Pentagon prosecutors Wednesday pressed the first Obama-era war crimes charges against a Guantánamo captive, seeking the death penalty in the case of a Saudi man accused of masterminding the 2000 suicide attack on an American Navy warship off Yemen that killed 17 American sailors.
If a senior Defense Department official approves the charge sheet, Abd al Rahim al Nashiri, 46, would face the first-ever capitol prosecution at the war court called Camp Justice.
Before his transfer to Guantánamo in 2006, the CIA held Nashiri at a secret site somewhere overseas and used a near-drowning technique called waterboarding on him to get him to cooperate during interrogation.
The Pentagon’s 13-page charge sheet accused the self-described former millionaire from Mecca of 11 charges, including murder in violation of the law of war, treachery, terrorism and conspiring with Osama bin Laden and his deputy Ayman al Zawahiri, among others. It also listed the names of each dead sailor.
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Nashiri’s Pentagon appointed defense lawyer, Navy Lt. Cmdr. Stephen Reyes, decried the decision to try the Saudi at a tribunal rather than a civilian court.
“Nashiri is being tried at the Guantánamo military commissions because of the torture issue,” Reyes said. “Otherwise he would have been indicted in New York,” where a grand jury in 2003 issued an indictment against two Yemenis whose extradition the U.S. has sought from that Arabian Peninsula nation.
Word of the first full military commission case of the Obama administration came in a Pentagon news release revealing that the charges had been sworn by the office of the Chief war crimes prosecutor, Navy Capt. John Murphy.
The Defense Department did not immediately release copies to the public despite a vow of greater transparency at the war court.
The news release said the charges alleged Nashiri “was in charge of the planning and preparation” for the Oct. 12, 2000 attack on the USS Cole in the Port of Aden, Yemen. Suicide bombers drove an explosives laden boat into the $1billion destroyer, crippling it and wounding 40 sailors beyond the 17 who died in the blast.
The Aegis class destroyer, which was commissioned at a ceremony in Port Everglades, nearly sunk. It was towed back to U.S. shores, restored and put back in business 18 months later and sails out of Norfolk Va.
The charges also allege that Nashiri planned and prepared an averted al Qaeda attack on another warship — USS The Sullivans — as it refueled in the Port of Aden on Jan. 3, 2000.
The Defense Department has gone forward with the case even as Secretary of Defense Robert Gates has yet to decide what manner of execution would be used to carry out a death penalty on a war court convict.
The Pentagon prosecutor has also not yet sworn charges against five men held at the Navy base in Cuba who allegedly conspired in the Sept. 11, 2001 attacks. Attorney General Eric Holder recently approved the military trial for confessed 9/11 mastermind Khalid Sheik Mohammed and his four alleged other plotters after being rebuffed in efforts to have them face civilian trials.
Nashiri’s Navy lawyer, Reyes, was not only critical of the forum for the proposed trial but of the timing of the charges.
“The military commissions do not have the procedural protections necessary for a capital case,’’ he said. “Because of the makeshift rules, my client could be convicted and put to death without ever having a chance to see his accusers take the stand.”
The Obama administration has said its reforms have made the military commissions fairer than those created by the Bush administration in the early years of Guantánamo, which Obama condemned as a presidential candidate and senator.
The Cole’s captain, retired Navy Cmdr. Kirk Lippold, has been one of the most outspoken advocates of the Guantánamo war court in general and a war crimes trial for Nashiri in particular. After the bombing, he worked at the Pentagon as a planner in the office of the chairman of the Joint Chiefs of Staff, with a hand in U.S. detention policy during the Bush administration.
In civilian life, he testified at Guantánamo during the sentencing phase of a Bush-era military commission trial. A jury had convicted Osama bin Laden’s media secretary, Ali Hamza al Bahlul of Yemen, of conspiring with al Qaeda by making a video that glorified the Cole bombing and Lippold described his disgust at discovering the propaganda film.
He is currently running for a Nevada seat in the U.S. Congress, as a Republican, and recently described the attack as a life-changing experience in an interview from Carson City with The Huffington Post.
“My service to my Navy became more focused and even deeper,” he said, “which has caused me to want to enter government service again.”
At least two other current Guantánamo captives are among the uncharged co-conspirators in Nashiri’s alleged crimes: Walid bin Attash, designated for trial in the 9/11 attacks and Ahmed Darbi, who Holder had earlier approved for a war crimes trial but has yet to be charged.