GUANTANAMO BAY NAVAL BASE, Cuba (AP) — A Saudi considered among the most senior figures in al-Qaida emerged Wednesday from nine years of secret confinement to face charges of orchestrating the deadly attack on the USS Cole in the start of a new round of Guantanamo Bay war crimes tribunals under a president who vowed to halt them.
Abd al-Rahim al-Nashiri did not enter a plea as he was arraigned and the court dealt with a number of procedural issues. The detainee, who was subjected to the harsh interrogation techniques that his lawyers say amounted to torture, appeared engaged and occasionally smiled as he responded to questions from the judge.
The charges against Al-Nashiri, 46, include murder in violation of the law of war in the 2000 suicide bombing of the USS Cole in Yemen, an attack killed 17 crew members. Authorities say he took orders directly from Osama bin Laden and also set up the October 2002 bombing of the French supertanker MV Limburg, which killed one crewman, as well as a failed attack on another American warship, the USS The Sullivans in January 2000.
He was allowed to remain unshackled, declined an offer to exchange his white prison uniform for civilian clothes in future court appearances and said he wants to keep all the members of his appointed legal team. "At this moment these lawyers are doing the right job," he told the judge.
It was a low-key start to a highly anticipated proceeding, the start of a capital case against a prisoner who was held in a series of clandestine CIA prisons where he was subjected to the simulated drowning technique known as waterboarding as well as mock executions and other forms of harsh interrogation.
President Barack Obama took office pledging to close the Guantanamo Bay detention center, but was rebuffed by Congress, which has refused to authorize moving prisoners from the American base in Cuba, and forced him to resume the war crimes prosecutions started under his predecessor.
Three Guantanamo cases have been resolved through plea bargains under Obama but al-Nashiri is the first initiated under this administration and it is considered a prelude to the prosecution of the five Guantanamo prisoners who are accused of orchestrating the Sept. 11 attacks.
The trial of al-Nashiri will take place under a military commission system that has been revised by Congress and the Obama administration but is still subject to criticism from defense lawyers and human rights groups, who have complained about repeated changes in procedures and rules that favor the prosecution.
Legal experts have also questioned whether al-Nashiri should be charged with a war crime for the Cole bombing, which occurred before the Sept. 11 attacks and the U.S. declaration of war on al-Qaida.
Critics such as retired Air Force Col. Morris Davis, who resigned as chief prosecutor for the trials in October 2007 after alleging political interference by superiors, said the case against al-Nashiri and other prisoners should be moved to U.S. federal court to avoid having the convictions perceived as illegitimate.
"There is ample evidence to prove his case in federal court, where there is a long history of trying terrorism cases and certainly not this presumption of a kangaroo court," Davis said.
Al-Nashiri was captured in 2002 in Dubai and was held by the CIA in a series of secret prisons before being sent to Guantanamo in September 2006.
A report by the CIA Inspector General revealed that al-Nashiri was one of the prisoners subjected to "enhanced interrogation techniques," including two instances of waterboarding. He also was threatened with a gun and a power drill because interrogators believed he was withholding information about possible attacks against the U.S.
He is now held in Camp Seven, a top secret section of Guantanamo where 15 "high-value" detainees are held, including the self-proclaimed mastermind of the Sept. 11 attacks, Khalid Sheikh Mohammed, who is expected to be arraigned next year in what is also likely to be a death penalty case.
A half-dozen relatives of sailors killed in the Cole bombing traveled to Guantanamo to observe the arraignment. One of them, John Clodfelter, said the prisoner seemed "cocky," and he bristled at the suggestion that al-Nashiri deserves any consideration because of how he was treated in custody.
"Myself, I think he deserves to get the death penalty if not worse," said Clodfelter, whose son, Kenneth, was among the victims. "It seems like there was more concern about the way he's treated as opposed to the way him and his people treated 17 sailors."
Al-Nashiri never addressed the charges against him and his attorneys are prohibited from disclosing anything he has said in private or his reactions to the hearing. But attorney Rich Kammen sought to soften his image within those restrictions after the hearing.
"His responses are appropriate to the situation. This is not a person in our view without heart or feeling," he said. "That's the best way I can answer the question."
The lawyers are seeking to have the military officers who will serve as jurors informed that even if al-Nashiri is acquitted the government can still hold him as a prisoner, just as they hold dozens of Guantanamo prisoners who have not been charged. The judge did not rule on that request but he did agree to another, ordering the detention center to halt a recently adopted practice of reading mail between the prisoner and his lawyers, which they argued is violates attorney-client privilege.
The judge set a tentative trial for November 2012 but that date is likely to be postponed for months if not years, delayed in part by efforts by his lawyers to challenge any statements he made as being the product of torture.
"By torturing Mr. al-Nashiri and subjecting him to cruel, inhuman and degrading treatment, the United States has forfeited its right to try him and certainly to kill him," his defense team wrote in one legal motion. "Through the infliction of physical and psychological abuse the government has essentially already killed a man it seized almost 10 years ago."