August 24, 2004
MANNHEIM, Germany, Aug. 24 The judge in the Abu Ghraib prison abuse case said today that he might award immunity from prosecution in exchange for the testimony of several senior military intelligence officers who prosecutors said were likely subjects to be charged in the case.
The judge, James L. Pohl, referred specifically to Lt. Col. Steven Jordan and Col. Thomas Pappas, both commanders of a military intelligence brigade responsible for interrogating prisoners at Abu Ghraib, near Baghdad.
He was responding to a request by one defendant, Sgt. Javal Davis, that higher officers in the chain of command be induced to testify, presumably to show that the abuses that took place had authorization and were not the work of rogue enlisted men and women acting on their own.
"Isn't the fundamental issue whether there was some authorization given that authorized extreme measure such as the accused are being charged with?" Judge Pohl said, asking prosecutors why he should not grant immunity to Colonel Jordan and Colonel Pappas.
Military prosecutors had argued against a grant of immunity for the two men and several others, saying that they are also being investigated for possible prosecution, and that a grant of immunity would probably make it more difficult to bring charges against them.
But Judge Pohl, who seemed sympathetic to the defense request, dismissed that reasoning, saying Sergeant Davis's right to a fair trial took precedence over the government's interest in prosecuting Colonel Jordan and Colonel Pappas. He gave the prosecution until Sept. 17 to show cause why immunity should not be granted.
Judge Pohl was presiding at a second day of pretrial hearings in which a defense lawyer for one of the accused said he had reached an agreement with the government for his client to plead guilty.
The defendant, Staff Sgt. Ivan Frederick, would plead guilty to some charges while others against him would be dropped, his lawyer, Gary Myers, told reporters outside the military courtroom here.
"He has, unlike many, accepted responsibility for certain corrupt behavior generated by the circumstances that existed at Abu Ghraib," Mr. Myers said.
Sergeant Frederick was the second of the seven to indicate a willingness to plead guilty. The first, Spec. Jeremy C. Sivits, has agreed to cooperate with the prosecution in exchange for a one-year prison term.
In Sergeant Frederick's case, no mention of his agreement was made in the hearing today, and he is unlikely to make a formal plea before the next hearing in his case, scheduled by Judge Pohl for Oct. 20 in Baghdad. Mr. Myers said a deal had been reached with the government over both the charges and the sentence, but he refused to give details.
Today's hearing, held at an American military base here, was taken up with numerous defense motions, including Sergeant Davis's, made by his lawyer, Paul Bergrin, that Colonel Jordan and Colonel Pappas be called to testify. Both men have been named in investigations as being deeply involved in the interrogation of prisoners at Abu Ghraib, but both have also reportedly refused to testify in continuing investigations.
The hearings gave some strong indications of the different strategies being planned as defense lawyers prepare their cases. Some defendants, Sergeant Davis among them, seem intent on demonstrating that whatever they are accused of doing in mistreating prisoners at Abu Ghraib, their actions were legal because they were approved by higher-ups in the chain of command.
Mr. Bergrin made a motion today to call Defense Secretary Donald H. Rumsfeld to testify in the case, saying that in a memo distributed to military commanders Mr. Rumsfeld approved the specific methods said to have been used at Abu Ghraib.
Judge Pohl denied the motion on the ground that Mr. Bergrin had demonstrated no link between his defendant and Mr. Rumsfeld, but he said that if such a link could be demonstrated with evidence then he might be willing to reconsider his decision.
"If my client is guilty," Mr. Bergrin said to reporters outside the courtroom, "then so are the higher-ups in the chain of command, going all the way to Secretary of Defense Donald Rumsfeld."
Mr. Bergrin argued that what his client, Sergeant Davis, did was right under the circumstances, where American lives were in danger and information was needed in order to save them.
Mr. Myers, Sergeant Frederick's lawyer, seemed to take a far different tack, saying that what happened at Abu Ghraib represented a criminal breakdown of the system. But he, too, ridiculed the notion advanced by senior American officials that the mistreatment of prisoners was due to rogue soldiers acting on their own.
"After this, we won't hear anything more about seven rogue soldiers," Mr. Myers said. "The government's second line of defense is that there are 28 rogue soldiers," he continued, referring to reports that charges will be brought against additional enlisted men and women. "Who knows what will be next?"