The military judge on Monday rejected a U.S. Navy pilot from serving on the jury in the USS Cole bombing case then accepted a submarine officer who had researched the military commissions at Guantanamo Bay and declared them “corrupt and morally bankrupt.”
In doing so, Colonel Matthew Fitzgerald, the judge, added the first U.S. Navy officer to the jury that will decide the death penalty case against a Saudi prisoner who is accused of having a key role in the attack on the Cole warship that killed 17 U.S. sailors 25 years ago.
Prosecutors opposed his selection. In questioning, the Navy lieutenant said that he was morally opposed to Guantanamo Bay, which he called “a very sketchy place.”
But Judge Fitzgerald said that under careful questioning the lieutenant, a nuclear missile officer, understood that he would have to set aside his personal opinions and evaluate only the evidence presented and follow the judge’s instructions at the trial of Abd al-Rahim al-Nashiri.
Al-Nashiri, a Saudi, is accused of planning al-Qaeda’s bombing of the USS Cole warship while it was on a refueling stop off Aden, Yemen, on Oct. 12, 2000.
Al-Nashiri has been in U.S. custody since 2002, and was tortured by the CIA during his first four years in the agency’s secret black site prisons, including with waterboarding and beatings. An earlier judge suppressed his subsequent confessions to federal agents as tainted by the torture.
The Navy lieutenant was the first of five jurors examined so far who challenged the legitimacy of the court that was created to try foreign detainees who were captured in the post-9/11 war against terrorism.
“I really don’t know what goes on here,” the lieutenant said about Guantanamo. “There may be torture that happens here and different threats,” he said. “I don’t believe that torture is just and it’s not constitutional and not adherent to the oaths I took as a military officer.”
Jury selection is in its second week and, with Monday’s decision, the judge has approved the selection of four officers – two from the U.S. Air Force and one each from the Army and Navy – for the eventual panel of 12 jurors and six alternates.
On Monday, the lead prosecutor, Cmdr. Clayton Trivett, described the lieutenant as an opponent of the death penalty who would be “struggling with his morality the whole time he’s serving on this case.” But the judge said he heard the Navy lieutenant say he had “a long-held belief as to neutrality on the death penalty.” The judge quoted the submariner as declaring himself “iffy” on the death penalty. He also answered in a questionnaire that he was neither for nor against it.
The Navy lieutenant said he developed his opinions on the war court after he received a lengthy questionnaire for potential jury pool members in January. He said he then spent three weeks researching the military commissions, something that was not prohibited at the time.
He said he learned about the military commission of a Canadian citizen, Omar Khadr, a former child soldier who pleaded guilty to war crimes in 2010 in exchange for return to his homeland, in drawing his conclusions about the military commissions. The judge cautioned the Navy lieutenant against doing any future research on the military commissions, including the al-Nashiri case, and to not discuss it with anybody.
Earlier in the day, Judge Fitzgerald disqualified a Navy pilot, a lieutenant commander who had multigenerational ties to the Navy. The would-be juror, a Naval Academy graduate, has an uncle who served until retirement, a cousin who also had served, and an older brother still serving in the Navy.
The judge noted that the commander had trained on scenarios involving small boats that could threaten Navy ships in the Strait of Hormuz, which were apparently modeled after the bombing of the USS Cole, giving him access to specialized information that might be a problem at the trial.
Al-Nashiri’s defense team opposed his inclusion because that officer told the court he had earlier this year read a news article about an effort by the defendant to plead guilty in the case.
Prosecutors had said that would not disqualify him because he agreed during questioning that he could set that knowledge aside and follow the evidence and instructions of the judge.
