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April 20, 2011

DOD To Seek Death Penalty For Gitmo Detainee Who Planned USS Cole Bombing

The prosecution of Abd al Rahim al Nashiri will be the first modern capital military commission:

Military officials allege that Nashiri, a Saudi citizen of Yemeni descent, joined al-Qaeda in 1998 and that he was a long-time associate of Osama bin Laden. The military alleged he arranged for two suicide bombers to pull alongside the USS Cole on Oct. 12, 2000, in an explosive-laden boat and detonate it.

The force of the blast ripped a 30-foot-by-30-foot hole in the side of the ship. Seventeen American sailors were killed, and an additional 40 were wounded.

Nashiri was also charged Wednesday with organizing an attack on a French oil tanker in the Gulf of Aden that resulted in the death of a crew member.

The charges are murder, terrorism, attacking civilians, and causing bodily injury all in violation of the laws of war.

This is kind of a big deal. The military courts martial system has handled capital cases before; it's rare, but the UCMJ sets out how to do it. Under the UCMJ, the President must personally approve each execution before it is carried out. The military commissions rules are different and to a great extent are still evolving based on the district court habeas cases that a very divided Supreme Court allowed a few years ago.

I have no idea what the Guantanamo military commissions are capable of handling or whether the President will have to approve a sentence of death. But even beyond the procedural difficulties, Nashiri is one of the prisoners that we know has been waterboarded and subjected to other forms of enhanced interrogation. Do you want to bet that plays a part in his trial?

Update: Perhaps I didn't make this clear enough, what with that big ol' headline up there and, y'know, the content of the post, but this will be a military commission with DOD as both prosecutor and judge and, come to think of it, providing some counsel for the defense as well.

It will not be prosecuted by the Department of Justice and it does not come within AG Holder's reach.

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posted by Gabriel Malor at 07:02 PM

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