Al-Nashiri was captured in Dubai in 2002 and held for four years in secret CIA prisons known as "black sites" in Afghanistan, Thailand, Poland, Morocco, Lithuania and Romania, before being transferred to the Guantanamo Bay detention camp. While being interrogated, al-Nashiri was waterboarded, a technique since classified as torture. In 2005 the CIA destroyed the tapes of Nashiri's waterboarding. In another incident he was stripped naked, hooded and threatened with a gun and a power drill to scare him into talking.[7][8][9][10]
Al-Nashiri was granted victim status in 2010 by the Polish government and a Polish prosecutor began "investigating the possible abuse of power by Polish public officials with regard to a CIA black site" in the country in 2008.[11][12][13]
In December 2008, al-Nashiri was charged by the United States before a Guantanamo Military Commission.[14] The charges were dropped in February 2009 and reinstated in 2011.[15][16] As of 2011, al-Nashiri is on trial before a military tribunal in Guantanamo on charges of war crimes that carry the death penalty. As it is extremely unlikely he would be freed if found not guilty, his lawyers have called the proceeding a show trial.[17]
Born in Saudi Arabia, al-Nashiri travelled to Afghanistan in the early 1990s to participate in attacks against the Russians in the region, at a time when the United States supported the mujahideen in such actions. In 1996, he travelled to Tajikistan and then Jalalabad, Afghanistan, where he first met Osama bin Laden.[20] Bin Laden attempted to convince al-Nashiri to join al-Qaeda at this point, but he refused because he found the idea of swearing a loyalty oath to bin Laden to be distasteful. After al-Nashiri travelled to Yemen, he is alleged to have begun to consider committing terrorist actions against United States interests.[20]
When he returned to Afghanistan in 1997, he again met bin Laden, but again declined to join in the terrorist group. Instead, he fought with the Taliban against the Afghan Northern Alliance. Still, he assisted in the smuggling of four anti-tank missiles into Saudi Arabia, and helped arrange for a terrorist to get a Yemeni passport. His cousin, Jihad Mohammad Ali al-Makki, was one of the suicide bombers in the 1998 U.S. embassy bombings in Kenya.[20]
Allegedly joined al-Qaeda
USS Cole is towed away from the port city of Aden, Yemen, into open sea on October 29, 2000.
Finally, probably in 1998, al-Nashiri is alleged to have joined al-Qaeda, reporting directly to bin Laden. In late 1998, he conceived of a plot to attack a U.S. vessel using a boat full of explosives. Bin Laden personally approved of the plan, and provided money for it. First, al-Nashiri allegedly attempted to attack USS The Sullivans as a part of the 2000 millennium attack plots, but the boat he used was overloaded with explosives and began to sink.[20]
The next attempt was the USS Cole bombing, which was successful. Seventeen U.S. sailors were killed, and many more were injured. This terrorist attack made al-Nashiri prominent within al-Qaeda, and he allegedly was made the chief of operations for the Arabian Peninsula.[20] He organized the Limburg tanker bombing in 2002 of a French-flagged vessel off Yemen, and he may have planned other attacks as well.
Arrest
In November 2002, al-Nashiri was captured in the United Arab Emirates.[21] He is in American military custody in the Guantanamo Bay detention camp,[6] having previously been held at some secret locations. On September 29, 2004, he was sentenced to death in absentia in a Yemeni court for his role in the USS Cole bombing.[22]
Before being transported to military custody at Guantanamo, al-Nashiri was held by the CIA at black sites in Thailand and Poland for an undisclosed amount of time. CIA officials disagreed on al-Nashiri's role in planning the Cole bombing. One CIA official said of al-Nashiri, "He was an idiot. He couldn't read or comprehend a comic book."[23]
The Department of Defense announced on August 9, 2007, that all fourteen of the "high-value detainees" who had been transferred to Guantanamo from the CIA's black sites, had been officially classified as "enemy combatants".[24] Although judges Peter Brownback and Keith J. Allred had ruled two months earlier that only "illegal enemy combatants" could face military commissions, the Department of Defense waived the qualifier and said that all fourteen men could now face charges before Guantanamo military commissions.[25][26]
Interrogation
Abd al-Rahim al-Nashiri was interrogated numerous times. At a 2007 hearing in a military court, he attributed his confessions of involvement in the USS Cole bombing to torture, including waterboarding.[27] The details of torture that Nashiri offered at the hearing were redacted from the transcript.[28][29]
Relationship with people committing bombings in Saudi Arabia.
Osama Bin Laden having a nuclear bomb.
A plan to hijack a plane and crash it into a ship.
