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.