One exchange in the pre-trial hearings in the military commission case against the alleged plotters of 9/11 pointed to the big, dark elephant in the room.
The lawyers for Khalid Sheikh Mohammed, the alleged mastermind of the 9/11 attacks, and four alleged al-Qaeda conspirators contend that their treatment in secret CIA prisons is relevant to every aspect of the case.
But the judge, Army Colonel James Pohl, has repeatedly dismissed issues of torture raised by the defence.
Today Air Force Captain Michael Schwartz, Mohammed’s lawyer, brought up the subject when arguing that forcibly bringing the defendants out of their cells and into court would remind them of their time in CIA custody.
The judge, Army Colonel James Pohl, once again declared that the topic of torture was not relevant to the discussion.
“We have to talk about torture,” Schwartz said.
“No we don’t,” the judge replied.
“I think we do,” Schwartz said.
“I’m telling you I don’t think that’s relevant to this issue. That’s the end of that,” Pohl snapped.
When Schwartz persisted, Pohl said angrily, “Are you having trouble hearing me? Move on to something else!”
The government will continue to argue that any statements by the defendants concerning their “exposure” to the CIA’s detention and interrogation program are classified because they concern U.S. intelligence “sources, methods and activities.”
A 2005 Justice Department legal memorandum stated that Mohammed was waterboarded—a technique described as illegal torture by top Obama administration officials—a total of 183 times in March 2003. Eventually he allegedly confessed to planning the attacks.
The military commission’s own rules state that any statement “obtained by use of torture shall not be admitted into evidence against any party or witness.”
So the question is not whether torture occurred, but what torture-related evidence will be allowed on either side and if the public will ever hear about it.