Prosecution, Defense Discuss Arraignment in USS Cole Case
By Karen Parrish
American Forces Press Service
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.