A Pentagon legal official has approved charges that carry a possible death penalty for a Guantanamo prisoner accused of planning the attack on the USS Cole, the U.S. Defense Department said Wednesday.
Abd al-Nashiri would face charges that include murder in violation of the law of war for allegedly planning the attack that killed 17 sailors and wounded 40 while the Navy destroyer was stopping in Yemen on Oct. 12, 2000. The U.S. must now bring him before a judge within 30 days for his arraignment before a military judge at the U.S. base in Cuba.
This would be the first death-penalty war crimes trial for a prisoner at Guantanamo under President Barack Obama, who had pledged to close the detention center but ran into Congressional opposition to moving detainees to the U.S.
A Saudi of Yemeni descent, al-Nashiri was captured in Dubai in November 2002 and flown to a CIA prison in Afghanistan known as Salt Pit before being moved to another clandestine CIA facility in Thailand, where he was waterboarded and threatened with a power drill during interrogation, according to a report by the CIA's inspector general that was released in 2009.
His Pentagon-appointed lawyer, Navy Lt. Cmdr. Stephen Reyes, said the treatment amounted to torture and he had asked the Convening Authority to drop the charges or at least remove the potential death penalty.
Reyes also argues that the military commissions, despite being revamped in 2009, are still flawed, allowing defendants to be convicted with hearsay evidence or without the government being compelled to put all its witnesses on the stand.
"All this can be done and the client can get the death sentence," he said. "How can we have any confidence in whatever is the outcome of this trial?"
Denny LeBoeuf, an expert on death penalty law at the American Civil Liberties Union, condemned the decision.
"All of our concerns about the inherent unfairness of the military commissions are compounded in cases like this one, in which the result could be death," she said. "The Constitution and international law rightly require enhanced protections in death penalty cases, but the military commissions have shown themselves to be unwilling or unable to provide those necessary measures."
There have been six prisoners convicted of war crimes, four through plea bargains, at Guantanamo. None have received the death penalty. The U.S. is preparing charges against five defendants accused of orchestrating the Sept. 11 attacks, including self-proclaimed mastermind Khalid Sheikh Mohammed in what is also likely to be a capital case.
There are 171 prisoners at Guantanamo, and the government has said about 35 could eventually face war crimes charges.