Prosecution, Defense Discuss Arraignment in USS Cole Case

NAVAL STATION GUANTANAMO BAY, Cuba, Nov. 9, 2011 — They wait­ed 11 years, but today a plane­load of Amer­i­cans who trav­eled here ear­li­er this week saw the arraign­ment of Abd al Rahim Hus­sein Muhammed al Nashiri on charges of plan­ning and prepar­ing a com­plex series of al-Qai­da attacks known as the “boat oper­a­tion.”

“We’ve tak­en a big step today … there will be jus­tice,” said San­dra Flan­ni­gan, of Clarks­burg, W. Va., the moth­er of a sailor killed in the Octo­ber 2000 attack on the USS Cole.

Pros­e­cu­tors say the ter­ror­ist oper­a­tion includ­ed an attempt­ed attack on the USS The Sul­li­vans in Jan­u­ary 2000; an attack on the USS Cole in Octo­ber 2000, dur­ing which 17 U.S. sailors were killed and 37 more wound­ed; and an attack on the MV Lim­burg, a French civil­ian oil tanker, in Octo­ber 2002, dur­ing which one crew mem­ber was killed and about 90,000 bar­rels of oil spilled into the Gulf of Aden. If con­vict­ed, Nashiri could be sen­tenced to death.

Nashiri entered no plea to charges of “per­fidy,” or treach­ery; mur­der in vio­la­tion of the law of war; attempt­ed mur­der in vio­la­tion of the law of war; ter­ror­ism; con­spir­a­cy; inten­tion­al­ly caus­ing seri­ous bod­i­ly injury; attack­ing civil­ians; attack­ing civil­ian objects; and haz­ard­ing a ves­sel.

Mem­bers of the defense and pros­e­cu­tion teams, along with a sur­vivor from the USS Cole bomb­ing and fam­i­ly mem­bers of sailors killed in the attack, spoke to reporters here after the arraign­ment.

Army Brig. Gen. Mark Mar­tins, chief pros­e­cu­tor for the Defense Department’s Office of Mil­i­tary Com­mis­sions, said he is con­fi­dent the mem­bers of the com­mis­sion that con­vened today “will answer the call with fair­ness and jus­tice.”

The FBI and Naval Crim­i­nal Inves­tiga­tive Ser­vice col­lab­o­rat­ed to gath­er the evi­dence on which the charges are based, Mar­tins said, and the pros­e­cu­tion team brings togeth­er attor­neys from DOD and the Jus­tice Depart­ment.

“We must use all of the instru­ments of our nation­al pow­er and author­i­ty to counter transna­tion­al ter­ror net­works, and this inves­ti­ga­tion and pros­e­cu­tion is reflec­tive of that prag­mat­ic approach,” the chief pros­e­cu­tor said.

One motion dis­cussed dur­ing today’s arraign­ment was a defense request that the U.S. gov­ern­ment acknowl­edge it would seek Nashiri’s con­tin­ued deten­tion even if he is acquit­ted. The pros­e­cu­tion team respond­ed that the issue is pre­ma­ture, but Mar­tins not­ed dur­ing the press con­fer­ence that the ques­tion involves two par­al­lel legal ques­tions.

“You’ve got, under the law of armed con­flict, … that humane, legit­i­mate, effec­tive deten­tion — tak­ing pris­on­ers — is some­thing that is an instru­ment of war,” he said.

Fed­er­al courts reg­u­lar­ly review the sta­tus of detainees held as pris­on­ers of war, he not­ed.

“Then you’ve got crim­i­nal pro­ceed­ings — tri­als — where soci­ety is deter­min­ing if some­one is guilty,” he added. “[They are] two very dif­fer­ent, two very mean­ing­ful pro­ce­dures and bod­ies of law. They have inde­pen­dent jobs to do.”

Richard Kam­men, lead defense coun­sel, said today’s arraign­ment “went, from our per­spec­tive, about as smooth­ly as it could have gone.”

While Kam­men said dur­ing the arraign­ment that the defense team would need at least a year to pre­pare for tri­al, he acknowl­edged dur­ing the press con­fer­ence that it’s “very, very, very unlike­ly” that a year will be enough.

Kam­men said he under­stands Cole sur­vivors and vic­tims’ fam­i­lies need to obtain what­ev­er clo­sure they can from legal pro­ceed­ings, but a hur­ried or unfair tri­al would be a false res­o­lu­tion.

“There is no easy way to bal­ance people’s needs to have the tri­al [speed­i­ly], ver­sus our need to have the tri­al con­duct­ed fair­ly,” he said.

U.S. Depart­ment of Defense
Office of the Assis­tant Sec­re­tary of Defense (Pub­lic Affairs)