Alleged USS Cole Attack Mastermind Faces Military Commission

Abd al Rahim al Nashiri, the alleged mastermind of the attack on the USS Cole in October 2000, was arraigned at the U.S. military base at Guantanamo Bay, Cuba, today, marking the first time  he has ever been seen in public since his capture in 2002. 

Al Nashiri did not enter a plea on the charges presented against him at today’s hearing. 

His case is the first to proceed since the Obama administration decided to resume the military commissions process following changes made under the 2009 Military Commissions Act.  If convicted for planning of the attack on the USS Cole off the coast of Yemen, al Nashiri could face the death penalty. 

Al Nashiri chose to wear the white prison uniform issued to Guantanamo detainees at today’s hearing and sported a short haircut and a stubbly five o’clock shadow.  The 46-year-old appeared bulkier than the only known picture of him that shows a younger al-Nashiri wearing  an Arabic headdress.  

Al Nashiri was engaged throughout the hearing and often responded with smiles to frequent questions about whether he understood how the case would proceed.  

As the hearing began, Col. James C. Pohl,  the presiding judge in the case, asked al Nashiri if he spoke English. 

Al Nashiri replied in English, “I do not speak English.”   

When asked if he would need an interpreter for the proceedings, he again replied in English with a confused smile, “Of course, yes.”

Asked if he was comfortable with the attorneys working with him, he said through an interpreter, “At this moment, these lawyers are doing the right job.”

Reporters sitting inside the courtroom at Guantanamo reported that al Nashiri waved his hand as he entered the courtroom, though that was not visible to reporters watching a closed circuit feed of the proceedings at Fort Meade, Md. 

Al Nashiri’s lead defense attorney, Richard  Kammen, said later that he did could not speak directly about a hand wave, but said al Nashiri was “glad to be in the process,” noting he has been kept in tight quarters since his 2002 detention. 

Seven family members of the 17 sailors killed in the waterborne attack on the USS Cole traveled to the US naval base at Guantanamo to be on hand for today’s arraignment.  They sat in a special glassed-in section in the back of the courtroom.

After today’s hearing, John Clodfelter, whose 21-year-old son, Kenneth, was killed in the attack, characterized al Nashiri’s demeanor as “cocky” and said he deserved the death penalty, “if not worse,” for what he had done.   He criticized the court for seemingly being “more concerned with the way he was treated, as opposed to the way his people treated 17 sailors.”

Al Nashiri has been detained at Guantanamo since September 2006, when he was transferred from CIA custody.  Captured in 2002, al Nashiri had been held in one of the CIA’s secret prisons and was one of three al Qaeda detainees to have ever been waterboarded.

After today’s arraignment,  Pohl set a court date of Nov. 9, 2012 though afterwards Kammen later predicted to reporters it might start later than that given  how much preparation is involved in cases involving the death penalty.

Much of today’s hearing was taken up by a defense motion to have officials at Guantanamo cease from checking the legal team’s correspondence with al Nashiri, which the defense said was a violation of attorney-client privilege.  Military prosecutors argued that the inspections were necessary for force protection issues. 

Pohl ordered that legal correspondence not be read by base security officials.

Afterwards, Kammen told reporters that the motions and other issues raised at today’s hearing demonstrated what was wrong with the military commissions system because they would not have taken up so much time and effort in a civilian court.   He predicted that even though a trial date has been set for exactly a year from now, it will likely proceed much later beyond that given how much preparation is involved in cases involving the death penalty.

In a unique feature  under the military commissions process, defense attorneys are allowed to pose questions of the presiding judge. 

Kammen told Pohl that al Nashiri wanted to know if the judge thought he was guilty. 

Pohl replied, “Of course not, he’s presumed innocent.”  

Later,  Kammen asked Pohl if torture might be a mitigating factor for the death penalty the jury must consider if a guilty verdict is returned in the case.  Pohl said his opinion did not matter, that it would be up to the jury to decide.

According to the Department of Defense, Al Nashiri is charged with terrorism; attacking civilians; attacking civilian objects; intentionally causing serious bodily injury; hazarding a vessel; using treachery or perfidy; murder in violation of the law of war; attempted murder in violation of the law of war; conspiracy to commit terrorism and murder in violation of the law of war; destruction of property in violation of the law of war; and attempted destruction of property in violation of the law of war. 

In addition to the charges for the attack on the USS Cole, al Nashiri is also charged with planning a previous attack on the destroyer USS The Sullivans and on a French oil tanker. 

Al Nashiri’s next court appearance will be in mid-January for a procedural hearing.

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