GUANTANAMO BAY NAVAL BASE, Cuba _ The U.S. Supreme Court declined Monday to consider a pretrial challenge to the war court brought by death penalty defendant Abd al-Rahim al-Nashiri, the former CIA captive accused of orchestrating al-Qaida's 2000 USS Cole bombing.
It was the second rejection of a Guantanamo captive's appeal to the high court in two weeks. No other explicit military commissions challenges are up before the justices this session.
Al-Nashiri, 52, is accused of orchestrating al-Qaida's Oct. 12, 2000, suicide bombing of the warship off Yemen. Seventeen U.S. sailors died in the attack, and dozens of others were wounded.
If the court had chosen to consider the case, it could have provided another reason to slow the process to trial. Instead, "the denial of Nashiri's petition by the Supreme Court effectively ends this effort to prevent his military commission prosecution and thus removes a potential obstacle to trial," said Air Force Ben Sakrisson, a Pentagon spokesman.
Pentagon-paid defense lawyers for the Saudi captive asked the Supreme Court in Nashiri v. Trump to consider the case as an exception to law that generally requires a conviction before civilian court review. Al-Nashiri's lawyers argued his years of torture in CIA custody merits pretrial review of the case, notably to resolve the legal question of when the "war on terror" began.
The decision also comes just days after al-Nashiri's three civilian lawyers invoked an ethical conflict and quit the case, with permission of the Marine general overseeing war court defense teams. That leaves just one other attorney who has met with and been accepted by al-Nashiri on his case _ a Navy lieutenant with no death penalty experience.
The attorney who filed al-Nashiri's petition with the U.S. Supreme Court petition, declared his disappointment at the court decision not to hear the case.
Pentagon appellate attorney Michel Paradis said the justice could have provided answers to "the important questions that have made the military commission system dysfunctional for over a decade." Instead, he said, "the Supreme Court is content to leave it to flounder."
Paradis also said, anyway, the case should be tried in federal court, where al-Nashiri was indicted in 2002. "The military commissions' only reason for continuing to exist is to conceal this country's use of torture."
War court prosecutors had no immediate comment on the Supreme Court decision.
The Chief Defense Counsel, Marine Brig. Gen. John Baker, said he is looking to hire a new lawyer learned in the practice of capital punishment defense to replace veteran death penalty defender Rick Kammen, who quit. By law a capital case can't proceed without a so-called learned counsel in court to proceed.
It is unclear what Air Force Col. Vance Spath, the USS Cole case judge, will do about an upcoming three-week hearing due to start Oct. 30. But the chief of the war court judiciary questioned in open court Monday whether Baker had the authority to paralyze the case through excusals.
"I have no idea the factual predicate of what happened in Nashiri," said Army Col. James Pohl, presiding in a pretrial hearing of the Sept. 11 death penalty case Monday. "I have no idea whether it is relevant to this case or not."
