The New York Times
June 22, 2004
BAGHDAD, Iraq, June 21 A military judge ruled Monday that the top American commanders currently involved in the Iraq war will have to submit to questioning by lawyers for two servicemen charged in the Abu Ghraib prison abuse case. The defense lawyers said they would show that the most senior military and civilian officials approved interrogation methods that violated the Geneva Conventions.
Among those who could be questioned are Gen. John P. Abizaid, commander of the United States Central Command, and Lt. Gen. Ricardo S. Sanchez, the senior American commander in Iraq; and Lt. Gen. Thomas F. Metz, who is overseeing daily military operations.
The judge, Col. James Pohl, also called Abu Ghraib a "crime scene" and ordered the government to "take all steps possible" to preserve the prison, 15 miles west of Baghdad. That command, issued during a pretrial hearing, seemed to override an earlier pledge by
As the court proceedings got under way, Islamic guerrillas threatened to behead a South Korean civilian hostage by sundown, unless the South Korean government canceled plans to send 3,000 troops to Iraq. The deadline passed without any news on the hostage's fate. The South Korean government said Monday that it would not change its plans to send the troops.
Four marines were killed by insurgents on Monday in the western town of Ramadi, the American military said. The men mysteriously lacked the helmets and body armor that soldiers routinely wear. Ramadi is an area of increasing concern to military officials.
Iran on Monday seized three small British Royal Navy boats being delivered to the Iraqi Riverine Patrol Service, saying they had strayed into Iranian waters. [Page A7.]
Judge Pohl's order to preserve Abu Ghraib came during pretrial hearings for Specialist Charles A. Graner Jr., whom investigators call a ringleader of the seven military police officers accused of torturing prisoners and photographing them, and Sgt. Javal S. Davis. A third scheduled hearing, for Staff Sgt. Ivan L. Frederick II, did not go forward because the civilian lawyer for Sergeant Frederick failed to show up, citing the extreme danger here.
The hearings gave the strongest indication to date that defense lawyers plan to pin blame for the abuses on the most senior officials in the White House and Pentagon, as well as the top generals in Iraq. They suggested in arguments on Monday that the officials had created an atmosphere that encouraged the flouting of the conventions of war during interrogations.
"I feel that all seven M.P.'s are being made scapegoats," Guy Womack, the civilian lawyer for Specialist Graner, told reporters after his client's hearing. "No one can suggest with a straight face that these M.P.'s were acting alone."
The three defendants, dressed in their tan desert uniforms, sat quietly the entire day in a makeshift courtroom inside the fortified American headquarters in central Baghdad. Their lawyers did the talking. Mr. Graner, a former corrections officer, stared at the black-robed judge from behind silver-rimmed glasses.
Among other things, Mr. Graner is accused of ordering prisoners to masturbate in front of each other and of punching an Iraqi so hard in the head that he lost consciousness. If found guilty, Mr. Graner faces a maximum sentence of up to 24 and a half years in prison and a dishonorable discharge.
Last month, Specialist Jeremy C. Sivits pleaded guilty and was sentenced to a year in prison.
The Army on Monday postponed a hearing for Pfc. Lynndie R. England, who was photographed holding a naked Iraqi inmate on a leash, until the week of July 12. The hearing had been scheduled for Tuesday.
Mr. Womack said the seven military police guards were following instructions from the military intelligence officers who ran the prison. But he added that the ultimate responsibility lay with Mr. Bush and Defense Secretary Donald H. Rumsfeld, both of whom indicated after the Sept. 11 attacks that the Geneva Conventions regarding the treatment of prisoners no longer applied.
"Because of the war on terrorism, the highest levels of government authorized an unusual proceeding," Mr. Womack said. In this atmosphere, he added, officials "lessened the normal restraints on interrogations."
American commanders have sought to portray the seven accused soldiers as a rogue outfit acting on their own.
Mr. Womack said he had evidence that a senior male Army officer was present during several of the interrogation sessions captured in the photographs whose release started the prison scandal in April. The officer tried to hide the interrogations from outsiders, Mr. Womack said. He declined to identify the officer.
Mr. Womack also asked the judge to order the government to release several memos written at the top levels of the Bush administration that showed officials trying to stretch the allowable limits for prisoner interrogations. Recent news reports have said that the memos including one by the White House counsel, Alberto R. Gonzales, that called the Geneva Conventions "quaint" were written to advise Mr. Bush that international laws concerning torture did not apply to "unlawful combatants" captured during the "war on terror."
Judge Pohl denied the motion, saying that discussions taking place in Washington did not appear relevant to the immediate cases.
The judge also denied a similar request by Mr. Bergrin, a civilian lawyer for Sergeant Davis, who said L. Paul Bremer III, the top American administrator in Iraq, had written a memo asking for a definition of interrogation methods for prisoners. Mr. Rumsfeld and his top aide for intelligence policy, Stephen A. Cambone, also wrote memos asking for such clarifications, Mr. Bergrin said.
But Judge Pohl did say the American government had to make available for interviews all the top commanders currently involved in the Iraq war. In addition to General Abizaid, General Sanchez and General Metz, those could include Maj. Gen. Geoffrey D. Miller, who controls American-run prisons in Iraq; and Maj. Gen. Barbara Fast, in charge of intelligence operations here.
Depending on what emerges in the interviews, the lawyers could decide to call the commanders to the witness stand or ask them to give a deposition.
Mr. Womack also said there was "a good chance" that he would try to question Mr. Rumsfeld.
Mr. Bergrin's plans were even more ambitious. "We will ask to have the president of the United States as a witness," he said. "Whether that's granted, that's a different story."
The two lawyers also asked the judge to move the venue of the courts-martial out of Iraq, arguing that the dangers here will dissuade civilian witnesses from attending. While soldiers who are witnesses can be ordered to travel anywhere, civilians can be compelled to attend trials only in the United States.
Judge Pohl denied the motions on the grounds they were "speculative," but said he would revisit the situation if hostilities here changed.
The prosecutor, Capt. Christopher Graveline, agreed to some demands from the defense. The government will turn over copies of background files on the Iraqi prisoners after the files are cleared of any classified material, he said. It will also declassify all parts of the Army report written by Maj. Gen. Antonio M. Taguba, who recently concluded a three-month investigation of interrogation practices at Abu Ghraib.
Judge Pohl ordered lawyers for both sides to file all motions by July 31. He also rescheduled Sergeant Frederick's hearing for July 23, despite harshly denouncing his civilian lawyer for failing to appear Monday.
Mr. Womack said the trials were not likely to start until October at the earliest, after both sides have interviewed possible witnesses.