GUANTANAMO BAY NAVAL BASE, Cuba – A Saudi charged in the attacks on the USS Cole and a French oil tanker will face a judge after nearly a decade of confinement shrouded in secrecy, first in a network of clandestine CIA prisons and then in a section of Guantanamo considered so sensitive even its location on the base is classified.
Abd al-Rahim al-Nashiri, 46, is to be arraigned before a military judge Wednesday on charges that include murder in violation of the law of war. He could get the death penalty if convicted at a trial that won't start for months, if not years, because of the expected drawn out legal battle over what evidence can be used against him considering his treatment while in custody.
His lawyers argue a legitimate trial will be impossible, and the death penalty should be out of the question since he was subjected to intense interrogation that included mock executions, threats to his family and the simulated drowning technique known as waterboarding while held at CIA "black sites" overseas.
"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."
Al-Nashiri is the first Guantanamo prisoner to be charged with war crimes that carry a potential death sentence since President Barack Obama took office pledging to close the detention center, an effort thwarted by members of Congress who object to moving the prisoners to the U.S.
The trial of al-Nashiri will take place under military commissions that have been revised by Congress and the Obama administration but are still subject to criticism from defense lawyers and human rights groups.
Some 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 Qaeda.
But the main focus in al-Nashiri's case will be his treatment, which Army Brig. Gen. Mark Martins, the new chief prosecutor, addressed indirectly, saying that only statements given voluntarily can be used against defendants in military commissions with only a narrow exception for things they said at the time of capture.
"No statement obtained as a result of cruel, inhuman or degrading treatment is admissible," Martins said. "... I'm bound by that. That's not just something the court is bound by. I will not seek, nor will prosecutors who work for me seek to introduce statements of that character."
Rick Kammen, one of al-Nashiri's lawyers, said prosecutors have not revealed whether they have any incriminating statements from his client that could be considered voluntary but said anything he told interrogators following nearly four years of CIA detention should be considered questionable.
"The way to think of it is this: People who have been subjected to serious trauma, the trauma doesn't end at the time the event is over," he said.
Al-Nashiri is accused of hiring and training the Al Qaeda militants, allegedly at the behest of Usama bin Laden, to use an explosive-laden boat to blast a huge crater in the side of the USS Cole, killing 17 sailors and wounding 37 in an attack that brought Al Qaeda to the attention of many Americans for the first time
He is also accused of setting up the October 2002 bombing of the French supertanker MV Limburg, which killed one crewman, among other offenses. He was captured in 2002 in Dubai and taken to Guantanamo, held by the CIA in a series of secret prisons and 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, 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.
Kammen said that he is barred by military rules from revealing anything that his client has said to him but said al-Nashiri is eager for his day in court. "I think you will find that in many respects he is relieved to be in court and have the process beginning."
There have been six war crimes convictions at Guantanamo, including four suspects who reached plea bargains and one who refused to show up for his trial and mount a defense and received a life sentence. There are now 171 prisoners at the base.