request to move the court-martial of one of the
defendants in the Abu Ghraib prison abuse scandal from Baghdad to Europe
or the United States was rejected last week by a military commander,
according to documents released by a lawyer for the defendant.
The request, by a lawyer for Staff Sgt. Ivan L. Frederick II, contended
that the safety of witnesses and lawyers could be assured only by moving
the trial. The trials are to be held in Baghdad's convention center, in a
heavily fortified area of the city known as the Green Zone.
"Announcing that the convention center
in the Green Zone will be the site for the trial is like giving targeting
coordinates to the enemy," the lawyer, Gary Myers,
wrote. "Such a trial, given the impact upon Arabs, is a natural target for
an act of terrorism in this most unstable environment."
Lt. Gen. Thomas F. Metz, the officer in charge of convening
courts-martial in Iraq, denied the request in an e-mail message on May 14.
Lawyers for Sergeant Frederick and another defendant, Sgt. Javal S.
Davis, said they would separately request a change of venue from the
military judge who will hear their cases. A lawyer for a third soldier,
Specialist Charles A. Graner Jr., has said his client's case should stay
in Iraq.
On Wednesday, Specialist Jeremy C. Sivits, appearing at the convention
center in Baghdad, pleaded guilty to participating in the abuse and was
sentenced to a year in prison. He has agreed to testify against other
defendants.
Legal experts offered differing evaluations of the strength of Sergeant
Frederick's argument for a change of venue based on inadequate
security.
"The United States Armed Forces have the ability to secure that
particular place, particularly when the bad guys don't have airplanes and
don't have long-range artillery," said John D. Hutson, the dean of the
Franklin Pierce Law Center and a former judge advocate general of the
Navy.
Mr. Hutson added that the question of whether security concerns would
deter witnesses from appearing at the trials was speculative for now.
"If a significant witness declined to come testify," he said, "then you
may have an issue."
Lee D. Schinasi, a law professor at the University of Miami School of
Law and a former vice dean at the Army Judge Advocate General's School in
Charlottesville, Va., disagreed.
"The defense has raised a very good issue, because there is definitely
a chilling effect," Professor Schinasi said. "It is going to be difficult
for the military to brush it aside."
The request to move the trial also revealed something of Sergeant
Frederick's defense strategy.
"All meaningful witnesses are outside Iraq," Mr. Myers wrote, listing
military investigators, intelligence officers, civilian contractors,
government officials and "the chain of command."
He elaborated in an interview, saying he intended to call expert
witnesses, family members and character witnesses but was unsure if he
could persuade them to travel to Baghdad. Such witnesses cannot be
compelled by subpoenas to travel to Iraq, he said.
Sergeant Frederick is charged with, among other things, forcing a
detainee to stand on a box, attaching wires to his hands and telling him
he would be electrocuted if he fell.
The civilian witnesses would testify, Mr. Myers said, about how the
environment inside the prison led to that abuse and about generally
accepted standards for interrogations.
"For example," he said, "making a detainee stand on a box with wires
attached to him — that's Page 1 out of the manual. It really doesn't harm
anyone; it's just meant to induce fear."
Five of the six other defendants and presumably all of the detainees
who witnessed or endured the abuse are in Iraq, Mr. Myers conceded. But he
called their testimony largely irrelevant. The defendants are likely, he
said, to invoke their constitutional right to decline to testify. The
testimony of the detainees, he went on, is unnecessary.
"How meaningful is a witness who merely is confirming what's in a
picture?" he asked. "In this case, the conduct itself is almost
stipulated."
The case, Mr. Myers said, will revolve not around what was done but on
who ordered it.
"We call this, essentially, confession and avoidance," he said of his
strategy.
Military spokesmen have emphasized the symbolic value of holding the
trial in Baghdad, to allow Iraqis to see American justice firsthand.
In his request to move Sergeant Frederick's trial, Mr. Myers said that
goal could not be achieved. It should, in any event, he said, be
subordinated to ensuring fair trials for the defendants.
"There is nothing public about a trial that is steeped in security and
surrounded by fear of bodily harm," Mr. Myers wrote. "A trial in Iraq
under existing circumstances is neither transparent nor public."
Moreover, he added in an interview, "the principal question is always,
firstly, protecting the rights of the accused."
