In the nearly 12 years since a prisoner was charged in the bombing of the U.S.S. Cole warship, eight parents of the 17 fallen American sailors have died waiting for a trial to begin.
In the two decades since the attack, 10 more shipmates have also died.
Early in the case, relatives and survivors would travel to Guantánamo Bay to observe pretrial proceedings, filling the seats in a special section of the court. Late this June, just two members of that group were there — a sailor’s father and a naval officer who survived the blast.
The bombing of the Cole never garnered the attention of Guantánamo’s better-known prosecution of the five men who are accused of plotting the attacks of Sept. 11, 2001. That case also grinds on in its second decade.
But the Cole attack came first, on Oct. 12, 2000. And as time ticks by, it has become, for many, a forgotten case on a faraway U.S. military base where the notion of justice seems elusive as the war on terrorism recedes from memory and the conflict in Ukraine takes center stage.
“I can’t name another case in United States history, a criminal case, that has taken 20 years to prosecute,” said Anton J. Gunn, whose brother Cherone, a seaman apprentice, was killed in the bombing at age 22.
Mr. Gunn and his father, a retired Navy chief petty officer named Louge “Lou” Gunn, traveled together to Guantánamo Bay to observe hearings in 2012. Lou Gunn died in 2016. He was 65. Now, both the father and the son are buried at Arlington National Cemetery in Virginia.
“It’s disappointing and demoralizing,” Mr. Gunn said. “I’m a patient man, and I just want to hear the details. I’m not even presuming guilt at this point. I want to get past the procedural motions of what’s admissible and what’s not admissible, this delay and that delay. Let’s get to the trial.”
One of the two people watching the hearings in late June was Denise D. Woodfin, a retired Navy lieutenant commander with a Purple Heart from the attack. If no one represented the fallen, “it would be a tragedy and a disservice not only to our Gold Star families but also the crew,” she said. Gold Star families are relatives of U.S. military members who died in the line of duty.
She was in the court on Nov. 9, 2011, the day that the prisoner, Abd al-Rahim al-Nashiri, was formally charged, nine years after his capture. She has returned eight more times to honor the dead, especially those who died after the bombing.
For some, there is a certain comfort or solidarity in coming back to the base, where soldiers in battle dress chaperone them as distinguished visitors. The government has built a cottage for them and their memorabilia. They gather there and keep photos of the crew, memorial plaques and commemorative coins, a quilt with the ship’s crest and a weatherworn Cole flag that had flown above the court compound.
Mr. Nashiri, 58, a citizen of Saudi Arabia, is accused of being the mastermind of the bombing.
Prosecutors portray him as a deputy to Osama bin Laden who, using aliases, rented a safe house and helped purchase explosives for the boat bomb that terrorists used in the suicide attack on the Cole. Federal agents have testified that he was identified as such in early 2000s interrogations with Yemeni witnesses who are dead or who cannot be found to testify, and that Mr. Nashiri later bragged about his role.
Defense lawyers dispute the reliability of the testimony as hearsay and have asked that it be excluded from his eventual trial. They also challenge confessions he made at Guantánamo Bay after he was tortured by the C.I.A. The judge has yet to rule.
The case against Mr. Nashiri is the longest-running death penalty case in the war against terrorism. Rather than being taken to the United States for trial after his arrest in Dubai in 2002, he was held for four years in the C.I.A.’s secret overseas prisons. There, psychologists used waterboarding and other forms of torture to try to get him to disclose Qaeda secrets.
Those actions haunt the case to this day. To the families’ dismay, a focus of the court’s attention has been whether torture has tainted the case, a thorny topic that has slowed the path to a trial.
In the interim, U.S. drone strikes have killed three other men who, according to U.S. intelligence, had key roles in the Cole attack.
Sometimes Mr. Nashiri sits passively in court, a distant figure who rarely looks back from his seat 50 feet from the gallery. Sometimes he listens to the proceedings from an oversized holding cell adjacent to the courtroom.
In the first years, a core group of military retirees would converge on Andrews air base in Maryland for the flight to Guantánamo Bay to witness the court that George W. Bush built after Sept. 11. They assembled in the distinguished visitors’ lounge on a Saturday or Sunday to fly in the first class cabin of a charter flight for a week of hearings that began on Monday.
In court, they still get special seats in the gallery behind the prosecution. A blue privacy curtain separates them from other court watchers, the journalists and the legal observers.
But now most of the seats in their section are empty.
In 2020, former Marine Gunnery Sgt. Jesse Nieto, 76, died of a heart attack without ever seeing the trial of the man who was accused of masterminding the bombing that killed his son, Petty Officer Second Class Marc Ian Nieto, 24. John Clodfelter, 72 who often spoke of seeing the trial on behalf of his son Petty Officer Second Class Kenneth Clodfelter, 21, died in 2021. That was less than three years after Kenneth’s mother, Gloria, 64, passed away.
“There still needs to be some kind of justice,” said James G. Parlier, 66, a retired Navy command master chief who was on board the Cole the day it was attacked and has lost count of how many times he has attended hearings. “The courts need to see that we are watching and sitting in the gallery, not letting this go, until there is an end to the pretrial hearings.”
Thomas Wibberley, 74, said he first observed the hearings at Guantánamo Bay seven years ago after a former prosecutor made a personal appeal to him and his wife, who lost their son, Seaman Craig B. Wibberley, 19, in the attack. “It meant a lot to have family members in the courtroom,” he recalled Brig. Gen. Mark S. Martins telling them, particularly for the lawyers and the judge.
A relative newcomer to the case, Mr. Wibberley has returned 12 times. In the process he has gone from a quiet, reserved student of the proceedings to an aggrieved father agitating for the trial to start.
He says there is plenty of blame to go around for the endless nature of pretrial proceedings — defense lawyers maneuvering, government procrastination, the pandemic that closed the war court for about 500 days.
Mr. Nashiri was not even formally charged until 2011, a delay that Mr. Wibberley blames on President Barack Obama, who in 2009 put all Guantánamo cases on hold to overhaul the war court and give capital defendants greater rights. That process took more than a year.
Mr. Wibberley has watched federal agents testify in lengthy hearings on the admissibility of hearsay from their investigations in Yemen and about their 2007 interrogation of the prisoner.
It has been quite the education, Mr. Wibberley said. Along the way he has concluded that it is time to assemble a jury of military officers and hold the trial with all allowable evidence, knowing that lengthy appeals will follow any capital conviction.
“Even if he’s convicted, he’ll never be put to death,” Mr. Wibberley said. “All we’re going to get is proof of who did it.”
The current case judge, Col. Lanny J. Acosta Jr., is expected to decide some key pretrial issues in the case this summer, then step down to retire.
It will be up to the next judge, the fourth on the case, to try to steer the case to trial.