MIAMI (Reuters) - The U.S. war crimes tribunal that will try the alleged planner of a deadly attack on a U.S. warship has no power to free him if he is acquitted, military prosecutors said in court documents made public on Wednesday.
Defence lawyers have argued that the trial of Guantanamo prisoner Abd al-Rahim al Nashiri would be merely a show trial if there was no meaningful possibility of reprieve if he is found not guilty.
Nashiri is to be arraigned next week at the Guantanamo Bay U.S. naval base in Cuba on charges he conspired with al Qaeda suicide bombers to ram an explosives-filled boat into the side of the USS Cole while it was in port in Yemen in 2000.
Seventeen U.S. sailors were killed in the attack and three dozen more suffered injuries ranging from broken bones and concussion to ruptured ear drums.
Nashiri, a 46-year-old Saudi Arabian of Yemeni descent, could be executed if he is convicted of charges that include conspiracy, murder and perfidy.
But the U.S. government has said that regardless of the trial's outcome, it has authority to hold the alleged al Qaeda conspirator until the end of hostilities in the U.S. war against terrorism -- essentially for the rest of his life.
Defense lawyers want the military jurors to be told up front that Nashiri could be executed if convicted and held forever if acquitted.
They said the jurors, lawyers and other trial participants need to know "whether they are participating in a trial with real consequences or merely a trial in name where the political decision, already made and confirmed, will inform the result."
"And for some, their oaths may preclude participation in such a trial," the defense lawyers said in a court document.
Prosecutors replied that the military tribunal's authority to try Nashiri on war crimes charges is entirely separate from the government's law-of-war authority to hold al Qaeda and Taliban captives to keep them off the battlefield.
The Guantanamo tribunal, formally known as a military commission, has no jurisdiction over the latter, they argued.
"Congress did not authorize the commissions to resolve every aspect of the life of the accused," the prosecutors said.
They said Nashiri's trial is meaningful and crucial because it will ensure "a full, fair and principled examination" of the charges against him. "There is no predetermined result," the prosecutors said.
The Guantanamo court is expected to consider the issue even as Congress considers measures that would expand the use of military detention and military tribunals for anyone accused of terrorism, including U.S. citizens.
Of the six men who have been convicted or pleaded guilty to terrorism-related charges so far in the Guantanamo tribunals, one is serving a life sentence. The others were sentenced to terms ranging from nine months to 14 years, though the latter will be cut sharply if the Sudanese prisoner in question keeps his promise to help prosecute other captives.
Two of the six finished their sentences and were sent home to Australia and Yemen, where they remain free.
Congress subsequently tightened restrictions on the transfer of Guantanamo detainees, making it nearly impossible for the Obama administration to repatriate even those deemed to pose no threat to the United States and its allies.
Nashiri would be the first Guantanamo prisoner prosecuted on charges that carry the death penalty.
He was captured in Dubai in 2002 and held for years in secret CIA prisons, where the U.S. government has acknowledged he was subjected to mock executions and the simulated-drowning technique known as waterboarding.
Five other prisoners accused of plotting the Sept. 11, 2001 attacks on the United States with hijacked planes -- including self-described mastermind Khalid Sheikh Mohammed -- are expected to be arraigned on death penalty charges next year.
President Barack Obama caved to political pressure and dropped plans to try them in the civilian federal courts in New York, sending the prosecutions back to Guantanamo.
(Reporting by Jane Sutton, editing by Anthony Boadle)