breakdown of the way the system should work.

12

to say, wait a second, does PFC Manning truly need to be in max and

13

POI and the individuals who should have stepped up, the Judge

14

Advocate, especially in the Colonel Oltman meeting, Lieutenant

15

Colonel Greer should have stood up and said, wait a second.

16

say that he’s going to stay in max and POI indefinitely.

17

have a basis for this.

18

complaints and Captain Haberland’s email clearly indicates that the

19

defense was trying to work through MDW to resolve this.

20

email saying, you know, “look we are not telling you need to change

21

the position, we just want to get some information to combat the

22

potential Article 13 issue”.

23

MJ:

Nobody stopped

We can’t

We have to

And again the MDW shop, even when they had

When did the defense begin to complain?

5697

They sent an

09592

1

CDC[MR. COOMBS]:

The defense began to complain in the late-

2

October/early-November timeframe to the trial counsel in an effort to

3

resolve this going through the MDW.

4

which the court has starts to--that’s in the December timeframe that

5

that one is sent.

6

MJ:

7

CDC[MR. COOMBS]:

And the email from Haberland

Are there earlier emails in October and November?
I don’t believe so, ma’am.

And that--and

8

actually the reason for that makes sense when I talk in a moment

9

about what PFC Manning knew and why he waited to complain.

So, you

10

see that the emails that you have been able to look at from Major

11

General Ary and from other very high ranking individuals in the

12

Marine Corps really worked to silence any critics because those

13

emails said we are confident that the Brig is doing the right thing.

14

We’re confident that Lieutenant General Flynn is doing everything

15

correctly.

16

really a player in this case, Chief Averhart, Chief Barnes, even down

17

to their staff and the so-called visits or inspections that come,

18

they are not really visits or inspections.

19

throughs to say, well, yeah it looks like he is held as every other

20

max and POI detainee.

21

whether or not PFC Manning was wrongly held in max or POI.

22
23

MJ:

And those emails get passed around to everybody that’s

They are just walk-

Nothing that Major Zelek did ever address

That was your first bullet, critics were silenced.

were the critics?

5698

Who

09593

1

CDC[MR. COOMBS]:

Anybody who would have voiced up.

In this

2

case the only person that ever did was Captain Hocter, but if you

3

are--let’s say for example, you’re Gunny Sergeant Blenis, you’re the

4

counselor and let’s say you are actually wanting to--to ensure that

5

your guy is taken off.

6

going to say, you know what, you have been a very good detainee this

7

entire time.

8

not a risk of injury.

9

going to advocate that you should be taken off max and POI.

You are going to be his advocate and you are

The mental health professionals are telling me you are
I’m going to go and advocate for you.

I’m
That

10

would never happen when you see these emails of Major General Ary,

11

Lieutenant General Flynn, and others, the Commandant of the Marine

12

Corps saying, look, what they are doing is proper.

13

him in the proper status.

14

those emails get CCed around including the entire chain from Colonel

15

Choike down to Chief Averhart and Barnes, down to their staff.

16
17
18

MJ:

They are holding

They are not doing anything wrong.

And

Did any of those emails suggest that if they did anything

different that they would be wrong?
CDC[MR. COOMBS]:

No, ma’am, but the logical position there is

19

if you are looking and you see the Commandant of the Marine Corps and

20

the equivalent of the TJAG of the Marine Corps saying what is being

21

done is proper.

22

enlisted or even for that matter a master sergeant or even the--Chief

23

Barnes or Averhart would then step up and say, you know what, I’m

Is it really--Do you really expect that a lower

5699

09594

1

going to change that position.

2

clear where it is going to end, where everything is going to roll

3

down to them.

4

that point you have, what I’ll talk about in a moment of having a

5

group thing.

6

MJ:

Because if they make a mistake it is

And so that’s what silenced the critics because at

Well, let me ask you this.

If you make a mistake, if Chief

7

Averhart and Chief Barnes were concerned that PFC Manning was going

8

to hurt himself and they downgraded his status and he did, that would

9

come down to--on their shoulders because they made that decision.

10

Isn’t that true?

11

CDC[MR. COOMBS]:

12

MJ:

13
14

That is true.

So, is there some legitimate government interest in

preventing him from harming himself?
CDC[MR. COOMBS]:

Well, it can’t be arbitrary, that’s the

15

problem.

16

information to indicate that he was a risk for self-harm at that

17

point.

18

behavior.

19

month after month saying he doesn’t need to be on POI.

20

kept looking to and pointing to are old-type information that did in

21

fact warrant his initial custody classification and they kept

22

pointing to that as their justification and even when given the

23

opportunity on the stand, tell me why you have him in max?

And their position was arbitrary.

They didn’t have any

What they had was month, after month, after month of good
They had a psychiatrist, a mental health professional,

5700

What they

Tell me

09595

1

why you had him in POI?

2

that matter Gunny Sergeant Blenis could articulate anything other

3

than oh, well, you know the Kuwait stuff and there was that intake

4

statement, and, and uh, there was some behaviors.

5

MJ:

6

CDC[MR. COOMBS]:

Neither Chief Averhart, Chief Barnes, or for

That’s not----

I believe communication also was a large part of it?
That’s the red herring of this whole thing,

7

actually.

8

response by Chief Averhart, it doesn’t say anything about

9

communication.

When you take a look at everything, the Article 138

Chief Barnes her first real communication concerns

10

are really after March.

She even admitted on the stand as of 25

11

February he was doing fine and the communication issues that happened

12

in March, it’s clear that PFC Manning does the only sane thing at

13

that point and that’s stop communicating with these people.

14

when he says anything they take it and blow it out of proportion.

15

makes a comment where he thinks he’s actually getting through to

16

Master Sergeant Papakie, where Master Sergeant Papakie is listening

17

to him and he’s thinking he is making headway.

18

all he is doing is basically giving them the information that they

19

need now to take away his underwear for the next month and a half.

20

So, you see at this point the system starts to create and feed off

21

itself because now you have at best an incestual relationship with

22

everybody.

23

whole process knew each other.

Because

Little does he know

He

It is absolutely amazing how everybody involved in this
Chief----

5701

09596

1

MJ:

Why is that amazing?

2

CDC[MR. COOMBS]:

That’s amazing because Chief Galaviz has

3

known Averhart for 10 years.

Chief Galaviz was hand-picked by

4

Colonel Choike to do his investigation in order to basically help

5

support his 138.

6

out of the equation from the Army, the answer we get is arm strong

7

quarterbacks are not welcomed.

8

actually second guess the custody classification we don’t want that

9

and then of course Oltman says, hey, I can brush them off quite

The second we bring--we try to bring someone else

If he is going to come here and

10

easily, and they do.

So, what was welcomed is people who are going

11

to come and basically give the rubber stamp of hey, everything is

12

fine here.

13

Colonel Oltman is the only one who tries to stand up.

14

me, Captain Hocter, and when he does Colonel Oltman puts him in his

15

place.

16

and so can Gunny Sergeant Blenis but none of them apparently can

17

remember a heated conversation between two O6s.

18

happened there and then that is, in fact, what resulted in PFC

19

Manning staying in these conditions.

20

all doing everything right, that people above us say we are doing

21

everything right, I’m proud of you for everything you are doing.

22

Let’s just keep this the status quo.

There is no issue.

Let’s move on.

And again, as I said,
I mean, excuse

Chief Averhart and Chief Barnes can remember a lot of things

5702

But it’s clear what

The group think was, hey we are

09597

1

MJ:

What is the defense’s position on the testimony by Master

2

Sergeant Blenis and the Gunnery Sergeant Fuller and Staff Sergeant

3

Jordan that there was a thought to or there were these discussions of

4

taking PFC Manning off of POI and/or max custody about the week

5

before the 18 January 2011 anxiety of time?

6

CDC[MR. COOMBS]:

I think each one of those perjured

7

themselves on the stand.

8

never a discussion and we have multiple examples of them not being

9

truthful on the stand which we’ll cover but that was untrue.

That was never a thought process.

That was

That

10

was untrue that they said because you’ve asked Captain Casamatta when

11

he went and talked to Chief Averhart and Chief Averhart kind of

12

supported the idea on the stand of hey, there was this discussion we

13

might be possibly thinking about removing him and then of course this

14

18 January incident happens.

15

would have said something to Captain Casamatta when he went there on

16

the 14th and said, hey look, what’s going on.

17

still doesn’t understand why he is on POI.

18

something to him at that point and said, hey, you know, what--we are

19

debating on recommending him coming off.

20

Well, if that were true, then they

Why is he on POI?

He

They would have said

They didn’t do that.

And so from our position we believe that there was a

21

callous indifference to the conditions that PFC Manning was under.

22

And you see that in moments of truth from each of the witnesses when

23

pushed on trying to articulate why they had him in these conditions.

5703

09598

1

Chief Barnes admitted that she had 16 years in and she was a CW2, you

2

know, one of the most junior commanders of a Brig and unlike Chief

3

Averhart if something happens she doesn’t have a retirement to fall

4

back on.

5

all knew we would be in trouble.

6

scrutinized.

7

Sergeant Blenis goes off on a diatribe of hey look, I can’t explain

8

that in my court-martial.

9

doctors?

Okay, Sergeant Fuller exact quote, if something happened we

Staff Sergeant Jordan, his comment; and then Gunny

injury.

11

train for max.

12

to keep him on max.
MJ:

I said, what if you relied upon the

The doctors saying, hey look, he is not a risk of self-

10

13

We knew our actions would be

You can take him off of POI.

We all know that POI drove the

So you take him off of POI there really is no reason
And----

I don’t know if you are going to get into this later, but

14

the POI that drove the train for max, are you going to talk about

15

that later on?

16

CDC[MR. COOMBS]:

17

MJ:

18

CDC[MR. COOMBS]:

Okay.

Yes, Your Honor.

I’ll hold off.
So, if they would have done that, Your

19

Honor, what would have happened then is Gunny Sergeant Blenis would

20

say, hey I’m going to be court-martialed.

21

doctors.

22

PFC Manning in max and POI something that they knew already above

23

them have been approved of and they said they were doing everything

That was his mind process.

5704

I can’t rely upon the

So, the safest bet was to keep

09599

1

fine, so the safest course of action for them was status quo.

And

2

you see that the fact that, you know, people testified, in particular

3

Chief Barnes that hey, it wasn’t so bad.

4

everything I got to eat and other individuals saying, hey look, he

5

was treated like every other max and POI but the problem was he

6

didn’t deserve to be on max and POI and the mental health

7

professionals were talking about the fact that this is an added

8

stresser.

9

spirit wasn’t broke is actually kind of amazing.

He got to eat, you know,

That this is problematic and the fact that PFC Manning’s
And that’s really

10

the--the untold story here that from the defense perspective is the

11

amazing aspect of this entire case.

12

24/7.

13

observation.

14

called odd behaviors that the Brig psychiatrist and even the Brig

15

guards said is normal behavior for someone that’s bored.

16

MJ:

They watched this young man

They took 5-minute notes on him.

He was under constant

And yet they could only point to a small handful of so-

Well, who testified that that was normal behavior?

17

CDC[MR. COOMBS]:

18

MJ:

19

CDC[MR. COOMBS]:

Two of the Brig guards did, Your Honor.

Which ones?
The Lance Corporal Tankersly testified to

20

that.

He said that he didn’t consider it to be odd behavior.

21

he considered that to be normal for max.

22

like, well they are in their cell 23 hours a day.

23

And Lance Corporal Cline.

That

When I asked him why, he’s
They are bored.

So, they really truly thing--amazing thing

5705

09600

1

is that there wasn’t more behavior.

It was a 6 by 8 cell that we

2

could barely squeeze into this one little corner here.

3

Manning’s life for basically 23 hours a day.

4

show is that he was playing peek-a-boo with the mirror, that he was

5

pretending to sword fight, that he was dancing.

6

can show.

7

mental health professional and yet again ignored instead considered

8

odd behavior and used as a justification for his conditions.

9

entire testimony up here, we didn’t have these witnesses testify and

That was PFC

And the best they can

That’s the best they

The licking of the bars incident was explained by the

The

10

all had was the documentation that on the surface this actually looks

11

like, you know, they did due process, they followed their procedures,

12

but it’s only when you hear the testimony that you realize that logic

13

left somehow did not ever get into the world of Quantico when it came

14

to PFC Manning.

15

profile nature of it or if it was just simply a--the response to

16

Captain Webb for his earlier suicide, but all logic by anyone who

17

could effect change for PFC Manning was checked at the door when they

18

went into Quantico.

19

juxtapose PFC Manning’s conditions at Quantico to what he was in a

20

week after he arrived at JRCF.

21

interest while at Quantico with the non-media interest when he is at

22

JRCF.

23

difference with, and it’s unfortunate that we didn’t have Lieutenant

Whether it was, I don’t know if it was the high

And you can see that with, really when you

And you can juxtapose the media

And you can see the difference.

5706

And you can see the

09601

1

Colonel Hilton here in person, but you could hear the difference

2

between Lieutenant Colonel Hilton and anyone from Quantico.

3

So, the requested relief by the defense is first, dismissal of

4

all charges with prejudice.

And you see from Sabatini and from

5

Crawford that that’s a relief that this court can, in fact, give.

6

And in this instance based upon how PFC Manning was treated and the

7

complete breakdown of the system to include even the implicitly of

8

the government in not stepping in when they were aware of the fact

9

that there was a problem.

Instead just being more concerned with

10

give us information so we can defeat the eventual Article 13 motion.

11

Not stepping in to say, you know what, wait a second, why is he in

12

max and POI.

13
14

MJ:

Wasn’t there a request from Colonel Coffman at some point

to the Quantico authorities to look closely at the POI?

15

CDC[MR. COOMBS]:

There was and you heard from Colonel Choike

16

that that was basically dealt with, with a curt response, a one-page

17

response.

18

hey look, you don’t like it, you take him from me.

19

don’t pick up a phone, you don’t call me, you don’t return my emails,

20

well, I intend to send a message back to you basically, hey, he’s our

21

responsibility and until and unless you want to come down here and

22

take responsibility for him then we are going to do what we want to

23

do.

That was intended to send a message and that message was,
You know, you

And that--When Colonel Coffman got that response the follow-up

5707

09602

1

should have been well, no, wait a second, this is my Soldier and you

2

are going to have to give me more than basically this brush off.

3

was clear exactly what Colonel Choike wanted to do because he

4

testified under oath that that was his intent.

5

It

And if this court doesn’t believe that dismissal is

6

warranted then we request that you both consider 10 for 1 credit for

7

the time from 27 August forward to 20 April and you also consider

8

this if you are the finder of fact when rationing an appropriate

9

sentence.

10

MJ:

If I’m the finder of fact?

11

CDC[MR. COOMBS]:

12

finder of fact, Your Honor.

13

MJ:

14

CDC[MR. COOMBS]:

Well, at this point you are going to be the

All right.
So, just looking at the conditions, now all

15

these conditions are how PFC Manning was held because of max and POI.

16

And when you look at each of these in the abstract you think, okay,

17

this doesn’t seem all that bad but when you see the cell that he was

18

in and you see the fact that he was there for 23 hours a day, he was

19

treated like a suicide risk even though the doctors was telling the

20

Brig that he wasn’t and the best proof of that is once he gets to

21

JRCF, he’s MDI and guess what, nothing bad has happened despite what

22

Master Sergeant Papakie predicted.

23

his cell.

That was clear.

There was no natural light for

You could see from the video camera where

5708

09603

1

that window was given so-called light, basically 30 or so feet down

2

the hallway.

3

in and of itself you look at that and you think, okay, constant

4

observation.

5

himself.

6

life to include even using the facilities, is going to be subject to

7

being watched.

8

but watched through a--through an observation booth that you can’t

9

tell who’s watching you.

And he was subjected to constant observation and that

I understand they were concerned he was going to harm

But think about that for a moment.

Every moment of your

And not watched usually by somebody that you can see,

You can’t tell who’s behind there.

And

10

your whole life is there and grant it this is jail, but here there

11

was no legitimate reason to put PFC Manning under this scrutiny.

12

again it’s a testament to this young man’s fortitude that he didn’t

13

break.

14

soap, and you think about that, a kid doesn’t even ask for toilet

15

paper but he had to.

16

though all the evidence was to the contrary.

17

around it was in full shackles.

18

cell because of his custody classification, you know, the government

19

initially said no one is allowed to exercise in their cell but Chief

20

Averhart admitted on the stand that no, that is in fact, due to his

21

custody classification.

22

leaning against the wall.

23

their--in footnote 23 of their response motion, but the witnesses on

And

He had to ask for the most basic of things, toilet paper,

He was again treated like a suicide risk even
When he was moved

He wasn’t allowed to exercise in his

There was contrary testimony on the lane or
The government conceded that point in

5709

09604

1

the stand took issue with that.

He was not allowed any contact with

2

any other detainees.

3

were people--there were other detainees next to him.

4

to them.

5

Cline both said there was nobody to his left or to his right and

6

their understanding was if the detainee wasn’t immediately to your

7

left or your right, you did not get to talk to them.

8

Barnes admitted that if they weren’t right next to you you would have

9

to talk in a higher voice because of just the ambient sound and that

We’ve heard witnesses say that, oh, no there
He could talk

But again, Lance Corporal Tankersly and Lance Corporal

Even Chief

10

of course would be considered something that is prejudicial to good

11

order and you would be told to stop.

12

Now suicide risk added additional requirements and in both

13

instances when suicide risk was recommended to be stopped on 6 August

14

and when it was never recommended to begin on 18 January 2011, PFC

15

Manning was subjected to these additional requirements.

16

MJ:

Let me ask you something on the 18th of January.

Never

17

recommended to begin.

18

the Brig o have the authority to put somebody on the suicide risk and

19

wait for the doctors to take him off?

20

CDC[MR. COOMBS]:

Does the Brig commanding officer have the--or

He does and in this instance the clear

21

facts, based upon Chief Averhart’s email, is he orders him into

22

suicide risk I believe around 1500 and then 20 minutes later Captain

23

Hocter arrives and makes the opine that 24-hour POI is the only thing

5710

09605

1

that is required.

And that is later--And that’s in Chief Averhart’s

2

email plus it is also later memorialized by Colonel Malone that 24-

3

hour POI is all that’s required.

4

should have been taken out of suicide risk on the 18th.

So, under the SECNAV Instruction he

5

Now, all these conditions when you look at them again in

6

the abstract you might be able to say well, it’s a jail and that’s

7

just the conditions that he was under.

8

Captain Hocter, Colonel Malone, Captain Moore, and even Staff

9

Sergeant Jordan the government’s own witness, these conditions that

But when you hear from

10

PFC Manning was under, they can only equate to death row detainees

11

and PFC Manning wasn’t under this for a short period of time he was

12

under these conditions for his entire time at Quantico.

13

the defense took pains with each of the government’s witnesses that

14

could talk about this of where POI came from and Chief Galaviz said,

15

look POI is not under the SECNAV Instruction, it’s kind of a made up

16

custody classification but when you look at where POI comes under,

17

it’s under admin segregation and all of the provisions under admin

18

segregation make it clear that this is supposed to be kind of a

19

temporary custody because of the added requirements.

20

envisioned to be a long-term thing and in fact if you had to keep

21

someone on long-term custody such as POI it may be something that you

22

would look at putting that person into a psych ward.

And that’s

23

exactly what Lieutenant Colonel Hilton testified to.

Her longest of

5711

And the POI,

It’s not

09606

1

having somebody on a suicide risk and she said there wasn’t a lower

2

POI standard was 7 days and that person ultimately went to a psych

3

ward.

4

have seen POI and none of these witnesses saw anything anywhere close

5

to PFC Manning.

6

the door.

7

The rest of the witnesses each testified as to how long they

MJ:

Again, further evidence that logic was checked at

Well, refresh my memory, I thought Chief Barnes said that

8

she saw someone on POI status for close to the length of time that

9

PFC Manning was on it.

10

CDC[MR. COOMBS]:

I asked her--She said I believe there is

11

somebody close to that time but I was, I think that was when she was

12

an enlisted and she wasn’t entirely sure.

And so then I said, well

13

let’s talk about what you are sure about.

How about since you have

14

been a Brig OIC?

15

And she said a matter of a few days.

Here is the part where I was talking about POI basically

16

being controlled by max or visa-versa I should say.

17

the determination Chief Averhart and even Chief Barnes said their

18

Brig SOP, their basically Standard Operating Procedure would be if

19

you are in POI you would be held in max.

20

only did they in fact do that but Chief Averhart actually in his

21

weekly reports directed 3 consecutive weeks that PFC Manning remain

22

in POI until the 706 Board is done.

23

Blenis about this because at the time this was given Gunny Sergeant

5712

Once they made

And in this instance not

I talked to Gunny Sergeant

09607

1

Blenis shared this order with the defense and I informed him that the

2

706 Board was not even appointed to resume its work at that point and

3

that would likely not resume its work until after the new year.

4

at that point he said, you know, yeah I remember that general

5

conversation and I asked him, did you tell Chief Averhart that?

6

went to great pains to say somehow that what is clearly an order was

7

not an order.

8

that sounds like an order to me.

9

what, I didn’t articulate it the way I should have.

And

He

Even Chief Galaviz looking at it said, you know what,
But Chief Averhart said, you know
I didn’t clearly

10

state what my intent was.

11

other intent could you possibly mean other than until the 706 Board

12

is done he is going to stay in POI.

13

factor that Chief Averhart placed on POI which would then land PFC

14

Manning of course in max under his SOP.

15
16
17

MJ:

And when you look at what he wrote, what

And that again, is an arbitrary

What are the 3 weeks of those orders, do you remember, that

language?
CDC[MR. COOMBS]:

I do, ma’am.

The first one was I believe in

18

like the 14th of December timeframe and then the 3 weeks subsequent

19

to that.

20

MJ:

21

CDC[MR. COOMBS]:

Thank you.
Yes, ma'am.

So, you see that type of order

22

really does fall under the “not on my watch” position where nobody

23

wanted anything bad to happen to PFC Manning, and in and of itself

5713

09608

1

that could look altruistic where look, we are just trying to take

2

care of him.

3

Manning.

4

somebody is going to have to pay the price and I don’t want that

5

person to be me.

6

him in max and POI.

7

strait jacket and in a cushioned room and had nobody raise any

8

complaints they would have done that.

9

MJ:

10

But the real goal here was nothing bad happen to PFC

The real goal was, look if something bad happens to him

And so, the safest course of action is let’s keep
If the Quantico Brig could have put him in a

And where’s your evidence of that?

CDC[MR. COOMBS]:

Based upon the fact that they ignored week

11

after week the Brig psychiatrist’s recommendations.

12

fact that if you look at it just as objective person reading even

13

Gunny Sergeant Blenis’ own account of PFC Manning, week after week,

14

polite, courteous, respectful.

15

world, but they are not saying there is any communication issues.

16

Gunny Sergeant Blenis gets up on that stand and he says, and I’ll

17

cover this in a moment, but he says PFC Manning is the worse

18

communicator in his entire time other than a death row inmate.

19

is that in any of his weekly reports where you would expect to see

20

that?

21

further bolster a position of keeping him in POI.

22
23

Nowhere.

Based upon the

Not the most talkative guy in the

Where

It’s an ex post facto created reasoning in order to

And in--That’s really the second prong of the Article 13
issue here.

It was arbitrary.

It was an arbitrary standard to keep

5714

09609

1

PFC Manning in POI.

They didn’t have any concrete facts to point to

2

other than behavior prior to PFC Manning’s arrival, which in fact,

3

would warrant his conditions when he first got to the Brig, but

4

that’s the whole point of mental health.

5

was put on medication.

6

average, 2 to 6 weeks to take effect and the doctor testified that

7

when PFC Manning started taking the medication he was seeing

8

improvements.

9

see improvements, so much so that both Captain Hocter and Colonel

When he was in Kuwait he

We heard testimony that that would take, on

And in fact when PFC Manning gets to Quantico you do

10

Malone concur that PFC Manning doesn’t need to be on suicide risk.

11

And then being very cautious they wait another month basically or

12

close to a month, where then they say look, he doesn’t even need to

13

be on POI.

14

month in Gunny Sergeant Blenis’ counseling reports.

15

to PFC Manning is he’s placed in a position of now he needs to

16

convince these individuals who are risk adverse to the point of being

17

absurd that he is not going to harm himself.

18

catch-22 where if he doesn’t do anything they say what are we missing

19

and they double down their efforts.

20

ordinary, they say, ah ha, that’s what we are looking for.

21

proof that he is going to harm himself.

22

this now after the fact he didn’t communicate enough with us.

23

communication is a two-way street and I asked each one of these

And his behavior justifies that belief.

5715

Month after
But what happens

And he’s caught in this

If he does anything out of the
That is

And again they come up with
But

09610

1

witnesses, well did you go to him?

Did you go to him and did you

2

tell him these things that you were concerned about?

3

Barnes is the closest person to that but oh, by the way when she

4

tells him she--he needs to talk to her and he starts to she stops him

5

and says you are being disrespectful.

6

to me that might wind up in your packet which is going to affect your

7

sentence.

8

his peril.

9

needed to be 100 percent convinced that PFC Manning would not harm

No.

Chief

And if you are disrespectful

So, obviously PFC Manning knows that he speaks to her at
Gunny Sergeant Blenis testified on the stand that he

10

himself.

Master Sergeant Papakie said I’m convinced and I believe

11

that if he were ever given an opportunity he would do something to

12

himself.

13

senior enlisted at the Brig.

14

used Lieutenant Colonel Russell’s mental health eval as her

15

justification for this is it’s Manning’s own fault.

16

his court.

17

that he has to convince us that he’s okay.

18

and A Boards.

19

his counselor and all this happens again post-March 2nd where any

20

sane person would stop talking to these people and say, look, I’m not

21

going--I’m not digging my hole anymore.

22

you do when you know you are digging a hole is you stop digging and

23

that’s exactly what PFC Manning did.

There was no convincing Master Sergeant Papakie, the most
And Chief Barnes basically said and she

The ball is in

He is not taking or availing himself of the opportunities

He’s not being talkative.

5716

He’s not going to the C

He’s not being open with

That’s the first sane thing

09611

1

Perhaps the best evidence of the arbitrary nature of his

2

conditions is what the government actually thought was their best

3

evidence of we’re doing the right thing.

4

weekly.

5

was set up.

6

there’s a change in the form from what they initially used to what

7

they used on 21 January.

8

who basically directed this change.

9

actually documents the detainee’s election on whether or not they

We are looking at this

Well the C and A Board was basically a complete sham as it
The form was prefilled out and you see that there’s a--

And Chief Barnes said that she’s the one
But amazingly that change

10

want to appear.

11

avails himself of the opportunity to appear before the board.

12

testified he didn’t know what to do.

13

said hey, it’s your show.

14

And that’s when they grilled him and he makes a comment that they

15

later use against him being nervous.

16

from witness after witness is it’s very rare that detainees show up.

17

And yet, this again, was something that Chief Barnes was using

18

against PFC Manning because he wasn’t showing up enough.

19

MJ:

The first time that election appears PFC Manning
He

I mean, he showed up and they

He wasn’t prepared and he was nervous.

But the testimony that came out

Is it the defense’s position that the Brig officials

20

concern after PFC made--PFC Manning made the comments that his

21

current statements that he may not be suicidal may be false, it is

22

not a legitimate concern?

5717

09612

1

CDC[MR. COOMBS]:

No, and the reason why is when you look at

2

that whether you look at the CORMIS entry or the Word Document, you

3

see what they do.

4

statement at intake and PFC Manning says, you know, that’s--that was

5

probably false.

6

him up by saying, well, if that was false, how about what you are

7

telling us now could that be false?

8

you believe what they wrote said yes.

9

that.

They say, okay look, you made this initial

And I think it’s Gunny Sergeant Fuller who then sets

And PFC Manning apparently if
And they just leave it at

They don’t--they don’t----

10

MJ:

Well, they asked----

11

CDC[MR. COOMBS]:

12

MJ:

13

CDC[MR. COOMBS]:

----follow up.

----him if he understood the question.
Right, but they don’t follow up.

That would

14

be something where you would say, wait a second.

Are you telling us

15

that you are suicidal right now?

16

harm yourself right now?

17

would follow up with that.

18

entry and you see that PFC Manning was stuttering, they document

19

that.

He was nervous.

20

that.

He is standing up now for the first time in front of the board

21

of three.

22

grilled.

23

And it’s clear if you are looking at that everything that Manning--

Are you telling us that you might

There are a million of questions that you
You look at the very end of that CORMIS

His hands were shaking and they document

One of them should be his advocate.

And he’s getting

He’s getting peppered by them and he’s obviously nervous.

5718

09613

1

that PFC Manning has said and everything that he has done is just the

2

opposite of that, that I’m going to harm myself.

3

you can reconcile the two of those statements is he answered yes not

4

fully understanding the question asked of him.

5

really truly concerned about that the proof is in the pudding on what

6

they do afterwards.

7

saying, look, he just admitted to us that he may be, in fact, not be

8

truthful when he’s saying he’s not going to harm himself.

9

that that may be false.

The only way that

But if they were

Why not at that point go right to the doctor

He said

Why not at that point do some documentation

10

to follow-up on this statement or why not ask the logical, follow-up

11

questions other than do you understand what we just asked you?

12

The reason why they didn’t ask any of those follow-up questions is

13

because they’ve got the information that they wanted.

14

maybe a good advocate would do in asking a question and getting the

15

answer from a witness and saying, okay, I’m going to leave that

16

alone.

17

where you then flush it out.

18

Manning, did you really in fact mean that.

19

mean that you were not being truthful when you said that you were not

20

going to harm yourself?

21

point he could have answered that question.

22

and A Board they started documenting this really in January of 2011.

23

And that’s really when you look at the emails again that we gave you

Yes.

It’s what

I’ve got my answer and that’s why we have cross-examination
If I were there, I would have asked PFC
Did you really in fact

And maybe if you weren’t so nervous at that

5719

But--So you see the C

09614

1

you see that they were made aware that the defense was going to get

2

their documentation basically 3 days before they start now using

3

these forms.

4

Membership, the Brig OIC selects them, that’s okay; but you have a

5

counselor, in this case Gunny Sergeant Blenis who pre-fills out the

6

form to include the recommended, you know, status.

7

out.

8

on the lower custody status, you never check that and you will see

9

when you look through that, ma’am, none of those are ever checked.

And the so-called-process, you have the C and A Board

It’s all filled

Chief Barnes says, you know what, you don’t fill out anything

10

The reason why is it’s filled--the form is filled out to support the

11

recommended status.

12

of perspective when he says, yeah, I know, the counselor shouldn’t be

13

a voting member of the board because you already know the counselor’s

14

vote.

15

then vote against their own recommendation.

16
17
18

Chief Galaviz was the only one with a little bit

No counselor is going to make a recommendation on a status and

MJ:

Is there anything in the SECNAV that prohibits--Instruction

that prohibits it?
CDC[MR. COOMBS]:

What I would say is the proponent--one of

19

the proponents of the SECNAV said that that would be improper.

20

Saying, no, you need to in fact--the counselor goes there and

21

basically is the person who knows the detainee the best, supposedly.

22

And goes up and makes a recommendation to the voting members.

23

then you should have three voting members who then make a vote.

5720

And
But

09615

1

Gunny Sergeant Blenis was consistently the senior board member and

2

then as the process went after he ticked all the boxes that supported

3

his outcome then he apparently voted and then he passed it to the

4

next junior member.

5

minutes on this decision.

6

he says he doesn’t even look at any of the forms.

