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At Guantanamo, Red Cross Defends Keeping Detainee Records Confidential

Defense attorney Cheryl Bormann, seen in this sketch from May 5, 2012, wears the Muslim hijab when the defendants are in the courtroom. Sketch by Janet Hamlin/AFP/Getty Images.

The pre-trial hearing on the five suspected 9/11 plotters continued Tuesday at the U.S. base in Guantanamo Bay, Cuba — without the accused present. The day focused on why the International Red Cross opposes requests to disclose its confidential condition reports on Guantanamo detainees.

Khalid Sheikh Mohammed, the suspected architect of the 9/11 attacks, and four accused co-conspirators were in the courtroom on Monday, but they chose not to attend Tuesday’s proceedings.

At the hearing, Matthew MacLean, a civilian attorney for the International Committee of the Red Cross, said the ICRC must maintain its reputation as a “strictly impartial” entity and, therefore, couldn’t release the confidential Guantanamo detainee condition reports to the defense attorneys who requested them.

“The primary method we have to get access to places that nobody else can access” is to keep the information it collects confidential, he said. “Our role is too unique and too important” to compromise on that point.

But, MacLean continued, the intent is not to deprive the prisoners’ defense team of potentially helpful evidence. And if there was a disclosure, either with or without its consent, the ICRC could get a waiver to provide information, he added.

The defense attorneys tried to convince the judge why the records were necessary. Navy Cmdr. Walter Ruiz said he represents a man — Mustafa Ahmad al-Hawsawi — who “could be put to death.” “We have a reasonable and good basis to believe the information contained within the ICRC reports could be extremely useful to our case.”

When the judge, Army Col. James Pohl, asked him if he could get the information elsewhere, Ruiz responded: “I don’t know of any other way.”

The U.S. government has the documents, Ruiz added, so the defense is not asking the ICRC itself for the records nor asking it to testify.

Although the lawyers simply could ask their clients what they told the ICRC, Cheryl Bormann pointed out that her client, Waleed bin Attash, first spoke to the ICRC in 2006. “He does not have a perfect memory. … He didn’t write down every day what happened to him in captivity.” That’s why they need the records from the ICRC, she said. “We are balancing the ICRC’s mission with saving a life.”

Bin Attash is accused of running an al-Qaida training camp in Afghanistan. The other defendants are Ramzi Binalshibh, who allegedly tried to become a hijacker but when he couldn’t get a visa to enter the United States located flight schools for the other hijackers; Mustafa Ahmad al-Hawsawi, accused of giving the hijackers money and Western clothes; and Ali Abd al-Aziz Ali, nephew of Mohammed who allegedly provided money to the hijackers.

The charges against the five men include 2,973 counts of murder for each of the people killed in the Sept. 11, 2001 terrorist attacks. The U.S. government is seeking the death penalty.

On Monday, lawyers representing the accused sought more specifics on how they could communicate with their clients and how to handle classified materials when the trial begins, which could be years from now. (Read what happened here.)

The pre-trial hearing continues throughout the week. The judge can issue rulings on the motions at any time.

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