The Justice Department's decision not to challenge a federal district judge's order that a Kuwaiti Airlines engineer held at Guantanamo for seven years must be released is a major embarassment to the Pentagon's military commission system.

Justice Department spokesman Dean Boyd confirmed in an e-mail that there will be no appeal of U.S. District Judge Colleen Kollar-Kotelly's September order absolving Fouad al Rabia of being a key aide to Osama bin Laden. Kollar-Kotelly's ruling was highly critical of the government for holding Rabiah for so long. She noted that not even his interrogators believed his confession, which she noted he made after an interrogator told him it was the only way he'd be released. He was fat, had washed out of required military training in Kuwait, and had an easily verified history of going to countries like Afghanistan to do humanitarian work -- which is what he said he was doing when he was turned over to U.S. forces.

But the real embarassment isn't that he's going home -- eventually -- but that it was only a year ago that an Air Force prosecutor -- in spite of all the evidence in Rabia's favor -- made Rabia one of the few Guantanamo prisoners to face actual war crimes charges. He was accused of being a notorious bin Laden aide "Abu Abdullah al Kuwaiti," who allegedly served as logistics and supply officer at the 2001 battle of Tora Bora. Carol Rosenberg of The Miami Herald set out the issues in this story.

Prosecuting someone who was actually at Tora Bora might be seen as of special importance, since it's generally conceded that that was where the U.S. military let bin Laden slip away. U.S. commanders decided to leave to Afghan militia the responsibility of cutting off bin Laden's escape route. They didn't do it.

But Rabia wasn't the guy to prosecute. Why the Pentagon insisted on moving forward with a military commission trial against him when it was pretty clear to even his interrogators he was the wrong guy may never really be understood. There's no will to hold anyone accountable in the military for such egregious error. The Pentagon hasn't dropped the charges against Rabia and probably won't until he has physically left Guantanamo.

In the meantime, Rabia's attorney, David J. Cynamon of the D.C. law firm Pillsbury Winthrop Shaw Pittman, has asked the Senate Armed Services Committee, the Inspectors General of the Department of Justice, the Department of Defense and the Office of the Director of National Intelligence, and the co-chairs of the President's Advisory Board on Intelligence to investigate what he calls Rabia's "abuse and torture" at the hands of U.S. interrogators. "I'm not going away quietly on this one," he said in an e-mail message to Rosenberg. You can read his requests here.

Rabia, by the way, is the second prisoner facing military commission charges that the Justice Department has agreed to release. The first was Afghan teen Mohammed Jawad, who was charged with throwing a hand grenade that injured a U.S. soldier. Both civilian and military judges agreed, however, that Jawad's confession was the result of torture and couldn't be used at trial and he went home in August.