Al-Nashiri was tortured under the supervision of (then) current Director of the CIA Gina Haspel.[32] A Navy Reserve doctor who interviewed him described him as "one of the most severely traumatized individuals I have ever seen".[33] In August 2018, cables from the secret detention site overseen by Haspel, dating from November 2002 and likely authorized by if not written by her, were released because of a Freedom of Information lawsuit, and they describe the torture of Nashiri in detail, including slamming him against a wall, confining him to a small box, waterboarding him, and depriving him of sleep and clothing, as well as threatening to turn him over to others who would kill him and calling him “a little girl,” “a spoiled little rich Saudi,” and a “sissy.”[34]
During the course of his tribunal, he claimed to have made additional confessions under the duress of torture. He was ostensibly the last of the al-Qaeda suspects to be videotaped, as he was waterboarded in Thailand by CIA officers who questioned him. Shortly after, when a prisoner died in CIA custody in Iraq, the government agents decided against videotaping such interrogations, as this provided criminal "evidence" if things went wrong.[35] All the CIA tapes showing detainees being waterboarded were destroyed in 2005.
It was reported on August 22, 2009, that al-Nashiri was the subject of what is described as a mock execution during his torture by the CIA. A power drill and a handgun were used.[36]
In May 2011, al-Nashiri's lawyers filed a case against Poland with the European Court of Human Rights. They said that Al-Nashiri was held and allegedly tortured in a secret CIA "black site" prison "north of Warsaw" (OSAW) from December 2002 to June 2003 with the collaboration or consent of the Polish government.[37]
Order overruled
On January 29, 2009, an order from US president Obama's administration to suspend all Guantanamo military commission hearings for 120 days was overruled by military judge Army Colonel James Pohl in al-Nashiri's case.[38][39]
Charges dropped
On February 5, 2009, al-Nashiri's charges were withdrawn without prejudice.[40]
Charges re-instated
Since 2011, al-Nashiri has been at trial.
Death penalty
The prosecution planned to request the death penalty for al-Nashiri.[41]
The decision lies with the Convening authority, retired Admiral Bruce MacDonald.
In April 2011, the Department of Defense allowed Richard Kammen, a civilian lawyer with a background in defending suspects against death penalty cases, to join al-Nashiri's defense team.[42]
Al-Nashiri became the first Guantanamo captive to face the death penalty.[43]
Request to end the prosecution
In a letter in July 2011, al-Nashiri's legal team said:
Through the infliction of physical and psychological abuse, the government has essentially already killed the man it seized almost 10 years ago.
and
By torturing Mr. Al-Nashiri and subjecting him to cruel, inhumane and degrading treatment, the United States has forfeited its right to try him and certainly to kill him,[44]
Questioning whether Al Nashiri will continue to be detained if he is acquitted
On October 24, 2011, Lieutenant CommanderStephen Reyes filed a legal motion requesting that jurors in his case be informed that he may be detained in Guantanamo, even if he was acquitted of all charges.[45][46][47][48]
Al-Nashiri's formal charges are scheduled to be announced at the Tribunal on November 9, 2011.
Legal scholar Robert M. Chesney, of Lawfare, speculated al-Nashiri would be detained, if acquitted, for at least several more years.[49]
Chesney argued that it would be just to continue to detain al-Nashiri, even if he were acquitted, because conviction requires a higher standard of evidence than a habeas corpus petition.
Eligibility for military detention, according to a now-substantial body of habeas case law, turns on the preponderance of the evidence standard, as applied to a substantive test inquiring whether the person was a member of al Qaeda at the time of capture. One can satisfy that standard consistent with a military commission acquittal.
— Robert M. Chesney
Defense motions filed in April 2012
Presiding Officer James L. Pohl considered several motions during a pre-trial hearing on April 11, 2012.[50]
He deferred rulings on many of them.
He did rule to unshackle al-Nashiri for meetings with his lawyers, who had argued that he was traumatized by being shackled for years in secret CIA prisons and that being shackled during meetings impairs his ability to work with his lawyers.
Jose Rodriguez's dispute over al Nashiri's role
On May 8, 2012, Ali Soufan, al-Nashiri's original FBI interrogator, asked whether a recently published book by former CIA official Jose Rodriguez would undermine al-Nashiri's prosecution.[51]
Soufan's original FBI interrogation used the time-tested, legal technique of rapport-building. He has argued that the information derived from the suspect using this technique was reliable, whereas the confessions derived through torture were not.
