With the start of jury selection just days away, the senior military defense lawyer in the USS Cole bombing case asked the judge to postpone the trial by six months, saying his side was unprepared, outnumbered, and needed more time to seek more trial evidence.
“There is an incredible power imbalance we are facing here,” said Air Force Lt. Col. Joshua Nettinga. He said the defense team had struggled for 15 years for scraps of evidence to defend Abd al-Rahim al-Nashiri, who is accused of a key role in the al-Qaeda bombing of the Navy warship that killed 17 sailors on Oct. 12, 2000.
The judge, Army Col. Matthew Fitzgerald, interrupted the colonel to tell him that his request was very last-minute. Moreover, Judge Fitzgerald said, al-Nashiri’s lawyers may seek remedies in the course of the trial if prosecutors fail to comply with judicial orders to provide the defense lawyers with certain evidence.
The first 36 U.S. military officers from an up-to 200-member jury pool are expected to arrive at Guantanamo naval station over the weekend. Jury selection is set to start on Nov. 2. Twelve jurors and six alternates will be selected for the first death-penalty trial by the military commission that was created in response to the 9/11 attacks.
Judge Fitzgerald has yet to rule on a separate challenge brought by defense lawyers to the defendant’s competency to stand trial. They have argued that al-Nashiri is too mentally damaged from his torture in CIA custody to follow the proceedings and assist in his defense. An Army psychiatrist diagnosed al-Nashiri with depression and post traumatic stress disorder but declared him fit for trial.
Al-Nashiri has six lawyers detailed to defend him in court with three resource counsel supporting those efforts, mostly from their offices in Crystal City, Virginia. The government has eight prosecutors led by Cmdr. Clayton Trivett, who was recently assigned to the case from Guantanamo’s other capital prosecution, the Sept. 11 conspiracy case. Trivett said a Justice Department lawyer with expertise in capital prosecutions would also join his team for jury selection.
Trivett urged the judge to go forward with jury selection, and end what he called “15 years of protracted pretrial justice.”
“The time for justice is now,” Trivett argued. “The Gold Star families have been waiting for justice for a long time.”
Al-Nashiri was captured in Dubai in 2002, held by the CIA until 2006 and arraigned in 2011. The following years saw challenges over access to details of the defendant’s torture, the disqualification of more than two years of one judge’s proceedings, and many changes in both the defense and prosecution teams.
To Nettinga’s assertion that al-Nashiri’s lawyers were entitled to more evidence in the case, Trivett replied that “the government makes the discovery decisions in this case” and “we have satisfied our discovery obligations.”
He also made a cryptic reference to the prosecution recently, invoking a national security privilege over something sought by the defense lawyers that he called “clawed back discovery.” Proceedings in the case have run on two tracks: The hearings and filings that the public and defendant can see and classified hearings and documents that are only seen by people with specialized security clearances.
Separately, the lead capital defender, Allison Miller, asked the judge to order the classified depositions of 43 CIA witnesses who saw what happened to al-Nashiri in the black sites – for use at the prisoner’s sentencing hearing, if he is convicted.
Under the current court formula for protecting U.S. intelligence-gathering activities, prosecutors took secret cables about al-Nashiri’s interrogations and created stipulations of what the anonymous witnesses would say as substitutes for their testimony. Ideally, Miller said, the witnesses would testify live, if anonymously. Based on an interview she said she conducted with a remorseful, at times crying, doctor who saw what happened to the prisoner in a black site, Miller said the government substitutions of live evidence are likely too sanitized.
The names of those witnesses are secret, and the U.S. government has said they cannot testify for national security reasons. So, as a substitute for their testimony, prosecutors have written summaries of what each witness would have seen using 2002 circa cables from the black sites. The idea is the document would be a substitution of a person testifying, even in closed session.
Miller said she was able to interview one of the 43 witnesses – a doctor who, she said, wept at one point while describing what he saw happening to al-Nashiri in the black site – and has concluded that the substitutions are too sanitized. Depositions, she said, would be a better way for the jurors to understand what happened to al-Nashiri to decide whether to sentence him to death.
To try to get the judge to postpone the trial, Miller and the five other lawyers on her team recently submitted declarations to the court that said al-Nashiri was at risk of ineffective assistance of counsel if the trial went forward this year.
Trivett said al-Nashiri has had “tremendous advocacy” by three successive capital defenders, Richard Kammen at first, Anthony Natale next, and Miller, who got to the case in 2024.
Trivett compared al-Nashiri’s defense team to Lucy in the Peanuts cartoon when she would promise to hold the football and then pulled it away at a critical moment – 35 times by the prosecutor’s count – forcing Charlie Brown “to swing and miss.” Nettinga replied in rebuttal that the defense team doesn’t have enough lawyers to be counting cartoon episodes.
