Charges Sworn Against Detainee Al-Nashiri
June 30, 2008

The Defense Department announced today that charges have been sworn against ‘Abd al-Rahim al-Nashiri of Saudi Arabia. This swearing brings to twenty the number of detainees who are in some stage of the military commission process.

The charges allege that Mr. al-Nashiri participated in the planning and preparation for the attack on the USS Cole in the Port of Aden, Yemen, on Oct. 12, 2000. It is alleged that two men dressed as civilians piloted what appeared to be a small, civilian garbage barge up to the ship. The two men allegedly made friendly gestures to several crewmembers aboard the ship before detonating explosives concealed within their boat. The attack killed 17 sailors, wounded 47 sailors, and severely damaged the ship. It is alleged that al-Nashiri was involved in the following actions, among other things:

• Renting apartments and houses near Aden, Yemen, for use in observing the Port of Aden and preparing for an attack against a U.S. Naval vessel;
• Purchasing a small, civilian boat in 1999 and arranging for a vehicle to tow the boat;
• Obtaining explosives, transporting them to a safe house, and concealing the explosives in the boat;
• Attempting unsuccessfully to use the explosives-laden boat to attack the USS The Sullivans as it was refueling in the port of Aden on Jan. 3, 2000;
• Recovering and refitting the boat and explosives for use in the later attack on the USS Cole;
• Meeting with Usama bin Laden and other co-conspirators in Afghanistan to reorganize their plot in the summer of 2000, prior to the attack on the USS Cole;
• Testing the explosives recovered after the failed attack on the USS The Sullivans;
• Arranging for two co-conspirators to launch the explosives-laden boat in the Port of Aden and detonating their explosives alongside the USS Cole, killing 17 sailors, wounding 47 other sailors and blasting a 40 foot hole in the side of the ship;
• Assisting in the attack on the SS Limburg, a French super-tanker, in the Gulf of Aden on Oct. 6, 2002, resulting in the death of a crewmember and the spillage of approximately 90,000 barrels of oil into the Gulf.

Based on these allegations and others outlined in the charge sheet, al-Nashiri is charged with the following substantive offenses: conspiracy to violate the law of war, murder in violation of the law of war, treachery or perfidy, terrorism, destruction of property in violation of the law of war, intentionally causing serious bodily injury, providing material support to terrorism, and attempted murder.

In accordance with the Military Commissions Act of 2006, these sworn charges will be forwarded to the Convening Authority, Susan J. Crawford. She will then make an independent determination as to whether to refer some, all, or none of the charges to trial by military commission. If the convening authority decides to refer the case to trial, she will designate commission panel members (jurors). The chief trial judge of the Military Commissions Trial Judiciary will detail a military judge to the case.

The chief prosecutor has recommended the charges against al-Nashiri be referred as capital. If the convening authority, in her sole discretion, decides to refer the case as capital, the accused may face the possibility of being sentenced to death.

The military commissions provide the following protections for the accused: to be represented by detailed military counsel, as well as civilian counsel of his own selection and at no expense to the government; to elect not to testify at trial and to have no adverse inference drawn from it; to examine all evidence presented to a jury by the prosecution; to obtain evidence and to call witnesses on his own behalf including expert witnesses; to cross-examine every witness called by the prosecution; to be present during the presentation of evidence; to have no statements obtained by torture admitted; to have a military commission panel (jury) of at least five military members determine guilt or innocence by a 2/3 majority, or in the case of a capital offense, a unanimous decision of at least 12 members; and the right to an appeal to the Court of Military Commission Review, then through the U.S. Court of Appeals for the District of Columbia Circuit to the United States Supreme Court.

The charges are only allegations that the accused has committed offenses under the Military Commissions Act, and the accused remains innocent unless proven guilty beyond a reasonable doubt.

Conducting fair, just, and open military commissions is the Department of Defense’s top legal services priority. In conjunction with that, it is important that the commissions be accessible to victim family members.

The Department of Defense is developing plans to provide access to commission proceedings for victim family members at Naval Station Guantanamo Bay, Cuba. The Department is also working towards providing a closed circuit television feed at a selected U.S. site to allow victim families to view trial proceedings.