With a key appellate issue resolved, the USS Cole trial judge has scheduled the first pretrial hearing in the case in 18 months.
Air Force Col. Vance Spath, the judge, ordered prosecutors and defense attorneys to meet him at Guantánamo for a Sept. 7-9 hearing on yet to be identified issues. A number of factors could still derail the date.
But the U.S. Court of Military Commission Review dispensed with a key obstacle in a June 9 decision that sided with the prosecution and reinstated charges accusing Saudi Abd al Rahim al Nashiri of orchestrating al-Qaida’s 2002 bombing of the French oil tanker MV Limburg. A Bulgarian crew member was killed in the explosion aboard on Oct. 6, 2002.
Nashiri, 51, is also charged as the alleged architect of the al-Qaida suicide bombing of the U.S. Navy destroyer Cole off Yemen two years earlier. Seventeen U.S. sailors perished in the attack.
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The capital case stalled in March 2015 after Spath dismissed the Limburg charges, and chief prosecutor Army Brig. Gen. Mark Martins chose to appeal that decision. Spath’s order to resume the hearings at Guantánamo was dated June 23 but released to the public Thursday.
Separately, Spath noted in the order that Nashiri’s attorneys intend to challenge some aspect of the war court prosecution based on a June 20 U.S. Supreme Court ruling, RJ Nabisco Inc. v European Union Community. The justices decided, 4-3, that a prosecutor must prove domestic injury to convict on an extraterritorial crime.
Defense lawyers have repeatedly argued that the U.S. war court cannot hear the Limburg charges because the United States had no real stake in the attack in Yemeni waters on a French-owned ship carrying Iranian oil on a Malaysian contract in which a Bulgarian national died. Judge Spath dismissed the charge after prosecutors declined to demonstrate, before trial, the Limburg attack’s jurisdiction.
“We conclude that the military judge improperly required appellant to offer pretrial evidence to establish that the offenses were committed in the context of and associated with hostilities and thus erred when he dismissed the affected charges,” the Pentagon appeal panel wrote June 9. Since then, in an unexplained development, the UCMCR separately revealed that a Navy judge who voted to reinstate the charges, Capt. Donald King, had recused himself from further USS Cole appeals.
The last time Spath presided at a Cole case hearing at Guantánamo — March 3, 2015 — Nashiri’s lawyer asked the court for a complete copy of the Top Secret “Senate Torture Report” on the CIA program that waterboarded Nashiri during his 2002-06 black site detention. Spath subsequently rejected that request, saying case prosecutors decide what the lawyers for the accused terrorist are entitled to see.
Spath also ordered the U.S. government to get Nashiri an MRI. A military panel diagnosed him as suffering depression and Post-Traumatic Stress Disorder. Defense attorneys say any evidence of brain damage could complicate whether Nashiri could be executed, if he’s convicted.
Guantánamo has no MRI on base but the U.S. Southern Command has looked into renting one. Southcom spokeswoman Col. Lisa Garcia said recently that the Office of Military Commissions, which runs the Guantánamo war court from Washington, D.C., was handling “the contract for a rental MRI.”