At Guantanamo, officers are questioned for the jury in the USS Cole trial, the first capital case in the military commissions' history

The Cole was refuelling in Aden when a small boat loaded with explosives pulled alongside and blew a hole in the destroyer's hull. Seventeen sailors were killed and dozens wounded. The attack came eleven months before September 11 and was carried out by al Qaeda. Prosecutors say al-Nashiri planned it. He has been in American custody since 2002 and at Guantanamo since 2006.

The case has taken a quarter of a century to reach a jury, and the reasons are in the record. Al-Nashiri was held in secret CIA prisons and subjected to waterboarding and other abuse. In August 2023 the military judge then hearing the case ruled that his confession could not be used, because statements taken after that treatment cannot be separated from it. On October 30 of this year, Judge Fitzgerald ruled al-Nashiri competent to stand trial, rejecting the findings of defense experts. Fitzgerald has told the officer pool that the trial itself, once a jury is seated, could last four to six months or longer.

No military commission case has ever gone to a capital verdict. The commissions were built after September 11 to try foreign terrorism suspects outside the federal courts, and in 25 years they have produced a small number of convictions, most of them by guilty plea. The Cole trial is the first in which an American military jury will be asked to decide whether a man lives or dies, in a courtroom built for a war that began in 2001, over an attack that happened in 2000.