Abstract: The United States has endured significant challenges over the past 20 years in securing justice for the victims of the attack on the USS Cole, which was carried out by al-Qa`ida on October 12, 2000. At best, the United States has achieved only a partial sense of justice for the victims of the Cole attack and their families. It has been able to hold only five of the perpetrators of the attacks accountable for their crimes, two through continued detention at Guantánamo Bay and three killed in airstrikes. Twenty years later, no trial has been conducted by the United States for the perpetrators, either in federal court or in the military commission system. Yemen has held at least seven of the perpetrators accountable, though all have been released and some returned to militant activity. Justice, in the case of the Cole has been long, complicated, and mostly unsatisfying, and in many ways this illustrates the broad difficulties associated with the vital concepts of justice and accountability during the fight against terrorism.
On October 12, 2000, two al-Qa`ida suicide bombers attacked the USS Cole, a U.S. warship refueling in the port of Aden, Yemen. The suicide bombers had placed nearly 500 pounds of explosives inside a small fishing vessel and maneuvered it alongside the Cole, blasting a large hole near the ship’s galley.1 The attack killed 17 American sailors, injured dozens more, and nearly sunk the Cole.2 Less than 11 months afterward, the attacks of 9/11 occurred, ushering the United States and its allies into the “Global War on Terrorism.”
After 20 years and efforts spanning four presidential administrations, the question of whether the United States achieved justice for those killed in the attack on the Cole remains. It is a vital question because the nation’s response to the Cole reveals many of the difficulties the country has experienced during the past 20 years of counterterrorism operations. Ultimately, an examination of the U.S. response to the attack on the Cole shows that, at best, only a sense of partial justice has been achieved for the victims and their families.
This article proceeds in three parts. First, using a variety of government reports and memoirs of senior civilian officials, it summarizes the initial efforts of the U.S. response to the attack, outlining some of the major bureaucratic difficulties that hindered the government from mounting a swift and effective response. Second, relying on open-source data, it examines in detail the fates of 10 individuals operationally connected to the attack. Third, it examines the degree to which there has been accountability and justice for the Cole attack—a difficult endeavor in any setting but even more difficult in the context of the war on terrorism. The article ultimately argues that the pursuit of justice in the case of the Cole has been complex, challenging, and remains incomplete. For this reason, even as the nation and the U.S. military prepares to encounter evolving threats, to include those posed by near-peer competitors, the United States must continue to focus on achieving justice for the perpetrators of terrorist attacks such as that against the USS Cole.
Lost in Transition
Speaking the day after the attack, President Bill Clinton vowed to bring the perpetrators to justice, stating “we will find out who was responsible and hold them accountable.”3 However, turbulent domestic politics and bureaucratic indifference within the U.S. government with respect to terrorism prevented the United States from forming and delivering a coherent response in the immediate months after the attack on the Cole. Though the U.S. government suspected early on that al-Qa`ida was responsible, U.S. intelligence agencies did not confirm that the terrorist group was behind the attack until December 2000.4 In the intervening period between October and December, moreover, the United States experienced a bitter and ultimately contested presidential election that went undecided until December 12, 2000, when the Supreme Court ruled in favor of George W. Bush.5 Key personnel working within the Clinton administration, such as President Clinton’s National Coordinator for Security, Infrastructure Protection, and Counter-Terrorism Richard Clarke, vigorously fought to ensure that there would be no momentum lost between the transitioning administrations with respect to terrorism and, in particular, delivering a response to al-Qa`ida for the attack on the Cole. But the combination of less-than-certain intelligence and handover among key personnel within the administrations meant that the perceived degree of urgency in responding to the attack on the Cole weakened.a
Moreover, in the pre-9/11 era, terrorism was not viewed as a significant threat by many Americans.6 Consider that during the final presidential debate between George W. Bush and Al Gore, which occurred just five days after the attack on the Cole, the topics of terrorism, al-Qa`ida, and the attack itself were hardly mentioned. The debate moderator asked the audience to observe a moment of silence before the debate began, but not for those killed in the Cole bombing, but rather in memory of Missouri Governor Mel Carnahan, who died the night prior in a plane crash.7 Of the two candidates, Vice President Gore later mentioned the victims of the Cole attack during one of his responses, but neither candidate was asked to elaborate on a potential military response against, or on a government strategy for dealing with, al-Qa`ida. At the time of the attack on the Cole, most Americans simply did not perceive terrorism as a serious threat.
Bureaucratic disunity and a lack of focus were also present within and among multiple governmental agencies and organizations at the time, further complicating governmental efforts to form a sound response against al-Qa`ida after the attack on the Cole. For instance, in at least two investigations undertaken by the U.S. Navy and the Department of Defense regarding the attack, key findings and recommendations ultimately centered on issues related to force protection.8 At his final press conference on January 19, 2001, President Clinton’s Secretary of Defense, William Cohen, explained several of the conclusions reached by these investigations, stating, “we must constantly search for and find the so-called ‘seams’ in our force protection plans before our enemies do. In the case of the Cole, we did not do so … we need force protection measures that are more imaginative, more flexible, and less predictable.”9 While the issue of force protection is certainly important and was rightly included as a topic of the investigations, in retrospect it seems as though the government made the issue of force protection the primary concern, while other topics, including the growing threat posed by al-Qa`ida and how to respond to the attack, received secondary status.
