Red Cross' Guantanamo reports sought in 9/11 case

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Associated Press

Posted on June 18, 2013 at 11:02 PM

Updated Wednesday, Jun 19 at 3:05 AM

GUANTANAMO BAY NAVAL BASE, Cuba (AP) — The International Committee of the Red Cross urged a military judge Tuesday to refuse a request to open its confidential communications with U.S. officials about conditions at Guantanamo Bay to the lawyers for the prisoners charged in the Sept. 11 terror attack.

The Red Cross prepared the confidential reports for the U.S. government to ensure humanitarian laws were being followed and allowing defense teams to view the documents would jeopardize the organization's work around the world, said Matthew MacLean, a lawyer for the Red Cross.

Red Cross access to hard-to-penetrate places requires that it maintain "strictly confidential dialogues," MacLean said.

"The ICRC goes to places of conflict that no one else can go to," MacLean told the judge. "We visit and speak to people that no one can."

He addressed the judge on the second day of a weeklong pretrial hearing for the five detainees accused of planning and aiding the Sept. 11 attack. Lawyers for the men want to review the Red Cross reports for potential evidence for the trial, or for mitigating evidence that may help the defendants avoid the death penalty if convicted.

William Lietzau, a deputy assistant secretary of defense for detainee policy, argued in an affidavit to the court against turning over the reports, which are sent to his office. Military commanders and officials will be reluctant to grant access to the Red Cross if their findings could be used in legal proceedings, he said.

"The failure of the United States to adhere to the policy of strict confidentiality could undermine the ICRC's efforts in other conflicts," Lietzau said.

MacClean offered a compromise: The Red Cross, which has been visiting Guantanamo since shortly after the prison opened in 2002, could go through the reports and share anything the organization believes might be critical to the defense. The defense teams rejected that offer.

Before they were brought to Guantanamo in September 2006, the five defendants were held in CIA prisons overseas, subjected to an intense program of interrogation that their lawyers say amounted to torture. Their conditions of confinement, both current and past, are a major aspect of the case.

Defense attorneys say they don't intend to publicly release any of the Red Cross reports if they get access to them.

Attorney Cheryl Bormann said her client, Walid bin Attash, did not have a lawyer from the time of his capture in 2003 until 2008 and there may be information in the confidential files relevant to his defense.

"What we are dealing with here is a balance, a balance of respecting the tradition of the ICRC compared with somebody's life," she said.

An immediate ruling was not expected from the judge, Army Col. James Pohl.

The five prisoners are being prosecuted in a military commission, a special tribunal for wartime offenses, on charges that include terrorism and nearly 3,000 counts of murder for their alleged roles planning and aiding the plane hijackings that caused deaths in New York, Washington and Pennsylvania on Sept. 11, 2001. The defendants include Khalid Sheikh Mohammed, who has called himself the "mastermind" of the plot.

None of the defendants were in court Tuesday, choosing to sit out the hearing for unknown reasons. The weeklong pretrial hearing is dealing with procedural issues such as whether they can be excluded from future sessions that deal with classified evidence. A trial date has not been set.

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