According to Bloomberg.com, which had the most detailed story I've seen so far:
The proceedings in the Ghailani case had been stalled as U.S. prosecutors weighed whether to seek the death penalty. U.S. Attorney Preet Bharara in New York said in a court filing today that U.S. Attorney General Eric Holder had instructed him not to do so.
“You are authorized and directed not to seek the death penalty against Ahmed Khalfan Ghailani,” Holder wrote in an Oct. 2 letter to Bharara that was included in the filing. Bharara forwarded the Holder letter to U.S. District Judge Lewis Kaplan, who is presiding over the case.
“Other defendants in the embassy bombings case have either already either received life sentences or will not be subject to the death penalty because the United States agreed not to seek it as a condition of their extradition,” the Justice Department said today in a statement. “Given those circumstances and other factors in this case, the attorney general authorized the U.S. attorney to seek a life sentence.”
So AG Holder thinks it would be improper to seek the death penalty in Ghailani's case because some of the mutt's co-defendants cannot be subjected to the same penalty? It wouldn't be fair, I suppose is the way Holder sees the situation.
Screw fairness. Fairness is not the same thing as justice. Since when did fairness drive the U.S. criminal justice system? It was Ghailani's own decision to hide out in Pakistan after the bombing, where he was arrested, and where the authorities do not go weak-kneed at the prospect of rendering a foreign terrorist to a death penalty state.
I'm certain that a man who cold-bloodedly participated in an act of mass murder for political and religious motives is willing to accept the full consequences of his actions. Why isn't the U.S. government willing to impose them?
Ghailani did the crime (here's a summary of the evidence presented in his Combatant Status Review Tribunal, and here's his tribunal transcript), it carries the death penalty under U.S. law, and justice - the kind with a lower-case "J" - demands that he be tried accordingly. But, Justice with a capitol "J" has wimped out.
When Ghailani was transferred from Gitmo to New York last June for prosecution on 286 counts of terror-related charges, I feared that he might escape the hangman, but only because I figured a New York City jury might not pull the trigger. I didn't expect that the U.S. Justice Department would lack the moral fortitude to even seek the death penalty.