FORT BRAGG, N.C. – The pretrial hearing for a soldier photographed with naked Iraqi prisoners recessed Saturday without a ruling on whether Vice PresidentDick Cheney (search) and other high-ranking administration officials must testify — and without the photos being accepted into evidence.
Military judge Col. Denise Arn recessed the Article 32 hearing for Pfc. Lynndie England (search) until she reviews defense requests to call dozens of witnesses, including Cheney, Defense Secretary Donald Rumsfeld (search) and top Army generals.
"It is my intent to complete this investigation as soon as possible," Arn told attorneys. Defense attorney Rick Hernandez said the case could resume the week of Aug. 30.
The hearing is to determine whether England, a 21-year-old reservist with the Maryland-based 372nd Military Police Company, should face a court-martial on 13 counts of abusing detainees and six counts stemming from possession of sexually explicit photos. Widely circulated photos show a smiling England pointing at the genitals of a hooded prisoner and holding a leash attached to a naked detainee.
If convicted, the personnel clerk from Fort Ashby, W.Va., could get up to 38 years in prison. Six other members of her unit also face charges in the scandal.
Saturday's nearly three-hour session was dominated by defense complaints that the government is withholding evidence and prosecution accusations that the defense is trying to turn a simple evidentiary hearing into a full-blown trial. The prosecution called far fewer witnesses — 25 over five days — than the 160 the defense is seeking.
"The purpose of an Article 32 proceeding is not a completely unrestrained fishing expedition," prosecutor Capt. John Benson said.
For instance, he said the defense request to call Lt. Col. Jerry Phillabaum, who was in charge of the guards at Abu Ghraib, is excessive because he didn't witness any of the abuse.
Benson said there is no testimony Phillabaum could give that would "change the fact that these pictures exist."
"There is a photograph, and Pfc. England is holding the leash in that photograph. You have that," he said.
But Hernandez argued that many of the witnesses he wants to call could testify as to whether guards controlled the prison "hard site" where the abuse occurred or, as England contends, military interrogators were calling the shots. He said an interrogator he wants to call saw one of the photos of abuse — a human pyramid of Iraqi prisoners — used as a computer screen saver in a prison common area, and that that person didn't consider the pyramid abusive.
"Our client is accused of stepping on toes and pushing detainees," Hernandez said. "Our client is not accused of clear violations and abuses. We're talking about judgment calls that were made."
Hernandez also complained that the government had failed to turn over statements by key witnesses. He cited an Associated Press article that appeared Saturday in which Sgt. Kenneth Davis of England's unit claimed that interrogators had given incorrect testimony about the roles their own operatives played in the abuse.
"The fishing expedition would not be necessary if the government ... had provided us with everything they have," he said.
The defense has hammered all week at the notion that there was confusion over who had "operational control" over the prison's "hard site," where inmates were held. Prosecution witnesses said England told them the abuse was "just for fun" and military investigators have said the abused detainees were of little or no intelligence value.
The prosecution has made much of the fact that England could not identify any of the intelligence officers who supposedly told her the MPs were "doing a good job" and to "keep it up." But on Friday, defense attorneys got military investigators to acknowledge that the interrogators wore "sanitized" uniforms with no name tags, and that investigators never showed England a photo lineup to help her identify the intelligence officers who were supposedly approving the tactics.
England, seven months pregnant with the child of co-defendant Spc. Charles Graner, sat stone-faced throughout much of the proceeding. But she smiled as she left the courthouse with her mother Saturday.