USS COLE: INVESTIGATION AND PROSECUTION

1. (S/NOFORN) BEGIN SUMMARY: THE YEMENI GOVERNMENT IS
MOVING TOWARDS KEY DECISIONS REGARDING THE USS COLE
INVESTIGATION, AND THE SUSPECTS IT HOLDS FALL INTO FOUR
CATEGORIES: A) THOSE WHO WILL FACE TRIAL SOON; B) THOSE WHOSE
TRIAL WILL CONTINUE TO BE HELD IN ABEYANCE AT U.S. REQUEST;
C) THOSE WHO WILL BE RELEASED; AND D) THOSE THE YEMENI
GOVERNMENT IS UNLIKELY TO PROSECUTE, BUT WHOM WE SHOULD
PURSUE IN OTHER WAYS. AMBASSADOR'S RECOMMENDATIONS INCLUDE:
PROVIDING LEGAL ASSISTANCE TO YEMEN FOR CATEGORY (A) AND
PURSUING SEALED INDICTMENTS FOR CATEGORY (D). SEE FULL
REPORT AND RECOMMENDATIONS BELOW. END SUMMARY.



2. (S/NOFORN) DURING GENERAL FRANKS'S VISIT OCTOBER 17,
AMBASSADOR RAISED WITH PRESIDENT SALEH PROSECUTION OF USS
COLE DEFENDANTS. NOTING THE RECENT ATTACK ON THE FRENCH
TANKER, AMBASSADOR ARGUED THAT A VIGOROUS PROSECUTION OF
TERRORISTS RESPONSIBLE FOR THE USS COLE ATTACK WAS A
NECESSARY SIGNAL FOR TERRORISTS PLANNING OTHER ATTACKS.
SALEH INITIALLY COMMENTED THAT THE CASE WAS "SUB JUDICE" AND
NOT A POLITICAL ISSUE. HE QUICKLY ADDED THAT YEMENI JUSTICE
WOULD BE TOUGH AND INCLUDE LONG SENTENCES AND EVEN
EXECUTIONS. TO FOLLOW UP AMBASSADOR'S MARKER, EMBASSY
PROPOSES FOLLOWING THOUGHTS ON THIS CASE.



3. (S/NOFORN) THE FBI/NCIS TEAM THAT IS WORKING HERE ON THE
USS COLE INVESTIGATION IS DOING A SUPERB JOB WITH THE
YEMENIS, AND IN THEIR UPDATES FOR AMBASSADOR IT IS BECOMING
CLEAR THERE ARE A NUMBER OF ISSUES FOR WASHINGTON TO
CONSIDER. THE GOVERNMENT HERE IS IN THE PROCESS OF DECIDING
FINALLY WHICH SUSPECTS TO PROSECUTE AND PUT ON TRIAL, WHAT
KIND OF CASES TO PRESENT, AND WHAT DISPOSITION TO MAKE OF
REMAINING SUSPECTS. THE KEY U.S. OBJECTIVE IN THIS IS TO SEE
THAT THE GUILTY ARE CONVICTED AND PUNISHED, BUT THIS GOAL IS
LIKELY TO BE SATISFIED ONLY PARTIALLY BY YEMEN'S DECISIONS.
IN ADDITION, IT APPEARS THAT BECAUSE OF SHORTCOMINGS IN PSO'S
ABILITY TO PREPARE A CASE FOR THE PROSECUTORIAL ARM OF THE
YEMENI GOVERNMENT, THERE IS A NEED FOR LEGAL ASSISTANCE FROM
THE U.S. PROSECUTION SIDE.



4. (S/NOFORN). FOR THE SAKE OF CLARITY, HERE ARE FOUR
DIFFERENT CATEGORIES OF YEMENI-HELD SUSPECTS IN THE COLE
CASE, AND AMBASSADOR'S RECOMMENDATIONS FOR EACH.



5. (S/NOFORN) THE FIRST CATEGORY CONTAINS EIGHT AND POSSIBLY
NINE INDIVIDUALS. THESE WE UNDERSTAND THE PSO CONSIDERS THAT
IT HAS EVIDENCE AND THE GOVERNMENT'S ATTORNEY GENERAL HAS THE
INTENTION TO PROSECUTE, CONVICT, AND PUNISH. THOSE EIGHT
INDIVIDUALS ARE:

-- MURAD AL-SURURI
-- ALI AL-MURAKAB
-- AHMAD AL-SHINI
-- YASSER AL-IZZANI
-- YASSER AHMAD QASSIM
-- ABDULLAH AL-HAKEEM
-- MUHAMMED DARAMAH
-- NABIL SALUH

THE NINTH INDIVIDUAL, WAHIB AL-KHODR, THE PSO CONSIDERS IN
THE SAME CATEGORY AS THE OTHER EIGHT, BUT IS LESS SURE OF ITS
EVIDENCE AGAINST HIM.