Rodriguez was in over-all charge of the CIA's extended interrogation program.[51]
According to Soufan, Rodriquez's account of al Nashiri's role in the Cole bombing differed markedly from that of the prosecution. Rodriguez disputed that Al Nashiri had been the bombing's "mastermind", and agreed with a colleague who characterized him as "the dumbest terrorist I have ever met".
Mental health examination
Presiding Officer James Pohl ruled on February 7, 2013, that an independent panel of mental health experts should examine Al Nashiri, and report on how the documented torture he was subjected to would affect his ability to assist in his own defense.[13] Pohl called for the director of the Walter Reed National Military Medical Center to nominate the members of examination team.[52] He called for the team to report back by April 1, 2013. The team is supposed to be given full access to al Nashiri's medical files, including the top secret records from his times in CIA custody. The assessment was requested by the prosecution.[53]
Al Nashiri's defense team objected to the assessment, based on their doubts that a team appointed by the Office of Military Commissions could be relied upon. They called for the team to rely on the advice of Vincent Iacopino for how to interview Al Nashiri, without causing additional damage. Iacopino, a renowned expert on torture, had testified before the Military Commission on February 5, 2013, about the possible effects of torture on Al Nashiri.[54]
According to Richard Kammen, Nashiri's chief lawyer, psychiatric expert Sondra Crosby believes Nashiri is "one of the most damaged victims of torture" she has ever examined.[55]
On February 18, 2014, al-Nashiri attempted to fire his counsel, Rick Kammen. Judge Pohl granted a recess until February 19, 2014, to allow Kammen to attempt to repair the relationship with his client. If the two are unable to overcome their differences, al-Nashiri would be permitted to fire Kammen under current military commission rules.[58]
On October 18, 2016, the new military judge, Air Force Colonel Vance Spath took a step that Stephen Vladeck, a law professor and national security expert described as "unprecedented".[64] Spath had United States Marshals take Stephen Gill, into custody, to compel him to testify at a pre-trial hearing. In 2018, Spath resigned and was retroactively disqualified by the D.C. Circuit in a case arising out of the Baker v. Spath controversy.[18]
In 2021, Army Colonel Lanny Acosta overruled an objection by al-Nashiri's military lawyer, Brian L. Mizer, to the Chief Prosecutor, Mark S. Martins introduction of statements taken from al-Nashiri under torture in the CIA black sites as evidence.[65] The matter became public after Mizer and Al-Nashiri's civilian lawyer, Michel Paradis, appealed Acosta's decision. This led to a public dispute between Martins and the Joe Biden administration over the use of evidence obtained by torture, prompting Martins to abruptly resign.[66] The Biden Administration then reversed its position and the court of appeals reversed Acosta's decision.[67]
Baker v. Spath
In 2017, the Chief Defense Counsel Brig. Gen. John Baker authorized the mass resignation of al-Nashiri's defense team after al-Nashiri's lead lawyer, Richard Kammen, discovered secret monitoring equipment installed in his attorney-client meeting room.[68] The military judge presiding over the al-Nashiri case, Colonel Vance Spath, ordered Baker to rescind his order returning the lawyers to the case. When Baker refused the order as illegal, Spath found Baker in contempt and ordered him put under house arrest in Guantanamo.[69][70]
In October 2018, al-Nashiri petitioned the United States Court of Appeals for the District of Columbia Circuit for a writ of mandamus and prohibition, seeking a vacatur of all military commission orders issued by Colonel Spath.[74] Al-Nashiri's lawyer Michel Paradis, argued that Spath had failed to disclose his job application to the Department of Justice and the subsequent employment negotiations concerning an open position for an immigration judge in the Executive Office for Immigration Review, which created an appearance of bias, disqualifying Spath from presiding over al-Nashiri's military commission.[75] Spath had retired on November 1, 2018, and was appointed by Attorney GeneralJeff Sessions as an immigration judge in October 2018.[76][77] After oral arguments were held before a panel consisting of Judge Rogers, Tatel, and Griffith, the Court vacated all orders issued by Spath,[18] concluding that "Spath’s job application to the Justice Department created a disqualifying appearance of partiality".[78] In writing for a unanimous court, Tatel wrote:[78]
Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system—from the prosecution team to the Justice Department to the CMCR to the judge himself—failed to live up to that responsibility.
