The decision comes practically on the eve of the 10th anniversary of the attack, which killed 17 sailors and wounded dozens when a boat packed with explosives ripped a hole in the side of the warship in the port of Aden.
In a filing the Justice Department said that "no charges are either pending or contemplated with respect to al-Nashiri in the near future." The statement, tucked into a motion to dismiss a petition by Nashiri's attorneys, suggests that the prospect of further military trials for detainees held at Guantanamo Bay, Cuba, has all but ground to a halt, much as the administration's plan to try the accused plotters of the Sept. 11, 2001, attacks in federal court has stalled.
There are only two cases moving forward at Guantanamo Bay, and both were sworn and referred for trial by the time Obama took office. In January 2009, Defense Secretary Robert M. Gates directed the Convening Authority for Military Commissions to stop referring cases for trial, an order that 20 months later has not been rescinded.
Military officials said a team of prosecutors in the Nashiri case has been ready go to trial for some time. In fact, several months ago, military officials seemed confident that Nashiri would be arraigned this summer. "It's politics at this point," said one military official who spoke on the condition of anonymity to discuss policy. He said he thinks the administration does not want to proceed against a high-value detainee without some prospect of civilian trials for other major figures at Guantanamo Bay.
The Defense Department issued a statement Thursday saying the case is not stalled. “Prosecutors in the Office of Military Commissions are actively investigating the case against Mr. al-Nashiri and are developing charges against him," the statement said.
With the 10th anniversary of the Cole bombing approaching on Oct. 12, relatives of those killed in the attack expressed deep frustration with the delay. "After 10 years, it seems like nobody really cares," said Gloria Clodfelter, whose 21-year-old son, Kenneth, was killed on the Cole.
Military prosecutors allege that Nashiri, a Saudi national, was a senior al-Qaeda operative and close associate of Osama bin Laden, who orchestrated the suicide attack on the Cole. Nashiri was scheduled to be arraigned in February 2009 but the new administration instructed military prosecutors to suspend legal proceedings at Guantanamo Bay. The charges against Nashiri were withdrawn.
In November 2009, however, Attorney General Eric H. Holder Jr. appeared to revive the case when he announced that the military would prosecute Nashiri, one of at least 36 detainees who could be tired in federal court or a military commission. "With regard to the Cole bombing, that was an attack on a United States warship, and that, I think, is appropriately placed into the military commission setting," Holder said.
Cold Case: USS Cole
None of the defendants convicted in Yemen in the 2000 bombing of the USS Cole remains in prison. Al-Qaeda member Jamal al-Badawi has escaped twice and slipped away at least once with the blessing of Yemeni officials. Another conspirator was secretly freed in Yemen, and two were released after serving partial sentences. Only two suspects, captured outside Yemen, are in U.S. custody, at Guantanamo Bay, Cuba.