A gunner’s mate aboard the USS Cole when suicide bombers attacked it off Yemen in 2000 testified on Wednesday that there was chaos and panic aboard the foundering ship as sailors dealt with the al-Qaida bombing.
In fact, retired Petty Officer Aaron Morgan said, he first suspected a refueling accident when while below deck he felt a thud and the 8,300-ton warship began listing.
He suited up for an emergency and went on deck to find a scene of “pretty much chaos. You had people just panicking, some didn’t know what to do. Everyone was in fear.” The ship’s ostensibly “non-skid deck” was slippery. “There was so many smells at once. Burned fuel and smoke ... in the air.”
Federal agents who arrived days later to collect evidence testified Wednesday that the smell would come to include rotting meat from the ship’s destroyed dining room freezer as well as decomposing flesh of bombing victims.
Seventeen sailors were killed in the Oct. 12, 2000 attack by suicide bombers who pulled alongside the ship in a garbage skiff, blew themselves up and put a huge hole into the portion of the ship near the sailors’ dining room, the galley. Saudi captive Abd al Rahim al Nashiri who was brought here in 2006 from four years in CIA custody, is accused of orchestrating that bombing. He could be executed if convicted.
Morgan recalled learning, as the ship pulled into Yemen’s port of Aden for a resupply mission, that there would be no shore leave. So, he said he was “kind of enthused about seeing the country” from the deck, looking down on a Yemeni skiff that pulled alongside Cole to collect its garbage.
He went below at lunch time, but to a different part of the ship, for a meeting of a social welfare committee. That’s when he felt and heard the explosion. At one point, he recalled coaxing a wounded shipmate to a rope to pull her from the water. The sailor had jumped into the sea through a hole created by the blast from her workspace, a laboratory.
Morgan testified Wednesday to vouch for a piece of evidence — black debris he collected on deck and delivered to an FBI agent whose name he did not know. But he began by telling his story in the hearing that resumed from March, when FBI witnesses described collecting debris aboard the damaged ship as evidence.
This week had one key difference: Three civilian lawyers who took part in that March hearing were absent, having resigned the case in a standoff with the judge over who has the authority to excuse an attorney of record. Notably absent was Rick Kammen, the defense team’s long-serving death-penalty defender, who declared he could not go on because of an ethics problem involving something classified that threatened attorney-client confidentiality.
So Wednesday, while Nashiri was voluntarily absent, too, at a medical appointment, Navy Lt. Alaric Piette, functioned as the lone defense attorney on the case — and refused to participate in the hearing. The 2012 Georgetown Law graduate said in the absence of a lawyer with death-penalty experience, he was required to take no position.
The judge, Air Force Col. Vance Spath, responded that in fact he was taking a position that suggested a defense strategy of non-participation.
Spath told Piette, who has handled 15 court martial cases to a verdict, that he was clearly qualified to question witnesses about evidence, calling it “blocking and tackling type of things we do in any trial, capital and non-capital.”
Prosecutors want to get the evidence approved before a military jury is chosen and the trial begins. Before the civilian defense lawyers quit, they opposed doing the admission out of sight of a jury.
Spath set aside Monday for testimony from Hofstra Law School ethicist Ellen Yaroshefsky, who advised Nashiri’s defenders to quit over the classified attorney-client confidentiality issue, which she did not know in detail.
Spath has also ordered video-link testimony Monday from war court headquarters in Alexandria, Virginia, from the director of the American Bar Association’s Death Penalty Defense Project Emily Olson-Gault. In an affidavit for the court, she said ABA standards require a learned counsel at every phase of a capital case, including the pretrial and trial.
Spath in court Wednesday made clear that the war court is not bound by ABA standards and said he has chosen the parts of the death-penalty case that can be litigated at that point in the absence of a death-penalty defender.