European Court of Human Rights judgment
On July 24, 2014, the European Court of Human Rights (ECHR) ruled that Poland violated the European Convention on Human Rights when it cooperated with the U.S. by allowing the CIA to hold and torture al-Nashiri and Abu Zubaydah on its territory in 2002–2003. The court ordered the Polish government to pay each of the men 100,000 euros in damages.[79][80] Additionally, the ECHR ordered the Polish government to disclose details of the men's detention and to seek diplomatic assurances from the United States that al-Nashiri will not be executed.[81]
On the May 31, 2018, in the Case of Al Nashiri v. Romania (Application no. 33234/12) the Court held Romania was complicit in CIA rendition and had suffered various ECHR violations. It stated the following in its rulings;
FOR THESE REASONS, THE COURT, UNANIMOUSLY,
1. Holds that the matters complained of are within the “jurisdiction” of Romania within the meaning of Article 1 of the convention and that the responsibility of Romania is engaged under the convention, and dismisses the Government's preliminary objection concerning a lack of jurisdiction and responsibility;
2. Decides to join to the merits the Government's preliminary objections of non-exhaustion of domestic remedies and non-compliance with the six-month rule and dismisses them;
3. Declares the complaints under Articles 2, 3, 5, 6 § 1, 8 and 13 of the Convention and Article 1 of Protocol No. 6 to the Convention admissible and the remainder of the application inadmissible;
4. Holds that there has been a violation of Article 3 of the Convention in its procedural aspect on account of the respondent State's failure to carry out an effective investigation into the applicant's allegations of serious violations of the convention, including inhuman treatment and undisclosed detention;
5. Holds that there has been a violation of Article 3 of the Convention in its substantive aspect, on account of the respondent State's complicity in the CIA High-Value Detainee Programme in that it enabled the US authorities to subject the applicant to inhuman treatment on its territory and to transfer him from its territory in spite of a real risk that he would be subjected to treatment contrary to Article 3;
6. Holds that there has been a violation of Article 5 of the convention on account of the applicant's undisclosed detention on the respondent State's territory and the fact that the respondent State enabled the US authorities to transfer him from its territory, in spite of a real risk that he would be subjected to further undisclosed detention;
7. Holds that there has been a violation of Article 8 of the convention;
8. Holds that there has been a violation of Article 13 of the convention on account of the lack of effective remedies in respect of the applicant's grievances under Articles 3, 5 and 8 of the convention;
9. Holds that there has been a violation of Article 6 § 1 of the convention on account of the transfer of the applicant from the respondent State's territory in spite of a real risk that he could face a flagrant denial of justice;
10. Holds that there has been a violation of Articles 2 and 3 of the Convention taken together with Article 1 of Protocol No. 6 to the convention on account of the transfer of the applicant from the respondent State's territory in spite of a real risk that he could be subjected to the death penalty;
11. Holds
(a) that the respondent State is to pay the applicant, within three months from the date on which the judgment becomes final in accordance with Article 44 § 2 of the convention, EUR 100,000 (one hundred thousand euros), plus any tax that may be chargeable in respect of non-pecuniary damage;
(b) that from the expiry of the above-mentioned three months until settlement simple interest shall be payable on the above amount at a rate equal to the marginal lending rate of the European Central Bank during the default period plus three percentage points;
12. Dismisses the remainder of the applicant's claim for just satisfaction.
The court therefore found that Mr Al Nashiri had been within Romania's jurisdiction and that the country had been responsible for the violation of his rights under the convention. It also recommended that Romania conclude a full investigation into Mr Al Nashiri's case as quickly as possible and, if necessary, punish any officials responsible. The country should also seek assurances from the United States that Mr Al Nashiri will not suffer the death penalty.[82]
On May 31, 2018, the ECHR ruled that Romania and Lithuania also violated the rights of Abu Zubaydah and Abd al-Rahim al-Nashiri in 2003-2005 and in 2005-2006 respectively, and Lithuania and Romania were ordered to pay 100,000 euros in damages each to Abu Zubaydah and Abd al-Nashiri.[83]
^Carol Rosenberg (November 3, 2011). "Guantánamo's war court can't free captive found innocent". Miami Herald. Archived from the original on February 11, 2012. The U.S. military tribunal for the USS Cole bombing suspect has no power to free a captive found innocent of war crimes but shouldn't be told the terror suspect could be held for life anyway, Pentagon prosecutors said in a court document made public Wednesday.
^
Neil MacFarquhar, David Johnston (September 30, 2004). "Death Sentences in Attack on Cole". The New York Times. Cairo. Archived from the original on April 11, 2013. Abd al-Rahim al-Nashiri, a Saudi-born bin Laden associate, and Jamal al-Badawi, a 35-year-old Yemeni, were sentenced to death for their roles in the deaths of 17 United States sailors on board the destroyer, for planning the attack and for organizing an armed gang to carry it out. Mr. Nashiri, in custody at an undisclosed location outside the United States, was tried in absentia.
