The Obama administration has delayed the trial by military commission of Abd al Rahim al Nashiri, the mastermind of the USS Cole attack, according to the Washington Post. The Defense Department denies this, saying in a statement that prosecutors “are actively investigating the case against Mr. al-Nashiri and are developing charges against him.”
Is it taking this long to prepare for Nashiri’s trial – nearly ten years after the Cole was attacked and 17 American servicemen were killed?
That’s hard to believe. And the Post talked to some “military officials” who “said a team of prosecutors in the Nashiri case has been ready [to] go to trial for some time.” Here is the kicker:
"It's politics at this point," said one military official who spoke on the condition of anonymity to discuss policy. He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantanamo Bay.
A White House official disputed this, but the Post did not offer any other good reason for the delay.
Is the Obama administration really holding up Nashiri’s trial because they want to make sure civilian trials for other detainees (i.e. the 9/11 co-conspirators) don’t lag behind?
That’s not so hard to believe, unfortunately. The administration has tried to please left-wing human rights groups by (initially, anyway) pushing forward with a federal criminal trial for top al Qaeda terrorists such as Khalid Sheikh Mohammed. If Nashiri’s trial by military commission moves faster than KSM’s trial by federal court, then the administration may have a PR problem.
The Post reports the usual caveat: Nashiri was waterboarded (one of only three al Qaeda terrorists who were subjected to that treatment) and this complicates things “because any incriminating statements Nashiri might have made are probably inadmissible under the 2009 Military Commissions Act.” As a result, prosecutors will be relying heavily on the statements of two Yemeni detainees, both of whom implicated Nashiri during interviews with the FBI.
But here’s the catch. When Nashiri testified before his combatant status review tribunal (CSRT) at Gitmo he made all sorts of admissions. Those concessions cannot be easily dismissed because they weren’t part of an interrogation. Nashiri was free to say whatever he wanted in response to the allegations, and he did.
Nashiri did not admit outright that he conspired with Osama bin Laden. Instead, Nashiri offered implausible explanations for his sordid history. In particular, Nashiri admitted that he met with Osama bin Laden often, but said this was in the context of his fishing business.
Here is an excerpt from Nashiri’s CSRT (emphasis added):
Tribunal Member: How many times did you meet Osama bin Laden and did you take money from him every time?
Nashiri: Many times. I don't remember what year I met Osama bin Laden. What year, I don't remember. I don't remember what year. Maybe 96 or 95. And during that time whenever [I] went to Afghanistan I just stop by and visited him. And if I needed money I would just ask him and he would give money to me.
Tribunal Member: What was the money used for? And, how much did you take?
Nashiri: Personal expenses. Many times I would tell, give me three of four thousand dollars and he would give them to me. And I use them as personal expenses. When [sic] went to have a project in Yemen, I took money from him several times. I don’t know the total amount of money. Maybe ten thousand. After that five thousand. And the second project after that. After the Cole incident ended[,] I wanted to have a fishing project in Pakistan and a wooden ship in Dubai. I also ask Usama bin Laden to support me. …So the bottom line is that I took money from Usama bin Laden for a fishing project. I was under the impression that the project was mine. And it was a fishing project. I didn’t care about Usama bin Laden. If the project succeeded, I would have paid the money back to Usama bin Laden. That’s it. I understood it as being a loan. But when he told me that we could use this for bombing something…
Nashiri goes on to say that he pulled out of the deal with bin Laden when the terror master started talking about using Nashiri’s fishing boat for, you know, terrorism – just as al Qaeda did in the attack on the USS Cole.
Nashiri conceded that he knew the Cole plotters (“…I got to know the people who were involved in the explosion”), but claimed that they were part of his fishing enterprise (“We were also, we were planning to be involved in a fishing project”). Nashiri also conceded that he used money from Osama bin Laden to purchase explosives, but said the explosives were going to be used to dig wells.
Again, here is an excerpt from the transcript of Nashiri’s CSRT (emphasis added):
Nashiri: …I used to stop by Usama bin Laden and take some money. Also regarding the explosions in Sa’ada because this is not connected it had nothing to do with COLE bombing. It’s the truth that during the investigation I admitted to. I told them that I took some money then I gave it to somebody to buy, to buy explosives. That’s, this, this thing [sic] news in general is true. But during the investigation I told them yes I took this money and to get involved in some bombings. But in reality I took them and I gave them to my friend…In Yemen they use that to dig wells. So buying explosives is a common thing.
Finally, Nashiri admitted that he was in Afghanistan with bin Laden when the U.S.-led invasion of Afghanistan began in late 2001.
Tribunal Member: So you were with [Osama bin Laden] in Afghanistan in late 2001 and into 2002?
Nashiri: I don’t remember [the] exact date. But I remember when the war started. When you went into Afghanistan, when you interfered in Afghanistan. I was in Kabul during that time. And I saw Osama bin Laden during that time.
It is understandable that Nashiri’s confessions made during the CIA’s interrogations and debriefings are not admissible. Such confessions are certainly inconsistent with Western standards in any courtroom, whether it is a federal court or a military commission. This does not mean that the intelligence Nashiri supplied the CIA was worthless. Quite the contrary, it is clear that Nashiri provided valuable, actionable intelligence.
But Nashiri’s CSRT testimony was not the result of coercion. He did not come out and admit that he was a high-ranking al Qaeda leader responsible for the Cole attack. Instead, when he was confronted with damning allegations, Nashiri admitted the core details but then superimposed less than creative explanations for them.
Reading through Nashiri’s CSRT transcript, we are left with two worlds.
In one world, Nashiri met with Osama bin Laden “many times” during the course of his terrorist career from the mid-1990s onward, took cash from bin Laden that was used to buy explosives and other supplies, consorted with the terrorists who carried out the Cole operation, invested in boats (like the one used to bomb the Cole with bin Laden’s assistance), and continued to consort with al Qaeda’s CEO even after the U.S.-led invasion of Afghanistan.
In the other world, all of this happened but it has an innocuous explanation: It was all part of Nashiri’s fishing business.
It is hard to imagine any commission (or federal jury for that matter) buying Nashiri’s “gone fishing” story. It should be easy for prosecutors to shoot down Nashiri’s absurd cover story.
Thomas Joscelyn is a senior fellow at the Foundation for Defense of Democracies.
