One former terror prosecutor tries to spin the loss on the difficulty in proving conspiracy casses.

"Conspiracy cases are always difficult, because you often don't have that smoking gun or other tangible thing to point to," Kelley said. "And once you get in front of a jury, that slam-dunk case suddenly plunges to 50-50, and that dog case suddenly improves to 50-50. You just don't know what's going to happen."

That's ridiculous. If that were true, conspiracy wouldn't be the "darling of the modern prosecutor's nursery" as Judge Learned Hand wrote in 1938 in U.S. v. Peoni, and used so indiscriminitely today in terror, white collar and drug cases. Georgetown law professor and civil liberties expert David Cole has a much better take:

"They [the Government] have long proclaimed this as Exhibit A in the successful use of the Patriot Act and as one of their most important prosecutions in the war on terror," Cole said. Prosecutors proceeded "on a kind of extremely sweeping guilt-by-association theory . . . without any showing that he specifically furthered or sought to further any violent act of any kind."