Pentagon officials have been repeatedly blocked in their efforts to revive charges against the alleged architect of the bombing of the USS Cole due to political wrangling within the Obama administration over how and where to try accused terrorists, administration officials tell NBC News.
Military prosecutors had originally charged Abd al-Rahim al-Nashiri — known to law enforcement investigators as al-Qaida’s “maritime commander” — with engineering the Oct. 12, 2000 bombing of the Cole, a U.S. naval destroyer, off the coast of Yemen, killing 17 U.S. sailors and injuring 39.
But, in a move that rankled many Cole survivors at the time, the charges against al-Nashiri were withdrawn by President Barack Obama shortly after he took office last year. His administration wanted to review how to handle the prosecution of high-value Guantanamo detainees.
As family members and crew assembled in Norfolk, Va., on Tuesday to commemorate the 10th anniversary of the attack, the president’s decision to withdraw the charges — and his administration's failure so far to revive the case — has re-emerged as an angry source of contention.
When the Justice Department recently filed a motion saying there were no immediate plans to bring new charges against al-Nashiri, “We were stunned,” Kirk Lippold, commander of Cole at the time of the attack, told NBC. “The crew was very upset. … It’s almost like the victims themselves are being disregarded for the sake of larger political purposes.”
White House and Justice Department officials insisted that the administration still intends to prosecute al-Nashiri, who was arrested in 2002 in the United Arab Emirates, before newly revamped military commissions in the near future and strongly denied domestic politics were a factor. But one Defense Department official directly involved with the handling of the case (who asked not to be identified talking about sensitive internal matters) told NBC that military prosecutors have been “ready to go, go, go” on al-Nashiri for months, but have been prevented from doing so by their superiors.
“We don’t have a date yet” for reviving the charges, the official said. When he and other military officials have asked about the delay, they’ve been told, “The administration wants to wait until after the election to go forward,” the official added.
A senior administration official who has participated in high-level deliberations about al-Nashiri and other Guantanamo cases confirmed there was a high-level roadblock, but did not acknowledge any explicit references to next month’s elections as a factor.
The Defense Department “has been pushing to jump-start the case” against al-Nashiri for some time, but there’s been “paralysis” over the issue, the official said, indicating that major issues about where to try accused terrorists — before revamped military commissions, as many in the Pentagon prefer, or in civilian courts — remain unresolved.
“There’s been no clear interagency decision to move forward” on al-Nashiri, added this official, who also asked to remain anonymous because of the sensitivity of the issue.
Some in the administration — especially State Department legal adviser Harold Koh — have argued against proceeding with military commission cases against al-Nashiri and others right now, the official said. The stated concern: Trying more accused terrorists before military commissions at Guantanamo would hurt the U.S. image abroad and undermine the administration’s stated commitment to the rule of the law when the president has yet to resolve the even more rancorous and high-profile debate over where to try Khalid Sheikh Mohammed and the other alleged 9/11 conspirators. Despite assertions last spring by Attorney General Eric Holder that a final decision on the 9/11 case was only “weeks” away, that too now appears to have been put off until after next month’s elections.
Koh did not respond to a request for comment and White House spokesman Michael Hammer did not respond directly to questions about why al-Nashiri’s case had yet to move forward. But in an e-mail to NBC, Hammer noted that the case against the accused Cole bomber was among five that Holder, who presided over the administration’s interagency review, had referred to the Defense Department for prosecution before revised military commissions last November.
“We are confident that the reformed military commissions are a lawful, fair and effective prosecutorial forum and that the Department of Defense will handle the referrals in an appropriate manner consistent with the interests of justice,” Hammer said.
The case against al-Nashiri is among the most sensitive and difficult of all those reviewed by the Obama administration. Captured by the CIA in 2002, al-Nashiri was dispatched to a “black site” prison and subjected to “enhanced interrogation techniques” — including waterboarding, agency officials have publicly confirmed. A CIA inspector general’s report released last year also found that agency interrogators used other unauthorized techniques against him, including attempting to frighten him by racking a semi-automatic handgun close to his face and revving a power drill near him while he stood naked and hooded.
The treatment of al-Nashiri — and the agency’s later destruction of tapes of his waterboarding — has made trying him for his role in the Cole bombing especially difficult. Still, Pentagon officials have expressed confidence that they can win a conviction, based on evidence unrelated to any statements elicited during his CIA interrogations. Among that evidence are statements made by two confessed Cole plotters — Jamal al-Badawi and Fahed al-Quso — who implicated him as having engineered the attack (allegedly arranging for the purchase of explosives and the small boat used to attack the ship) during lawful interrogations conducted by the FBI in Yemen.
But Stephen Reyes, al-Nashiri’s military lawyer, insists that securing a conviction of his client will not be so easy. Neither al-Badawi nor al-Quso is currently in U.S. custody. Both are FBI fugitives in Yemen, meaning statements they made to the FBI could only be admitted as hearsay — one reason that the administration is eager to try al-Nashiri under the more relaxed rules of military commissions rather than in federal court, said Reyes.
Whatever the forum, Reyes said he plans to make the waterboarding and other rough tactics used against al-Nashiri a major issue at any trial, especially since the government is almost certain to seek the death penalty. “Torture is going to be a consistent theme” of his defense, Reyes said.