Some useful reality checks from Scott Horton:
Critics on the right have already started recriminations against the Obama administration, saying that this proves that cases like Ghailani should go to a military commission. But such claims are long on hot air and short on facts. The statistics suggest (PDF) that the conviction and sentence rates for military commissions are no higher than in civilian courtsindeed by present count, they lag behind. Moreover, the Ghailani case faced other problems, because it relates to the 1998 embassy bombings and not conduct post-9/11. The U.S. determination of a “war” dates to 9/11, which would make it a ridiculous stretch to include the embassy bombings casesaspects of which had already been tried, successfully, in federal court. So even if we accept military commissions as a suitable vehicle, Ghailani is a more than problematic candidate.