Alleged al Qaeda senior leader Abd al-Rahim al-Nashiri [NYT profile; JURIST news archive] made his first court appearance [materials] Wednesday, his first public appearance since he was captured in Dubai in 2002. Nashiri is charged with war crimes [NYT report] under the Military Commission Act of 2009 [text, PDF] relating to the bombing of the USS Cole in 2000 which killed 17 men, the bombing of the MV Limburg in 2002 and a failed plot to attack an American warship, The Sullivans, in 2000. Nashiri declined to enter a plea Wednesday. Counsel for Nashiri apparently plans to argue that evidence is unreliable due to the torture Nashiri endured, is circumstantial and is hearsay. Even if Nashiri is convicted, his defense will likely argue that the death penalty is inappropriate because of the mitigating factor that he was tortured while in US custody. Nashiri allegedly endured being threatened with a power drill during a mock execution, having threats levied against mother and waterboarding while in US custody. The defense will also challenge the jurisdiction of the military commission. Military commissions are only permitted to try war crimes committed during armed conflict, but both the bombing of the USS Cole and the attempted bombing of The Sullivans occurred before the Authorization to Use Military Force [text, PDF] after 9/11 [JURIST news archive]. Critics contend that Nashiri and other Guantanamo detainees should be tried in federal district court [Huffington Post report] rather than military commissions because the federal courts do not have the jurisdictional issues and the relaxed evidentiary requirements that the military commissions have.
Nashiri has been at the center of controversy for many years. In May, lawyers for Nashiri filed suit against Poland [JURIST report] over his supposed torture in a secret CIA prison [JURIST news archive] in the country. In 2007, Nashiri declared that his confession to orchestrating the USS Cole bombing was elicited under torture [JURIST report]. Nashiri, along with fellow militant Jamal al-Badawi [FBI backgrounder], was sentenced to death [JURIST report] by a Yemeni court in 2004 for his role in the attack on the Cole.