Michael Sheehan, who served as Ambassador-at-Large for Counterterrorism at the State Department at the time, later recalled that in the months immediately following the attack on the Cole, the government writ large lacked a sense of outrage and anger.10 To Sheehan, it seemed that many within the government had come to view an occasional terrorist attack—even one that killed Americans—as simply “the cost of doing business in a dangerous world.”11 Richard Clarke further recalls in his memoirs that following a meeting in the days after the attack on the Cole in which several leaders from the Defense Department were present, Michael Sheehan was disgusted at what he perceived to be a general sense of apathy among several of the Defense officials regarding a potential military response against al-Qa`ida.12 In what is now a somewhat infamous recounting of that incident, Clarke recalls that Sheehan vented his frustration by exclaiming, “What’s it going to take, Dick (Richard Clarke)? … Does al Qaeda have to attack the Pentagon to get their attention?”13
Sheehan’s frustration also reveals a sense that in the pre-9/11 era among governmental organizations, to include the military, law enforcement, and intelligence agencies, there was not only disagreement about if and how the United States should respond against terrorism, but also concerning who should take the lead in responding and whether at its root terrorism fell under the jurisdiction of the legal, military, or intelligence communities. After leading a team to investigate the attacks on the Khobar Towers in 1996, which resulted in the deaths of 19 U.S. Airmen, General Wayne A. Downing, the former head of U.S. Special Operations Command, recalled that though he “emphasized people were at war with us [the United States] … no one [in government] wanted to address terrorism as war.”14 Further, in a lengthy interview with one of this article’s authors in 2015, Sheehan described how after the Cole attack, the government continued to “punt the issue of terrorism” despite a very clear record of al-Qa`ida attacking Americans in the years before the Cole bombing.15
Indeed, al-Qa`ida had been involved in several incidents involving actual or attempted attacks on Americans. In August 1998, al-Qa`ida struck the U.S. embassies in Kenya and Tanzania, killing 257 people, among them 12 Americans.16 A little more than a year later, toward the close of 1999, terrorists linked to al-Qa`ida planned a series of attacks that became known as the “Millennium Plots.” In one, Jordanian al-Qa`ida operatives attempted to attack Americans staying at hotels in Jordan, but the cell was broken up in December 1999.17 In another, an Algerian named Ahmed Rassam, who had trained in Afghanistan and had ties to al-Qa`ida, was arrested, also in December 1999, after attempting to smuggle his explosive-laden vehicle into the United States from Canada with the goal of attacking Los Angeles International Airport.18
Still, despite these many incidents in which al-Qa`ida clearly made both its intent and capabilities to kill Americans known, the attack on the Cole did not galvanize the nation, nor American leaders, to swiftly and firmly respond to the terrorist group. The timing of the attack, and in particular, its simultaneity with a spirited presidential campaign and the subsequent turnover between presidential administrations, combined with an imprecise accounting of the true threat posed by al-Qa`ida, prevented the formation of a timely and direct response to the attack. It would not be until 11 months after the Cole attack, on September 11, 2001, when any doubts about the threat posed by al-Qa`ida, or any sense of apathy about what to do about the group, would disappear.
The Fate of the USS Cole Attackers Explored
In order to assess the degree to which justice has been attained in the Cole case, it is important to first identify those individuals associated with the attack and their levels of culpability. The authors were able to compile a list of 12 individuals who were reported in the open source as being operationally connected to the Cole attack. Since two of those individuals, Ibrahim al-Thawar and Hassan al-Khamri, died conducting the attack, this analysis will continue using the 10 remaining names on the list.
In all data-driven examinations of terrorism, there are, unfortunately, inherent methodological challenges. First, it is difficult to determine a conclusive list of individual actors involved in a plot, as terrorist attacks are conducted by largely covert groups. This is especially problematic in the case of the Cole. Al-Qa`ida did not target the Cole specifically, rather Usama bin Ladin directed Walid bin Attash and Abdul Rahim al-Nashiri to develop a “boats operation” in Yemen.19 Prior to the attack on the Cole, there was a previous and failed attempt to attack another U.S. ship, the USS The Sullivans. While many of the individuals involved in the Cole attack were also involved in the attempt on the The Sullivans, not all those who participated in the The Sullivans attack plot were part of the attack on the Cole.b Similarly, when Yemeni authorities arrested al-Qa`ida suspects after the September 11th attacks and a number of other al-Qa`ida attacks in Yemen, many were held on charges of having been directly associated with the cell that conducted the Cole attack, when in actuality, they were merely linked to general al-Qa`ida activity in the country. Understandably, these arrests within Yemen generated significant media coverage, but a closer inspection of the evidence concerning several alleged individuals reveals that no concrete link between them and the attack on the Cole can be found.c
Second, specific determinations about the culpability of each individual can be a problematic endeavor as it requires drawing lines between what constitutes ‘involvement’ in a plot. In this case, the authors chose to draw the lines narrowly, including only individuals with a functional role in the commission of the attack (hereafter “operational role”). These operational roles included either planning, directing, facilitating, or conducting the attack on the Cole.
The narrow lines drawn by the authors excludes a cast of ancillary figures with supporting ties to al-Qa`ida’s overarching goals, but not the actual plot and attack against the Cole specifically.d Abu Abdul Rahman al-Muhajir, al-Qa`ida’s chief bomb maker, for instance, provided support and training for Abdul Rahim al-Nashiri, teaching him to construct the bombs.20 His role, however, appears limited to training, and no evidence exists to suggest that he traveled to Yemen to help construct the bomb,e resulting in his exclusion from the list. Despite these challenges, the authors believe the data provides an instructive look at the individuals most culpable for the attack and subsequent efforts to secure justice.
Aside from the two suicide bombers who perished in the attack against the Cole, the remaining 10 individuals operationally connected to the Cole attack held a variety of roles (Table 1). Three of the individuals (Abd al-Rahim al-Nashiri, Walid bin Attash, and Qaed Salim Sinan al-Harethif) have been accused of having key planning roles in the attack and each has been described as the “mastermind” of the attack.21 Two individuals (Jamal al-Badawi and Fahd al-Quso) played roles as local coordinators of the attack.22 The remaining five individuals in the data were found to have had a variety of logistical support roles such as providing fraudulent documentation (passports) for others involved in the plot, finances, and explosives, or assisting with attack preparations, reconnaissance, or security.
Moreover, the 10 individuals involved in the plot have endured a variety of outcomes: three (excluding the attackers themselves) are deceased, two are detained at Guantánamo Bay, and the whereabouts of the remaining five are unknown. All three of the deceased were killed in airstrikes by the United States.23 Of the 10 individuals in the data, seven were tried or incarcerated in Yemen for their role in the attack and either escaped or were released from prison at the completion of their sentences or as the result of an amnesty agreement made by the Yemeni government in 2007.24 Of those seven, two are deceased and the whereabouts and activities of the other five are unknown.
