Nine years after his capture and a decade after the United States first authorized military tribunals for terrorist suspects, the alleged mastermind of the deadly bombing of the USS Cole will face a judge in the Guantanamo war crimes tribunal.
Abd al Rahim al Nashiri, a 46-year-old Saudi of Yemeni descent, is to be arraigned Wednesday on charges that include murder, attempted murder, conspiracy and terrorism.
He is the first high-ranking al-Qaeda figure to face charges at Guantanamo under the Obama administration and could face the death penalty if convicted. But attorneys expect it will be a year or two before the case goes to trial.
Nashiri is accused of conspiring with Osama bin Laden and other al-Qaeda leaders to bomb US targets, including embassies in Africa and ships in the Gulf of Aden.
In the attack on the Cole in October 2000, two suicide bombers in civilian garb waved at the crew and then drove their boat full of explosives into the side of the warship as it refueled in the Port of Aden. The blast tore a 30ft hole in the ship, killing 17 US sailors and wounding three dozen more.
Nashiri, described by US investigators as al-Qaeda's one-time head of operations in the Arabian Peninsula, is accused of planning and preparing the attack, choosing the suicide bombers and helping buy the boat and explosives.
He is accused of plotting similar boat-bomb attacks on another US warship and a French oil tanker off Yemen. The January 2000 attack on the other warship, the USS The Sullivans, failed when the would-be suicide bombers ran their boat aground. The October 2002 attack on the tanker, the MV Limburg, killed a crewman and dumped 90,000 barrels of oil into the Gulf of Aden.
Nashiri is also accused of providing a fake passport to a suspect in the 1998 US Embassy bombings in Kenya and Tanzania.
An al-Qaeda operative quoted in the 9-11 Commission report described Nashiri as widely known to be one of al-Qaeda's most committed terrorists, "extreme in ferocity in waging jihad."
Nashiri claimed to have become a millionaire as a merchant trader. He lived for a while with a Russian woman in Dubai, according to a former FBI agent who investigated the Cole bombing.
Nashiri was captured in Dubai in 2002 and held in secret CIA prisons before being sent to Guantanamo in 2006.
Article continues on next page…
The CIA acknowledged destroying videotapes of Nashiri's interrogations, during which he was stripped naked and hooded while a gun was loaded and a power drill revved next to his head. He also was subjected to "waterboarding," which creates the sensation of drowning.
Nashiri has said he gave false confessions that made his interrogators stop the mistreatment.
"One time they tortured me one way and another time they tortured me in a different way," he told an administrative panel at Guantanamo in 2007, according to US military transcripts. He denied being part of al-Qaeda.
But Guantanamo prosecutors said in court documents that they have more than 60,000 pages of classified and unclassified investigative material to support the charges against him.
A former Guantanamo chief prosecutor said the evidence against Nashiri is overwhelming enough to convict him in a tribunal or a regular federal court without his potentially tainted confessions.
"I think there's ample evidence of his guilt. You can disregard everything he's ever said since he was in US custody and still have enough evidence to convict," said retired Air Force Colonel Moe Davis, who resigned as Guantanamo's chief prosecutor in 2007 because of what he called political meddling and pressure to use torture-tainted evidence.
Defense attorney Richard Kammen said Nashiri's treatment in US hands would be a major issue in the trial and likely the reason he was being tried at Guantanamo rather than in a federal court.
"That's just going to infect everything in this case," Kammen said. "What this whole process is about is to keep the public from knowing the full extent of the things which he and a lot of other people were subjected to."
Almost 780 men from around the world have been held at the detention center on the Guantanamo Bay US naval base in Cuba since it opened in January 2002. Of the 171 who remain, the Obama administration deemed 44 eligible for prosecution, but Nashiri is the only one currently facing charges.
November 13 marks the 10th anniversary of President George W. Bush's order creating the Guantanamo tribunals for terrorism suspects.
The US Supreme Court struck down that version in 2006, ruling that the president had no authority to create a new court system. It said that power rested with Congress, which created a new version of the tribunals in 2006 and then revised them at the behest of the Obama administration in 2009 to grant the defendants more rights.
Hearings have taken place sporadically amid the legal challenges and in its entire existence, the Guantanamo court has completed only six cases. Four defendants pleaded guilty in exchange for leniency and one was convicted in a trial in which no defense was presented.
Subscribe to Arabian Business' newsletter to receive the latest breaking news and business stories in Dubai,the UAE and the GCC straight to your inbox.