Lawyers for Abd al-Rahim al-Nashiri, who is charged with being a key planner of the 2000 suicide bombing of the USS Cole, want the military jury to hear about a unique aspect of his case: Even if the jury were to acquit him, the U.S. military could still continue to hold him indefinitely.
Al-Nashiri has been in U.S. custody since 2002 and was formally charged in 2011. He has been held all this time as an al-Qaeda affiliate under the 2001 Authorization for Use of Military Force that Congress passed to launch the U.S. invasion of Afghanistan after the 9/11 attacks, and that the U.S. government has since relied on for counterterrorism operations in many countries. U.S. policy derived from that authorization says al-Nashiri can be detained as long as the United States considers itself to be engaged in continuing hostilities – that is, they can treat him as a threat to return to “the battlefield.”
Seventeen U.S. sailors were killed and dozens of other shipmates were wounded when al-Qaeda attacked the USS Cole off the coast of Yemen in October 2000. Al-Nashiri’s case has taken so long to get to trial because he was initially tortured by the CIA to get him to disclose al-Qaeda secrets and then held incommunicado in agency black sites from 2002 to 2006.
In a Sept. 24 filing, defense lawyers asked the judge to inform the jury, made up of U.S. military officers, that al-Nashiri will not automatically go free if they do not convict him of the terrorism crimes for which the government seeks to execute him. They want the explanation to spell out al-Nashiri’s separate status as a “law of war detainee.” They say the jury needs to understand that “from the outset because it runs contrary to how any American would understand any criminal proceeding to occur.”
Jury selection is expected to start in October with the bulk of the case being tried at Guantanamo in 2027.
