Published: September 30, 2004
http://www.nytimes.com/2004/09/30/international/middleeast/30cole.html?oref=login&th
CAIRO, Sept. 29 – A judge in Yemen sentenced two men to death and four others to prison terms of up to 10 years on Wednesday for the deadly attack in 2000 against the American destroyer Cole. The convictions were the first ones stemming from the maritime suicide bombing, which provided an early glimpse of the brazen nature of Osama bin Laden’s global terror network.
Abd al-Rahim al-Nashiri, a Saudi-born bin Laden associate, and Jamal al-Badawi, a 35-year-old Yemeni, were sentenced to death for their roles in the deaths of 17 United States sailors on board the destroyer, for planning the attack and for organizing an armed gang to carry it out.
Mr. Nashiri, in custody at an undisclosed location outside the United States, was tried in absentia.
Law enforcement officials have suggested that Mr. Nashiri, who was arrested in the United Arab Emirates and transferred into American hands in 2002, was the mastermind behind the Cole bombing on Oct. 12, 2000, and also played a key role in the United States Embassy bombings in Kenya and Tanzania in 1998.
In the Cole attack, two men in a small dinghy laden with explosives bashed into the side of the destroyer as it was refueling in the southern Yemeni port of Aden, killing the sailors and opening a gaping tear in its hull.
Cries of “God is Great!” erupted from the defendants when Judge Najib al-Qaderi read out the sentences, and relatives in the packed courtroom shouted that the sentences were unjust.
“These are American sentences!” yelled Mr. Badawi, bearded and wearing a long white robe, after he heard his death sentence. “The judge and the entire Yemeni government are tools in the hands of the Americans!”
In the United States, government officials expressed satisfaction with the outcome of a case in which investigators from the Federal Bureau of Investigation and the Naval Criminal Investigative Service worked closely for nearly four years with the Yemeni authorities.
The verdicts represented a milestone for overseas investigative efforts and appeared to signal that Yemen had adopted a tougher stance toward terrorism, American counterterrorism officials said. But the verdicts came after a sometimes strained investigative effort.
Senior American officials – like the F.B.I. director, Robert S. Mueller III, and his predecessor, Louis J. Freeh – traveled to Yemen several times to urge greater cooperation when the Yemeni authorities balked at providing investigators with access to witnesses and evidence. Several times, American investigators were ordered out of Yemen by their agencies because of security risks.
The issuance of two death sentences did not appear to stir concern among American officials. But the sentencing of Mr. Nashiri raised a potential issue for the United States. He is the one of the six defendants being held outside Yemen and is one of about a dozen high-value Qaeda suspects being held by the Central Intelligence Agency at undisclosed locations outside the United States.
He has been regarded as a senior Qaeda operative in the Persian Gulf region whose capture in November 2002 was hailed by the American authorities as a potential intelligence coup because of his wide ranging knowledge of Al Qaeda’s operations and plans. It is unclear how much information he has provided since his apprehension.
Unlike lower-level Qaeda detainees held in places like Afghanistan and Guantánamo Bay, Cuba, prisoners like Mr. Nashiri have not been granted access to lawyers or visits by human rights groups. It remains unclear whether the government is willing to transfer Mr. Nashiri to Yemen to face the death sentence or whether the American authorities would resist such a move on legal grounds or because of his intelligence value.
Two of the men sentenced Wednesday, Mr. Badawi and Fahd al-Qusaa, were charged in May 2003 in a 50-count indictment returned in New York for their role in the Cole attack. The indictment was brought after both escaped from a Yemeni jail and was intended in part to allow Interpol to issue a “red notice” authorizing their detention. Both men were recaptured, and it is unclear whether federal prosecutors will now seek to try either of them in the United States on the indictment’s charges.
That indictment said Mr. Badawi had procured safe houses for the attackers, obtained the boat used in the attack along with the truck and trailer used to tow the craft to the harbor in Aden. It said Mr. Qusaa had prepared to film the attack from an apartment overlooking the harbor. Mr. Qusaa, who received a 10-year sentence, was supposed to film the bombing but overslept and missed the attack, the judge said. He underwent training in Qaeda camps in Afghanistan, and a video camera was discovered in the apartment he fled after the bombing.
Lawyers who helped defend the men in Yemen objected to the entire proceedings, noting that the suspects were judged by an exceptional court set up for the very purpose of trying terror suspects and therefore outside the country’s Constitution.
“The procedures that took place completely breached the right to a fair defense,” said Mohammed Naji Allaw, a defense lawyer who had previously withdrawn from the case to protest the proceedings. In a telephone interview, he also said that the men had been tortured to extract confessions during their four years of imprisonment.
All six defendants were found guilty of belonging to Al Qaeda. Maamoun Msouh was sentenced to eight years for helping Mr. Badawi by handling funds and forging identity papers, the latter crime also garnering five-year sentences for two former Interior Ministry employees, Ali Muhammad Saleh and Murad al-Sirouri.
Mr. Badawi said he would appeal his death sentence, and the five other defendants are also likely to seek to have the sentences overturned. They can take their cases to the Court of Appeals and eventually the Supreme Court. In addition, all death sentences, which are carried out by firing squad, need confirmation by President Ali Abdullah Saleh.
In previous political cases, the president has either annulled or reduced sentences and even pardoned some individuals, Mr. Allaw said, but he added that the president’s ability to dismiss judges prevented them from making independent decisions.
The death sentences on Wednesday, although among the first for violence linked to Al Qaeda, are not rare in Yemen. Last month, the same special court gave 15 defendants sentences ranging from three years to death for various terror plots and attacks. Those imprisoned for 10 years included five Qaeda supporters for the 2002 bombing of the French supertanker Limburg in an attack similar to that on the Cole. The militant sentenced to death was convicted of shooting dead a police officer at a checkpoint.
