A U.S. Army judge on Monday agreed to a request by attorneys for soldiers accused of abusing detainees in Iraq's Abu Ghraib prison to question the commander of U.S. military forces in the Middle East, as well as several other top commanders and their subordinates.
The order by Col. James Pohl effectively compels the commanders to submit to interviews unless they invoke their constitutional right against self-incrimination. It names Gen. John P. Abizaid, who heads the U.S. Central Command and supervises operations in the region; Lt. Gen. Ricardo Sanchez, the commander of U.S. forces in Iraq; Lt. Gen. Thomas Metz, Sanchez's immediate subordinate; Maj. Gen. Geoffrey D. Miller, deputy commander of detention operations in Iraq; and Maj. Gen. Barbara Fast, the top military intelligence officer in Iraq.
In addition, the order requires others serving under the five Army generals to be made available for interviews.
By allowing the interviews, Pohl appeared to signal a willingness to explore what is emerging as the main line of defense for the seven soldiers accused of abusing and humiliating detainees at Abu Ghraib: that the abusive tactics used at the prison were not only condoned by their commanders but were part of their orders.
Pohl did set a limit, however, on how far he would allow that assertion to be pursued. He rejected defense requests for copies of Justice Department and Pentagon memos on torture and interrogation tactics, although he left open the possibility that he could require the government to turn them over at some point if defense attorneys are able to link what happened in Iraq with policy decisions made in Washington.
"Quite frankly, what they do in Washington, D.C., you have to connect it," Pohl told the attorneys.
In resolving several other discovery requests by the defense, the judge also asked the government to share detainee case files, allow access to detainees at the prison and provide employment records of civilian contractors working as interrogators at Abu Ghraib.
The judge also ordered that Abu Ghraib prison be preserved as a crime scene, though he acknowledged that he has little control over what happens there after June 30, when an interim Iraqi government assumes limited authority from the U.S.-led occupation. President Bush called last month for the prison to be demolished, a suggestion that was quickly rejected by Iraqi leaders.
Pohl issued the decisions at pretrial hearings for Sgt. Javal S. Davis and Spec. Charles A. Graner Jr., two of seven soldiers from the 372nd Military Police Company based in Cresaptown, Md., accused of abuse at Abu Ghraib, 20 miles west of Baghdad. The judge postponed the proceeding for Staff Sgt. Ivan L. "Chip" Frederick II until July 23 after Frederick's civilian attorney failed to appear in court.
A hearing for another soldier charged in the scandal, Pfc. Lynndie England, 21, was scheduled to begin Tuesday at Fort Bragg, N.C., but was postponed to July 12 to allow officials to iron out logistics, one of England's attorneys said Monday afternoon.
The attorney, Richard Hernandez, said that the delay would allow each side to review extensive information in the case and permit Army officials to set up telephone conferences with witnesses in Iraq. A spokeswoman for the XVII Airborne Corps at Fort Bragg confirmed the delay.
Graner faces up to 24 years in prison for his alleged role in the abuse scandal. Frederick could get up to 16 years, and Davis faces a maximum of eight years. Spec. Jeremy C. Sivits, the first soldier to face a court-martial, pleaded guilty last month, agreed to testify against the six other accused soldiers and was sentenced to a year in prison.
In response to another defense motion, Pohl granted a request by Davis's civilian attorney, Paul Bergrin, to declassify witness statements contained in an investigative report by Maj. Gen. Antonio M. Taguba. Defense attorneys argued that those statements would show that the military police at Abu Ghraib were following orders.
"No one can suggest with a straight face that these MPs were acting alone," Guy L. Womack, Graner's civilian attorney, told reporters after the hearing.
Womack said photographs depicting detainees in sexually humiliating positions were ordered to be taken by military intelligence officers and civilian contractors working as interrogators.
Womack said that Graner, a former corrections officer from Uniontown, Pa., was troubled by what was going on at Abu Ghraib and tried to report it to his commanders. "He was very sorry for what they were doing at the time they were doing it," Womack said.
In rejecting the defense request for Pentagon and Justice Department memos, which offer guidance on what constitutes torture and what interrogation tactics are acceptable in dealing with terrorism suspects, Pohl said defense lawyers had not made the case that the accused soldiers were even aware of them.
"It does not strike me as to what lawyers are doing in the Pentagon . . . has anything to do with accused's state of mind," Pohl said.
Bergrin argued that Davis, his client, was influenced by superiors from President Bush on down the chain of command.
But in response to Bergrin's assertion that the military police were ordered to put detainees into "stress positions," Pohl shot back, "One man's stress may be another man's torture."
Pohl also lashed out at Frederick's civilian attorney, Gary Myers, who sent a request by e-mail to be allowed to take part by telephone, citing the cost of getting to Iraq and the danger of holding the proceeding there. The judge rejected the request last week and again on Monday.
"Mr. Myers is either here or not here," Pohl told Frederick's military attorney, Capt. Robert Shuck. "I decide who shows up and who doesn't. 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."
Pohl rejected initial requests to move the trials from Iraq, though he said he would reconsider if defense lawyers could show that civilian witnesses -- who cannot be subpoenaed to travel to a court-martial overseas -- would not come voluntarily because of the danger of traveling in and around Iraq.
"At the end of the day, this is a court-martial like any other court-martial," Pohl said. "If we can't assure a fair trial here for both sides, we will move it somewhere else."
In a telephone interview Monday, Myers said the decision to keep the proceedings in Iraq was intended to make public examples of the military police officers at the expense of ensuring that they received fair courts-martial.
"This is the absolutely wrong venue for these trials," Myers said from his home. "This is an effort to gain political advantage in the country and in the region, without regard for the rights of these defendants. A number of civilian witnesses may not choose to come, and they can't be compelled to go to a foreign country. This is an extremely dangerous circumstance that could grow even worse with the passage of power to the new government. No trial should be framed by bombs going off."
Staff writers Scott Higham in Washington and Josh White in Fayetteville, N.C., contributed to this report.