A lawyer for the International Committee of the Red Cross on Tuesday urged a military judge not to order release of its confidential communications with the Pentagon about Khalid Sheik Mohammed and four other captives accused of perpetrating the Sept. 11 terrorist attacks.
“The ICRC goes places, to places of conflict that no one else can go to. We visit and speak to people that no else can speak to,” said attorney Matthew MacLean, arguing that release of Red Cross records would jeopardize its ability to have confidential dialogues with governments worldwide.
Army Col. James L. Pohl, the judge, heard the arguments on the second day of pretrial hearings in the case of five men accused of funding, training and directing the hijackings that killed 2,976 people in New York, the Pentagon and Pennsylvania on Sept. 11, 2001. The men chose to skip the hearing, a prerogative the judge granted them, until their actual death-penalty trial begins.
At issue is whether the judge will order the Pentagon to give defense lawyers copies of confidential communications from the Geneva-based organization.
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Defense officials want to read them because they may detail what Mohammed and the others told Red Cross representatives about their treatment by the United States. If they are convicted, the communications might help them argue against their execution.
The accused were allowed to get defense lawyers for the first time in 2008, five or six years after their capture and have, at times, been prohibited from discussing certain aspects of their CIA detention with their lawyers.
All five men, and their lawyers, say the United States tortured the 9/11 accused before President George Bush ordered them brought to Guantánamo in September 2006 for trial. CIA agents waterboarded Mohammed, for example, 183 times.
Prosecutors and the Red Cross oppose that release, even to U.S. military defense attorneys. Governments grant Red Cross delegates access to their prisons, and captives speak to them, because the Red Cross doesn’t publicize its complaints about how countries treat captives. The Pentagon’s chief war crimes prosecutor reminded the judge at the hearing that the Red Cross intervenes on behalf of U.S. troops held captive overseas as well.
In a particularly pointed question, given these are death-penalty proceedings, the judge asked the Red Cross lawyer whether the organization had not on occasion breached confidentiality when a life was at risk. Yes, MacLean replied, but only when the organization decides on its own to do it.
And, in this case, he added, Red Cross officials might consider meeting 9/11 defense lawyers on a confidential basis and consider providing information that’s “not available elsewhere.”
The chief prosecutor, Army Brig. Gen. Mark Martins, sought a one-month delay on the issue “to consult with the ICRC regarding voluntary aspects of this.”
Martins has said no evidence obtained other than voluntarily from the accused will be used at their trial.
The judge also seemed to be particularly perplexed by a Red Cross position that it could choose to waive aspects of what it considered to be an internationally understood privilege for confidentiality on a pick-and-choose basis.
MacLean argued that, if the judge ordered release of the documents, his would be the first court to do it.. Every international court “has sided with the ICRC’s privilege.”