7

basically he was signing some sort of document that was approving

8

everybody’s status, just had PFC Manning on one line, but not looking

9

at this whole little documentation.

They sometimes spent 1 minute to a max of 10

10

MJ:

11

CDC[MR. COOMBS]:

And then when it goes up to Chief Averhart
He was saying

And that makes sense.

If he is signing a document how is that vocal approval?
Well, because he’s not signing the Brig--the

12

C and A Board’s results because there is no form to sign.

13

signing that like Chief Barnes ultimately does when she starts using

14

the Brig form they are using.

15

terminology used for the form but it’s some form that has every

16

detainee and their status and he’s just signing off and saying, yeah,

17

that’s what I want him in.

18

But he’s not making an approval of the C and A Board.

19

MJ:

20

CDC[MR. COOMBS]:

He’s not

What he’s doing is, and I forgot the

That’s what I’m going to put them in.

Is that not the functional equivalent?
I would say no because the C and A Board

21

should be in fact, giving their recommendation to him and saying,

22

okay, this is what we considered and then ideally I would think the

23

process would be that he would look at what the board considered

5721

09616

1

maybe ask a few questions.

The process that he described was just

2

some sort of form that had every detainee and what their status was.

3

And if he wanted to change it he would, otherwise he would sign off

4

on it.

5

advocate.

6

supposed to be his counselor.

7

looking out for him though we see multiple instances where he’s not

8

doing that.

9

unprofessional.

And Gunny Sergeant Blenis was in fact not PFC Manning’s
He was supposed to be PFC Manning’s advocate.

He was

He was supposed to be the person

He’s in fact doing just the opposite.

He is

He is somebody who is not advocating for PFC

10

Manning.

But worst of everything is he’s lying to PFC Manning.

He’s

11

telling PFC Manning that the doctors are recommending, they are the

12

ones who are recommending that he remain on POI.

13

this explains why you have a delay in his complaints.

14

believes that the doctors are the ones who are saying you need to be

15

on prevention of injury.

16

if some mental health professional believes I need to be on

17

prevention of injury then what are you going to complain about?

18

only when PFC Manning starts to ask questions and starts to say,

19

well, wait a second, that’s not what I’m hearing does he then believe

20

well, perhaps the person that he testified on the stand, PFC Manning

21

testified that Gunny Sergeant Blenis was a nice guy.

22

And all the while this is what Gunny Sergeant Blenis’ actually doing.

And PFC Manning,
PFC Manning

And at that point, you know, okay, if the--

5722

It’s

He liked him.

09617

1

Gunny Sergeant Blenis on the stand comes up with and you see

2

other witnesses who come up with kind of the same story of all of a

3

sudden PFC Manning is this person who will never speak to.

4

never talk to me.

5

that’s it.

6

somebody that he had on death row.

7

counselor notes is this information ever recorded and you would

8

expect that he would record that.

9
10
11

MJ:

Will

Who is, you know, is just a yes/no answer and

The worst communicator he has ever seen other than
But again, nowhere in his

The counseling notes do say that he is un--PFC Manning is

uncommunicative and is guarded.
CDC[MR. COOMBS]:

At times, yeah.

Other times it talks about

12

oh, we had a good conversation about, you know, March Madness or we

13

talked about X, Y, or Z.

14

it possible and you had the opportunity to see Gunny Sergeant Blenis.

15

Gunny Sergeant Blenis and PFC Manning didn’t have the same interests.

16

The main interest PFC Manning had was computers and some sports.

17

Gunny Sergeant Blenis and him didn’t have that same interest so I

18

said is it possible that maybe you didn’t have a lot to talk about?

19

But when you take a look at other individuals such as the doctors,

20

Captain Casamatta, uh, the chasers who were taking him out, PFC

21

Manning didn’t have any problem talking to these people.

22

communication is something that has been used now as a convenient

23

hey, this is--this is what we are going to say really happened.

And I asked Gunny Sergeant Blenis, well is

5723

So, again,

But

09618

1

it’s not supported by the facts.

2

Chief Barnes’ testimony where she says when she first came there PFC

3

Manning was talkative.

4

joke a little bit.

5

for the first month she didn’t do anything.

6

the communication goes downhill again, that’s coincides with

7

basically the March time period and that’s--there’s a good reason for

8

the communication to go downhill at that point.

9

It certainly is not supported by

He complimented her on her hair.

They would

He was like every other detainee fine.

We see the log book entries.

And yet

When she starts to say

The reason why those started

10

Gunny Sergeant Blenis testified that he was just walking in

11

apparently the SQ1 area and overheard guards talking about various

12

things that PFC Manning was doing.

13

that and you see that in his weekly report, November.

14

he documents anything about so called odd behavior but after that

15

point shortly thereafter Chief Averhart directs that any odd behavior

16

is going to be documented now in a separate log book and it’s going

17

to be part of their 5-minute annotations but all of the behavior

18

again as you heard from Lance Corporal Tankersly and Cline wasn’t odd

19

behavior.

20

happenstance that Gunny Sergeant Blenis overheard something and then

21

said, oh, wait a second, we need to start documenting this.

22

every one of their so-called odd behaviors was run by either Captain

And that’s when he documented

The guards weren’t reporting this.

5724

The first time

It was only by

And

09619

1

Hocter or Colonel Malone.

2

so-called odd behavior.

3

And neither one had any issue with this

No one ever goes directly to PFC Manning though to talk to

4

him about that.

5

about that did you go directly to PFC Manning and ask him about the

6

behavior?

7

went directly to PFC Manning to ask him about an issue that a

8

counselor should ask him about if he’s concerned, if he’s an advocate

9

or certainly if he’s using that as a justification for his

I asked Gunny Sergeant Blenis, if you were concerned

No, I didn’t.

The person who wants communication never

10

recommendation to the Brig OIC.

11

ever go to PFC Manning to talk to him about the so-called odd

12

behaviors?

13

not going to PFC Manning and yet the same thing that they are saying

14

PFC Manning is faulted for, a lack of communication, can be laid at

15

their footsteps as well.

16

hear you are sword fighting or we hear you are, you know, you are

17

just setting and staring at the walls.

18

again all this stuff is considered by the mental health

19

professionals, people that you would expect would raise a flag if

20

there was in fact a concern.

21

of a couple of times shows his logic and this is the person again

22

that pretty much holds the keys to PFC Manning’s fate at least at the

23

C and A Board.

No.

He never did.

Did Chief Barnes or Chief Averhart

No reason.

No reason was given for

Not going and asking a simple question, we

Is everything okay?

But

Gunny Sergeant Blenis on the stand kind

He talks about the fact that he would be a puppet if

5725

09620

1

he followed the recommendation of the Brig psychiatrist which didn’t

2

make any sense.

3

factors the four family ties, asked what could PFC Manning do about

4

that?

5

do that, if he just has poor family ties is that always going to be a

6

factor?

7

really circumvent the true question and that is whether or not PFC

8

Manning qualifies for max.

9

risk to escape.

But more startling is when it came to the other

10

Well, you build up the family ties.

Yes, it is.

You know, if he doesn’t

And I’ll talk in a moment how these factors

That being he is dangerous, violent, or

Blenis then testifies that the statement that PFC Manning

11

made on 21 January completely dumbfounded him and it was huge for me.

12

Those were his words and yet he never goes to PFC Manning or even the

13

doctors to talk about this so-called huge statement.

14

planning and never acting, I say well isn’t there a time period where

15

that would no longer be relevant for you?

16

always.

17

troubling is when we talked about the one incident of the so-called

18

licking the bars.

19

November counselor notes.

20

this is one of the behaviors that he overheard.

21

the guards is PFC Manning was sleep walking.

22

something that was brought up with the doctors and the doctors said

23

that was a side effect of the medication.

The always

And he responded always is

That was always going to be an issue for him.

And most

The only time that’s ever documented was in the 23
It’s documented not from a report, it’s

5726

What he hears from

And this was, in fact,

I asked Gunny Sergeant

09621

1

Blenis if he heard that would he still consider that.

2

I said, well, what if it was a doctor that you totally trusted that

3

you had 100 percent trust in and he said, look this is not a mental

4

illness this is just simply a side effect of medication.

5

said no, I would consider that.

6

Manning somehow has to convince 100 percent that he is not a risk of

7

self-harm.

8
9

He said, yes.

He still

That again, is the person that PFC

Fuller and Jordan for the most part, they testified that
they went along with Gunny Sergeant Blenis.

10

knew him the best.

11

checked for them they don’t go and check anything else.

12

check any of the lower custody classifications.

13

detail.

14

name.

15

issue where and even under the best of circumstances that should

16

raise an eyebrow to have it pre-filled out.

17

Sergeant Blenis as the person as the senior member on the board

18

clearly is problematic but when you look at what he points to when he

19

checks it’s all conduct that PFC Manning has no control over.

20

that happened in Kuwait.

21

control over any of that stuff.

22
23

He was their superior.

He was the person who
And so when the boxes are
They don’t

They don’t add any

All they do is check yes for their support and sign their
Again, when you look at the forms being pre-filled out an

MJ:

But to put Gunny

Stuff on his intake questionnaire.

Stuff
No

The so-called odd behavior----

How does he have no control over what he places on the

intake?

5727

09622

1

CDC[MR. COOMBS]:

Because at the point that he--again, his

2

testimony was that he was told he had to put something there.

And

3

grant it, that wasn’t the smartest thing to write down but when you

4

write that down then okay, that’s--that is a time and period where

5

now you have that written down and that is a fact.

6

using that same fact month after month to support their decision and

7

he has no control over changing that.

8

control the fact that he had a break down in Kuwait.

9

that but all he can do is what he’s doing that day and every day he’s

Well, they are

Those are the facts.

He can’t

He can’t change

10

doing what he’s told.

Every day he is a model detainee.

Every day

11

when the doctors when they come see him they are saying he is not a

12

risk of self-harm.

13

discounted.

14

factors.

15

home and family relationships, he can’t change that and yet that is

16

going to be constantly used against him.

17

charges, he can’t change that and yet they use that against him.

18

Potential length of sentence which is basically the same thing, he

19

can’t change that.

20

again the testimony showed that the POI did drive the train on the

21

max.

22

dangerous.

23

any concern of him being violent, any concern of him being dangerous?

Those are things he can control and those are

And the disproportional weight is applied to these

Things that he can never change, the poor hand--the poor

The seriousness of the

And so for 9 months he is kept in max and POI and

Everyone testified that PFC Manning was not violent or
There was no testimony and I asked each of the witnesses,

5728

09623

1

No, no.

Then we go to escape risk.

2

try to escape?

3

Very compliant, very respectful.

He’s in Quantico.

Did he ever do anything?

4

MJ:

5

CDC[MR. COOMBS]:

6

MJ:

No, no.

Did he ever

No escape risk.

And then----

Well, let me stop you there for just a minute.
Yes, Your Honor.

Some testimony showed that the POI was driving the train on

7

the maximum classification, witnesses that--some of the witnesses

8

testified that they looked at the seriousness of the offense, low

9

tolerance for frustration, et cetera.

Do you remember which, if any

10

witnesses specifically said that their maximum determination was

11

based solely on the POI?

12

CDC[MR. COOMBS]:

Both Chief Averhart and Chief Barnes said

13

that POI would make you max.

14

in their mind was the standard.

15

would be when they received Chief Galaviz’s memo that said well, wait

16

a second, you need to look at, you know, the handling instructions

17

separate from the custody so you can have, in fact, a POI/MDI.

18

key thing here when you look at all the so-called justifications

19

though for max, when they were looking at the low tolerance of stress

20

or the seriousness of the charges; it’s the defense’s position that

21

these factors the seriousness of the charges, low tolerance for

22

stress, the potential length of sentence, these are not factors that

23

get you to max.

That that would be the default and that
The only time that would ever change

The

These are factors where you can basically once you

5729

09624

1

make the determination is the person violent or dangerous, is the

2

person an escape risk?

3

the offense, the low tolerance for stress are factors that are non-

4

inclusive or exclusive lists that you can use in order to justify the

5

decision.

6

Instruction certainly with the SECNAV saying only a small portion of

7

detainees should be max that the first hurdle that you’ve got to get

8

over is, is this person violent or dangerous, or is this person an

9

escape risk.

Then these other factors, the seriousness of

But it’s the defense’s position under the SECNAV

Because you could have somebody come into jail with a

10

non-violent offense, much like PFC Manning, with a potential length

11

of sentence that is, you know, out in the, you know, stratosphere,

12

maybe do a--like a Bernie Madoff type offense where it’s a white

13

collar type crime and you’ve got a potential length of sentence

14

that’s quite long.

15

reason to put that person in max unless you say they are dangerous,

16

violent, or an escape risk.

17

enough even Chief Galaviz didn’t seem to understand and the

18

government continues to argue the national security aspect.

19

a conjunction there that makes that relevant only if a person is an

20

escape risk.

21

max if their escape would cause loss of life, property, or danger to

22

national security.

You wouldn’t put that person in max.

There’s no

And the second little prong which, scary

There’s

Because if they are an escape risk then they go into

So, when you look at that provision, that is not

5730

09625

1

a separate national security, we put him in max custody authorization

2

that the government has tried to argue.

3

So, these factors that are checked, the random factors

4

which again are all basically the same one time and time again when

5

you look at them on the C and A Board, they in and of themselves do

6

not justify max.

7

in PFC Manning’s case, you know, if he were a--just actually charged

8

with a one spec AWOL say, and for some reason was in pretrial

9

confinement, you know if he had low tolerance of stress, I guess he

You have to make that first determination.

And so,

10

would have the seriousness of the charges necessarily, but obviously

11

you wouldn’t put him in max based upon low tolerance of stress.

12

would do that because you thought he was a potential danger or

13

violent detainee or an escape risk.

14

put him there.

15

You

That’s the only reason you would

Now, here is the most troubling aspect that you can

16

only really truly explain after looking at the counselor’s behavior

17

with an answer that they must have known that, look, this is the

18

status.

19

can happen to us personally if he is in max and POI.

20

ignoring of their own doctors.

21

consistently recommended taking PFC Manning off of POI.

22

Colonel Russell’s opinion is actually consistent with Captain Hocter

23

and Colonel Malone.

This is the safest status to keep him in because nothing bad
And that is the

Captain Hocter, Colonel Malone
Lieutenant

When you look at his opinion he says, look what

5731

09626

1

I’m seeing is a talkative person, doesn’t seem to have any mental

2

health issues, he in fact checks all the appropriate boxes that are

3

consistent with what Captain Hocter and Colonel Malone have checked.

4

The reason why he says POI should be continued is because of the

5

story that he’s been fed by Chief Barnes and her staff.

6

well, based upon what they have told me, you know, he’s not

7

communicating he’s significantly drawn down his communication, he’s

8

withdrawn, they are saying----

9
10
11
12

MJ:

And he says,

Is the defense contesting that, his communication

deteriorated?
CDC[MR. COOMBS]:

No, I think that was the natural

consequences of 2 March.

13

MJ:

But it did deteriorate?

14

CDC[MR. COOMBS]:

Sure.

Because at that point when he figured

15

out was look, every time I talk to them, whether it be at the C and A

16

Board or pulling aside Master Sergeant Papakie and actually having a

17

heart-to-heart and feeling like I’m getting to him something bad

18

happens to him.

19

actually talking to these people because there’s no way I can

20

convince them of anything.

21

he gets to the JRCF.

22

testified much happier, much more talkative, and that’s because he’s

23

in MDI.

So, I’m not going to--I’m going to have to give up

And you see a big change in behavior when

The first sergeant and Captain Casamatta both

And that’s the first time really that he’s in a position

5732

09627

1

where there are people who are willing to look at the facts and

2

listen to their mental health professionals.

3

Russell’s opinion is swayed by what he is hearing from the actual

4

Brig and the important thing here is if Lieutenant Colonel Russell

5

had the same history that Colonel Malone did would his recommendation

6

be the same.

7

Malone testified that he got to the point where I just agreed to

8

disagree.

9

But Lieutenant Colonel

The defense’s position would be no.

Because Colonel

And that’s where he got with Chief Barnes.
So, you see that there is a wide disparity in what they

10

believed Captain Hocter was doing.

And Captain Hocter really is the

11

victim of this entire Article 32 hearing in short of PFC Manning

12

because everybody wants to throw Captain Webb’s suicide at Captain

13

Hocter’s feet and they want to say he’s the guy who came in for 10 to

14

15 minutes, never did anything, didn’t do a thorough review and just

15

left.

16

he was there for the hour with PFC Manning.

17

PFC Manning’s testimony.

18

the command makes--they don’t even make pretense about despising

19

basically Captain Hocter’s opinions.

20

I didn’t trust him.

21

Captain Hocter’s just trying to cover his own six, his own back.

22

he sends that email to his subordinates and so it’s clear that Gunny

23

Sergeant Blenis and the subordinates that received that email know

And yet that is inconsistent with other individuals who said
That’s inconsistent with

But, the most problematic aspect here is

Chief Averhart says, you know,

And we have the email where he’s saying that

5733

And

09628

1

that whatever Captain Hocter is saying isn’t going to sway their OIC.

2

And so when Gunny Sergeant Blenis goes on the C and A Board, what

3

weight do you think he really gives to Captain Hocter’s

4

recommendations.

5

he blamed Captain Hocter for Captain Webb’s suicide.

6

it was Gunny Sergeant Blenis but I’m not for sure exactly as my

7

memory is failing me on this but one of them testified that there was

8

an investigation and lo and behold the Brig was not held at fault.

9

Then I said, well, okay, if the Brig wasn’t held at fault that must

And then you see Colonel Oltman also testified that
And I believe

10

have meant that Captain Hocter was not held at fault either.

And he

11

wouldn’t even give me that.

12

Brig.

13

reconcile that statement with what they tell PFC Manning when PFC

14

Manning says, look, I know Captain Hocter and now Colonel Malone is

15

recommending me to come off of POI.

16

who’s here every day?

17

for an hour at best and gone.

18

every day.

19

They were there every day.

20

didn’t see anything.

21

point.

22

Captain Hocter in probably the most painful testimony you hear from a

23

person of his rank, is if they just would have told me.

Well, Your Honor, no it was just the

The Brig wasn’t held at fault.

But, compare that and try to

They turn to him and they say,

Who sees you every day?

We are.

He’s here

He’s a recommendation but we are here

Why wouldn’t that same mentality apply to Captain Webb?
They saw him every day and yet they

But they don’t put any fault on them at that

Instead they throw it right at Captain Hocter’s feet.

5734

And

If they just

09629

1

would have told me that they didn’t trust me I would have stepped

2

down.

I would have resigned.

3

MJ:

Well, he also testified that he tried to resign, didn’t he?

4

CDC[MR. COOMBS]:

Before this.

Long before this.

But he said

5

he would have resigned and Chief Averhart even admitted that yes, I

6

can see how it’s unfair to PFC Manning that he had a doctor that I

7

did not trust.

8

that would have been a huge help.

9

would have liked to have.

And he said oh, yes, if I had a doctor that I trusted
That would have been something I

And yes, I could see how that would then

10

actually helped PFC Manning if a doctor I trusted said he’s not a

11

risk of self-harm.

12

What happens then is based upon how they viewed Captain

13

Hocter again, the Brig staff now doesn’t look at Captain Hocter as

14

being a good source of information and so his weekly evals are not

15

weighed.

16

Hocter.

17

wasn’t his job to try to replace him. That he did go to Colonel

18

Oltman but if you have the Brig psychiatrist that you don’t trust why

19

not replace him?

20

this guy is coming in for 10 minutes for tops and leaving.

21

worse than not having somebody if that were true.

22

different.

23

been then obviously pushed up the chain of command.

They are not trusted.

And no one tries to replace Captain

I asked Chief Averhart, look, you know, I know--he said it

Why not ask your chain of command and say, look,
He’s

We want somebody

We need somebody that we can trust and that would have

5735

09630

1

MJ:

Were there--at what point the email traffic indicates that

2

through Captain O’Neill or Captain Neill that there was attempts to

3

get additional mental health support for the Brig.

4

begin?

5

CDC[MR. COOMBS]:

When did those

I believe most of those emails, ma’am,

6

started right around the same time frame of the charges, the new

7

charges being preferred and I think the genesis for this was Colonel

8

Malone was not available at the time that the command wanted him

9

there.

Once they found out the new charges were going to be served

10

on PFC Manning and the 138 response was they wanted Colonel Malone

11

there and Colonel Malone was on emergency leave.

12

might have been, if memory serves me correct, the reason why at that

13

point they said we need somebody that we control.

14

General Flynn actually gets involved in that and they push that all

15

the way up to the highest levels of getting somebody.

16

asked if that was just for PFC Manning and the idea was no, we wanted

17

somebody.

18

for a full-time mental health professional goes away and then

19

subsequently they close down.

20

And I think that

And so Lieutenant

And then I

Then obviously once PFC Manning goes to the JRCF the push

You know, Chief Galaviz talked about the fact that if you

21

have somebody you didn’t trust you should have gotten a second

22

opinion, and if you didn’t get a second opinion then you should have

23

replaced the doctor.

So, Chief Averhart, once he kind of looks at

5736

09631

1

everything, he basically defaults to, I’m going to keep PFC Manning

2

on max and POI and that’s the position that PFC Manning stays on and

3

when I pressed him to try to give reasons for why he had him on POI

4

and why he had him for max, those reasons were not anything that he

5

could rattle off.

6

to come and testify on this issue and knowing that apparently every

7

week he’s looking at this he would be able to articulate precisely

8

why he had PFC Manning on max and precisely why he had him on POI.

9

But the telling email for his 138 complaint that he sends to Gunny

And you would expect that knowing that he is going

10

Sergeant Blenis is he’s asking him to draft a reason.

11

reason why we have him on max and POI.

12

make any changes you want and then send it back to me.

13

I kept giving him the opportunity and open-ended questions, just tell

14

me why, what were your other reasons.

15

were factors that again PFC Manning could not really control.

16

there has to be a time limit on those factors.

17

court should ponder for a moment is if PFC Manning didn’t leave

18

Quantico on 20 April and was still at Quantico today what would his

19

custody status be?

20

Give me a

Use the template I have here,
And again as

Everything he could point to
And

The question this

Now, Chief Averhart comes up with, and a couple of the

21

other witnesses Chief Barnes does this as well, for the very first

22

time, nowhere in any other sort of email traffic nor is there

23

anything in the 138 responses, but they come up with a claim that now

5737

09632

1

he is on max and POI for his own protection.

2

protective custody and they claim that, you know, we are concerned

3

that there’s somebody else that’s going to harm him, someone who is

4

patriotic as a confinee is going to take issue with what PFC Manning

5

is charged with and they are going to harm him.

6

for details on that did you hear anything from any of these detainees

7

to indicate that anybody had ill-will towards PFC Manning?

8

didn’t hear anything.

9

wouldn’t put him in max for protective custody right?

When I pushed him

No,

And again when you also push him for well, you

10

him in protective custody.

11

that was ever given except for on the stand.

12

Even though there is

Well, yes, okay.

You would put

Again, not a reason

Then they claim again the lack of communication.

The only

13

documentation of lack of communication to the point where you would

14

say we are now concerned that we can’t accurately gauge whether or

15

not he’s going to harm himself is after the March 2nd incident.

16

the defense concedes after that point PFC Manning does stop

17

communicating.

18

not to the level of some of the accused’s in the cases we have cited

19

where they are confrontational with the Brig staff or their not

20

communicative with the mental health professionals.

21

respectful.

22

information than needed which is a smart thing to do because when he

He is still respectful.

He still responds.

He is still compliant.

And

He’s

He’s still

He just doesn’t give them any more

5738

09633

1

does give them more information that information is ultimately used

2

against him.

3

Now, you have some abnormal behavior that Chief

4

Averhart tries to point to again when I tried to say, okay, what is

5

the abnormal behavior?

6

behaviors and when he does, each one of those behaviors is something

7

that has been considered by a mental health professional or has a

8

very logical non-mental health reason for why you would be doing

9

that.

He has difficulty articulating any of the

And you see when he talks again about his order for the 706

10

Board his actual words as I misarticulated, that’s what he’s saying

11

for what he wrote down there.

12

have articulated it now on the stand?

13

thing.

14

right back to him, okay, then you are ordering him to stay in POI

15

until the 706 Board is done.

16

ordering that.

17

Sergeant Blenis knew that.

18

member on the board and he said that he didn’t convey that to anyone

19

else but again, the proof is in the pudding.

20

I asked him then, okay, how would you
He basically says the same

Well, he stays in POI until the 706 Board is done.

Then I go

No, I’m not, I’m not directing, I’m not

It’s clear that that’s what he ordered and Gunny
And Gunny Sergeant Blenis is the senior

Then you get the 18 January 2011, incident.

And the

21

facts that come out it’s clear that something happens to cause PFC

22

Manning to have an anxiety attack.

23

information hear isn’t any of the witnesses that testified.

5739

And the best source of
It is

09634

1

the actual videos that the court got to see.

Because at that point

2

no one can say that PFC Manning is so forward thinking to know that

3

eventually this is going to be an issue, an Article 13 motion, and

4

what I say here I’m going to set this up to say that it was the

5

guard’s fault.

6

what he says on the video.

7

anxious.

8

Something seemed to be different.

9

anxious.

No one would ever make that allegation.

So, you see

Look when the guards came to me they were

I could tell they were--they seemed to be anxious.
And them being anxious made me

And Lance Corporal Tankersly couldn’t recall very much,

10

Cline couldn’t recall very much.

But the incident reports support

11

this.

12

fact where once they get there PFC Manning is confused.

13

something about that day that caused him to feel different than any

14

other day and that results in him having an anxiety attack.

15

supports that fact.

16

the proof that there is some issue between those two guards and PFC

17

Manning.

18

his rec hall without incident.

19

is fine.

20

Master Sergeant Papakie comes up and asks him questions.

21

Manning, again this is within a half an hour of all this stuff, but

22

you see Master Sergeant Papakie and then later Gunny Sergeant--excuse

23

me, later Chief Averhart through their questions invoke another

Even Gunny Sergeant Fuller’s incident report supports this
There is

They switch out Tankersly and Cline.

Everyone
Again, for

And they put two new guards there and PFC Manning completes
He goes back to his cell.

Everything

He is then sitting on his bunk just reading and that’s when

5740

And PFC

09635

1

anxiety attack.

Because Chief Averhart doesn’t say, just is

2

everything okay?

3

you sure everything is okay?

4

asks him several times and that’s the whole issue with PFC Manning

5

the--what happens on that day it is amazing that day didn’t happen

6

multiple times earlier because up to this point he’s been under the

7

same conditions for over 6 months.

8

don’t understand why everyone is so concerned about me.

9

understand why I’m always being watched.

He says, is everything okay?
Yes, sir.

Yes, yes, sir.

You have no problems?

Are
So he

And he says to Chief Averhart, I
I don’t

He points to the

10

observation room, he says, I don’t get that.

I don’t understand

11

that.

12

said, whether or not Chief Averhart raises his voice, you know, it

13

looks--it could have been his deep voice or he could have raised his

14

voice, but regardless of what’s said, PFC Manning has another anxiety

15

attack.

16

from Master Sergeant Papakie and from Chief Averhart.

17

Sergeant Papakie’s first version of the events kind of support Chief

18

Averhart.

19

of the fence of the gate to his door.

20

this crazy scenario and then when he’s confronted with his incident

21

report he folds quickly.

22

in the incident report happened.

23

what the, that’s what happened.

And that’s when another anxiety attack happens.

Now what’s

And what’s interesting is the testimony that comes out both
Master

A violent, striking himself, almost head butting the front
He describes in kind of detail

Okay, okay, no, no, no, yeah, what happened
That’s--Yes, that’s the, that’s
And what does he describe happening?

5741

09636

1

PFC Manning raising both of his hands to his head and slapping the

2

side of his head.

3

get Chief Averhart up there and his version of the events is

4

basically an editorial license on Master Sergeant Papakie’s first

5

kind of crazy version.

6

striking himself with a closed fist in the face repeatedly and in the

7

head.

8

right, code blue.

9

says, you know, special move SR.

Exactly what PFC Manning testified to.

Then you

He’s talking about PFC Manning actually

So, after that then you get a--Chief Averhart saying, all
Which is going to be a forced-cell extraction.

He

So he puts him on suicide risk and

10

the question that I asked then of Galaviz is what would be a suicidal

11

gesture to warrant even putting a person on suicide risk?

12

facts were that somebody out of frustration just put their hands to

13

the side of their head, I don’t think anyone would say that’s a

14

suicidal gesture and that is what happened.

15

---

16
17
18

MJ:

And if the

So, when you look at it-

Well, he would also have to take into consideration what

happened earlier in the day.
CDC[MR. COOMBS]:

Wouldn’t that be true?

You would and even there, there wasn’t a--an

19

intent to harm oneself.

And you have within 20 so minutes the

20

doctors coming in to say it’s an anxiety attack.

21

you took into account what happened that day, you would also have to

22

take into account the fact that he completed his rec hall without

23

incident.

And you also--if

So, then you get--again, probably the best proof the

5742

09637

1

video.

Here is a person who apparently cannot talk to anybody, is

2

left to simple yes and no’s, is acting very, very crazy and bizarre,

3

violently striking himself, and yet within minutes of this so-called

4

activity you see clearly PFC Manning standing in his cell at parade

5

rest talking to Master Sergeant Papakie.

6

very articulate saying, I don’t understand.

7

get off of POI.

8

you I’m getting increasingly frustrated.

9

myself, what do I need to do to get off of POI.

Very respectful.

But also

I keep--I just want to

I don’t understand what I need to do.

I’m telling

Every day I’m thinking to
What do I need to do

10

to get off of POI.

11

Papakie and later with Gunny Sergeant Blenis, the lies anything they

12

said on the stand about PFC Manning and his ability to talk to them.

13

And when you look at him on that day there are no injuries from

14

striking himself in the face.

15

might have had a Corpsman take a look at him or whatnot, they didn’t

16

have anyone come take a look at him because he never struck himself

17

in the face.

18

That whole conversation with Master Sergeant

Chief Averhart said, oh, I think we

Then you get the 21 January C and A Board and we talked

19

about this false thing but an issue here that is surprisingly absent

20

from his 21 January C and A Board is where do they ask him about 18

21

January.

22

Manning actually struck himself in the face and was trying to head

23

but the front of his cell?

Wouldn’t that be a good thing to ask him about if PFC

Wouldn’t that be something well, look,

5743

09638

1

you know we could talk about this statement that you made on 29 July,

2

but actually let’s talk about something you did just 3 days ago and

3

let’s talk about that.

4

because 3 days ago was what PFC Manning said happened.

5

had an anxiety attack based upon the guards being for whatever reason

6

more rough with him then on previous days and having some sort of

7

anxiety towards him, whether that is because of the protest or

8

something else.

9

But after this obviously Captain Hocter saw him on that day and so

But they don’t talk about that and that’s
3 days ago he

Maybe they are just having a bad day, who knows.

10

did Colonel Malone and you see PFC Manning’s behavior just apparently

11

minutes after this so-called meltdown and he’s fine.

12

address this issue with him at the C and A Board.

13

But they never

Then Chief Barnes arrives and what must have been for PFC

14

Manning an almost a halleluiah moment.

I’ve got somebody new.

15

got somebody who is no longer Chief Averhart, who will actually maybe

16

talk to me.

17

talks to her, compliments her on her hair, they are talking, not a

18

problem.

