Accused Sept. 11 Plotters Clash With Red Cross Over Files

The International Committee of the Red Cross said its mission would be undermined if the U.S. surrenders the group’s reports on prison conditions at a military base in Cuba where five men accused in the Sept. 11, 2001 terror attacks are being held.

Lawyers for accused mastermind Khalid Sheik Mohammed and four others asked a military judge to compel the government to turn over the reports received from the ICRC. The Geneva-based group, which visits prisoners worldwide to ensure they’re treated humanely, wants the judge to deny the request.

Matthew MacLean, a lawyer for the Red Cross, today said that disclosure of the reports in this case would compromise ICRC efforts to gain access to prisoners elsewhere. Governments grant ICRC access to prisons because its reports aren’t made public, he said.

“We go places that no one else goes to,” MacLean told the judge, U.S. Army Colonel James Pohl, at a hearing at the U.S. military base in Guantanamo Bay. The ICRC can do so because it maintains “strictly confidential dialogues,” he said.

The request came on the second day of pre-trial hearings this week. The five defendants are accused of organizing the 2001 hijacking of passenger airplanes that killed almost 3,000 people when they were crashed into the World Trade Center in Manhattan, the Pentagon in Virginia, and in Pennsylvania.

The five, who have been held by the U.S. for about a decade, may face the death penalty if convicted. They are charged with conspiring to finance, train and direct the 19 hijackers who seized the four planes, as well as terrorism, hijacking aircraft, conspiracy, murder in violation of the laws of war and attacking civilians. A trial is at least a year away.

Geneva Conventions

None of the defendants appeared in court today. Proceedings began this morning with a military officer testifying that each of the men waived his right to appear in court.

The Geneva Conventions, the international treaties that govern how captives will be treated, permits the Red Cross to visit prisoners seized during armed conflicts.

The ICRC shares its reports with only the “detaining power” -- in this case, the U.S. -- to remedy violations of international law, MacLean said. No other court in the world has ordered a government to surrender ICRC reports, he said.

“We are above all else neutral, impartial and independent,” MacLean said.

Prisoners’ Treatment

Lawyers for the detainees argued they need the ICRC reports about the prisoners’ treatment to prepare their defense and to seek evidence that they may eventually use to argue against execution, should their clients be convicted.

“I don’t know of any other way to obtain the information,” said Walter Ruiz, who represents Mustafa al Hawsawi, a Saudi who allegedly helped finance the hijackers.

Mohammed’s attorney, David Nevin, said the U.S. Constitution requires the government to provide defendants with documents in its possession so that defense lawyers can argue for their clients to “live, and not die.”

The prosecutor, Army Brigadier General Mark Martins, opposed the defense request for what he termed “sensitive” documents. He asked the judge to wait for four weeks before ruling so that the prosecution and the ICRC may decide whether some documents may be disclosed.

MacDonald Testifies

Pohl, who didn’t rule on the defense bid, was skeptical of the ICRC’s claim that its reports are protected by a privilege that only it can waive, even after the group provided the reports to a government.

Separately, Cheryl Bormann, a lawyer for Walid bin Attash, a Yemeni defendant charged with helping to train the Sept. 11 hijackers, continued questioning retired Vice Admiral Bruce MacDonald, the former civilian head of the military tribunal. MacDonald testified yesterday as well.

As Convening Authority, MacDonald last year designated the charges on which the five men will be tried. Borman suggested in her questions that MacDonald had insufficient experience in criminal law to make a fair determination.

A broadcast of the testimony was viewed by reporters at Fort Meade, Maryland, near Washington.

The case is U.S. v. Mohammed, Military Commissions Trial (Guantanamo Bay, Cuba).

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