As predicted, jury selection in the USS Cole bombing case is going to last weeks and, based on the first three days of picking the first-ever capital jury at Guantanamo Bay, likely to stretch past Thanksgiving.
By the close of court Wednesday, only one juror, an Air Force colonel, had been accepted for the panel. Three others had been excused. That left 14 potential jurors on base, requiring the military to mobilize more pool members to the base later in the month.
Here’s why: Col. Matthew Fitzgerald, the Army judge, announced Tuesday that his goal was to pick 20 members for the panel of 12 jurors and six alternates. Once all 20 are chosen, the government and defense lawyers could each excuse one member from the panel without having to justify it. (In court, the option to excuse a juror without cause is called a peremptory challenge.)
The defendant, Abd al-Rahim al-Nashiri, a Saudi, is accused of orchestrating al-Qaeda’s Oct. 12, 2000 attack on the Navy warship that killed 17 American sailors. The Cole was on a refueling stop in Aden Harbor, Yemen, when two suicide bombers came alongside it in an explosives-laden skiff and set off their load. This is the first time a capital jury is being chosen in the military court that was created after the attacks of Sept. 11, 2001 to try suspected terrorists and war criminals.
This week, two defense lawyers from Florida were examining the U.S. military officers on their suitability to serve on the panel. Allison Miller, al-Nashiri’s capital defender, was questioning the officers about their attitudes toward capital punishment and knowledge of the case, among other things. Casey Secor, the second defender, was answering the objections to the questions raised by a military prosecutor, Navy Cmdr. Brandon Sargent.
Prosecutors have also obtained a consultant for this phase. Richard Burns, the chief of the Justice Department’s capital case section, was watching the proceedings by video feed from a courtroom annex in Crystal City, Va. He had a secure link to the prosecution table while court was in session.
As of Wednesday, the 18 officers from the initial pool broke down this way:
- (1) The first member, the Air Force colonel, was chosen by Tuesday night. He is a pilot who is retiring next year. Unless somebody with more seniority is chosen from future installments of the 200-officer pool, this man will serve as president of the panel – the military commissions’ term for jury foreman.
- (2-4) Three other officers had been excused, one to rush home for a family emergency and two others by agreement between prosecution and defense lawyers without individual questioning. Two were from the Army, one was from Space Force.
- (5) The judge was deciding whether to accept an Air Force major who had been questioned much of the day Wednesday. Defense lawyers opposed him; prosecutors wanted him on the panel.
That leaves 13 officers from all five services (Air Force, Army, Marines, Navy, and Space Force) to be questioned individually in coming days or weeks.
Judge Fitzgerald announced in court on Tuesday that he delayed the arrival of 18 more members of the pool until the weekend of Nov. 14. Court will be in recess Wednesday, Nov. 11, for Veterans Day. So there will be just four days for jury selection next week.