19

off POI and I’m going to look at everything and well, I’m not a

20

cookie-cutter-type person and we are going to go ahead and take a

21

fresh look at you.

22

I know that Lieutenant General Flynn is involved in all this stuff

23

because I know my weekly reports that I’m going to be doing on you go

And Chief Barnes does talk to him.

I’ve

And she says he

And she says basically hey, look, I have no problem taking

But what she fails to tell him is, you know what,

5744

09639

1

up to him.

2

I was in the Brig and I heard Colonel Oltman say that you were going

3

to be basically on max and POI indefinitely.

4

about any of that stuff, but her conduct speaks that, that is exactly

5

what she knew.

6

over as the Brig OIC, as a CW2 she has 16 years in.

7

to put her career at risk for PFC Manning.

8
9

She fails to tell him that, you know what, on 14 January

She doesn’t tell him

Because she is the youngest warrant officer to take
She is not going

Within short order despite what she testified on the stand
of trusting doctors, it’s clear from the emails that you had she

10

didn’t trust Colonel Malone.

11

take PFC Manning off of medication.

12

with Colonel Oltman.

13

going to be suicidal and you need medication to stop being suicidal

14

in her mind said, that the second you take him off of medication, he

15

must be suicidal again.

16

to educate herself on that, no, that was just her logic.

17

Malone testified that the relationship got to the point where again

18

they agreed to disagree.

19

professional advice of Colonel Malone.

20

MJ:

21

CDC[MR. COOMBS]:

She disagreed with his decisions to
She voiced those disagreements

She also believed that, you know, if you are

I asked her if she looked up anything to try
Colonel

Just like her predecessor she ignores the

Let me ask you something.
Yes, ma'am.

5745

09640

1

MJ:

Mr. Coombs, unlike suicide risk the ultimate authority to

2

make a decision on POI rests with the Brig officer, not with the

3

medical professionals, is that true?

4

CDC[MR. COOMBS]:

That is true, Your Honor.

And I think then

5

it’s important to see where--that the POI really again is under the

6

administrative segregation and it is intended to be short term.

7

looking at Lieutenant Colonel Hilton’s testimony and other people who

8

talked about how long POI was that is why I believe under the SECNAV

9

and unfortunately it’s not the best drafted of instructions, but I

And

10

think that is why it is intended to be short-term, to give a

11

commander a period of time to where they can see, okay, this person

12

is not going to harm themselves.

13

vested authority to make that decision because, in this instance it

14

is not rising to a level of suicide where you are going to have a

15

mental health professional, but there are a lot of reasons why

16

someone might harm themselves that perhaps a mental health

17

professional would say at this point they are not a risk but there is

18

something that you might want to watch him for.

19

should have that authority.

20

you do it arbitrarily that’s where you have a problem.

21

And it is given the commander the

And the Brig OIC

But when you exercise that authority and

I could show you so--At this point she talks about, again,

22

the way PFC Manning was in January and February.

23

March comment to Master Sergeant Papakie and when you hear PFC

5746

And we get to the 2

09641

1

Manning’s version of that it’s painful to think how he was talking to

2

Master Sergeant Papakie believing that he was getting through to him.

3

And all the while Master Sergeant Papakie, even though he admitted, I

4

never gave PFC Manning any indication that I was troubled by what he

5

had to say.

6

because he was concerned PFC Manning might do something that very

7

moment apparently.

8

Papakie walks away you could just think for a moment in PFC Manning’s

9

mind, you know what, I finally got through to somebody.

He testified on the stand he didn’t want to do that

But while they are talking and Master Sergeant

I got

10

through to the most senior NCO in the entire Brig.

He also agrees I

11

can tell, that it’s just ridiculous that I’m on POI.

12

know Master Sergeant Papakie is going to Chief Barnes and telling her

13

about the comment.

14

was going to harm himself with his underwear.

15

was smiling and chuckled as if it was absurd what he was saying and

16

even Captain Casamatta once he hears about it says, you know what,

17

no, he is not going to harm himself.

18

to know that.

19

forward adding the further embarrassment of striping down and being

20

naked every night and then ultimately they give him the suicide

21

smock.

Little does he

And they all agree that PFC Manning didn’t say he
They all agree that he

I can--I know him well enough

And yet they use that to justify from that point

22

MJ:

When did he receive the suicide smock?

23

CDC[MR. COOMBS]:

7 March, ma’am.

5747

09642

1

MJ:

Is it the defense’s position that he had it until he was--

2

he was wearing it until he was transferred to the Regional

3

Confinement Facility?

4

there for a short period of time?

5

CDC[MR. COOMBS]:

I thought I heard testimony that it was only

Right.

No, ma’am, he had it from 7 March to

6

20 April and the only thing I can say to that is whoever told Captain

7

Casamatta that was either mistaken or purposely misleading him.

8
9

So then you get the removal of the underwear and here’s
another telling moment.

Colonel Malone goes to again, Chief Barnes

10

and says, look, he is not intending to harm himself when he says

11

that.

12

conditions.

13

all the while I’ve had the most dangerous thing probably you could

14

have given me, in my estimation.

15

clearly I’m not at risk to harm myself.

16

listen to that and the underwear is taken away and that eventually

17

makes it way up to PSL and that’s where Chief Galaviz and Lieutenant

18

Colonel Wright weigh in on this.

19

That’s just his way of intellectualizing the absurdity of his

MJ:

He’s trying to basically calm you by telling you, look,

I haven’t harmed myself.

So

But Chief Barnes doesn’t

What is the defense’s position with respect to taking away

20

clothing for a prisoner or a Brig officer’s authority to take away

21

clothing from a prisoner not on suicide risk?

22
23

CDC[MR. COOMBS]:

We don’t believe the Brig officer has the

authority.

5748

09643

1

MJ:

From the detainee?

2

CDC[MR. COOMBS]:

3

MJ:

4

CDC[MR. COOMBS]:

Yes.

Okay.
Yes, Your Honor.

And I base that on

5

Lieutenant Colonel Wright’s email and Chief Galaviz’ testimony of

6

look, if you are going to take precautions that are consistent with

7

suicide risks you have to put them in suicide risk.

8

you could circumvent the requirement of having the mental health

9

professional’s concurrence by just adding enough special handling

10

instructions to POI that there’s no functional difference between

11

suicide risk and POI.

12

Oltman when she’s asked to justify her position cites the provision

13

under suicide risk.

14

disagree basically with PSL but on the stand she ultimately tells you

15

that yes, I was relying upon a provision that falls under suicide

16

risk.

17

that.

18

Otherwise then

And Chief Barnes in her response to Colonel

She also says, you know, well, we just agree to

So, even she acknowledges she didn’t have the authority to do

Now, the next day there--there has been a lot of testimony

19

as to what happened as far as why but not what happened.

The next

20

day it’s clear that PFC Manning is standing naked for count.

21

question is does he do that voluntarily to manipulate the situation

22

or is he ordered to do that.

23

the blanket and they tell me, is that how you stand, essentially.

The

He says, you know, I got up and I had

5749

09644

1

And he asks for clarification.

He is told the same thing and then he

2

basically then stands naked.

3

should look to in order to clarify this would be GM2 Webb who said

4

when I go as the DBS, if I looked over and I saw a detainee standing

5

naked, the count is stopping and I’m correcting that immediately.

6

I’m going to ask why are you standing there naked and I’m directing

7

him to get dressed.

8

that issue right then and there.

9

count.

Well two witnesses that the court

If he doesn’t get dressed we are dealing with
I’m not walking through on my

The other thing is an absent witness.

You don’t have Staff

10

Sergeant Terry here.

You don’t have any of the guards from that time

11

period here.

12

had anything to do with the 18 January incident in order to document

13

what they believed happened in the rec room.

But yet they bring

14

nobody to document what happened on 3 March.

No one.

15

Sergeant Terry be a prime candidate to be here on the stand to

16

testify as to what happened?

17

But also what is also telling as to why they wouldn’t bring anybody

18

is you don’t have what you would expect to see.

19

counseled for everything he did wrong and when I say everything it’s

20

minor stuff and there’s not many counselings.

21

everything he got counseled.

22

put on restraints he got counseled.

23

was put on his hard card but we don’t have the hard card, but

The government took great pains to bring everybody who

Wouldn’t Staff

Or whoever was in the observation room.

PFC Manning was

If he didn’t eat

If he moved while they were trying to

5750

Chief Barnes said she thought it

09645

1

something like that where she says look, hey, it’s basically a one-

2

time occurrence, we’ve told him not to do that anymore.

3

guy standing naked is a war--all that warrants is just don’t do that

4

anymore.

5

If they didn’t do something disciplinary to him it would clearly be

6

documented that he refused an order to cover himself.

7

have come out and said cover yourself or give him the clothes and

8

said dress and he would refuse that order and then they would have

9

documented that.

Really?

A

That would be an issue clearly that they would document.

10

MJ:

11

CDC[MR. COOMBS]:

12

MJ:

13

CDC[MR. COOMBS]:

Somebody would

Is there any evidence that there was such an order given?
To dress?

To cover himself.
No, there’s no evidence and that’s the

14

problem because that would be the thing you would expect to see.

You

15

know, if the situation were as Chief Barnes want you to believe that

16

Manning chose to do this on his own to make some sort of statement

17

then you would expect to see an order given to him to cover himself

18

by the DBS or by somebody else and then followed up with a

19

counseling.

20

whoever is in there clearly can see PFC Manning standing naked.

21

lights are on.

22

expect that somebody from the observation room would walk out and

23

say, Manning, what are you doing?

And if you got the observation room there, that’s-The

So, even before the DBS walks in there you would

5751

And if the clothes were in fact in

09646

1

the feed tray then you would expect that that person, Lance Corporal

2

Whoever, would say, PFC Manning, put on your clothes.

3

count would be held up until PFC Manning did that.

4

to do a forced-cell extraction when he wasn’t going to surrender his

5

clothes quickly enough.

6

he refused to put on his clothes.

7

And the whole

They were willing

They certainly would have done something if

Now, as I said the declining communication does happen and

8

that, if you look at the weekly reports it’s clear that happens after

9

25 February and the defense’s position is that it happens really

10

after the underwear is taken away from PFC Manning.

11

fact, limit his communication.

12

estimation is the clearest proof that PFC Manning had all of his

13

mental faculties at that point because that’s the sane thing to do.

14

Every time you talk you get into trouble, well, stop talking.

15

give them the yes or no, nothing more than that.

16

in trouble but little does he know because nobody is telling him

17

really that that is, in fact, going now keep him in max and POI and

18

keep his underwear being taken away from him until he leaves on 20

19

April.

20

And he does, in

Again, that in the defense’s

Just

That can’t get you

The visitation list, another example of taking something

21

that is a random thing and trying to make the most out of it to

22

justify his conditions.

23

concerned about PFC Manning harming himself, not concerned that oh,

Chief Barnes, when her initial emails is not

5752

09647

1

PFC Manning has taken all these people off his list.

What she’s most

2

concerned about is one of the people that he’s taken off might cause

3

media interest.

4

think basically Manning is trying to set us up.

Maybe the defense is

5

in on it.

That’s her initial

6

concern.

7

I have provided to the court then back up the fact that PFC Manning

8

was required to fill out a new visitation list and a new DD Form 510

9

and he was upset about that.

And she puts that out as hey, look, you know, I

They are trying to make us look bad.

And then the other emails that I send--that she sends that

And she says, oh well.

And then she

10

also documents that the reason why he removed people was because he

11

removed people who didn’t visit but he primarily just wanted to

12

remove two people from his list.

13

media and he didn’t want them to talk to the media.

14

to remove them and he was told if he was doing that he had to update

15

his list.

16

this is now cited by the C and A Board as a justification for their

17

determination that he should be on max and POI.

18

People who were talking to the
And so he wanted

Not any reason than to keep him on max and POI, but again

Complaints.

When did he complain and why didn’t he

19

complain sooner?

Well, again, complaints are a good piece of

20

evidence to know whether or not there is, in fact, an issue.

21

accused never complains until he shows up at court, there is a good

22

chance that it wasn’t problematic, but PFC Manning does complain.

23

complains as early as 10 August 2010, to his chain of command, saying

5753

If an

He

09648

1

I don’t understand why I am on POI.

2

look into it.

3

there’s not a lot I can do about it other than ask about it.

4

information and then I give it to you.

5

you in your custody.

6

over a period of time, saying I don’t understand.

7

where he says, I do, and that may coincide but it’s difficult because

8

Gunny Sergeant Blenis denies doing this, but it probably coincides

9

with Gunny Sergeant Blenis saying, look, it’s the docs.

10

MJ:

And his first sergeant says I’ll

But obviously the first sergeant even says, that
I get

I can’t order them to change

Then he continues to complain to the command
You have a period

Well, PFC Manning was seeing the doctors every week.

If

11

Master Sergeant Blenis was telling him it was the doctors that were

12

keeping him on POI wouldn’t he have addressed it with the doctors?

13

CDC[MR. COOMBS]:

Well, again, he’s addressing an O6 so, and

14

he’s probably more in the doctor’s talking to him and then they might

15

talk about neutral things.

16

them.

17

Gunny Sergeant Blenis is telling him the truth.

18

goes by he does address it and he asks, you know, what are you

19

recommending and he’s basically told at that point that hey, we are

20

recommending that you come off of POI.

21

PFC Manning then starting to complain to me, his attorney, in late

22

Fall which he is probably towards the very end of October, beginning

23

of November timeframe.

But eventually he does address it to

And the time period that goes by he probably accepts that
And then as the time

And so that coincides with

And that’s when I start addressing the issues

5754

09649

1

with MDW SJA to try to resolve that just through the informal

2

channels.

3

then we go into December and then January.

In January is where he

4

files his DD Form 510 with Chief Averhart.

It coincides with me

5

sending a memorandum to Chief Averhart requesting that he remove PFC

6

Manning from max and POI.

I’m telling him to be patient.

7

MJ:

8

CDC[MR. COOMBS]:

9

Months continue to go by

When was that done?
5 January 2011.

And then when we don’t

receive a response from that and the emails that you received

10

indicate that Chief Averhart was not going to respond to that.

Then

11

we file a 305(g) request with Colonel Coffman.

12

first Article 138 complaint, on 19 January.

13

to that 138 complaint on 1 March and I file a second--rebuttal to

14

that raising now the underwear issue on 10 March.

15

response to that, I believe, the first week of April and then we file

16

a second rebuttal on 10 April.

17

that kind of moots the issue at that point because now he is at the

18

JRCF.

19

did not need to be in the conditions that he was in, that they were

20

too onerous, more onerous to needed to ensure his presence at trial

21

because he winds up at the JRCF and after doing the indoctrination,

22

like everyone else, not being in max or POI at that point, just doing

23

the normal indoctrination he’s placed in MDI.

And we also file our

We received a response

We receive a

On 20 April PFC Manning is moved so

But then this is probably the best evidence that PFC Manning

5755

And from 20 April to

09650

1

the middle of December of 2011, no issues.

2

the one altercation with another detainee, does his punishment and

3

then again no issues from that point forward.

4

to talk to other detainees.

5

them.

6

being in chains.

7

cell, never harms himself despite Master Sergeant Papakie’s

8

prediction that if given the opportunity he would do it.

9

is at JRCF with absolutely no issues and he’s with a commander who

He’s out of his cell.

December of 2011 he has

PFC Manning is allowed

He’s allowed to go to rec call with
He’s allowed to freely move without

He’s allowed to have items, personal items in his

He then now

10

testified on the stand that, look, I listen to my doctors.

The

11

doctors tell me he’s not a risk of harm, I listen to them.

I follow

12

my doctors.

13

overruled my doctors.

14

experts.

15

testified that once they go see PFC Manning at the JRCF he is

16

happier.

17

to why was he in max and POI.

18

Have you ever overruled your doctors?

No, I’ve never

Because she listens to the subject matter

Captain Casamatta and First Sergeant Williams both

He’s more talkative.

And that takes us full circle again

The question is not was he treated differently than other

19

max and POIs at the JR--at Quantico.

20

in max and POI after 27 August and nobody on that stand has testified

21

with a legitimate, non-punitive basis for that.

22

and all the emails, the 1,374 emails that we got on the, you know,

23

the 12th hour really do paint the collage of what happened here and

5756

The question is why was he ever

The email traffic

09651

1

it goes back to that chart of everybody being concerned that if

2

something happened to PFC Manning who would be the one who would be

3

held responsible for that.

4

was a suicide risk.

5

military, you know that no one is going to want to risk their career

6

to say, well, I didn’t think he was a suicide risk and low and behold

7

he did something.

8

doctors and say, the doctors are telling us that he’s not a suicide

9

risk.

Lieutenant General Flynn made it clear he

Once you hear that from an O9 we’re in the

The easy thing would have been to rely upon the

He is no longer POI.

He’s not

10

violent.

11

He would have been in MDI and then they would have been at that point

12

relying upon people who were seeing him.

13

said nothing to indicate that PFC Manning was a flight risk or

14

dangerous to himself to warrant max.

15

POI.

16

was that he wasn’t the most talkative person to him.

17

He’s not dangerous.

He’s not a flight risk.

That would have taken him out of max.

Gunny Sergeant Blenis had

And said nothing to warrant

The worst he could say about PFC Manning in the weekly reports

MJ:

Mr. Coombs, let me ask you a question.

If one of the

18

justifications that the Brig personnel said for keeping PFC Manning

19

in maximum custody and POI status was protection from other inmates

20

and PFC Manning, I believe it was on the 21st of January of 2011,

21

even told the C and A Board that if he was removed from POI/max, he

22

would still request protective custody.

23

example that the Board decided to remove PFC Manning from maximum and

5757

Assuming let’s say for

09652

1

POI and place him in protective custody, what differences wouldbe in

2

his conditions of confinement with that decision?

3

CDC[MR. COOMBS]:

Okay.

I would say first of all for the

4

Board what he said was, I understand if you think I am a risk I

5

understand if you put me in some sort of protective custody.

6

if they in fact had something actionable to say that that would be

7

the case and that’s why I asked Averhart did you hear anything, that

8

would be an appropriate thing at that point.

9

difference is in protective custody would be he would not be required

So, and

I believe the

10

to have the whole facility locked down when he was moved.

He would

11

not be in full restraints when he was taken out of his cell.

12

would be at least, I would hope that for the first, from July 29th to

13

10 December he would not be restricted to 20 minutes of rec hall in

14

full restraints.

15

cell because they would no longer be a risk of self-harm.

He would

16

not have to ask for toilet paper and other hygiene items.

Hopefully

17

they wouldn’t have placed him right in front of the observation booth

18

so that he would have the luxury of being able to have some privacy

19

at some point.

20

risk of harm to other people I would hope that they would still put

21

someone next to him so that he could talk to them and have

22

interaction with another detainee.

23

relationship with that detainee perhaps they could be so kind to also

He

He would be allowed to have personal items in his

They would have, and even if they thought he was a

5758

And assuming that he built up a

09653

1

maybe allow that if they knew there wasn’t going to be harm allow

2

that other detainee to maybe do things with him, such as go to rec

3

hall, having some other interaction with other people.

4

to go visit his guests who came to see him he wouldn’t be in full

5

restraints.

6

and everyone else would not have to see him.

7

to exercise in his cell.

He would still be in the no-contact booth but he aunt

8

MJ:

9

contact booth?

10

When he went

And he would be allowed

So, you say he would or wouldn’t be in the visitor no-

CDC[MR. COOMBS]:

No, he would, that was the only visitation

11

booth they had, ma’am.

12

restraints and then he would be allowed to exercise in his cell.

13

Chief Averhart has said that as long as you weren’t in max or POI or

14

SR you could exercise in your cell.

15

differences would have made a big difference to his overall quality

16

of life.

17

for that period of time has to weigh heavily on somebody’s psyches

18

and again the truly amazing aspect of this whole story is what the

19

government has been able to put up is all they have been able to put

20

up because you would expect to see a lot more than that.

21

So, his aunt wouldn’t have to see him in

So, even though small

The being treated or viewed kind of almost as a zoo animal

Subject to your questions, ma’am.

22

MJ:

I think I asked them all, thank you.

23

CDC[MR. COOMBS]:

Thank you, ma’am.

5759

09654

1

MJ:

2

TC[MAJ FEIN]:

3

Alright, Government, how would you like to proceed?
Ma’am, could we go on a 45-minute recess for

lunch then we would come back and hopefully push through and finish?

4

MJ:

5

CDC[MR. COOMBS]:

6

MJ:

7

Alright.

Any objection?
No, objection, Your Honor.

Court is in---if we start up at a quarter of, does that

work?

8

TC[MAJ FEIN]:

Yes, ma'am.

9

MJ:

Court is in recess.

Alright.

10

[The Article 39(a) session recessed at 1205, 11 December 2012.]

11

[The Article 39(a) session was called to order at 1250, 11 December

12

2012.]

13

MJ:

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

Let the

14

record reflect that all parties present when the court last recessed

15

are again present in court.

16

Who will be arguing for the government?

17

TC[MAJ FEIN]:

18

MJ:

19

TC[MAJ FEIN]:

I will, Your Honor.

Major Fein?
Ma’am, the law. The defense bears the burden of

20

establishing an Article 13 or R.C.M. 304 or 305 violation by the

21

preponderance of the evidence.

22

prohibitions.

23

of pretrial confinement that are more rigorous then necessary to

Article 13 sets forth two general

Imposition of punishment prior to trial and conditions

5760

09655

1

ensure the accused presences at trial, those two general

2

prohibitions.

3

factor, imposition of punishment prior to trial focuses on the

4

purposes or intent to punish

5

intent of the Brig officials or by examining the purposes served by

6

the restriction or condition imposed and whether such interest are

7

reasonably related to a legitimate governmental interest.

8

to the King court the second factor prevents imposing unduly rigorous

9

circumstances during pretrial confinement.

According to CAAF in King, 61 MJ 225 at 227, the first

which is determined by examining the

According

Conditions that may give

10

rise to a permissive inference that an accused is being punished or

11

that the conditions are so excessive as to constitute punishment

12

itself.

13

Violations of confinement regulations if any do not

14

constitute per se violations of Article 13.

15

the same Williams court citing Adcock also held that, under 305(k), a

16

service member may identify abuses and discretions by pretrial

17

confinement officials or authorities or unusually harsh circumstances

18

including violations of applicable service regulations; however,

19

those officials must make or have a knowingly and deliberately--a

20

knowing and deliberate violation of the regulations.

21

regulations that are designed to protect the rights of the accused,

22

it’s not just any violation of regulation.

5761

Williams citing Adcock,

And it’s of the

09656

1

So, ma’am, today you are left--or for this motion hearing

2

you are left to make the following three determinations.

3

the intent of the confinement staff to punish Private First Class

4

Manning or otherwise stated, was there a legitimate government

5

interest in imposing the conditions.

6

excessive as to constitute punishment in violation of Article 13 or

7

unusually harsh circumstances under R.C.M. 305(k).

8

MJ:

9

TC[MAJ FEIN]:

10
11

MJ:

One, was

Two, were the conditions so

Let me ask you a question.
Yes, ma'am.

Do I consider excessiveness of conditions when looking at

whether something is reasonably related to a government objective?

12

TC[MAJ FEIN]:

13

MJ:

14

TC[MAJ FEIN]:

15

MJ:

16

TC[MAJ FEIN]:

Under 305(k), ma’am, no.

Under Article 13?
Yes, ma'am.

Okay.
Ma’am, three, did the Brig officials abuse their

17

discretion by knowingly and deliberately violating provisions of the

18

service regulation and for this issue the SECNAV, or BUPER but only

19

at the time that it was published, March of 2011, that are designed

20

only those sections that are designed to protect the accused, the

21

rights of the accused, which would also be in violation of R.C.M.

22

305(k).

Your Honor, defense has not alleged a co-mingling issue or

5762

09657

1

any other issue under R.C.M. 304 or 305 to the government’s knowledge

2

so those are the three major issues.

3

Your Honor, the United States argues that one, the United

4

States Marine Corps Quantico Staff had only one interest, or intent,

5

excuse me, to protect Private First Class Manning from harming

6

himself and others while ensuring he was present for any future trial

7

or any other related legal proceeding, such as the R.C.M. 706, a

8

preliminary classification review, etcetera and it was not to punish.

9

Two, Your Honor, the conditions were not so excessive to

10

constitute punishment or unusually harsh circumstances considering

11

the accused’s potential length of sentence of over 50 years for the

12

original charge sheet and life without the eligibility of parole for

13

the--what the time, Your Honor, it could have been a capital referral

14

but at least life without eligibility of parole, poor tolerance of

15

frustration, disruptive behavior, poor home and family conditions,

16

national security and risk of self-harm.

17
18

MJ:

Well, let’s look at--you have disruptive behavior, at what

point did that start?

19

TC[MAJ FEIN]:

Well, ma’am, at first, the first documentation of

20

disruptive behavior started in Kuwait and the documentation that

21

Quantico received coming forward.

22

disruptive behavior.

23

MJ:

Okay.

That was the first time seeing

And once he arrived at Quantico----

5763

09658

1

TC[MAJ FEIN]:

2

MJ:

3

----when were the first observations of disruptive

behavior?

4
5

Yes, ma'am.

TC[MAJ FEIN]:

Ma’am, that would have been in January, the

January incident.

6

MJ:

Okay.

7

TC[MAJ FEIN]:

Ma’am, the third question, but for the two times

8

of being kept on suicide risk after the mental health providers

9

recommended removal the Brig officials did not abuse their discretion

10

by acting knowingly and deliberately in violations of the SECNAV or

11

BUPER, for provisions assigned to protect Private First Class

12

Manning’s rights.

13

third issue, Your Honor, before moving forward based on Williams

14

there’s multiple Williams pretrial confinement cases so this is 68 MJ

15

252.

16

1-for 1 for each day he remained on suicide risk after the mental

17

health providers recommended removal and that is--that is 1-for-1

18

credit both under Article 13 and R.C.M. 305(k).

19
20

Now, specifically on what I--on that third--that

PFC Manning should receive no more than 7 days credit.

MJ:

That’s

Are you talking, well, are you saying 1-for-1 credit under

Article 13 and 1-for-1 credit under----

21

TC[MAJ FEIN]:

22

MJ:

No, ma’am.

Okay.

5764

09659

1

TC[MAJ FEIN]:

The 1-for-1 credit under Williams and what the

2

Williams court held would be sufficient for both at the same time, so

3

concurrent 1-for-1 credit.

4

designed to protect the personal liberties and interest of

5

individuals, although they--although that case itself, Your Honor,

6

the government does--would argue is not directly analogous to the

7

facts in this case but it is the closest in fact pattern, which is

8

why the government is saying credit is due.

9
10
11

MJ:

The Williams court held suicide watch is

Do you--Would the government carry that farther and say the

prevention of injury regulations are for the benefit of the accused?
TC[MAJ FEIN]:

Your Honor, not necessarily to the level of a

12

right such as what Williams court held for suicide risk and watch.

13

Suicide risk watch is the most intrusive set of standards.

14

someone one-to-one, 24 hours a day watching an individual either

15

through camera or having someone sit in front of the cell and it did

16

not rise to that.

17

Regulations and Williams the Navy Regulations that we are focusing on

18

in this case is that suicide risk is a very specific category.

19

has a very specific definition and the requirements and at the end of

20

the day, Your Honor, it is that one-for-one watch, which is what

21

every witness who talked about suicide risk testified about.

22

MJ:

23

away clothing?

Having

What’s clear in the regulations both the Air Force

It

What is the government’s position with respect to taking
The SECNAV Instruction says that a Brig official can

5765

09660

1

do that under suicide risk.

2

the Brig officials can do it on POI or any other status?

3

TC[MAJ FEIN]:

What’s the government’s position whether

Yes, ma'am.

First off the United States argues

4

that it is within the, I guess inherent right of a Brig CO to remove

5

clothing.

6

memorialized within the SECNAV.

7

unfortunately these paragraph numbers, it’s Paragraph 5, 5101, sub 3.

It goes to--as a legitimate penalogical interest.

8

MJ:

9

TC[MAJ FEIN]:
MJ:

11

TC[MAJ FEIN]:

12

MJ:

14

First, Your Honor, Paragraph 5,

Hold on.

10

13

That is

Yes, ma'am.

5101 sub 3?
5101 sub 3.

Ma’am, Page 5-2.

Page 5-2, let me find the regulation first, hold on.

The

portion dealing with administrative segregation?
TC[MAJ FEIN]:

No, ma’am.

This is definitions so--Paragraph 3

15

is definitions, A is administrative segregation, B is--go down to

16

Delta, Your Honor.

17

MJ:

18

TC[MAJ FEIN]:

19

I’m looking at D.
Where it talks about the legitimate penalogical

interest.

20

MJ:

All right.

21

TC[MAJ FEIN]:

And the regulation also outlines that it is

22

within the essentially inherent right of a Brig CO for safety and

23

security concerns and other citation there, Your Honor, is under the

5766

09661

1

same--the same portion but it’s under 3(i).

2

rights section, there again it talks about the legitimate penalogical

3

interest for security and safety.

4

legitimate government basis that relates back to security and safety

5

otherwise it would not be authorized.

6
7
8
9

MJ:

So, when you look at the

So, it does have to have a

If that’s correct then why is clothing separately mentioned

in the suicide risk section?
TC[MAJ FEIN]:

Yes, ma'am, because it goes back to when there--

from the testimony that you’ve heard both from--from Chief Warrant

10

Officer Galaviz and Chief Barnes is that when the Brig CO has to make

11

a decision on the best way to provide that security and safety for a

12

detainee, they have to make that decision of how to either escalate

13

the removal or escalate restrictions, take clothing whatever that is.

14

So, for suicide risk once the term suicide risk is ordered that

15

inherently comes from the regulation and through practice a series of

16

different, I guess you would say tasks.

17

clothing, provide blankets, another one is to have someone on watch

18

24 hours a day.

19

when suicide risk is ordered this is kind of what the minimum of what

20

is expected, not required to happen.

21

whether clothing could be taken for other reasons.

22

talk for instance during in-processing a full-body search, scars and

One is to take all the

So what the reg does essentially does define that,

5767

But the reg is also silent on
I mean, it does

09662

1

tattoos, that type of activity but again it goes back to the interest

2

of security and safety.

3

MJ:

If that’s true then why is the proponent of the regulation

4

sending emails to Chief Barnes that if she is taking measures that

5

approach suicide risk without going on suicide risk that’s not how we

6

do business?

7

TC[MAJ FEIN]:

Yes, ma'am, it goes to the Brig CO’s discretion

8

from Chief Galaviz’s own testimony he had not necessarily seen where

9

a Brig CO had ordered someone’s clothing removed but what was the

10

alternative and that’s really what the United States argues what is

11

the focus is what Chief Barnes said.

12

her was a statement made about underwear that could be used.

13

wasn’t going to be taken lightly, jokingly or not, so the only option

14

she had was to remove the underwear or order him on suicide risk

15

which is the most intrusive level of status which the courts have

16

upheld over and over again, the rights that are given to the accused

17

through multiple service regulations.

18

she was forced with that decision.

19

a specific statement or issue or do I just default to a regulation

20

and order suicide risk and have everything else that comes with that

21

meaning 24-hour watch, and--and, well, really that would be the

22

remainder of it and having the underwear removed 24-hours a day?

23

Well, what she did is, she said because there are not as many

5768

I mean what she had in front of
It

So, as Chief Barnes testified

Do I tailor a specific remedy for

09663

1

visitors, excuse me staff individuals and visitors coming through at

2

night time, it is only the guards that are watching at night she

3

thought to minimize or mitigate that risk she would order the

4

underwear removed at night and not order suicide risk.

