The main suspect in the USS Cole bombing has been formally arraigned at Guantanamo in the first such case since US President Barack Obama reversed course and ordered controversial military trials to resume.
Saudi-born Abd al-Rahim al-Nashiri, 46, who was appearing in court for the first time since his 2002 arrest, faces the death penalty if convicted of planning and preparing the October 2000 attack on the US Navy destroyer in Yemen’s port of Aden.
Militants riding an explosives-laden skiff blew a 10 metre by 10 metre hole in the USS Cole, killing 17 sailors and wounding 40 more.
Nashiri, who has not been seen publicly since his 2002 capture in the Gulf and subsequent incarceration at secret CIA prisons, appeared wearing prison clothes with short hair and a stubble.
But he was neither handcuffed nor in ankle chains, and he appeared relaxed, smiling on several occasions in answering questions put to him by the judge, Colonel James Pohl.
Speaking in Arabic with the aid of an interpreter, Nashiri said he had chosen to wear the prison dress, that his lawyers were “doing the right job”, and that he would attend all the sessions.
The Pentagon believes Nashiri bought the small boat and explosives used in the Cole attack.
He is also accused of involvement in an attempted attack against another American warship in Aden, the USS The Sullivans, in January 2000.
US military prosecutors also accuse Nashiri of planning an attack on French civilian oil tanker MV Limburg in the Gulf of Aden in 2002 that left one Bulgarian crew member dead and caused an oil spill of 90,000 barrels.
His trial will begin no earlier than November 2012, but it could be delayed beyond that if the defence requests it, said Pohl. Nashiri’s lawyers refused to say how he would plead.
Nashiri, who is believed to have met several times with late al-Qaeda leader Osama bin Laden, is accused of murder, acts of terrorism, conspiracy to commit terrorism and attacks against civilians.
He is being held along with five men accused of orchestrating the September 11, 2001 attacks, and could be the first terror suspect sentenced to death by a military court.
A congressional investigation found that Nashiri was water-boarded while in custody, and that handlers loaded a gun and turned on a power drill near his head.
Obama has denounced waterboarding – a type of simulated or near-drowning – as torture, and Nashiri’s defence team said on Tuesday the United States had lost “all moral authority” to try their client.
“By torturing Mr Nashiri, the United States has lost all moral authority to try Mr Nashiri,” his civilian lawyer Richard Kammen told reporters.
“This is a big part of the case – what happened and how he was treated is important to a death penalty case, should we get to a death penalty case.”
Mark Martins, the military commission’s chief prosecutor for the case, said on Tuesday that “no statement obtained as a result of cruel, inhuman or degrading treatment” would be admitted into evidence.
During the four-hour hearing, the judge ruled in favour of a defence motion protesting the monitoring of mail between Nashiri and his lawyers.
“The defence is asking to protect the detainee-attorney privilege… to protect confidentiality especially in a death penalty case,” said another defence lawyer, Lieutenant Commander Stephen Reyes.
A military prosecutor, Lieutenant Commander Andrea Lockhart, admitted that Nashiri’s mail had been “scanned” to protect national security. A prison official, testifying as a witness, said Nashiri’s legal mail bin had been seized on orders of the prison’s commander.
In another first, Wednesday’s arraignment was being broadcast to locations in the United States to allow relatives of Cole victims and representatives from rights organisations to watch the proceedings. Journalists could also watch a feed set up at the US Army’s Fort Meade in Maryland.
The broadcasts were subject to a 40-second delay imposed by military censors, who have a kill switch at their disposal to stop the feed, if necessary, in order to protect classified information.
Three trials have taken place at Guantanamo since Obama took office in January 2009, but those proceedings began under Bush.
In one of his first moves as president, Obama froze proceedings at the Guantanamo military tribunal as part of his ill-fated promise to close the US naval base in southeastern Cuba within a year of entering the White House.