Abd al-Rahim al-Nashiri

In April 2019, a three judge panel of the United States Court of Appeals for the District of Columbia Circuit vacated all orders issued by Air Force Colonel Vance Spath, the presiding military judge over al-Nashiri's case from November 2015, on the grounds that Spath had failed to properly disclose his ongoing employment negotiations with the Department of Justice to al-Nashiri.

Although a principle so basic to our system of laws should go without saying, we nonetheless feel compelled to restate it plainly here: criminal justice is a shared responsibility. Yet in this case, save for Al-Nashiri’s defense counsel, all elements of the military commission system—from the prosecution team to the Justice Department to the CMCR to the judge himself—failed to live up to that responsibility.

Al-Nashiri was tortured under the supervision of current Director of the CIA Gina Haspel. A Navy Reserve doctor who interviewed him described him as "one of the most severely traumatized individuals I have ever seen". In August 2018, cables from the secret detention site overseen by Haspel, dating from November 2002 and likely authorized by if not written by her, were released because of a Freedom of Information lawsuit, and they describe the torture of Nashiri in detail, including slamming him against a wall, confining him to a small box, waterboarding him, and depriving him of sleep and clothing, as well as threatening to turn him over to others who would kill him and calling him “a little girl,” “a spoiled little rich Saudi,” and a “sissy.”

On October 2018, al-Nashiri petitioned the United States Court of Appeals for the District of Columbia Circuit for a writ of mandamus and prohibition, seeking a vacatur of all military commission orders issued by Colonel Spath. Al-Nashiri argued that inter alia, Spath had failed to disclose his job application to the Department of Justice and the subsequent employment negotiations concerning an open position for an immigration judge in the Executive Office for Immigration Review, which created an appearance of bias, disqualifying Spath from presiding over al-Nashiri's military commission. Spath had retired on November 1, 2018, and was appointed by Attorney General Jeff Sessions as an immigration judge in October 2018. After oral arguments were held before a panel consisting of Judge Rogers, Tatel, and Griffith, the Court vacated all orders issued by Spath, concluding that "Spath’s job application to the Justice Department created a disqualifying appearance of partiality". In writing for a unanimous court, Tatel wrote:

On July 24, 2014, the European Court of Human Rights (ECHR) ruled that Poland violated the European Convention on Human Rights when it cooperated with the U.S. by allowing the CIA to hold and torture al-Nashiri and Abu Zubaydah on its territory in 2002–2003. The court ordered the Polish government to pay each of the men 100,000 euros in damages. Additionally, the ECHR ordered the Polish government to disclose details of the men's detention and to seek diplomatic assurances from the United States that al-Nashiri will not be executed. On the 31 May 2018, in the Case of Al Nashiri v. Romania (Application no. 33234/12) the Court claimed Romania was complicit in CIA rendition and had suffered various ECHR violations. It stated the following in its rulings;

On 31 May 2018, the ECHR ruled that Romania and Lithuania also violated the rights of Abu Zubaydah and Abd al-Rahim al-Nashiri in 2003-2005 and in 2005-2006 respectively, and Lithuania and Romania were ordered to pay 100,000 euros in damages each to Abu Zubaydah and Abd al-Nashiri.

On October 18, 2016, the new military judge, Air Force Colonel Vance Spath took a step that Stephen Vladeck, a law professor and national security expert described as "unprecedented". Spath had United States Marshals take Stephen Gill, into custody, to compel him to testify at a pre-trial hearing.

On February 18, 2014, al-Nashiri attempted to fire his counsel, Rick Kammen. Judge Pohl granted a recess until February 19, 2014, to allow Kammen to attempt to repair the relationship with his client. If the two are unable to overcome their differences, al-Nashiri would be permitted to fire Kammen under current military commission rules.

In August 2014, al-Nashiri's military trial judge dismissed the charges relating to the M/V Limburg bombing. The Government appealed to the United States Court of Military Commission Review and al-Nashiri then petitioned the United States Court of Appeals for the District of Columbia Circuit for a writ of mandamus disqualifying the military judges. In June 2015, Circuit Judge Karen L. Henderson, joined by Judges Judith W. Rogers and Nina Pillard denied al-Nashiri's petition.

