In a major setback for prosecutors, the judge in the case barred prosecutors from using a key witness on the grounds that Ghailani might have been mistreated while in CIA custody. On Nov. 17, the jury acquitted Ghailani on 285 counts -- including every one of those murder counts -- while convicting him on a single count of conspiracy to destroy government buildings and property. It turns out that failure, or at least near failure, was an option.
A spokesman pronounced the Justice Department "pleased" with the verdict, although it seems a stretch to say that prosecutors who accused a defendant of killing 224 people were happy when he was acquitted of every single murder charge.
Ghailani could be sentenced to as little as 20 years in prison and to as much as life. If he had been fully acquitted, administration officials hinted, they would have kept him in custody anyway.
That's right: Holder and the president are so eager to restore the primacy of the Constitution in our handling of accused terrorists that they promise that acquitted defendants will remain imprisoned, possibly for life. In addition, Holder and Obama are so anxious to close Guantanamo that they are searching for a way to hold civilian defendants inside the United States indefinitely without charges or trial. And it's all in the name of greater fealty to the Constitution.
Meanwhile, there is a military facility -- Guantanamo -- that is outside the United States and equipped either to hold terrorists indefinitely under the laws of war or try them before military commissions. Why not use it?
In this case, Barack Obama and Eric Holder, the legal experts, were wrong, and Charles Grassley, the farmer-senator, was right. More fiascoes may be in store unless the president and attorney general abandon their drive to bring foreign terrorists captured on foreign battlefields to the United States for civilian trials or indefinite detention. Grassley tried to bring a little common sense to the conversation, but they just wouldn't listen. Maybe they will now.