No court in the world has ever ordered the International Committee of the Red Cross to open its confidential files on prisoner visits and the U.S. Guantanamo war crimes tribunal would set a dangerous precedent if it becomes the first to do so, a lawyer for the humanitarian group said on Tuesday.
International treaties give the ICRC the unique responsibility of visiting war captives to ensure they are treated humanely, and its access depends on strict neutrality and the ability to work privately with detaining authorities, ICRC attorney William MacLean told the court.
"We visit and speak to people that no one else can speak to," he said. "The only way we get access to these places ... is by having absolute confidentiality in our communications."
Lawyers for five prisoners accused of plotting the Sept. 11 attacks in 2001 have asked to see confidential reports made by Red Cross representatives who visited the defendants in the detention camp on the Guantanamo Bay U.S. Naval Base in Cuba. They believe those files might contain evidence that could cast doubt on the defendants' guilt, or mitigating information about the conditions of their confinement that could spare then from execution.
The defendants include the alleged mastermind of the hijacked plane attacks, Khalid Sheikh Mohammed, and four other prisoners. They could face the death penalty if a jury of U.S. military officers convicts them of charges that include terrorism, hijacking and murdering 2,976 people in New York, Washington and Pennsylvania.
Defense lawyers argued that the defendants' right to avoid an unjust execution trumped the ICRC's right to keep secrets. MacLean disagreed and said every international court that has examined the issue has supported the ICRC's absolute right to confidentiality.
"If your honor were to order disclosure, you would be the first court to do so," MacLean told the judge, Army Colonel James Pohl.
The United States set up the Guantanamo tribunals after the Sept. 11 attacks to try foreign captives outside the regular U.S. civilian and military courts.
"These defendants could have been charged with domestic crimes. Instead they were charged with crimes under the law of war," MacLean said.
Because the United States charged them with violating the international laws of war, the United States must follow those laws and respect ICRC confidentiality, he said. The Geneva-based group's role is laid out in the Geneva Conventions, the international treaties adopted after the Second World War to regulate the conduct of armed conflict.
Although he objected to being ordered to open ICRC files, MacLean said the group had discretion to voluntarily release some documents.
The judge questioned how that might work, but planned to hear more arguments in the case before ruling.
The defendants were captured in 2002 and 2003 and held in secret CIA prisons, where they were denied Red Cross visits. The ICRC began visiting them after they were sent to Guantanamo in 2006, two years before the defendants were given access to lawyers.