Justice and Accountability for the Cole Attack
The data suggests that the long-term fight for justice has been far messier than might be expected for what would today be considered a major terrorist attack against the United States. The United States was able to hold only five of the perpetrators of the attacks accountable for their crimes, two through continued detention at Guantánamo and three killed in airstrikes. At the same time, the threat from the cell that conducted the attack has, at this point, largely been dissipated, although not before some went on to continue their militant careers in the years after the attack. The U.S. government has, in some cases, struggled to obtain justice through legal systems in the Middle East, where such systems are both far less durable and approach law from a wholly different perspective than the United States, especially with respect to defining which activities constitute “terrorism.” The United States has been somewhat more successful in employing more unilateral means such as military operations, airstrikes, and detentions. Where military action was unsuccessful and where criminal prosecution through partnered nations failed, civil damages served as a last resort for grieving families. A brief examination of these outcomes offers the opportunity to study both the strengths and weaknesses of U.S. efforts to secure justice for the perpetrators of the attack on the USS Cole.
Trials in U.S. Federal Court
Immediately after the attack on the Cole, the FBI initiated a criminal investigation in Yemen to gather evidence and identify the perpetrators. The FBI worked closely with attorneys from the Southern District of New York, who would advance any prosecutions resulting from the investigation.25 In May 2003, Jamal al-Badawi and Fahd al-Quso were indicted for their roles in the attack, after their escape from Yemeni custody the month prior.26 Abdul Rahim al-Nashiri and Walid Attash, the more senior planners of the attack, were named as co-conspirators in the indictment, but were not charged.g The indictment was seen as a victory for the U.S. Department of Justice as debates emerged over whether individuals charged with terrorism should be tried in the federal court system versus military tribunals.27 No trial for al-Nashiri and Attash was forthcoming, however. Despite long-standing requests and U.S. pressure, the Yemeni government refused to extradite the men,h citing a constitutional article preventing the extradition of Yemeni nationals to foreign countries.28
Local Justice
While none of the Cole suspects has been tried in U.S. federal court, a number have faced trial and been convicted within Yemen. At least seven of the 10 individuals within this article’s dataset were arrested by Yemeni security services and sentencedi for their roles in the Cole bombing.j Justice in these cases appears incomplete, however, as all have either been released or escaped from Yemeni custody. This result stems from systemic limitations in the justice systems of developing nations, many of which, such as Yemen, are officially considered U.S. partners in the war on terrorism. These limitations derive from the unique domestic challenges and contexts within each of these nations. In particular, there are differing perspectives between the United States and these nations regarding the legal ramifications for individual actors suspected of and charged with terrorism. The fate of the Cole attackers offers a clear example of how the domestic challenges and differing legal perspectives in Yemen complicated the United States’ pursuit of justice.
First, Yemen has historically had issues with domestic support for groups like al-Qa`ida, requiring the Yemeni government to maintain a delicate balance with jihadis29 and hampering the support the United States could realistically expect from the Yemeni government. At various points in the initial Cole investigation, for example, U.S. investigators were hampered by Yemeni officials who either seemed sympathetic to al-Qa`ida members or appeared concerned the investigation’s disclosures could prove embarrassing. In the immediate aftermath of 9/11, however, counterterrorism cooperation between the United States and Yemen increased markedly. Yemeni President Ali Abdullah Saleh sought to demonstrate his willingness to cooperate with the Bush administration and to be seen as a counterterrorism partner rather than a potential U.S. target.30 As Cole plotters were arrested and tried, the United States had little choice but to trust the Yemeni justice system. When Yemeni domestic pressures mounted and these individuals were released or given lenient sentences, however, the United States could do little but watch, as there were no remaining diplomatic tools aside from bilateral engagement to encourage different outcomes.k
Second, weaknesses in Yemeni institutions diminished the ability of President Saleh to deliver the type of justice sought by the United States. In some cases, Yemeni security forces lacked the capability to arrest individuals suspected of involvement in the attack.l In others, Yemeni courts posed a more direct problem. For example, the seven individuals arrested by Yemeni security forces received relatively light sentences, escaped, or were released early as part of reconciliation efforts with the Yemeni government.31 m This point is demonstrated by the case of Jamal al-Badawi, who, after being arrested for his role in the Cole attack, was sentenced to death in September 2004.32 However, his sentence was later commuted to 15 years imprisonment despite objections from the prosecution that such a move was too lenient.33 Al-Badawi would later escape from prison and, upon surrendering himself to Yemeni authorities in 2007, received amnesty.34 Prosecutors in the case, in fact, pushed for stiffer sentences for all those convicted, including the death penalty for Fahd al-Quso and Mamoon Amswah, but in each case, these appeals were denied and sentences were reduced.35
Finally, pursuing justice in local venues exposed widely differing perspectives on the culpability of the perpetrators and the threat they represented. For U.S. officials and FBI investigators, for instance, Fahd al-Quso’s role as al-Badawi’s local deputy, his training in Afghanistan, and connections to al-Qa`ida members made him an important and potentially dangerous figure. Conversely, he was described as “a good simple youth” by the head of the Yemeni Political Security Organization in Aden.36 Al-Quso would later be arrested, escape from prison, be rearrested, and sentenced to 10 years’ incarceration, but was released after only three years.37 Additionally, while they are not included in the data for analysis, at least five additional individuals arrested by Yemeni security forces as ancillary Cole suspects were released in 2004 after “successful” participation in a Yemeni deradicalization program known as the Religious Dialogue Committee (RDC).38 n While it is difficult to know the exact number of Cole suspects who continued to engage in militancy, at least oneo of the seven individuals held in Yemeni custody ultimately reengaged.p
Military Tribunals
In some ways, the United States has been successful in obtaining a semblance of justice through detentions at Guantánamo Bay. Two of the most senior Cole plotters, al-Nashiri and Attash, have been in U.S. custody since their respective apprehensions in Dubai in 200239 and Karachi in 2003.40 However, only al-Nashiri is facing charges related to the Cole attack.q Attash, has been charged for his role in planning the September 11th attacks,41 but is not facing charges for his role in the attack on the Cole.r Justice—and closure—has been slow in coming. Al-Nashiri’s pending trial has been subject to multiple issues, including delays, changes in evidentiary standards, concern over al-Nashiri’s alleged subjection to “enhanced interrogation techniques” while in CIA custody,42 and whether he can even be tried as an enemy combatant for an offense that took place prior to 9/11.43
