Nashiri, 49, is accused of orchestrating al-Qaida’s Oct. 12, 2000, suicide attack on the USS Cole warship off Yemen that killed 17 American sailors. His charge sheet also alleged that, after the 9/11 attacks, Nashiri also set up al-Qaida’s Oct. 6, 2002, bombing of the French supertanker MV Limburg that killed Bulgarian crew member Atanas Atanasov and wounded 12 other workers on the ship.
Monday, Air Force Col. Vance Spath, on the case for a month, did not rule on the overarching challenge by defense attorneys that an oil ship in the region was a legitimate strategic target or at very least was not part of the Guantánamo war court jurisdiction, according to those who read it.
He threw out the charges on the limited finding that the prosecution failed to produce any evidence about the bombing, according to the two lawyers who read it, a decision the prosecution could revisit by calling witnesses in a motion for reconsideration.
Kammen called the decision particularly important at the court that was set up in response to the Sept. 11, 2001, attacks because of “serious and continuing questions” on whether the Guantánamo war court has jurisdiction over alleged crimes that took place before 9/11.
Last week, Spath, presiding for the first time in the USS Cole bombing case, overruled the chief of the war court judiciary and said he would decide all outstanding issues, even those his predecessor Army Col. James L. Pohl had heard. Monday’s was his first known ruling in that series.
In a comment on the dismissal, Kammen, a seasoned civilian death-penalty defender, also said that the decision demonstrated the need to try the case in federal court.
“None of these issues would arise had the case been prosecuted in an Article III court,” he said.
The Miami Herald was seeking a response to the ruling from the prosecution, which has been steadfast in its refusal to comment on judges’ orders under seal. Unless a military commissions judge pre-clears court filings, it could take 15 business days for it to be revealed to the public.
In February, Nashiri’s defense attorneys sought dismissal of the Limburg charges, a lesser-known portion of the Nashiri case, by arguing that the U.S. had no real stake in the attack in Yemeni waters on a French-owned ship carrying Iranian oil on a Malaysian contract, in which a Bulgarian national died.
Navy Cmdr. Brian Mizer argued that it was “telling” that in 2002 the U.S. dispatched Naval Criminal Investigative Service agents to the Limburg “to conduct, not a full criminal investigation, but merely one with respect to causation. And they were pointedly told by the French investigators on the scene that the Limburg was sovereign French soil and that they had no jurisdiction there.”
Army Brig. Gen. Mark Martins, the prosecutor, argued the war court has jurisdiction in the case because France was an ally in the war on terror at the time and al-Qaida’s seaborne attacks had an impact on the global oil market.
The Limburg axis may be important to the Nashiri case because the prosecution sealed a plea agreement in February with another captive, Ahmad al Darbi, to testify at any commissions’ hearings in the next 3 1/2 in exchange for release to his native Saudi Arabia. Darbi, 39, pleaded guilty to terrorism charges that said he colluded with Nashiri to buy provisions and train operatives, some of which ended up being used in the Limburg attack.
9/11 CASE HEARINGS
Meanwhile on Monday, questions of conflict of interest and an alleged 9/11 plotter’s competency to stand trial derailed a hearing on whether to continue prosecuting all five alleged 9/11 conspirators, or to split off Ramzi bin al Shibh’s case for a separate trial.
The judge, Army Col. James L. Pohl, last month severed the Yemeni’s case, citing delays caused by an ongoing conflict question that has arisen from a murky FBI investigation of bin al Shibh’s defense team and a prosecutor’s bid to find bin al Shibh competent to stand trial.
Case prosecutor Clayton Trivett asked the judge Monday to reverse himself and hold a five-man trial, citing additional trauma two trials might inflict on the families of the 2,976 victims of the Sept. 11, 2001, terrorist attacks.
To which Jim Harrington, bin al Shibh’s death-penalty defender, replied that his side had yet to arrive at a position, noting that by war court rules they have until Wednesday afternoon to reply.
Pohl recessed the session after 74 minutes until Wednesday afternoon.
Carol Rosenberg tweets from Guantánamo at @carolrosenberg on Twitter.
About Abd al Rahim al Nashiri.
Born: Jan. 5, 1965 Mecca, Saudi Arabia
Captured: October 2002 United Arab Emirates
Profession: Told a 2007 military review that he was a merchant in Mecca who by 19 was a millionaire. CIA profile released by the White House in 2006 as al Qaeda Operations Chief in Arabian Peninsula at time of his capture
Paramilitary background: CIA profile said he fought in Chechnya and Tajikistan and trained at the Khaldan camp in Afghanistan in 1992.
ABOUT THE TRIAL
Arraigned: Nov. 10, 2011.
Judge: Army Col. James L. Pohl handled arraignment, pretrial motions through July 2014, then detailed Air Force Col. Vance Spath to preside.
Prosecution: Army Brig. Gen. Mark Martins, Pentagon civilian Justin Sher, Justice Department civilian Mr. Mikeal Clayton, Navy Lt. Bryan Davis, Army Col. Robert Muscati, Navy Lt. Paul Morris.
Defense: Rick Kammen, learned counsel; Air Force Maj. Alison Danels; Army Maj. Thomas Hurley, Air Force Cpt. Daphne Jackson.
Proposed trial date: Feb. 9, 2015.
Nashiri attorney Richard Kammen on Monday:
Today the Hon. Vance Spath dismissed the charges alleging that Abd al Rahim al-Nashiri was responsible for the attack on the French Vessel M/V Limburg. Judge Spath held that the prosecution had failed to carry its burden of proof that the Commission had jurisdiction over the Limburg attack. This is a very significant decision as the attack on the Limburg was the only post 9/11 act attributed to al-Nashiri. There are serious and continuing questions as to the Commission’s jurisdiction over pre 9/11 actions, especially those having nothing to do with the 9/11 attack.
This represents a serious rejection of the Prosecution’s claim that it can invoke theories, provide no evidence and expect the Commission will blindly ratify those theories.
None of these issues would arise had the case been prosecuted in an Article III court. In our view this is additional evidence that the correct venue for the prosecution of Mr. al-Nashiri is in a Federal Court rather than in a military commission.