The US Department of Defense (DOD) [official website] announced Wednesday that high-value Guantanamo Bay [JURIST news archive] detainee Abd al-Rahim al-Nashiri [JURIST news archive] will be subject to capital charges and tried in a military court [press release]. According to the Pentagon, the chief prosecutor for the DOD's Office of Military Commissions [official website] plans to charge al-Nashiri with orchestrating the 2000 attack on the USS Cole [JURIST news archive] that left 17 dead and 40 injured. The office will also bring charges in connection with an attack that same year on a French oil freighter that claimed the life of one crewmember and spilled 90,000 barrels of oil into the Gulf of Aden. The American Civil Liberties Union (ACLU) [advocacy website] criticized [press release] the DOD's decision to use a military tribunal, calling the system "broken." ACLU National Security Project Director Hina Shamsi said the case is especially troubling given the looming threat of capital punishment:
We are deeply disturbed that the Obama administration has chosen to use the military commissions to try a capital case in which much of the evidence is reportedly based on hearsay and therefore not reliable enough to be admissible in federal court. Allowing hearsay is a backdoor way of allowing evidence that may have been obtained through tortureThe announcement comes after reports emerged [JURIST report] last August indicating that the Obama administration would not pursue a military trial for al-Nashiri, a move the ACLU said demonstrates the "inherent unfairness of the military commissions" [press release]. The DOD refuted the reports at the time.
Complicating the prosecution is the controversial history of al-Nashiri's detention. Former Central Intelligence Agency (CIA) [official website] agents confirmed [Spiegel report] in 2010 the existence of a secret CIA black site [JURIST news archive] in Poland, where al-Nashiri was allegedly waterboarded and subjected to mock executions. According to one agent, al-Nashiri was stripped naked and hooded before a gun and a drill were held close to his head. The allegations led the Open Society Justice Initiative (OSJI) [advocacy website] to launch an abuse investigation [JURIST report] in September 2010. Section 948r of the Military Commissions Act of 2009 [text, PDF] prohibits the use in military courts of evidence obtained through "torture or cruel, degrading or inhuman treatment," a provision that could implicate potential limitations on the prosecutors' ability to use certain evidence if it can be established that al-Nashiri was subjected to such treatment in Poland or at Gitmo. Former Polish prime minister Leszek Miller denied any knowledge of such a facility [JURIST report]. Most recently, Polish prosecutors, who began investigating the potential existence of the Polish CIA prison in 2008, asked US officials [JURIST reports] last month to question al-Nashiri and fellow detainee Abu Zubaydah about the existence of the facility, saying their testimony was essential to establishing its existence.