Judge: Pentagon doesn’t have to say how it would execute alleged USS Cole bombing mastermind

Saudi Abd al Rahim al Nashiri during his military commissions arraignment at the Guantánamo Nov. 9, 2011.
Saudi Abd al Rahim al Nashiri during his military commissions arraignment at the Guantánamo Nov. 9, 2011. ASSOCIATED PRESS

Pentagon prosecutors don’t have to divulge the intended method of execution of the accused mastermind of the USS Cole bombing, a judge ruled Tuesday.

Lawyers for Abd al Rahim al Nashiri, 50, asked the judge in August to order the government to identify how it would carry out capital punishment in the case of the Saudi who allegedly orchestrated al-Qaida’s suicide bombing of the U.S. Navy destroyer off Yemen on Oct. 12, 2000. Seventeen American sailors were killed in the blast, and dozens more were wounded.

No trial date has been set. Richard Kammen, a capital defense attorney, argued that the method of execution might be relevant in selecting U.S. military officers for Nashiri’s jury. Kammen invoked a series of botched U.S. executions by lethal injection and said that panel members might be “good with killing” on the battlefield or in an airstrike but might be put off if the plan is “to take him out to a big tree and hang him.”

In his two-page ruling, judge Air Force Col. Vance Spath agreed with a prosecutor who argued in August that the request was premature because Nashiri has neither been convicted nor received a sentence.

The legal motion sought the “protocols and procedures” for a proposed execution, the method, planned site and how the executioners would be trained.

Spath left as an open question whether any such documentation exists at the Pentagon, which last carried out a military execution in 1961 by hanging an Army private for rape and the attempted murder of a child.

According to the rules for the war court President George W. Bush created and President Barack Obama reformed, the Secretary of Defense designates the method of execution.

“Federal jurisprudence holds the protocols are not relevant until an execution date is established, a date unknowable … at this point in time in the process of conducting this trial,” Spath wrote.

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