Lawyers, staff and family of sailors killed in al-Qaida’s 2000 USS Cole attack returned to this base Tuesday for resumption of pretrial hearings in the capital terror case for the first time in 18 months.
“Justice doesn’t have a time limit,” Army Brig. Gen. Mark Martins, the chief war crimes prosecutor, told reporters Tuesday evening, declining to predict when the trial itself might start.
Saudi Arabian captive Abd al Rahim al Nashiri, 51, is expected back in court on Wednesday for a three-day hearing. The judge, Air Force Col. Vance Spath, put the proceedings on hold in March 2015 while higher courts sorted through a series of challenges brought by both prosecution and defense lawyers.
The U.S. Court of Appeals for the District of Columbia Circuit resolved the last one last week by deferring to Spath, and ultimately the military officer jurors who will hear the case, on when the War on Terror began. Nashiri is charged at the military commissions built by Presidents George W. Bush and Barack Obama as the alleged architect of al-Qaida’s bombing of the $1 billion warship at Aden harbor in Yemen on Oct. 12, 2000.
See our USS Cole Trial Who’s Who guide here.
Seventeen sailors were killed in that suicide bombing, and the prosecutors seek to execute Nashiri if he is convicted. No trial date has been set in part because prosecution and defense attorneys are still haggling over applicable law and evidence in the war crimes case against the man the CIA waterboarded, kept nude and kenneled during interrogations before the CIA delivered him to Guantánamo for trial over Labor Day weekend in 2006.
This week’s hearing is expected to tackle, among other things, a series of defense motions to dismiss the case or at least suspend it again until some defense lawyers get security clearances or are reinstated in the death-penalty case. Virtually everyone involved in the case, except Nashiri, was boarding a Pentagon charter flight to the hearing.
There’s a new federal prosecutor, Assistant U.S. Attorney Mark A. Miller of New Orleans, but a Navy defense attorney who once defended Nashiri, Cmdr. Brian Mizer, hasn’t been returned to service despite the captive’s request. In 2014, after a public portion of the so-called Senate Torture Report showed the CIA pumped Ensure nutritional supplement into Nashiri’s rectum during Black Site detention a decade earlier, Mizer described the treatment as punishment that was tantamount to rape for going on a hunger strike.
That report also confirmed for the first time that Nashiri has twice been held prisoner at Guantánamo. The CIA maintained secret prison facilities “on the grounds of, but separate from, the U.S. military detention facilities at Guantánamo Bay, Cuba” from September 2003 according to a 524-page summary of the Senate Intelligence report. He and at least four other captives were moved out and the agency closed those facilities in April 2004 ahead of a U.S. Supreme Court decision granting Guantánamo detainees access to the federal courts.
Two of the longest-serving lawyers on the case — Chief Prosecutor Brig. Gen. Mark S. Martins and death-penalty defender Rick Kammen were on base for the three-day session. In the nearly five years since Nashiri was arraigned, the judge has changed and all the other attorneys have changed. Only Kammen, Martins, the accused Saudi terrorist and the family of the fallen Cole sailors have been the constant at Guantánamo’s maximum-security courtroom.
“It’s crazy to think you can do a case this complicated with this constant turnover of people,” Kammen said on the eve of the flight. He has long argued the only place to try this case is in federal court.
“The truth is, we do appreciate the victims’ pain. The tragedy is, in Nashiri’s case we’re going to go through two or three more years, have a trial, go through two or three more years, finally get to the D.C. Circuit and only then will they know if this case was tried in the right court. That is horribly unfair to these people.”
Tuesday, some regularly attending fathers of sailors killed on the warship were missing from the victim-family entourage. John Clodfelter, Ronald Francis and Jesse Nieto had typically attended but were did not travel to this base.
Two Cole shipmates were among the observers, Command Master Chief James Parlier and retired Senior Chief Joe Pelly. The father of Seaman Craig Wibberley, 19, and mother of Petty Officer First Class Kevin Rux, 30, both killed in the attack, were also attending.
Suicide bombers pulled up alongside the U.S. Navy destroyer during a refueling stop in Aden and blew up themselves and their bomb-laden skiff. Nashiri was captured in the United Arab Emirates about two years later and brought to this base specifically for trial after nearly four years in CIA custody.
A U.S. military panel concluded in 2013 that Nashiri suffers depression and Post Traumatic Stress Disorder but is competent to stand trial. A year later, in a failed bid to get him mental health care, defense attorneys called an expert in torture to testify that the CIA physically, mentally and sexually tortured him at the secret prison site, Camp 7. Spath has, however, ordered the military to arrange for an MRI of Nashiri’s brain as part of trial preparation.
Neither the U.S. Southern Command nor the Navy Bureau of Medicine responded to a Miami Herald inquiry on whether the military had secured a contract for rental MRI equipment to be delivered to the remote base. The military began advertising for it a year ago.
In the most recent federal appeal, Nashiri’s attorneys invoked his torture as a reason for the civilian court to decide before trial the issue of when the War on Terror began. Prosecutors argued, and two appellate judges agreed, that question should be addressed by the tribunal. If Nashiri is convicted, civilian courts can tackle whether they got it wrong later.
“We are particularly confident that Congress did not intend to allow a defendant to halt the workings of a military commission by challenging in federal court an issue that could just as easily be considered by the commission and reviewed by a federal appellate court,” Judge Thomas Griffith wrote with the agreement of Judge David Sentelle.
They added: “Nashiri’s allegations regarding his treatment during his detention, while deeply troubling, do not provide any reason to fear that he will not be given a fair hearing in the military commission.”
But Judge David Tatel disagreed, saying the federal court should consider the question first in part because of Nashiri’s history of abuse in U.S. custody. He invoked the defense lawyers’ claims of “unusual and extraordinary allegations of harm” and devoted four pages of his 17-page dissent to defense descriptions of the Saudi prisoner’s CIA torture. He devoted another two more pages to defense descriptions of his deteriorated mental health.
Kammen said his team had decided to appeal that decision to the U.S. Supreme Court.
Tuesday evening, he criticized the Obama administration for not seeking to resolve the issue before trial. “The prosecution is basically taking everyone on a road and down a path that may prove to be time-consuming, expensive, foolhardy,” he said.
See our USS Cole Trial Guide here.