"We have to talk about torture," said defense attorney Captain Michael Schwartz, who represents Walid Bin Attash, claiming it's relevant to whether the accused should be "forcibly extracted" from their prison cells.
"No we don't. I'm telling you I don't think it's relevant to this issue," said Judge James L. Pohl, presiding over the military commission case of the five 9/11 co-defendants. "I'm not going to keep revisiting the issue I told you is not relevant."
Schwartz tried to explain. "There is the physical and emotional strain that is relevant to the decision of whether they're going to come to court. Those things are inextricably linked."
Pohl quickly interrupted. "The issue before me is whether or not the accused has a right to voluntarily choose to not come to court for these proceedings. The issue of why is not before me... I don't think that's relevant."
Schwartz looked bewildered, but persisted. "The issue of my client's ability to participate in his defense is relevant," he insisted.
Judge Pohl: "No it's not. When I say it's irrelevant, we're done." Pohl refused to allow Captain Scwhartz to even make his claim for the record, which he presumably wanted to do to preserve a later right to appeal.
Ultimately, Judge Pohl ended the discussion by ruling in the defense lawyers' favor, saying he'd allow the defendants to waive their right to attend their hearings and trial so long as they did it knowingly and following a set of procedures he would set out this afternoon.
That short exchange gives us an interesting clue of how the word "torture" and related claims of detainee mistreatment are likely to be treated as this September 11 terrorism trial finally gets underway.
Secrecy surrounding the detainees' treatment in U.S. custody -- including their having been subjected to "enhanced interrogation techniques" that amount to torture -- will play a much larger role in motions expected to be argued tomorrow.