Pentagon rejects USS Cole plea deal, setting first Guantánamo death penalty trial for June 2026
Deputy Defense Secretary Steve Feinberg rejects plea deal for USS Cole bomber Abd al-Rahim al-Nashiri, forcing death penalty trial in June 2026
Abd al-Rahim al-Nashiri, a 61-year-old Saudi national, has been held at Guantánamo Bay since September 2006. He was captured in the United Arab Emirates in October 2002, held in CIA black sites in Thailand, Poland, and other undisclosed locations for nearly four years, then transferred to Guantánamo with 13 other 'high-value detainees' in September 2006.
He was first charged in December 2008, those charges were dropped under Obama in February 2009, and he was re-indicted in April 2011. Since then, the military commission has spent 15 years in pretrial proceedings, working through the evidentiary and legal wreckage left by his torture.
Key Concepts
Essential concepts and terms to understand this topic
Privileges or Immunities
Fourteenth Amendment clause protecting the fundamental rights of U.S. citizens, effectively nullified by the Supreme Court in 1873.
Grand Jury Indictment
Citizens must approve serious criminal charges before trial starts.
Due Process
The fundamental constitutional requirement that government follow fair procedures and apply laws reasonably to protect life, liberty, and property.
Prison Conditions
Constitutional ban on cruel and unusual punishment of inmates
Gideon v. Wainwright
Gideon v. Wainwright established that states must provide lawyers to criminal defendants who cannot afford them, enforcing the Sixth Amendment right to counsel.
Procedural Due Process
Fair procedures that government must follow—notice, hearing, neutral decision-maker—before taking someone's life, liberty, or property.
Admiralty and Maritime Jurisdiction
Federal court authority over shipping, navigation, and ocean commerce
Habeas Corpus
The right to challenge unlawful imprisonment in court, allowing detainees to ask a judge whether their detention is legal.
Public Trial
Sixth Amendment right to open criminal proceedings viewable by the public
Key People
10AA
Abd al-Rahim al-Nashiri
Defendant; alleged architect of USS Cole bombing
Al-Nashiri, 61, has been held at Guantánamo since 2006. A Saudi national who traveled to Afghanistan in the early 1990s and later became an al-Qaeda operational planner in the Arabian Peninsula, he has been in pretrial proceedings since 2011. A Yemeni court sentenced him to death in absentia in 2004. His torture history — documented by CIA records — is the central legal obstacle to his prosecution.
Steve Feinberg
Deputy Secretary of Defense
Feinberg, co-founder of private equity firm Cerberus Capital Management with no prior government experience, was delegated authority over the military commissions by Hegseth and made the Feb. 5, 2026 decision to reject the plea. At his confirmation hearing, he refused to acknowledge Russia's invasion of Ukraine. His decision overruled the professional judgment of the military prosecutors who had negotiated the deal.
Pete Hegseth
Secretary of Defense
Hegseth delegated military commissions authority to Feinberg and did not personally make the plea decision. He has publicly described the military commissions as a priority and called for accountability in terrorism cases, consistent with rejecting a plea that would have taken the death penalty off the table.
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Allison F. Miller
Defense attorney for al-Nashiri
Miller said the plea deal 'would have brought actual finality to a nearly 26-year-old crime.' She predicted the trial will 'air the horrors perpetrated against Mr. al-Nashiri by the American government' — signaling her defense strategy will center on CIA torture rather than contesting al-Nashiri's factual role in the bombing.
LJ
Lanny J. Acosta Jr.
Military judge, al-Nashiri military commission
Col. Acosta issued the pivotal August 2023 50-page ruling excluding al-Nashiri's 2007 confessions as tainted by prior CIA torture. His ruling — 'Exclusion of such evidence is not without societal costs' — directly shaped the evidentiary landscape that made prosecution without a plea agreement significantly harder.
Paul Abney
Retired U.S. Navy Master Chief; USS Cole survivor
Abney survived the Oct. 12, 2000 bombing and publicly supported the plea deal, telling reporters he just wanted 'finality.' He said he would attend the trial at Guantánamo to represent the ship and those who couldn't make the trip. His voice represents one side of the divided victims' family community — those who prioritize certainty of accountability over the possibility of a death sentence.
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Gina Haspel
Former CIA Director; supervised al-Nashiri's interrogation at Thai black site
Documents released in connection with the case identified Haspel as the supervisor of the CIA's Cat's Eye black site in Thailand where al-Nashiri was first waterboarded in 2002. She later served as CIA Director under Trump's first term. Her documented role in al-Nashiri's torture may be raised during trial proceedings.
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Carol Rosenberg
New York Times reporter; Guantánamo correspondent since 2002
Rosenberg has covered every aspect of the Guantánamo military commissions since the first detainees arrived in January 2002 and broke the Feb. 5 news of Feinberg's plea rejection. Her decades of reporting provide the only sustained journalistic record of the commission proceedings, which are conducted at a remote location with highly restricted press access.
Lloyd Austin
Former Secretary of Defense (Biden administration)
Austin also rejected a plea agreement in the USS Cole case in 2024, revoked the negotiating authority of the Military Commissions Convening Authority, and reserved that decision for himself — then rejected the deal. His rejection predated Feinberg's, establishing that civilian political leadership of both parties has blocked plea resolutions in this case.
KS
Khalid Sheikh Mohammed
Defendant, Sept. 11 military commission case; KSM
The Sept. 11 case — involving KSM and four co-defendants — has been in pretrial proceedings since 2012 and still has no trial date. It faces the same torture-derived evidence problems as the al-Nashiri case. KSM accepted a guilty plea deal in 2023 that Austin subsequently revoked. The al-Nashiri trial will be the first test of whether the military commission system can complete a capital case — with profound implications for the Sept. 11 prosecution.
What you can do
Follow Carol Rosenberg's reporting on the Guantánamo proceedings
education
Rosenberg is the only journalist who has covered every stage of the Guantánamo military commissions since 2002. Her New York Times reporting is the most comprehensive public record of the proceedings' legal complexities, including the evidence suppression rulings that will define the al-Nashiri trial.
Contact your senators about military commissions oversight
civic action
The Senate Armed Services Committee has jurisdiction over the military commissions system. The al-Nashiri trial will be the first capital proceeding in the system's history and will test whether torture-derived evidence problems — accumulated over 20 years — can be overcome. Congressional oversight could produce reforms that address these structural problems before the Sept. 11 case reaches trial.
Read the Senate Intelligence Committee's 2014 torture report executive summary
education
The 500-page executive summary of the Senate Intelligence Committee's Torture Report documents the CIA interrogation program that produced the evidence problems now driving the USS Cole trial. It is the most detailed public account of what happened to al-Nashiri and other detainees in CIA black sites and is directly relevant to understanding why his confessions were suppressed.