The USS Cole was heavily damaged by explosives on Oct. 12, 2000. | REUTERS Cole attack survivors angry at Obama

The 10th anniversary of the bombing of the USS Cole on Tuesday conjured up painful memories for the families of the 17 Navy sailors who died in the terrorist attack, but it also revealed simmering anger at the Obama administration over the lack of concrete progress in bringing an alleged perpetrator to justice.

In February 2009, less than three weeks after his inauguration, President Barack Obama held an emotional meeting with family members of victims of the Cole bombing and the Sept. 11, 2001, attacks. Families said the new president promised swift action yet pleaded for their patience so his aides and Congress could overhaul the military commission system – which federal courts twice invalidated during the Bush administration.


Yet 20 months later, there are few signs the case against Saudi-born Abd Al-Rahim Al-Nashiri – the alleged mastermind of the Cole bombing who was captured in 2003 – has moved forward.

Last November, Attorney General Eric Holder announced that the case would be sent for trial to a newly constituted military commission. Nearly a year has passed since then, with no new charges against Al-Nashiri and no official word when – or if – any might be forthcoming.

“Nothing has moved. There has been talk about the military commission…nothing appears to be happening because of politics, not because there are legal considerations holding it up within the court system,” said Kirk Lippold, who was commander of the Cole when suicide bombers in an explosive-laden boat struck it during a refueling stop in Yemen. “That frustrates people more than anything else.”

“At the time, we felt the president was being real positive about it,” John Clodfelter, who attended last February’s White House meeting, told POLITICO Tuesday. His son, Kenneth, 21, was among the sailors killed in the Cole attack a decade ago. “The president told us he wanted to figure out what was supposed to be done versus what was actually being done.”

In the months since, the elder Clodfelter’s good feeling toward Obama and his team has evaporated.

“I don’t know what the problem is,” said Clodfelter, who complained he has had difficulty getting the White House or Justice Department to update him on the case. “Things have not happened the way they gave the impression they’d happen…They were supposedly going to have an open door policy. I don’t know if that was a lot of B.S. or what.”

During a news briefing Tuesday, White House press secretary Robert Gibbs said various government agencies are still discussing Al-Nashiri’s case. “There's an inter-agency process that is being worked through, and certainly our hope is, now that we have a reformed commission system, that it's a process that can start soon,” Gibbs said.

Gibbs said he couldn’t offer any details on when the prosecution might begin, but the White House remains confident Al-Nashiri will stand trial.

“Obviously, our viewpoint is that somebody who did harm to American servicemen 10 years ago will be and should be brought to justice. That was our goal in reforming the military commission system, and I believe in this case we will see justice done,” Gibbs said.

Yet the state of Al-Nashiri’s case before the military commission seems to have been the subject of some confusion, even within the government. On Aug. 23, federal prosecutors filed a legal brief that suggested the potentially explosive case had been sidetracked indefinitely.

“No charges are either pending or contemplated with respect to Al-Nashiri in the near future,” the brief filed in the U.S. Court of Appeals for the D.C. Circuit said.

Four days later, after the Washington Post reported the statement, the Justice Department filed an amended brief which changed that conclusion, saying: “No charges are currently pending against Al-Nashiri.”

Another Justice filing last month added a bit more. “Although prosecutors in the Office of Military Commissions are actively investigating the case and developing charges against Nashiri,” it reads, “no charges are currently lodged against him.”

Some family members of victims and former Cole crewmembers believe Al- Nashiri’s case has been swept up in deliberations over the politically charged plans to try five other Guantanamo prisoners suspected in the Sept. 11, 2001 terrorist attacks.

Last November, when Holder announced the Cole case would go back to a military commission, he also announced that the 9/11 suspects held in Guantanamo Bay would be tried in civilian court in New York – a plan that triggered a firestorm of criticism. The plan for the Sept. 11 suspects fell apart earlier this year as a result.

Obama is said to be still considering whether those men should stand trial in civilian court or before a military commission. Some observers believe the White House is reluctant to authorize a high-profile military commission trial – a system the president criticized on the campaign trail in 2008 – without a similarly high-profile counterpart on the civilian side.



“I will never forget meeting with some of the families of the victims of this bombing in February 2009. I am deeply grateful to them for their sacrifice, and their efforts to keep the memory of this tragic event alive in our nation’s conscience,” Obama said in a written statement Tuesday that did not address the issue of prosecutions related to the attack. “We pay tribute on this day to the courage and sacrifice of those who lost their lives in this attack, and to their families.”



However, others point to factors that make the Al-Nashiri case more complex than other terrorism-related prosecutions.

Held in secret “black site” prisons overseas and later transferred to Guantanamo, Al-Nashiri is one of three men known to have been water-boarded – a harsh technique that simulates drowning – by the Central Intelligence Agency under the Bush administration’s enhanced interrogation program. Critics say the program was government-sanctioned torture; last week, a federal judge invalidated a key government witness in another major terror case because information about the witness was obtained through coercion.

But Al-Nashiri was subjected to other aggressive tactics that pushed past the limits authorized by the Justice Department’s Office of Legal Counsel at the time.

While in CIA custody, government agents threatened him with a power drill and an unloaded gun. Last year, Holder authorized a special prosecutor to conduct a new inquiry to determine if similar unauthorized interrogation methods crossed the line into criminal conduct.

While Defense Department officials insist that they are moving on Al-Nashiri’s case with deliberate speed, they face a problematic scenario: a CIA officer or contractor who had contact with Nashiri could be indicted or even enmeshed in a serious criminal investigation. Because Al-Nashiri is entitled to a vigorous defense, his lawyers will probably demand everything the government knows about the abuse of their client – information that could compromise the prosecution's case and potentially even lead to the Cole suspect's acquittal.

At the same time, any witnesses to Al-Nashiri’s rough treatment are also likely to assert the Fifth Amendment rights against self-incrimination while the Justice probe continues. In theory, that could mean a military prosecution of Al-Nashiri could end up on a collision course with the Justice Department’s investigation.

White House defenders note that at least some of those problems stem from the Bush administration decision to change the rules on interrogations, at the expense of information that could be used in court. Others familiar with the case blame Obama’s predecessor for failing to bring the co-conspirators in the Cole attack to justice in the U.S. – particularly after some were tried in Yemen and sent to prison but either escaped or were released shortly afterward.

Some of the military prosecutors who are wrestling with the Al-Nashiri case attended a reunion for former Cole crew members over the weekend and a memorial service Tuesday at a naval base in Norfolk, Va., two sources told POLITICO. In a briefing for crew members, the prosecutors said they are continuing to sift through evidence and hope to move forward with it soon, but they did not explain the delays or specify when charges would be filed, the sources said.

During the memorial service Tuesday, a top Navy officer praised the courage of the Cole’s crew but also hinted at the anger and frustration of some survivors, who feel they have been forgotten in the wake of the massive Sept. 11 attack.

“At the worst of times, you showed us the best of our Navy. We will never forget what you did,” Admiral J.C. Harvey Jr. told them. “Our war on terror began on 12 October 2000 at 11:18 in the morning,” a year before 9/11, and half a world away.

Lippold, the former commander, said the sentiment that their fate has been overlooked – by the Obama Administration, the Bush Administration and the country as a whole – is widespread among the former crew.

“They feel like the Cole has always been treated as a forgotten or ignored attack, obviously overshadowed by 9/11,” Lippold said. “There is just a sense of discouragement mixed with frustration hinged with a bit of anger.”

“It seems like anything is more important than the attack on the Cole,” Clodfelter said.