By Donna Miles
American Forces Press Service
June 30, 2008 - A Saudi Arabian national being held at Guantanamo Bay, Cuba, has been charged with planning and preparing for the attack on the USS Cole that killed 17 U.S. sailors and wounded 47 others, the Defense Department announced today. Abd al-Rahim al-Nashiri was charged today in connection with the Oct. 12, 2000, attack on the vessel as it awaited refueling in the Port of Aden in Yemen, Air Force Brig. Gen. Thomas Hartmann, legal advisor to the convening authority in the Office of Military Commissions, told Pentagon reporters today.
The chief prosecutor has recommended that the case be tried as a death-penalty case.
Susan J. Crawford, the convening authority, will review the case and determine which, if any, of the charges should be referred for trial by a military commission, Hartmann said. If she refers the case for trial, Crawford must also decide if she will refer it as a capital case.
The Nashiri swearing brings to 20 the number of detainees at Guantanamo Bay involved in the military commissions process, Hartmann said.
He noted that the military commissions process provides the accused several protections, including representation by a military counsel and a civilian counsel of his own choosing at no expense to the government. The protections, guaranteed by the Military Commissions Act, ensure that Nashiri "receives a fair trial consistent with American standards of justice," Hartmann said.
Nashiri was charged today with conspiracy to violate the law of war, murder in violation of the law of war, treachery or perfidy, terrorism, destruction of property in violation of the law of war, intentionally causing serious bodily injury, providing material support to terrorism and attempted murder.
Charges brought against Nashiri today claim he rented apartments and facilities near the Port of Aden to prepare for an attack, bought the boat and explosives used in the attack and arranged for two co-conspirators to launch the attack.
During the attack, two men dressed as civilians are alleged to have piloted what looked like a small, civilian garbage barge up to the ship. The two men allegedly made friendly gestures to crewmembers aboard the ship before detonating explosives hidden in their boat that blasted a 40-foot hole in the side of Cole.
Nashiri also was charged with participating in the unsuccessful attack on the USS The Sullivans as it refueled in the Port of Aden on Jan. 3, 2000, and for helping attack the French supertanker SS Limburg in the Gulf of Aden on Oct. 6, 2002. That attack left one crewmember dead and spilled about 90,000 gallons of oil into the gulf.
Nashiri was arrested in October 2002 in the United Arab Emirates and was under CIA custody before being transferred to Guantanamo Bay in 2006.
Hartmann said the charges issued today result from an extensive investigation that brought together the intelligence and law enforcement communities. "We'd rather do it right. We'd rather do it thoroughly. We'd rather do it fairly than quickly," he said.
If the Nashiri case goes to trial, Hartmann said the defense counsel will have the opportunity to argue points before the military judge, including allegations that Nashiri was subjected to the "waterboarding" interrogation technique by the CIA. "The judge, just as in any matter of law, will make a final decision as to the validity of any piece of evidence," he said.
Pentagon spokesman Bryan Whitman emphasized the Defense Department's commitment to "ensuring that both the process and the military commissions proceedings themselves are as transparent as possible, within the bounds of security and safety."
The United States has used military commissions for war crime trials since the Revolutionary War, he noted.