As I noted yesterday, one of the more remarkable moments in the D.C. Circuit oral argument in al Bahlul v. United States–a challenge to the constitutionality of a conspiracy conviction rendered by a Guantánamo military commission–was the government’s concession that, notwithstanding the D.C. Circuit’s 2009 ruling Kiyemba v. Obama, the Fifth Amendment’s Due Process Clause (including the equal protection component thereof) does apply to the military commissions such that defendants may affirmatively invoke it as a defense. Whether or not such a concession was necessary (I’m not as convinced that Wong Wing requires it as al Bahlul’s counsel, Michel Paradis, seems to be), it was certainly striking…
In al Bahlul‘s case, the import of that concession is to give at least some credence to the defendant’s equal protection challenge to the Military Commissions Act–which only authorizes military commission trials of non-citizens (and thus facially discriminates on the basis of alienage, as Neal Katyal lamented in a 2007 Stanford Law Review essay). But the three-judge panel that heard yesterday’s argument need only reach the equal protection challenge if it rejects al Bahlul’s other challenges to his conspiracy conviction, including his (in my view, stronger) Article I and Article III challenges. If al Bahlul prevails on either the Article I or Article III issue, his equal protection claim will be moot.
Instead, the real significance of the government’s concession is likely to be felt in other pending military commission cases, especially the 9/11 trial and Nashiri. Whether or not those defendants now seek to raise their own equal protection challenges, the government’s concession (of which the commissions can–and likely should–take judicial notice) opens the door to a range of other due process challenges, including challenges to the pre-trial procedures employed by the commissions; challenges to the closing of certain of the proceedings; and challenges to evidentiary rulings if and when these cases get to trial, all in the name of procedural fairness. The government has long maintained that the rules and procedures prescribed to govern the commissions do not materially deviate from the rules and procedures that would apply in courts-martial; defense counsel have maintained for just as long that those rules and procedures are toothless without some kind of constitutional underpinnings. The real upshot of yesterday’s concession, then, may be in requiring the presiding judges in the 9/11 and Nashiri cases to finally decide who has the better of this argument…