US to finally try USS Cole mastermind in military tribunal

posted at 9:30 am on April 21, 2011 by Ed Morrissey

The first test of the military commissions system under Barack Obama won’t be Khalid Sheikh Mohammed, the mastermind of the 2001 9/11 attacks.  Instead, the Obama administration has charged Abd al-Rahim al-Nashiri, the mastermind of al-Qaeda’s previous attack on the USS Cole in Aden, Yemen, that left 17 Americans dead, and they are seeking the death penalty.  But don’t expect this to be an easy case:

The case is the first capital military tribunal to be announced under President Obama, whose administration recently lifted a ban on new trials at Guantanamo Bay. Although the administration said this month that it would try Khalid Sheik Mohammed and four co-defendants in a military commission, prosecutors have not sworn charges or confirmed that they will seek the death penalty.

Nashiri, 46, a Saudi citizen of Yemeni descent, has been in U.S. custody since 2002 and at Guantanamo Bay since 2006. After his capture in the United Arab Emirates, he was held overseas at secret CIA prisons, where he was waterboarded and subject to mock executions in which agency operatives separately held a power drill and a gun to his head, according to a report by the CIA inspector general and other government documents.

Nashiri said at a 2007 military hearing that he confessed to involvement in the Cole bombing only because he was tortured.

There are a number of issues in the Cole case that make it unique, not the least of which is the question of whether this case is legitimate for a military tribunal at all.  The Clinton administration treated the attack on a US Navy vessel as a crime, not an act of war, and the Bush administration didn’t change that determination until after 9/11.  The FBI originally started the investigation, but the CIA took custody of Nashiri and conducted the interrogations.  The commission might reject jurisdiction on that basis, but it’s not likely.

The question of torture and enhanced interrogation techniques is trickier.  Contrary to what most people think, the military system rejects confessions resulting from abuse just as the civilian system does.  The defense in this case will do its best to disqualify evidence from the interrogations, although the prosecution will likely have established plenty of corroboration by this point in time.  The difference will be that the judges will decide just how strongly to weigh those factors in allowing or disallowing evidence at the trial rather than a blanket rejection one would get in civilian court.

The Post’s Peter Finn notes that even if the confessions are admitted, Nashiri’s treatment could be a “mitigating factor” at sentencing, but I doubt Nashiri’s banking on anything other than outright acquittal or a death sentence.  An al-Qaeda leader with the blood of 17 American sailors directly on his hands isn’t going to get a lot of mercy in the sentencing phase of a military tribunal, nor should he.

This case should have been concluded years ago.  It’s a failure of both the Bush and Obama administrations, as well as Congress and the courts, that it has taken 11 years for the families of the Cole’s dead warriors to get a measure of justice.  Let there be no more delays.


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I suspect we Americans are too civilized to chop off his head?

jake-the-goose on April 21, 2011 at 9:32 AM

It was all Bush’s fault.

percysunshine on April 21, 2011 at 9:33 AM

I’m almost certainly in the minority here in opposing the death penalty in all cases anyway, but don’t these heroes in their own minds WANT the death penalty?

What’s less appealing to their sick minds, a life spent in the belly of the beast they despise, or martyrdom among the fringe they existed in?

Red Cloud on April 21, 2011 at 9:34 AM

Limerick, Canopfor, Hawkdriver, Bradky — if you’re out there, anyone know what the military code calls for as penalty for killing sailors in an undeclared act of war?

I assume it is a firing squad, or it that too … messy?

Jaibones on April 21, 2011 at 9:34 AM

PBHO will pardon him even after a conviction.

Bishop on April 21, 2011 at 9:35 AM

Is there a reason why we are bothering with a trial? Why not indefinite detention in gitmo as an enemy combatant?

One thing Obama has been doing is blowing these creeps up with the drones. Other than not keeping any of them alive for intel, I don’t have a problem with this approach.

karenhasfreedom on April 21, 2011 at 9:36 AM

It was all Bush’s fault.

percysunshine on April 21, 2011 at 9:33 AM

Clinton was still president

darwin-t on April 21, 2011 at 9:37 AM

We should treat Al-nashiri like Obama treated them pirates. Tow them on a boat and let three SEAL bust some holes in them from about 50 meters away….

practice

ted c on April 21, 2011 at 9:39 AM

er..SEALs

ted c on April 21, 2011 at 9:40 AM

I hope they load a dinghy full of c-4,
and put him in it,and then…….

canopfor on April 21, 2011 at 9:40 AM

Yardarm, pigskin noose, short drop, Hell.

profitsbeard on April 21, 2011 at 9:43 AM

USS Cole (DDG-67)
Tragedy & Honor
================

The United States Navy Has Brought Home Its Own
************************************************

http://www.cargolaw.com/2000nightmare_cole.html

canopfor on April 21, 2011 at 9:46 AM

Yardarm, pigskin noose, short drop, Hell.

profitsbeard on April 21, 2011 at 9:43 AM

profitsbeard:And,Keelhauled too!:)

canopfor on April 21, 2011 at 9:48 AM

Took them long enough.

