Appeals court says Guantánamo tribunal in USS Cole attack can decide when war began

This Oct. 15, 2000 file photo shows investigators in a speed boat examining the hull of the USS Cole at the Yemeni port of Aden, after a powerful explosion ripped a hole in the U.S Navy destroyer.
This Oct. 15, 2000 file photo shows investigators in a speed boat examining the hull of the USS Cole at the Yemeni port of Aden, after a powerful explosion ripped a hole in the U.S Navy destroyer. ASSOCIATED PRESS

A federal appeals court on Tuesday refused to halt the military commission trial of a Saudi national charged with orchestrating the 2000 attack on the USS Cole that killed 17 U.S. sailors.

The 2-1 ruling said that Abd al Rahim al Nashiri can’t challenge the commission’s authority to hear his case until after the proceeding has run its course.

Lawyers for Nashiri, 51, argued that military commissions only have authority over offenses that take place during an armed conflict. They argue his actions were not war crimes because the U.S. was not officially at war with al-Qaida at the time of the attack.

Writing for the majority, Judge Thomas Griffith rejected arguments that the appeals court should consider the challenge now because Nashiri was subject to torture while in U.S. custody. Nashiri was held for four years in secret CIA prisons after his capture in 2002.

Authorities have disclosed that he was subjected to a mock execution and waterboarding. Nashiri says he was also hung by his hands, deprived of sleep and regularly beaten. Nashiri has been held at Guantánamo Bay since 2006.

“Nashiri’s allegations regarding his treatment during detention, while deeply troubling, do not provide any reason to fear that he will not be given a fair hearing in the military commission,” Griffith said.

Hearings resume in the case at Guantánamo’s Camp Justice next week.

In his dissent, Judge David Tatel said evidence that Nashiri was tortured while in U.S. custody warrants considering his claims now. If allegations about his treatment have merit, “the alleged burdens he faces are not only unusual, but extraordinary,” Tatel said.

Nashiri argued that he was subject to years of brutal interrogation tactics by the same executive branch that now seeks to try him. He said he suffers from psychological disorders that will be aggravated by trial before a military commission.

Nashiri faces a possible death sentence if convicted of planning and preparing for the attack, which took place off the coast of Yemen. The government says the Cole was bombed by two al-Qaida operatives who set off explosives as they pulled their fishing boat up to the destroyer.


About Abd al Rahim al Nashiri

Born: Jan. 5, 1965 Mecca, Saudi Arabia

Captured: October 2002 United Arab Emirates

Profession: Told a 2007 military review that he was a merchant in Mecca who by 19 was a millionaire. CIA profile released by the White House in 2006 as al Qaeda Operations Chief in Arabian Peninsula at time of his capture

Paramilitary background: CIA profile said he fought in Chechnya and Tajikistan and trained at the Khaldan camp in Afghanistan in 1992.

Audio of U.S. military’s 2007 status hearing for Abd al Rahim al Nashiri, with white noise replacing description of torture here.

About the USS Cole

The 8,300-ton warship is based, or homeported, as the Navy calls it, in Norfolk, Va. It was commissioned, a formal ceremony, at Port Everglades in 1996.

The ship is named for Marine Sgt. Darrell S. Cole, a bugler turned machine-gunner, who was killed in the Battle of Iwo Jima in World War II and posthumously awarded the Medal of Honor.

It was on a refueling stop in October 2000 when two al Qaida suicide bombers drove a bomb-laden ship into the side, killing themselves and ultimately claiming the lives of 17 Americans.

They were:

▪ Hull Maintenance Technician Second Class Kenneth Eugene Clodfelter, 21, of Mechanicsville, Virginia.

▪ Electronics Technician Chief Petty Officer Richard Costelow, 35, of Morrisville, Pennsylvania.

▪ Mess Management Specialist Seaman Lakeina Monique Francis, 19, of Woodleaf, North Carolina.

▪ Information Systems Technician Timothy Lee Gauna, 21, of Rice, Texas.

▪ Signalman Seaman Cherone Louis Gunn, 22, of Rex, Georgia.

▪ Seaman James Rodrick McDaniels, 19, of Norfolk, Virginia.

▪ Engineman Second Class Marc Ian Nieto, 24, of Fond du Lac, Wisconsin.

▪ Electronics Warfare Technician Second Class Ronald Scott Owens, 24, of Vero Beach, Florida.

▪ Seaman Lakiba Nicole Palmer, 22, of San Diego, California.

▪ Engineman Fireman Joshua Langdon Parlett, 19, of Churchville, Maryland.

▪ Fireman Patrick Howard Roy, 19, of Keedysville, Maryland.

▪ Electronics Warfare Technician First Class Kevin Shawn Rux, 30, of Portland, North Dakota.

▪ Mess Management Specialist Third Class Ronchester Manangan Santiago, 22, Kingsville, Texas.

▪ Operations Specialist Second Class Timothy Lamont Saunders, 32, of Ringgold, Virginia.

▪ Fireman Gary Graham Swenchonis Jr., 26, Rockport, Texas.

▪ Ensign Andrew Triplett, 31, of Macon, Mississippi.

▪ Seaman Craig Bryan Wibberley, 19, of Williamsport, Maryland.