The Pentagon said Monday it is charging a Saudi Arabian with "organizing and directing" the 2000 bombing of the USS Cole — and will seek the death penalty.
Brig. Gen. Thomas W. Hartmann, legal adviser to the U.S. military tribunal system, said charges are being sworn against Abd al-Rahim al-Nashiri, a Saudi of Yemeni descent, who has been held at the military prison in Guantanamo Bay, Cuba, since 2006.
The charges still must be approved by a Defense Department official who oversees military tribunals set up for terrorism suspects. If they are approved, al-Nashiri he will be the first person charged in the United States in connection with the attack nearly eight years ago.
Hartmann said the allegations include conspiracy to violate laws of war, murder, treachery, terrorism, destruction of property and intentionally causing serious bodily injury.
Seventeen American sailors were killed and dozens wounded when the Navy destroyer was attacked in the Yemeni port of Aden as it refueled.
Al-Nashiri is also accused of a role in the Oct. 6, 2002, suicide attack on the Limburg, a French oil tanker, Hartmann said. The attack killed a Bulgarian crew member and spilled 90,000 barrels of oil into the Gulf of Aden.
Al-Nashiri told a hearing at Guantanamo Bay last year that he confessed to helping plot the Cole bombing only because he was tortured by U.S. interrogators.
CIA Director Michael Hayden said early this year that al-Nashiri was among terrorist suspects subjected to waterboarding in 2002 and 2003 while being interrogated in secret CIA prisons.
Asked at a Pentagon press conference if evidence obtained from the waterboarding is tainted, Hartmann said that would be considered at any trial.
"We will look at the evidence, all of the evidence that is associated with the case," Hartmann said. "While there has been an admission that there was waterboarding, there may well be other evidence in the case. That's not ... necessarily the only part of evidence in the case."
According to U.S. intelligence, al-Nashiri was tasked by Al Qaeda leader Usama bin Laden to attack the Cole, and also was Al Qaeda's operations chief in the Arabian Peninsula until he was caught in 2002.
Hartmann read a charge sheet, alleging the following against al-Nashiri:
— He is a member of Al Qaeda and met with bin Laden on several occasions.
— He rented apartments overlooking the port of Aden in 1999 to prepare for the Cole attack.
— His co-conspirators failed in an attempt to blow up the USS The Sullivans in January of 2000. Al-Nashiri and others salvaged the explosives and refitted the boat from that plot, then he went to Afghanistan to discuss reorganization of the plot with bin Laden.
— When the Cole entered the port on Oct. 12, 2000, al-Nashiri's co-conspirators piloted the boat next to the U.S. ship and detonated explosives that blasted a 40-foot hole in the Cole's side.
At his hearing last year, al-Nashiri acknowledged meeting with bin Laden many times and received as much as a half million dollars. The money, he said, was used for personal expenses, including for marriage and business deals.
Al-Nashiri said he told interrogators that he used some of the money to buy explosives used to bomb the Cole, but in reality he said he gave the explosives to friends to help dig wells. He said he confessed to involvement in several other terror plots in order to get the torture to stop — including the 2002 bombing of the French oil tanker Limburg, plans to bomb American ships in the Gulf, a plan to hijack a plane and crash it into a ship and that bin Laden had a nuclear bomb.
"From the time I was arrested five years ago, they have been torturing me. It happened during interviews. One time they tortured me one way, and another time they tortured me in a different way," al-Nashiri said, according to the transcript. "I just said those things to make the people happy. They were very happy when I told them those things."
Asked why it had taken nearly eight years for the U.S. to charge anyone in the bombing, Hartmann said it takes time to gather and prepare evidence.
Another one of the alleged masterminds in the bombing — Jamal al-Badawi — was convicted in 2004 in Yemen of plotting, preparing and helping carry out the Cole bombing. He is wanted by the FBI, but Yemeni officials have said it is against their constitution to hand him over to the U.S.
The Bush administration maintains waterboarding was legal when it was used by CIA interrogators in 2002 and 2003 on al-Nashiri and top Al Qaeda detainees Khalid Sheikh Mohammed and Abu Zubaydah. Hayden said waterboarding was used, in part, because of widespread belief among U.S. intelligence officials that more catastrophic attacks were imminent.
The CIA banned its personnel from using waterboarding in 2006.