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Lawyers for five men accused of planning the 9/11 attacks sought access Tuesday to confidential communications between the International Committee of the Red Cross and the men after they were held at CIA black sites.
ICRC attorney Matthew MacLean urged a military judge to deny access to the records prepared for the US government, saying their release would hamper the organization's "neutral, impartial and independent" role in conflicts and regions around the world.
"The ICRC goes to places of conflict that no one else can go to," MacLean said during a pre-trial hearing at Guantanamo Bay boycotted by the five terror suspects. "We visit and speak to people that no one can."
The self-proclaimed mastermind of the September 11 attacks, Khalid Sheikh Mohammed, and his four co-defendants were held at secret CIA prisons between 2002 and 2006, at which point they were transferred to the US naval base at Guantanamo.
While in CIA detention, they were subjected to enhanced interrogation techniques, some of which have been likened to torture.
Mohammed was subjected to the simulated drowning technique known as waterboarding 183 times during his years in detention.
Upon their arrival at Guantanamo, the five men were able to talk about their experiences to the ICRC, the only organization authorized to speak with the suspects before they were assigned lawyers.
In an appeal to Judge James Pohl, the lawyers requested the ICRC reports to better argue their clients' cases. All face the death penalty.
"I'm an officer of the United States representing a man (that the US) is to put to death by judicial process," said lawyer Walter Ruiz, adding that there was "no other way to get this exculpatory information."
MacLean, the ICRC lawyer, said the government was under the "obligation" to protect when and how the information was used.
"No one can say the ICRC is with us... without the ICRC consent. In the law of war, no one can use the red cross, symbol of the ICRC," he said.
"It would be insane for this court to violate the rights of international law."
Chief military prosecutor Brigadier General Mark Martins, representing the US government, opposed the defense motion, calling the content of the reports "very important, sensitive material that needs to be protected."
He asked why the defense lawyers did not simply ask their clients to tell them what happened 10 years ago.
Lawyer Cheryl Bormann countered that her client Walid bin Attash of Yemen "doesn't have a perfect memory and didn't have pen and paper to write what happened to him... and what the CIA did to him."
"This is a capital case," said David Nevin, who represents Mohammed.
He stressed that before intentionally putting someone to death in the name of the United States, "we (should) make everything available to assist and make the argument that he should live, not die."
The ICRC has "the ability to selectively waive their privilege. I don't see why not," Nevin said in demanding the documents be released. "The Eighth Amendment (of the US Constitution) and the due process (clause) trumps it because we're talking about a capital case."
Tuesday's hearing, intended to lay the groundwork for an eventual trial, was held in a courtroom at Guantanamo and transmitted via a delayed feed to an adjoining gallery, a press room and the Fort Meade military base outside Washington.
The men had attended the first of five days of pre-trial hearings on Monday but Mohammed and his four co-defendants announced early Tuesday that they would no longer attend the proceedings, without offering a reason, according to a military official.
During the men's first court appearance since February on Monday, Yemeni defendant Ramzi Binalshibh asked for permission to address the court. His request was denied.
The men face the death penalty if convicted of the murder of nearly 3,000 people on September 11, 2001, in the worst ever attack on US soil.