5
6
7

MJ:

So when PFC Manning was on POI what was he wearing at

night?
TC[MAJ FEIN]:

Ma’am, when he was on POI he was still authorized

8

to wear--to wear his sweats or other clothing.

9

Honor, he--clothing was taken but not the underwear and socks and he

10

No, excuse me, Your

had his two POI blankets.

11

MJ:

What about the glasses?

12

TC[MAJ FEIN]:

Uhm, ma’am, I would have to look again but I

13

think at times the glasses were taken and were not taken depending on

14

which CO and at which time.

15

MJ:

On POI?

16

TC[MAJ FEIN]:

17

MJ:

Okay.

Yes, ma'am.

Let me just go down that road with you a bit.

How

18

much leeway do Brig officials have according to the government to do,

19

I guess, like a suicide light if you will, everything on suicide risk

20

with instead of watching, have a one-on-one in the cell they are

21

watched every 2 minutes.

22

TC[MAJ FEIN]:

23

I mean is there some line there?

Ma’am, the United States will argue that there

should be no--no, there is no line and there should be no line.

5769

09664

1

MJ:

Why?

2

TC[MAJ FEIN]:

Because it really goes back to the testimony

3

that--that the court has heard throughout this entire proceeding and

4

that is that every individual detainee has his own or her own unique

5

circumstances and every provision put in place has to be tailored to

6

that individual.

7

why we are here today.

8

well for that but it has to be tailored and I think the best example

9

actually is when Chief Barnes ordered the underwear to be removed

There are absolute checks in the system and that’s
And there’s other checks in the system as

10

only at nighttime and it was very tailored in that regard.

11

minutes, 2 minutes, it is.

12

point where it is every 30 seconds, it’s essentially 24-hours a day

13

but the 5 minutes you even heard testimony that it meant that--that

14

does not mean that someone’s there all the time watching Private

15

First Class Manning or any other individual that would be on a 5-

16

minute watch.

17

not the same as not having someone walk by every 15 minutes but in a

18

5 minutes, that’s 5 minutes of potential privacy an individual gets

19

where otherwise they wouldn’t have it.

Now I would agree that there’s probably a

It’s not a lot.

20

MJ:

21

TC[MAJ FEIN]:

So, 5

The government is not contending it’s

All right.
Your Honor, again, just to distinguish--go back

22

to Williams briefly I think this also could help eliminate just in

23

Williams the Air Force Regulation required daily reviews by suicide

5770

09665

1

watch status detainees and required the mental health providers to

2

make similar recommendations for removal.

3

regularly by mental health providers after he was ordered into

4

suicide watch.

5

CAAF was reviewing it they were reviewing it under 305(k) and Article

6

13.

7

suicide watch until--until he was removed was a violation of 305(k)

8

because that interest involved if you are put on suicide watch you

9

have to have a medical [sic] health provider visit you that was in

Williams was not seen

The trial court did order Article 13 credit but when

They ultimately held that the 86 days from the start of the

10

the interest of the detainee’s rights and that was something that the

11

confinement facility knew and they did not affect it.

12

timing, again 7 days credit, Your Honor, that would be from 6 August

13

2010 until 11 August 2010, this is outlined in the government’s

14

response, and then the second incident 18 January 2011 until 20

15

January 2011.

16

MJ:

17

TC[MAJ FEIN]:

18

MJ:

19

TC[MAJ FEIN]:

20

MJ:

21

TC[MAJ FEIN]:

So, for

So, going----

So, you are including 18 January the date itself?
No, Your Honor.

So, the 19th and the 20th?
Yes, ma'am.

Okay.
So, ma’am, as far as a road map forward for this

22

oral argument I intend to first brief max custody and then talk about

23

POI status and then talk about communications between Private First

5771

09666

1

Class Manning and the staff and then talk about the Brig official’s

2

decisions at the time and how that--how the court should view that

3

under the law and then a brief conclusion.

4

First, Your Honor, max custody status.

Maximum custody is

5

not unduly rigorous as outlined in numerous cases cited by the

6

prosecution and the defense in briefs.

7

max custody is appropriate for prisoners requiring special,

8

custodial, supervision.

9

regulation, Paragraph 4201.2.a, it’s Page 4-7, but the definition is,

Under the SECNAV Instruction

Prisoners--A quote from the actual

10

“Prisoners requiring special custodial supervision because of the

11

high probability of escape are potential or--excuse me, are

12

potentially dangerous or violent and whose escape would cause concern

13

of a threat to life, property, or national security.”

14

here one issue in defense’s argument and especially with their--what

15

the defense was trying to elicit from witnesses and really couldn’t

16

is this idea of escape.

17

not work in a Brig, and this is from testimony, would think of escape

18

as someone who has committed an overt act or taken preparatory steps

19

not use a reference to a movie about prison escapes, but to have a--

20

to have a hammer to have a chisel or to scope the fence line when you

21

are walking around or literally to flee when given the opportunity.

22

Yes, those are clear-cut overt acts but what was elicited from

23

testimony from the warrant officers is that the confinement--the

To highlight

The, I would say lay person, one who does

5772

09667

1

potential sentence is a very huge factor if not the greatest factor

2

for confinement Brig OICs and decision makers on determining whether

3

escape is a potential.

4

an individual will do to try to avoid having that sentence.

5

MJ:

There is a greater a sentence more potential

What’s the government’s position then on the long litany of

6

case law that says maximum--the potential maximum punishment alone

7

isn’t--can’t suffice for maximum custody?

8

TC[MAJ FEIN]:

9

MJ:

Well, ma’am, the government’s position is, is----

Is it----

10

TC[MAJ FEIN]:

11

MJ:

12

TC[MAJ FEIN]:

With all due respect, Your Honor----

----are those cases involved in-------it’s exactly what you just said.

When that

13

alone is the only reason there is no evidence that’s been elicited

14

from any member of the staff that that is the only factor that was

15

considered.

16

as a litany of factors that every single witness rattled off, Your

17

Honor, and the C and A Board’s considered each week.

18

factors, potential length of sentence was one, poor tolerance for

19

frustration, disruptive behavior, poor home and family conditions,

20

national security risks, risk to self-harm.

21

that that is the only factor.

22

the major factors for risk of escape.

23

overt act or a statement of someone although that would be clear.

Every one consistently said that was a factor but there

The major

I--There is no evidence

But it was a factor and it’s one of

5773

So, it’s not necessarily an

09668

1
2
3

MJ:

Does that or is there a requirement to consider that factor

over time?
TC[MAJ FEIN]:

No, Your Honor.

The United States would contend

4

that it doesn’t.

5

find the case for you.

6

references this, but I know what was previously litigated was there

7

could be an argument that the prosecution, the government, the

8

command’s charging decision would somehow then dictate this because

9

that’s how the charges get on a charge sheet, they get sworn out, and

The charges unfortunately don’t change and I can
I don’t have it with me right now which case

10

then suddenly these conditions go into effect.

But it doesn’t change

11

over time, Your Honor.

12

changes to the contrary.

13

realization, I think Chief Galaviz talked about this, the closer you

14

get to trial the realization that these--that this potential sentence

15

could actually occur increases an escape risk through history.

16

Again, not requiring an overt act.

If it does change, Your Honor, it actually
The closer you get to trial with the

17

Your Honor, may I have a moment?

18

MJ:

Yes, please.

19

[There was a brief pause while trial counsel reviewed notes at

20

counsel table.]

21

TC[MAJ FEIN]:

22

MJ:

23

I will keep going on, Your Honor.

Just, is there any under your argument there that the

potential sentence is a huge factor, are there ever situations where

5774

09669

1

the mitigating factors or the factors opting for MDI can overcome the

2

potential sentence?

3

TC[MAJ FEIN]:

Your Honor, I think absolutely.

That’s within--I

4

think--I know the testimony that the court has heard goes directly to

5

that.

6

psychiatrists, personal observations, et cetera so all that is

7

weighted.

8

about the escape portion and that’s all of it.

9

custody status because escape is one reason to hold someone in max

All the factors are weighted including recommendations from

So, what I would say is we should factor I’m only talking
Not the overall max

10

and we’ll talk POI in a moment, but it is one of many factors and I

11

think it is--it is easy for attorneys to sit here today in front of a

12

court and say I think it is a balancing test but it’s clear that’s

13

what--that’s what a C and A Board does and ultimately the Brig’s CO

14

make the decisions.

15

all these factors and figure out which ones they need to weight more

16

and what we’ve heard here and we’ll talk about in a little bit more

17

is communications one of the greatest factors to really understand.

18

And that applies to risk of escape, risk of self-harm, communications

19

how they figure out how to truly assess this individual not based off

20

of paperwork, not based off third-party input although those are

21

factors but really to understand what this individual is thinking at

22

this time.

23

MJ:

It’s a balancing test and they have to consider

Okay.

5775

09670

1

TC[MAJ FEIN]:

Your Honor, where we left off talking about just

2

clarifying for the court that escape is not just some overt act.

We

3

are talking about max custody in the regulation.

4

regulation on Page 4-10 a decision to assign a detainee to max

5

custody may, may be based on the, and then it’s the list of factors

6

from the actual Secretary of the Navy Regulation, assaultive

7

behavior, disruptive behavior, serious military criminal record

8

convicted or alleged, low tolerance for frustration, poor home

9

conditions or family relationships, a mental evaluation indicating

10

serious neurosis or psychosis, and a potential length of sentence.

11

But the key there, Your Honor, is the following sentence in the

12

regulation.

13

staff that it must be understood the factors mentioned above are only

14

indicators, not iron-clad rules and that’s what gives the Brig COs

15

this discretion for each detainee.

16

for each detainee and it must be based off the circumstance presented

17

to the Brig COs at the time they are making the decision.

18

to that in a moment, Your Honor.

Following in the

Even the regulation highlights for Brig COs and all Brig

But again, it must be tailored

We’ll get

19

So, based off those requirements under the SECNAV

20

Instruction, Your Honor, the original DBS starting the night Private

21

First Class Manning in-processed, the different C and A Boards, both

22

Brig COs from the evidence that has been presented to the court

23

consider those factors.

5776

09671

1

MJ:

2

TC[MAJ FEIN]:

3

MJ:

4

How does the Brig policy that was in effect at the time

TC[MAJ FEIN]:

If I may, ma’am, may I answer that when talking

about POI or now?

7

MJ:

8

TC[MAJ FEIN]:

9

Yes, ma'am.

saying if you are POI you are automatically max play into this?

5
6

Let me ask you a question.

Yes, that’s fine.

Go along with your argument.

I’m sorry.

Yes, ma'am.

But briefly, ma’am, it

plays into it, ma’am, because of the practical application for Brig

10

Soldier for DBSs who would be junior or excuse me mid-range NCOs who

11

have to make these decisions at night it’s going to be a practical

12

fact of what they are considering at the time but it has to be a--

13

United States would argue although this is not in the rules, it

14

should still be an independent assessment and in a moment we will

15

discuss, I think the witnesses all testified was.

16

DBS who made the original determination, this C and A Boards every

17

week after that, both Brig COs considered the factors listed from the

18

reg, and others, personal observations, etcetera, and that’s evidence

19

by.

20

Kuwait transfer documents, they testified they reviewed, original and

21

additional or now the current Charge Sheet, indoctrination paperwork

22

that Private First Class Manning signed in his own handwriting, the

23

Brig forms 4200.1, the CORMIS entry showing counselor notes and the

So the original

So now evidence, Your Honor, what’s before the court.

5777

The

09672

1

summaries the C and A Boards that the 4200.1 was not there for,

2

special handling instructions, weekly progress reports that show the

3

Brig staff leaders knew about the boards, they were done after the

4

fact but at least recounted what had occurred the previous week, DD

5

Form 510s, CHITs, recommendations from mental health providers, even

6

Chief Warrant Officer 5 Galaviz’s memo stating that Chief Averhart

7

should have made a different decision and specifically say--in the

8

interpretation of the word shall and plus, Your Honor, the other

9

evidence for you and at the time before the Brig COs would be the

10

testimony of Sergeant Jordan, Gunny Fuller, Master Sergeant Blenis,

11

Master Sergeant Papakie, Chief Barnes, Chief Averhart, and Chief

12

Galaviz.

13

the rules.

14

responses to the Article 138 complaints, again where Chief Averhart

15

gave an explanation and Chief Barnes.

16

All about how these factors were considered or explaining

MJ:

And then finally, Your Honor, you have before you

What’s the government’s position with respect to the

17

defense argument that if communication was so important why isn’t it

18

in the Article 138 response?

19

TC[MAJ FEIN]:

Ma’am, that’s a great question because actually

20

the United States doesn’t have an answer to that.

21

witnesses.

22

didn’t they allege the same thing.

23

thing?

We didn’t ask the

But the question could be asked to the defense, why
Why didn’t they allege the same

Why didn’t they allege, for instance that Gunny Blenis at the

5778

09673

1

time was--was lying about--about the Brig or the doctors not telling

2

him or the doctors recommending him for POI.

3

unfortunate that we only have this paperwork for a snapshot of time

4

but the driving factors of what the defense was alleging at the time

5

and the response back was based off of what was alleged.

6

Averhart had exactly what was put out by the defense in the 138

7

complaint and had to respond to it.

8

to what was alleged, communication wasn’t used.

9

doesn’t know why they didn’t mention communication but that seems to

10

be the key factor from every single Brig staff, even the training of

11

the junior guards from Tankersly and Cline who testified from there.

12

But it goes back to the 138 complaint is a very useful tool just to

13

glance at, a snapshot of time of what was occurring and what was

14

captured.

15

conduct of the Brig officials and all the way up to, apparently in

16

December 2010 Gunny Blenis not telling at that point in time Private

17

Manning that Captain Hocter was recommending him to be removed.

18

wasn’t there either.

19

what occurred at the time and what was important at the time.

20

I mean, it’s

So, Chief

And that response was tailored
United States

But I go back to what also wasn’t was any unprofessional

So, it’s an odd usage of the 138.

That

It captures

Your Honor, now I would like to focus your attention to POI

21

status.

A question from before, specifically under the SECNAV Reg 4-

22

14, is the first time POI is referenced and that’s where it defines

23

special quarters and talks about special quarters are appropriate for

5779

09674

1

detainees who are required for prevention of injury to themselves or

2

others.

3

administrative ADSEG, is defined as involuntary or voluntary

4

separation for specific cause of select prisoners from the general

5

prisoner population, authorized movement of a prisoner to special

6

quarters and their absence and for the purposes of control,

7

preserving order, prevention of injury to themselves or others.

8

that is where the prevention of injury is at least memorialized in

9

the SECNAV Reg.

Further, under administrative segregation on Page 5-2,

So

The SECNAV Reg vests the authority in the Brig COs

10

to place detainees in administrative segregation or special quarters.

11

The Brig COs through their own SOP established the different

12

categories that a detainee may be placed in while housed in special

13

quarters.

14
15

MJ:

What is the difference between administrative segregation

and special quarters?

16

TC[MAJ FEIN]:

Ma’am, special quarters is the location.

17

the housing berthing area of where one his housed.

18

segregation is a status.

19

MJ:

20

custody?

21
22
23

It is

Administrative

So could one be in administrative segregation while on MDI

TC[MAJ FEIN]:

Yes, ma'am.

Actually, ma’am, may I have a

moment?
MJ:

Yes.

5780

09675

1

TC[MAJ FEIN]:

I’m looking at the reg on that.

Yes, ma'am.

So,

2

ma’am, the Brig COs through their SOP establish within the rules of

3

the SECNAV and then of course later marks the BUPER but the SOP that

4

was operating at the time was just the SECNAV.

5

different categories that a detainee may be placed in while housed in

6

while housed in special quarters.

7

the time states and the testimony you heard from the different Brig

8

staff show that through practice once the C and A Board met, they

9

made a recommendation on custody classification and category of

10

They establish

The SOP that was in operation at

assignment in special quarters.

11

MJ:

So, I guess I’ll ask my question again.

12

TC[MAJ FEIN]:

13

MJ:

Yes, ma'am.

What does Paragraph E, Prevention of Injury, those

14

prisoners who have an indication that they intent or are

15

contemplating harming themselves or others will be assigned maximum

16

custody.

17

TC[MAJ FEIN]:

Yes, ma'am, both OICs testified that there was a

18

basis for max custody of PFC--based off of PFC Manning’s individual

19

factors and they also testified that POI as well.

20

contention is the reason that was first off none of the Brig

21

officials could understand why historically that provision was in

22

there but after talking to them, the United States contention is, is

23

that in practice once someone is in POI at the Quantico Brig and

5781

United States

09676

1

those conditions of pretrial confinement, not even a Level 1

2

facility, that in--in--in I guess practice or application you are

3

essentially in max custody.

4

Quarters 1, and you are going to be in maximum custody.

5

Your Honor----

6

MJ:

7

TC[MAJ FEIN]:

8

MJ:

9

You are going to be in SQ1, Special
But the key,

Well, let me just ask a question there.
Yes, ma'am.

So the Brig officials said once you are in POI you are

essentially in maximum custody.

What is the relationship, I mean I

10

understand you are in POI, you are going to be--well everybody was in

11

special quarters at Quantico.

12

TC[MAJ FEIN]:

13

MJ:

14

TC[MAJ FEIN]:

15

MJ:

Yes, ma'am.

You are going to be moved closer to the guard house.
Yes, ma'am.

And for constant observation.

But maximum custody also

16

carries with it the lock-down requirements and the movement in hand

17

and leg and belt restraints.

18

to have those requirements?

19

TC[MAJ FEIN]:

That’s--Why would somebody in POI have

Ma’am, I think what is clear is from especially

20

the memorandum that came from Chief Galaviz to correct it after the

21

fact although it was a source of contention that at least required

22

Headquarters, Marine Corps to push out guidance is that it was

23

thought that the two should be related.

5782

But, Your Honor, just to

09677

1

correct, when you first started a question, the testimony that was

2

presented to the court was that there was independent determinations

3

made on the custody classification and the category of status

4

category.

5

that.

6

the SECNAV, the SECNAV is silent on prevention of injury but they

7

reviewed both and made the determination.

8

ever determine or make a decision that POI should be MDI.

9

in practice either.

So they--The factors overlap there is no question about

The factors are essentially the same factors, they come from

But both Brig COs did not
It wasn’t

I mean the United States contend that it could

10

have occurred but it wasn’t what the practice was and it’s clear in

11

the SOP the way it is written that that wasn’t practiced either.

12

MJ:

So, if I understand the government’s position correctly

13

although there was a presumption that detainees on prevention of

14

injury status would be maximum custody.

15

and A Board weekly that reviewed that maximum custody status without

16

that presumption?

17

TC[MAJ FEIN]:

There was an independent C

Yes, ma'am, from the evidence that’s been

18

presented to the court, yes, they made the determination separately

19

even though it is on the same form, understanding that and even

20

though the classification--even though the documents, the special

21

handling instructions even say on the top of them, prevention of

22

injury, suicide risk, and then custody level max.

23

document has both on it, it was determined on both.

5783

So even the same
I mean even the

09678

1

form you have to write in two special areas it was two separate

2

determinations after the same time and based off of independent

3

factors, although the factors were very similar.

4

MJ:

All right.

5

TC[MAJ FEIN]:

Proceed.
So, ma’am, the C and A Board was required to

6

review the same factors for custody classification when determining

7

which special quarters category to assign PFC Manning in which they

8

recommended POI and the Brig COs said the POI--ordered POI status and

9

the--those categories, again not to go through them, but the SECNAV

10

categories they reviewed.

11

considered those factors and others and that’s evidence by the same

12

evidence already presented, Your Honor, from all the documentation to

13

the testimony, CORMIS entries, all the way up to----

14

MJ:

15

TC[MAJ FEIN]:

16

MJ:

The C and A Boards and both Brig COs

Let me ask you a question on that.
Yes, ma'am.

What is the--What if any required documentation is there

17

for C and A Board?

18

TC[MAJ FEIN]:

Yes, ma'am, the results of the Board must be

19

captured, and let me get the exact language from my table, Your

20

Honor.

Your Honor, as I look for the exact----

21

MJ:

Why don’t we do this.

22

TC[MAJ FEIN]:

Yes, ma'am.

5784

09679

1
2

MJ:

Why don’t we have you continue on with your argument and

your colleagues look and find the----

3

TC[MAJ FEIN]:

4

MJ:

5

TC[MAJ FEIN]:

Yes, ma'am.

----regulatory paragraph.
Ma’am, once we get the answer the key on that is,

6

is that from the testimony you heard and we’ll get the actual

7

regulation is that the result of the initial boards were documented

8

on the Brig Forms 4200s.

9

documented originally before Chief Barnes showed up under Chief

Any changes to the overall status were

10

Averhart.

11

consistent with the forms that were present.

12

entries the results of the boards and any other details from the

13

boards were captured, why I think from what Master Sergeant Papakie

14

said or Chief--or Master Sergeant Blenis for all-time in CORMIS were

15

captured.

16
17

MJ:

So changes, otherwise the form was not used which is
However, in the CORMIS

Is that the CORMIS record, is that, the CORMIS records that

you are referring to the counseling notes from the----

18

TC[MAJ FEIN]:

19

MJ:

20

TC[MAJ FEIN]:

Yes, ma'am.

----Gunny Sergeant Blenis?
Yes, ma'am.

So, what Gunny Sergeant Blenis would

21

do in his counselor notes is, he would essentially--he would put--he

22

would summarize the Board findings and what the Board considered in

23

those notes.

5785

09680

1
2
3
4
5
6
7

MJ:

So there is no separate CORMIS entries for the boards

themselves?
TC[MAJ FEIN]:

No, Your Honor.

No, Your Honor, and the United

States---MJ:

Should there be?

I mean is there any requirement that

there be?
TC[MAJ FEIN]:

The understanding from the testimony, Your Honor,

8

is that CORMIS has an option to put notes in by typing, evidence by

9

the Word document printed out as a draft that is later copied and

10

pasted into CORMIS, and it also has the ability to upload formal

11

documentation.

12

testimony it was explained to the court that now they are moving to

13

an all digital system so once you have a document, you scan it and

14

upload it to CORMIS.

15

but it has not happened in this case, is once the Board signs off on

16

a Brig Form 4200 that would then be uploaded but at the time it was

17

not a requirement.

18

change to classification or recommendation, but they did at least--

19

the counselor did at least type in the results of the Board.

20

MJ:

So, I think from the testimony, or I know from the

So, what I would expect to see in the future

It didn’t fill out the form when there wasn’t a

What is the government’s position with respect to the

21

testimony by CW5 Galaviz that there was an irregularity in the Board

22

procedures with the counselor being on the Board?

5786

09681

1

TC[MAJ FEIN]:

A few points on that, Your Honor.

Unfortunately-

2

-Well first and foremost Chief Galaviz was not at the Brig at the

3

time was not necessarily sitting where you had all the Brig staff

4

knowing the full complement of how many 22 staff members at the Brig

5

or the other composition.

6

from having the actual counselor on the--on the Board itself.

7

you read the SECNAV, Your Honor, when it explains and we’ll have this

8

too once the provision is found, the C and A Board is required to

9

have the programs supervisor and the counselor or a counselor create

Second, there is no prohibition from it,
When

10

a document and program supervisor.

I think what happened in this

11

case is because the decision was made up front to give the most

12

senior counselor, the most experienced counsel aside from Private

13

First Class Manning, you heard from testimony then Gunny Blenis had

14

no other patient--had no other detainees, had no other confines that

15

he was a counselor for.

16

because he was, he was put in the position of--of also being the

17

programs chief and the counselor.

18

documentation to be created or he created it himself.

19

there is no evidence, Your Honor, of any type of other than

20

hypothetical, any type of influence by Master Sergeant Blenis or even

21

Gunny Fuller when he was the senior official.

22

wasn’t even--wasn’t--who reports back to Fort Leavenworth or Army

23

Corrections Command, who even answered he was not influenced.

He was the NCOIC of the section.

5787

So,

So, yes, he either directed the
But still,

We had an Army NCO who

He

09682

1

took his job seriously.

2

be construed as being viewed this way, the answer from everyone was

3

absolutely or yes to that effect.

4

sure, but every one testified that it did not happen, that there was

5

any influence.

6

it would be the--the--the--Private First Class Manning’s counselor

7

being the one influencing.

8

Private First Class Manning and any interactions they have with him

9

it would be Master Sergeant Blenis doing that.

10
11

When asked by the defense, could it possibly

Because when asked that question,

And at most, Your Honor, if there was any influence

So, if anyone were to know more about

Your Honor, assuming this is the exact provision we are
looking for, Paragraph 6303.2, this is----

12

MJ:

What page is that on?

13

TC[MAJ FEIN]:

14

MJ:

15

TC[MAJ FEIN]:

16

MJ: And I’m sorry, you said what page?

17

TC[MAJ FEIN]:

18

MJ:

19

TC[MAJ FEIN]:

Page 6-6.

6303.2?
6303.2.

6-6, Your Honor, of the SECNAV Instruction.

Okay, give me a minute.

All right.

So, the middle of the page, Your Honor, Paragraph

20

2, the middle of the paragraph, it starts with, “Prisoners may appear

21

before the board to discuss their program or changes thereto if

22

considered necessary.

23

signed by the OIC, Brig O, or CPOIC as the approving officers.”

Board’s recommendation shall be recorded and

5788

And

09683

1

then, “when circumstances indicate a necessity for immediate action

2

may make changes”, I guess, “without the board.”

3

requirements, Your Honor, are that they be recorded and in some form

4

signed by the leader making the ultimate decision.

5

Chief Galaviz did testify, Your Honor, that to the best of his

6

recollection there was a DoD Form to capture the Brig’s vote.

7

is not the case, I think he’s, unfortunately has been doing policy

8

for a while.

9

MJ:

So, the minimum

And, although

That

Well, just so the parties are on notice and the court has

10

looked at the DoD Instructions in this and has not found a DD 2711

11

for C and A Boards under the--under the DoD Instruction if I’m

12

incorrect, you all can do an independent review and show me that form

13

I’m happy to look at it.

14

TC[MAJ FEIN]:

Yes, ma'am.

So, ma’am, now to transition to

15

communication.

16

First Class Manning, now you heard testimony----

Communication between the Brig staff and Private

17

MJ:

Now, before you----

18

TC[MAJ FEIN]:

19

MJ:

Yes, ma'am.

Before you get there, what is the government’s position

20

with respect to the lack of communication, I guess is the best way to

21

put it, between Doctor Hocter and the C and A Board, during Doctor

22

Hocter’s tenure?

5789

09684

1

TC[MAJ FEIN]:

Yes, ma'am.

Ma’am, what’s clear from the

2

evidence both from Doctor Hocter’s testimony and the Brig staff is

3

the communication at the Brig was not ideal between Doctor Hocter and

4

the Brig staff.

5

duty of filling out a form and putting, sometimes five words on it,

6

all the way to I think two iterations full paragraphs.

7

the testimony shows, Your Honor, is, is that Doctor Hocter, first off

8

Private First Class Manning never went without mental health care and

9

when Doctor Hocter showed up and met with Private First Class

Doctor Hocter did perform the minimum amount of his

I think--What

10

Manning, he did testify that he met with Brig officials but not

11

necessarily which ones, the senior Brig officials don’t necessarily

12

remember meeting with him.

13

tried to find him and they couldn’t.

14

there, Your Honor, is that there was definitely a communication

15

break-down but the information was still being relayed.

16

recommendations to the Brig officer, to the C and A Boards and from

17

the testimony they still considered it, and they made their decisions

18

based off those recommendations.

19

more information than just the one line or the box checked and they

20

attempted to get that information and for whatever reason there was a

21

disconnect.

22

that the recommendation was received, was reviewed, and taken into

23

consideration along with all the other factors.

In fact they testified that they always
I think the important part

The ultimate

Now, yes, the Brig staff did want

But the recommendation was given and the testimony shows

5790

09685

1

MJ:

Is it the government’s position that the POI status,

2

prevention of injury status, that the Brig officials, the C and A

3

Board, and Chief Averhart were considering at the time, was that at

4

least in whole or in part because of what these officials believed to

5

have been a mental health condition of PFC Manning?

6

TC[MAJ FEIN]:

7

MJ:

Could you restate the question?

Was the prevention of injury status that was recommended

8

from August until I guess until January 18th, in whole or in part a

9

result or--a result of the Brig officials belief that PFC Manning was

10
11

suffering from mental health conditions requiring POI status?
TC[MAJ FEIN]:

Ma’am, I think--well from the testimony, Your

12

Honor, the United States believes that that was a large factor but it

13

was one of many factors for POI, same as max custody.

14

that you heard was they considered event the potential length of

15

sentence, poor tolerance of frustration, poor home and family

16

conditions, including risk to self-harm.

17

question from the testimony that, you know, Private First Class

18

Manning’s original statement and their own--in the Brig’s in-

19

processing documents on Page 5 of 5 where it says, “Have you ever

20

been hospitalized in a mental institution?

21

considered suicide?

22

“Always planning never acting.”

23

something because it does say, “Yes, explain”, and there was an

Yes.”

The testimony

I mean, there is no

No.

Have you ever

And in his own handwriting he writes,
And even if he was ordered to write

5791

09686

1

expectation, anything could have been written.

2

“always planning, never acting” and also when you are in Kuwait

3

writing, I think it was words to the effect of considering it,

4

haven’t done it yet, words to that effect.

5

twice.

6

Your Honor.

7

consideration for POI.

8
9

The Brig knows that.

MJ:

But when you write,

So, you have done it

That is a serious concern of theirs,

That is considered for POI but not the only

Does that kind of concern from the Brig officials ever have

a, I mean, at some point is there ever a length of time that goes by

10

with no additional, with good conduct and nothing demonstrated by a

11

person where that determination becomes an abuse of discretion in the

12

government’s view?

13

is no mental health condition in justifying it?

14

TC[MAJ FEIN]:

When you have psychiatric officials saying there

I will answer this very specifically and provide

15

an explanation.

16

Your Honor.

17

behavior and you have someone who is acting like every other

18

detainee, and you have a mental health provider who’s making these

19

recommendation and no other factors, then yes, Your Honor, there

20

probably is some point to where a decision should be made.

21

either that they abused their discretion or at least, at a minimum

22

that at some point they should have sought another avenue or reached

23

out to get a different type of consult or done something different.

With the way the court just asked the question, yes,

If there is nothing else and all you have is good

5792

Maybe

09687

1

But those aren’t the facts before the court.

The facts before the

2

court is there is a pattern, I’ll get to this in a little bit, Your

3

Honor, but for Private First Class Manning, there is a pattern of

4

behavior and it’s not just misbehavior, but there is a pattern that

5

started before he ever got to Kuwait, once at Kuwait and the Brig

6

officials only knew what they had in front of them which is someone

7

who is not like others.

8

tried to essentially figure it out to the best of their ability on a

9

daily basis.

They knew something was different and they

From reports that were going up, monitoring even all

10

the way up until the testimony you heard about removing individuals

11

from mail, how that could be a factor.

12

aren’t the facts here, Your Honor, and I think we’ll explore that a

13

little bit more in a moment.

14

MJ:

15

CDC[MR. COOMBS]:

16

All right.

Yes, Mr. Coombs?
Your Honor, I apologize.

Could we have a

brief comfort break?

17

MJ:

18

TC[MAJ FEIN]:

19

MJ:

20

CDC[MR. COOMBS]:

21

MJ:

22

So, again, yes, but those

All right.

Any objection?
No, ma’am.