FOR THIS GROUP, AMBASSADOR RECOMMENDS THAT UNLESS THE USG HAS
EVIDENCE TO THE CONTRARY, EXONERATING OR MITIGATING THESE
INDIVIDUALS, THAT WE OFFER TO ASSIST THE YEMENI PROSECUTION
IN THESE CASES. OUR FBI/NCIS TEAM HERE ADVISES THAT WHILE
PSO MAY HAVE EVIDENCE THAT IT CONSIDERS TO BE COMPELLING,
FROM A LEGAL PERSPECTIVE, THE CASES MAY NOT BE EQUALLY
STRONG. IN PARTICULAR, THEN, LEGAL ASSISTANCE FROM THE U.S.
ATTORNEY'S OFFICE IN THE SOUTHERN DISTRICT OF NEW YORK COULD
BE INVALUABLE TO THE YEMENI ATTORNEY GENERAL'S TEAM AS IT
SEEKS TO SHAPE THESE PROSECUTIONS, USING WHATEVER EVIDENCE
MAY ALREADY BE IN THE FILE CASES PROVIDED BY THE PSO AND,
ALSO, ANY ADDITIONAL INFORMATION THAT THE USG MAY BE ABLE TO
DEVELOP FROM OTHER SOURCES. SUCH ASSISTANCE SHOULD BE
PROVIDED ASAP, AS YEMENI OFFICIALS ARE ON PUBLIC RECORD
STATING THAT COLE PROSECUTIONS WILL BEGIN IN THE NEAR FUTURE.
A STRONG PROSECUTION CASE OBVIOUSLY SERVES BOTH U.S. AND
YEMENI INTERESTS, AND WE SHOULD ASSIST IN EVERY WAY POSSIBLE.



6. (S/NOFORN) THE SECOND CATEGORY CONTAINS THREE
INDIVIDUALS. THESE WERE IDENTIFIED IN FBI DIRECTOR'S LETTER
PRESENTED TO PRESIDENT SALEH ON SEPTEMBER 25 - INDIVIDUALS
WHOM THE U.S. WOULD LIKE TO BE HELD BUT NOT SENT TO TRIAL
UNTIL THE U.S. COMPLETES INDICTMENTS AGAINST ABD AL-RAHIM
NASHIRI, TAWFIQ BIN ATTASH, AND AHMAD AMIN. THESE THREE
INDIVIDUALS ARE:

-- FAHD AL-QUSO'A
-- JAMAL AL-BADAWI
-- AHMAD AHMAD HASAN AMIN (ABU JAFAR AL-TAYYAR)

WE EXPECT THE YEMENI GOVERNMENT WILL CONTINUE TO ACCEDE TO
THE U.S. REQUEST TO HOLD IN ABEYANCE GOING TO TRIAL FOR THESE
THREE. ACCORDINGLY, AMBASSADOR RECOMMENDS THAT U.S.
INDICTMENTS AGAINST NASHIR, ATTASH, AND AMIN BE COMPLETED AS
SOON AS POSSIBLE SO THAT FURTHER DELAY IS AVOIDED. SUCH A
STEP WILL HELP THE YEMENIS SEE THAT WE ARE DEALING WITH THE
COLE INVESTIGATION IN ITS ENTIRETY, AS PART OF OUR
COMPREHENSIVE EFFORTS AGAINST AL-QAEDA. INDEFINITE DELAY
COULD HAVE UNFORESEEABLE COSTS.



7. (S/NOFORN) THE THIRD CATEGORY CONTAINS FOUR INDIVIDUALS.
THESE FOUR THE YEMENIS HAVE DETERMINED THEY DO NOT HAVE
SUFFICIENT EVIDENCE TO PROSECUTE, AND ACCORDINGLY WOULD
RELEASE. THESE FOUR ARE:

-- ABD AL-SALAM AL-FAQIR
-- ABD AL-HAMID MUTHANA
-- ABD AL-KARIM AL-RIMI
-- SA'EED AL-WAHSH

FBI/NCIS INVESTIGATORS IN SANAA AGREE THAT THERE IS LITTLE OR
NO EVIDENCE OF CRIMINAL ACTIVITY FOR THESE INDIVIDUALS.
UNLESS THE U.S. HAS EVIDENCE ELSEWHERE IMPLICATING THESE FOUR
WHICH WOULD STRENGTHEN A YEMENI PROSECUTION OF THEM,
AMBASSADOR RECOMMENDS THAT WE INFORM YEMEN OF NO OBJECTION TO
THEIR RELEASE.



8. (S/NOFORN) THE FOURTH CATEGORY CONTAINS TWO INDIVIDUALS.
THESE HAVE PRIOR ASSOCIATIONS WITH THE PSO AND THEREFORE WE
CANNOT EXPECT YEMEN WILL PROSECUTE THEM. THESE TWO ARE:

-- BASHIR AL-SHADADI
-- AHMAD AMIN (ALSO INCLUDED IN SECOND CATEGORY.)

WE UNDERSTAND THAT U.S. EVIDENCE LEAVES NO DOUBT OF THE
INVOLVEMENT OF THESE TWO IN THE COLE ATTACK. ACCORDINGLY,
AMBASSADOR RECOMMENDS THAT THE JUSTICE DEPARTMENT SEEK A
SEALED INDICTMENT FOR THESE TWO INDIVIDUALS, AND IN THE EVENT
THEY TRAVEL OUTSIDE YEMEN, THE U.S. MAY BE ABLE TO SECURE THE
COOPERATION OF A FRIENDLY GOVERNMENT TO ARREST AND HAND THEM
OVER TO U.S. AUTHORITIES FOR U.S. PROSECUTION.


HULL