Court refuses to stop trial of accused USS Cole mastermind

A federal appeals court has refused to stop the military commission trial of the man charged with masterminding the 2000 bombing of the USS Cole that killed 17 U.S. sailors.

In a 2-1 ruling, the U.S. Court of Appeals for the District of Columbia Circuit said that Abd al Rahim al Nashiri can’t challenge the commission’s authority until after the trial.

{mosads}Nashiri, a 51-year-old Saudi national, is accused of orchestrating the al Qaeda attack against the Cole while it was refueling in Yemen. His charges also include an attack on a French ship and an attempted attack on a second U.S. vessel. He is facing a possible death sentence.

Lawyers for Nashiri argued that the military commissions only have the authority to try cases for crimes committed during a war and that Nashiri’s actions were not war crimes.

In a written opinion issued Tuesday, Judge Thomas Griffith said precedent calls for judges not to intervene in ongoing military legal proceedings. He also said that Nashiri did not “clearly and indisputably” show his actions took place outside of the context of hostilities.

In a dissenting opinion, Judge David Tatel wrote that there are “extraordinary and unusual circumstances” that call for the court to intervene in this case, including Nashiri’s allegations that “the government subjected him to years of brutal detention and interrogation tactics that left him in a compromised physical and psychological state.”

Nashiri was captured in October 2002. He was kept at a CIA “black site” for a period and has been at the Guantanamo Bay detention facility since 2006.