- The Washington Times - Sunday, July 15, 2012

The Navy destroyer was moored for a routine refueling stop at the Port of Aden in Yemen on a Thursday morning when two men in a small civilian boat approached. They smiled and waved at crew members as they guided their vessel toward the port side of the ship.

Suddenly, they increased speed, aiming their boat like a dart at the warship’s waterline.

It was Oct. 12, 2000, and the ship was the USS Cole.

“I was sitting at my desk at 11:18 when there was a thunderous explosion. You could feel all 505 feet and 8,400 tons of guided missile destroyer quickly and violently thrust up and to the right,” said retired Navy Cmdr. Kirk Lippold, commanding officer of the Cole at that time.

“We seemed to hang for a second in the air, came back down, rocked from side to side, ceiling tiles popped out, lights went out, everything on my desk popped up, landed back down,” Cmdr. Lippold said.

The blast, which tore a 40-by-60-foot hole in the Cole’s steel hull, killed 17 sailors and wounded 39 others — the deadliest assault on a U.S. warship in more than a decade. The al Qaeda terrorist network claimed responsibility for the suicide attack.

On Tuesday, the accused mastermind of the Cole attack — Abd al-Rahim Hussayn Muhammad al-Nashiri — is set to appear at a military court hearing at Guantanamo Bay, Cuba.

A Saudi of Yemeni descent, al-Nashiri, 47, is charged with 11 counts related to orchestrating the Cole bombing, as well as an attempted attack on the USS the Sullivans in January 2000. He faces the death penalty.

‘It still hurts’

For John and Gloria Clodfelter of Mechanicsville, Va., Tuesday’s hearing is just one step along the long road for closure.

The Clodfelters lost their eldest son in the Cole attack — Petty Officer 3rd Class Kenneth Clodfelter, 21 — and they will make the trip to the Guantanamo Bay detention facility to attend al-Nashiri’s hearing.

“I owe it to my son to go ahead and make certain that they haven’t gotten away with this stuff. To be able to face this person and, if nothing else, to let him know that he hasn’t gotten away with what they did,” Mr. Clodfelter, a retired Air Force veteran, said in a phone interview.

“It still hurts. It still hurts a whole lot,” he said. “But it’s important that people make certain that it’s not forgotten.

“If people do forget about what happened, it’s going to be that much easier for them to do it to another Navy ship,” he said.

The Clodfelters have a daughter who is serving in the Navy and recently returned from an eight-month deployment.

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.

Mr. Stimson also noted that since military court judges are independent, they move cases as quickly as they can but according to their own schedules.

Al-Nashiri’s defense counsel, Richard Kammen, is challenging every aspect of the government’s case in a “zealous and ethical manner,” he said.

“These things take time,” Mr. Stimson said. “The wheels of justice go very slow but they do so with deliberate speed. Justice takes time.”

The case also stalled when the Obama administration in 2009 tried to transfer the cases of al-Nashiri and five accused 9/11 plotters to civilian federal court as part of an effort to close the Guantanamo Bay detention facility, which human rights groups said violates the Geneva Conventions. They also argued that military tribunals were flawed because they allow defendants to be convicted with hearsay evidence and do not compel the government to put all of its witnesses on the stand.

Staunch opposition from Congress blocked the transfers, and the military commissions system underwent another reform in 2009 that expanded the rights of the accused and prohibited the use of evidence obtained by torture or cruel, inhumane and degrading treatment. The changes were implemented in 2010. In 2011, the U.S. renewed the cases against al-Nashiri and five accused 9/11 plotters under military tribunals at Gitmo.

“I am incredibly disappointed that it’s taken as long as it has,” said Cmdr. Lippold. “The defense team has lodged over 100 motions that have to be acted upon, each one is going to take weeks and not months. The defense is going to drag this process out for years. The American people are not going to see justice.”

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