How brief is brief?

All right.

10 minutes.
Court is in recess.

[The Article 39(a) session recessed at 1341, 11 December 2012.]

5793

09688

1

[The Article 39(a) session was called to order at 1354, 11 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

TC[MAJ FEIN]:

Major Fein?

Yes, ma'am.

Ma’am, we left off with me

7

transitioning to talk about communication between the Brig staff and

8

Private First Class Manning.

9

every Brig staff member that communication is key for a confine for

Your Honor, you heard testimony from

10

the staff to assess the detainee’s wellbeing.

We also heard

11

testimony from Private First Class Manning that he spoke with

12

visitors over the weekend and during the holidays and you have the

13

recordings to hear if you so choose that conversations between all

14

parties.

15

including Master Sergeant Blenis, his counselor, that Private First

16

Class Manning consistently did not communicate with them.

17

an exception and that was towards February timeframe when it came to

18

March Madness in basketball.

19

didn’t hear also, Your Honor, is testimony from Private First Class

20

Manning to explain why he did or did not explain some of his odd

21

behaviors that the Brig officials testified about and knew about at

22

the time they were occurring.

Yet you also heard testimony from every staff member

There is

Even--You even heard--Or what you

In fact at no point has there ever

5794

09689

1

been testimony that the odd behaviors were ever explained to the Brig

2

officials while----

3

MJ:

4

TC[MAJ FEIN]:

5
6

Did they ever ask him?

not, Your Honor.
MJ:

Then how does he know he has to explain the odd behaviors

7

if he’s not asked?

8

TC[MAJ FEIN]:

9

There’s no evidence whether they asked him or

Yes, ma'am, but after the 138 complaint was--was

submitted and responded to this is information that was documented

10

and provided to the defense and to the accused and yet still never an

11

explanation when given an opportunity to explain.

12

clear from the evidence that has been presented over the last 2 weeks

13

and the defense’s argument even today that Private First Class

14

Manning chose not to talk with the confinement officials for a

15

majority of the time.

16

to conjecture but there were not conversations to the level or like a

17

modicum amount that would allow the Brig officials to truly assess

18

Private First Class Manning.

19

by and saying, hi, and seeing what type of response they would get

20

back as you heard that testimony to sitting down with actually a

21

Gunny Blenis to talk about any subject he kept trying to understand

22

from chess, but chess was not what Private First Class Manning

23

preferred, to recommending Sudoku for intellectual stimulation, any

Your Honor, it is

The reason why the United States isn’t going

And that could range just from walking

5795

09690

1

of these conversations what you heard was there was very few little--

2

or very few responses back during these sessions.

3

MJ:

In the government’s view, did then Gunnery Sergeant Blenis

4

or Chief Averhart or Master Sergeant Papakie ever talk to PFC Manning

5

and say, look, you’ve got to start communicating more about your

6

feelings and what you are feeling or not feeling if you want to make

7

a change in your status?

8

TC[MAJ FEIN]:

9

Ma’am, there’s no evidence of that overt

statement was ever relayed directly to Private First Class Manning

10

but what is--what is clear is they always tried to elicit it from

11

him.

12

ask directly, why are you not talking to us, but the evidence, Your

13

Honor, shows when given the opportunity in a formal environment to

14

talk, very little to any conversation occurred and that was during

15

the 21 January C and A Board, the back and forth and then it stopped.

16

Every time someone tried to engage him it just--from the Brig,

17

Private First Class Manning did not necessarily respond and

18

continually respond to it.

19

The United States could guess--doesn’t know why they did not

MJ:

What’s the government’s position to the defense argument

20

that there was no follow-up once the--on the 21 January when the

21

initial statement was that--the original statement that PFC Manning

22

made, always planning, never acting, may have been false and then the

23

follow-up question, well, if that was false what assurances do we

5796

09691

1

have or something to that effect that the current statements you are

2

making about not being suicidal are also false?

3

TC[MAJ FEIN]:

Yes, ma'am.

Without being there at the time

4

the United States is not going to guess on why they didn’t but they

5

asked the questions.

6

when they felt they received a--the ultimate responses they were

7

going to get.

8

he gave very short responses from Private First Class Manning.

9

would be--He would not elaborate and that seems to exactly what

They felt--They stopped the line of questioning

The history, as you have heard from the testimony was
It

10

played out even from Private Manning’s testimony about the situation

11

or about the meeting in the Board.

12

it’s reasonable to necessarily infer that they should have asked one,

13

ten, thirty more questions to him when all they have been trying to

14

do is ask questions.

15

Honor, the evidence presented to the court, he even had a rehearsed

16

answer he could have given from 3 days prior.

17

That was on 18 January, he talked to Master Sergeant Blenis and

18

discussed the news, discussed his statement he wrote on the

19

indoctrination paperwork, that was 3 days prior.

20

Board apparently or allegedly flustered deciding not to talk about

21

it.

22

they received the answers not that they were necessarily looking for,

23

they were asking him to explain, but once he gave the answers that

So, I don’t think it would be--

They finally ask him about it and even, Your

That’s on the video.

So, now in the

So, once the--The government would just argue that once--once

5797

09692

1

they came to know as being the normal there would be no reason to ask

2

more questions.

3

MJ:

All right.

4

TC[MAJ FEIN]:

So, Your Honor, going back, it is unclear to the

5

government because the government is not in a position to know why or

6

how the defense, Private Manning made a decision to vocalize with the

7

Brig officials throughout the Fall.

8

argument today from the defense that he was being advised--Private

9

Manning was being advised to be patient and be there, that is

What you did hear during

10

consistent with the evidence that the Brig officials saw which was he

11

wasn’t communicating, that he seemed to being patient and there

12

wasn’t much during that time as being communicated to the Brig.

13

what’s important, Your Honor, of courses are timelines, you know,

14

from the beginning of August until technically 29 July 2010, but the

15

beginning of August until the December time-frame, that--really

16

December 10th when Chief Averhart finally increased the recreation

17

hall after Captain Hocter made that recommendation, followed his

18

recommendation, during that time, the testimony you heard is there’s

19

been very little to no communication by Private First Class Manning.

20

He was being patient.

21

the government does not know, but based off of the testimony there

22

was very little communication.

So,

He was--He was either following the advice,

5798

09693

1
2

MJ:

Will you be talking about the exercise time down later on

in your argument?

3

TC[MAJ FEIN]:

4

MJ:

I can, Your Honor, now.

What is the--I mean it appears the facts are clear, there

5

was 20 minutes of sunshine call from PFC Manning’s arrival until

6

December 9th.

7

required for recreational sunshine call?

What is the government’s understanding of what is

8

TC[MAJ FEIN]:

9

MJ:

10

One moment, Your Honor.

Or is anything required?

TC[MAJ FEIN]:

Your Honor, the United States does concede it is

11

confusing according to the regulations.

12

confusing, Your Honor, is there is recreation call, there is--there

13

is--there is sunshine time, there’s recreation, there’s exercise

14

activity, but what the regulation establishes is that recreation

15

includes, recreation itself includes physical and non-physical

16

activities.

17
18
19

MJ:

Great.

But, what--what is not so

What I am looking at is what is the requirement for

physical activities if there is any?
TC[MAJ FEIN]:

Your Honor, the United States contend that there

20

is not one under the status that Private First Class Manning was in

21

at the time.

22
23

MJ:

How does the--I understand it’s under disciplinary

segregation, but it talks about 1 hour is required.

5799

Which kind of

09694

1

leads to the unusual requirement to have someone under disciplinary

2

segregation required to have an hour of physical exercise, but

3

everybody else not?

4

TC[MAJ FEIN]:

Yes, ma'am.

Ma’am, the United States would

5

contend that disciplinary segregation in the regulation is written as

6

a punishment.

7

facilities to place someone in that status so it has written in an

8

affirmative requirement.

9

must afford them the minimum of this.

That is a--That allows the Brig, it allows Navy

So, even if you punish an individual you
But even under the--Even the

10

NAV Regulation, Your Honor, or NAV Provision just like in the rest of

11

the regulation it is still tailored to individual concerns or

12

individual detainees and the application of that.

13

back to the term of recreation, according to the regulation is much

14

broader then what was being applied, the terminology alone, not hat

15

was actually being given to Private First Class Manning.

16

instance when you go to the first handling letter after the initial--

17

the first one signed by Chief Averhart, 11 August, Chief Averhart

18

ordered the 20 minutes of sunshine call will happen in the special

19

quarters rec area.

20

right there is more than 1 hour of recreation, physical and non-

21

physical activities.

22
23

MJ:

That’s why we go

So, for

Also, said 1 hour of correspondence time, so

So, correspondence time in the government’s view is

considered recreation?

5800

09695

1

TC[MAJ FEIN]:

2

MJ:

3

TC[MAJ FEIN]:

4

MJ:

5

TC[MAJ FEIN]:

6

titled Recreation.

Where in the SECNAV?
May I have a moment, Your Honor?

Yes.

7

MJ:

8

TC[MAJ FEIN]:

9

Yes, Your Honor, according to the SECNAV.

Your Honor, Page 615, 6-15, Paragraph 6314, it’s

6-15?
Yes, ma'am.

Includes television, library usage

or book reading, it does also include weight lifting equipment or

10

organized athletics, movies.

11

Your Honor, is that when the Brig COs Chief Averhart ordered

12

prevention of injury in max status, custody level, excuse me, he put

13

a special instruction in place to ensure that his--that his--his

14

supervisors, his guards ensured that Private First Manning did

15

receive this 20 minutes of sunshine call, included within or in

16

excess of the minimum requirements of recreation.

17

MJ:

So, the United States would contend,

Major Fein, correct me if I’m wrong, there was some

18

testimony that the SECNAV Instruction was geared primarily for post-

19

trial prisoners versus pretrial detainees because I’m noticing after

20

the recreation section there, there is a PT section that----

21

TC[MAJ FEIN]:

22

MJ:

23

this facility?

Yes, ma'am.

----makes PT mandatory and apparently that wasn’t done in

5801

09696

1

TC[MAJ FEIN]:

No, ma’am, that’s precisely correct.

The

2

testimony was that the reg is written really for like a Level 1 or

3

Level 2 facility and I know the BUPERS that further interprets it

4

actually lays out the level--the levels of the facilities and are

5

kind of silent on pretrial and unfortunately--well the United States

6

would contend because typically pretrial’s are only there for 30 to

7

90 days and the regulation is somewhat silent on it.

8

COs would have to adapt from those rules and make their decision.

9

such as 20 minutes of sunshine call plus the 1 hour, if you move

So, the Brig
So

10

forward, Your Honor, although--going to October 20 minutes of

11

sunshine time, 1 hour correspondence time and then started having TV

12

privileges so on and so forth in addition.

13

MJ:

What is the government’s position with respect to the

14

Brig’s own policy of 1 hour physical recreation, let me find it,

15

Paragraph 2007 on Page 18?

16

TC[MAJ FEIN]:

Yes, ma'am, well first as the court reads that

17

Paragraph 2007, sub 1, first it is within the plan of the day which

18

is--as you heard testimony the plan of the day is for every confinee

19

but has to be tailored per individual depending on their special

20

handling instructions.

21

would be the same as a--a company or battalion training schedule for

22

the next 6 weeks out.

So, I think that is the general requirement

Here’s what’s planned but as the day comes

5802

09697

1

different events could occur.

2

individual’s special handling instructions.

3

MJ:

4

TC[MAJ FEIN]:

Here it would be based off of each

Well, it says 1 hour, it doesn’t say 20 minutes?
No, ma’am.

Or yes, ma’am, that is correct.

That

5

saying, Your Honor, it says specifically it says, “within the plan of

6

the day”.

7

MJ:

1 hour of exercise---To ensure that prisoners receive at least 1 hour of

8

exercise in accordance with the plan of the day.

9

they don’t ensure that they get an hour of exercise or they do?

10

TC[MAJ FEIN]:

So, that means that

No, ma’am, that is what the plan of the day

11

incorporates 1 hour of exercise time for the essentially general

12

population detainees.

13

handling instructions then it would be altered from there.

14

really focused on the plan of the day or what all other general

15

population do--would perform.

16

time, all the other detainees that are not on max custody, it would

17

be general population although in special quarters, would all be

18

brought out together and would get 1 hour of--of exercise in

19

accordance with the plan of the day.

20

special quarters and under a special custody or status, then theirs

21

would be executed according to the classification, or the handling

22

instruction.

But if an individual detainee has special
This is

So, when it comes to Quantico, at the

5803

And then anyone who is in

09698

1

MJ:

So, my understanding of your testimony the hour of exercise

2

is for the general population for--the plan of the day should

3

incorporate an hour of exercise for the general population?

4

TC[MAJ FEIN]:

5

MJ:

6

TC[MAJ FEIN]:

Yes, ma'am.

And that does not include maximum custody prisoners?
It did not include--No, ma’am, because it doesn’t

7

say that.

8

detainee would have their special handling instructions and that is

9

what would regulate in that term.

10

MJ:

The United States just contends that each individual

Paragraph 2 talks about a separate area for people who

11

cannot participate in the general population recreation call due to

12

custody or current handling requirements.

13

TC[MAJ FEIN]:

14

MJ:

Yes, ma'am.

And that they shall receive recreation call in accordance

15

with the plan of the day and their handling letter.

16

paragraph is silent with respect to amount of exercise.

17

government’s view?

18

TC[MAJ FEIN]:

Now, this
What’s the

Well, ma’am, that’s actually where drawing the

19

handling letter from is that handling letter itself absent it

20

violating some other regulation an actual, you know, regulatory

21

requirement, is what governs what a detainee does or does not do

22

throughout the day.

23

general population unless there is some exception by handling letter.

The plan of the day is the standard for the

5804

09699

1

And that’s where--So, this language in Paragraph 2 says, plan of the

2

day, and their handling letter.

3

MJ:

Is there any case that the government is aware of that has

4

gone through the military, any Article 13 case addressing amount of

5

exercise time?

6

TC[MAJ FEIN]:

7

MJ:

8

TC[MAJ FEIN]:

9

No, ma’am.

Go ahead and proceed.
Ma’am, the United States would like to now

discuss the Brig official’s decision making.

The courts defer to

10

confinement officials and review their actions for abusive discretion

11

Adcock.

12

commanding officers to make classification decisions based off the

13

facts known to those Brig officers at the time, not--not future facts

14

or--or allegations.

15

before interpreting the predecessor to the current SECNAV.

16

detainee cannot dictate the terms of his confinement because it is

17

confinement is within the discretion of the confinement authorities.

18

Again, McCarthy.

19

confinement authorities by arguing a less restrictive confinement

20

would have necessarily achieved the same government interest.

21

Because again, it is viewed at the time through the eyes of the Brig

22

COs.

23

based on the information at the time the Brig officials such as

By necessity Navy Instructions vest discretion in Brig

That’s McCarthy and actually McCarthy has stated
A

The detainee cannot question the discretion of the

So, specifically in McCarthy, Your Honor, the court held that

5805

09700

1

knowledge of the charges that were pending, and their implications

2

for sentencing, breach of prior protection--restriction or protective

3

orders, allegations of threats or possible flight described in the

4

commander’s memo--confinement memo, that the Brig authorities placed

5

McCarthy in max custody.

6

“subsequent good behavior does not serve to revise the facts as they

7

exist and were known to the Brig authorities at the time of

8

classification”.

9

McCarthy, McCarthy himself complained throughout his confinement of

CAAF specifically held that McCarthy’s

Additionally, CAAF even noted at the time of

10

his conditions to his jailers and he did it either personally or

11

through his counsel throughout his confinement.

12

the Brig commanding officer did not abuse their discretion by

13

determining that the accused should remain in max custody and POI

14

status based off the factors listed in the Navy Instruction and facts

15

known to them at the time of making their decisions.

16

MJ:

17

TC[MAJ FEIN]:

18

MJ:

19

TC[MAJ FEIN]:

Here, Your Honor,

Talk to me about McCarthy.
Yes, ma'am.

How long was--What are the facts of that case?
Yes, ma'am.

Your Honor, McCarthy was placed in

20

max custody at first the underlining offenses are not related at all

21

to this case.

22

acts with a minor.

23

for max custody--I’m sorry, Your Honor.

Although it was serious offenses including indecent
He was placed in max custody and the total time

5806

09701

1

MJ:

2

TC[MAJ FEIN]:

3

It’s all right.

MJ:

5

TC[MAJ FEIN]:

6

can’t answer that.
MJ:

8

TC[MAJ FEIN]:

11
12
13

So, a little under 30 days, Your Honor.

So was the initial custody determination ever reviewed?

7

10

Your Honor, he was in max custody from January

31st to February 22nd 1994.

4

9

I asked you a question out of the blue.

Your Honor, I don’t think that ever--I mean I
It never came up in the appellate case.

All right.

Let’s move on.
Yes, ma'am.

I’ve got McCarthy.

Well, ma’am, was there a question,

there could just be another case that we could, if there was a
specific question.
MJ:

No, that is fine.

In McCarthy the decision was made by the

Brig officer in absence of any C and A Board at all.
TC[MAJ FEIN]:

Yes, ma'am, and again, I mean that is one factor

14

and the point again no--no complaints--I’m sorry, he did continually

15

complain to them and the court--the trial court considered all those

16

factors and held that there was not Article 13 violation.

17

MJ:

Okay.

Proceed.

18

TC[MAJ FEIN]:

Now, Your Honor, if--if--the reason I ask the

19

previous question, Your Honor, is because in Crawford the pretrial

20

confine was held for 9 months on max custody.

21

I mean, like--it--so Crawford is another good case, Your Honor, more

22

analogize to this case, these facts, you know, visits by family

23

members, et cetera meant that the individual even though on max

5807

And specifically held,

09702

1

custody was not in isolation probably the most analogies substantial

2

evidence--excuse me, subsequent behavior does not play into the Brig

3

official’s decision.

4

reasoning.

5

Private First Class Manning’s reported respectful and courteous

6

behavior at the JRCF is consideration for reviewing confinement

7

staff’s decisions.

8

McCarthy, Crawford that that should not even be a relevant

9

consideration by this court to determine whether the Brig officials

10

They incorporate in the McCarthy line of

So, Your Honor, the defense counsel raised the issue of

On one hand the government would argue under

abused their discretion.

11

MJ:

Well, let me ask you a question on that then.

When the

12

Brig officials are meeting week, after week, after week is the

13

government telling me that they are not to consider the behavior of

14

the accused?

15

TC[MAJ FEIN]:

No, ma’am, that is not it.

I’m talking about

16

future behavior should not be considered by this court today to judge

17

the behavior or the decisions of the Brig COs when they were making

18

it.

19

of the Brig COs at the time they were making the decision.

The court should be--should be--should be standing in the shoes

20

MJ:

I understand.

21

TC[MAJ FEIN]:

So, as previously stated, on one hand the defense

22

wants to argue because the JRCF and because how Private First Class

23

Manning according to--according to Captain Casamatta, his testimony,

5808

09703

1

First Sergeant Williams, and even Private Manning’s testimony once he

2

got to the JRCF it was a completely different experience that was

3

much--it appears to be much more positive and even Colonel Hilton

4

testifying but what is odd is when all that was true, then Private

5

First Class Manning attacked a Soldier.

6

wants you to consider that to determine whether the determinations of

7

the Brig COs was reasonable or not.

8

that as a consideration then the United States offers that other--in

9

addition to that it should be that once the--once the conditions were

10

relaxed, Private First Class Manning then had the opportunity and did

11

it attacked a Soldier.

12

we heard much testimony about but it was one of the original concerns

13

was an Article 128 violation.

14

concern of the Brig COs and that was on the original confinement

15

order and the memorandum and in the packet they considered as they

16

were making decisions.

17

States would offer that even the conduct at the JRCF could be

18

relevant for a different reason and that is to--for the court to

19

understand when reviewing trying to step in the shoes of the

20

confinement officials what Private First Class Manning’s baseline

21

behavior was.

22

Class Manning was always courteous and polite and respectful and the

23

United States doesn’t contest that except for when there was erratic

So, on one hand the defense

So, if the court decides to use

And so that was a concern, although not one

An assault violation, that was one

But more importantly, Your Honor, the United

The defense had contended that--that Private First

5809

09704

1

behavior prior to showing up to Quantico, prior to showing up to the

2

facility in Kuwait and culminating with, at least currently, with the

3

assaults at the JRCF.

4

Private First Class Manning’s baseline behavior was erratic

5

and consistently caused concerns to those charged with maintaining

6

his wellbeing and that’s what the testimony you’ve heard from the

7

Brig officials.

8

the JRCF.

9

view without being able to literally going back in time and step in

10

their shoes and see, they were trying to assess Private First Class

11

Manning on a daily basis to understand.

12

Kuwait including the multiple outbursts, being unresponsive to

13

commands, yelling uncontrollably, losing complete control by

14

screaming, shaking and babbling, placed on suicide risk after that,

15

reported very regressed, guarded previously disorganized, felt

16

suicide was an option, when asked the statement I before did not

17

remember it was not right now, that is always an option about

18

suicide.

19

these types of behavior issues for Private First Class Manning the

20

individual occurred in Iraq and that information you have in front of

21

you from Master Sergeant Adkins’ counseling statements that this is

22

the baseline of Private First Class Manning.

23

saw every day.

This was true again while at Quantico, Iraq, and at

And specifically, Your Honor, again for you to be able to

Knowing what happened in

That is what they considered, but again, his baseline,

This is what the Brig

The doctors did show up, did their forensic

5810

09705

1

assessment, gave their one to five line recommendations, but this is

2

the behavior and culminated at the facility, Your Honor, on January

3

18th during the anxiety attack in the morning and then the subsequent

4

anxiety attack with the Brig officials, excuse me with Master

5

Sergeant Papakie and Chief Averhart.

6

necessarily to the level of an anxiety attack but with the comment

7

about using--possibly using underwear or could use underwear to kill

8

himself.

9

And then it happened again not

So, ultimately, Your Honor, as you view--as you step into

10

the shoes of the Brig officials to determine if they were being

11

reasonable or not, or excuse me, abuse their discretion or not, the

12

United States would argue that the court should consider that Private

13

First Class Manning’s anxiety attacks and behavior were normal for

14

him and that’s what the Brig was--was dealing with, knew about and

15

had to--had to protect and--and try to communicate with him to be

16

able to gauge whether it would occur, would not occur, so on and so

17

forth.

18

MJ:

In the government’s view did there at any point in time as

19

Kuwait becomes a more distant memory in these weekly C and A Boards,

20

would it become an abusive discretion not to engage with mental

21

health providers to have some understanding of the accused’s mental

22

health condition as it is used in whole and part as a justification

23

for POI?

5811

09706

1
2

TC[MAJ FEIN]:

Well, ma’am, I think the evidence shows that,

that did occur.

3

MJ:

Under Chief Barnes?

4

TC[MAJ FEIN]:

Well, ma’am, when Colonel Malone came on board

5

there is testimony both from Colonel Malone and Master Sergeant

6

Blenis that they tried to--they did--they established more, I think

7

the answer--or the testimony was it was more communication between

8

the two and then when Chief Barnes came on it continued with Colonel

9

Malone and then culminating Colonel Russell although only twice with

10

Lieutenant Colonel Russell based off the timing.

11

think that again, under similar to what I answered before, if this

12

was the only factor that was being considered by the Brig was what

13

was said in Kuwait, what was said in the indoctrination, and nothing

14

else then yes, I think there would be some point in time.

15

is not the evidence before the court.

16

they were considering and the number one was this communication issue

17

of whether to communicate, whether to talk about what you said and

18

that’s what you heard from Master Sergeant Blenis.

19

to engage Private First Class Manning on daily activity knowing--you

20

even heard from Private First Class Manning, Your Honor, that he

21

liked--he’s a current events guy.

22

Sergeant Blenis tried to talk to him about current events and only a

23

few times did he ever respond back to that.

5812

So, Your Honor, I

But that

There is many factors that

Let’s--He tried

He loves current events.

Master

That was there--That was

09707

1

one of their main focuses in order to gauge today.

That is what they

2

would use to determine if--if you should give Kuwait--the statements

3

in Kuwait more weight today or not.

4

on older factors could lose weight in this calculus but depending on

5

what the factor is, it could have an incredible amount of weight up

6

front.

7

show if was a single-spec AWOL case and it was max custody, POI

8

probably 90 days later and it’s AWOL and not desertion then--then

9

fist off the max penalty is probably past if you go more than 6

Because of course as time goes

A good example, the Charge Sheet, you know, if--as the cases

10

months.

That’s a factor.

11

Sheet that they are weighing that that is a very large factor.

12

Similarly, Your Honor, someone who has no mental health conditions,

13

prior to Kuwait so this isn’t even stem from pretrial confinement,

14

it’s in the medical records that he--that Private First Class Manning

15

visited mental health providers prior to going into pretrial

16

confinement.

17

MJ:

18

TC[MAJ FEIN]:

19

But when you have what’s on the Charge

Did the Brig officials know that?
It was in the medical records and the doctors

knew it, yes, yes, Your Honor, and so did the Kuwait officials.

20

MJ:

Did the Brig officials know that?

21

TC[MAJ FEIN]:

Your Honor, the testimony we heard from the Brig

22

COs is that they discussed the initial medical, his background for

23

suicide with them.

5813

09708

1

MJ:

Who discussed?

2

TC[MAJ FEIN]:

Chief Averhart, Your Honor, and I think it was

3

Gunny Blenis because he was the counselor.

Now to what detail, Your

4

Honor, no, the United States does not know exactly which facts were

5

pulled.

6

the motion the facts from the medical records are there from the

7

Altus System of what the individuals downrange pulled and what was

8

transferred here and could be pulled from Colonel Malone and Captain

9

Hocter and Colonel Russell.

But as the court knows from at looking at the enclosures to

So, so, we’re not just--again, it’s the

10

individual and in their shoes.

They knew they had someone who had a

11

history of--of--of--of mental health concerns.

12

someone who had a diagnosed disorder.

13

ended showing up to confinement in Kuwait had the different anxiety

14

attacks outburst, etcetera and made suicidal ideations and

15

statements.

16

up to the Brig when given the opportunity to fill in whatever it was

17

he chose, Your Honor, and going back to the same form, when you look

18

at the page filled out this wasn’t necessarily filled out in darkness

19

or made to be filled out.

20

question is, “when was your last HIV test?”

21

filled out on the last HIV test.

22

considered suicide?

23

get down to the bottom mental health background information.

They knew they had

They knew they had someone who

They had someone who when showed up--the day he showed

On the same form on the same page the
The exact date was

“When was--“Have you ever

I always planned, never acting.”

5814

Then when you
Note:

09709

1

Is there anything on this form which is not covered, sports, hobbies,

2

special skills?

3

technology, politics, history, finance.

4

who’s so distraught that they’re just filling something in to get

5

done with it.

6

at the rest of the document this is what’s being considered by the

7

Brig officials.

8

that is given much weight.

9

goes by could it be abusive discretion if they don’t seek furthering

It’s filled out with some detail here.

So this isn’t simply someone

It’s someone who’s thought it out.

And when you look

So, the reason I bring this up now, Your Honor, is
So, you asked if there’s enough time that

10

opinion or don’t address this.

11

yes, Your Honor, but that was not.

12

Computers,

If that was the only consideration,
That’s not the facts here.

So, Your Honor, what the United States would like to

13

highlight for you are some key essentially undisputed facts about

14

this case, this issue for Article 13.

15

nooses in Kuwait, one was either was or wasn’t with ties but it was

16

one bed sheet noose, actual noose in Kuwait.

17

processing in Quantico PFC Manning checked yes to the question of

18

have you ever considered suicide and then wrote voluntarily always

19

planning, never acting.

20

First, PFC Manning made two

During his in-

Major fact two, on 18 September 2010, when asked about

21

David House and Daniel Clark about PFC Manning’s prevention of injury

22

status PFC Manning specifically stated, I quote, “It’s unusual.

23

circumstances are not common and they are not too bad and I

5815

My

09710

1

understand it all.”

2

September 2010, report.

3

MJ:

4

TC[MAJ FEIN]:

5

MJ:

6

TC[MAJ FEIN]:

That’s at 23 minutes and 20 seconds on the 18

23 minutes and what?
20 seconds, Your Honor.

And what did he say again?
Your Honor, when asked about it he said, his

7

status or the way he is being treated isn’t it unusual, “my

8

circumstances though are not common.”

9

“though.”

Excuse me, Your Honor, I added

Are not common and they are not too bad and I understand

10

it all.

11

anxiety attack in the recreation room that left him in tears and

12

later had a similar episode with Chief Averhart.

13

January C and A Board PFC Manning stated about the statement, always

14

plan, never acting, that it may have been false.

15

jokingly or not, PFC Manning made a statement about how he could kill

16

himself with the elastic in his underwear.

17

amount of communication between PFC Manning and Master Sergeant

18

Blenis and Chief Barnes degraded significantly.

19
20

MJ:

On 18 January 2011, Private First Class Manning had an

During the 21

On 2 March,

After March 2011 the

Almost weekly----

When was PFC Manning counseled for disrespect with Chief

Barnes?

21

TC[MAJ FEIN]:

22

MJ:

23

TC[MAJ FEIN]:

May I have a moment, Your Honor?

Yes.
Your Honor, it was around 3 or 4 March.

5816

09711

1

MJ:

Okay.

2

TC[MAJ FEIN]:

Your Honor, almost weekly Private First Class

3

Manning described the Brig staff and the treatment by the facility as

4

professional or very professional and that was to his company

5

commander and first sergeant that he thinks they are the best there

6

are.

7

Class Manning did not share any of his concerns with anyone he

8

visited about his confinement status, at least that was recorded.

9

Your Honor, after being provided over 1200 emails to utilize during

Between 18 September 2010 and 10 April 2011, Private First

10

direct and cross-examination the fullest opportunity to discuss with

11

14 members of the Quantico and Brig staff every individual testified

12

that the purpose of the status and custody was to protect Private

13

First Class Manning from harming himself and ensuring he ultimately

14

got to trial.

15

or physical health care except when there was a report of Private

16

First Class Manning killing himself on the TV and his TV privileges

17

were revoked.

18

recreation, telephone privileges, three hot meals per day, a shower,

19

and correspondence time.

20

his defense counsel over the phone, in person, and not at Quantico,

21

at Fort Meyer TDS Office and other offices such as SCIFs in the

22

National Capital Region.

Private First Class Manning was not denied any mental

Private First Class Manning was not denied TV call,

PFC Manning was authorized to visit with

He was allowed visitors every weekend and

5817

09712

1

on holidays and he met with medical professionals both in the Brig

2

and outside the Brig.

3

And finally, Your Honor, the defense has offered no

4

evidence of any Brig staff’s intent to punish Private First Class

5

Manning.

6

not necessarily an uncontested fact that the government would argue,

7

one of the course requirements under Article 13 is that the--the

8

conditions are not more rigorous than necessary.

9

argument defense stood up here and say if Quantico Brig had the

Your Honor, in a specific--a very specific point so this is

During oral

10

opportunity to put him in a strait jacket, Private First Class

11

Manning in a strait jacket in a padded cell, they would have taken

12

that opportunity.

13

Honor, the facts before you are completely contrary to that.

14

heard multiple witnesses testify about Special Quarters 2 that they

15

had at Quantico.

16

at the end of the hallway or in the skylights like Private First

17

Class Manning had in his cell.

18

was bars with a steal door that closed and only a window, which would

19

give you four enclosed walls and only a window.

20

at their disposal and they didn’t use it.

