"I'm a farmer, not a lawyer," Grassley told Holder at a Senate Judiciary Committee hearing last November. "I don't know how you can make a statement that failure to convict is not an option when you've got juries in this country. I think a lot of Americans thought O.J. Simpson ought to be convicted of murder."
Holder would hear nothing of it. "I want to emphasize that I am confident that we will be successful in the trial of these matters," he told Grassley. And even if KSM or some other high-value terrorism suspect were somehow acquitted, Holder continued, the government could still hold them for other reasons.
If that's the case, Grassley replied, then what's the point of putting them in civilian court in the first place? "What do you gain?" Grassley asked. "I'm just trying to bring a little common sense to this."
During the course of that hearing, several of Grassley's fellow Republicans joined him in trying to bring a little common sense to the issue. They all failed.
Yes, Holder backed off on trying KSM in New York, or in civilian court anywhere, but only because a bipartisan majority in Congress was determined to stop him from doing it. But Holder and his boss, President Obama, forged ahead with their crusade to prove that the American civilian justice system is as appropriate for a foreign terrorist captured in Pakistan as it is for an American accused of knocking off a convenience store in Milwaukee.
Holder's test case was Ahmed Ghailani, the al Qaeda operative accused of playing a key role in the 1998 attacks on American embassies in Kenya and Tanzania. Originally from Africa and arrested after a shootout in Pakistan, Ghailani was held at the terrorist detention facility in Guantanamo Bay before Holder ordered him moved to Manhattan for trial. Ghailani faced 286 counts, including 224 separate murder counts -- one for each of the people killed in the embassies.
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 Wednesday, 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.