FORT MEADE — The sneaky tactics used to attack the USS Cole in Yemen in 2000 were similar to a ruse the United States considered acceptable during World War II, a lawyer said Wednesday in seeking dismissal of six of the 11 charges facing the Guantanamo detainee accused of orchestrating the bombing that killed 17 U.S. sailors.
Lawyers for Abd al-Rahim al-Nashiri backed up their argument at a pretrial hearing in Cuba by showing a military judge about 22 minutes of a black-and-white film produced in 1944 by the Office of Strategic Services, predecessor to the CIA. The film documented a plan to attack German and Japanese naval ships with a remote-controlled speedboat disguised as a Danish fishing vessel and packed with up to 5,000 pounds of explosives.
Although the plan wasn’t carried out, it was considered an acceptable form of naval warfare, said Air Force Capt. Daphne Jackson, a member of al-Nashiri’s defense team. Therefore, she said, government prosecutors shouldn’t be allowed to charge al-Nashiri with war crimes for allegedly using a similar tactic.
“The conduct they’re attempting to criminalize is not a war crime that is firmly grounded in international law,” Jackson said.
The government says the Cole was bombed by two al-Qaida terrorists who set off explosives as they pulled their fishing boat up to the destroyer.
Jackson cited a legal concept called “tu quoque,” or “thou also,” a defense that asserts the prosecuting power has committed an act identical to an alleged offense. German naval commander Karl Doenitz successfully used the defense during the post-war Nuremberg trials to avoid sentencing for ordering his navy not to rescue survivors of German submarine attacks.
Prosecutors countered that the concept has since been universally rejected as a criminal defense. Furthermore, “the government never actually engaged in the conduct the defense wants to rely on for dismissal,” prosecutor Justin Sher said.
The Office of Military Commissions judge, Air Force Col. Vance Spath, did not say when he would rule on the matter.
Spath also heard arguments on a defense motion seeking an MRI brain scan of al-Nashiri to help determine the cause of memory loss reported by a medical expert on torture survivors who examined him. Al-Nashiri was held for several years in secret CIA prisons after his capture in 2002. Authorities have disclosed that he was subjected to a mock execution and waterboarding.
Lawyers also debated part of a defense motion seeking approval for al-Nashiri to communicate by Skype with his parents in Saudi Arabia. Defense attorneys want to call witnesses for a hearing on whether such conversations could improve their client’s mental health.
Al-Nashiri chose not to attend the session Wednesday, the last day of a three-day hearing.
The hearing was shown in a video feed at Fort Meade, near Baltimore.