The Train Wreck That Didn’t Have to Be

There were small celebrations at the White House in the fall of 2002 when aides got word that Abd al-Rahim al-Nashiri had been nabbed by security officials in the United Arab Emirates. The FBI had fingered the Saudi native as the architect of Al Qaeda's bombing of the U.S.S. Cole in Yemen, which killed 17 American sailors. At the time he was picked up, Nashiri had been spotted scouting out a local flying school, and UAE officials later said he was planning fresh attacks on "vital economic targets" in the Persian Gulf. President Bush touted Nashiri's apprehension as a major triumph in the war on terror. "We did bring to justice a killer," the president said.

But justice might seem a curious word for what happened to Nashiri. Rather than seek his extradition so he could be charged in a U.S. court, as some FBI officials had urged, Nashiri was handed to the CIA. The Al Qaeda suspect was then whisked away to one of the agency's "black prisons" overseas where he was subjected to "enhanced" interrogation methods that had been approved by senior White House officials (and a handful of Justice Department lawyers). CIA Director Michael Hayden has since confirmed that Nashiri was one of three "high-value detainees" who was "waterboarded"—a diabolical technique in which subjects are strapped to a board and then doused with water to simulate drowning. Videotapes of Nashiri's waterboarding (and that of another top Qaeda captive, Abu Zubaydah) were later destroyed by CIA officials —a move that has since prompted a Justice Department criminal investigation. When Nashiri made his first appearance at a military hearing two years ago, he did everything he could to bring attention to his treatment, claiming that damaging admissions he made while in custody were only said to get his interrogators to back off. "From the time I was arrested … they have been torturing me," Nashiri said, according to a transcript of the hearing. "One time they tortured me one way and another time they tortured me in a different way … They do so many things. So so many things." (U.S. military censors deleted Nashiri's account of those "things"; a CIA spokesman says the agency's interrogations were "carefully run, closely reviewed and thoroughly briefed" to congressional oversight committees.)

Nashiri is a prime example of the tricky dilemmas facing the new Obama administration as it grapples with the U.S. government's sprawling population of terror detainees—at Guantánamo, Bagram Air Base in Afghanistan and elsewhere. Just before the Christmas holidays, the Pentagon announced that it had, at long last, brought a formal case against Nashiri, charging him before a military tribunal with helping to orchestrate the Cole bombing and the October 2002 attack on the Limburg, a French oil tanker, in the Gulf of Aden. But how, his defense lawyers asked, can the U.S. government bring a credible case against a defendant who has been waterboarded—and expect the court of world opinion to have any faith in the verdict?

The charges against Nashiri are part of a wave of fresh cases that the Defense Department has brought in recent months before military commissions—an untested judicial process that has been fraught with controversy, and accusations of unfairness, since Congress created them in 2006. (One of those cases, slated to go to trial just six days after Barack Obama is sworn in, involves Omar Khadr, who is accused of killing a U.S. soldier in Afghanistan when he was 15.) As a candidate, Obama strongly criticized the military tribunal system, calling it a "dangerously flawed legal approach" that has "compromised our core values." Next week, when he takes office, he is expected to do something about it: the new president is preparing to issue a directive freezing any military tribunal cases from going forward, says a high-level aide who asked not to be identified talking about policy that has not yet been announced. Among the cases that will be put on hold are Nashiri's, as well as the high-profile case against Khalid Sheikh Mohammed (who was also waterboarded), Ramzi bin al-Shibh and others for the 9/11 attacks. The difficult question—and one the Obama team hasn't resolved—is what to do with them after that.

The tragedy, according to some critics, is that this trainwreck never had to happen. When FBI agents first flew to Yemen in fall 2000 to investigate the Cole bombing, they quickly identified Nashiri as a prime suspect, uncovering a paper trail showing that he had leased an apartment and registered a car used by the conspirators and secured a boat used in the attack. One of the top Yemeni conspirators arrested for the bombing, Jamal al-Badawi, later told agents that he had taken direction from Nashiri, who, in turn, was acting on behalf of Osama bin Laden. Nashiri is an "extremely bad dude who we could have easily brought to trial in the United States," says a former U.S. law enforcement official who asked not to be identified talking about an ongoing case. "We had a fairly strong case against him." But at the time, White House officials concluded that Nashiri was more important as a potential source of fresh intelligence about potential upcoming Al Qaeda attacks than as a defendant in federal court—hence the decision to turn him over to the CIA and subject him to waterboarding. Whether Nashiri ever provided any reliable intelligence about upcoming plots remains unknown; the former law enforcement official says he never saw any. But Nancy Hollander, one of Nashiri's court-appointed lawyers, says it is clear that his CIA interrogators never thought much about what would happen to their subject after they were through with him. "I don't think they had an endgame when all this started," she tells NEWSWEEK. Now it is Obama's job to figure that out.