The US Department of Defense on Sept. 28 officially referred charges against a high-profile Guantánamo Bay detainee who allegedly planned the 2000 attack on the USS Cole that left 17 sailors dead and 37 others injured. Saudi-born former millionaire Abd al-Rahim al-Nashiri will stand trial before a military tribunal at Guantánamo on nine terrorism, conspiracy and murder charges. Specifically al-Nashiri will be charged with orchestrating the attack on the Cole, during which two suicide bombers rammed an explosives-laden boat into the guided missile destroyer, blowing a vast hole into its side.

The charges also allege that al-Nashiri was in charge of planning and preparation for an attempted attack in the same year on USS The Sullivans as it refueled in the Port of Aden, and for an attack on the French civilian oil tanker MV Limburg in the same port in 2002, which resulted in the death of one crewmember and the release of approximately 90,000 barrels of oil into the gulf. A "referral of charges" by the Military Commissions unit is the mechanism that officially begins the process that leads to the appointment of a military officer as trial judge, who is then required to conduct an arraignment within 30 days of the referral. al-Nashiri's case has been referred for trial as a capital case, meaning he could face the death penalty if convicted. In June the European Parliament urged the US not to seek the death penalty in the case.

Complicating his prosecution is the controversial history of al-Nashiri's detention. Former Central Intelligence Agency (CIA) agents confirmed in 2010 the existence of a secret CIA "black site" in Poland, where al-Nashiri was allegedly waterboarded and subjected to mock executions. According to one agent, al-Nashiri was stripped naked and hooded before a gun and a drill were held close to his head. Section 948r of the Military Commissions Act of 2009 prohibits the use in military courts of evidence obtained through "torture or cruel, degrading or inhuman treatment"—a provision that could mean potential limitations on the prosecutors' ability to use certain evidence if it can be established that al-Nashiri was subjected to such treatment in Poland or at Gitmo. Former Polish prime minister Leszek Miller denied any knowledge of such a facility. Most recently, Polish prosecutors, who began investigating the potential existence of the CIA prison in 2008, asked US officials to question al-Nashiri and fellow detainee Abu Zubaydah about the existence of the facility, saying their testimony was essential to establishing its existence.

From Jurist, Sept. 29. Used with permission.