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USS Cole trial to be capital case

The Pentagon has approved charges that carry a possible death penalty for a Guantanamo prisoner accused of planning the deadly attack on the USS Cole.

Abd al-Nashiri would face charges that include murder in violation of the law of war for allegedly planning the attack that killed 17 sailors and wounded 40 while the US Navy destroyer was stopping in Yemen on October 12 2000.

The US must now bring him before a judge within 30 days for his arraignment before a military judge at the US base in Cuba.

It would be the first death-penalty war crimes trial for a prisoner at Guantanamo under President Barack Obama, who had pledged to close the detention centre but ran into congressional opposition to moving detainees to the US.

Al-Nashiri, a Saudi of Yemeni descent, was captured in Dubai in November 2002 and flown to a CIA prison in Afghanistan known as Salt Pit before being moved to another clandestine CIA facility in Thailand, where he was waterboarded and threatened with a power drill during interrogation, according to a report by the CIA's inspector general released in 2009.

His Pentagon-appointed lawyer, navy Lt Cmdr Stephen Reyes, said the treatment amounted to torture and he had asked the Convening Authority to drop the charges or at least remove the potential death penalty.

Lt Cmdr Reyes also argues that the military commissions, despite being revamped in 2009, are still flawed, allowing defendants to be convicted with hearsay evidence or without the government being compelled to put all its witnesses on the stand. "All this can be done and the client can get the death sentence," he said. "How can we have any confidence in whatever is the outcome of this trial?"

There have been six prisoners convicted of war crimes, four through plea bargains, at Guantanamo, in Cuba. None has received the death penalty.

The US is preparing charges against five defendants accused of orchestrating the September 11 2001 attacks, including self-proclaimed mastermind Khalid Sheikh Mohammed in what is also likely to be a capital case.

There are 171 prisoners at Guantanamo, and the government has said about 35 could eventually face war crimes charges.

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