BAGHDAD, Iraq – Defense lawyers for soldiers on trial in the Iraqi prisoner abuse case won permission Monday to question two top U.S. generals, and the military judge ordered that the Abu Ghraib prison (search) not be torn down because it is a crime scene.
The judge also refused to move the trials of Spc. Charles A. Graner Jr. (search), Sgt. Javal S. Davis (search) and Staff Sgt. Ivan L. "Chip" Frederick II (search) outside Iraq.
The judge, Col. James Pohl, left open the possibility of calling other senior figures if the defense could show their testimony was relevant — which Guy Womack, the civilian lawyer for Graner, said the lawyers intended to do.
Womack said outside the pretrial hearing that there was "a good chance" he would seek to question Defense Secretary Donald Rumsfeld. He said he doubted he would try to depose President Bush, although "certainly we will be considering it."
Civil lawyers for Davis and Graner won permission to seek testimony from the top U.S. general in Iraq, Lt. Gen. Ricardo Sanchez (search) and from the chief of the U.S. Central Command, Gen. John Abizaid.
Davis' civil lawyer, Paul Bergrin, has also said he wants to question Bush and Rumsfeld about the prisoner abuse, though he did not formally present a request in court.
"We would like to interview Bush because we know as a matter of fact that President Bush changed the rules of engagement for intelligence acquisition," Bergrin said Monday.
Lawyers for Davis and Graner also sought unsuccessfully to have the trial moved to the United States or Germany. However, Pohl said he might reconsider his ruling if future events in Iraq precluded a fair trial.
No date for a trial has been set, but Womack told reporters he did not believe it would begin before October, because it would take time to put the case together, particularly given the difficulty in questioning witnesses and other security difficulties now present in Iraq.
After the pretrial hearing in Baghdad, lawyers for the three defendants said their clients were following orders by senior officers and military intelligence.
"We can't have American soldiers in a war zone questioning the legality of orders," Womack told reporters.
Pohl postponed a pretrial hearing for Frederick until July 23, after his civilian lawyer failed to appear and the defendant refused to waive his right to co-counsel.
Pohl declared the Abu Ghraib prison a crime scene and said it could not be destroyed prior to a verdict. Bush had offered to dismantle Abu Ghraib to help remove the stain of torture and abuse from the new Iraq — an offer Iraqi officials had already dismissed, saying it would be a waste of the building. Saddam Hussein used Abu Ghraib to torture and murder his opponents.
Bergrin told reporters during a recess that lower-echelon troops at the prison had worked under intense pressure from their commanders and the CIA and were using "Israeli methods" — including nudity — known to work against Arab prisoners.
The three are among seven soldiers accused of abusing prisoners. One of them, Spc. Jeremy C. Sivits, pleaded guilty last month and was sentenced to a year in prison.
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.
Davis' military lawyer, Capt. Scott Dunn, failed to win an order to reopen the Article 32 investigation, which would have in effect dismissed the current charges. Dunn had argued that the military failed to make available a witness during the Article 32 proceedings, which ended with a recommendation for court martial.
However, the judge granted a request by Bergrin to declassify all parts of an Army investigation report conducted by Maj. Gen. Antonio Taguba (search).
As the session began, Dunn, Davis' military lawyer, said the defense understood that security conditions in Iraq made it difficult to provide access to some witnesses. He wanted to question an inmate at Abu Ghraib.
Dunn said his client still had a right to confront his accusers.
"We couldn't go to him. They wouldn't bring him to us. They said it was impossible to obtain any telephone testimony. We object to not obtaining his testimony at all," Dunn said.
The Army has argued that a sharp rise in violence around the Abu Ghraib prison in April, including the siege of nearby Fallujah, made the area around the detention center too dangerous. One witness said convoys to and from the prison were sent out on an emergency basis only and they required the permission of a colonel or general to meet the defense request.
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" broadcast photographs of hooded and naked prisoners. Since then other photographs showing sexual humiliation have surfaced in a scandal that has sparked massive international criticism and undercut the moral authority of the U.S.-led mission in Iraq.
A hearing for another soldier charged in the scandal, Pfc. Lynndie England (search), 21, will be held separately on Tuesday at Fort Bragg, N.C., where she is now stationed.
The military has not decided whether to refer the cases against two others — Spc. Sabrina Harman and Pfc. Megan Ambuhl — to courts-martial.
Graner, of Uniontown, Pa., has been accused of jumping on several detainees as they were piled on the floor. He is also charged with stomping the hands and bare feet of several prisoners and punching one inmate in the temple so hard that he lost consciousness.
He also faces adultery charges for allegedly having sex with England last October. He could receive 24½ years in jail, forfeiture of pay, reduction in rank, and a dishonorable discharge.
Frederick, of Buckingham, Va., is accused of forcing prisoners to masturbate, placing naked detainees into a human pyramid and placing wires on a detainee's hands, telling him he would be electrocuted if he fell off a box on which he was forced to stand.
He faces a maximum punishment of 16½ years in confinement, forfeiture of pay, reduction of rank, and a dishonorable discharge.
Davis, of Maryland, is accused of maltreating prisoners, stomping on their hands and feet and putting detainees in a pile on the floor to be assaulted by other soldiers. He faces maximum of eight and a half years in jail, forfeiture of pay, reduction in rank and a dishonorable discharge.
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