21

most--the most restrictive approach with Private First Class Manning.

22

They tailored it each week.

23

week because their assessment did not change each week.

They would have done whatever it took.

A steel door that shut.

Your
You

No natural light at all,

And instead of a mesh bar front it

They did have that

They did not take the

Unfortunately it just didn’t change each

5818

09713

1

MJ:

2

argued to the court that the officials at Quantico, kind of the

3

POI/max custody was a safe position to take because even if there is

4

the most remote concern for--that PFC Manning would injure himself

5

the Brig officials are “covered” I guess if you will?

6
7

Major Fein, what’s the government’s position on the defense has

TC[MAJ FEIN]:

Yes, Your Honor, the safest position would be

suicide risk the entire time.

8

MJ:

9

TC[MAJ FEIN]:

That’s the safest.

Well, they can’t do that without the doctor.
Correct, Your Honor, but that would be the safest

10

or they could have--yes, Your Honor.

No, Your Honor, there’s no

11

question that what was on--there’s no question from the evidence

12

presented that Captain Webb’s suicide was on everyone’s mind

13

including General Flynn’s and that email on 9 August 2010.

14

you heard was that every individual who made custody classification

15

decisions, or not decisions, but input and decisions so within the

16

confines of the walls of the Brig, they reviewed, each week they

17

reviewed the facts presented to them, what they observed, the

18

different observations, they spoke about it, the Brig COs did their

19

own rounds.

20

discussions, they tried to talk to Private Manning and they made the

21

decision.

22

him here to trial to ensure nothing happens to Private Manning from

23

self-harm, other harm, or he escapes but that’s their job.

But what

Every individual had these decisions--had these

Yes, there were questions, yes, their concern was to get

5819

That’s

09714

1

their job for all confinees.

2

argue that there is no evidence that they took it to an extreme.

3

They followed the due process that’s afforded from the SECNAV Reg.

4

They recorded the due process in CORMIS and on the Brig forms and

5

when--when a complaint was finally lodged the Article 138, that

6

process went up through and then came back down.

7

followed, Your Honor, the due process was there and they didn’t take,

8

again, they didn’t take the most extreme position.

9

very protective position but again, it was based off the facts that

10
11

But there--The United States would

That process was

They did take a

were presented at the time.
MJ:

What is the government’s position, there was a lot of

12

testimony that POI status is normally for a short duration and in

13

this case it went on for 9 months?

14

TC[MAJ FEIN]:

15

MJ:

16

TC[MAJ FEIN]:

Yes, ma'am.

What’s the government’s position with respect to that?
Your Honor, the United States would argue based

17

off all the other testimony is that once again, this case it’s the

18

factors presented to them at the time.

19

the same individuals who said they don’t remember POI going for

20

extended periods also talked about they’ve never had or maybe one

21

total detainee who’s never spoken or communicated consistently with

22

Brig officials.

23

remember POI or don’t know if POI went on for extended period they

So, also what you heard in

So, for every individual who said they don’t

5820

09715

1

also didn’t have that.

2

everything listed before the pattern.

3

MJ:

Additionally it’s the factors here and it’s

There was some testimony about some kind of an MOI for

4

Quantico when it transitioned from Level 1 facility to a pretrial

5

detention Brig.

6
7
8
9

Is that in the exhibits anywhere?

TC[MAJ FEIN]:

No, ma’am, I think--are you talking about the MOA

between--the Memorandum of Agreement?
MJ:

Whatever they were--There was testimony that there was

something.

10

TC[MAJ FEIN]:

11

MJ:

12

TC[MAJ FEIN]:

May I have a moment, Your Honor?

Yes.
Ma’am, the--I’m answering this as the previous

13

Chief of Justice of the MDW, not from this case.

14

was that the DoDI established this was in Chief Galaviz, establishes

15

that the closest pretrial confinement facility within DoD must be

16

utilized by all services.

17

standpoint it’s on a non-reimbursement basis.

18

Instruction.

19

further implementations, I know there were MOAs being worked out to

20

do reimbursement but the DoDI is the regulation that rules on where

21

confinees go.

22

the US Army Military District of Washington and was moved CONUS to

23

this command he was then placed in that facility.

First the testimony

He even mentioned probably from a policy
That’s in a DoD

And to the best of my personal knowledge there are no

So, once Private First Class Manning was assigned to

5821

09716

1

MJ:

What if any length of detention, there was some testimony

2

about Quantico not being resourced to house long-term pretrial

3

detainees.

4

What’s the government’s view on that?

TC[MAJ FEIN]:

The United States does not contend that they were

5

not necessarily originally and properly equipped to do that, but the

6

same testimony was that they completed the mission.

7

actually starting with the very first day Colonel Choike talking

8

about coordinating with Colonel Coffman and the Army in order to

9

provide any resources needed in order to support the mission.

The testimony

But

10

that--all of that testimony was really about infrastructure on the

11

base, it was not about the confinement facility.

12

testimony that certain, you know, there weren’t enough guards to

13

accomplish a mission necessarily but what was talked about is once

14

they transitioned out of a Level 1 facility for instance, certain

15

programs didn’t exist anymore.

16

confinees by Article 13 law are supposed to be treated like every day

17

Soldiers, so having a rehab program would not actually be applicable

18

to them.

19

rehab while they are waiting for trial.

20

contend there’s no actual evidence that a mission could not be

21

completed and the evidence is to the contrary.

22

health care, Private First Class Manning, the testimony that came out

23

during these last 2 weeks essentially had dedicated mental health

There was no

But, with that being said pretrial

It’s more about AA or NA programs in order for them to

5822

So, the United States would

For instance, medical

09717

1

providers for him, even though the rules required I think at a

2

minimum of 30 days depending on his status.

3

least every 30 days a check-up by a mental health provider but it

4

started off as daily, averaged almost about weekly and only one time

5

is there evidence that it happened that a mental health provider

6

wasn’t there when someone wanted him there and that is when Colonel

7

Malone went on Emergency Leave unannounced.

8

you asked defense counsel during oral argument about Captain Neill in

9

the email chain and that was the result--that email chain was the

The case law supports at

And after that, I know

10

result for Quantico infrastructure, Colonel Choike ensuring there’s

11

no--there’s no laps in mental health providers if someone does leave.

12

So, from that point forward there was always redundant mental health

13

providers provided for Private First Class Manning.

14

with Colonel Malone getting a call on behalf of the command from the

15

trial counsel the night before Private First Class Manning moved, the

16

same night that the defense counsel got warned about it ahead of time

17

that he was being moved, and Colonel Malone was then brought from

18

Quantico to the JRCF and back to ensure there’s no lapse in care.

19

MJ:

20

TC[MAJ FEIN]:

Which culminated

All right.
Your Honor, in conclusion the court should grant

21

the defenses’ motion in part.

Grant 7 days credit for keeping the

22

accused on suicide risk for the two time periods previously discussed

23

and deny any other relief based on the defense not meeting its burden

5823

09718

1

of proof and the overwhelming evidence to the contrary of violation

2

of Article 13, R.C.M. 304 and 305.

3

MJ:

Before we go any further.

4

TC[MAJ FEIN]:

5

MJ:

6

TC[MAJ FEIN]:

7

MJ:

Yes, ma'am.

Let’s talk about the 3rd of March, standing naked incident.
Yes, ma’am.

The defense did bring--Why didn’t the government--Why were

8

there no witnesses like Staff Sergeant Terry or anyone else who was

9

there?

10

TC[MAJ FEIN]:

Ma’am, similar to what I was trying to explain

11

with the Article 138 complaint, that is a convenient argument for

12

both sides.

13

from any of those emails in litigation.

Defense also had the opportunity to call any witness

14

MJ:

I understand that.

15

TC[MAJ FEIN]:

Why didn’t the government?

Yes, ma'am, the government reached out to Staff

16

Sergeant Terry, he frankly did not remember the facts that morning.

17

The only thing we were told so I proffer this as his expected

18

testimony is that he remembers counseling orally Private First Class

19

Manning to not--to not stand without his blanket on any more.

20

tried to ascertain which guards were on duty that night.

21

Sergeant Terry did not remember.

22

reach out to find those witnesses but couldn’t.

23

Sergeant Terry proffered that’s what he would have testify to, there

We

Staff

So, the United States did try to

5824

So, because Staff

09719

1

was plenty of testimony that that’s what Staff Sergeant Terry told

2

his supervisors and they have already relayed that to the court.

3

the United States chose not to call Staff Sergeant Terry out because

4

he’s at Camp Pendleton, California and it would be a waste to have

5

him testify with that one fact as it was already testified to.

6

Your Honor, the United States would contend that Private First Class

7

Manning’s testimony on cross is probably the most accurate

8

representation of what might have occurred in absence of anyone

9

having a good memory of this occasion and that was he understood it

So

And,

10

as an implied order to drop his POI blanket.

The United States does

11

contest whether he was ever ordered to stand naked.

12

evidence is to the contrary as to whether he was ordered to stand

13

naked.

14

especially when there’s a Brig or a female on duty that they need to

15

always cover up when they come on deck.

16

Your Honor.

In fact, the

There is a female Brig CO at the time, all detainees are told

17

MJ:

18

TC[MAJ FEIN]:

It just doesn’t make sense,

The female Brig CO would she be there at the time of count?
Not normally, Your Honor, but it doesn’t mean she

19

wouldn’t be there that morning.

So, no, it wouldn’t be normal

20

practice for Chief Barnes to be there every morning but as she

21

testified yesterday or this morning, yesterday, Your Honor, she would

22

do surprise inspections of her own.

5825

She was there on Saturdays.

09720

1

MJ:

2

were working on the morning of the 3rd of March 2010?

3

Is there any kind of roster or any other listing of what guards

TC[MAJ FEIN]:

Yes, ma'am, there is--there is and defense and

4

the government have--there is a log that is used but the log is

5

silent on this as well.

6

MJ:

7

TC[MAJ FEIN]:

Actually, Your Honor, may I have a moment?

Yes.
The log is inconsistently, unfortunately the log

8

is inconsistent not just on that day, on multiple days depending on

9

the shifts.

Certain guards would write their own names, they

10

wouldn’t for Staff Sergeant Terry’s shift, it says Staff Sergeant

11

Terry was there but it doesn’t list the actual guard names.

12

government can provide this to the court if the court would like a

13

copy.

14

MJ:

15

TC[MAJ FEIN]:

The

Yes I would, please.
Yes, ma'am.

Of the whole log, Your Honor, or of

16

just----

17

MJ:

18

TC[MAJ FEIN]:

19

MJ:

20

TC[MAJ FEIN]: Thank you, ma’am.

21

MJ:

No, just that entry.
Okay.

All right.

Mr. Coombs, you are about to stand up.

22

going to get a reply?

23

CDC[MR. COOMBS]:

Does that mean I am

Yes, but very briefly, Your Honor.

5826

09721

1

MJ:

Okay.

2

CDC[MR. COOMBS]:

Your Honor, according to the defense keeping

3

track of what each witness said for their bases for maybe max or POI

4

and we would request that the court obviously look at the actual

5

testimony.

6

were listed.

7

existed prior to PFC Manning coming to the Brig.

8

factor.

9

self-reported by PFC Manning on his intake summary.

If there is any confusion, but here are the factors that
You had the anxiety disorder and that was a factor that
So, that’s a Kuwait

You had poor home conditions and family relations.

That was

You have the

10

Kuwait behavior which precipitated obviously him coming to Quantico

11

and caused him to come to Quantico.

12

the intake summary or the intake statement of always planning, never

13

acting.

14

Those are the factors that existed before he got there.

15

only factors that the witnesses ever really testified to was the

16

length of potential sentence and seriousness of charges which are

17

obviously related.

18

to existence such as erratic behavior which the first time that’s

19

documented is in November 23rd and of course there is no follow-up on

20

that and the doctors kind of discount that as being of issue along

21

with Lance Corporal Tankersly and Cline.

22

January 2011 behavior, so now we are in January of 2011.

23

have the 21 January 2011, statements to the C and A Board.

You had his actual statement on

And then you had the--and so those were the pre-factors.
Then the

And then over a period of time other factors came

5827

Then you have the 18
Then you
You have

09722

1

the 2 March underwear statement.

2

with the Brig staff, the communications.

3

Sergeant Blenis’ counselings it--from the very beginning forward he

4

documents that PFC Manning’s normal behavior is quiet, respectful,

5

courteous, sometimes he’s talkative sometimes not so much.

6

is there any sort of documentation to indicate this is a major

7

problem or something that is causing the Brig to not be able to

8

adequately judge PFC Manning.

9

after the March 2nd comment and of course after Chief Barnes counsels

10

And then you have the interaction
And again, looking at Gunny

But never

It’s not until really March of 2011

PFC Manning that you really start to see a change.

11

The Article 138 not having a lack of communication, that is

12

really probably the biggest red herring that has come out in the last

13

couple of weeks.

14

Article 138 response and you would vision that because the complaint

15

is you are holding me in max and POI, you don’t have a justification

16

for that.

17

he’s trying to get Gunny Sergeant Blenis to give him the reasons or a

18

reason, but lack of communication would be an easy reason to put down

19

there that, you know, we just don’t feel comfortable with you because

20

you are not giving us enough information.

21

found and it doesn’t exist in any other sort of documentation to the

22

extent of giving that as a justification for not being able to keep

23

him or lower his status until you get to Chief Barnes.

The lack of communication, it was not within the

And Chief Averhart when he’s responding to that, of course

5828

And it’s nowhere to be

Also the 18

09723

1

January video also kind of belies that concern because when you look

2

at that video, that’s--clearly that’s not somebody who has a

3

communication problem.

4

Sergeant Papakie and Gunny Sergeant Blenis and if that was out of the

5

norm or something of a surprise you would expect to see either Gunny

6

Sergeant Blenis or Master Sergeant Papakie make a comment about that

7

of, wow, this is the most talkative you have ever been.

8

know, if only you would say something like this earlier, maybe we

9

wouldn’t be as concerned.

He’s able to talk quite eloquently to Master

And, you

And that’s exactly what Chief Barnes said

10

she was looking for, him to articulate, hey, the stuff that happened

11

in Kuwait, only--you don’t need to worry about that because of X.

12

And that’s what he did on the video.

13

totally out of it.

14

What Chief Barnes was looking for.

15

He said, you know, I was

I didn’t know what was going on at that time.

The recreation call, the court pointed out the Brig’s own

16

policy but Galaviz, CW5 Galaviz and even CW2 Barnes said 1 hour of

17

rec would be the requirement.

18

reason why he’d only get 20 minutes of sunshine call for a period of

19

time that Averhart did unless there was some disciplinary reasoning

20

and there’s some reason to take it away.

21

be 20 minutes of sunshine call.

22
23

MJ:

CW2 Barnes could not articulate a

But she said max would not

That would not be her to call.

Chief Averhart said something to the effect that that was

Brig policy.

Is that your recollection of his testimony?

5829

09724

1

CDC[MR. COOMBS]:

It was, yeah, and that’s why when I went in

2

and asked him like, well, was there a time period when you said, hey,

3

let’s expand it for an hour and his mindset was you were on max,

4

that’s 20 minutes, that’s all you get.

5

Barnes doesn’t back that up with her experience.

6

back that up with his experience.

7

at that, you almost have to do a plan of the day exception in order

8

to say, you only get 20 minutes.

9
10
11

MJ:

But, Averhart, excuse me,
Galaviz doesn’t

The Brig’s own SOP when you look

Well, that’s--what’s the defense’s position on that because

that Paragraph 2 is silent on the time?
CDC[MR. COOMBS]:

It is and I think at that point that could

12

be read one of two ways.

Either that 1 hour is implicit in Section B

13

and therefore you don’t repeat it or that it is recognized and I

14

believe not just Chief Averhart but other witnesses testified that

15

with maximum detainees there are additional requirements that you

16

still have to fit within the plan of the day before Taps.

17

perhaps in that regard the Brig could say, well, we tried to give him

18

an hour but we could only give him 50 minutes on this day.

19

would be their justification for that.

20

the sunshine call in this case, you not only have the time limitation

21

of 20 minutes but you have the arbitrary requirement of full

22

restraints on outside and handcuffed when he’s--when he’s on the

5830

So,

That

But when you look at it, at

09725

1

inside which Galaviz could not articulate why that would ever be the

2

case nor could Barnes.

3
4
5

MJ:

Were they--Was that a Brig policy for all maximum

detainees?
CDC[MR. COOMBS]:

It was not and in fact Averhart seemed to

6

take exception that that was the case.

He didn’t believe that was

7

the case.

8

that that was the case.

9

not believe they were doing and had he known he would have said, no,

It’s Master Sergeant Papakie’s email that makes it clear
So, either that as something Averhart did

10

no, no, you can take the restraints off of him or he just didn’t

11

recall.

12

question he took exception to that would be the requirement.

13

didn’t believe that full restraints would be required outside and

14

handcuffs would be required while they are at the inside rec room.

15

The behavior being erratic is another justification as I

But when you go back to his testimony and I asked him that
He

16

said, November is the first time that’s ever really documented.

17

even then how’s that erratic behavior?

18

up on.

19

it if that is, in fact a concern that they had.

And

That’s never really followed-

They never really go back to PFC Manning to talk to him about

20

MJ:

Are they required to do that?

21

CDC[MR. COOMBS]:

If--if--In this instance that the Board and

22

it looks like the C and A Board is, in fact, using this as an added

23

justification based upon the tick boxes.

5831

It’s unclear that that’s

09726

1

for sure but it looks like the timing wise that’s why they are doing

2

it.

3

the counselor is making the advice to the Board.

4

would go to PFC Manning and say, hey, look, you know, you are talking

5

to yourself, you are staring at the wall, you are playing peek-a-boo

6

with the mirror, you are pretending like you are fishing, what’s

7

going on?

8

think is a very straight forward explanation for that and mental

9

health professionals seem to support that as certainly as Lance

10
11

And you would think that at least the counselor would because

And at least get some feedback on that.

If the counselor

Boredom though, I

Corporal Tankersly did.
PFC Manning has, when he got up on the stand, you know, was

12

very honest and straight forward in his responses.

And he did say

13

the Brig was very professional and that Gunny Sergeant Blenis was

14

nice to him and he thought he was a good guy.

15

to throw the Brig under, you know, the bus in this instance.

16

they were very professional and you can be very professional and

17

still violate Article 13.

18

professional in the way they did things but contrary to what Major

19

Fein has said there is substantial record--substantial evidence in

20

the record to show that their response was exaggerated to the

21

conditions that they were looking at.

22

of how many people, echelons above them were paying attention to

23

this, the media interest, lack of personnel, whatever that was there

PFC Manning didn’t try

That’s what they did here.

5832

He said

They were very

And whether that was because

09727

1

was an outside influence that caused them to do something different

2

and normally that’s where you step off the rails.

3

situation differently than you would otherwise and when you do that

4

you start doing things that you normally wouldn’t do and that’s

5

exactly what the Quantico Brig did here.

6

they normally wouldn’t do that.

7

to keep a very close watch on him to the point where everybody was

8

looking for something and the easiest course of action was to keep

9

him in max and POI.

When you treat a

They did a weekly report

They probably stressed to everybody

They might have even had good intentions to do

10

so but the problem was their intentions were not required and the

11

conditions were more onerous then necessary to ensure his presence.

12

Subject to your questions.

13

MJ:

So, really Mr. Coombs at the end of the day this case is a

14

question about whether there are--the conditions are excessive in

15

relation to a legitimate government interest, which would be keeping

16

somebody safe and alive for proceedings?

17

CDC[MR. COOMBS]:

Yes, if you look at not being an intent to

18

punish.

So, the first part of me say, look the order by Colonel

19

Oltman or by Chief Averhart or the influence by General Flynn is not

20

an attempt to punish.

21

conditions that they ultimately put him in were related to a

22

legitimate government objective.

23

overarching theme when you look at everything, especially the context

Then yes you would go to whether or not the

Our position would be that the

5833

09728

1

of the emails is a concern with how is the media reacting to this or

2

who’s--who is looking at this and what is their response?

3

this going to look on us?

4

emails, I would almost challenge the court to find an email where

5

they actually say, hey, we are really concerned about PFC Manning.

6

Because that’s not at all a thread that’s through these emails.

7

thread that’s through these emails is, and I will say with exception

8

to one there’s an early email where General Flynn is saying I think

9

he is a suicide risk.

10
11

Every email when you look through the

The

You know, we need to, you know, we need to

really take a closer look at him.
MJ:

How is

But other than that----

Mr. Coombs, is that really fair though?

You have the

12

emails going on and the second and third of March getting mental

13

health providers down for PFC Manning when he’s read the 138

14

complaint response and the new charges?

15

CDC[MR. COOMBS]:

Right and what I would say is all these

16

emails show that there is a concern that if something happens it is

17

going to look bad on Quantico or it is going to look back for us in

18

some way or we are going to be the ones left holding the bag.

19

March and 3 March is no different.

20

right then and there if something happens they want to have mental

21

health professionals there and it is again because we don’t want

22

anything bad to happen, because the way that will look to us.

23

when they start to search for other mental health professionals it’s

5834

2

There they want to have somebody

And

09729

1

because they are not happy with the mental health professionals that

2

they’ve got and they want to have somebody that actually is going to

3

interpret his behavior, see him 24/7 and talk to them and tell them

4

based upon being the insider whether or not there is something going

5

on with PFC Manning.

6

any other detainee they wouldn’t go to this extreme on anything.

7

This is where you do things out of the ordinary and maybe you go into

8

that with good intentions and maybe you are thinking hey, we are

9

doing the right thing, but when you do things that are totally out of

This is a prime example of if PFC Manning were

10

the ordinary and you see this in court-martials as well if you take

11

steps that you normally wouldn’t take that’s when you go off the

12

rails and this is exactly what they did here.

13

If they would have listened to their mental health support or if they

14

didn’t trust it and if they would have gotten the mental health

15

support that they did trust and followed their normal procedures,

16

it’s more than likely PFC Manning would have been MDI relatively

17

quickly and the concerns, the media interest, the outside pressure,

18

all that stuff would never have existed because that stuff really was

19

created in the December timeframe when the conditions went from

20

trying to resolve it within the appropriate channels to then publicly

21

raising and airing this as a concern.

22

is what resulted in PFC Manning being moved from Quantico to the

23

JRCF.

5835

And they did it early.

And ultimately I believe that

09730

1

MJ:

Before we stop, I know it’s getting late here, government,

2

Major Fein, I have a couple more questions for you.

3

government’s position with respect to the 14 January meeting between

4

Colonel [SIC] Hocter and Colonel Oltman and the exchange that

5

occurred?

6

TC[MAJ FEIN]:

What’s the

Ma’am, the United States--it is unclear what did

7

or did not occur.

8

and the result was the testimony from the Brig officials from the

9

NCOs to the two warrant officers is that it did not affect their

What is clear was the result of that, Your Honor,

10

decision making.

11

was contesting that Captain Hocter and Colonel Oltman did not get

12

along that day to what extent no one will know, I guess, but the

13

testimony was it did not affect the decision making of the Brig

14

officials both in the C and A process and the ultimate decision of

15

Chief Barnes and Chief Averhart.

16

MJ:

So, what was or was not said, I don’t think anyone

And what about the position on Chief Averhart’s entries

17

into the weekly reports reference PFC Manning remaining in POI/max

18

until the 706 Board is complete?

19

TC[MAJ FEIN]:

Yes, ma'am, I think what’s important there, Your

20

Honor, is to look at the timing of that.

There’s no question it was

21

written in there.

22

testified that he was directed because he was the original drafter

23

for his CO of that report that the Brig CO told him to put in there.

Gunny Sergeant Blenis, Master Sergeant Blenis

5836

09731

1

Master Sergeant Blenis even said that they did not consider that as

2

part of the C and A process but he did what he was told for the

3

report purposes.

4

the timing was, was that he was tipped off that the 706 was supposed

5

to occur.

He only placed that line in there for 3 weeks and it was

6

removed.

So, it was not--it was not necessarily a consideration that

7

lasted even if it was a consideration.

8

contest as it elicited testimony that it was not an order.

9

in the order section, it was very clear what was ordered or what was

10
11
12
13

But also he is to look at the timing of that.

At

The United States does
It wasn’t

not ordered.
MJ:

All right.

Defense, I don’t have the same question for you

but if you want to address it go ahead.
CDC[MR. COOMBS]:

Ma’am, just for the last one, the plain

14

reading of it and Galaviz read it, it is clear I direct is a

15

basically an order.

16

MJ:

Is there anything else with respect to this issue?

17

TC[MAJ FEIN]:

18

yesterday the United States indicated to the court that it would

19

highlight the emails between defense counsel and prosecution that are

20

directly on point for pretrial confinement.

21

Well, not marked as a separate appellate exhibit but enclosure 50 to

22

the motion to Appellate Exhibit 259.

23

and this is the individual emails from the speedy trial motion that

Ma’am, there is one other and this is just for, but

5837

What we’ve marked now--

We have – defense has a copy

09732

1

were between defense counsel and prosecution.

2

you, Your Honor.

3

MJ:

4

in my office?

So, those are the emails that I have back in the box back

5

TC[MAJ FEIN]:

6

MJ:

7
8
9
10

Yes, ma'am.

All right and has this index been added as either an

appellate exhibit itself or placed in the record somewhere?
TC[MAJ FEIN]:

Yes, ma'am, a copy of that is going to be placed

in the record as Enclosure 50 to the Government’s response, Appellate
Exhibit 259.

11

MJ:

12

TC[MAJ FEIN]:

13

CDC[MR. COOMBS]:

14

MJ:

15

the witnesses.

16

can review the evidence in the case.

17

due course.

18

There is a copy for

Okay.

Anything else with respect to the Article 13 motion?
No, Your Honor.

All right.

No, Your Honor.
As you all know it takes me time to transcribe

I am going to take this issue under advisement so I

Is there anything else?

So, you’ll have a decision in

I know I need to meet with the

19

parties to discuss the potential Grunden order that I’m going to give

20

with respect to scheduling.

21

address on the record?

22

CDC[MR. COOMBS]:

23

TC[MAJ FEIN]:

Is there anything else that we need to

No, Your Honor.

No, Your Honor.

5838

09733

1

MJ:

All right.

So we have, before we recess the court, my

2

understanding is the next proceedings will take place the 8th through

3

the 11th of January of 2013.

4

CDC[MR. COOMBS]:

5

TC[MAJ FEIN]:

6

MJ:

Is that correct?

Yes, Your Honor.

Yes, ma'am.

And those will be addressing the recent motions that have

7

been filed by the parties with respect to judicial notice, motion to

8

compel defense witnesses, motion to preclude motive evidence by the

9

government and I believe that’s it.

Is there anything else that--oh,

10

and a potential government motion to preclude evidence of over

11

classification act.

12

be added to be addressed in that session?

Is there anything else at this point that is to

13

TC[MAJ FEIN]:

14

MJ:

15

CDC[MR. COOMBS]:

16

Yes.

TC[MAJ FEIN]:

18

MJ:

20
21
22
23

Ma’am, the defense doesn’t see anything else

unless we file a motion on the 28th to compel OCA witnesses.

17

19

May we have a moment, Your Honor?

No other issues, Your Honor.

And that motion to compel then, that’s also on the calendar

for that period of time.
CDC[MR. COOMBS]:

Is that correct?
It is, Your Honor, if we file the motion on

the 28th.
MJ:

Okay.

What time do you want to--go back to our default and

start at 1000 o’clock like we have been or do you?

5839

09734

1
2

TC[MAJ FEIN]:

Probably 930, Your Honor, so we can get a good 2

and a half hours in before the lunch recess.

3

MJ:

Any objection?

4

CDC[MR. COOMBS]:

5

MJ:

No, Your Honor.

Then we will begin on the 8th of January at 0930.

Court is

6

in recess.

7

[The Article 39(a) session recessed at 1510, 11 December 2012]

8

[END OF PAGE]

5840

09735

1

[The Article 39(a) session was called to order at 1025, 8 January

2

2013.]

3

MJ:

4

This Article 39(a) session is called to order.
Trial Counsel, please account for the parties.

5

ATC[CPT MORROW]:

Your Honor, all parties present when the court

6

last recessed are again present with the exception of Captain Von

7

Elten, who is absent; Captain Overgaard is present.

8
9

The court reporter is also absent, Your Honor.
court reporter was absent.

10
11

MJ:
----

ATC[CPT MORROW]:

13

MJ:

14

ATC[CPT MORROW]:

15

MJ:

Mr. Chavez.

---- last session?
What's that, ma'am?

All right, the court reporter at the last session was that

Mr. Robertshaw?

17

ATC[CPT MORROW]:

18

MJ:

19

ATC[CPT MORROW]:

20

MJ:

21

ATC[CPT MORROW]:

22

MJ:

23

The current court reporter is ----

That would be Mr. Robertshaw was the court reporter at the

12

16

Our last

That was Mr. Robertshaw; yes, ma'am.

And who is present today?
Mr. Chavez.

All right, thank you.
Sorry.

All right, let's begin by going over some -- well, Major

Fein is also not here; is that correct?

5841

09736

1

ATC[CPT MORROW]:

That's correct, ma'am.

2

impression that it was going to be 5 minutes.

3

a second.

4
5

MJ:

He had stepped out for

If you ---All right.

Well is there any reason we can't continue

while he's ----

6

ATC[CPT MORROW]:

7

MJ:

8
9

We were under the

No, ma'am.

---- stepped out?

All right.

For the record, Major Fein was present when the court last
recessed; he's not present today, or at least not right now.

10

All right, Government, are you prepared to go forward with

11

the housekeeping matters or was that something that Major Fein was

12

planning on doing?

13
14
15

ATC[CPT MORROW]:

That was something Major Fein usually handles,

Your Honor, so we are not prepared to go forward.
MJ:

All right.

Well, then, until Major Fein gets here, let's

16

at least talk about the defense notices.

17

notice from the defense that the defense would not be moving to

18

compel; is that correct?

19

CDC[MR. COOMBS]:

20

MJ:

21

CDC[MR. COOMBS]:

The court did receive a

That is correct, Your Honor.

And that would be compel speedy trial witnesses?
That is correct, Your Honor; and based upon

22

that and a previous agreement, we would then go to a particular

23

calendar, Calendar B, as opposed to a Calendar A, Your Honor.

5842

09737

1

MJ:

All right, and for the record, at the last session we had

2

created a definitive calendar through the 5th through the 8th of

3

February session, and then following that, we had developed an "A"

4

and a "B" calendar, depending on what had been filed and whether the

5

defense was going to make a motion to compel.

6

a defense motion to compel, we are now triggering over to the "B"

7

calendar.

8

January of this year and that will be primarily for argument on the

9

speedy trial motion and that will be followed by the next session on

Based on that lack of

The next session is going to be the 16th and 17th of

10

the 5th through the 8th of February and the court will announce

11

follow-on sessions after meeting with the counsel just to make sure

12

that the "B" calendar is the accurate way forward.

13

additional things that need to be plugged in there as the proceedings

14

go on today; but before we recess these proceedings this week, we'll

15

have a final calendar for the remainder of the sessions.

There may be some

16

Let the record reflect Major Fein has returned.

17

Mr. Coombs, is there anything else on the defense notices?

18

CDC[MR. COOMBS]:

19

MJ:

20
21

No, Your Honor.

All right, I believe there was an additional 505(h) notice;

is that correct?
CDC[MR. COOMBS]:

There was, Your Honor.

As far as -- yes,

22

505(h), we filed a notice on 14 December and additionally we filed

23

responses to the government's 505(h) replies.

