USS Cole case lawyers debate extraterritorial reach of Guantánamo’s war court

The French oil tanker Limburg is seen two days after an explosion ripped through its hold off the coast of Yemen, about 3 miles from the port of Mina al-Dabah, 496 miles southeast of the capital San’a, Tuesday, Oct. 8, 2002.
The French oil tanker Limburg is seen two days after an explosion ripped through its hold off the coast of Yemen, about 3 miles from the port of Mina al-Dabah, 496 miles southeast of the capital San’a, Tuesday, Oct. 8, 2002. ASSOCIATED PRESS

In the first hearing since an appeals court restored the charges, defense lawyers for the alleged planner of the attack on the USS Cole invoked Thursday a recent U.S. Supreme Court decision and asked the judge to once again dismiss the part of the capital case involving al-Qaida’s 2002 bombing of a French oil tanker.

“The United States is not, should not be the policeman for the world,” said Richard Kammen, death penalty defender for accused Saudi terrorist Abd al Rahim al Nashiri. “The military commissions with all of its issues should not be the forum for the United States to be the policeman for the world.”

The case’s new lead prosecutor, former New Orleans assistant U.S. attorney Mark S. Miller, countered that Congress intended to give the war court authority to pursue the prosecution of the Saudi as an alleged co-conspirator in al-Qaida’s bombing of the Limburg supertanker off Yemeni waters in October 2002.

“The United States has a huge interest in the global war on terror, no matter where it hits, because the nature of what we are fighting now is also international in nature and its attacks are international in nature,” Miller said. “It doesn’t just simply attack the United States, it attacks various locations, various countries, and that’s how it draws its strength.”

Nashiri is best known as the alleged architect of al-Qaida’s Oct. 12, 2000 suicide attack on the destroyer USS Cole at Aden, Yemen, that killed 17 sailors. Prosecutors seek his execution if convicted. But he is also blamed for the bombing of the Limburg two years later as it carried Iranian oil on a Malaysian contract. A Bulgarian crew member died.

A year ago, the judge, Air Force Col. Vance Spath, dismissed the Limburg charges because the prosecution refused to demonstrate, before trial, that the war court’s jurisdiction covered that attack. The chief prosecutor, Brig. Gen. Mark Martins, chose to halt the proceedings and appeal. In June, the Pentagon’s U.S. Court of Military Commissions Review restored the charges, ruling that was a question for the eventual jury of U.S. military officers to decide.

But also in June the U.S. Supreme Court decided, 4-3, that a prosecutor must prove domestic injury to convict on an extraterritorial crime in a case called RJR Nabisco versus the European Community.

Nashiri’s lawyers said the ruling doesn’t apply to the case of the bombing of the American destroyer on a refueling stop in Yemen. But Kammen argued that, based on RJR Nabisco, the war court was overreaching in international relations because it hadn’t demonstrated a U.S. stake in the Limburg attack.

Miller argued that “Congress had international goals in mind,” when it created the war court, “and that the only logical way to achieve these goals is if it had the extraterritorial application.”

It was the question of Limburg charges that stalled hearings in the war court for 18 months. They resumed this week. Thursday, a retired American sailor who served on the Cole the day it was bombed sided with the prosecution on the case of the French-flagged tanker.

“Obviously the prosecution is trying to show a pattern of misconduct ... a pattern of allegiance to al-Qaida,” said retired Navy Command Master Chief James Parlier. Like other Cole victims he expressed frustration with the pace of proceedings.

No date has been set to start the tribunal, which could be several years away. “It’s been 16 years,” said Parlier with a sigh.

Nashiri waived attendance in court Thursday and instead chose to stay back at the prison in his Camp 7 cell.

Four Cole victims were represented this week, and fellow attack survivor retired Navy Senior Chief Joe Pelly said that while delays are frustrating, he is driven to to return again and again to the dry legal arguments to show the Saudi and his lawyers that the Cole families are still watching and waiting.

Earlier in the day, Kammen asked Spath to abate the proceeding until the Department of the Navy returned a former detailed defense attorney, Navy Cmdr. Brian Mizer, to reserve duty on the case. Nashiri never released the seasoned war court defender from his team, and neither did the chief defense counsel, Marine Brig. Gen. John Baker.

Mizer voluntarily left Navy service during the protracted Limburg appeal. Kammen argues that Nashiri needs the experience of Mizer, now a civilian handling Air Force appeals, because he had earlier defended two other accused terrorists at Guantánamo — Osama bin Laden’s former driver and an alleged Sept. 11 conspirator.

Defense lawyers invoked expert testimony that Nashiri was sexually, physically and mentally tortured in CIA custody and said that Mizer had managed to gain trust and bond with the Saudi. His absence, they argued, has been disruptive to trial preparation.

Although Kammen is now Nashiri’s longest-serving lawyer, torture expert Dr. Sondra Crosby offered a written opinion on Wednesday that “the relationship between the two is hardly stable. Indeed, in the past months I am aware that Mr. al Nashiri has threatened to fire Mr. Kammen, which in my opinion is a direct result of the loss of Commander Mizer, and I believe still remains a possibility.”

A case prosecutor, Navy Lt. Jonathan Cantil, told the judge the issue doesn’t merit abatement. First, he said, the law requires that Nashiri get one death-penalty defender, Kammen, and one military counsel, a role now being filled by Navy Lt. Cmdr. Jennifer Pollio.

“The courts note that your right to counsel is a function of ensuring an adequate and effective adversarial system,” Cantil said. “It’s not about entitling an accused to a counsel of their choosing, it’s about making sure that they have adequate representation for an effective adversarial system.”

Carol Rosenberg: 305-376-3179, @carolrosenberg