Jury selection began Monday in the first capital case at Guantanamo Bay, with the court questioning the first 18 of up-to 200 U.S. military officers about their ability to sit impartially at the trial of a Saudi prisoner who is accused of conspiring in a terror attack on a U.S. Navy ship that killed 17 American sailors a quarter-century ago.
Suicide bombers attacked the USS Cole on Oct. 12, 2000, while it was on a refueling stop in Aden, Yemen. Besides those killed, 37 other sailors on the 312-member crew were injured.
Abd al-Rahim al-Nashiri, 61, is accused of war crimes for allegedly helping to orchestrate the attack, and two others, at the behest of Osama bin Laden. He has been in U.S. custody since 2002 but was held by the CIA in black sites for the first four years, during which time he was tortured repeatedly. His treatment in U.S. custody has meant protracted pretrial hearings about which evidence can be used at the trial and whether he is even competent to be tried. Those pretrial hearings ended last week.
The process of empaneling 12 jurors and six alternates could last weeks. A total of 36 military officers were brought to the base over the weekend from a pool of 200 drawn from U.S. military bases around the world.
Monday, Col. Matthew Fitzgerald, the judge, told the first 18 candidates that the trial could last four-to-six months, or longer, but that he would recess for Thanksgiving and Christmas vacation.
Soon after, 10 of the potential jurors signaled to the judge that they would have a hard time devoting that much time away from their other commitments.
Additionally, a naval officer in the initial pool of 18 said that he was morally or religiously opposed to the death penalty.
Group questioning continues Tuesday morning with defense lawyers posing their group questions. Then the court will do follow-up questions with each of the officers individually.
The process of questioning the officers got a late start Monday because al-Nashiri’s capital defender, Allison Miller, lodged a series of objections to materials that were being presented to the pool, including questions to be posed by the judge as the parties picked the panel.
Notably, she took issue with a line in the judge’s script that said the defendant in the case “is presumed to be innocent until the accused’s guilt is established by legal and competent evidence beyond a reasonable doubt.”
The debate over the language was held out of earshot of the panel. The judge described it as a cut-and-paste from an Army guide, called a bench book, for court-martial practice.
The lead prosecutor, Navy Cmdr. Clayton Trivett Jr., opposed the defense’s requested change. After a recess, Judge Fitzgerald, a former high school teacher, said he consulted Merriam-Webster and agreed to use “unless” rather than “until.”
Then, several hours later, he mistakenly read the old script to the panel, using the phrase “until the accused’s guilt is established.”
After the pool was released for the night, Judge Fitzgerald promised to cure the problem.
The first phase of the trial began with a nearly empty spectators’ gallery. Only one news reporter (this author) and two legal observers had traveled to Guantanamo Bay for this week’s proceedings – for which al-Nashiri donned a gray sports jacket over a pressed white button-down shirt and trousers. A prosecutor had said USS Cole shipmates and relatives of the fallen sailors would come later.
Before jury selection began, the judge had al-Nashiri and his defense team stand and submit a plea of not-guilty. The defendant did so, along with two military defense lawyers and three civilian lawyers with Florida capital defense experience who were hired by the Pentagon for the case.
At the military commissions, pleas are not entered at arraignment to give defense lawyers time to litigate the contours of the case.
The plea generally signals the end of pretrial litigation. But Judge Fitzgerald agreed to continue receiving defense filings related to potential evidence the defense wants from the prosecution.
One overarching issue is that the judge presiding in the separate Sept. 11 case at the commissions recently suppressed the 2007 and 2008 interrogations of a defendant there, Walid bin Attash, but Judge Fitzgerald earlier ruled that prosecutors could use portions of bin Attash’s statements against al-Nashiri.
Defense lawyers want all of the evidence that the 9/11 judge, Air Force Lt. Col. Michael Schrama, used to throw out the statements, to then ask Judge Fitzgerald to reconsider his ruling.
Trivett, the prosecutor, opposed reopening the question of using the bin Attash statements. He told Judge Fitzgerald that Judge Schrama simply analyzed the question differently and threw out the disputed statements because of prior CIA coercion and a lack of a Miranda warning.
Two judges, he said, “simply came to different conclusions.”
Miller is a capital defender from Florida who has practiced in civilian courts. She came to the case in 2024, her first experience with the military commission system that was created in response to the 9/11 attacks.
She has repeatedly tried to stop the trial from getting underway by arguing that al-Nashiri cannot understand the proceedings or engage coherently with his defense team. She told the judge Monday that, when she went over the charges with al-Nashiri at lunch that day, it was as though he was hearing them for the first time.
But the judge adopted the finding of an Army psychiatrist who evaluated the prisoner and found him competent for trial despite his PTSD and depression diagnoses.
Before jury selection started, Miller also put the judge on notice that she intended to consult an ethics expert through her Florida Bar before opening arguments on whether she might be required to withdraw from the case. “I am not prepared. I am stipulating that I will be ineffective,” she said, declaring herself “at a crossroads.”
The plan to consult a civilian ethics authority sounded familiar to Cole case watchers who remembered that, in 2017, the first capital defender, Richard Kammen, obtained an ethics opinion and quit the case while back in the United States. At issue then was the discovery of a listening device in al-Nashiri’s dedicated attorney-client meeting space at the prison – and an earlier judge’s refusal to let Kammen tell al-Nashiri about it and seek a waiver.
