By Peter Finn
Washington Post Staff Writer
Thursday, August 26, 2010; 8:47 PM
The Obama administration has shelved the planned prosecution of Abd al-Rahim al-Nashiri, the alleged coordinator of the Oct. 2000 suicide attack on the USS Cole in Yemen, according to a court filing.
The decision at least temporarily scuttles what was supposed to be the signature trial of a major al-Qaeda figure under a reformed system of military commissions. And it comes practically on the eve of the 10th anniversary of the attack, which killed 17 sailors and wounded dozens when a boat packed with explosives ripped a hole in the side of the warship in the port of Aden.
In a filing this week in the U.S. Court of Appeals for the District of Columbia, the Justice Department said that "no charges are either pending or contemplated with respect to al-Nashiri in the near future."
The statement, tucked into a motion to dismiss a petition by Nashiri's attorneys, suggests that the prospect of further military trials for detainees held at Guantanamo Bay, Cuba, has all but ground to a halt, much as the administration's plan to try the accused plotters of the Sept. 11, 2001, attacks in federal court has stalled.
Only two cases are moving forward at Guantanamo Bay, and both were sworn and referred for trial by the time Obama took office. In January 2009, Defense Secretary Robert M. Gates directed the Convening Authority for Military Commissions to stop referring cases for trial, an order that 20 months later has not been rescinded.
Military officials said a team of prosecutors in the Nashiri case has been ready go to trial for some time. And several months ago, military officials seemed confident that Nashiri would be arraigned this summer.
"It's politics at this point," said one military official who spoke on the condition of anonymity to discuss policy. He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantanamo Bay.
A White House official disputed that.
"We are confident that the reformed military commissions are a lawful, fair and effective prosecutorial forum and that the Department of Defense will handle the referrals in an appropriate manner consistent with the interests of justice," said the official, who also spoke on the condition of anonymity.
The Defense Department issued a statement Thursday saying the case is not stalled. "Prosecutors in the Office of Military Commissions are actively investigating the case against Mr. al-Nashiri and are developing charges against him," the statement said.
With the 10th anniversary of the Cole bombing approaching on Oct. 12, relatives of those killed in the attack expressed deep frustration with the delay.
"After 10 years, it seems like nobody really cares," said Gloria Clodfelter, whose 21-year-old son, Kenneth, was killed on the Cole.
Military prosecutors allege that Nashiri, a Saudi national, was a senior al-Qaeda operative and close associate of Osama bin Laden, who orchestrated the suicide attack on the Cole. Nashiri was scheduled to be arraigned in February 2009 but the new administration instructed military prosecutors to suspend legal proceedings at Guantanamo Bay. The charges against Nashiri were withdrawn.
In November 2009, however, Attorney General Eric H. Holder Jr. appeared to revive the case when he announced that the military would prosecute Nashiri, one of at least 36 detainees who could be tired in federal court or a military commission.
"With regard to the Cole bombing, that was an attack on a United States warship, and that, I think, is appropriately placed into the military commission setting," Holder said.
But critics of military commissions say the Nashiri case exemplifies the system's flaws, particularly the ability to introduce certain evidence such as hearsay statements that probably would not be admitted in federal court. The prosecution is expected to rely heavily on statements made to the FBI by two Yemenis who allegedly implicated Nashiri. Neither witness is expected at trial, but the FBI agents who interviewed them will testify, said Nashiri's military attorney, Navy Lt. Cmdr. Stephen C. Reyes. "Unlike in federal court, you don't have the right to confront the witnesses against you," he said.
Such indirect testimony could be critical to a conviction because any incriminating statements Nashiri might have made are probably inadmissible under the 2009 Military Commissions Act, which bars the use of evidence obtained through torture or cruel, inhuman or degrading treatment.
Nashiri, 45, was captured in the United Arab Emirates in November 2002, and immediately placed in CIA custody. He was among three detainees held by the agency who was water-boarded, and a report by the CIA's inspector general found that Nashiri was threatened with a gun and a power drill.
"I am very confident, based upon what I have heard, that there is more than sufficient evidence linking him to the attack on Cole directly, and that they do not need any of the information that may have come from black site interviews and interrogations," said Kirk S. Lippold, who was commander of the Cole when it was attacked.
Reyes said Nashiri's treatment at the hands of the CIA will be part of any proceeding and will be relevant to any sentence he receives if he is found guilty. The government is expected to seek the death penalty.
"I'm not admitting to guilty, but his treatment is absolutely relevant in a death case and can be used in mitigation to lessen the sentence," Reyes said.
Nashiri, who has been held at Camp 7 at Guantanamo Bay since September 2006, has never appeared in court. But according to the transcript of a 2007 Combatant Status Review Tribunal, he said that he had nothing to do with the Cole bombing and that his connections to those involved in the explosion, including the purchase of the suicide boat, were unwitting. "We were planning to be involved in a fishing project," he said.
The Inspector General's report on the CIA interrogation tactics used on Abd al-Rahim al-Nashiri.
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