Suspect in Cole attack could face the death penalty

The long-delayed legal case against Abd al Rahim al Nashiri moved one step closer to trial on Wednesday when officials announced that the alleged mastermind of the Cole bombing could face the death penalty when a military jury considers his fate.

The charges against Nashiri - including murder, attempted murder, terrorism, bodily injury and hijacking a vessel - cover 10 pages. The attack on the Norfolk-based destroyer killed 17 sailors and wounded 37 others.

"I think it's great," said retired Command Master Chief James Parlier, the highest ranking enlisted sailor aboard the Cole when it was attacked in Aden, Yemen, in October 2000. "I think the guy needs to be held accountable to the fullest extent for what I believe to be a war crime."

Nashiri, a former Saudi millionaire, was taken into custody by the CIA in 2002 and held at various "black sites" around the globe. He was moved to the U.S. Navy prison at Guantanamo Bay, Cuba, in 2006.

This isn't the first time Nashiri has been charged. He was formally accused in June 2008, but those charges were withdrawn in 2009, shortly after President Barack Obama ordered a temporary halt to all prosecutions at Guantanamo.

The case is complicated by the government's acknowledgment that Nashiri was tortured while in custody before his transfer to Guantanamo and by the alleged destruction of his interrogation tapes. Although Nashiri allegedly confessed to many of the crimes he's accused of, he insists he made false confessions to stop the torture.

Wednesday's announcement came after the official overseeing military commission cases, retired Vice Adm. Bruce MacDonald, approved prosecutors' recommendation for a capital trial. Nashiri will be arraigned within the next 30 days, said Lt. Col. Todd Breasseale, a Pentagon spokesman.

He will be tried by military commission, which does not have the same legal safeguards inherent in federal trials or courts-martial. A military judge will oversee the proceeding. Twelve jurors - expected to be military officers from any branch, with top secret security clearances - will decide the case.

Parlier and the families of many Cole victims say they support trying Nashiri in Cuba. The most important thing to them is having their day in court.

"I just really want to see it get to that point where we can be looking that guy in the face and knowing justice has been served," said Parlier, who now lives in North Carolina. "Something needs to be done.... We're 11 years out, and no resolution. We've got to have something, for the folks who lost kids and for those of us that lost shipmates."

A source familiar with the commissions process said it will likely be at least another year before the trial starts - although in the meantime, lawyers will be busy filing motions and arguing in court about what evidence can be introduced.

There are various legal issues at play in addition to the torture question, including the timing of the Cole attack in 2000, before the beginning of the so-called war on terror. The military commissions act specifies that offenses committed before Sept. 11, 2001, can be tried, but Nashiri's defense lawyers have already challenged that, arguing that the nation was not at war when the attack occurred.

Nashiri has two lawyers representing him - Lt. Cmdr. Stephen Reyes and Richard Kammen, a civilian defense attorney from Indianapolis.

Reyes has said that he expects the government to try to present hearsay in the trial: statements from two Yemeni men who implicated Nashiri and were themselves indicted in a previous case, but who escaped from Yemeni prison. Federal courts would not allow hearsay evidence, but a military judge in a commission might.

Reyes' biggest concern is that a military commission doesn't have the safeguards needed for death penalty cases.

"My client could be convicted and put to death without ever having a chance to see his accusers take the stand," he said.

For Parlier and other Cole victims and families, the bigger issue is getting to see Nashiri in court. According to Breasseale, a lottery will determine which five victims or family members will be invited to attend the trial.

They will be some of the first members of the public to lay eyes on Nashiri since the CIA detained him in 2002.

Kate Wiltrout, (757) 446-2629, kate.wiltrout@pilotonline.com