The Obama administration initiated its first Guantanamo Bay military tribunal Wednesday, charging a Saudi with masterminding the bombing of the U.S. destroyer Cole that killed 17 sailors and wounded 40 in October 2000.
A conviction is uncertain, however, because U.S. interrogators repeatedly subjected Abd al Rahim al Nashiri to techniques widely considered to be torture. Information obtained through such methods cannot be used as evidence against him.
According to the CIA, the onetime top Al Qaeda lieutenant was held for four years at an undisclosed "black site" where interrogators waterboarded him, placed a handgun beside his head and fired up an electric drill. They also threatened to harm his family.
A partially unsealed CIA report says Nashiri was one of three captives given "enhanced interrogation techniques" as U.S. officials sought to learn of upcoming terrorist attacks. Nashiri allegedly was supervising several Al Qaeda plots when he was captured in 2002 in the United Arab Emirates, and had ascended in Osama bin Laden's terrorist network.
But the Military Commissions Act of 2009, enacted under President Obama, prohibits using statements obtained through duress.
"No evidence obtained by torture or cruel, inhuman or degrading treatment shall be admissible in a military commission," said Army Lt. Col. Tanya J. Bradsher, a Pentagon spokeswoman, citing the act.
Also complicating the government's case is that two participants in the Cole bombing were convicted in Yemen and are imprisoned there. They are not available to testify at Nashiri's trial, which will be held at the U.S. naval base at Guantanamo Bay, Cuba.
But a third witness in custody in the U.S. has described Nashiri's role in those bombings. And another witness has identified Nashiri as "an important person in Al Qaeda" and said Nashiri "helped arrange the USS Cole bombing."
Prosecutors are asking for the death penalty, but the official who oversees the military commissions program has to approve the request.
Navy Lt. Cmdr. Stephen C. Reyes, Nashiri's defense attorney, said other suspects in pre-Sept. 11, 2001, attacks were sent to U.S. federal courts, including two indicted in New York for the Cole bombing.
"But here," Reyes said, "the only difference is that Nashiri was tortured. And the government wants to make the evidence of this disappear by sentencing him to death in a makeshift system."
Nashiri allegedly was "in charge of the planning and preparation" for the Cole attack and is charged with committing terrorism, attacking civilians, intentionally causing bodily injury and committing murder in violation of the law of war.
In addition to the deadly Cole bombing, Nashiri was charged with planning the Oct. 6, 2002, attack on a French civilian oil tanker, the Limburg, and with planning an attack on the destroyer The Sullivans as it refueled in the port of Aden on Jan. 3, 2000. The Sullivans attack did not take place.
Military prosecutors had filed charges against him earlier. But Obama, who campaigned on a pledge to close the Guantanamo prison, halted the military tribunal process after taking office in January 2009. A month later, the charges were dropped.
Last month, however, Obama announced that the administration would resume military trials for terrorism suspects detained at Guantanamo. Congress had thwarted his efforts to close Guantanamo and move the trials to civilian courts, which are more transparent and open to the public.
Nashiri acknowledged at a 2007 Guantanamo hearing that he helped provide the small boat that carried explosives to the Cole. But he said he gave it to a businessman for a fishing trip and did not know it would be used by suicide bombers. "I had nothing to do with these people," he said.
He also spoke of the pain interrogators inflicted on him. "From the time I was arrested, they have been torturing me. One time they tortured me one way and another time they tortured me in a different way…. They do so many things."
He specifically described waterboarding: "They used to drown me in water." To get them to stop, Nashiri said, he would "invent" stories, even saying Bin Laden had a nuclear bomb.
The CIA report says Nashiri's "enhanced interrogation" began upon his arrival at the so-called black site. "Nashiri provided lead information on other terrorists during his first day," the report says.
By the 12th day, he had been waterboarded twice. He also was forced to kneel for long periods and lean back, pulled around his cell with a belt wrapped around his arms, handcuffed and left naked and hooded. If he did not cooperate, interrogators warned, "we could get your mother in here…. We can bring your family in here."