The judge in the USS Cole bombing case, Col. Matthew Fitzgerald, has postponed the start of jury selection to Oct. 26. The judge made the announcement from the military commission bench at the base in Guantanamo Bay, Cuba on Thursday morning, days before the Pentagon was scheduled to bring 36 military officers there to serve as an initial jury pool. The officers were coming from U.S. military bases both in the United States and abroad. Instead, the judge said he would devote next week to pretrial matters that have yet to be resolved.
Here are some of the issues that could further delay the start of the Cole case, the first ever capital case at Guantanamo:
Competency Challenge: At the request of defense lawyers, Judge Fitzgerald ordered a Sanity Board to evaluate the capacity of the defendant, Abd al-Rahim al-Nashiri, to understand and cooperate with his lawyers. Earlier, a Pentagon-approved civilian forensic psychiatrist, who was hired as a defense consultant, spent a week with al-Nashiri at Guantanamo and found him not competent. Now, the Sanity Board is underway, with a court-appointed Army psychiatrist visiting the base earlier this month to conduct interviews, including with al-Nashiri but without his lawyers present. The Sanity Board psychiatrist also was reviewing prison records to provide an expert opinion and answer questions posed by the judge. The deadline for his report is Oct. 16.
Collateral Competency Challenge: On Oct. 15, lawyers for al-Nashiri asked a federal judge, Royce Lamberth at the U.S. District Court in Washington, D.C., to issue a temporary restraining order on the trial, and then an injunction until the competency question is fully considered at the Guantanamo level. “The military judge ordered a competency evaluation but left no time for a meaningful hearing on whether petitioner is competent,” said the petition by Allison Miller, al-Nashiri’s capital lawyer. “He has three times declined to stay the proceedings pending the inquiry.” Al-Nashiri’s lawyer also noted that certain detailed brain scans of the prisoner have not yet been done.
Challenge to Trial Evidence: Al-Nashiri’s lawyers also have sought a stay on the trial at the U.S. Court of Appeals for the District of Columbia Circuit on a different issue: They say prosecutors provided the defense team with exculpatory evidence that could shift the blame for the Cole bombing onto another former prisoner. But there’s a twist: Defense lawyers say the evidence was obtained through the torture of the other prisoner in Afghanistan in 2002, and it would be unlawful to use it, even if the judge approved its use. The larger question is before the U.S. Court of Military Commissions Review, as explained in the filing, which was just released. The other prisoner, meanwhile, is out of reach of the court. He was transferred to Oman for rehabilitation in 2025.
Motion to Disqualify the Judge: Al-Nashiri’s lawyers are also asking Judge Fitzgerald to disqualify himself. They argue in a 29-page motion filed Oct. 8 that the judge exceeded his authority by involving himself in the mechanics of trial preparation and then became so locked into a trial start date that he set unfairly inflexible deadlines to make it work. They point to an ex-parte meeting Judge Fitzgerald had in Virginia with the director of the office of military commissions, Liam Apostol, to discuss transportation of jury pool members and other scheduling details. Apostol testified in a hearing on Oct. 15 that the meeting involved a slide presentation for routine planning; defense lawyers argued that the prosecution typically had that role.
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