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USS Cole Trial Participants Return to Guantanamo after 18-month Hiatus

USS Cole damage after bombing 600x400

Lawyers, staff and family of sailors killed in the USS Cole attack converged Tuesday at this air base for a flight to Guantanamo to resume pretrial hearings in the terror case for the first time in 18 months.

Saudi Arabian captive Abd al Rahim al Nashiri, 51, is expected back in court on Wednesday for a three-day hearing. The judge, Air Force Col. Vance Spath, put the proceedings on hold in March 2015 while higher courts sorted through a series of challenges brought by both prosecution and defense lawyers.

The U.S. Court of Appeals for the District of Columbia Circuit resolved the last one last week by deferring to Spath, and ultimately the military officer jurors who will hear the case, on when the War on Terror began. Nashiri is charged at the military commissions built by Presidents George W. Bush and Barack Obama as the alleged architect of al-Qaida's bombing of the $1 billion warship at Aden harbor in Yemen on Oct. 12, 2000.

Seventeen sailors were killed in that suicide bombing, and the prosecutors seek to execute Nashiri if he is convicted. No trial date has been set.

Prosecution and defense attorneys are still haggling over applicable law and evidence in the war crimes case against the man the CIA waterboarded, kept nude and kenneled during interrogations before the CIA delivered him to Guantanamo for trial over Labor Day weekend in 2006.

This week's hearing is expected to tackle, among other things, a series of defense motions to dismiss the case or at least suspend it again until certain team members get security clearances or are reinstated. Virtually everyone involved in the case, except Nashiri, was boarding a Pentagon charter flight to the hearing.

There's a new federal prosecutor, Assistant U.S. Attorney Mark A. Miller of New Orleans, but a Navy defense attorney who once defended Nashiri, Cmdr. Brian Mizer, hasn't been returned to service despite the defendant's request. In 2014, after a public portion of the so-called Senate Torture Report showed the CIA pumped Ensure nutritional supplement into Nashiri's rectum during Black Site detention a decade earlier, Mizer described the treatment as punishment that was tantamount to rape for going on a hunger strike.

That report also confirmed for the first time that Nashiri has twice been held prisoner at Guantanamo. The CIA maintained secret prison facilities "on the grounds of, but separate from, the U.S. military detention facilities at Guantanamo Bay, Cuba" from September 2003 according to a 524-page summary of the Senate Intelligence report. He and at least four other captives were moved out and the agency closed those facilities in April 2004 ahead of a U.S. Supreme Court decision granting Guantanamo detainees access to the federal courts.

Two of the longest-serving lawyers on the case -- Chief Prosecutor Brig. Gen. Mark S. Martins and death-penalty defender Rick Kammen -- were at Andrews Air Force Base on Tuesday for the flight to the three-day session. In the nearly five years since Nashiri was arraigned, the judge has changed and all the other attorneys have changed. Only Kammen, Martins, the accused Saudi terrorist and the family of the fallen Cole sailors have been the constant at Guantanamo's maximum-security courtroom.

"It's crazy to think you can do a case this complicated with this constant turnover of people," Kammen said on the eve of the flight. He has long argued the only place to try this case is in federal court.

"The truth is, we do appreciate the victims' pain. The tragedy is, in Nashiri's case we're going to go through two or three more years, have a trial, go through two or three more years, finally get to the D.C. Circuit and only then will they know if this case was tried in the right court. That is horribly unfair to these people."

Tuesday, some regularly attending fathers of sailors killed on the warship were missing from the victim-family entourage. John Clodfelter, Ronald Francis and Jesse Nieto had typically attended but were missing the resumption of the hearings. Two Cole shipmates were among the observers.

A U.S. military panel concluded in 2013 that Nashiri suffers depression and Post Traumatic Stress Disorder but is competent to stand trial. A year later, in a failed bid to get him mental health care, defense attorneys called an expert in torture to testify that the CIA physically, mentally and sexually tortured him at the secret prison site, Camp 7. Spath has, however, ordered the military to arrange for an MRI of Nashiri's brain as part of trial preparation.

Neither the U.S. Southern Command nor the Navy Bureau of Medicine responded to a Miami Herald inquiry on whether the military had secured a contract for rental MRI equipment to be delivered to the remote base. The military began advertising for it a year ago.

In the most recent federal appeal, Nashiri's attorneys invoked his torture as a reason for the civilian court to decide before trial the issue of when the War on Terror began. Prosecutors argued, and two appellate judges agreed, that question should be addressed by the tribunal. If Nashiri is convicted, civilian courts can tackle whether they got it wrong later.

"We are particularly confident that Congress did not intend to allow a defendant to halt the workings of a military commission by challenging in federal court an issue that could just as easily be considered by the commission and reviewed by a federal appellate court," Judge Thomas Griffith wrote with the agreement of Judge David Sentelle.

They added: "Nashiri's allegations regarding his treatment during his detention, while deeply troubling, do not provide any reason to fear that he will not be given a fair hearing in the military commission."

But Judge David Tatel disagreed, saying the federal court should consider the question first in part because of Nashiri's history of abuse in U.S. custody. He invoked the defense lawyers' claims of "unusual and extraordinary allegations of harm" and devoted four pages of his 17-page dissent to defense descriptions of the Saudi prisoner's CIA torture. He devoted another two more pages to defense descriptions of his deteriorated mental health.

Kammen said his team had decided to appeal that decision to the U.S. Supreme Court.

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