His trial has also been a source of scandal and embarrassment. In 2017, al-Nashiri’s defense team halted proceedings after microphones were found in the room where they met with him.s After refusing to order the defense attorneys to continue, the chief defense council for military commissions, Brigadier General John Baker, was found in contempt of court, a charge later overturned.44 In 2019, a federal appeals court threw out all pre-trial orders in the al-Nashiri case after it was revealed that then presiding judge Colonel Vance Spath was applying for a job as an immigration judge with the Department of Justice—a potential conflict of interests in a case jointly prosecuted by the Justice and Defense Departments.45 The ruling overturned nearly three and a half years of pre-trial rulings and effectively halted the prosecution. In 2020, the judge now overseeing the case set a new trial date for February 2022.46
Targeted Killings
While legal proceedings have been drawn out, inconclusive, or lacked finality, airstrikes have provided a somewhat more decisive means of administering justice to the Cole suspects, although the use of these strikes raises questions about their appropriateness in holding the perpetrators of attacks against the United States accountable. Three of the 10 individuals within the dataset have been killed as a result of U.S. airstrikes, all of which appear to have been specifically targeted.47
Each strike seems to have been an attempt by the United States to take action against individuals who were too difficult to apprehend through other means. The Yemeni government was unable to either induce al-Harethi’s surrender or to capture him. After being arrested and convicted in Yemeni courts, al-Quso and al-Badawi were both released from Yemeni custody, and despite U.S. attempts, neither was extradited to the United States.48 In some ways, military action was the last remaining tool to pursue justice against these individuals.t
At the same time, U.S. military action is not employed as a punitive measure to secure justice for the perpetrators of attacks against the United States but is utilized against individuals who represent a threat to the United States and its interests. Both al-Harethi, the leader of al-Qa`ida in Yemen, and al-Quso, AQAP’s external operations chief, represent cases where the continued threat was clear and identifiable. While some assert the strike against al-Badawi was justified by connections to active militants,49 these were publicly little known, and his description in the DoD press release announcing his death as a “legacy al Qaeda operative in Yemen involved in the USS Cole bombing”50 raised some questions about the legitimacy of the strike.51 While the finality of justice achieved through targeted airstrikes is not in doubt, the use of airstrikes as a counterterrorism tool has been controversial. The November 2002 strike against al-Harethi was the first use of a U.S. drone to conduct a strike outside Afghanistan,52 raising questions about whether such strikes were a violation of international law.u The death of a U.S. citizen during the al-Harethi strikev also raised questions about whether U.S. citizens could be targeted overseas without due process.53 As the situation in Yemen destabilized and AQAP grew stronger, attempting to launch attacks against the U.S. homeland, the initial strike against al-Harethi gave way to a campaign of strikes against AQAP militants in Yemen.w This led some to argue that rather than decreasing militancy in Yemen, the strikes have increased animosity for the United States among local tribes.54 While U.S. administrations have defended airstrikes as being authorized under the 2001 Authorization for Use of Military Force and argued the internal vetting processes before and during targeting operations serve as a form of due process, questions remain about both the long-term viability of these strikes as an option for future administrations and their appropriate place in bringing the perpetrators of attacks to justice.
Sudan v. Harrison and the Search for Justice in Civil Court
With little recourse remaining for the victims and their families to pursue justice directly, several have attempted to find it in U.S. civil court. Unsurprisingly, the perpetrators of the attack could not be easily sued, which led the families to seek damages from state actors suspected of harboring al-Qa`ida. In 2004, 59 surviving victims and family members filed suit in U.S. District Court against the Republic of Sudan, the former residence of Usama bin Ladin, for providing material support to al-Qa`ida.55 The suit argued that the autocratic regime of Omar al-Bashir actively supported al-Qa`ida and continued to do so well after bin Ladin’s expulsion in 1996.56
The suit was brought under the Foreign Sovereign Immunities Act of 1976 (FSIA), which provides countries with immunity from lawsuits by private citizens, but includes an exception for state sponsors of terrorism, a designation the U.S. government had given Sudan in 1993. The case was litigated for years in the federal judiciary, with successive legal victories for the families challenged on appeal until the U.S. Supreme Court took up the case Republic of Sudan v. Harrison in 2018. Sudan argued before the court that the suit was improper due to a technicality: the respondents had mailed the service packet to the Sudanese embassy in Washington, D.C., rather than directly to the foreign minister, as stipulated under the FSIA.57 In an action that was considered hurtful by at least one victim, Solicitor General Noel Francisco filed an amicus brief agreeing with Sudan on behalf of the U.S. government.58 In an 8-1 ruling on March 26, 2019, the Supreme Court found in favor of Sudan, citing the letter of the law as well as its “sensitive diplomatic implications.”59
In April 2019, following mass demonstrations, President Omar al-Bashir was ousted in a coup by the Sudanese military. The subsequent transitional government, eager to normalize its relations with other states, agreed to settle out of court with the victims and families of the Cole bombing for a rumored sum of around $70 million (USD).60 The agreement was not accompanied by an admission of complicity and came with the caveat that the settlement was made “because of the strategic interests of Sudan […] so it can remove its name from the US list of state sponsors of terrorism.”61 x After 16 years in the courts, the most direct route to justice pursued by the victims and families reached an imperfect and incongruous conclusion: restitution was dispensed, but seemingly without the accountability or apportionment of guilt.
Conclusion
The U.S. record in securing justice for the attack on the Cole is mixed. In the light of competing domestic pressures and a lack of clarity on how to react to the attack within the Clinton and Bush administrations, the initial U.S. response languished. The events of September 11th helped crystalize the role of terrorism as a national security priority, opening the aperture for tools available to secure justice and inducing Yemen to become a more willing partner in the fight against al-Qa`ida.
In some sense, this focus on terrorism was a boon to efforts to secure justice for the victims of the Cole attack. By the end of 2003, the three most senior plotters, al-Nashiri, Attash, and al-Harethi, were either in U.S. custody or dead, and many others were in Yemeni prison facing trial for their roles in the attack. In the years following, however, continued U.S. engagement in the global fight against al-Qa`ida with its ever-increasing list of high-ranking targets and the need to prevent further attacks consumed the resources of the U.S. government, undoubtedly reducing the priority of the pursuit of justice for the victims of the Cole.
