- The Washington Times - Tuesday, February 27, 2007

HAGERSTOWN, Md. — The only U.S. military officer charged with abusing Abu Ghraib prisoners has requested a new hearing to determine whether he should be court-martialed, the Army said yesterday.

Lt. Col. Steven L. Jordan, whose trial is set for July, contends that the presiding officer at his Article 32 investigation in October improperly considered statements not in evidence in recommending that the case be referred to a general court-martial. An Article 32 investigation is the military equivalent of a preliminary hearing or grand jury proceeding.

Col. Jordan, who directed an interrogation center at the Iraqi prison in autumn 2003, also asked the court to exclude statements he made to investigators, claiming he wasn’t properly warned of his rights.

A hearing on the pretrial motions will be held March 12 at Fort McNair in the District.

The 50-year-old reservist from Northern Virginia is charged with eight offenses, including cruelty and maltreatment of detainees through forced nudity and misuse of military working dogs. He is not accused of having participated directly in the abuse but is accused of failing to stop soldiers from stripping prisoners naked, photographing them in humiliating poses and intimidating them with dogs.

Col. Jordan also is accused of lying to investigators about abuses that authorities said he witnessed.

Col. Jordan’s defense attorneys have said he had no operational control over interrogations and that most of the abuses at Abu Ghraib were committed by rogue military police soldiers who weren’t under his command.

Col. James Yonts, director of public affairs for the Military District of Washington, said the five pretrial motions filed by Col. Jordan’s defense team Monday were “a routine part of the military justice system.”

Attorneys for both sides declined to comment on the motions.

In requesting a new Article 32, Col. Jordan cited written witness statements that prosecutors gave to Col. Daniel Cummings at the start of the October proceeding. The investigating officer received the documents for informational purposes, but they weren’t offered as evidence.

Eugene R. Fidell, president of the National Institute of Military Justice in Alexandria, said it’s not uncommon for investigating officers to receive such material to help them decide, for example, which witnesses to call. But it’s a hazardous practice, Mr. Fidell said, “because it’s impossible to determine whether the investigating officer will have been subtly or not-so-subtly influenced by things that have not been brought out at the hearing.”

Col. Jordan also moved to exclude his own statements to Maj. Gen. George Fay and Maj. Gen. Antonio M. Taguba, who conducted separate investigations of detainee abuses. In those interviews, Col. Jordan denied having seen prisoners abused. The statements are the basis for charges that Col. Jordan lied to the investigators.

Col. Jordan claims that before questioning him, Gen. Fay and Gen. Taguba failed to read him his rights, such as the right to remain silent, which are similar to the Miranda warnings given to the accused in civilian cases. A key difference is that Miranda warnings apply to suspects in custody whereas the military warnings also apply to those suspected of offenses but not accused.

“It’s the kind of issue that can provide some traction in attempting to suppress statements,” Mr. Fidell said.

Col. Jordan isn’t in custody but remains on involuntary extended active duty at the Intelligence and Security Command at Fort Belvoir. He could be sentenced to 22 years in prison if convicted on all counts.

Col. Jordan’s case is the last active investigation in the Abu Ghraib scandal. Eleven enlisted soldiers have been convicted of crimes at Abu Ghraib, and several officers who weren’t charged have been reprimanded.

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