The military judge in the Sept. 11 trial ordered the U.S. government Wednesday to turn over all correspondence from the International Committee of the Red Cross about the treatment of the alleged 9/11 conspirators in Guantánamo detention, a blow to Pentagon arguments that the contacts are confidential.
Defense lawyers hailed the decision by the judge, Army Col. James Pohl, who will review years of reports between the Geneva-based aid agency and the United States dating to the Bush administration to decide if the material is relevant to the defense of accused Sept. 11 mastermind Khalid Sheik Mohammed and four alleged co-conspirators.
Pretrial conditions can be at issue in U.S. military trials, and the defense lawyers want to examine how the five alleged terrorists were treated at Guantánamo to argue against their tribunal’s going forward as a death-penalty trial.
“The ICRC records may provide important information about the extremely harsh conditions of confinement at Guantánamo over the years,” said James Connell, attorney for Ammar al Baluchi, Mohammed’s nephew and an alleged co-conspirator.
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“The ICRC correspondence represents the only independent historical record of the prisoners’ time at Guantánamo.”
The conditions of the five men, who got to Guantánamo in September 2006 from years at secret overseas prisons, have been shrouded in mystery. They’re held in seclusion at a prison compound run by a clandestine Pentagon unit called Task Force Platinum, and the facility is so secret visitors are forbidden to describe it.
It’s called Camp 7. While the Red Cross has had access to the prisoners, and members of Congress have been allowed to look inside, the Pentagon says it’s strictly off-limits to reporters and other guests invited to U.S. Navy base to get a glimpse of other prisoners’ conditions.
Pohl’s order doesn’t instruct the prosecution to make the communications public. Rather it orders the chief prosecutor, Army Brig. Gen. Mark Martins, to catalogue and turn over the documents to Pohl’s office, without reading them.
In June, the ICRC argued at the Guantánamo war court that their contacts ought to be untouchable to maintain the ICRC’s independent ability to engage governments on prison conditions the world over.
“The ICRC goes places, to places of conflict that no one else can go to,” said attorney Matthew MacLean. “We visit and speak to people that no else can speak to.”
In a statement emailed to the Herald, spokeswoman Anna Nelson said, “The ICRC takes note that Judge Pohl did not find an absolute privilege of non-disclosure under U.S. law for ICRC materials. However, his decision does not mean that ICRC information is unprotected nor does it result in a public release of this information.
“Judge Pohl has undertaken to review the material in camera, under seal, which the ICRC views as an indication of the seriousness with which the Military Commission is treating it. “
The 9/11 case prosecutors had argued the ICRC was entitled to confidentiality and offered to review the documents, a proposal the ICRC rejected.
Pohl will review and search for information that is relevant to the defense, then decide what — if anything — to turn over to defense teams.
If he, as judge, “decides disclosure of the ICRC reports is necessary based on relevancy and materiality,” Pohl wrote, he will deem them “protected” as “unclassified discovery material where disclosure is detrimental to the public interest.”
Navy Cmdr Walter Ruiz, defending Saudi accused Mustafa al Hawsawi, called the ruling “tremendously significant,” particularly the portion where the judge found: “The Commission does not recognize an ICRC absolute privilege under the laws of the United States or the rules of discovery governing this proceeding.”
The Pentagon had no immediate response. It was unclear whether, under the rules for war court prosecutions, the government could file an interlocutory appeal.
The next pretrial hearing at Guantánamo in the 9/11 case is scheduled for Dec. 16-20. The soonest jury selection could start is in January 2015.