In the final accounting, two of the perpetrators of the attack remain in U.S. detention at Guantánamo Bay, neither of whom have been tried for their crimes. None of those arrested in Yemen remain in custody, owing to release or escape, at least one of whom went on to participate in further plots against the United States. Three of the perpetrators are dead as a result of targeted U.S. airstrikes. The families of the Cole victims have gained a hard-fought, if inadequate, justice via the courts, securing a monetary settlement with the government of Sudan. In the end, what does justice look like for these families and for Americans concerned with seeing terrorists held accountable for their crimes? According to Commander (Ret) Kirk Lippold, the commanding officer of the USS Cole at the time of the attack, it is simple: “They just want to know that there is a defined legal process that works, that can result in a trial, a conviction, a sentence, and a penalty.”62 To Ali Soufan, the former lead FBI investigator in the Cole case, the answer is similar, but more specific, and focuses on prosecuting al-Nashiri: “At this point, the best sense of justice we’ll get is to prosecute Nashiri. When you prosecute Nashiri, you can give closure to the families for everything that happened regarding the USS Cole … we need to prosecute this case, and we have everything we need, including a ton of evidence, to do it.”63
Spanning the course of 20 years, four presidential administrations, and several major troop commitments in Afghanistan, Iraq, and Syria, the case of the Cole exemplifies the challenges and contradictions of securing justice in the “Global War on Terrorism.” The difficulties are myriad, from establishing culpability to marshalling the resources needed, finding the right legal avenues, and inducing the cooperation of foreign countries. While public statements about the resolve of the U.S. to bring perpetrators to justice are easy to make, maintaining focus on applying that justice—over time and across differing presidential administrations—is not.
The case of the USS Cole is not an aberration for the United States, nor should it be seen as a historical anecdote. The United States continues to grapple with what it means to achieve justice in the face of terrorism. The deaths of many key al-Qa`ida leaders, Usama bin Ladin among them, have partially secured justice for the victims of the September 11th attacks, although trials through the military commission system for those plotters held at Guantánamo Bay, including Attash, have yet to take place.64 Several Islamic State leaders who played roles in the 2014 executions of American hostages in Syria have been killed, and the wife of one has been charged in Iraqi courts.65 Two of the alleged perpetrators of those executions, El Shafee Elsheikh and Alexanda Kotey, have been returned to the United States and charged in U.S. federal court, a much needed breakthrough in efforts to secure justice against terrorists.66 As in the case of the USS Cole, individuals and agencies across the U.S. government endeavor to hold those who kill Americans accountable for their crimes, but the 20-year search for justice for the victims of the Cole bombing demonstrates that without consistent focus, securing this justice is often long, complicated, and, in many cases, unsatisfying. CTC
Lieutenant Colonel Pete Erickson is a Class of 2016 General Wayne A. Downing Scholar and is currently a Ph.D. student in the political science department at the University of Wisconsin-Madison. His research focuses on civil-military relations and military ethics.
Seth Loertscher is a Research Associate and Instructor with the Combating Terrorism Center at West Point. His research focuses on assessing the effectiveness of counterterrorism policy tools and trends in terrorist kidnapping and hostage-taking.
First Lieutenant David Clayton Lane is a 2017 graduate of the United States Military Academy, where he participated in the Terrorism Studies Minor with the Combating Terrorism Center. His current research focuses on the legal frameworks of national security policy.
Captain Paul Erickson is a Class of 2021 General Wayne A. Downing Scholar currently studying at the Fletcher School of Law and Diplomacy at Tufts University. His research focuses on terrorism, international law, and military innovation.
Authors’ note: This article is dedicated to the memory of Ambassador Michael Sheehan, the former Distinguished Chair of the Combating Terrorism Center at West Point, who passed away in July 2018 after a lengthy illness. He was a strong advocate of the General Wayne A. Downing Scholarship Program, of which two of the authors are alumni. His candor, wit, and drive influenced a generation of military, counterterrorism, and intelligence officers. It is also dedicated to the 17 men and women killed in the attack on the USS Cole: HT3 Kenneth E. Clodfelter, ETC Richard Costelow, MSSN Lakeina M. Francis, USN, ITSN Timothy L. Gauna, SMSN Cherone L. Gunn, ITSN James R. McDaniels, EN2 Marc I. Nieto, EW3 Ronald S. Owens, SN Lakiba N. Palmer, ENFA Joshua L. Parlett, FN Patrick H. Roy. USN, EW2 Kevin S. Rux, MS3 Ronchester M. Santiago, OS2 Timothy L. Saunders, FN Gary G. Swenchonis, Jr., ENS Andrew Triplett, and SN Craig B. Wibberley, USN, as well as those injured in the attack and all the families who suffered tragic loss and continue to seek justice. In addition, the authors are grateful to Commander (Ret) Kirk Lippold and Ali Soufan for the assistance they provided in the course of this research and for their continued dedication to securing justice for the USS Cole.
The views expressed in this article are those of the authors and do not necessarily reflect those of the Combating Terrorism Center, United States Military Academy, Department of Defense, or U.S. Government.
© 2020 Pete Erickson, Seth Loertscher, David C. Lane, and Paul Erickson
Substantive Notes
[a] In their memoirs, key Clinton and Bush officials, to include Condoleezza Rice and George Tenet, cite the general sense of change associated with the presidential transition as at least making it more difficult for the government to decide if and how to respond to the attack on the Cole.
[b] For example, Husayn al-Badawi, the brother of Jamal al-Badawi, was identified as an early member of the al-Qa`ida cell established by Walid bin Attash in Aden for the attack on the The Sullivans. While he was listed as a conspirator in al-Nashiri’s 2011 military commission charge sheet, little evidence available in the open source exists to tie him to the bombing of the Cole itself. See Ali Soufan and Daniel Freedman, The Black Banners Declassified: How Torture Derailed the War on Terror after 9/11 (New York: W.W. Norton & Company, 2020), p. 260, and COL Edward J. Regan, Office of Military Commissions, Marine Corps Form 458, “Charge Sheet: Abd AI Rahim Hussayn Muhammad AI Nashiri (15 September 2011),” p. 5.
[c] Abdel-Monem al-Fatahani, an AQAP figure killed in a November 2012 airstrike targeting AQAP, was reported as having had a role in the USS Cole attack, but his linkages to the plot are unclear. See “U.S. Airstrikes in Yemen Kill Suspect in USS Cole Bombing,” Associated Press, January 31, 2012. Also author interview, Ali Soufan, October 2020.
[d] It also excludes key leaders such as Usama bin Ladin, who commissioned the plot and appointed al-Nashiri and Attash to carry it out, as well as other Afghanistan-based al-Qa`ida members who knew about or supported the attack. While bin Ladin and other al-Qa`ida leaders were clearly responsible for the attack, the authors chose to exclude them from this study in the interest of closely examining U.S. efforts to seek justice for the Cole attack itself.
