Published November 29, 2015
The former commander of a Marine Corps brig testified Thursday that a vague regulation gave him discretion to maintain tight restrictions on an Army private charged in the WikiLeaks case after a psychiatrist determined the solider was no longer a suicide risk.
Chief Warrant Officer 4 James Averhart testified on the eighth day of a pretrial hearing for Pfc. Bradley Manning at Fort Meade, near Baltimore. Averhart and defense attorney David Coombs sparred over the meaning of the word "shall" in this military corrections regulation: "When prisoners are no longer considered to be suicide risks by a medical officer, they shall be returned to appropriate quarters."
Averhart said the regulation meant the prisoner should be removed from suicide watch "at a particular time to be determined."
"'Shall' does not mean, the way I perceive it, `immediately', or `right now'," he said.
Coombs tried to pin him down: "Does that have a time limitation?"
Averhart said the regulation allowed him to decide when the restrictions should be eased.
"Although the order is vague -- it does say `shall,' it does not say `right now' or `immediately,' sir -- it still gives me the opportunity to evaluate," he said.
Averhart said he didn't act immediately partly because of Manning's history of anxiety, depression and suicidal gestures, including knotting a bedsheet into a noose in his cell in Kuwait before he was moved to the Marine Corps base at Quantico, Va., in July 2010. At Quantico, Manning was uncommunicative -- another suicide risk indicator, Averhart testified.
The Marine Corps' chief of corrections testified Wednesday that Averhart violated the regulation twice -- once in August 2010 for five days and once in January 2011 for at least two days -- after psychiatrists recommended that Manning's handling instructions be relaxed from "suicide risk" to "prevention of injury."
On suicide watch, prisoners are allowed little if any clothing and denied even basic amenities in their cells, including toilet paper. During those periods, Manning had to ask a guard for toilet paper when he needed it.
The hearing is to determine whether Manning's conditions, including confinement alone in an 8-by-6-foot cell at least 23 hours a day, amounted to illegal pretrial punishment, possibly warranting dismissal of the case.
The government must prove by a preponderance of evidence that brig officials justifiably believed the strict conditions were needed to keep Manning from hurting or killing himself. The hearing is scheduled to run through Dec. 12.
Manning, charged with giving classified information to the WikiLeaks website, was held at Quantico in maximum custody from July 2010 to April 2011, when he was moved to medium-security confinement at Fort Leavenworth, Kansas. While at Quantico, Manning was on either suicide watch or injury-prevention status, both involving additional security measures.
Averhart and his successor rejected psychiatrists' nearly weekly recommendations to ease the restrictions.
Manning, a 24-year-old native of Crescent, Okla., is charged with 22 offenses, including aiding the enemy, which carries a maximum penalty of life in prison. He's accused of leaking hundreds of thousands of classified Iraq and Afghanistan war logs and more than 250,000 diplomatic cables while working as an intelligence analyst in Baghdad in 2009 and 2010.
He's also charged with leaking a 2007 video clip of a U.S. helicopter crew gunning down 11 men later found to have included a Reuters news photographer and his driver. The Pentagon concluded the troops acted appropriately, having mistaken the camera equipment for weapons.