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FORT MEADE, MARYLAND — Jurors should know how the government plans to execute the Guantanamo detainee accused of orchestrating the 2000 bombing of the USS Cole if he's convicted of a capital offense, his lawyer argued at a pretrial hearing Tuesday at the U.S. naval base in Cuba.
Prosecutors countered that jurors don't need to know because any execution method specified before the trial of Abd al Rahim al-Nashiri could be changed during the lengthy appeals process that would follow his sentencing.
The military judge, Air Force Col. Vance Spath, deferred ruling on the motion.
Al-Nashiri's trial is scheduled to start in February. But a postponement seems likely, given the pace of pretrial proceedings.
The Saudi Arabian native faces charges that include terrorism and murder in a special tribunal for wartime offenses known as a military commission. He is charged in the attack in Yemen that killed 17 sailors and wounded dozens more. He also is accused of setting up the October 2002 bombing of the French tanker MV Limburg, which killed one crewman, and a failed January 2000 plot on the USS The Sullivans.
Civilian defense attorney Richard Kammen asked Spath to order the secretary of defense to publish execution protocols for those convicted by military commissions. He said the information would enable lawyers to question prospective jurors more fully about their attitudes, and allow the defense to better argue against execution during any sentencing hearing.
Kammen said jurors might be less inclined to vote for execution if they knew the government planned to use the same lethal-injection protocol Arizona officials employed in the July execution of an inmate who took nearly two hours to die. Kammen also cited the January execution by lethal injection of Oklahoma inmate Michael Wilson, whose last words were, "I feel my whole body burning."
"We've seen in at least two recent instances when states have tried to essentially jury-rig protocols, they have had executions that by any standard are horrifying," Kammen said.
The Navy, which Kammen said would likely conduct any such executions, has a policy favoring lethal injection for sailors convicted of capital offenses. However, no U.S. military service branch has executed anyone since 1961, when the Army hanged Pfc. John Bennett for rape.
Civilian prosecutor Justin Sher argued that the issue wasn't ripe for a ruling, since any conviction or sentencing of al-Nashiri is speculative.
"Until a parade of 'ifs' come to fruition, it's not something the members should be considering," Sher said.
Spath ruled earlier Tuesday that he will rule on pending motions heard by the previous judge, Army Col. James Pohl, after reading the filings and transcripts of oral arguments. Pohl assigned Spath to al-Nashiri's case last month to avoid scheduling conflicts with another case Pohl is hearing, the conspiracy trial of Khalid Sheik Mohammed and four alleged accomplices in the Sept. 11, 2001, attacks.
Spath also heard arguments Tuesday on eight defense motions to dismiss all charges because the statute of limitations allegedly has expired; because al-Nashiri's prosecution allegedly reflects an unlawful bias against Muslims; and because his prosecution allegedly violates a U.S.-Yemeni friendship agreement. Spath did not rule on the motions.
Spath said he may hear arguments Wednesday on a defense motion seeking an MRI scan of al-Nashiri's brain to help doctors determine if his memory loss could be the result of post-traumatic stress or physical damage caused by harsh treatment during the several years he was held in secret CIA prisons.