Judge Orders Army Leaders Questioned

A U.S. Army judge on Monday ordered that top-ranking officers -- including Gen. John P. Abizaid, the head of Central Command, and Lt. Gen. Ricardo Sanchez, commander of American troops in Iraq -- be questioned as potential witnesses in the court-martial proceedings against soldiers accused of abusing prisoners in Iraq.

At a pretrial hearing in Baghdad, attorneys for the soldiers said they would attempt to use the interviews to demonstrate that their clients were following orders when they stripped, sexually humiliated and in some cases punched detainees at Abu Ghraib prison.

Defense attorneys made it clear Monday that they hoped to show that responsibility for the alleged maltreatment at the detention center rested with the Army and the highest levels of the U.S. government, including Defense Secretary Donald H. Rumsfeld and the president, who they say set the stage for loosened rules of interrogation as part of the war on terrorism.

Experts in military law said the Army judge’s decision to compel the two top U.S. commanders in Iraq to submit to questioning raised the stakes in legal proceedings that initially targeted only a handful of low-level soldiers.

“It’s certainly not an ordinary event for a judge to order a general officer to be called as a witness,” said Eugene R. Fidell, president of the National Institute of Military Justice. “There is no question this is high-stakes poker at this point.”

The judge, Col. James Pohl, also directed the U.S. government to take steps to preserve the prison as a “crime scene.” Last month, President Bush suggested that the facility be torn down.

Pohl rejected a defense request that the proceedings for Cpl. Charles A. Graner Jr., Sgt. Javal S. Davis and Staff Sgt. Ivan L. “Chip” Frederick II be relocated outside Iraq, but he indicated that he would revisit the issue later in light of “legitimate” concerns about providing security for witnesses and attorneys.

So far, seven soldiers with the Army’s 372nd Military Police Company have been accused of mistreating detainees. Last month, Spc. Jeremy C. Sivits pleaded guilty and was sentenced to one year in prison.

“The judge granted defense attorneys access to Abizaid, Sanchez and their subordinates to “flesh out anything you want to flesh out.” But he said attorneys would need to demonstrate the relevance of interviewing higher-level officials.

“We will ask to call the president of the United States as a witness,” Paul Bergrin, an attorney representing Davis, told reporters outside the courtroom. He said Bush made a 2002 speech insisting that adherence to Geneva Convention protections should be reevaluated when it comes to terrorists who may have information that could save lives.

Pohl’s order does not compel Abizaid, Sanchez and other top officers to agree to submit to questioning, but their refusal to participate could hurt the government’s cases or implicate them in the scandal, military attorneys said.

Defense attorneys lost their bid to review policy and legal memos from the Defense Department, Justice Department and U.S.-led Coalition Provisional Authority in which attorneys discuss circumstances under which Geneva protections might not apply to prisoners and how to redefine terms such as “abuse” and “torture.”

“I fail to see why a memorandum given to the secretary of Defense would impact on your client’s actions at the time,” Pohl told Bergrin.

A lawyer for Graner argued that the memos led to a military policy change that eventually filtered down to soldiers at Abu Ghraib. “It started a ball rolling down a hill,” said Guy Womack, the attorney.

The court-martial hearings are not expected to take place until the fall.

An attorney for the government, Capt. Christopher Graveline, said he plans to call as many as eight abused prisoners as witnesses. The prosecution dropped its earlier reluctance to make prisoners available to the defense for questioning.

The all-day proceeding was held in a makeshift courtroom inside Baghdad’s heavily protected Green Zone, where coalition authorities are based.

Graner, an alleged ringleader in the abuse, is accused of using his fist to knock a detainee in the head, striking a detainee with a nightstick and participating in much of the sexual humiliation that was captured in a series of now-notorious photographs.

Womack said Monday that Graner knew at the time that his actions were wrong but was following orders from military intelligence officials to “soften up” detainees for interrogation.

“He was very sorry for what they were doing at the time,” Womack said. He added that Graner made daily complaints about the abuse to his superior officers.

Davis is accused of stomping on detainees’ toes and jumping on top of a pile of prisoners. His attorney has denied the actions took place.

A hearing for Frederick, who is accused of attaching wires to a hooded prisoner atop a box and threatening him with electrocution, was postponed until July 23 after his civilian attorney, Gary Myers, failed to appear, citing security concerns about traveling to Iraq.

Last week, Pohl denied Myers’ request to appear via telephone. “That’s the date,” the judge told Frederick’s military attorney Monday in reference to the July 23 hearing. “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.”

Attorneys for the three soldiers have requested that the trial be moved to the U.S. or Germany, saying it would be difficult to get witnesses to travel to Iraq amid the frequent mortar attacks and car bombings, the lack of reliable electricity and telephone service and travel obstacles.

Owing partly to the added participation of civilian attorneys, the military proceedings took on a more theatrical and, at times, contentious atmosphere than the court-martial of Sivits.

In his argument to have the court preserve the Abu Ghraib facility, Bergrin -- whose Brooklyn accent and open-collared black shirt contrasted sharply with the pressed military uniforms of other courtroom players -- said he hoped to tour the prison with future jury members.

“We want the court members to see, feel and hear what it was like to be in that prison, to smell the fecal matter and urine that service members who worked inside that prison and who are accused in this case had to live with,” he said.

Pohl’s order, however, may be moot: On June 30, the prison will be taken over by Iraqi authorities, who have shown no interest in demolishing it.

Defense attorneys also indicated that they planned to file a motion complaining that pretrial comments by high-ranking officers may have prejudiced the case against their clients.

Two other soldiers face military hearings within the next month to determine their role in the abuse scandal. Pfc. Lynndie England, who was depicted in photographs smiling and holding a detainee on a leash, will face charges July 12 in Ft. Bragg, N.C. Spc. Sabrina Harman is scheduled to appear at her hearing in Iraq on Thursday.

The seventh soldier suspected in the abuse is Spc. Megan Ambuhl.

Times staff writer Mark Mazzetti in Washington contributed to this report.