USS Cole bombing case called 'too tainted' for death penalty trial

The military’s case against a former Saudi millionaire accused of masterminding the 2000 bombing of the USS Cole is tainted by delay, torture and destruction of evidence, lawyers argued Friday in a bid to spare the Guantánamo captive a death penalty trial.

While he was held in a secret CIA prison, an agent revved a power drill near the head of a naked, hooded Abd al Rahim al Nashiri, who was also subjected to water boarding, a technique that Attorney General Eric Holder has called torture.

Now it will be up to retired Navy Vice Adm. Bruce MacDonald to decide whether Nashiri, 46, could be subjected to military execution if a Guantánamo jury convicts him for the al Qaida suicide bombing off Yemen. Seventeen American sailors were killed, dozens more wounded and the $1.1 billion warship was crippled in the October 2000 explosion.

“The United States should not be permitted to kill a man it has brutally tortured and subjected to cruel, inhuman and degrading treatment,” his American defenders wrote in a 21-page brief.

Pentagon prosecutors filed capital murder, terror and treachery charges against Nashiri in April.

Nashiri lawyer Rick Kammen said Friday that, unlike in the civilian system, the government provided no case evidence for defense lawyers preparing their argument on why MacDonald should not approve a death penalty trial.

Under Obama era reforms for military commissions, Nashiri’s Navy defender, Lt. Cmdr. Stephen Reyes, sought and got Pentagon funding to hire Kammen, an Indianapolis attorney who has worked as a defender on some 30 federal death penalty cases. The brief was signed by Kammen, Reyes and an Air Force Maj. Allison Danels, like Reyes a judge advocate general.

Nashiri was captured in the United Arab Emirates in November 2002 and held in secret CIA custody overseas for nearly four years. CIA internal investigations made public in Congress and through the Freedom of Information Act revealed the power-drill episode, threats to harm his family, and use of the near-drowning technique called waterboarding — all intended to get him to cooperate during interrogation.

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