5843

09738

1

MJ:

2
3
4

All right.
Major Fein, are you prepared to address for the record what

notices have been filed by the government since the last session?
TC[MAJ FEIN]:

5

Yes, ma'am.

Your Honor, on 12 December 2012, what has been marked as

6

Appellate Exhibit 449, the government filed a response to defense

7

interrogatories for OCAs via SIPRNET.

8

Appellate Exhibit 448 is the same filing but the unclassified

9

redacted version; and in that filing there are five enclosures, and

Also what has been marked as

10

those five enclosures are the different -- [cleared throat] excuse

11

me, Your Honor -- are the different organizations and their responses

12

per organization.

13

Your Honor, on the same day, 12 December 2012, what has

14

been marked as Appellate Exhibit 446, the government filed a

15

disclosure of Giglio material to the court and defense.

16

day, what has been marked as Appellate Exhibit 447, the government

17

disclosed or made available for inspection any R.C.M. 914 Jencks

18

material.

19

MJ:

On the same

Was there an additional government motion to -- for leave

20

to -- until 10 January 2013 to submit a plan for storing appellate

21

exhibits not accompanying the record of trial?

22
23

TC[MAJ FEIN]:

Yes, ma'am, there was.

And, ma'am, that was on

18 December 2012, the government filed a motion -- excuse me, what's

5844

09739

1

been marked as Appellate Exhibit 452, government motion for leave

2

until this Thursday, 10 January 2013, to brief the court on the

3

government's plan to store any appellate exhibits or enclosures to

4

any appellate exhibit that required special handling; and that was

5

filed on the 18th of December, Your Honor.

6
7
8
9

Does the court want -- rather go into the court's ruling or
to continue?
MJ:

No.

There court -- there was no defense objection to that

request, so on the 18th of December, the court ruled in favor of the

10

prosecution, granting that request for delay.

11

Exhibit ----

12

TC[MAJ FEIN]:

13

MJ:

That is Appellate

463, Your Honor.

All right, I have it here as four hundred and -- that's not

14

the right ruling.

15

the 18 December 2012 ruling that I gave someone to copy.

16

[Pause]

17

MJ:

That's the 26 October 2012 ruling.

We'll correct that on the break.

It should be

It's -- the ruling should

18

be dated 18 December, if -- we'll make sure the record's supplemented

19

with that ruling on the next recess.

20

TC[MAJ FEIN]:

21
22
23

Yes, ma'am.

[Pause] May I have a moment, Your Honor?
MJ:

Yes.

[The military judge conferred with the court reporter.]

5845

09740

1

MJ:

Yes, Major Fein.

2

TC[MAJ FEIN]:

And, ma'am, the only other -- and this might have

3

occurred while I was -- while I was getting water, also on 11

4

December 2012, the court did issue an order for Grunden.

5

marked as Appellate Exhibit 444.

6
7

MJ:

All right, may I have that, Appellate Exhibit 444, please.

[AE 444 was handed to the military judge.]

8
9

It's been

MJ:
order:

10

All right, the court's order is as follows:

Scheduling

39(a) Session on Closure, dated 11 December 2012.
1.

The current court calendar, dated 2 December 2012, has

11

alternate dates for two Article 39(a) sessions to determine whether

12

and to what extent the accused's trial should be closed to the public

13

for the protection of classified information.

14

the hearing will be determined based upon whether the defense files a

15

motion to compel witnesses for the motion to dismiss for a violation

16

of speedy trial and if the court grants such a motion in whole or in

17

part.

18
19
20
21
22
23

The actual dates for

The alternate dates are:
Government Classified Information:

5 through 8 February

2013 or 19 through 22 February 2013.
Defense Classified Information:

27 February through March

-- 1 March 2013 or 13 through 15 March 2013.
The Article 39(a) session for government classified
information will also determine:

5846

09741

1

a.

the procedures for transition from open to closed

3

b.

who will be present for closed sessions;

4

c.

procedures for handling military judge or member

2

5

sessions;

questions that call for classified responses; and

6
7

d.

regarding classified information.

8
9

procedures for handling military judge or member notes

2.

By 10 January 2012 [sic] the government shall submit to

the court:

10

a.

a list of all classified information for which the

11

government intends to request closed session.

For each item of

12

information submitted, the government will indicate whether

13

declassification, redaction, substitutions, or other alternatives to

14

closure will allow for the presentation of that information in open

15

court.

16

alternatives are not possible, the government shall indicate why the

17

declassification, substitution, or other alternative is not possible.

18

For all classified information where the government seeks to close

19

the court, in addition to declassification, redaction, and

20

substitution, the following alternatives to closure, at a minimum,

21

will be addressed:

22

use of screens, disguises, and code names for classified witnesses;

If declassification, redaction, substitution, or other

stipulations; use of code words or special names;

5847

09742

1

electronic imagery visible only to cleared trial participants and not

2

the public; and the silent witness rule.

3
4

b.

sessions to closed sessions.

5
6
7
8
9

a proposed procedure for transitioning from open
At a minimum, the plan should address:

(1) the means of securing the entrances/exits to the
courtroom;
(2) the signage that will be posted indicating the courtmartial is in a closed session;
(3) the procedures for ensuring that electronic recording

10

and broadcasting equipment that is present during open sessions is

11

disabled during closed sessions of the court-martial; and

12

(4) the procedures for ensuring that classified portions of

13

trial are captured on separate court reporting equipment from non-

14

classified portions of trial;

15

(5) proposed procedures for handling military judge and/or

16

member questions that call for classified responses and for the

17

military judge or member notes.

18

c.

Notice of whether the government objects to the defense

19

proposed use of classified information as detailed in its filing

20

dated 26 October 2012.

21

relevance and necessity of the information, the government shall

22

indicate whether declassification, substitutions, or other

If the government does not object to the

5848

09743

1

alternatives to closure will allow for the presentation of that

2

information in open court.

3

d.

Notice of whether the government will request that this

4

Article 39(a) session be in camera -- an in camera proceeding in

5

whole or in part pursuant to M.R.E. 505(i).

6
7
8
9
10
11

3.

By 24 January 2012 [sic] the defense shall notify the

a.

Whether the defense objects to any of the proposed

court:

closures in paragraph 2(a) of this order and the grounds for such
objections; and
b.

Whether the defense objects to the procedures proposed

12

by the government in response to paragraph 2(b) of this order and any

13

declassification, substitution, or other alternative to closure

14

proposed by the government in paragraph 2(c) of this order.

15

So ordered this 11th day of December, 2012.

16

Now that is a good segue to discussing the R.C.M. 802

17

conference that I held with the parties.

If everyone noticed, the

18

court got started a little bit late this morning.

19

start was because of the Article -- or the R.C.M. 802 conference and

20

505(h) notice issues raised therein.

21

summarize for the record what occurred during the R.C.M. 802

22

conference.

23

parties to confer and we're going to address that issue more

Part of that late

I'd like the parties to briefly

I've asked -- in light of this issue, I've asked the

5849

09744

1

substantively tomorrow.

2

defense filings in relation to that issue as well.

3
4

I believe there was some government and

Major Fein?
TC[MAJ FEIN]:

Yes, ma'am.

Ma'am, if it may please the court,

5

just after the court issued that order on 11 December 2012, the

6

government did submit an e-mail on 20 December 2012 seeking

7

clarification, asking if the court had for the purposes of the

8

Grunden filings in paragraph 2(c) if the court had intended that the

9

prosecution be able to -- would be required to provide notice of

10

whether the government objects to the defense's proposed use of

11

classified information as detailed in its filing just dated

12

26 October 2012 or did the court intend for it to be -- to include

13

26 October 2012 and all previous and subsequent filings.

14

e-mailed back saying all filings.

15

The court

So moving into the filings that have occurred for the

16

505(h) that led to the R.C.M. 802, other than previous filings that

17

have already been put on the record, on the 14th of December, 2012,

18

defense submitted a 505(h) notice, what's been marked as Appellate

19

Exhibit 450.

20

been marked as Appellate Exhibit 454, had submitted a response to the

21

defense's 505(h) witness notice.

22

what's been marked as Appellate Exhibit 455, the government provided

23

notice of a Grunden order issue, an issue the United States

The government on the 21st of December, 2012, what has

On the same day, 21 December 2012,

5850

09745

1

identified based off the court's Grunden order; and then on 4 January

2

2013, the defense submitted a reply to the government's response to

3

the defense's 505(h) response, that's been marked as Appellate

4

Exhibit 457, and then on the same day, what has been marked as

5

Appellate Exhibit 458, the defense submitted a response to the

6

prosecution's notice of inability to comply with the Grunden order.

7

Your Honor, the government's position of -- during the

8

R.C.M. 802 is that the government requires more specificity under

9

M.R.E. 505(h) for the different notice that has been provided by the

10

defense and that specificity is needed in order to comply with the

11

court's Grunden order and more will be discussed, of course, tomorrow

12

morning when this issue is, I guess, litigated.

13
14
15
16
17
18
19

MJ:

All right, and what was the appellate exhibit number for

the government notice of inability to comply?
TC[MAJ FEIN]:

Yes, ma'am.

The gov -- the appellate exhibit

number is Appellate Exhibit 455, dated 21 December 2012.
MJ:

All right, thank you.
Defense, do you have anything to add?

ADC[MAJ HURLEY]:

No, ma'am, other than to explain the position

20

of the defense briefly.

First, the 14 December M.R.E. 505(h) notice

21

was a notice to use certain damage assessments in their entirety, and

22

we believe that submission is enough to get the government started in

5851

09746

1

getting that approval or disapproval determined by the original

2

classification authority.

3

Second, our ability to discuss with the witnesses in

4

particular what portions of that or any other classified documents is

5

limited by whether or not we knew that we were approved to talk to

6

these particular witnesses prior to trial about the -- those

7

classified matters; and like the government said, we'll talk about

8

this additionally tomorrow afternoon.

9

MJ:

All right, and that's the reason I want the parties to

10

confer and narrow down whatever -- if you have certain clearances

11

approvals you just don't have them yet, the government to notify the

12

defense of that and then state with particularity exactly what you

13

need to further process these documents.

14

TC[MAJ FEIN]:

15

ADC[MAJ HURLEY]:

16

MJ:

17

TC[MAJ FEIN]:

18

Yes, ma'am.
Yes, ma'am.

All right, at issue for this session ---Ma'am, I apologize.

There's a few more

housekeeping ----

19

MJ:

All right, proceed.

20

TC[MAJ FEIN]:

The court issued a updated case calendar on the

21

20th of December of 2012, what's been marked as Appellate Exhibit

22

453, although as you've already stated, that calendar has already

23

changed; and the only other remaining are the actual motions and

5852

09747

1

responses which will be discussed during the actual motions -- or

2

that litigation of those.

3

MJ:

All right.

The motions that we have at issue for this

4

session are two motions to preclude evidence by the government, and

5

that's evidence of motive and then evidence of over classification.

6

Those two motions will be addressed today; then following that we

7

have three motions for judicial notice, one from the government; two

8

from the defense, for a variety of things.

9

judicial notice of the damage assessments.

10

The defense’s are for

Now just for my edification, Defense, is that judicial

11

notice that they exist or judicial notice for the substantive

12

information in them?

13

ADC[MAJ HURLEY]:

14

MJ:

15

The substantive information in them, ma'am.

Okay.
And [conferred with the court reporter] -- all right, I’m

16

understanding from the court reporter that the defense microphone is

17

not picking up, so the court reporter is not hearing what the defense

18

says.

19

COURT REPORTER:

20

MJ:

21

I'm hearing it; it's just very faint.

All right, well since we're having a verbatim record of

trial, I'd rather you didn't hear very faintly.

22

ADC[MAJ HURLEY]:

23

talk from the podium.

Well, ma'am, we'll go to the podium.

5853

We'll

09748

1
2

MJ:

Well, let's do this.

Why don't we take a brief recess;

let's see if we can fix this and we'll proceed at that point.

3

Court is in recess.

4

[The Article 39(a) session recessed at 1043, 8 January 2013.]

5

[The Article 39(a) session was called to order at 1103, 8 January

6

2013.]

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

Has the audio been fixed?

11

TC[MAJ FEIN]:

12

MJ:

13
14
15
16

Yes, Your Honor.

All right.
All right, I believe we were discussing the M.R.E. 505(h)

notice, is that correct, or have we moved on?
ADC[MAJ HURLEY]:

Ma'am, we've moved on to a discussion with

judicial notice ----

17

MJ:

Okay.

18

ADC[MAJ HURLEY]:

19

MJ:

Okay.

---- with Captain Tooman.

So judicial notice we were talking about, then, the

20

-- I had asked the defense if you were -- were looking for me to

21

judicially notice everything in the actual damage assessments rather

22

than ----

23

ADC[MAJ HURLEY]:

Or just its existence.

5854

09749

1

MJ:

2
3

---- the existence of the damage assessments, all right.
Is there anything further we need to address before we

proceed to what will be litigated today and tomorrow?

4

TC[MAJ FEIN]:

No, ma'am.

5

ADC[MAJ HURLEY]:

6

MJ:

No, Your Honor.

All right, in the R.C.M. 802 conference I held with the

7

parties, we discussed the issues that will be litigated during this

8

Article 39(a) session.

9

would discuss the prosecution's motion to preclude motive evidence

The parties and the court agreed that we

10

first, followed by the prosecution's motion to preclude over

11

classification evidence.

12

we'll look at when we're going to take lunch; and the court is also

13

prepared to issue its Article 13 ruling today, which the court will

14

do after lunch.

15

issue, followed by the three judicial notice motions, and then

16

finishing up with the defense motion to compel witnesses.

17

know if we'll get through all of that tomorrow.

18

tomorrow.

19

Thursday and Friday.

20

Depending on how far we get with that,

And then tomorrow, we will address the M.R.E. 505(h)

I don't

If we do, we may end

If we don't, we've got the court scheduled to go through

Does either side desire to supplement anything I've said?

21

ADC[MAJ HURLEY]:

22

TC[MAJ FEIN]:

No, Your Honor.

No, Your Honor.

5855

09750

1
2

MJ:

All right, is the government ready to argue its motion to

preclude evidence of motive?

3

ATC[CPT OVERGAARD]:

Yes, ma'am.

And the government motion is

4

Appellate Exhibit 394 and the defense response is Appellate Exhibit

5

429.

6

Ma'am, the United States submitted the motion in limine to

7

preclude the defense from raising evidence of motive in just the

8

merits portion of the trial in order to exclude irrelevant evidence

9

and to increase the efficiency of the proceedings.

10

Now throughout the pretrial proceedings so far, the defense

11

has raised motive to attempt to excuse the accused's misconduct, and

12

in their written motion, they point specifically to motive evidence

13

as being relevant to Article 104 to the Charge II, Specification 1,

14

and to the 641 charges.

15

evidence that suggests that the accused's motivation was something

16

other than to deal with an enemy would tend to make a fact of

17

consequence, for example, his guilty knowledge, less probable.

18

defense has also contended that the same logic applies to every

19

charged offense that requires guilty knowledge.

20

Specifically, the defense has contended that

The

Now the accused's motive for his intentional actions,

21

however, is irrelevant to the charged misconduct in this case because

22

evidence that he was motivated, for example, by wanting information

23

to be free does not have any impact on whether or not he had the

5856

09751

1

requisite intent, that is to say, that he knew what he was doing when

2

he transmitted the classified information to persons who were not

3

authorized to receive it.

4
5
6

A person need only have the requisite intent ---MJ:

Now let's go -- let's go through each of these

specifications here that the defense claims motive ----

7

ATC[CPT OVERGAARD]:

8

MJ:

9
10

Yes, ma'am.

---- is relevant.

Let's start with the aiding the enemy

knowledge.
ATC[CPT OVERGAARD]:

The defense in their motion point

11

specifically to the court's requirement in your instructions, ma'am,

12

of general evil intent, and your instructions are Appellate Exhibit

13

-- let me see [pause to locate appellate exhibit number] -- 410, I

14

believe; yes, ma'am, Appellate Exhibit 410.

15

instructions, the general evil intent simply refers to the

16

requirement for the United States to prove that the accused knew that

17

he was dealing directly or indirectly with an enemy of the United

18

States, so there's no bad faith motive in that, so no alleged good

19

faith or motive would be relevant to whether the accused knowingly

20

gave intelligence to the enemy.

21
22

MJ:

And in your

What's the government's position -- well, go ahead.

let you finish your argument.

5857

I'll

09752

1

ATC[CPT OVERGAARD]:

2

Specification 1 of Charge II.

3

MJ:

Okay.

I was going to continue on to the

Well before you do that, the -- I understand the

4

government's position and the case law is that, well, that aiding the

5

enemy, it requires a knowing mens rea, and the knowledge is the --

6

does the government -- is it the government's position that the

7

knowledge required is that the accused knew that he was dealing with

8

the enemy?

9

ATC[CPT OVERGAARD]:

Yes, ma'am.

According to your

10

instructions, the accused had to know that he was dealing either

11

directly or indirectly with an enemy of the United States.

12
13
14
15

MJ:

Does evidence of intensity of motive or singular focus on

motive have any bearing towards the knowledge prong?
ATC[CPT OVERGAARD]:

So -- I mean the gov -- Is there -- is there an example, ma'am?

16

MJ:

17

ATC[CPT OVERGAARD]:

18

MJ:

19
20

Evidence of the intensity of the motive?

[No response.]
So if ----

I'm thinking so much about what I want to do with this

information that the enemy never crossed my mind.
ATC[CPT OVERGAARD]:

The government would contend that that

21

would not be evidence of the accused's intent.

22

that somehow negated the accused's intent, that would obviously be

23

admissible, but an example of -- I mean there's an extinction --

5858

If there was evidence

09753

1

there's a distinction between motive and intent, so the motive is

2

what prompts a person to do the act and the intent refers to the

3

state of mind in which the act is done; so the government would --

4

the government would always concede that if there is any evidence

5

that goes towards negating the accused's state of mind when he was

6

doing the act, negating his requisite intent that he had to commit

7

the act, that that would be relevant, but evidence showing just what

8

motivated the accused to act wouldn't in any way negate his intent

9

because he still had the requisite intent that he needed to have in

10

order to commit the act.

11

that are given are like in -- in Huet Vaughn; just because an accused

12

didn't think that the order was, you know, correct or in line with

13

something she believed in doesn't mean that that's any relevance on

14

why she committed the misconduct, which was to desert her unit; or

15

the classic example is if somebody stole a loaf of bread to feed

16

their family, I mean, that person still stole the loaf of bread, even

17

though it was for a good motive.

18

MJ:

So just because, you know, the examples

Does the government have any cases that deal with

19

knowledge?

I mean these are all intent, you know, intent, and I

20

understand the distinction between intent and a motive.

21

that you had a laudable motive doesn't negate the fact that you, as

22

you said, if you intend to feed your family, you have a noble motive

23

but you still intended to steal the bread.

5859

The fact

09754

1

ATC[CPT OVERGAARD]:

2

MJ:

3
4
5
6

Yes, ma'am.

So the motive isn't relevant to the intent.
Are there any cases that the government's aware of

involving knowledge and motive?
ATC[CPT OVERGAARD]:

Well the knowledge -- I mean the knowledge

would go towards the intent in ----

7

MJ:

Well that's the mens rea.

8

ATC[CPT OVERGAARD]:

9

MJ:

Yes, ma'am.

But in aiding the enemy, the required intent is the accused

10

has to know he's dealing with the enemy.

11

to have a specific intent to deal with the enemy.

12

ATC[CPT OVERGAARD]:

Yes, ma'am.

He doesn't necessarily have

But evidence that the accused

13

-- I mean the government's contention is that the intent in that case

14

would be the knowledge; that the government would have to prove that

15

he knew and the government would have to prove the state of -- or any

16

evidence that would go towards the state of denying of that knowledge

17

would be relevant.

18

different motive wouldn't go towards whether or not he knew what he

19

was doing.

But, again, any evidence showing that there was a

20

MJ:

Okay.

21

ATC[CPT OVERGAARD]:

So, again, the government has tried to

22

distinguish -- draw a line between motive and intent and -- in their

23

motion, which as we said an easy way to think of it is that the

5860

09755

1

motive is what prompts a person to act and the intent refers to the

2

state of mind in which the act was done.

3

MJ:

Let me go back again to my original question, ----

4

ATC[CPT OVERGAARD]:

5

MJ:

Yes, ma'am.

---- because I'm also looking at the McGinnis -- or the

6

early McGinnis case on the 793 -- I believe that was 793(e).

7

the defense hasn't -- the defense hasn't moved to admit motive

8

evidence for the 793(e) offenses if I'm understanding the defense

9

motion correctly.

10
11

ATC[CPT OVERGAARD]:

Well

That wasn't part of the defense motion; no,

ma'am.

12

MJ:

No, so I'm looking at Olson and the old cases dealing with

13

Batchelor -- the old cases addressing the Article 104 offense.

14

in all of -- in the old cases, the -- as I understand them, please

15

correct me if I'm mistaken, the issue of whether the accused knew he

16

was dealing with the enemy wasn't really at issue.

17

actually either talking to the enemy or doing some kind of direct

18

means versus the indirect means at issue here.

19

motive in those cases really didn't go to the knowledge prong, did

20

it?

21
22
23

ATC[CPT OVERGAARD]:

I think he was

So these -- the

I believe both Batchelor and -- can I have

a second?
MJ:

Now

Yes.

5861

09756

1
2

[The assistant trial counsel and the trial counsel conferred.]
ATC[CPT OVERGAARD]:

Ma'am, I think -- I think the Batchelor

3

cases and those line of cases are communication cases, but there are

4

other even older cases, and I don't have the citations, ma'am, but --

5

that talk about publishing information in a newspaper and that's an

6

indirect way to convey information to the enemy.

7

could ----

8
9
10

MJ:

The government

Well the court would appreciate those cases coming before

the court.
ATC[CPT OVERGAARD]:

11

Yes, ma'am.

So to continue with Charge II, Specification 1, ma'am?

12

MJ:

Yes.

13

ATC[CPT OVERGAARD]:

Good faith or other motive evidence does

14

not negate the intent in that specification either; that the accused

15

wrongfully and wantonly caused the information to be published on the

16

Internet with knowledge that it would be accessible to the enemy,

17

because, again, the knowledge requirement in this charge requires

18

that the accused had to have actually known that the intelligence

19

published on the Internet was accessible to the enemy.

20

motivation behind the accused's knowing act is not relevant to

21

whether or not he knew what he was doing.

22

come in based on his training and experience of his MOS as an intel

23

analyst.

5862

The

That information would

09757

1

And finally good faith or other motive evidence does not

2

negate the intent of the 641 charges; that the accused knowingly and

3

willfully stole, purloined, or converted a thing of value to the U.S.

4

There the act was done -- the act must be done knowingly for the

5

purpose of the -- for that charge, I'm sorry, ma'am, the act is done

6

knowingly if it's done voluntarily and intentionally.

7

motivation behind the accused's willful and knowing act does not

8

negate that he knew he was stealing, purloining, or knowingly

9

converting information that belonged to the U.S..

10

So, again, the

For all these charges, the argument is ultimately the same.

11

Even if the accused released classified information, for example,

12

because he thought the information should be free, it does not change

13

the fact that he willfully committed the misconduct and that he knew

14

the consequences of his actions; in this case that that information

15

would, in fact, go to the enemy.

16

States ----

17

MJ:

18

ATC[CPT OVERGAARD]:

19

MJ:

20

ATC[CPT OVERGAARD]:

21

And in our motion, the United

So are you back to Specification 1 of Charge II?
Yes, ma'am.

Okay.
Yes, ma'am.

In our motion, the United States specifically cites as

22

examples of inadmissible motive evidence proffers of testimony by the

23

defense of their witnesses, and the first one is the defense calling

5863

09758

1

Adrian Lamo to say that the accused believed information belongs in

2

the public domain and that information should be free.

3

government contends that this is clearly motive evidence because it

4

shows why the accused did what he did, what prompted him to do what

5

he did, versus intent, which is the state of mind from which he did

6

the act.

7

MJ:

The

So my understanding here, the government is not going to be

8

offering any evidence from Adrian Lamo or Zachary Antolak about this

9

information belonging in the public domain and should be free.

10

ATC[CPT OVERGAARD]:

That's correct, ma'am.

The government

11

contends that information is valid on sentencing and not on the

12

merits portion.

13
14
15

MJ:

All right, so the government's not offering motive evidence

to prove intent.
ATC[CPT OVERGAARD]:

No, ma'am.

16

However, the other example the United States cited in its

17

motion was the statement by the individual who is actually formerly

18

known as Zachary Antolak.

19

that Zachary Antolak has completed a legal name change to Lauren

20

McNamara.

21

upon further examination of the proffered testimony of Lauren

22

McNamara, the United States can conceive that at least one of the

23

statements made by the accused in the chat could potentially be

I believe you received from the defense

I think they filed that with you on 4 January, ma'am.

5864

So

09759

1

relevant to the accused's knowledge that he was dealing with the

2

enemy.

3

MJ:

Which one?

4

ATC[CPT OVERGAARD]:

That he was more concerned about making

5

sure that everyone, Soldiers, Marines, contractors, and even local

6

nationals, would get home to their families safely.

The government,

7

however, does not believe this is motive evidence.

We think it could

8

possibly be relevant to the accused's state of mind or his intent

9

when committing the charged misconduct.

10
11

MJ:

Well state -- his state of mind in committing the charged

misconduct, isn't that motive or at least ----

12

ATC[CPT OVERGAARD]:

13

state of mind is intent.

14

committing the misconduct is part of their intent to commit the act,

15

whereas the motive is what motivates a person, what prompts -- what

16

prompts them to actually commit the act.

17

MJ:

18

ATC[CPT OVERGAARD]:

No, ma'am.

The government contends that

The state of mind that one has when

Okay.
And this is why the United States also

19

withdrew its objection to the production of Lauren McNamara for the

20

merits portion of the trial.

21
22
23

MJ:

All right, did the government do that formally; is that

part of your ---ATC[CPT OVERGAARD]:

Yes, ma'am, we did.

5865

09760

1

MJ:

2

ATC[CPT OVERGAARD]:

3

---- okay.
That was part of our response to the

defense ----

4

MJ:

Okay.

5

ATC[CPT OVERGAARD]:

6

MJ:

7

ATC[CPT OVERGAARD]:

---- motion to compel.

Okay.
The defense also contends in their written

8

motion that the testimony of a government witness with respect to the

9

accused's intent makes evidence of motivation proper rebuttal

10

evidence, and the defense is referring to what the court and the

11

parties had labeled as "act 2" as part of the 404(b) motion ----

12

MJ:

All right.

13

ATC[CPT OVERGAARD]:

14

Appellate Exhibit 2 ----

15

MJ:

16

ATC[CPT OVERGAARD]:

17

---- and that's the court's ruling in

Uh-huh, I know what you're talking about.
---- 287.

Okay.

So without going into the details at all, the court found

18

that the act 2 evidence was relevant to the accused's state of mind,

19

which was relevant to prove that the accused knowingly gave

20

intelligence to the enemy for The Specification of Charge I and that

21

the accused recklessly and wantonly caused information to be

22

published on the Internet for Specification 1 of Charge II with

23

knowledge that the information would be accessible to the enemy and

5866

09761

1

that the accused willfully acted for the 793 and the 1030

2

specifications.

3

MJ:

So it's the government's position that act 2, the testimony

4

from Jihrleah Showman, is not evidence -- well, let me ask this:

5

Would the government agree or disagree with this proposition does

6

motive evidence show why someone did something?

7

ATC[CPT OVERGAARD]:

8

MJ:

9
10
11

[Pause] Yes, ma'am, it can.

So the testimony of Ms. Showman with respect to act 2, does

that show why or does that show -- is that evidence of intent or
motive or both?
ATC[CPT OVERGAARD]:

It's evidence of the state of mind, ma'am,

12

which the government contends is the intent; that he had the

13

requisite intent required to commit that misconduct and that is

14

evidence of his intent, that he had the proper state of mind.

15

MJ:

Does the government have any case law that says that state

16

of mind is only relevant to -- is only part of intent and not part of

17

motive?

18
19

ATC[CPT OVERGAARD]:

The government would have to look and get

back to the court, ma'am.

20

MJ:

All right.

21

ATC[CPT OVERGAARD]:

[Pause] And just to rebut the defense's

22

argument, I stated evidence of the accused's motive, for example,

23

that he committed misconduct because he thought information should be

5867

09762

1

free would in no way rebut the accused's intent or state of mind as

2

the act 2 statement supported when he made that act 2 statement.

3

again, it may show what prompted the accused to commit his crime but

4

it does not indicate the state of mind from which the act was

5

actually done.

6

evidence should be admissible during the merits portion of the trial.

7

MJ:

Therefore, the government contends that no motive

All right, thank you.

8

Mr. Coombs.

9

CDC[MR. COOMBS]:

10

So,

Yes, Your Honor.

Firs, Your Honor, the government does not understand the

11

defense's intended use of the motivation evidence of PFC Manning.

12

would agree that if motive evidence was used to excuse conduct or in

13

some way to say he acted in good faith, that that may be more

14

appropriate and probably would be more appropriate for sentencing as

15

opposed for the merits, but the defense argues that this evidence,

16

motive evidence as to why he selected certain information is relevant

17

for three main reasons.

18

weren't saying it was relevant for the 793 offenses, and while that

19

was not in the mode of response, it was in our witness list

20

notification as to why we're calling certain witnesses.

21
22
23

MJ:

And the court indicated, first, that we

So the defense is planning on using motive evidence for

793.
CDC[MR. COOMBS]:

We

Yes, Your Honor, and ----

5868

09763

1

MJ:

How is that square with Diaz?

2

CDC[MR. COOMBS]:

Well it goes with Diaz in that both for the

3

793 and the 1030 offenses, there is a requirement to prove that he

4

had a reason to believe that the information could be used to the

5

injury of the United States or to the advantage of any foreign

6

nation.

7

MJ:

8

CDC[MR. COOMBS]:

9

And how is his motive relevant to that?
Well reason to believe requires that the

government must prove that PFC Manning knew facts that either he --

10

from that either he knew or reasonably should have known that the

11

information could be used ----

12
13

MJ:
that"?

Well where do we get "knew or reasonably should have known

It's "reasonably should have known."

14

CDC[MR. COOMBS]:

15

MJ:

16

CDC[MR. COOMBS]:

17

MJ:

18

CDC[MR. COOMBS]:

Knew or reasonably should have known.

Reasonably should have known.
Yes, Your Honor.

Okay.
Yeah, so he has to have subjective intent or

19

he objectively should have known.

20

Exhibit 410, the court's instructions of either he ----

21
22
23

MJ:

This is at least from Appellate

I believe the court's instructions say "reasonably should

have known."
CDC[MR. COOMBS]:

No, I agree with that, ----

5869

09764

1

MJ:

2

CDC[MR. COOMBS]:

3
4
5
6

Okay.
---- Your Honor.

Either he knew or reasonably

should have known.
MJ:

Knew or reasonably should have known; strike "knew";

reasonably should have known.
CDC[MR. COOMBS]:

7

Okay, Your Honor; okay.

So from that, the government could meet its burden by

8

showing that he knew the information was used for the prohibited

9

purposes or that he reasonably should have known that the information

10

was used for the prohibited purposes.

11

MJ:

Okay.

12

CDC[MR. COOMBS]:

And before I get into that argument, I just

13

want to lay out the two other reasons why we would say it's relevant.

