Guantánamo

USS Cole case defenders seek data on death of Kuwaiti man killed by a drone attack

A portion of U.S. Department of State wanted poster for Muhsin al Fadhli before he was killed in a 2015 drone strike.
A portion of U.S. Department of State wanted poster for Muhsin al Fadhli before he was killed in a 2015 drone strike. Miami Herald illustration

A prosecutor in the USS Cole bombing case told a judge Tuesday that U.S. intelligence agencies had not furnished his team with the so-called “kill packet” for a Kuwaiti man who was executed by a U.S. drone strike. Defense attorneys want it to determine if two men are being blamed for the same attack.

Attorneys for accused USS Cole bomber Abd al Rahim al Nashiri, 51, argued they were entitled to the information about the July 2015 targeted assassination of Muhsin al-Fadhli in Syria. They said they learned about the U.S. drone strike through a Pentagon press release and The New York Times, and received only about 30 pages of Fadhli documents.

They argued that the failure to furnish the information merited dismissal of Nashiri’s death-penalty case. The Saudi is accused of orchestrating the Oct. 12, 2000, suicide bombing of the USS Cole warship in Yemen’s Aden Harbor. Seventeen U.S. sailors died, and dozens more were wounded. Nashiri is also accused of orchestrating al-Qaida’s 2002 bombing of the French-flagged Limburg oil tanker, a crime the Pentagon also attributed to Fadhli. A Bulgarian crewmember died in that suicide bombing.

Prosecutor Navy Lt. Jonathan Cantil urged the judge, Air Force Col. Vance Spath, that there was no justification for dismissing the case. Nashiri still has no trial date.

“Limburg is one of but many reasons why the drone strike occurred,” Cantil said. Also, al-Fadhli was reportedly a leader of Khorasan, an al-Qaida affiliate the U.S. government says left Pakistan for Syria to plot attacks on the West.

Spath asked if the prosecution has obtained the Fadhli drone strike package to see for themselves.

“No, your honor,” Cantil replied.

To which Spath responded that it was then unknowable if Nashiri’s lawyers were entitled to its contents.

“The prosecution may not have those files on their desk,” said the Saudi’s Navy defense attorney, Lt. Cmdr. Jennifer Pollio. “But they represent the government … that is trying to kill Mr. Nashiri.”

A chunk of the hearing was devoted to a discussion of the Pentagon prosecution team’s obligation to provide Nashiri’s attorneys with government information to prepare for trial. All four of the Saudi’s Pentagon-paid defense lawyers now have Top Secret security clearances.

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Chief prosecutor Army Brig. Gen. Mark Martins describes Nashiri as “head of The Boats Operation,” said death-penalty defender Rick Kammen. He cited the Oklahoma bombing terror case, U.S. v. McVeigh, as entitling defense lawyers to “anything that undermines” a prosecution narrative.

Before Fadhli was killed, a $7 million Rewards for Justice wanted poster said he was “involved in several attacks in October 2002 including the attack on the French ship, MV LIMBURG, which injured four crew members, killed one, and released 50,000 barrels of crude oil.”

This was not the first time that defense lawyers have sparred with prosecutors over evidence surrounding a case figure who was targeted for death by U.S. forces. One potential trial witness, Fahd Quso, was killed in 2012 in a U.S. drone strike. Because he’s unavailable, prosecutors list him as essentially a hearsay witness whose FBI account of a 2001 Yemeni jail interview would substitute for live testimony.

At one point, Spath appeared to be chastising Pollio for overreaching with a motion to dismiss the entire case over alleged violations of discovery obligations known as Brady and Giglio requirements. The defense, he noted, hadn’t even called a witness on this very serious effort.

“Quite frankly sir,” she replied, “a lot of the witnesses are dead.”

Spath replied that defense attorneys could have asked for U.S. government witnesses with knowledge of the drone strike, and see if prosecutors agreed to provide them.

In a separate development, defense attorney Kammen appeared in court this week for the first time in memory without a kangaroo lapel pin, jewelery that demonstrates his often articulated disgust with the hybrid military and civilian military commissions system.

The veteran criminal defense attorney from Indianapolis said after court that he chose not to wear it following a conversation during the last hearings with some USS Cole attack survivors and their families.

Carol Rosenberg: 305-376-3179, @carolrosenberg

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