fb-pixelMan accused of plotting USS Cole attack is arraigned - The Boston Globe Skip to main content

Man accused of plotting USS Cole attack is arraigned

Attack in Yemen in 2000 killed 17 US sailors

Associated Press

GUANTANAMO BAY, Cuba - After more than nine years in US custody, four of them at a secret CIA prisons, the alleged mastermind of the 2000 USS Cole bombing finally appeared in public yesterday, when he was arraigned in the first death-penalty military commission under President Obama.

Abd al-Rahim al-Nashiri, a Saudi of Yemeni descent, was one of three detainees waterboarded by the CIA. He entered the courtroom in Guantanamo Bay with a shoulder-rolling swagger, leaned back in his chair, and gave a thumbs-up to his team of defense lawyers.

A short time later, he glanced back at the public gallery, where relatives of victims, the media, and human rights activists sat behind three panes of glass. He then raised his right arm and gave an insouciant wave to the gallery.

Advertisement



Nashiri - clean-shaven, stocky, and wearing white prison garb - was arraigned on charges of murder and terrorism, as well as other violations of war for his role in the Al Qaeda attack, which led to the deaths of 17 US sailors.

In addition to being waterboarded, Nashiri was also subjected to mock executions in which CIA operatives held a power drill and a gun to his head. The waterboarding was sanctioned by Justice Department lawyers, but the use of the drill and the gun fell outside interrogation techniques approved during the George W. Bush administration.

Khalid Sheik Mohammed, the self-proclaimed mastermind of the 9/11 attacks, and four codefendants were arraigned on capital charges at Guantanamo under the Bush administration. Those charges were withdrawn by the Obama administration in anticipation of a federal trial, but sworn again this year by military prosecutors when the planned proceedings in New York collapsed in the face of congressional and local opposition. A second Guantanamo arraignment in the 9/11 case is expected soon.

Advertisement



As is allowed under military law, defense lawyers yesterday questioned Judge James Pohl, an Army colonel, to see whether they want to challenge him on grounds of impartiality. The defense, in the end, did not challenge Pohl, but the questioning about both the death penalty and torture indicated that Nashiri’s treatment while in CIA custody will be a central to the defense’s effort to prevent the defendant from being sentenced to death.

“Do you believe that by torturing Mr. Nashiri, the United States has forfeited the right’’ to execute him, asked defense attorney, Richard Kammen, a civilian lawyer and death penalty specialist from Indiana.

Pohl declined to answer most of the questions, saying his personal opinions were not relevant and he will apply the law. “I’m a simple guy,’’ said the judge, “I follow what the rules say.’’

The case - in a system that Pohl described as unique because it remains untested - is expected to be protracted. On Monday, two days before the arraignment, the military released 202 pages of new procedures for commissions. And Kammen said in an interview that the court could still be hearing pretrial motions a year from now.

The proceeding could also be contentious, with the government and the defense trading charges about bad faith. Defense lawyers complained that the government has stalled on turning over evidence that would allow them to prepare for trial and began reading privileged attorney-client mail, breaking with past practice just as proceedings were about to get underway.

Advertisement



A government official, who spoke on condition of anonymity because he was not authorized to speak about the case publicly, said the evidence will be released as is required under the rules of evidence. The government official also complained that the defense hired an investigator who showed up at the homes of senior government officials, including Porter Goss, the former CIA director. Goss refused to speak to investigators, the official said. The official said showing up unannounced at the homes of senior government officials was “inappropriate and aggressive.’’

Navy Lieutenant Commander Stephen Reyes, Nashiri’s lead military lawyer, said the defense’s investigator had done nothing unethical.

The defense also filed suit last week in federal court in Washington State, challenging the authority of retired Navy Vice Admiral Bruce MacDonald, who oversees the war court, to send the Nashiri case to trial. The suit argues that the United States was not in a state of war at the time of the attack, and the Clinton administration treated the attack as a criminal matter.

The suit was filed in Washington because McDonald has a home there, lawyers said.

The military alleges that Nashiri was a close associate of Osama bin Laden and was “in charge of the planning and preparation’’ of the attack, in which a small boat carrying two suicide bombers pulled alongside the USS Cole in the port of Aden and detonated, ripping a 30-by-30-foot hole in the Navy destroyer.

Nashiri - who escaped from Afghanistan after the attacks on Sept. 11, 2001 - was captured in the United Arab Emirates in 2002 and turned over to the CIA.

Advertisement