Blake on April 21, 2011 at 9:48 AM

Just do it

cmsinaz on April 21, 2011 at 9:49 AM

Welcome to the USS COLE (DDG 67)
*********************************

http://www.cole.navy.mil/

++++++++++

Memorial
**********

The USS COLE Memorial dedication ceremony was conducted at Naval Station Norfolk Virginia on 12 Oct 01,
(More……)

http://www.cole.navy.mil/

For the benefit of those who have not had the pleasure of serving in the world’s greatest Navy, I have edited some articles for better understanding. I’ve also edited content which may reveal the extent of the damage to Cole, or the effectiveness of our Damage Control or Security. My edits are in red.
*******************

http://www.timjacobs.com/america_uss_cole.htm

canopfor on April 21, 2011 at 9:56 AM

USS COLE (DDG-67)
*****************

CLASS – BURKE Flight I As Built.
———————————

Displacement 8373 Tons (Full), Dimensions, 504′ 7″ (oa) x 66′ 11″ x 20′ (Max)
Armament 1 x 5″/54 RF, 2 Phalanx 20mm Guns, 90 VLS Cells,
8 Harpoon Missiles, 6 x 12.75″ TT.
Machinery, 100,000 SHP; 4 GE LM-2500 Gas Turbines, 2 screws
Speed, 30+ Knots, Range 4400 NM@ 20 Knots, Crew 370.
Operational and Building Data
Laid down by Litton – Ingalls, Pascagoula Miss. on February 28 1994.
Launched February 10 1995 and commissioned June 8 1996.
Heavily damaged by terrorists while in Aden October 12 2000. Returned to duty in Norfolk April 19 2002.
(More….Images)

http://www.navsource.org/archives/05/01067.htm

canopfor on April 21, 2011 at 9:57 AM

Clinton was still president

darwin-t on April 21, 2011 at 9:37 AM

details… who needs ‘em
/

Shivendragon on April 21, 2011 at 10:10 AM

I hope they load a dinghy full of c-4,
and put him in it.

canopfor on April 21, 2011 at 9:40 AM

Nope. Handcuff him to a small anchor and drop him in deep water. Really, really deep water.

Jaibones on April 21, 2011 at 10:23 AM

Nope. Handcuff him to a small anchor and drop him in deep water. Really, really deep water.

Jaibones on April 21, 2011 at 10:23 AM

No. Shallow enough that he can see the surface while he swallows that last gulp.

CurtZHP on April 21, 2011 at 10:26 AM

3-Step get-out-of-Gitmo-free plan.

Arrest, prison-rape and death-sentence Western nurses.

Use nurses to “negotiate” release.

Enjoy the windfall.

It’s that simple.

Terp Mole on April 21, 2011 at 10:37 AM

canopfor on April 21, 2011 at 9:40 AM
=========================

Nope. Handcuff him to a small anchor and drop him in deep water. Really, really deep water.

Jaibones on April 21, 2011 at 10:23 AM

Jaibones:Challenger Deep,in the Mariannas Trench!!

I’m not sure about the UnDeclared war thingy!!:)

canopfor on April 21, 2011 at 10:43 AM

Aden is not an enclosed port: it has open access to the high seas. Any US vessel within the reaches of the high seas is sovereign US territory and we only recognize the High Seas as ending after an enclosing headlands or going past the mouth of a river. Thus the USS Cole was in the reaches of the High Seas.

Those acts of war perpetrated by no Nation on the High Seas is Piracy.

Try Nashiri as a Pirate and al Qaeda as his organization.

That will then brand each and every member of al Qaeda as a Pirate to be dealt with summarily on the battlefield and to have quick trials thereafter as only the proof of being a member is necessary to get the sentence.

This was an act of Private War by an organization against the US: its military, territory and citizens.

We are too effete to try him as a Pirate.

We can no longer distinguish between civilized warfare waged by Nation States and warfare waged from the savagery of Nature by those seeking to bend mankind to their will. We shall pay dearly in re-learning this lesson, or we will not survive. Being civilized does not mean being ‘nice’, but in doing the right and necessary things to support civilization. When we flinch from that we flinch from being civilized and are soon not civilized at all.

ajacksonian on April 21, 2011 at 10:44 AM

ajacksonian on April 21, 2011 at 10:44 AM

But little Bammie fancies himself a pirate! Yo Bo Ho

slickwillie2001 on April 21, 2011 at 11:41 AM

I have to agree that Bush shares some blame in the delay. This happened late in Clinton’s term (as I remember) so this trial should have happened under Bush.

Now we have a president and “justice” department who are enemies of America. I wonder if there would be a better chance of conviction if they went for something less than the death penalty. Anyway, I won’t be surprised if there is a not guilty verdict with Soetoro in charge.

deewhybee on April 21, 2011 at 12:08 PM

I’m for keelhauling KSM…

Khun Joe on April 21, 2011 at 10:35 PM

…using the USS COLE as the keelhauling platform…

Khun Joe on April 21, 2011 at 10:40 PM