Charges Are Filed In Cole Bombing

"The very thing that made the Cole an attractive target makes Nashiri's case an attractive one," Fidell said. "They might as well bite the bullet on waterboarding evidence and get it over with. They may be quite anxious for these cases to move forward and be beyond recall for the next administration."

Captured in November 2002, Nashiri was held in secret custody by the CIA before his transfer to Guantanamo Bay in September 2006. It is unclear whether he and his lawyers will be able to question the CIA interrogators who conducted his harsh questioning and whether information elicited by that treatment will be admissible in the untested military commissions.

Khalid Sheik Mohammed, the self-described mastermind of the Sept. 11 attacks, also was waterboarded and faces trial before a military commission. The CIA also waterboarded Zayn Abidin Muhammed Hussein, also known as Abu Zubaida, a top operational facilitator for al-Qaeda; he has not been charged.

Hartmann told reporters at the Pentagon yesterday that it will be up to military judges presiding over the cases to decide whether evidence derived by coercion should go before a jury panel.

"The evidentiary issues will be resolved in the courtroom," he said. "The judge will make a final decision as to the validity of any piece of evidence."

Susan J. Crawford, the Pentagon's top official for military commissions, will review the evidence against Nashiri before recommending which charges to send to trial. If she refers the charges, Nashiri will appear at a commission proceeding at Guantanamo Bay within 30 days. That would be his first appearance in public since his capture.

Staff researcher Julie Tate contributed to this report.