^"U.S. drops Guantanamo charges per Obama order". Reuters. February 5, 2009. Archived from the original on January 27, 2010. Retrieved May 17, 2010. The charges against Abd al Rahim al Nashiri were dropped without prejudice, meaning they could be refiled later, said the spokesman, Navy Commander J.D. Gordon.
^Carol Rosenberg (July 16, 2011). "Defenders: USS Cole Bombing Case Too Tainted For Death Penalty Trial". Miami Herald. Archived from the original on October 26, 2011. Retrieved October 26, 2011. Now it will be up to retired Navy Vice Adm. Bruce MacDonald to decide whether Nashiri, 46, could be subjected to military execution if a Guantánamo jury convicts him for the al Qaida suicide bombing off Yemen. Seventeen American sailors were killed, dozens more wounded and the $1.1 billion warship was crippled in the October 2000 explosion.
^Carol Rosenberg (April 30, 2011). "Death-Penalty Expert To Join Defense Team At USS Cole Trial". Miami Herald. Archived from the original on October 26, 2011. Retrieved October 26, 2011. The Pentagon has moved one step closer to putting the USS Cole bombing suspect before a capital war-crimes trial at Guantanamo, assigning an Indiana attorney with extensive death-penalty experience to help defend a Saudi-born Yemeni captive who was waterboarded by the CIA.
^
Peter Finn (September 29, 2011). "USS Cole Suspect Referred For Trial: Military commission at Guantanamo Bay to hear death penalty case". The Washington Post. p. 8. Archived from the original on October 26, 2011. Retrieved October 26, 2011. One of Nashiri's attorneys, Navy Lt. Cmdr. Stephen Reyes, has warned that he intends to call to the stand CIA officials involved in his client's interrogation. Reyes criticized the decision to seek the death penalty. "As currently constituted, the commissions lack the protections required to hold a reliable and trustworthy capital trial," he said.
^"Lawyer: Gitmo trial in Cole Attack could be moot". Kansas City Star. October 24, 2011. Archived from the original on October 26, 2011. Retrieved October 26, 2011. Navy Lt. Cmdr. Stephen Reyes says officials have suggested that prisoners like Abd al-Nashiri will never be released. He says that renders a trial meaningless and that officers who serve as jurors should be told from the start. He says some may choose not to participate.
^"USS Cole bombing suspect seeks release if acquitted". The New Age. October 25, 2011. Archived from the original on April 21, 2013. Retrieved October 26, 2011. The defense wants a response delivered at the hearing November 9 at which he was supposed to be charged. "In a variety of contexts, officials in the United States, including the president, have suggested that no matter what the outcome of the trials in Guantanamo, individuals such as Mr Al-Nashiri will not be released because he is allegedly a terrorist," the attorneys' statement reads in part.
^Robert M. Chesney (October 24, 2011). "Al-Nashiri's Motion on Potential Post-Acquittal Detention". Lawfare. Archived from the original on October 28, 2011. Retrieved October 27, 2011. I expect the government will resist the idea that it must tell al-Nashiri now whether it would keep him in military custody following an acquittal, and will certainly deny that any such decision necessarily would require custody for life. Not that I doubt that he would be kept in custody at least for some years following acquittal; an acquittal would prove that the government did not prove beyond a reasonable doubt that al-Nashiri committed a crime, but this does not simultaneously require the conclusion that the government lacks the factual and legal grounds to continue to use military detention.
^ abAli Soufan (May 8, 2012). "Will a CIA Veteran's Book Save a Terrorist?". Bloomberg News. Archived from the original on May 11, 2012. Retrieved May 10, 2012. The defense of Abd Al-Rahim Al-Nashiri -- the mastermind in the bombing of the U.S. Navy destroyer Cole in 2000 -- has received a boost from a surprising source: Jose Rodriguez, a former high-ranking CIA official.
^
Jane Sutton (February 8, 2013). "Doctors to review USS Cole suspect's CIA detention records". Guantanamo: Reuters. Archived from the original on February 8, 2013. CIA records documenting the waterboarding and interrogation of an alleged al Qaeda chieftain must be shown to the doctors who will decide whether he is mentally competent for trial on charges of conspiring to bomb a U.S. warship, a judge ordered.
^Carol Rosenberg (October 18, 2016). "Guantánamo judge has U.S. Marshals seize no-show war court witness". Miami Herald. Archived from the original on October 18, 2016. Vladeck questioned the war court's authority to do this. "I have to imagine he has a pretty good habeas claim," he said of Gill's overnight detention to testify. "If the commissions can't usually issue extraordinary writs, what is the government's legal basis for detaining him?"
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