The judge in the USS Cole bombing case said Wednesday he would set a 2018 trial date and expects it will take months to choose the U.S. military jury to hear the death-penalty case.
Abd al Rahim al Nashiri, 52, in custody since 2002, is accused of plotting al-Qaida’s Oct. 12, 2000, suicide attack against the U.S. Navy warship off Aden, Yemen. Seventeen sailors were killed and dozens more were wounded.
Air Force Col. Vance Spath, the judge, disclosed his plans to set a timetable on the third day of mostly tedious testimony from FBI agents identifying evidence — mostly chunks of fiberglass and wires — they collected aboard the warship days after the blast.
FBI agent Dayna Better Sepeck, who served as evidence custodian, called it a complex, difficult job with surviving sailors on the scene, agents doing “human remains recovery” and others collecting evidence on the ship and in the water.
Crime scene work would come to a halt after a fallen sailor’s remains were found in the twisted wreckage or in the waters of Aden Harbor.
“Everything stopped. We honored that victim,” Sepeck said, explaining that she’d leave her evidence collection site below deck for a flag ceremony with sailors standing at attention, “trying very hard not to cry, not to show any emotion.”
Still, she said, she’d spot “lips quivering so hard because they wanted to hold it in. You just don’t have that at scenes where you work.”
Nashiri wasn’t in court to hear it. The Saudi voluntarily stayed in his cell for the day, which started with defense attorney Rick Kammen announcing a coming legal motion. It will accuse the prosecution of failing to provide certain material about the secret CIA prison network where Nashiri was interrogated and held for four years, Kammen said. He added that his defense team had filed a petition in the U.S. Supreme Court challenging the legality of Nashiri’s trial at Guantánamo.
To which Spath replied that he was putting together a “final discovery order and trial order for 2018.”
“We are changing how this looks,” Spath said, advising lawyers to prepare to spend long periods of next year “down here and getting this moving.” He said he envisioned “contemporaneous motion practice,” some times working on jury selection and others with lawyers in court still arguing legal motions.
One Cole bombing survivor, retired U.S. Navy Senior Chief Joe Pelly, declared himself “happy to hear that the judge is determined to start jury selection, trial in 2018. I just hope it becomes a reality.” He and five other former sailors who were aboard the destroyer during the attack watched the proceedings in a viewing gallery behind the court.
Pelly called the days of FBI agents testimony “emotionally draining,” especially when agents talked about recovering the remains of dead sailors. He said those parts in particular brought back memories of the attack, or “visions,” perhaps describing flashbacks.
In one graphic instance Wednesday, FBI agent Kevin Finnerty said a sailor’s “lower torso was blown up in a ceiling” and had to be removed. Agents who arrived in Yemen days after the bombing also had to pull body parts out of a crevice in the blown out side of the ship that had the sailor’s dining room, he said.
The judge said it would “take months to seat a jury” of 12 members plus alternates, and cited two reasons why it would take so long. At the Pentagon a senior official called the Convening Authority will need to create a pool, or pools, of potential jurors. Meantime, he said he expected it “will take some time” to design a questionnaire for would-be jurors to fill out for use during in-court questioning.
Kammen disagreed with the decision to set the timetable.
“The only way this case goes to trial in 2018 is if the judge and the military decide, ‘We’re going to have a trial and we don’t care about fairness,’ ” the veteran civilian death-penalty defense attorney said during a recess.
He cited so far unscheduled pretrial testimony that Spath agreed to take from four senior CIA officials; problems with evidence; the arrival later this year of three new Pentagon appointed defense attorneys; and pretrial defense litigation to exclude information from the Saudi captive’s 2006 and 2007 interrogations at Guantánamo, after four years in secret CIA prisons.
“These are huge, huge issues and I don’t know he’s planning for them,” Kammen said of the judge. “He has clearly gotten his marching orders from somebody.”
Spath already agreed last week, over Kammen’s objections, to take a pretrial deposition from an alleged accomplice at Guantánamo who could be repatriated to Saudi Arabia later this year. He also agreed to the unprecedented CIA testimony, a ruling the prosecution may yet appeal.