By Craig Whitlock
Washington Post Foreign Service
Sunday, May 4, 2008
ADEN, Yemen -- Almost eight years after al-Qaeda nearly sank the USS Cole with an explosives-stuffed motorboat, killing 17 sailors, all the defendants convicted in the attack have escaped from prison or been freed by Yemeni officials.
Jamal al-Badawi, a Yemeni who helped organize the plot to bomb the Cole as it refueled in this Yemeni port on Oct. 12, 2000, has broken out of prison twice. He was recaptured both times, but then secretly released by the government last fall. Yemeni authorities jailed him again after receiving complaints from Washington. But U.S. officials have so little faith that he's still in his cell that they have demanded the right to perform random inspections.
Two suspects, described as the key organizers, were captured outside Yemen and are being held at Guantanamo Bay, Cuba, beyond the jurisdiction of U.S. courts. Many details of their alleged involvement remain classified. It is unclear when -- or if -- they will be tried by the military.
The collapse of the Cole investigation offers a revealing case study of the U.S. government's failure to bring al-Qaeda operatives and their leaders to justice for some of the most devastating attacks on American targets over the past decade.
A week after the Cole bombing, President Bill Clinton vowed to hunt down the plotters and promised, "Justice will prevail." In March 2002, President Bush said his administration was cooperating with Yemen to prevent it from becoming "a haven for terrorists." He added: "Every terrorist must be made to live as an international fugitive with no place to settle or organize, no place to hide, no governments to hide behind and not even a safe place to sleep."
Since then, Yemen has refused to extradite Badawi and an accomplice to the United States, where they have been indicted on murder charges. Other Cole conspirators have been freed after short prison terms. At least two went on to commit suicide attacks in Iraq.
"After we worked day and night to bring justice to the victims and prove that these Qaeda operatives were responsible, we're back to square one," said Ali Soufan, a former FBI agent and a lead investigator into the bombing. "Do they have laws over there or not? It's really frustrating what's happening."
To this day, al-Qaeda trumpets the attack on the Cole as one of its greatest military victories. It remains an improbable story: how two suicide bombers smiled and waved to unsuspecting U.S. sailors in Aden's harbor as they pulled their tiny fishing boat alongside the $1 billion destroyer and blew a gaping hole in its side.
Despite the initial promises of accountability, only limited public inquiries took place in Washington, unlike the extensive investigations that followed the Sept. 11, 2001, attacks. Basic questions remain about which individuals and countries played a role in the assault on the Cole.
Some officials acknowledged that pursuing the Cole investigation became less of a political priority with the passage of time. A new administration took power three months after the bombing. Then came Sept. 11.
"During the first part of the Bush administration, no one was willing to take ownership of this," said Roger W. Cressey, a former counterterrorism official in the Clinton and Bush administrations who helped oversee the White House's response to the Cole attack. "It didn't happen on their watch. It was the forgotten attack."A Clash of Cultures and Wills
The day after the attack, a planeload of armed FBI agents arrived in Aden. But they quickly ran into resistance from Yemeni officials, who didn't like the idea of foreigners operating on their soil and telling them what to do.
The Cole bombing represented an enormous political embarrassment for Yemen, which had lobbied the U.S. Navy to use the port of Aden as a refueling stop. As the poorest country in the Arab world, Yemen was also unprepared for some of the FBI's demands.
"This is a country that didn't even have fingerprint powder, and now they're dealing with the most sophisticated law enforcement agency in the world," said Barbara K. Bodine, the U.S. ambassador to Yemen at the time. "DNA is a complete fantasy to them."
Bodine said the FBI was slow to trust Yemeni authorities, and kept the U.S. Embassy in the dark as well, hampering the probe. She described the Yemeni government as generally cooperative, but said some officials dug in their heels and "certainly didn't like us."
The FBI was "dealing with a bureaucracy and a culture they didn't understand," she said. "Yemen operates on a different timeline than we do. We had one group working on a New York minute, and another on a 4,000-year-old history."
