Military to Try USS Cole Suspect
Commission Proceedings May Run Against Obama's Wishes

By Peter Finn
Washington Post Staff Writer
Saturday, December 20, 2008

The Defense Department announced yesterday that it would proceed with the capital trial of the alleged planner of the 2000 attack on the USS Cole, signaling its intent to push forward with prosecutions even with the future of the military justice system for detainees in doubt.

Defense Secretary Robert M. Gates has ordered up plans to close the military prison at Guantanamo Bay, Cuba, in case President-elect Barack Obama moves in that direction. Obama has said he will close the facility, but he has not said whether he will scrap military commissions. However, members of Obama's transition team appear skeptical of the military commissions system and more disposed to prosecutions in federal court or through courts-martial, people who have spoken with the team members said on the condition of anonymity because of the sensitivity of those talks.

Susan J. Crawford, the Pentagon's top official for military commissions, yesterday referred to a military commission for charges that were filed last June against Abd al Rahim al-Nashiri, a Saudi citizen of Yemeni descent. Nashiri is accused of murder, terrorism and war crimes for helping to organize the attack on the U.S. warship, an al-Qaeda strike in the Yemeni port of Aden that killed 17 sailors and wounded 47 others.

Nashiri is one of three al-Qaeda suspects that the government has admitted were submitted to waterboarding, or simulated drowning, while in the custody of the CIA. The technique has been condemned by human rights groups as torture. The Justice Department is investigating the CIA's destruction of videotapes that recorded parts of Nashiri's interrogation.

Nashiri was captured in 2002 and transferred to Guantanamo Bay in 2006 after nearly four years in CIA custody abroad. Six other men who were in CIA custody, including Khalid Sheik Mohammed, the self-proclaimed mastermind of the Sept. 11, 2001, terrorist attacks, also face capital charges at the facility in Cuba.

The CIA's interrogation of Nashiri and the ability of military prosecutors to use evidence stemming from it are likely to be contentious elements in the case. A military judge at Guantanamo Bay has ruled in another case that evidence obtained by coercion cannot be admitted into evidence, but the issue is likely to be fought anew in Nashiri's case -- should it go forward.

Attorneys for Nashiri questioned Crawford's decision to refer charges on the eve of a new administration.

"It's an eleventh-hour decision that directly contradicts the next administration's desire to put an end to these unjust proceedings," said Navy Lt. Cmdr. Stephen C. Reyes, Nashiri's military defense attorney. "With less than one month before the new president takes office, the timing of this decision is suspect."

Pentagon officials said the Office of Military Commissions would continue to work as normal until ordered not to. The office referred charges in two other cases this week, and yesterday Crawford dismissed without prejudice charges against another detainee, Abdul Ghani.

"We serve the sitting president and will continue to do so until the president-elect is inaugurated, at which time we will implement whatever policies are enacted by the next president," said Navy Cmdr. J.D. Gordon, a Pentagon spokesman.

Staff researcher Julie Tate contributed to this report.

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