Charges Are Filed In Cole Bombing
Alleged Planner Could Face Trial

By Josh White
Washington Post Staff Writer
Tuesday, July 1, 2008

U.S. military prosecutors yesterday charged a detainee at the Guantanamo Bay prison with murder and other crimes for allegedly planning the October 2000 attack on the USS Cole warship, a bombing that killed 17 U.S. service members and injured nearly 50 others.

Pentagon officials announced eight charges against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent. He has been in U.S. custody since late 2002, and is one of three detainees the government has acknowledged subjecting to an interrogation technique that simulates drowning.

Nashiri's "waterboarding" at the hands of CIA interrogators -- a technique that human rights groups around the world have condemned as torture -- figures to be a central element of his case. Defense attorneys immediately vowed to challenge any evidence obtained by coercion and criticized the Pentagon for moving forward with the military trial despite officials' awareness of how Nashiri was treated.

Col. Steven David, chief defense counsel in the Office of Military Commissions, said he hopes the government will not charge anyone "remotely connected with waterboarding" and will repudiate the tactic and any evidence obtained by it. Nancy Hollander, a civilian attorney in Albuquerque who will represent Nashiri, said yesterday that his treatment violates U.S. and international law. She called the military commissions "a farce."

Nashiri contended at a military hearing last year that he confessed to masterminding the Cole attack only because he had been tortured, according to a transcript of that hearing.

Pentagon officials did not say why Nashiri is being charged now. He is the sixth "high value" detainee to face formal charges; five alleged terrorists were accused this year of participating in the Sept. 11, 2001, conspiracy. He is also the first alleged Cole plotter the U.S. government has charged. Others have been tried in Yemen.

Prosecutors have recommended that Nashiri face the death penalty if convicted. But the Pentagon official in charge of military commissions still must review the evidence and decide which charges to send to trial, if any, and whether Nashiri will face execution.

The case would be the first to proceed against a suspect in the Cole bombing in the nearly eight years since a small boat laden with TNT and other explosives pulled up alongside the destroyer in the Gulf of Aden and detonated, blowing a huge hole in it as it refueled in the Yemeni port. Nashiri allegedly conceived the Oct. 12, 2000, plot with al-Qaeda leader Osama bin Laden and supervised its execution.

Nashiri and his associates allegedly took part in a similar, failed attempt to bomb the USS The Sullivans earlier in 2000 and has been implicated in another attack on the French supertanker SS Limburg in October 2002. That bombing killed one crew member and spilled 90,000 barrels of oil into the Gulf.

The Cole case has frustrated U.S. officials because suspects in Yemen have either broken out of prison or have been released. Guantanamo Bay detainee Tawfiq bin Attash -- also known as Khallad -- has been tied to the Cole attack but is being charged as part of the Sept. 11 conspiracy. Nashiri's case will move forward with just one defendant.

"I think it's long past due," said John Clodfelter of Mechanicsville, Va., whose son Kenneth, 21, a hull technician on the Cole, was killed in the blast. "Our country has been extremely slow. I thought it was possible it might never happen."

Air Force Brig. Gen. Thomas W. Hartmann, the top legal adviser for military commissions, has been accused of favoring prosecutions that appeal to the public. Eugene Fidell, president of the National Institute of Military Justice, said the Cole case qualifies because it was a landmark event that has not been resolved.

"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.

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