It was reported that al-Nashiri was captured in the UAE in November 2002 and placed in CIA custody. He was held in secret CIA prisons until his transfer to Guantanamo Bay in Cuba in September 2006.
In September 2004, al-Nashiri was tried by a Yemeni court in absentia, and sentenced to death for his role in the bombing of USS Cole.
On 14 March 2007, a combatant status review was conducted at Guantanamo Bay, at which a summary of the evidence against al-Nashiri was presented. During interrogations, al-Nashiri had confessed to his involvement in the USS Cole attack. However, during his hearing before the Combatant Status Review Tribunal, al-Nashiri claimed that his confessions had been obtained under torture.
In February 2008, CIA director General Michael Hayden confirmed that al-Nashiri was one of three detainees who had been water-boarded by the CIA during interrogations.
On 30 June 2008, charges were sworn against al-Nashiri before the Military Commission and on 9 July 2008, al-Nashiri was informed of the charges against him. Al-Nashiri was charged, in relation to his alleged involvement in the attacks on USS The Sullivans and USS Cole in 2000 and the French tanker, Limburg, in 2002, with the following substantive offences:
− murder in violation of the law of war;
− using treachery or perfidy;
− destruction of property in violation of the law of war;
− intentionally causing serious bodily injury;
− terrorism; and
− providing material support for terrorism; and
− attempt to commit murder in violation of the law of war.
The Chief Prosecutor recommended that the case be tried as a death penalty case.
The charges were referred as a capital case to trial by military commission on 19 December 2008.
On 22 January 2009, President Obama issued an Executive Order suspending the use of military commissions, putting in motion a review of the status of all Guantanamo detainees and setting a date for the closure of Guantanamo Bay detention facility.
On 5 February 2009, the charges against al-Nashiri were withdrawn without prejudice, meaning that new charges could be brought against him in the future. The US Attorney General announced his decision on 13 November 2009, that a military commission was the appropriate forum for the trial of al-Nashiri. On 20 November 2009, the Convening Authority for Military Commission dismissed without prejudice the pending charges against al-Nashiri, again permitting new charges to be brought at a later date.
The charges were reinstated and on 10 October 2011, al-Nashiri appeared before the military commission in Guantanamo for the first time. The judge, Army Colonel James Pohl, scheduled the actual commencement of proceedings for 9 November 2012. It is considered most likely that the prosecution will seek the death penalty. The defence doubts that al-Nashiri will be released from Guantanamo prison, even if acquitted.
Trial Watch would like to remind its users that any person charged by national or international authorities is presumed innocent until proven guilty.