14

So for the first, again, as it relates to the reason to believe

15

information could be used to the injury of the United States or to

16

the advantage of a foreign nation, that would apply for both the 793

17

offenses and for the 1030 offenses.

18
19
20

MJ:

Mr. Coombs, may I ask you a question?

Why isn't any of

that in your response?
CDC[MR. COOMBS]:

Well, Your Honor, that's laid out in, again,

21

our request for the witnesses; and then our response, it instead of

22

reiterating the argument for the relevancy, it says look to our

5870

09765

1

request for witnesses, and our request for witnesses lays out why

2

----

3

MJ:

And where does it say that?

4

CDC[MR. COOMBS]:

5

MJ:

Within the motion, Your Honor.

[Reviewed exhibit] Well it says, "Likewise, the defense

6

intends to call Zachary Antolak to discuss those matters described"

7

-- all right.

8
9

CDC[MR. COOMBS]:

I don't mean to throw a wrench in this.

I

think if you allow me to go through the argument you'll see the

10

defense's position, and it does comport with Diaz and the guidance

11

----

12

MJ:

Okay, yeah, now I'm certainly going to allow you to do your

13

argument, but I would ask both sides if you're going to make

14

arguments to me it's helpful that I have them in advance without, you

15

know, find it over here somewhere, okay, so just please do that.

16

CDC[MR. COOMBS]:

17

MJ:

18

CDC[MR. COOMBS]:

19

Yes, Your Honor.

Okay.
Again, I apologize.

It was not my intent to -

---

20

MJ:

Okay.

21

CDC[MR. COOMBS]:

---- play hide the ball with the court.

5871

09766

1

So, first, again, going towards a reason to believe and

2

that would apply to both the 793(echo) and to the 1030(a)(1)

3

offenses.

4

Second, as it relates to whether he had the requisite mens

5

rea requirement under Article 104, and I will discuss that both for

6

intelligence and for the general evil intent.

7

And, third, for rebuttal regarding Ms. Showman.

8

So reason to believe.

Again, the government has to show

9

that he reasonably should have known that this information could be

10

used for the prohibited purposes, and undoubtedly the government in

11

their case in chief is going to offer evidence of PFC Manning's

12

training as a 35 Fox.

13

information was marked as classified.

14

information that much, if not all, of the information was pulled from

15

the SIPRNET, and from that they'll argue to the court that PFC

16

Manning knew that this could be used for the prohibited purposes or

17

they'll argue that he reasonably should have known that this could be

18

used for the prohibited purposes.

19

do that, as the government trying to prove its case, but if that is

20

true, then the opposite must be just as true.

21

entitled to use PFC Manning's training, knowledge, and experience to

22

show that he selected information that he believed could not be used

They'll offer the fact that the -- some of the

5872

Certainly they'll offer

And obviously they're entitled to

The defense must be

09767

1

to the harm of the United States or to the advantage of any foreign

2

nation.

3

MJ:

Well how is that motive evidence?

4

CDC[MR. COOMBS]:

I mean what ----

Well that motive evidence is his motivation in

5

this instance and the way the defense reads the government's motion,

6

his motive to select information that he believed could not be used

7

for prohibited purposes, in other words, harm the United States or

8

aid any foreign nation, and that he believed should be public based

9

upon various reasons.

10

MJ:

In ----

Just let me -- let me just stop you there.

So this

11

information, what -- this information on motive is information should

12

be free.

13

would want to introduce?

14

What's the information we're talking about that the defense

CDC[MR. COOMBS]:

Well that's how the government has couched

15

that, "information should be free."

16

the defense would be presenting is PFC Manning's motive to select

17

information that he believed could not be used to the harm of the

18

United States; that also comes out through the testimony of Adrian

19

Lamo and their chats of him saying, you know, if this information's

20

out in the open it can't be used to the harm; and it really kind of

21

follows a logical train of thought.

22

open and everyone knows it and it's selected information that he

23

believed would -- was either overclassified, and we'll talk about

5873

The motive in this instance that

If it's going to be out in the

09768

1

that for a separate motion, or he believed could not be used to the

2

harm of the United States, then once it's out in the open, obviously

3

at that point everyone knows it so it's not information that's going

4

to aid the enemy, it's not information that is going to harm the

5

United States because it is out in the open.

6

government has tried to couch his motive as a information-should-be-

7

free motive but that is not, you know, the limit -- the sole

8

limitation of his motive here.

9

MJ:

So his -- the

The information of the motive, as I understand from the

10

defense, the defense wants to use it through the chats with Mr. Lamo;

11

is that ----

12
13
14
15
16

CDC[MR. COOMBS]:

That's part of it, and then as we, you know, -

--MJ:

Do I have those chats to look at to see what you're talking

about?
CDC[MR. COOMBS]:

No, Your Honor, and in many cases, this motion

17

by the government, again, is better served at the time when the court

18

actually has the benefit of seeing the government's case as they

19

present it and then as we present our case and make a determination

20

at that point whether or not the information is relevant.

21

government is seeking it in advance to preclude an entire area of the

22

defense and we're left in a position now of not just litigating this

23

issue but then trying to basically put our defense's case in chief on

5874

The

09769

1

during this motions hearing.

It's untimely in order to file the

2

motion at this point because the court doesn't have all the

3

information that it would need; but if the court just looks at the

4

fact that the government does have to prove that he reasonably should

5

have known and this does kind of dovetail with another ruling of the

6

court with regards to the damage assessments.

7

out through witnesses that PFC Manning selected information that he

8

believed could not be used for the prohibited purposes, then his

9

subjective belief at that point of why he selected certain things,

If information comes

10

again, I selected this information because I didn't believe it could

11

cause harm.

12

would cause harm, that subjective belief becomes relevant if it's

13

objectively reason ----

14

MJ:

I didn't select this information because I knew this

Is that the information in the chat?

I mean, what's the

15

problem with me seeing what's already out there for purposes of

16

deciding this motion?

17

CDC[MR. COOMBS]:

Well because some of that information is not

18

just going to be coming from Adrian Lamo.

19

the fact that if the -- if the defense's position that we elicit

20

through witness' testimony is that he selected information that could

21

not be used to the harm of the United States, that was his motive,

22

his subjective motive, and he believed that he did that, then the

23

term -- determination for the 793 offenses and the 1030 offenses

5875

[Pause] And if you look at

09770

1

turns on whether or not that was objectively reasonable; and as the

2

court has previously held, then that would make evidence of the

3

actual harm, as documented in the damage assessments, relevant in the

4

merits portion to corroborate whether or not his belief, his

5

subjective held belief was, in fact, reasonable; and so the defense's

6

position here is this is very similar to United States v. Miller.

7

The cite for that is 874 Fed. 2nd 1255; it's a Ninth Circuit case.

8
9
10

MJ:

Okay, what's the cite again?

It's very helpful to have

these in advance, yes.
CDC[MR. COOMBS]:

Yes, Your Honor; 874 Fed. 2nd 1255.

There the

11

court said, "We are troubled by the instruction," referring to the

12

judge's instruction, "because it seems to misconceive the nature of

13

Miller's defense.

14

within the scope of his duties, rather his defense was he was

15

deliberately -- he deliberately went outside the scope of what he was

16

authorized to do and that he did so in order to set up an operation

17

that he hoped would later meet with FBI approval; thus it would have

18

been more appropriate to instruct the jury to the effect of Miller's

19

reasonable belief, if any, that his actions would have met with

20

subsequent approval from his FBI superiors in order to -- that could

21

be taken into account in deciding whether he had a reason to believe

22

his actions would harm the United States or help a foreign nation."

23

In this case, it was the Soviet Union.

Miller did not really contend that he was acting

5876

09771

1

So much like in that instance, in the defense's case and

2

also in cross-examination of witnesses, we will elicit information

3

that goes to whether or not this information -- whether or not PFC

4

Manning reasonably should have known this information could cause

5

damage.

6

Lamo and other witnesses, is that PFC Manning selected information

7

that he believed could not cause damage, then that subjective belief

8

is relevant and that motive evidence of my motive is to select

9

information that's not going to be prohibited -- used for prohibited

10
11
12
13

If the motive evidence that we bring out, either through

purposes is relevant ---MJ:
evidence?

That's where I'm getting confused.

How is that motive

That's intent evidence, isn't it?

CDC[MR. COOMBS]:

Well, and I would argue that it is; it is

14

intent; it's what did you intend to do?

The government argues that

15

that motive evi -- the evidence of intent of, hey, my intent is to

16

select information that could not be used to the harm of the United

17

States is the motive that he's trying to do, and so as we read their

18

motion, that is what they're trying to prohibit.

19

when he talks about, you know, why don't you just sell this

20

information?

21

public.

22

can't do any harm is the essential testimony that may be coming from

23

Adrian Lamo.

Certainly from Lamo

Well, you know, this information should be out in the

If it's out in the public, it's for a greater good and it

The government is seeking to prohibit that under an

5877

09772

1

idea that this is motive, and oftentimes motive and intent can exist

2

at the same time.

3

you're doing things; and if the evidence was that, you know, that he

4

was -- we were trying to use this motive to excuse his conduct, that

5

would be a sentencing aspect of it, but we're not using it for that

6

purpose.

7

MJ:

Your motive can educate your intent as to why

So if I'm understanding you, whether he had reason to

8

believe is an objective question; it's not whether he believed it or

9

not, so ----

10

CDC[MR. COOMBS]:

No, it's totally -- correct.

So the objective

11

question is the ultimate determination.

12

offer is it his subjective belief and whether or not his subjective

13

belief was reasonable from an objective standpoint then comes in --

14

that's how you would then look at the other evidence, to include the

15

damage assessments.

16
17
18

MJ:

If the evidence that you

So you're saying reason to believe has an affirmative

mistake of fact offense is what you're saying.
CDC[MR. COOMBS]:

Well it would if what you raised -- if you

19

believe subjectively that it could not cause damage and objectively

20

that was reasonable, then that is a defense.

21

becomes almost a failure of ----

22
23

MJ:

So the question then

How is that a specific -- how is reason to believe a

specific intent?

5878

09773

1

CDC[MR. COOMBS]:

2

MJ:

3

CDC[MR. COOMBS]:

4

MJ:

5

CDC[MR. COOMBS]:

6

MJ:

7

CDC[MR. COOMBS]:

I'm not saying ----

Or ------- that it is, Your Honor.

So you use honest and reasonable ---Exactly.

---- mistake of fact as to the reason to believe.
Correct, Your Honor, and the issue here is the

8

government has that burden to prove that he reasonably should have

9

known, so this evidence, then, goes to whether or not the government

10
11

meets that burden, both for the 793 offenses and for the 1030.
MJ:

Whoa, whoa, whoa, whoa.

The mistake of fact -- okay, so if

12

the defense of mistake of fact is raised, that's something the

13

defense has to raise, right?

14

CDC[MR. COOMBS]:

If you're using the mistake of fact defense,

15

but the government apart from the mistake of fact defense has the

16

obligation under its burden for these offenses to prove that PFC

17

Manning reasonably should have known that this information could be

18

used to the harm of the United States or to the advantage of a

19

foreign nation; that is their requirement.

20

MJ:

21

CDC[MR. COOMBS]:

So ----

So ------- when you look at that requirement, our

22

evidence that we're offering negates the government's, you know,

23

burden of proof or it negates an element the government is intending

5879

09774

1

to prove; that could be used just solely for that, or if you wanted

2

to raise a mistake of fact defense, you could do so as well, but in

3

this instance we're offering this evidence under the government has

4

the burden to prove that PFC Manning reasonably should have known

5

that this information could be used for prohibited purposes.

6

MJ:

So where's the subjective prong in that?

7

CDC[MR. COOMBS]:

There isn't, and we're -- I'm not saying there

8

is.

9

can offer it through witnesses is his subjective belief ----

10
11
12

What I'm saying is what we're trying to offer is -- and what we

MJ:

That's what I just asked you.

Why is that relevant to an

objective test?
CDC[MR. COOMBS]:

And I'm not -- I'll explain it.

So you offer

13

-- I subjectively selected information that I believed could not be

14

used to the harm of the United States.

15

subjective belief is reasonable then, as the court has said, if that

16

evidence comes out that he selected information he didn't believe

17

could be used to the harm of the United States, then you can look at

18

other information to see if that was objectively reasonable, because

19

that in and of itself wouldn't get you out of trouble, but if it was

20

objectively reasonable, then, yes, it would and that's why this

21

evidence is relevant because it sets up what is, in fact, then what

22

is the ultimate determination, was it objectively reasonable or not?

5880

Now whether or not that

09775

1
2
3

MJ:

That's all very interesting, Mr. Coombs.

Why don't I have

any of this in your response?
CDC[MR. COOMBS]:

Well in this instance, the government when

4

they were saying they want to preclude motive evidence, again the

5

motion is untimely from the defense's position because the court's

6

not in a position to make a determination on that from a factual

7

standpoint.

8

where you can see how the facts play out; but when we laid out both

9

in our mode of response, which was in this case a motion by the

It's more appropriate when you actually get to the case

10

government that although was on our calendar as far as motions in

11

limine wasn't detailed as to what their motions would be, but then

12

when you look at our proffer as to why we're trying to compel certain

13

witnesses, that lays out exactly what we're asking the witnesses to

14

testify to; and in this instance now, again just trying to respond to

15

the government's broad brush we want to keep out any motive evidence

16

that may -- and even they can't fully articulate the difference

17

between motive and intent and how sometimes motive may be, in fact,

18

relevant and not, they just simply want to eliminate that as a

19

possible defense.

20

the 793 and 1030 offenses, the defense's position is that this

21

evidence could come out through witnesses to determine whether or not

22

he had the requisite intent or the government meets its burden under

23

the 793 offenses to show that he objectively should have known the

Well, in trying to respond to that, at least for

5881

09776

1

information could be used for prohibited purposes and that's why it's

2

relevant.

3

MJ:

All right.

4

CDC[MR. COOMBS]:

Now it's also relevant for actual knowledge

5

under the Article 104 offense.

For there, the government has to

6

prove that PFC Manning knowingly gave intelligence to the enemy

7

through WikiLeaks.

8

actually giving intelligence to the enemy through indirect means, and

9

the only indirect means so far that the government has presented in

Now knowledge requires that he knew that he was

10

its filings is through giving this to WikiLeaks.

11

requires both that the information charged needs to be intelligence

12

and that PFC Manning had a general evil intent to deal directly with

13

the enemy; and they have to show that he had actual knowledge that he

14

was, in fact, dealing with the enemy.

15

you look at intelligence, the government has to prove under

16

intelligence that this information was helpful information to the

17

enemy, that's their burden, and PFC Manning's motive to select

18

information that he believed could not be used for prohibited

19

purposes is relevant evidence at this point.

20

believed that he selected information that could not be used to harm

21

the United States and that is determined by the court, the trier of

22

fact, that was objectively reasonable, then that goes -- that takes

5882

Now this offense

So his motive evidence when

If he subjectively

09777

1

away the idea that the information charged was intelligence as

2

required under Article 104.

3

MJ:

Now how do we get an honest and reasonable mistake of fact

4

as to whether something is intelligence?

5

it's not.

6

CDC[MR. COOMBS]:

It's either intelligence or

Well the intelligence under the definition is

7

it has to be some information that is helpful to the enemy, and so

8

when you -- when you look at -- and it has to be true; and so when

9

you look at that, if you are selecting information that you believe

10

could not be used for prohibited purposes, in other words, could not

11

be used to harm the United States, then -- and also just the common

12

sense of the information that would be helpful to the enemy would be

13

information that is given directly to the enemy in a -- in a manner

14

and a fashion in which it's not discovered that information has been

15

provided to the enemy; and that's why every case that charges Article

16

104 deals with somebody who has gone directly to the enemy and

17

there's no doubt as to the intent and there's no doubt as to the plan

18

of having -- giving information to them and hoping that it would be

19

helpful to the enemy.

20

government is trying to charge the 104 offense and we've litigated

21

that motion, but in this instance, then, whether or not if he -- if

22

his motive or his intent was to select information that could not be

23

used for prohibited purposes, in other words, to harm the United

This case is unprecedented in how the

5883

09778

1

States, that is some evidence as to whether or not this information

2

qualifies as intelligence under Article 104 and whether or not the

3

government meets its burden.

4

intent.

5

general evil intent in that they have to prove that he knew he was

6

dealing with the enemy, either directly or indirectly, when he gave

7

information to WikiLeaks.

8

determined, violate Article 104 inadvertently, accidentally, or

9

negligently; and in this instance, the motive evidence or the intent

It also is relevant to general evil

The government must prove that Manning -- PFC Manning had a

In other words, you cannot, as the court

10

evidence of PFC Manning's select information that could not be used

11

for prohibited purposes helps to disprove the general evil intent in

12

this case of actually trying to convey information to the enemy.

13

MJ:

Well, remember, this isn't a specific intent crime.

I

14

mean, the general evil intent, you can't convert that to a specific

15

intent crime.

16

is the knowledge mens rea.

17

CDC[MR. COOMBS]:

I mean, the general evil intent is the knowledge it --

Right, and the knowledge mens rea there is

18

knowing that you're dealing indirectly or directly with the enemy.

19

If your -- if your motive is to select information that you believe

20

could not be used to the harm of the United States, that information

21

is relevant to the actual knowledge of dealing with the enemy,

22

because if someone is selecting information they don't believe could

23

be used to the harm of the United States, that undercuts any argument

5884

09779

1

that they were trying indirectly or directly to give information to

2

the enemy and so that undercuts the general evil intent that's a

3

requirement under the government to prove.

4

pointed out, you can have a situation and -- where your sole focus is

5

to provide information that you believe (1) could not be used to harm

6

the United States but should be made public for the greater good and

7

the enemy never factor into your equation; and, again, if that --

8

that's your motivation and that's the evidence -- that's the evidence

9

of intent, then that undercuts the general evil intent or the actual

Also, as the court

10

knowledge requirement that the government must show in order to carry

11

its burden on the 104 offense.

12

In this situation also, if you were in a position in which

13

the trier of fact, the court, determined that this information was

14

intelligence, then it sets up the defense that you inadvertently,

15

accidentally, or negligently provided intelligence to the enemy if

16

your sole motive or sole intent was to provide information that you

17

believe could not be used to harm the United States and instead

18

should be information that's out in the general public.

19

regard, it would impact either the general evil intent or the actual

20

knowledge requirement that the government must prove to carry its

21

burden or it would provide the defense of inadvertently,

22

accidentally, or negligently providing intelligence to the enemy if

23

that motive evidence or that intent evidence shows that what was

5885

So in that

09780

1

factored into your mind was never giving information to the enemy or

2

never using WikiLeaks as the conduit to get information to the enemy.

3

The cases that the government cites -- and the defense can

4

get you those -- or the government's referenced as far as using

5

newspapers, the defense had those in its motions and I can, after

6

today's hearing, give the court exact cites, but those cases dealt

7

with basically Civil War Era-type cases, where they dealt with using

8

newspapers in order to put in code information for the enemy, so

9

that's how you used newspapers indirectly to get information to the

10

enemy, you took out an ad that the enemy then could take the ad and

11

you each had a code chart and you could decipher from that ad what

12

the actual information was; that's the example of using newspapers.

13

There's been no case in the entire history of military jurisprudence

14

that dealt with just simply providing information to a legitimate

15

journalistic organization and then having them publish it and that

16

being held as aiding the enemy in and of itself.

17

still has to show that actual knowledge that he was dealing with the

18

enemy or a general evil intent -- well actually and a general evil

19

intent to do so and this evidence goes directly to that.

20

So the government

Finally, this evidence also rebuts the evidence the

21

government intends to elicit from Ms. Showman.

The government would

22

ask the court to listen to what they say is the 404(b) evidence that

23

shows state of mind.

State of mind months previous to a deployment

5886

09781

1

and what the defense would argue and what we will show during the

2

case in chief was not a conversation about one's political beliefs or

3

one's desire to provide information to the enemy; but the

4

government's entitled to take that 404(b) evidence and argue the

5

value for what they think they can pull from it.

6

entitled to do that, then we're entitled to rebut that, so when they

7

present that evidence of, hey, this is his true motivation, Your

8

Honor, based upon this one statement in a counseling session months

9

prior to the deployment, well, that is when we're entitled to offer

But just as they're

10

his true motivation in this case or his true intent as rebuttal in

11

order to select information that he believed could not be used to

12

harm the United States or to the advantage of any foreign nation.

13

Now, again, when the government filed this motion, it's

14

clear the goal is to basically cut out a whole level of defense, and

15

they were successful in that when they filed their motion to prohibit

16

actual harm, but even there the court said that if you have some

17

evidence to show the subject -- the subjective belief of PFC Manning

18

and that this evidence would corroborate that subjective belief, then

19

that actual damage information could be relevant, and this is how the

20

defense believes that this would come into play during the case in

21

chief.

22

Subject to your questions.

5887

09782

1
2
3

MJ:

Yes.

The defense has also said it's relevant to

Specifications 1, 4, 6, 8, and 12 of Charge II; how?
CDC[MR. COOMBS]:

Well, with regards to the value of the

4

information, if, in fact -- excuse me, ma'am, sorry -- Specifications

5

1 -- 1, 4, 6, 8, and 12?

6

MJ:

7

CDC[MR. COOMBS]:

8

MJ:

9

CDC[MR. COOMBS]:

10

MJ:

The wanton disclosure ---Right.

---- and all of the 641 offenses.
Right, so ----

I'm having a lot of trouble figuring out how it has any

11

or any motive here has any relevance to knowledge in the 641

12

offenses.

13

CDC[MR. COOMBS]:

Okay.

So for the 641 offenses, if your motive

14

was to select information that you believe could not be used to the

15

harm of the United States ----

16
17
18

MJ:

--

But what difference does it make what information you

select in a 641 offense?
CDC[MR. COOMBS]:

Well, and the reason why that makes a

19

difference is the value determination, when you're valuing that

20

information, the government, you know, has provided some discovery on

21

their evaluation methods, but it's, you know, likely they'll try to

22

use the thieves' market, perhaps, in order to establish value or some

23

other determination as to how they could say what the information

5888

09783

1

charged in the 641 offenses was worth.

2

could not be used to the harm of the United States and that's his

3

motive to select it and objectively that's reasonable and we're able

4

to use the damage assessments to show, in fact, that any damage was

5

speculative at best or is unrealized, it's more of a this could

6

happen but didn't happen, then that goes to the actual value of the

7

information.

8
9
10
11

MJ:

Then why does the written motion say that it goes to the

knowledge prong?
CDC[MR. COOMBS]:

Well, with regards to the knowledge prong,

then that would not be my argument, Your Honor.

12

MJ:

13

"value"?

14

If the information selected

So the argument -- so I can X out "knowledge" and put

CDC[MR. COOMBS]:

And on this, I decided to argue it because I'm

15

also carrying the day on our motions to compel.

16

me confer with my co-counsel and then I can ----

17
18
19

MJ:

One moment and let

Yes.

[The civilian defense counsel conferred with co-counsel.]
CDC[MR. COOMBS]:

All right, after being educated by my co-

20

counsel, it goes to the knowingly converted, Your Honor, so the

21

knowingly converted information in order to convert you -- the

22

conversion requirements that the government's going to have to prove

23

that the item substantially interfered with the government interest,

5889

09784

1

if again it's an item that could not be used to the harm of the

2

United States, then that would go towards the knowingly convert

3

prong.

4

MJ:

All right.

5

CDC[MR. COOMBS]:

Now, with regards to the wanton, again, the

-

6

- this would be less towards the willful aspect under Specification 1

7

of Charge II, but with regards to the wanton aspect, then certainly

8

if your intent is to select information that could not be used to

9

harm the United States, then that undercuts the idea that you acted

10

wantonly when you provided that information, in this case, to

11

WikiLeaks.

12

undercut the wanton aspect, Your Honor.

So it would not undercut the willful aspect, but it would

13

MJ:

14

CDC[MR. COOMBS]:

15

MJ:

16

CDC[MR. COOMBS]:

17

All right.
Any other questions, Your Honor?

Nope.
And, Your Honor, I will get you the case

cites.

18

MJ:

19

CDC[MR. COOMBS]:

20

ATC[CPT OVERGAARD]:

21
22
23

I appreciate that; thank you.
Yes, Your Honor.
Ma'am, the chat logs that you asked about

are actually part of the government response to speedy trial.
MJ:

Okay, there's volumes and volumes and volumes of

information in this case.

5890

09785

1

ATC[CPT OVERGAARD]:

2

MJ:

Yes, ma'am.

If the parties want me to look at something, please,

3

please, please attach it to whatever it is that's the motion of the

4

day as opposed to having me rifle through boxes and try to find it

5

somewhere.

6

ATC[CPT OVERGAARD]:

7

MJ:

8
9

If it's already been introduced as an appellate exhibit,

Government, I'd appreciate a copy of it.
ATC[CPT OVERGAARD]:

10
11

Yes, ma'am.

Yes, ma'am.

Subject to your questions, ma'am.
MJ:

I have a couple.

The defense -- it appears the parties

12

have a different view of what's motive.

13

just focus on the defense's proffer that they are offering testimony

14

-- or they're going to present evidence that the accused made

15

conscientious choices on what to pick and what not to pick to take

16

under 641 and to disclose under 793(e).

17

Am I stating that accurately, Mr. Coombs?

18

CDC[MR. COOMBS]:

19

MJ:

20

CDC[MR. COOMBS]:

21

MJ:

22
23

The government's -- let me

Your Honor, yes, and also ----

Does the government ------- 1030.

All right, and 1030(a)(1).
Does the government view that kind of evidence as motive

evidence?

5891

09786

1

ATC[CPT OVERGAARD]:

No, ma'am.

The government would view that

2

more as potentially evidence that could support an affirmative

3

mistake of fact defense, if ----

4

MJ:

Okay.

5

ATC[CPT OVERGAARD]:

6

MJ:

---- defense raises it.

[Pause] The defense has argued that the -- oh, what's the -

7

- what's the government's position with the defense argument with

8

respect to the reason to believe motive is relevant to the reason to

9

believe prong of the 793 and 1030(a)(1) offenses?

10

ATC[CPT OVERGAARD]:

The reason to believe is an objective

11

standard, ma'am, so the government -- I mean, the government would

12

not call it motive evidence.

13

be relevant in any way to the reason to believe.

14
15
16
17

MJ:

The government does not think it would

Okay.
What about the intelligence, the relevance to intelligence,

whether something is or isn't intelligence?
ATC[CPT OVERGAARD]:

Again, ma'am, the -- whether something is

18

or is not intelligence is there's no, I guess, the government does

19

not see any motive evidence involved in whether something's defined

20

as intelligence or not.

21

defense wants to offer that the accused didn't intend to harm the

22

U.S. as -- I guess the government doesn't really understand how that

So if the accused wants to -- or if the

5892

09787

1

would be relevant to whether or not something is intelligence or not,

2

ma'am, since intelligence is, you know, a finite definition.

3

MJ:

All right, and does the government have anything further to

4

offer with respect to state of mind, whether that's part of motive or

5

part of intent or both?

6

ATC[CPT OVERGAARD]:

Well, I mean, in general, ma'am, the

7

government acknowledges that, I mean, motive can be circumstantial

8

evidence of intent or circumstantial evidence of state of mind, but

9

in this case, the government does not see how -- is arguing that

10

motive is not relevant to the charged offenses as to the offenses

11

actual -- as to the accused's actual requisite state of mind or his

12

actual requisite intent in these charges.

13

arguing that motive can never be relevant in any case, because as we

14

saw in Diaz, it can be relevant to, for example, a 133 charge,

15

because in a 133 charge, the government has to show that it was

16

dishonorable in all circumstances, so if an accused, for example, had

17

an honorable motive, that could be relevant to disproving a 133

18

charge, but in this case, there's no -- no requisite evil intent in

19

any of the charges.

20

believe is an objective standard, so the government is just arguing

21

that motive isn't relevant to the charges in this case.

The government's not

There's the knowledge is -- or the reason to

22

MJ:

All right, thank you.

23

ATC[CPT OVERGAARD]:

Yes, ma'am.

5893

09788

1

CDC[MR. COOMBS]:

Ma'am, just briefly on the Diaz point.

It's -

2

- I think it's important to see that in Diaz the defense was not

3

whether or not the information could be used for prohibited purposes,

4

that was not why Diaz was trying to offer his motive, and the court

5

talked about his knowledge and training and said clearly based upon

6

that and no -- obviously no evidence to the contrary, he had a reason

7

to believe that this information could be used for prohibited

8

purposes, and that's not our situation here.

9

intent squarely on the issue of whether or not it was objectively

10

reasonable or not to know that this information could be used for

11

prohibited purposes.

12

MJ:

13
14

We're offering his

All right.
Well it's 12 o'clock.

Do the parties want to drive on or

do we want to break for lunch?

15

CDC[MR. COOMBS]:

16

MJ:

17

TC[MAJ FEIN]:

18

MJ:

19

TC[MAJ FEIN]:

20

CDC[MR. COOMBS]:

21

MJ:

22

TC[MAJ FEIN]:

23

MJ:

Your Honor, if we could break for lunch.

All right, Government?
Break for lunch, Your Honor.

All right, and how long would you like?
Till 1300, Your Honor.
Could we extend just to 1315, Your Honor?

Any objection?
No, ma'am.

All right, court is in recess till 1315.

5894

09789

1

[The Article 39(a) session recessed at 1201, 8 January 2013.]

2

[The Article 39(a) session was called to order at 1323, 8 January

3

2013.]

4

MJ:

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

Let the

5

record reflect all parties present when the court last recessed are

6

again present in court.

7
8
9

Are the parties ready to proceed with the motion to
preclude for overclassification?
CDC[MR. COOMBS]:

Yes, Your Honor.

10

ATC[CPT OVERGAARD]:

11

MJ:

12

ATC[CPT OVERGAARD]:

Yes, ma'am.

All right, Government?
The government's motion is Appellate

13

Exhibit 451, and the defense's motion is Appellate Exhibit 456.

14

[The assistant trial counsel was speaking away from the microphone.]

15
16
17

ATC[CPT OVERGAARD]:

Can you hear me?

[The court reporter indicated an affirmative response.]
ATC[CPT OVERGAARD]:

Your Honor, the United States requests that

18

the court preclude the defense from introducing relevant

19

overclassification evidence in both the merits and the sentencing

20

portions of the trial.

21

make this determination pretrial to avoid irrelevant issues and

22

irrelevant witnesses from being introduced at trial by an argument

Now the United States requests that the court

5895

09790

1

that does not relate to any of the charged offenses or possible

2

defenses for misconduct.

3
4
5

Now we have -- the government has three main arguments
supporting the United States's motion in limine.
First, that general statements of overclassification have

6

no bearing on whether or not the documents charged were correctly

7

classified by the respective OCAs and classified at the time of the

8

alleged compromise.

9

Second, that general overclassification evidence is

10

irrelevant to whether or not the charged information could be used to

11

cause injury to the United States or damage to a foreign nation or

12

was closely held.

13

And, third, there is no evidence that the accused knew

14

about any alleged overclassification problem presented by the defense

15

at the time of the accused's misconduct and, therefore, it had no --

16

and, therefore, that it had any impact on the accused's intent and

17

that's if the mistake of fact defense is appropriate and raised by

18

the evidence.

19
20
21

The United States will explore each of these reasons
separately and respond to defense's written filing.
So first, ma'am, the general statements of

22

overclassification have no bearing on whether the documents charged

23

were correctly classified by the respective OCAs and classified at

5896

09791

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

Inside of Back Cover

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