Al-Nashiri then sued President Barack Obama in the United States District Court for the District of Columbia, seeking an injunction preventing proceedings in his military commission trial until his writ of habeas corpus had been resolved. In December 2014, U.S. District Judge Richard W. Roberts held the case in abeyance pending resolution of al-Nashiri's military commission trial and so denied as moot al-Nashiri's lawsuit against the President. Judge Roberts reasoned that the abstention doctrine announced in Schlesinger v. Councilman (1975), which required judicial review of an ongoing court-martial to wait until it is completed, also applied to al-Nashiri's military commission. In August 2016, D.C. Circuit Judge Thomas B. Griffith, joined by Judge David B. Sentelle, affirmed that judgment, over the dissent of Judge David S. Tatel.

Presiding Officer James Pohl ruled on February 7, 2013, that an independent panel of mental health experts should examine Al Nashiri, and report on how the documented torture he was subjected to would affect his ability to assist in his own defense. Pohl called for the director of the Walter Reed National Military Medical Center to nominate the members of examination team. He called for the team to report back by April 1, 2013. The team is supposed to be given full access to al Nashiri's medical files, including the top secret records from his times in CIA custody. The assessment was requested by the prosecution.

Al Nashiri's defense team objected to the assessment, based on their doubts that a team appointed by the Office of Military Commissions could be relied upon. They called for the team to rely on the advice of Vincent Iacopino for how to interview Al Nashiri, without causing additional damage. Iacopino, a renowned expert on torture, had testified before the Military Commission on February 5, 2013 about the possible effects of torture on Al Nashiri.

Presiding Officer James L. Pohl considered several motions during a pre-trial hearing on April 11, 2012. He deferred rulings on many of them. He did rule to unshackle al-Nashiri for meetings with his lawyers, who had argued that he was traumatized by being shackled for years in secret CIA prisons and that being shackled during meetings impairs his ability to work with his lawyers.

On May 8, 2012, Ali Soufan, al-Nashiri's original FBI interrogator, asked whether a recently published book by former CIA official Jose Rodriguez would undermine al-Nashiri's prosecution. Soufan's original FBI interrogation used the time-tested, legal technique of rapport-building. He has argued that the information derived from the suspect using this technique was reliable, whereas the confessions derived through torture were not.

In May 2011, al-Nashiri's lawyers filed a case against Poland with the European Court of Human Rights. They said that Al-Nashiri was held and allegedly tortured in a secret CIA "black site" prison "north of Warsaw" (OSAW) from December 2002 to June 2003 with the collaboration or consent of the Polish government.

The prosecution planned to request the death penalty for al-Nashiri. The decision lies with the Convening authority, retired Admiral Bruce MacDonald. In April 2011, the Department of Defense allowed Richard Kammen, a civilian lawyer with a background in defending suspects against death penalty cases, to join al-Nashiri's defense team.

In a letter in July 2011, al-Nashiri's legal team said:

On October 24, 2011, Lieutenant Commander Stephen Reyes filed a legal motion requesting that jurors in his case be informed that he may be detained in Guantanamo, even if he was acquitted of all charges. Al-Nashiri's formal charges are scheduled to be announced at the Tribunal on November 9, 2011.

In 2011, Vice Admiral Bruce E. MacDonald convened a Guantanamo military commission under the Military Commissions Act of 2009 to try al-Nashiri for the bombing of the USS Cole and the M/V Limburg and the attempted bombing of the USS The Sullivans (DDG-68). Al-Nashiri then sued Vice Admiral MacDonald in the United States District Court for the Western District of Washington to block the commission and in May 2012, U.S. District Judge Robert Jensen Bryan rejected al-Nashiri's claim. That judgment was affirmed by United States Court of Appeals for the Ninth Circuit Judges M. Margaret McKeown, Arthur Lawrence Alarcon, and Sandra Segal Ikuta in December 2013.

It was reported on August 22, 2009, that al-Nashiri was the subject of what is described as a mock execution during his torture by the CIA. A power drill and a handgun were used.

On January 29, 2009, an order from US president Obama's administration to suspend all Guantanamo military commission hearings for 120 days was overruled by military judge Army Colonel James Pohl in al-Nashiri's case.

On February 5, 2009, al-Nashiri's charges were withdrawn without prejudice.

In December 2008, al-Nashiri was charged by the United States before a Guantanamo Military Commission. The charges were dropped in February 2009 and reinstated in 2011. As of 2011, al-Nashiri is on trial before a military tribunal in Guantanamo on charges of war crimes that carry the death penalty. As it is extremely unlikely he would be freed if found not guilty, his lawyers have called the proceeding a show trial.

