With the first death penalty trial at Guantánamo Bay less than 100 days away, prosecutors tried to shore up their evidence this week with a late request to introduce old hearsay testimony in the 25-year-old case, the bombing of the U.S.S. Cole.
The judge in the case has scheduled jury selection to begin on June 1. The defendant, Abd al-Rahim al-Nashiri, is accused of orchestrating the suicide bombing, which killed 17 American sailors off Aden, Yemen, on Oct. 12, 2000. He has been in U.S. custody since 2002.
This week, defense and prosecution lawyers at the war court wrangled over whether it was too late to add the testimony of two F.B.I. agents about their interviews in 2011 with a former Saudi prisoner, Ahmed al-Darbi, who has said he conspired with Mr. Nashiri on Al Qaeda boat-bombing plots.
The request is unusual because the judge’s deadline for proposing hearsay testimony has passed. It also demonstrates that the government is still trying to shape its capital case after years of pretrial hearings in which some of its best evidence was thrown out.
First, in 2019, the prosecution lost more than two years of favorable rulings after a previous military judge was found to have behaved unethically while serving on the case. Next, in 2023, a new military judge forbade the government from using Mr. Nashiri’s 2007 confession to federal agents, because he had been tortured into incriminating himself. Last December, the current judge, Col. Matthew S. Fitzgerald, threw out a taped deposition of Mr. Darbi because it was overseen by the unethical judge.
Capt. Timothy Stinson, the lead prosecutor, told the judge that his side needed to use accounts of the 2011 interviews of Mr. Darbi by F.B.I. agents discussing the possibility of him cooperating with the government, because the court threw out the deposition. The conversations were not recorded, and the government wants to have the agents testify at the trial about what Mr. Darbi told them.
Mr. Nashiri’s lawyer, Allison Miller, said that she would not be ready to start the trial on June 1 on any account, but that the prosecution should not be allowed to add the hearsay testimony this late in the pretrial hearings.
Mr. Darbi pleaded guilty to war crimes charges in 2014 and was repatriated to a Saudi prison during the first Trump administration. In seeking to use the 2011 interviews, the prosecutor appeared to be conceding that Mr. Darbi would not be voluntarily returning to Guantánamo to testify against Mr. Nashiri, a fellow Saudi citizen, at the trial.
Mr. Nashiri’s trial is seen as a precursor of the Sept. 11 case, the only other death penalty case ever charged at the military commissions. A trial date has not been set in that case, which has been mired in pretrial challenges.
Four men are accused of plotting the 2001 attacks that killed 3,000 people, and were held and tortured by the C.I.A. before their transfer to Guantánamo in 2006. A fifth defendant has been found mentally unfit to face trial.
Mr. Nashiri was waterboarded, beaten, subjected to a mock execution and kept in isolation across four years in C.I.A. custody. He was charged first and was secretly held at Guantánamo in 2003 and 2004, like two of the Sept. 11 defendants.
Separately, Colonel Fitzgerald, the judge, is considering what to do about a request from the most experienced defense lawyer on the case, Katie Carmon, to leave it for undisclosed personal reasons.
Mr. Nashiri and Ms. Miller, his lead defense lawyer, oppose the request.
Ms. Miller started on the case in the summer of 2024 as Mr. Nashiri’s third federally paid death penalty defender, and said she has been focused on trying to settle the case. The Pentagon recently rejected a proposed settlement.
If the trial starts on June 1, Ms. Miller said, she would be “ineffective,” a term that would be a basis of appeal. She added that Mr. Nashiri’s defense would be worse with the departure of Ms. Carmon, a former public defender who has been the supervisory defense counsel.
This week’s proceedings took place in a small court built by the Pentagon to accommodate noncapital trials. Lawyers said the main courtroom, which has a jury box large enough for the jury of 12 U.S. military officers, plus alternates, was undergoing improvements for the trial.
Carol Rosenberg reports on the wartime prison and court at Guantánamo Bay. She has been covering the topic since the first detainees were brought to the U.S. base in 2002.
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