The New York
defendants on trial in Yemen yesterday: from left, Fahd al-Qusaa,
Mamoun Msouh, Murad al-Sirouri and Ali Muhammad Saleh. All four were
found guilty of belonging to Al Qaeda and given jail terms.
MacFARQUHAR and DAVID JOHNSTON
Published: September 30, 2004
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CAIRO, Sept. 29 - A judge in Yemen sentenced two men to death and
four others to prison terms of up to 10 years on Wednesday for the
deadly attack in 2000 against the American destroyer Cole. The
convictions were the first ones stemming from the maritime suicide
bombing, which provided an early glimpse of the brazen nature of
Osama bin Laden's global terror network.
Abd al-Rahim al-Nashiri, a Saudi-born bin Laden associate, and Jamal
al-Badawi, a 35-year-old Yemeni, were sentenced to death for their
roles in the deaths of 17 United States sailors on board the
destroyer, for planning the attack and for organizing an armed gang
to carry it out.
Mr. Nashiri, in custody at an undisclosed location outside the
United States, was tried in absentia.
Law enforcement officials have suggested that Mr. Nashiri, who was
arrested in the United Arab Emirates and transferred into American
hands in 2002, was the mastermind behind the Cole bombing on Oct.
12, 2000, and also played a key role in the United States Embassy
bombings in Kenya and Tanzania in 1998.
In the Cole attack, two men in a small dinghy laden with explosives
bashed into the side of the destroyer as it was refueling in the
southern Yemeni port of Aden, killing the sailors and opening a
gaping tear in its hull.
Cries of "God is Great!'' erupted from the defendants when Judge
Najib al-Qaderi read out the sentences, and relatives in the packed
courtroom shouted that the sentences were unjust.
"These are American sentences!'' yelled Mr. Badawi, bearded and
wearing a long white robe, after he heard his death sentence. "The
judge and the entire Yemeni government are tools in the hands of the
In the United States, government officials expressed satisfaction
with the outcome of a case in which investigators from the Federal
Bureau of Investigation and the Naval Criminal Investigative Service
worked closely for nearly four years with the Yemeni authorities.
The verdicts represented a milestone for overseas investigative
efforts and appeared to signal that Yemen had adopted a tougher
stance toward terrorism, American counterterrorism officials said.
But the verdicts came after a sometimes strained investigative
Senior American officials - like the F.B.I. director, Robert S.
Mueller III, and his predecessor, Louis J. Freeh - traveled to Yemen
several times to urge greater cooperation when the Yemeni
authorities balked at providing investigators with access to
witnesses and evidence. Several times, American investigators were
ordered out of Yemen by their agencies because of security risks.
The issuance of two death sentences did not appear to stir concern
among American officials. But the sentencing of Mr. Nashiri raised a
potential issue for the United States. He is the one of the six
defendants being held outside Yemen and is one of about a dozen
high-value Qaeda suspects being held by the Central Intelligence
Agency at undisclosed locations outside the United States.
He has been regarded as a senior Qaeda operative in the Persian Gulf
region whose capture in November 2002 was hailed by the American
authorities as a potential intelligence coup because of his wide
ranging knowledge of Al Qaeda's operations and plans. It is unclear
how much information he has provided since his apprehension.
Unlike lower-level Qaeda detainees held in places like Afghanistan
and Guantánamo Bay, Cuba, prisoners like Mr. Nashiri have not been
granted access to lawyers or visits by human rights groups. It
remains unclear whether the government is willing to transfer Mr.
Nashiri to Yemen to face the death sentence or whether the American
authorities would resist such a move on legal grounds or because of
his intelligence value.
Two of the men sentenced Wednesday, Mr. Badawi and Fahd al-Qusaa,
were charged in May 2003 in a 50-count indictment returned in New
York for their role in the Cole attack. The indictment was brought
after both escaped from a Yemeni jail and was intended in part to
allow Interpol to issue a "red notice'' authorizing their detention.
Both men were recaptured, and it is unclear whether federal
prosecutors will now seek to try either of them in the United States
on the indictment's charges.
That indictment said Mr. Badawi had procured safe houses for the
attackers, obtained the boat used in the attack along with the truck
and trailer used to tow the craft to the harbor in Aden. It said Mr.
Qusaa had prepared to film the attack from an apartment overlooking
the harbor. Mr. Qusaa, who received a 10-year sentence, was supposed
to film the bombing but overslept and missed the attack, the judge
said. He underwent training in Qaeda camps in Afghanistan, and a
video camera was discovered in the apartment he fled after the
Lawyers who helped defend the men in Yemen objected to the entire
proceedings, noting that the suspects were judged by an exceptional
court set up for the very purpose of trying terror suspects and
therefore outside the country's Constitution.
"The procedures that took place completely breached the right to a
fair defense,'' said Mohammed Naji Allaw, a defense lawyer who had
previously withdrawn from the case to protest the proceedings. In a
telephone interview, he also said that the men had been tortured to
extract confessions during their four years of imprisonment.
All six defendants were found guilty of belonging to Al Qaeda.
Maamoun Msouh was sentenced to eight years for helping Mr. Badawi by
handling funds and forging identity papers, the latter crime also
garnering five-year sentences for two former Interior Ministry
employees, Ali Muhammad Saleh and Murad al-Sirouri.
Mr. Badawi said he would appeal his death sentence, and the five
other defendants are also likely to seek to have the sentences
overturned. They can take their cases to the Court of Appeals and
eventually the Supreme Court. In addition, all death sentences,
which are carried out by firing squad, need confirmation by
President Ali Abdullah Saleh.
In previous political cases, the president has either annulled or
reduced sentences and even pardoned some individuals, Mr. Allaw
said, but he added that the president's ability to dismiss judges
prevented them from making independent decisions.
The death sentences on Wednesday, although among the first for
violence linked to Al Qaeda, are not rare in Yemen. Last month, the
same special court gave 15 defendants sentences ranging from three
years to death for various terror plots and attacks. Those
imprisoned for 10 years included five Qaeda supporters for the 2002
bombing of the French supertanker Limburg in an attack similar to
that on the Cole. The militant sentenced to death was convicted of
shooting dead a police officer at a checkpoint.
Yemen is Mr. bin Laden's ancestral homeland and was considered a
safe haven by members of Al Qaeda fleeing American-led forces in
Afghanistan after the attacks of Sept. 11, 2001.
But Yemen has been trying to distance itself from a reputation for
harboring terrorists. It has arrested hundreds of suspects and taken
steps like allowing the United States to use a missile to
assassinate an important Qaeda operative in 2002.
Neil MacFarquhar reported from Cairo for this article, and David
Johnston from Washington.