Questioning of Commanders Allowed in Abu Ghraib Trial

Army Judge Allows Defense Request, Rules Prison Is a Crime Scene

By Jackie Spinner

Washington Post Foreign Service

Monday, June 21, 2004; 9:12 AM

BAGHDAD, June 21 -- A U.S. Army judge on Monday accepted a request by attorneys of soldiers accused of abusing detainees to question the military's top commander in Iraq and all his subordinates.

The order effectively compels Lt. Gen. Ricardo Sanchez, the top U.S. general in Iraq, and Lt. Gen. Thomas Metz, the second-ranking commander of U.S. forces in Iraq, and their subordinates to participate in a deposition with defense attorneys and Army prosecutors unless they invoke their rights against self-incrimination.

The judge, Col. James Pohl, rejected defense requests for memos between justice department attorneys, Defense Secretary Donald H. Rumsfeld and other Pentagon officials regarding the use of interrogation tactics.

"Quite frankly what they do in Washington, D.C., you have to connect it," Pohl said.

Pohl also ordered that the Abu Ghraib prison, where the abuse occurred, be preserved as a crime scene, and he rejected defense requests to move the proceedings out of Iraq.

Pohl issued the decisions at a hearing for Sgt. Javal S. Davis, one of seven Military Police soldiers accused of abusing and humiliating detainees at the prison.

Pohl also heard motions Monday in the cases against two other defendants -- Spc. Charles A. Graner Jr. and Staff Sgt. Ivan L. "Chip" Frederick II -- and he decided to postpone the proceedings against Frederick, whose civilian lawyer failed to show up in court. Another soldier, Spc. Jeremy C. Sivits, pleaded guilty this past month and was sentenced to a year in prison.

It was not clear what legal authority the judge has to block demolition of the prison when an interim Iraqi government assumes control of the country after a formal transfer of power from the U.S.-led occupation authority at the end of the month.

President Bush had called for the prison to be torn down, a largely symbolic move that was quickly rejected by the interim Iraqi leaders.

The interim Iraqi president, Ghazi Yawar, has said that destroying the prison would be a waste of resources.

A defense attorney for Davis, Paul Bergrin, said he wanted court members to see Abu Ghraib for themselves, the Reuters news agency reported.

"We want the court members to smell the fecal matter and the urine that service members who worked inside that prison and who are accused in this case had to live with," he said.

The judge denied defense requests to change the location of the courts martial and legal proceedings but said he would reconsider his decision if defense attorneys could prove at a later date that their clients could not get a fair trial in Iraq.

Pohl granted a request by Bergrin and Guy Womak, a civilian attorney for Graner, to declassify the witness statements in an Army investigative report by Maj. Gen. Antonio Taguba. The 6,000-page report found evidence of what it called "sadistic" abuse of Iraqi detainees at Abu Ghraib prison, a sprawling complex west of Baghdad.

Pohl postponed the pretrial proceedings for Frederick until July 23 after his civilian lawyer failed to appear and Frederick refused to waive his right to have the attorney participate in his defense.

Frederick's civilian lawyer, Gary Myers, had sent a request by e-mail to appear by telephone because he believed Iraq is too dangerous. The judge rejected the request today.

"Lawyers appear in court," Pohl told Frederick's military lawyer, Capt. Robert Shuck. "They don't appear by phone."

"Mr. Myers is either here or not here," Pohl said. "I decide who shows up and who doesn't. You tell Mr. Myers that's the date. I don't care how many bombs are going off. Let me rephrase that. I do care how many bombs are going off, but unless there are extraordinary circumstances, I'm going ahead with this trial."

Womack, the civilian attorney for Graner, told reporters that his client is being made a scapegoat.

"No one can suggest with a straight face that these MPs were acting alone," Womack said.

The hearings took place in the Baghdad Convention Center in the heavily guarded Green Zone, the nerve center of the American-run occupation of Iraq. U.S. authorities hope the proceedings will convince Iraqis that the United States does not tolerate abuses of civil liberties.

The seven soldiers charged in the case were from the 372nd Military Police Company, an Army Reserve unit from Cresaptown, Md.

The abuse scandal broke in April when CBS' "60 Minutes II" aired photographs of hooded and naked prisoners. Since then other photographs showing sexual humiliation have surfaced, generating worldwide criticism of the United States and undercutting American moral authority abroad.

A separate hearing for another soldier charged in the scandal, Pfc. Lynndie England, 21, was scheduled for Tuesday at Fort Bragg, N.C., where she is now stationed. And a hearing for Spc. Sabrina Harman was scheduled for Thursday in Iraq.

The military has not decided whether to refer to court-martial the case against Pfc. Megan Ambuhl.

Officials of the U.S.-led occupying coalition in Iraq said the judge wanted to complete all three hearings Monday but that the proceedings could last for three days.

The Associated Press contributed to this report.