Nashiri is the accused al-Qaeda mastermind of the 2000 Yemen bombing of the USS Cole that killed seventeen US Navy personnel and maimed many others. Nashiri was eventually arrested in 2002 after various components of the Cole bombing plot, and other Al-Qaeda maritime terror, were pieced together by evidence that linked Nashiri to obtaining the explosives and the boat that became the bomb delivery vehicle.
After his arrest, Nashiri was transferred to CIA custody with the hope that he could provide information about pending al-Qaeda attacks. Little was known then about other lethal plots of the Al-Qaeda global network, including biological and nuclear plots. Nashiri was housed at a succession of CIA black sites. CIA interrogators attempted to obtain information about prospective attacks that Nashiri, a well-connected member of Al-Qaeda in the Arabian Peninsula, might have known about. As Nashiri maintained his silence, interrogators at one of the black sites coerced Nashiri into apparent cooperation through threats that made Nashiri fear for his life. In subsequent months and different black site placements, Nashiri’s treatment significantly improved. With that, however, Nashiri became more oppositional, defiant, and obstructive to staff in general.
In 2006, the United States government transferred Nashiri from CIA custody to a Department of Defense-run facility at Guantanamo Bay. The plan was to ultimately try him in military court for the Cole bombings. Guantanamo Bay was significantly different from the black sites in numerous respects, although it was still custody. At the beginning of 2007, FBI personnel unrelated to the CIA interviewed Nashiri about the USS Cole bombing, not referencing anything he referenced in earlier discussions in the black sites.
Nashiri’s defense team sought to have the 2007 statements he provided to the FBI about the Cole bombing disallowed, having claimed that he had enduring psychological trauma from his earlier maltreatment at the CIA black sites. Because of this, argued Nashiri, he could not possibly have given voluntary statements. The Department of Defense and Department of Justice retained The Forensic Panel to advise about trauma, PTSD, and voluntariness as it relates to interrogation. The Forensic Panel’s forensic psychiatrist reviewed the extensive classified file and medical records and evidence of Nashiri’s interactions with corrections, medical staff, and his fellow inmates.
Extensive media coverage in mainstream press has long conveyed strong sympathy toward Nashiri and other al-Qaeda terror suspects, whose arrest and incarceration closely link to the Bush administration and its historical legacy. Nashiri’s assertions that he was tortured attracted no critical scrutiny by the mainstream press, in part because they did not have access to classified information from CIA custody. Exploiting contacts to sympathetic press, the defense team seeded false narratives that Nashiri was anally raped and otherwise constantly tortured. These embellished arguments, repeated over years, created herd groupthink among the general public who had no access to the record. These in turn created pressures for the federal government to not dispute mistreatment charges in order to expedite the case coming to trial without proceedings that would divert from Nashiri’s criminal responsibility. The defense approach of invariably claiming torture, first promoted by al-Qaeda in the Manchester Manual, cultivated the prevailing understanding about Nashiri among the intellectual press as a tortured and possibly even innocent man.
The defense team retained experts opined that Nashiri was de facto unable to give a voluntary statement to the FBI nearly four years after his coercive CIA experiences – even without the experts having examined him.
The prosecution countered with the testimony of The Forensic Panel’s forensic psychiatrist, who had reviewed the entire classified and non-classified record, all mental health complaints and responses from custody, and had developed a timeline of Nashiri’s engagement with psychologists and psychiatrists at Guantanamo in 2006 and 2007. This data demonstrated that Nashiri was making voluntary decisions, was defying and combative toward authority, and instigating others to undermine social order. Turning to Nashiri’s 2007 statements, the forensic psychiatrist focused on the choices Nashiri made in how he responded to hard evidence of his role in the bombing. Nashiri would explain away and minimize his role with great verbal agility – even when confronted with irrefutable evidence. This resistance could not have been done were Nashiri to be passive in the face of a coercive atmosphere. Other available evidence included recorded conversations in early 2007 between Nashiri and other inmates, in which he implicated himself as he spoke of the meetings with the FBI.
The judge excluded the 2007 statements, focusing on the earlier treatment and the court’s repudiation of such practices. The judge’s avoidance of facts of Nashiri’s poise, confidence, and resistance for years before the 2007 encounters, and the judge’s overlooking testimony on the study of confessions and coercion, led the government to appeal the ruling that excluded the 2007 statements. Nashiri continues to await trial.
