By Lawrence Hurley
WASHINGTON (Reuters) - A U.S. appeals court on Tuesday rejected a challenge by the alleged mastermind in the bombing of a U.S. ship in Yemen in his upcoming trial before a military tribunal.
A three-judge panel of the U.S. Court of Appeals for the District of Columbia Circuit ruled against Saudi defendant Abd al Rahim al Nashiri on a 2-1 vote.
Nashiri, a detainee at the U.S. naval facility in Guantanamo Bay, Cuba, is accused of overseeing a plan by militant Islamic group al Qaeda to ram a boat full of explosives into the side of the U.S. guided-missile destroyer Cole off Yemen in 2000. Seventeen U.S. sailors were killed in the blast that tore a huge hole in the ship. He has also been linked with an attack on a French ship and an attempted attack on a second U.S. vessel.
His lawyers challenged whether the U.S. military commission had jurisdiction to hear his case. The lawyers argue that the United States was not engaged in "hostilities" with al Qaeda at the time of the attacks, meaning his acts were not crimes of war.
Writing for the court, Judge Thomas Griffith said Nashiri had to wait until after the trial to renew his claims because court precedent urges judges not to intervene in ongoing military legal proceedings.
Judge David Tatel wrote a dissenting opinion saying the court should have considered Nashiri's case now, citing the "extraordinary and unusual circumstances," including the allegation that he was subject to "years of brutal detention and interrogation tactics."
Nashiri was captured in October 2002 and has been in U.S. custody since then. He was at one point kept at so-called Central Intelligence Agency "black sites" where he was interrogated, according to his testimony. He has been detained at the Guantanamo facility since 2006.
(Editing by Jeffrey Benkoe)