Baghdad, Iraq — A military judge on Monday declared the notorious Abu Ghraib prison a crime scene that cannot be demolished as U.S. President George W. Bush had offered. He also refused to move the trial of a soldier accused of abusing inmates.
Col. James Pohl issued the decisions at a hearing for Sergeant Javal S. Davis, one of seven soldiers charged in the case. Another, Spc. Jeremy C. Sivits, pleaded guilty last month and was sentenced to a year in prison.
Col. Pohl was also to hear motions Monday in the cases against two other defendants — Specialist Charles A. Graner Jr. and Staff Sgt. Ivan L. "Chip" Frederick II.
The judge turned down motions by Sgt. Davis' lawyers to move the trial out of Iraq and to order a new Article 32 hearing, the military equivalent of a grand jury proceeding.
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Col. Pohl declared the prison a crime scene and said it could not be destroyed prior to a verdict. Mr. Bush had offered to dismantle the facility to help remove the stain of torture and abuse from the new Iraq; but Iraqi officials have declined, calling it a waste of resources. Saddam Hussein used Abu Ghraib to torture and murder his opponents.
Sgt. Davis' civilian lawyer, Paul Bergrin, won permission to seek testimony from the top U.S. general in Iraq, Lieutenant General Ricardo Sanchez, and from the chief of the U.S. Central Command, Gen. John Abizaid.
But the judge turned down a request to seek testimony from higher-ranking witnesses, including Defence Secretary Donald Rumsfeld. Col. Pohl left open the possibility of calling other senior figures if the defence could show their testimony was relevant.
Lawyers for the soldiers have long maintained their clients were simply following orders to treat Iraqi detainees harshly and that the instructions came from the highest levels of the U.S. government.
Mr. Bergrin told reporters during a recess that he thought the hearing had gone well. He said lower-echelon troops at the prison had worked under intense pressure from their commanders and the CIA and had used nudity and other "Israeli methods" considered effective against Arab prisoners.
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.
Sgt. 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 neglected to make a witness available during the Article 32 proceedings, which ended with a recommendation for court martial.
However, the judge granted a request by Mr. Bergrin to declassify all parts of an Army investigation report conducted by Maj. Gen. Antonio Taguba.
On May 19, Spec. Sivits became the first soldier convicted and sentenced in the scandal. Spec. Sivits pleaded guilty and received the maximum penalty of one year in prison, forfeiture of pay, reduction in rank to private and a bad conduct discharge.
The three defendants who appeared in court Monday face more serious charges and could receive long prison terms.
As the session began, Capt. Dunn said that while he understands security conditions in Iraq make it difficult to provide access to some witnesses, his client still has a right to confront his accusers. Capt. Dunn wanted to question an inmate at Abu Ghraib.
"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," Capt. Dunn said.
The Army has argued that a sharp rise in violence in April, including the siege of nearby Fallujah, made the area around Abu Ghraib too dangerous.
Mr. Bergrin said last week that he would argue for a dismissal of charges because of "improper command influence" extending to Mr. Bush.
Mr. Bergrin alleged that senior U.S. military officers sanctioned harsh treatment of detainees at Abu Ghraib prison and said he would seek evidence that Sgt. Davis was simply following orders.
Sgt. Frederick's civilian lawyer, Gary Myers, has said he will ask the judge for an investigator. Mr. Myers also said he would request a new Article 32 hearing because his client was not allowed to gather evidence or interrogate witnesses at his first session.
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" aired photographs of hooded and naked prisoners. Since then other photographs showing sexual humiliation have surfaced, generating worldwide criticism of the United States and undercutting American moral authority abroad.
A separate hearing for another soldier charged in the scandal, Pfc. Lynndie England, 21, was scheduled for Tuesday at Fort Bragg, N.C., where she is now stationed.
The military has not decided whether to refer the cases against two others — Specialist Sabrina Harman and Pfc. Megan Ambuhl — to courts martial.
Coalition officials said the judge wanted to complete all three hearings Monday but that the proceedings could last for three days.
Spec. 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.
