Poland asks U.S. to spare alleged USS Cole bomber from execution

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

Poland, which allowed the CIA to have a secret interrogation site there after 9/11, has formally asked the United States to make sure the alleged mastermind of the USS Cole bombing is spared the death penalty, Poland’s Foreign Office said Wednesday.

The alleged bomber, Abd al Rahim al Nashiri, 50, a Saudi, is awaiting a military tribunal at the U.S. Navy base at Guantánamo Bay, Cuba, as the alleged architect of the Oct. 12, 2000 suicide bombing of the warship off Yemen where 17 sailors were killed. If he’s convicted, his jury of U.S. military officers can sentence him to death.

But Wednesday, the Polish Foreign Ministry said in a statement to the Miami Herald that it had both verbally and in writing sought “diplomatic assurances” that Nashiri “will not be subjected to the death penalty.”

The Polish government statement said the request was in light of a July 2014 ruling by the European Court of Human Rights. It found Nashiri suffered “torture and inhuman or degrading treatment” at a secret CIA prison at Poland’s Stare Kiejkuty intelligence training base. It also said Poland denied Nashiri due process by permitting his transfer from Poland, ultimately landing him at Guantánamo, where he now awaits trial.

At the State Department, an official refused to say whether or how U.S. diplomats had responded to the request. “We will not comment on the specifics of sensitive diplomatic discussions,” said Ian Moss, of the Office of the Special Envoy for Guantánamo Closure.

At the Pentagon, spokesman Army Lt. Col. Myles B. Caggins III would not say whether the diplomatic request could become part of war-court litigation. “The Military Commissions Act of 2009 is the United States law that governs the prosecution of the case and, if the accused is found guilty beyond a reasonable doubt, the sentencing of the accused,” Caggins said by email.

Poland’s statement Wednesday said it was also pursuing diplomatic assurances that neither Nashiri nor another Guantánamo captive, Zayn al Abdeen Mohammed al Hussein (known as Abu Zubaydah), “will be exposed to a flagrant denial of justice.”

U.S. agents waterboarded both men and subjected them to other “enhanced interrogation techniques” during their four years of secret detention before their 2006 transfer to Guantánamo for trial, by order of President George W. Bush.

Abu Zubaydah, whose cruel treatment is detailed in the recently released declassified portion of the so-called Senate Torture Report, has never been charged.

▪  In a separate Nashiri case development, the judge hearing the case canceled next week’s hearings meant to map out pretrial evidentiary issues.

On March 27, case prosecutors appealed a judicial ruling rejecting a theory that Yemeni port workers also had standing at the Guantánamo war court as potential victims of the attack. At issue is what evidence prosecutors could present at Nashiri’s trial from foreign nationals near the Cole bombing to demonstrate a charge sheet theory of “wanton disregard for human life.”

The judge has scheduled the next Nashiri hearings at Guantánamo for May 4-15. It is unlikely that the issue will be decided by then. A Pentagon review panel will need to take briefs and hear arguments in that appeal. But first a federal appeals court has to decide a claim by Nashiri’s lawyers that the Pentagon panel is not statutorily constituted.

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Verbatim | Polish statement

The Polish government has sought assurances from the United States authorities that the applicant al Nashiri will not be sentenced to death and will not be executed. These steps were taken in response to a decision, dated 12 March 2015, by the Committee of Ministers of the Council of Europe, which supervises the execution of the Court’s judgments by member states. The Committee has requested the Polish government to seek as soon as possible diplomatic assurances from the U.S. administration that the applicant will not be subjected to the death penalty. ▪ Ministry of Foreign Affairs, April 1, 2015