The FBI and some White House officials, in turn, suspected Bodine was too sympathetic toward the Yemenis. The FBI special agent in charge, John O'Neill, was forced to return to New York after butting heads too many times with the ambassador.
Michael A. Sheehan, then the State Department's counterterrorism coordinator, said both sides were to blame.
"Basically, I was in the middle of this thing," he recalled. "I felt both sides were over the top -- the FBI in demanding complete autonomy in a foreign country and State in being too protective of the host country. And eventually it just turned into a clash of wills."
"Sometimes, when you deal with a host country, you can push too hard and it backfires and you get less cooperation," Sheehan added. "We needed to find a middle ground, and we had difficulty getting there."Two in U.S. Custody
Amid the friction, U.S. and Yemeni investigators soon identified the ringleader of the attack as Abd al-Rahim al-Nashiri, a Saudi national of Yemeni descent who served as al-Qaeda's operations chief in the Arabian Peninsula.
At the time, Yemeni authorities insisted that Nashiri had fled the country before the Cole bombing. But a senior Yemeni official said that was not the case and that Yemeni investigators had located Nashiri in Taizz, a city about 90 miles northwest of Aden, soon after the attack. The official said Nashiri spent several months in Taizz, where he received high-level protection from the government. "We knew where he was, but we could not arrest him," said the official, who spoke on condition of anonymity because he feared retaliation.
Nashiri eventually left Yemen to prepare other attacks on U.S. targets in the Persian Gulf, U.S. officials said. He was captured in the United Arab Emirates in November 2002 and handed over to the CIA. He was detained in the CIA's secret network of overseas prisons until he was transferred to Guantanamo Bay in September 2006.
In a hearing at Guantanamo last year, Nashiri said he confessed to masterminding the Cole attack only because he had been tortured.
"From the time I was arrested five years ago, they have been torturing me," he said, according to a transcript. "I just said those things to make the people happy."
Another al-Qaeda leader, Tawfiq bin Attash, who also played an organizing role in the Sept. 11 hijackings, was arrested in Karachi, Pakistan, in May 2003 and confessed last year to overseeing the Cole plot. In a separate appearance before a Guantanamo tribunal, he said he had helped buy the explosives and the motorboat. He also said he had recruited operatives for the plot but was in Afghanistan at the time of the attack.
Bin Attash and Nashiri were both named unindicted co-conspirators in the Justice Department's investigation into the Cole attack. A decision was made not to indict them because pending criminal charges could have forced the CIA or the Pentagon to give up custody of the men, U.S. officials said in interviews.A Special Deal
After a long trial, a Yemeni court condemned Badawi, the organizer, to death in 2004, although his sentence was reduced on appeal to 15 years in prison. Four other conspirators were given prison sentences ranging from five to 10 years.
The convicts were sent to a maximum security prison in Sanaa, the capital. They didn't stay there long.
On Feb. 3, 2006, prison officials announced that 23 al-Qaeda members, including most of the Cole defendants, had vanished. They escaped by digging a tunnel that snaked 300 feet to a nearby mosque.
It was Badawi's second successful jailbreak. Three years earlier, he had wormed out of another maximum security prison in Aden; Yemeni officials said he had picked a hole through the bathroom wall.
Badawi surrendered about 20 months after his second escape. But Yemeni authorities cut him a deal. They said they would let him remain free if he would help them search for the other al-Qaeda fugitives.
The arrangement was kept secret until Yemeni newspapers reported shortly afterward that Badawi had been spotted at his home in Aden.
U.S. officials said they were stunned. After his first escape, Badawi had been indicted in U.S. District Court in New York for the Cole killings, and the United States had posted a $5 million bounty for his capture. But U.S. officials couldn't get their hands on him. "This was someone who was implicated in the Cole bombing," State Department spokesman Sean McCormack said at the time. "He needs to be in jail."
U.S. officials withheld $20 million in aid to Yemen and canceled a visit by Secretary of State Condoleezza Rice. Yemeni officials said they quickly put Badawi back behind bars. But reports persist that his incarceration remains a day-to-day affair.