[e] In the federal indictment against Jamal al-Badawi and Fahd al-Quso, for instance, al-Muhajir was accused of providing training in Afghanistan, Pakistan, and Sudan. See United States of America v. Al-Badawi and Al-Quso, pp. 8-9.
[f] While there appears to be ample evidence to support the allegations that al-Nashiri and Attash actively plotted the Cole attack, al-Harethi’s role as a key planner is somewhat less clear. That said, there is evidence to support al-Harethi’s close relationship to bin Ladin as well as allegations that he received instructions from bin Ladin prior to 2000 to return to Yemen and begin plotting attacks. This, combined with his leadership of the al-Qa`ida operatives in Yemen and reports that U.S. intelligence officials searching for him in Yemen in 2002 considered him to have had a role in planning the attack, warrants his inclusion in this list. See Gabriel Koehler-Derrick ed., A False Foundation? AQAP, Tribes, and Ungoverned Spaces in Yemen (West Point, NY: Combating Terrorism Center, 2011), pp. 31-32, and James Bamford, “‘He’s in the Backseat!’” Atlantic, April 2006.
[g] According to officials interviewed at the time of the indictment, the U.S. Department of Justice decided against charging al-Nashiri and Attash, both of whom were in CIA custody at the time, over concerns that such an indictment would require the U.S. government to remove them from overseas detentions sites where they were being interrogated. See Craig Whitlock, “Probe of USS Cole Bombing Unravels,” Washington Post, May 4, 2008, and “Pair of Al-Qaida Members Indicted in Cole Bombing,” Daily Press, May 15, 2003.
[h] The extradition of Jamal al-Badawi, among other issues, served as a significant source of friction in U.S.-Yemeni relations. In October 2007, shortly after al-Badawi’s release from Yemeni custody, the U.S.-sponsored Millennium Challenge Corporation suspended (functionally canceling) a previously awarded grant totaling $20.6 million designed to help fight corruption and increase the rule of law in Yemen. In early 2008, FBI Director Robert Mueller traveled to the country to engage with Yemeni President Ali Abdullah Saleh over the issue in a meeting that reportedly “did not go well.” The disappointing meeting prompted a call to the Yemeni president from President George W. Bush, though no extradition was forthcoming. To mollify the United States, Yemeni security forces brought al-Badawi back into custody, though only temporarily. President Saleh, for his part, expressed frustration in a June 2008 interview with The New York Times that U.S. interference in Yemeni affairs complicated his ability to deal with terrorism inside Yemen and that al-Badawi’s release was part of a Yemeni strategy to control its jihadis and that viewing such releases as a conspiracy was “a misunderstanding.” See “MCC Assistance to Yemen,” Millennium Challenge Corporation, October 26, 2007; Michael Isikoff, “U.S. Angry Over Cole Bomber,” Newsweek, October 30, 2007; Michael Isikoff, “Terrorism: A Tense Impasse in Yemen,” Newsweek, April 26, 2008; Robert F. Worth, “For Yemen’s Leader, a Balancing Act Gets Harder,” New York Times, June 21, 2008.
[i] This does not include Abdul Rahim al-Nashiri, who was sentenced in 2004 to death in absentia in a Yemeni court while he was held in CIA custody. See Neil MacFarquhar and David Johnston, “Death Sentences in Attack on Cole,” New York Times, September 30, 2004.
[j] Mohammad Hamdi al-Ahdal, Jamal al-Badawi, Ali Mohammed Saleh al-Murakkab, Fahd al-Quso, Morad al-Sorori, Mamoon Amswah, and Hadi Dilkum were all convicted during various trials in Yemeni courts. See Michael Scheuer, Stephen Ulph, and John C.K. Daly, “Saudi Arabian Oil Facilities: The Achilles Heel of the Western Economy,” Jamestown Foundation, May 2006, p. 45; Khaled Al-Mahdi, “Yemen To Free Top Al-Qaeda Suspect,” Arab News, November 19, 2006; and “Yemen frees suspected al-Qaida operative,” UPI, February 21, 2006.
[k] As with many issues, however, the leverage that the United States had to induce the Yemeni government to change its stance on the Cole plotters was subject to other considerations. While the Bush and Obama administrations could have suspended military aid to Yemen, doing so would also have had a negative impact on the development of Yemeni counterterrorism capabilities and an impact on the willingness of President Saleh to allow the U.S. government to launch strikes against al-Qa`ida in the Arabian Peninsula within the country.
[l] One example is the December 2001 attempt to arrest al-Qa`ida in Yemen leader Qaed al-Harethi and his deputy and fellow USS Cole suspect Mohammad Hamdi al-Ahdal. In the attempt to capture the men, Yemeni troops, tanks, and aircraft surrounded a town in the Shabwah Governorate and clashed with the local tribesmen, resulting in the deaths of between 18 and 22 soldiers. Neither suspect was detained, and the operation served as a major embarrassment for Yemeni counterterrorism efforts. See Koehler-Derrick, pp. 74-76, and “Profile: Ali Qaed Senyan al-Harthi,” BBC, November 5, 2002.
[m] In another example of institutional failure, at least two of the individuals in this list escaped from Yemeni custody during a breakout in 2003, and at least one, Jamal al-Badawi, escaped for a second time during a 2006 prison break. See Susan Sachs, “Suspects in U.S.S. Cole Bombing Escape from Prison,” New York Times, April 11, 2003, and Christine Hauser, “Mastermind of U.S.S. Cole Attack Escapes Jail,” New York Times, February 5, 2006.
[n] The authors were not able to find any names regarding releases for the RDC process, making unclear which individuals were released as part of the dialogues.
[o] Al-Quso, the “good simple youth,” also went on to fill a leadership role within AQAP and was designated by the United States as a Specially Designated Global Terrorist in 2010. He was alleged to have become AQAP’s head of external operations and was linked to Umar Farouk AbdulMutallab’s failed attack on an airplane over Detroit on Christmas 2009. “Secretary of State’s Terrorist Designation of al-Qa’ida in the Arabian Peninsula Operative Fahd Mohammed Ahmed Al-Quso,” U.S. Department of State, December 7, 2010; Paul Cruickshank, Tim Lister, and Nic Robertson, “Al Qaeda’s bomb-makers evolve, adapt and continue to plot,” CNN, May 8, 2012; “US air strike kills top al-Qaida leader in Yemen,” Associated Press, May 7, 2012.
