The officer who became the first Navy member of the USS Cole jury on Monday had told the court he was morally opposed to the place where he would sit in judgment. He called Guantanamo Bay "a very sketchy place," Carol Rosenberg reported for Just Security.
The military judge, Army Col. Matthew Fitzgerald, accepted him anyway. The officer is a Navy lieutenant who serves as a nuclear missile officer on a submarine. He said he spent three weeks researching the military commissions after he received a juror questionnaire in January, according to the report. The same day, Fitzgerald turned down a Navy lieutenant commander, a pilot, who had read a news article about the defendant's effort to "plead guilty" in the case.
The defendant is Abd al-Rahim al-Nashiri, a Saudi man accused of planning the al-Qaeda attack on the destroyer USS Cole as it refueled off Aden, Yemen, on October 12, 2000. Seventeen American sailors were killed. Prosecutors are seeking the death penalty. Al-Nashiri is presumed innocent unless proven guilty.
What the prosecutor and judge said about the juror
The lieutenant's answers worried the government. Lead prosecutor Navy Cmdr. Clayton Trivett Jr. argued that the officer would be "struggling with his morality the whole time he's serving on this case," the report says. On capital punishment, the judge quoted the officer as calling himself "iffy." Fitzgerald seated him over the prosecution's argument.
The panel is to have 12 members and six alternates, Just Security reported. With Monday's choice, the judge has approved four officers, by Rosenberg's account: two from the Air Force, one from the Army and one from the Navy.
How the trial got to this week
A Pentagon media advisory issued in March, republished here, said "The trial is scheduled to begin June 1, 2026." It did not start then. In September the defense questioned whether al-Nashiri was mentally fit to stand trial. The judge's interim ruling of October 30, designated AE 726CC, lays out the steps.
The defense asked for a mental capacity inquiry on September 4, and the government responded on September 14. On September 22, before that inquiry was finished, the defense asked for a full competency hearing, which the government opposed on October 6. The report of that inquiry, under Rule for Military Commissions 706, reached the parties on October 15 and 16. The judge ordered a hearing on October 16, and it ran from October 19 to 21 at Naval Station Guantanamo Bay.
The ruling is two pages. It holds that the defense "failed to overcome the presumption of competence" and finds al-Nashiri able "to understand the nature of the proceedings against him." Detailed findings of fact and the legal analysis, it says, will come in a later written ruling.
Jury selection began on Monday, November 2, Just Security reported the next day. Up to 200 officers were expected to be called. The first 18 had arrived that weekend, with 18 more due about two weeks later. Fitzgerald told the first group the trial could last four to six months or longer, with breaks for Thanksgiving and Christmas.
Our day counts
From the bombing on October 12, 2000, to Monday's seating is 9,524 days, or 26 years and four weeks.
From the scheduled June 1 start to the first day of jury selection on November 2 is 154 days.
From the defense's first competency motion on September 4 to the start of jury selection is 59 days. From the competency ruling on October 30 to jury selection is three days.
From the start of jury selection to Monday is one week. In that week, by Rosenberg's count, four of the 18 seats on the panel, counting alternates, were filled. That is 22 percent. If later rounds matched that pace, filling the other 14 seats would take about three and a half more weeks. That is our arithmetic only. Jury selection does not run at a steady rate, recesses are planned and the second group of 18 officers had not yet arrived.
Al-Nashiri has been in U.S. custody since 2002, Just Security reported, and was held for the first four years at secret CIA prisons, where he was tortured. That history runs through the case and through the questions put to prospective jurors.
What to watch
The court needs 14 more panel members, with the next group of officers due in the coming days. The full written competency ruling is still to come. The September 11 case at Guantanamo took a different turn last month, when the Supreme Court refused to revive the plea deals that would have taken death off the table there. For a capital case before the justices this month, see the argument in Guerrero v. Johnson.
Two Taps News stories summarize reporting and the analysis discussed on Two Taps and Friends. They are not legal advice. Read our standards.
