Pentagon funds Cole case death-penalty defender

In an important first step, the Pentagon hired an experienced death-penalty defense lawyer to work on the the USS Cole bomber suspect’s case.

04/30/2011 5:00 AM

07/30/2013 5:25 PM

The Pentagon has moved one step closer to putting the alleged USS Cole bomber before a capital war crimes trial at Guantánamo, assigning an Indiana attorney with extensive death penalty experience to help defend a Saudi-born Yemeni captive who was waterboarded by the CIA .

Indianapolis attorney Rick Kammen, who’s handled more than a dozen federal and state death-penalty trials, got the appointment approved by retired Navy Vice Adm. Bruce MacDonald on Wednesday in a letter. Kammen is now authorized to travel to the remote base in southeast Cuba at Pentagon expense to help defend accused war criminal Abd al Rahim al Nashiri.

The first order of business for the defense team is to meet MacDonald’s June 30 deadline to file notice on why the Pentagon shouldn’t go forward with the prosecution as a death penalty case. Navy Lt. Cmdr. Stephen Reyes and New Mexico criminal defense attorney Nancy Hollander have already been on the case.

Seventeen American sailors were killed when al Qaeda suicide bombers blew up a boat laden with explosives alongside the $1 billion destroyer off Aden, Yemen, in October 2000. A Pentagon charge sheet accused Nashiri, 46, of orchestrating the attack.

Nashiri is among three Guantánamo captives whom U.S. agents waterboarded during interrogations at secret CIA-run prisons overseas. He was captured two years after the Cole attack, disappeared into a so-called “black site,” until then President George W. Bush ordered him moved to Guantánamo in September 2006 for a military trial.

Three months later, a U.S. military assessment signed by then Army Brig. Gen. Edward Leacock described Nashiri as such a devoted warrior that he shunned sex.

“Detainee is so dedicated to jihad that he reportedly received injections to promote impotence,” Leacock wrote as deputy prison camps commander in a secret document recently released by WikiLeaks.

It is up to MacDonald, whose title is Convening Authority for Military Commissions, to decide which aspects of the Pentagon prosecution’s proposed 13-page charge sheet will go forward as a death penalty case. These are the first charges sworn at the war court since President Barack Obama took office and worked with Congress to reform commissions.

Under the new format, the Pentagon must pay for so-called “learned counsel,” death penalty-experienced lawyers on capital cases. Kammen, a 1971 graduate of the New York University School of Law, can now earn the federal approved death penalty defense rate, $178 an hour, for up to 200 hours.

Once MacDonald approves a charge sheet, prosecutors have a month to take Nashiri before a military judge for a formal presentation of the charges.

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