[p] While there is no open-source evidence to support a claim that al-Badawi had reengaged, the authors were told that the impetus for the drone strike against him in 2019 was the result of continued engagement with al-Qa`ida operatives. If this is true, it would bring the number to at least two. Authors interview, Commander (Ret) Kirk Lippold, October 2020.
[q] Charges against al-Nashiri were first levied in 2008 but were withdrawn in 2009 as part of an Obama administration review, and reinstated in 2011. Luis Martinez and Theresa Cook, “Alleged USS Cole Mastermind Charged,” ABC News, July 1, 2008; “U.S. drops Guantanamo charges per Obama order,” Reuters, February 5, 2009; Charlie Savage, “Accused Al-Qaeda Leader Is Arraigned in U.S.S. Cole Bombing,” New York Times, November 9, 2011.
[r] According to Commander (Ret) Kirk Lippold, the commanding officer of the USS Cole at the time of the attack, while the Office of Military Commissions has made the decision to try Attash for his role in the September 11th attacks, he has admitted to his role in the Cole attack. Prosecutors retain the evidence and elements to the charges required to charge him for his role in the Cole attack should insufficient justice be achieved as part of the September 11th trial. Authors interview, Commander (Ret) Kirk Lippold, October 2020. See also Kristin Roberts, “Detainee claims USS Cole attack planning,” Reuters, March 19, 2007.
[s] While the prosecution described the microphones as “disconnected, legacy microphones,” defense attorneys had previously dealt with issues of recording and surveillance, and in June 2017, two months prior to the discovery of the microphones, Brigadier General Baker had distributed a memorandum to all defense attorneys advising them that he was “not confident that the prohibition on improper monitoring of attorney-client meetings at GTMO … is being followed.” See Carol Rosenberg, “Federal court overturns Marine general’s Guantánamo war court contempt conviction,” Miami Herald, June 18, 2018, and Shilpa Jindia, “Secret Surveillance and the Legacy of Torture have Paralyzed the USS Cole Bombing Trial at Guantánamo,” Intercept, March 5, 2018.
[t] While extraction efforts were mounted by U.S. officials, it is also important to note that the deaths of al-Quso and al-Badawi may ultimately have negative impacts on the United States’ ability to secure justice against al-Nashiri, as any statements they might have made against him could have been placed into evidence as part of his trial.
[u] Not all U.S. allies accepted the Bush administration’s rationale shared by presidential spokesman Ari Fleisher that “we fight the war on terrorism wherever we need. Terrorists don’t recognize any borders or nations.” Swedish Foreign Minister Anna Lindh, for instance, described the strike as “a summary execution that violates human rights,” further stating that “even terrorists must be treated according to international law. Otherwise, any country can start executing those whom they consider terrorists.” Bootie Cosgrove-Mather, “Remote Controlled Spy Planes,” CBS News, November 6, 2002.
[v] The American who was killed was Kamal Derwish. Also known as Ahmed Hijazi, he was a Yemeni American who recruited a group of six Yemeni Americans from outside Buffalo, New York, known as the “Lakawanna Six,” for a religious pilgrimage, which ultimately led to an al-Qa`ida training camp in Afghanistan. Derwish was riding in the same car as al-Harethi. See James Sandler, “Kamal Derwish: The Life and Death of an American Terrorist,” PBS Frontline, October 16, 2003.
[w] According to the New America Foundation, the U.S. government has conducted 374 total airstrikes in Yemen since the al-Harethi strike in 2002. One of those strikes was conducted by the Bush administration, 185 by the Obama administration, and 188 by the Trump administration. See Peter Bergen, David Sterman, and Melissa Salyk-Virk, “America’s Counterterrorism Wars: Tracking the United States’ Drone Strikes and Other Operations in Pakistan, Yemen, Somalia, and Libya,” New America, March 30, 2020.
[x] On October 20, 2020, the U.S. government announced it had reached an agreement with Sudan to begin the process of lifting Sudan’s designation. The agreed settlement of $355 million expands the previous agreement regarding the victims and families of the USS Cole to also include those of the 1998 embassy bombings in Kenya and Tanzania. See Abdi Latif Dahir, “‘It’s a New Day:’ Sudan Exults in Move to Take it Off List of Terror States,” New York Times, October 20, 2020.
Citations
[1] “The Investigation Into the Attack on the USS Cole,” House Armed Services Committee, 2001, accessed September 29, 2015.
[2] Ibid.
[3] As quoted in “In Clinton’s Words: Doing Their Duty,” New York Times, October 13, 2000.
[4] U.S. National Commission on Terrorist Attacks upon the United States, “9/11 Commission Report: The Official Report of the 9/11 Commission and Related Publications,” by Thomas H. Kean and Lee Hamilton (Washington, D.C.: GPO, 2004), p. 193.
[5] George W. Bush, ET AL., Petitioners v. Albert Gore, Jr., ET AL. 531 U.S. 98 (2000), accessed on September 15, 2020.
[6] “Terrorism,” Gallup, accessed October 13, 2020.
[7] U.S. Commission on Presidential Debates, October 17, 2000.
[8] Report of the House Armed Services Committee, “The Investigation Into the Attack on the USS Cole,” May 2001.
[10] Author Peter Erickson interview, Michael Sheehan, November 2015.
[11] Michael Sheehan, Crush the Cell: How to Defeat Terrorism Without Terrorizing Ourselves (New York: Three Rivers Press, 2008), p. 136.
[12] Richard Clarke, Against All Enemies: Inside America’s War on Terror (New York: The Free Press, 2004), p. 224.
[13] Ibid.
[14] Wayne Downing in Richard Shultz, “Showstoppers: Nine Reasons Why We Never Sent our Special Operations Forces after Al Qaeda before 9/11,” Weekly Standard 9:19 (2004).
[15] Author Peter Erickson interview, Michael Sheehan, November 2015.
[16] Clarke, p. 181.
[17] Ibid., p. 205.
[18] Sheehan, pp. 29-30.
[19] Ali Soufan and Daniel Freedman, The Black Banners Declassified: How Torture Derailed the War on Terror after 9/11 (New York: W.W. Norton & Company, 2020), p. 256-257.
