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By Jane Sutton
GUANTANAMO BAY U.S. NAVAL BASE, Cuba (Reuters) - Lawyers for five prisoners accused of plotting the September 11 attacks in 2001 have asked to see confidential reports made by representatives of the International Committee of the Red Cross who visited the defendants at the Guantanamo detention camp.
The issue is one of dozens on the docket for a week-long pretrial hearing set to start on Monday in the death penalty case against the alleged mastermind of the hijacked plane attacks on the United States, Khalid Sheikh Mohammed, and four co-defendants accused of funding and training the hijackers.
The judge will also be asked to decide whether the defendants can be excluded from the courtroom during pretrial discussions of classified material and whether military jailers are meddling in attorney-client communications, which are supposed to be confidential.
ICRC delegates have made more than 90 visits to the Guantanamo Bay U.S. Naval Base in Cuba since the detention camp was opened in January 2002 to hold men captured in U.S. counterterrorism operations overseas.
The Geneva Conventions, the international treaties that govern the treatment of captives held during armed conflicts, authorize the Geneva-based group to make such visits to ensure that captives are treated humanely.
The ICRC keeps its findings strictly confidential, working privately with detaining authorities to improve conditions for captives.
"The ICRC is as secretive as the CIA," joked Navy Commander Walter Ruiz, a lawyer who represents alleged al Qaeda money courier Mustafa al Hawsawi.
The 9/11 defendants, and about 10 other captives who were previously held in secret CIA prisons, are housed separately from the general prisoner population at Guantanamo, in a maximum-security facility known as Camp 7. The judge overseeing the trial ruled in January that defense lawyers could inspect the camp, but those visits still have not been arranged.
Defense lawyers want to see ICRC reports about conditions at Camp 7 to ensure they do not interfere with the defendants' ability to help prepare a defense. The reports about their clients' treatment could also yield mitigating information that might spare the defendants from execution if they are convicted of the most serious charges against them, which include terrorism, hijacking and murdering 2,976 people.
ICRC WILL OPPOSE REQUEST
The ICRC takes no position as to whether the Guantanamo war crimes tribunals comply with international law, the group's lawyers said in a court document. But they will argue against releasing their reports to the defense lawyers, even though they have said they would not make them public.
"This absolute right to non-disclosure of the ICRC's confidential information, including the right not to be compelled to testify in judicial proceedings, has been recognized consistently by international tribunals and by the international community," the ICRC said.
The ICRC has said previously that its tenacious and confidential scrutiny of the Guantanamo detention operation has resulted in improvements in prisoners' treatment. The group normally opens its archives after 40 years but can withhold personal details such as detainees' names.
In a leaked memorandum in the New York Times in 2004, the ICRC accused the U.S. military of using tactics "tantamount to torture" on prisoners at Guantanamo. The Pentagon rejected the allegations of psychological and physical abuse and the ICRC declined to confirm or deny their authenticity.
President Barack Obama, who recently reiterated his intent to close the Guantanamo detention camp, has ordered the military to comply with the Geneva Conventions' standards for humane treatment.
The State Department is expected shortly to announce the appointment of veteran Washington lawyer Cliff Sloan to oversee the closure of the Guantanamo prison, sources familiar with the decision said late on Sunday.
(Reporting by Jane Sutton; editing by Christopher Wilson)