The first military tribunal of a terrorism suspect at Guantanamo Bay since President Obama was elected is a lose-lose proposition for the accused, a Saudi suspect who has been in U.S. custody for nearly a decade.

If convicted of directing the bombing of the U.S. destroyer Cole in October 2000, Abd al Rahim al Nashiri could be sentenced to death. But even if he is acquitted of all charges, he can be held indefinitely as an “enemy combatant.”

The unusual proceeding, which opens Wednesday at the prison in Cuba, highlights a continuing legal and ethical dilemma for the Obama administration. Congress barred detainees from being transferred to civilian courts. But the administration remains determined to bring high-profile terrorism suspects, including several of the original Sept. 11 plotters, to some form of judicial review.

If Nashiri, now 46, attends the hearing, it will mark the first time he has been seen in public since he was captured by CIA operatives in Dubai in 2002. He was held in a secret CIA “black site” prison for four years before being moved to Guantanamo in 2006.


In fall 2002, while in CIA custody, Nashiri was waterboarded twice and threatened with a power drill and a loaded handgun in what critics called a mock execution, according to a declassified report by the CIA inspector general. It said that a CIA interrogator later threatened Nashiri by saying that if he didn’t talk, “we could get your mother in here.”

Nashiri later repudiated what he called false confessions he said he was coerced to give while being physically abused. New rules prohibit prosecutors from submitting evidence obtained by methods widely considered to be torture.

Nashiri’s lawyers and some civil liberties experts have denounced the military proceeding as a sham that does not comport with America’s values regarding justice.

“That’s the $64,000 question: Why go through all the time and expense of the commission process if no matter what happens he will still be held in Guantanamo?” said Stephen I. Vladeck, a law professor at American University in Washington.


On Monday, the military released 202 pages of revised procedures for the first military commission of the Obama administration.

“This is yet another example of how when you try to build a system from scratch you are writing the rules as you go,” said Jamil Dakwar, a human rights attorney for the American Civil Liberties Union, who observed several military tribunals during the George W. Bush presidency. “This does not serve justice.”

As a presidential candidate, Obama promised to close the detention camp at Guantanamo within a year of taking office, saying the legal framework behind the system had “failed completely.” After his election, he immediately suspended the military tribunals of terrorism suspects that were begun under Bush.

At least 70 detainees were deported to their home countries since then, compared with about 500 during the Bush administration. But Obama’s efforts to close the facility or shift prosecutions into civilian courts ran into stiff opposition in Congress.


The issue came to a head after U.S. Atty. Gen. Eric H. Holder Jr. proposed trying Khalid Shaikh Mohammed, the self-professed mastermind of the Sept. 11, 2001 attacks, in federal court in New York. The administration backed down after Congress passed a law in January that forbade transferring prisoners from Guantanamo Bay to face trial in U.S. civilian courts.

The Nashiri tribunal will be different from previous commissions, however.

Rules enacted during the Obama administration guarantee detainees access to legal council and more access to classified information in preparing their defense. The administration also has promised to make the proceedings more open to the public.

As a result, the Nashiri hearing will be the first to be shown on closed circuit TV. Journalists and legal observers will be able to watch at Fort Meade, Md., while survivors and family members of the victims of the Cole attack will be able to watch at a U.S. naval station facility in Norfolk, Va.


On Oct. 12, 2000, suicide bombers rammed a small boat packed with explosives into one of America’s newest and most advanced destroyers as it lay at anchor in the Yemeni port of Aden, killing 17 U.S. sailors and wounding about 40 others.

Nashiri allegedly headed Al Qaeda operations in the Persian Gulf and the gulf states and reported directly to Osama bin Laden. He faces charges of murder, conspiracy and terrorism.

Nashiri is also charged with orchestrating the 2002 attack on the Limburg, a French civilian oil tanker, and with planning an attack on the U.S. destroyer The Sullivans in the Aden harbor in 2000. That attack failed when the small boat carrying the bomb capsized.

Nashiri was “one of Al Qaeda’s most skilled, capable and prolific operational coordinators,” according to a 2006 military assessment that was made public by WikiLeaks.


The assessment, based on intelligence reports and interrogations of other Guantanamo inmates, described Nashiri as “so dedicated to jihad that he reportedly received injections to promote impotence and recommended the injections to others so more time could be spent on jihad” rather than being distracted by women.

brian.bennett@latimes.com