In December, a Yemeni newspaper reported that Badawi had again been seen roaming free in public. One source close to the Cole investigation said there is evidence that Badawi is allowed to come and go, despite the periodic requests by U.S. officials to inspect his prison cell.
Diplomatic relations soured further in February, when the U.S. Embassy in Sanaa learned that Fahd al-Quso, another Cole conspirator, had been secretly freed nine months before. Like Badawi, Quso faces U.S. charges in the Cole case and has a $5 million bounty on his head.'Something . . . Doesn't Smell Right'
U.S. officials have renewed their demands that Badawi and Quso be extradited so they can stand trial in New York. FBI Director Robert S. Mueller III flew to Sanaa last month to deliver the message personally to Yemen's president, Ali Abdullah Saleh. Yemen has refused, citing a constitutional ban on extraditing its citizens.
"Unfortunately, we now have a stalemate," said Foreign Minister Abubaker al-Qirbi.
Qirbi said the dispute was a politically sensitive one, with many Yemenis opposed to helping the Bush administration. He defended the tactic of allowing the Cole plotters to go free in exchange for help in tracking down other terrorist suspects. "This is a normal practice," he said. "Everybody makes deals with anybody who cooperates, not just in Yemen, but in the United States."
Yemen's interior minister, Rashad al-Alimi, said the deal-cutting was necessary because al-Qaeda has rebuilt its networks in Yemen and is targeting the government.
"Our battle with al-Qaeda is a long one," he said. "It isn't our battle only. Our tragedy -- and what makes things worse -- is that al-Qaeda is united. And our coalition is divided, even though we have a common enemy."
Some Yemenis have questioned whether their government has other motives. One senior Yemeni official, speaking on the condition of anonymity, said Badawi and other al-Qaeda members have a long relationship with Yemen's intelligence agencies and were recruited in the past to target political opponents.
Khaled al-Anesi, an attorney for some of the Cole defendants, said Yemen had rushed to convict them. But he said he is still mystified by the government's subsequent handling of the case.
"There's something that doesn't smell right," he said. "It was all very strange. After these people were convicted in unfair trials, all of a sudden it was announced that they had escaped. And then the government announced they had surrendered, but we still don't know how they escaped or if they had help."
Hamoud al-Hitar, a former Supreme Court justice, said the trials were fair. But he suggested that the government had turned lenient because the Cole defendants had participated in a "dialogue and reconciliation program" designed to de-radicalize al-Qaeda members.
Hitar, who oversees the program, claimed that 98 percent of graduates have remained nonviolent. Asked about two Cole suspects who escaped and went to Iraq to become suicide bombers, Hitar shrugged. "Iraq was not part of the dialogue program," he said.A Lawsuit and a Rebuff
Relatives of the 17 sailors who died on the Cole said they are furious at Yemen for releasing the plotters. But they expressed equal disdain for their own government.
The families have fought for years to obtain information from the State, Defense and Justice departments about their inquiries into the attack. "We never really got anyplace," said Andrew C. Hall, an attorney for the relatives.
With few other options, family members filed a civil lawsuit in 2004 against the government of Sudan, alleging that it had provided support for al-Qaeda over the years and therefore was also liable for the Cole attack. Last July, a federal judge in Norfolk, Va., ruled in their favor and ordered Sudan to pay $7.96 million in damages. (Yemen could not be sued because, unlike Sudan, it is not listed as a state sponsor of terrorism by the State Department.)
John P. Clodtfelter Jr. of Mechanicsville, Va., whose son Kenneth died on the Cole, said the families have tried to meet with Bush to press for more action.
"I was just flat told that he wouldn't meet with us," Clodtfelter said. "Before him, President Clinton promised we'd go out and get these people, and of course we never did. I'm sorry, but it's just like the lives of American servicemen aren't that important."
Staff researcher Robert E. Thomason in Washington contributed to this report.