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The hearing will not mark their first encounter with al-Nashiri. They saw him in October during his arraignment. He waved his hands while walking into court, just like the suicide bombers had done toward the crew of the USS Cole that day, Mr. Clodfelter said.

‘Sealed our fate’

Unlike the 9/11 terrorist attacks a year later, the USS Cole attack was never met with a military response.

Bruce Riedel, senior fellow at the Brookings Institution and a former National Security Council official under Presidents Clinton and George W. Bush, said that no definitive intelligence at the time linked the attack to Osama bin Laden or al Qaeda.

“The intelligence community said it was their judgment that it was an al Qaeda attack but they couldn’t prove that until much later,” he said.

Both the Clinton and Bush administrations ultimately chose not to respond, said Cmdr. Lippold, who recently penned a book on the attack, “Front Burner: Al Qaeda’s Attack on the USS Cole.”

“All the Clinton administration wanted to do was wrap up the investigation and get out of town, and not leave any political baggage on the table. By the same token, the Bush administration came in and viewed the attack as ‘stale,’ according to Deputy Secretary of Defense [Paul] Wolfowitz, so they didn’t respond. They took the attitude of ‘forward acting, not backward looking,’” Cmdr. Lippold said.

“And consequently with no reaction to the Cole, bin Laden was incensed, and felt that we were weak, that we wouldn’t respond, and while we will never be able to ask the big unanswered question of had we responded to Cole, would we have tipped a piece of intelligence somewhere to detect 9/11 — I guarantee you, by doing nothing, we sealed our fate,” he said.

‘Justice takes time’

During this week’s three-day hearing, a military judge will hear arguments from the defense and prosecution on motions that will affect how the case is tried.

The motions include whether evidence obtained through waterboarding will be admissible, whether al-Nashiri can give a current photo of himself to his family to show his condition, and whether his upcoming trial will be aired via closed-circuit or broadcast to a larger audience.

The motions hearing has been a long time coming, given that al-Nashiri was first charged in 2008.

There are several reasons for the delay, said Heritage Foundation senior legal fellow Charles “Cully” Stimson, a military judge and trial lawyer who served as deputy assistant secretary of defense for detainee affairs in the Bush administration.

Mr. Stimson noted that al-Nashiri was on the lam until 2002, when he was captured by the CIA, which held him as a law-of-war prisoner until September 2006. As an enemy combatant, al-Nashiri lacked the right to be brought to trial.

In 2006, the Supreme Court ruled in Hamdan v. Rumsfeld that the president needs express congressional authorization to establish military commissions to try combatants. A rewrite of the commissions law was approved and signed later that year.

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