WASHINGTON (AP) - A federal appeals court Tuesday refused to halt the military commission trial of a Saudi national charged with orchestrating the 2000 attack on the USS Cole that killed 17 U.S. sailors.
The 2-1 ruling said Abd al Rahim al-Nashiri can't challenge the commission's authority to hear his case until after the proceeding has run its course.
Al-Nashiri argued military commissions only have authority over offenses that take place during an armed conflict. He said his actions were not war crimes because the U.S. was not officially at war with al-Qaida at the time of the attack.
However, the U.S. Court of Appeals for the District of Columbia Circuit said the military court was capable of deciding whether al-Nashiri's conduct occurred "outside the context of hostilities."
Writing for the majority, Judge Thomas Griffith rejected arguments the appeals court should consider the challenge now because al-Nashiri was subject to torture while in U.S. custody. Al-Nashiri was held for several years in secret CIA prisons after his capture in 2002.
Authorities have disclosed he was subjected to a mock execution and waterboarding. Al-Nashiri said he was also hung by his hands, deprived of sleep and regularly beaten. He was transferred to the prison at Guantanamo Bay in September 2006.
"Al-Nashiri's allegations regarding his treatment during detention, while deeply troubling, do not provide any reason to fear that he will not be given a fair hearing in the military commission," Griffith said.
In dissent, Judge David Tatel said evidence that al-Nashiri was tortured while in U.S. custody warrants considering his claims now. If allegations about his treatment have merit, "the alleged burdens he faces are not only unusual, but extraordinary," Tatel said.