[20] Soufan and Freedman, p. 264; COL Edward J. Regan, Office of Military Commissions, Marine Corps Form 458, “Charge Sheet: Abd AI Rahim Hussayn Muhammad AI Nashiri (15 September 2011),” p. 5.
[21] Multiple sources refer to different individuals as the “mastermind” of the plot. For more, see Peter Finn, “Alleged USS Cole bombing Mastermind al-Nashiri is arraigned,” Washington Post, November 9, 2011; David Ensor and Syed Mohsin Naqvi, “Bush hails capture of top al Qaeda operative,” CNN, May 1, 2003; and Susan Sachs, “Suspects in USS Cole Bombing Escape Prison,” New York Times, April 11, 2003.
[22] United States of America v. Al-Badawi and Al-Quso.
[23] “U.S. kills Cole suspect: CIA drone launched missile,” CNN, November 5, 2002; “U.S. Airstrikes in Yemen Kill Suspect in USS Cole Bombing,” Associated Press, January 31, 2012; Eric Schmitt, “Militant Tied to Ship Bombing Is Said to Be Killed,” New York Times, May 6, 2012; Eric Schmitt, “Airstrike Kills Plotter of Deadly Bombing of U.S.S. Cole,” New York Times, January 6, 2019.
[24] “Yemen on the Brink: Implications for US Policy,” Hearing before the House Committee on Foreign Affairs, 111th Cong. (2010), testimony of Jonathan Schanzer.
[25] Soufan and Freedman, p. 158.
[27] “Pair of Al-Qaida Members Indicted in Cole Bombing,” Daily Press, May 15, 2003.
[28] Jeremy Sharp, “Where is the Tipping Point for Yemeni Stability?” Carnegie Endowment, August 8, 2008.
[29] Robert F. Worth, “Yemen’s Deals With Jihadists Unsettle the U.S.,” New York Times, January 28, 2008.
[30] Edmund J. Hull, High Value Target: Countering Al Qaeda in Yemen (Washington D.C.: Potomac Books, 2011).
[33] “Death penalty in Cole bombing upheld,” Al Jazeera, February 26, 2005.
[34] “USS Cole plotter freed by Yemen,” BBC, October 27, 2007.
[35] “Death penalty in Cole bombing upheld.”
[36] Soufan and Freedman, p. 235.
[38] Horgan and Braddock, pp. 275-276.
[39] MacFarquhar and Johnston.
[41] Carol Rosenberg, “Trial for Men Accused of Plotting 9/11 Attacks Is Set for 2021,” New York Times, August 30, 2019; CW3 Anthony Graziano, Office of Military Commissions, Marine Corps Form 458, “Charge Sheet: Khalid Shaikh Mohammad, Walid Muhammad Salih Mubarak Bin ‘Attash, Ramzi Binalshibh, Ali Abdul Aziz Ali, Mustafa Ahmed Adam al Hawsawi (31 May 2011).”
[43] Carol Rosenberg, “Court Rejects 2 Years of Judge’s Decisions in Cole Tribunal,” New York Times, April 16, 2019; Jonathan Hafetz, “The DC Circuit’s Latest Ruling in Al-Nashiri: Why the Military Commissions Cannot Escape the Taint of CIA Torture,” JustSecurity, September 9, 2016.
[45] Steve Vladeck, “Al-Nashiri III: A No Good, Very Bad Day for U.S. Military Commissions,” JustSecurity, April 16, 2019; Rosenberg, “Court Rejects 2 Years of Judge’s Decisions in Cole Tribunal.”
[47] “U.S. kills Cole suspect: CIA drone launched missile;” Schmitt, “Militant Tied to Ship Bombing Is Said to Be Killed;” Schmitt, “Airstrike Kills Plotter of Deadly Bombing of U.S.S. Cole.”
[48] Michael Isikoff, “U.S. Angry Over Cole Bomber,” Newsweek, October 30, 2007.
[49] Authors interview, Commander (Ret) Kirk Lippold, October 2020.
[50] Bill Urban, “USCENTCOM confirms the death of Jamal al-Badawi,” U.S. Central Command, January 7, 2019.
[51] Gregory Johnsen, “US Military’s Ambiguous Definition of a ‘Legitimate’ Target,” Sana’a Center for Strategic Studies, February 20, 2019.
[52] “U.S. kills Cole suspect: CIA drone launched missile.”
[53] Dana Priest, “CIA Killed U.S. Citizen In Yemen Missile Strike,” Washington Post, November 8, 2002.
[54] Sudarsan Raghavan, “In Yemen, US airstrikes breed anger, and sympathy for al-Qaeda,” Washington Post, May 29, 2012; Jillian Schwedler, “Is the U.S. drone program in Yemen working?” Brookings Institute, September 28, 2015.
[55] Charly Himmel, “Families of USS Cole Victims Awarded $48M,” Courthouse News Service, March 18, 2015.
[56] Tim McGlone, “Cole families strike back in court this week,” Virginian Pilot, March 12, 2007.
[58] Ibid.
[59] Republic of Sudan v. Harrison, 587 U.S. 3 (2019).
[61] Ibid.
[62] Authors interview, Commander (Ret) Kirk Lippold, October 2020.
[63] Authors interview, Ali Soufan, October 2020.
[64] Rosenberg, “Army Judge Proposes 2022 Trial in Guantánamo’s Cole Bombing Case.”
[65] Sewell Chan and Kimiko de Freytas-Tamura, “Pentagon Says ‘Jihadi John’ Was Probably Killed in Airstrike,” New York Times, November 13, 2015; David K. Li, “Airstrike kills ISIS leader responsible for death of American aid worker Peter Kassig,” NBC News, December 3, 2018; Peter Baker, Eric Schmitt, and Helen Cooper, “ISIS Leader al-Baghdadi Is Dead, Trump Says,” New York Times, October 27, 2019; “Wife of Dead ISIL Leader Charged in Death of Kayla Jean Mueller,” Federal Bureau of Investigations, February 9, 2016.
[66] Charlie Savage, “U.S. Moves to Take ‘High Value’ ISIS Detainees, Including Britons Who Abused Hostages,” New York Times, October 9, 2019; Charlie Savage, “British Give U.S. Evidence Against ISIS ‘Beatles,’ Clearing Way for Trial,” New York Times, September 22, 2020; Adam Goldman and Charlie Savage, “Islamic State ‘Beatles’ Jailers Are Charged in Abuse of Murdered Hostages,” New York Times, October 7, 2020.