The Department of Defense announced on August 9, 2007 that all fourteen of the "high-value detainees" who had been transferred to Guantanamo from the CIA's black sites, had been officially classified as "enemy combatants". Although judges Peter Brownback and Keith J. Allred had ruled two months earlier that only "illegal enemy combatants" could face military commissions, the Department of Defense waived the qualifier and said that all fourteen men could now face charges before Guantanamo military commissions.

Abd al-Rahim al-Nashiri was interrogated numerous times. At a 2007 hearing in a military court, he attributed his confessions of involvement in the USS Cole bombing to torture, including waterboarding. The details of torture that Nashiri offered at the hearing were redacted from the transcript.

During the course of his tribunal, he claimed to have made additional confessions under the duress of torture. He was ostensibly the last of the al-Qaeda suspects to be videotaped, as he was waterboarded in Thailand by CIA officers who questioned him. Shortly after, when a prisoner died in CIA custody in Iraq, the government agents decided against videotaping such interrogations, as this provided criminal "evidence" if things went wrong. All the CIA tapes showing detainees being waterboarded were destroyed in 2005.

In November 2002, al-Nashiri was captured in the United Arab Emirates. He is in American military custody in the Guantanamo Bay detention camp, having previously been held at some secret locations. On September 29, 2004, he was sentenced to death in absentia in a Yemeni court for his role in the USS Cole bombing.

Al-Nashiri was captured in Dubai in 2002 and held for four years in secret CIA prisons known as "black sites" in Afghanistan, Thailand, Poland, Morocco, and Romania, before being transferred to the Guantanamo Bay detention camp. While being interrogated, al-Nashiri was waterboarded, a technique since classified as torture. In 2005 the CIA destroyed the tapes of Nashiri's waterboarding. In another incident he was naked and hooded and threatened with a gun and a power drill to scare him into talking. Al-Nashiri was granted victim status in 2010 by the Polish government and a Polish prosecutor began "investigating the possible abuse of power by Polish public officials with regard to a CIA black site" in 2008.

The next attempt was the USS Cole bombing, which was successful. Seventeen U.S. sailors were killed, and many more were injured. This terrorist attack made al-Nashiri prominent within al-Qaeda, and he allegedly was made the chief of operations for the Arabian Peninsula. He organized the Limburg tanker bombing in 2002 of a French-flagged vessel off Yemen, and he may have planned other attacks as well.

Finally, probably in 1998, al-Nashiri is alleged to have joined al-Qaeda, reporting directly to bin Laden. In late 1998, he conceived of a plot to attack a U.S. vessel using a boat full of explosives. Bin Laden personally approved of the plan, and provided money for it. First, al-Nashiri allegedly attempted to attack USS The Sullivans as a part of the 2000 millennium attack plots, but the boat he used was overloaded with explosives and began to sink.

When he returned to Afghanistan in 1997, he again met bin Laden, but again declined to join in the terrorist group. Instead, he fought with the Taliban against the Afghan Northern Alliance. Still, he assisted in the smuggling of four anti-tank missiles into Saudi Arabia, and helped arrange for a terrorist to get a Yemeni passport. His cousin, Jihad Mohammad Ali al-Makki, was one of the suicide bombers in the 1998 U.S. embassy bombings in Kenya.

Born in Saudi Arabia, al-Nashiri travelled to Afghanistan in the early 1990s to participate in attacks against the Russians in the region, at a time when the United States supported the mujahideen in such actions. In 1996, he travelled to Tajikistan and then Jalalabad, Afghanistan, where he first met Osama bin Laden. Bin Laden attempted to convince al-Nashiri to join al-Qaeda at this point, but he refused because he found the idea of swearing a loyalty oath to bin Laden to be distasteful. After al-Nashiri travelled to Yemen, he is alleged to have begun to consider committing terrorist actions against United States interests.

Abd al-Rahim al-Nashiri (/ɑː b ɪ d æ l r ɑː ˈ h iː m æ l n ɑː ˈ ʃ iː r iː / ( listen ) ; Arabic: عبد الرحيم النشيري ‎; born January 5, 1965) is a Saudi Arabian citizen alleged to be the mastermind of the bombing of USS Cole and other maritime terrorist attacks. He is alleged to have headed al-Qaeda operations in the Persian Gulf and the Gulf states prior to his capture in November 2002 by the CIA's Special Activities Division.