A USS Cole case prosecutor said Thursday he expects the Trump administration to make good on a Barack Obama-era plea deal to let a Saudi man serve out his war crimes sentence in his homeland.
At issue is the upcoming August sentencing of confessed war criminal Ahmed al Darbi, 42, who pleaded guilty in 2014 to terror charges. He agreed to testify in the USS Cole death-penalty case on the condition that he does his time in a Saudi Arabian prison.
Whether Darbi goes home is shaping up to be an early test of the Trump White House’s willingness to abide by agreements made by his predecessor involving Guantánamo.
First, prosecutors in the USS Cole bombing case want Darbi to testify in July against Saudi Abd al Rahim al Nashiri by deposition and to make a videotape of his being questioned and cross-examined — a plan defense lawyers oppose. Nashiri is awaiting a death-penalty trial as the alleged plotter of al-Qaida’s Oct. 12, 2000, suicide bombing of the U.S. warship off Yemen in which 17 American sailors died. There is no trial date.
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In court Thursday, Nashiri’s lawyers questioned whether the pretrial testimony was necessary in light of the change of administrations. In January, then-President-elect Donald Trump called for a cessation of releases from the prison that now holds 41 captives, including Darbi.
Navy Lt. Cmdr. Jennifer Pollio, Nashiri’s military lawyer, called Darbi “an admitted jihadist” and urged the judge, Air Force Col. Vance Spath, to order prosecutors to provide evidence that the Trump administration would honor the repatriation-to-prison deal. If not, she argued, no pretrial testimony is necessary.
Prosecutor Mark Miller, on loan from the U.S. attorney’s office in New Orleans, told Spath “there is a plea agreement in place” that lets Darbi “seek repatriation to Saudi Arabia where he will finish the remainder of his sentence.”
Once he’s gone, Miller said, Darbi won’t be able testify at the actual trial — not even by video link from the Kingdom of Saudi Arabia.
“We are bound by contract principles in that plea agreement,” Miller said. “We have received no indication from [the] executive branch that that’s going to change.”
By law, Secretary of Defense James Mattis could approve Darbi’s release to the Saudi Kingdom and order the U.S. Air Force to fly him there.
But the White House has yet to announce a new Guantánamo policy. And Trump took to Twitter earlier this week to criticize the prison’s releases, incorrectly blaming the vast majority of recidivism cases on Obama, not George W. Bush.
In 2012, the Obama administration repatriated confessed al-Qaida foot soldier Ibrahim al Qosi to Sudan under a plea agreement. He has since emerged as a spiritual leader of al-Qaida of the Arabian Peninsula in Yemen.
Darbi pleaded guilty to terror charges in February 2014 and agreed to postpone sentencing to let him testify against Nashiri first.
But in the intervening years the USS Cole trial has become bogged down in pretrial proceedings — including a lengthy appeal by the prosecutors to reinstate charges against Nashiri that he also directed al-Qaida’s 2002 terror attack on the French oil tanker, MV Limburg.
A Bulgarian crew member died in the attack, and Darbi can testify about Nashiri’s role in that one.
Nashiri’s lawyers cast Darbi as a rare “live witness” for a trial, if it ever happens, that would feature written statements from unavailable witnesses, possibly including one killed in a U.S. drone strike. In some instances, U.S. agents could be called to describe their overseas interrogations of witnesses.
Lawyers and the judge spent a chunk of Wednesday and Thursday debating what evidence the Nashiri lawyers would need to be ready for what is essentially Darbi’s time-capsule testimony in July.
Defense lawyers want details about both the plea agreement and the Saudi’s allegation of abuse in U.S. custody, suggesting they intend to argue that his memories are unreliable or he’s been coerced into turning government witness.
Spath made clear that the prosecution was at a risk taking the testimony before the actual trial. What if, “After Mr. Darbi departs,” there’s a “discovery explosion,” the judge asked, noting the disagreement over what evidence Nashiri’s attorneys need.
A military prosecutor, Air Force Maj. Michael Pierson, disclosed in court that Darbi has been interrogated 224 times in U.S. custody by teams from the FBI, military intelligence and the Criminal Investigation Task Force. Defense lawyers claim they have not been given all the documents that demonstrate those interrogations.