The Pentagon announced today that military commissions prosecutors at Gitmo have sworn charges against alleged U.S.S. Cole bomber Abd al Rahim Hussayn Muhammad al Nashiri. While Nashiri had been selected for military commissions prosecution from the beginning, ostensibly because the Cole was a military target, his trial had been delayed leading to complaints from conservatives that the administration was "playing politics." Seventeen servicemembers were killed and 40 injured in the bombing, which took place in Yemen in 2000.
There are a number of reasons why this trial is significant. Al-Nashiri was one of the three "high-value detainees" who was waterboarded, but the CIA Inspector General's report showed that his interrogators had gone beyond the guidelines established by the Bush Office of Legal Counsel. Al-Nashiri was threatened with a power drill, a gun, and told by interrogators that his female family members would be raped in front of him, actions that arguably meet the statutory definition of torture under U.S. law. The lead FBI agent on the Cole case, Ali Soufan, wrote that "not a single piece of evidence that helped us apprehend or convict" 15 of his alleged accomplices in 2004 was obtained from torturing al-Nashiri.
Still, this trial will provide a test case for just how difficult it is to try someone who has been subject to as much abuse as al-Nashiri, and whether a guilty verdict, even if obtained, will stand up given the untested nature of the military commissions system. It also begs the question of what the results of the very limited investigation ordered by Attorney General Eric Holder into the actions of interrogators who went beyond the OLC guidelines are. That investigation was supposed to have been completed last year.
UPDATE: I neglected to mention that this will be the military commission's first capital case -- which also means that one of the systems principal "advantages," non-unanimous jury verdicts, won't apply here.
